Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors

By a judgment given on 26 September 2007, HHJ Mole QC dismissed the appellants’ applications under section 288 of the Town and Country Planning Act1990(“the 1990 Act”) to quash a decision of the Secretary of State’s Inspector dated 8 November 2006. By this decision, she dismissed three appeals under section 78 of the 1990 Act against the refusal by the London Borough of Bromley (“Bromley”) to grant their applications for planning permission for the retention of a number of touring caravans and mobile homes on 3 plots within Waldens Farm, a 30 hectare estate of former orchards near Orpington, Kent which has been subdivided into about 800 small leisure plots. The site lies within the Green Belt. The appellants appeal to this court with the permission of Sir Henry Brooke.

In some contexts, it is necessary to distinguish between travellers and gypsies, and in others to distinguish between Irish Travellers and other travellers. These distinctions are not material to the issues that arise in the present case. It is sufficient to say that it is not in dispute that all the appellants have what the Inspector referred to as “gypsy status”. In fact, with the exception of Mark Baker who was born in England, the appellants and their families are all Irish travellers. Para 15 of Circular 01/2006 which is entitled “Planning for gypsy and traveller caravan sites” defines “gypsies and travellers” as meaning:

“Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such.”

Each of the 3 plots had 2-year planning permissions for residential use as gypsy sites personal to the occupiers to whom the permissions were granted. These occupiers have since left and the appellants have taken over from them. The planning permissions expired in June 2005. Mark Baker occupies the plot 270 (the first appeal site); Debbie Ross and Pamela Maughan occupy plots 473-474 (the second appeal site); and Lucy Owen occupies plot 457 (the third appeal site).

Following Bromley’s refusal of planning permission on 24 October 2005, the appellants appealed to the Secretary of State. Ms Ruth MacKenzie was appointed as Inspector. She held an inquiry and made a site visit. In a decision letter dated 8 November 2006, she dismissed all the appeals. In short, she held that she was required to undertake a balancing exercise, weighing on the one hand harm to the Green Belt in the light of the relevant policies if the appellants were permitted to remain, and on the other hand a variety of other considerations which favoured the appellants’ cases. She concluded that the balance came down against the appellants.

The appellants invoked section 288 of the 1990 Act and advanced 9 grounds of challenge before the judge. He rejected all of them. On these appeals, they have raised only 2 of these grounds. But additionally, they have advanced a third ground of appeal which was not raised before the judge, namely that, in breach of section 71(1)(b) of the Race Relations Act 1976 (“RRA”), the Inspector failed to have due regard to the need “to promote equality of opportunity......between persons of different racial groups”. It is this ground that has been the principal focus of the appeals. We gave permission to the Equality and Human Rights Commission (“the Commission”) to intervene in the appeals, since the issues arising under section 71(1) of the RRA are of importance, and we were told that this is the first time that they have been considered by this court, at any rate in a planning context. I say at the outset that I have been much assisted by their intervention.

In paras 3 to 5 of her decision letter, the Inspector summarised the salient features of the 3 plots and the appellants’ occupation of them. At para 6, she recorded that it was common ground that the residential use of all 3 appeal sites was “inappropriate development” in the Green Belt. The main issue in the appeals, therefore, was whether there were other considerations which clearly outweighed the harm to the Green Belt, and any other harms, sufficient to justify the inappropriate developments on the basis of very special circumstances. This paragraph accurately reflects the content of para 3.2 of the government guidance given in Planning Policy Guidance note 2: Green belts (“PPG2”), which I have set out at para 26 below.

At paras 7 and 8, the Inspector referred to the polices in the applicable local plans which were in line with PPG2 These were Policy 3D.8 in the London Plan and policy G1 in the Bromley Unitary Development Plan (“UDP”) which set out the general presumption against inappropriate development in the Green Belt; Policy 3A.11 of the London Plan which encouraged neighbouring boroughs and districts to assess the accommodation needs of gypsies and travellers and review their pitch capacity; and UDP policy H6 which established that Bromley would ensure the continued provision of the existing gypsy sites within the borough. She noted that Bromley intended to produce a criteria-based gypsy policy as part of its Housing Development Plan Document, which it was hoped would be completed by the end of 2007. We were told that it has not yet been adopted.

At paras 9 to 12, the Inspector considered the issue of harm to the Green Belt. She noted that inappropriate development is by definition harmful to the Green Belt (para 9) and that the proposed use of the appeal sites would reduce the openness of the countryside and represent a form of urbanisation of it (paras 10-11). At para 12, she concluded: “I am of the opinion that the Green Belt’s openness is diminished by all 3 appeal sites in a way which I consider to be harmful”.

At paras 13 to 31, she addressed a number of other considerations. The first of these was the appellants’ gypsy status. She referred to the definition which I have quoted at para 2 above and held that all the appellants had gypsy status. The next “other consideration” which she considered was the personal circumstances of each appellant (paras 14-16).

She dealt with Mr Baker at para 14. She said that he was born in the Bromley area and his family had been in the area for several generations. He lived on plot 270 with his wife and 4 sons (aged 12, 11, 10 and 4). All the boys attended school. The eldest received additional help with his education at Bromley Bridge for Learning, Step Ahead Centre. Mr Baker and his wife wanted their sons to have a good education, which they thought would not be possible without a settled base. Until they arrived at Waldens Farm, the boys were never in one school for more than a few weeks. The family were not on the waiting lists for any other gypsy sites. They felt that the Star Lane and Old Maidstone Road sites in Bromley were not good places to bring up a family. In any case, Mrs Baker was an Irish Traveller and for that reason alone they would not be welcomed at either of those sites.

The personal circumstances of Debbie Ross and Pamela Maughan were considered in para 15. They lived on plots 473-474 with Ms Ross’s sister. They had six very young children between them. They had moved to the plot in September 2004, having previously travelled around Kent and the South of England. They wanted a settled base so that their children could be educated and the whole family have easy access to healthcare. They had made enquiries about vacancies on nearby authorised sites, but the waiting lists were long and Irish travellers were not welcome.

The Inspector considered the case of Lucy Owen in para 16. Ms Owen was an Irish traveller with no family connections in Bromley. She had 3 very young children. The eldest child (aged 4) had started primary school. His regular attendance at school was important to her. She felt that regular school attendance would be extremely difficult if she had to leave Waldens Farm and live on the side of the road or in unauthorised encampments. The police had advised her that moving to the sites at Star Lane or Old Maidstone Road would not be safe: the residents of those sites made life difficult for Irish travellers.

The next consideration addressed by the Inspector was the need for additional gypsy sites in the area (paras 17-21). She acknowledged that there was an undisputed need for gypsy sites nationwide and in the Greater London Area (para 17). She noted the work being done by Bromley to find more gypsy sites, but there remained an unsatisfied need for additional sites in Bromley. She said that, if it became necessary for Bromley to find a site within the Green Belt, it was most unlikely that Waldens Farm would be the chosen location, since it was not “well-related to schools and other services” (para 21).

The Inspector then addressed the consideration “Do the appellants need to be at Waldens Farm?” There were no healthcare needs which could only be fulfilled if they remained at Waldens Farm (para 22); although Mr Baker was born in the area, he had no regular caring responsibilities for relatives living nearby and none of the other appellants came from the area or has close relatives nearby (para 23). She then turned to the question of education and said (para 24):

“All of the appellants take education seriously. They know that a settled base is the best way for their children to receive a good education. The education for Mr Baker’s 4 sons (Appeal A) might be disrupted if they had to leave Waldens Farm. This would particularly apply to the education of the eldest boys, aged 12, 11 and 10. However, I note that their journeys to school are currently undertaken by bus or car, and this mobility could be to their advantage. None of the 9 children in Appeals B and C is more than 5 years old. To my mind, if they had to move from Waldens Farm, their education would not be significantly disrupted.”

At para 25, she concluded that the appellants were at the appeal sites “because they took advantage of an opportunity to acquire plots from previous occupiers who were leaving. They are not there because they need to be”.

The next consideration was the appellants’ alternative accommodation options. She said:

“26.

There are 5 authorised sites in Bromley which have planning permission or Lawful Development Certificates (LDCs) for gypsy sites:

• Star Lane in St Paul’s Cray has 22 pitches. It has had no electricity since 2004 and is currently uninhabitable. There is no definite date for its re-opening. When it does re-open it is likely that the original occupants, English travellers, would all move back and the site would again be full. There is a long waiting list. The site is run by Novas Housing Association. Even if pitches became available, there is a long history of antagonism between English and Irish travellers. It would be difficult, if not dangerous, for the appellants, who are Irish travellers, to move there.

• Old Maidstone Road has 12 pitches. It is rat-infested and currently under-occupied. The vacant plots have no water or electricity, and access to them is blocked by piles of rubbish. In common with the Star Lane site, the Old Maidstone Road site is run by Novas Housing Association. There is a long waiting list, and the site has the same problems of antagonism between English and Irish travellers as the Star Lane site.

• The Chalk Pit, Maidstone Road, has a LDC for 25 pitches. The site is privately-owned, and is about half full.

• King Henry’s Drive, New Addington has a LDC for 11 pitches. The site is privately-owned.

• No 148 Croyden Road, Keston is a small privately-owned site with 2 mobile homes and 2 touring caravans.

27.

In my view, the sub-standard facilities and the cultural clashes at the Star Lane and Old Maidstone Road sites would not be impossible to resolve, and are therefore unlikely to be permanent. However, I consider that the 3 privately-owned sites listed above unlikely to be available to the appellants; the owners would limit occupation to their own friends and family.

28.

The adjoining London Boroughs of Bexley, Croyden and Greenwich have a total of over 70 pitches on sites that are not privately-owned. A letter from nearby Bexley Council says that there are no vacancies on its Council-owned sites but, encouragingly, there are no names on the waiting list. However, none of the appellants has put their name down. Indeed, the only appellant on a waiting list is Pamela Maughan (Appeal B) who has been on a waiting list for a site near Heathrow for about 4 years.”

The last consideration which she addressed was human rights (paras 30-31). At para 30, she concluded that:

“It is fair to say that the most likely short-term option for all the appellants, if their appeals are dismissed, would be camping on the side of the road or in other unauthorised locations. If they do not leave Waldens Farm, there is every chance that the young mothers in Appeals B and C could end up in prison for a short while. There would undoubtedly be hardship. However, interference with home and family life, and the right to an education, need to be balanced against the protection of the environment. The fundamental aim of Green Belt policy is to keep the Green belt permanently open. This is a matter of public interest, and a legitimate aim. Taking everything into account, I consider that dismissal of the appeals is the only way that this legitimate aim can be adequately safeguarded. It is a necessary and proportionate response, and one that could not result in a violation of the appellants’ rights under Article 8 and Article 2 of the European Convention on Human Rights.”

The Inspector then turned to the question whether these other considerations clearly outweighed the harm to the Green Belt and any other harm. She said that a balancing exercise had to be undertaken. Weighing against the appellants was the harm to the Green Belt by reason of inappropriateness and the harm to the openness of the green Belt. The considerations in favour of the appellants included their gypsy status, the need for additional gypsy sites, the shortage of alternative accommodation options and last, but by no means least, their personal circumstances (para 32).

At para 33, she concluded:

“33.

After careful thought, I have decided that the considerations in favour of the appellants do not clearly outweigh the harm to the Green Belt and the harm to openness, and therefore very special circumstances do not exist. The main factor that has led me to this view is the absence of any critical work-related, health-related or family-related need for any of the appellants to be at Waldens Farm.”

The Inspector then considered the possibility of the grant of temporary planning permission. She said:

“36.

I have considered the possibility of granting temporary planning permissions. A period of 2 years was suggested in respect of Appeal A, and 5 years in respect of Appeals B and C. Circular 01/2006 does not over-rule the provisions about temporary planning permission in Circular 11/95. Paragraph 110 of that Circular makes it clear that temporary planning permissions may be justified where it is expected that the planning circumstances will change in a particular way at the end of a fixed period. There is no certainty about when or if the planning circumstances in Bromley will change. It is not known how long it will take to sort out the problems at the Star Lane and Old Maidstone Road sites. Nor is it known how long it will be before the GLA specifies pitch numbers for each London Borough. It may be that the GLA decides that no more sites are needed in Bromley. On the other hand, if Bromley is required to provide additional sites, this could take several years to achieve; particularly if changes had to be made to the Green Belt boundary.

37.

I note the advice in Circular 01/2006, relating to transitional arrangements. It favours the early preparation of site-specific DPDs if there is an urgent need for more gypsy sites. Bromley, however, is engaged in the early preparation of a criteria-based policy within its Housing DPD, in order to accord with policy 3A.11 in the London Plan.

38.

I am aware that temporary planning permissions have previously been granted for the sites in Appeals A, B and C. But these decisions were made on the basis of very special circumstances, particular to the appellants at that time. I do not feel unduly constrained by them. I am also mindful of the fact that the temporary permissions in 2003 appear to have been taken as a green light for further encampments at Waldens Farm. There is nothing to suggest that the same would not happen again, thereby undermining the Council’s continued efforts to keep Waldens Farm free of inappropriate development.

39.

Last but not least, paragraph 109 of Circular 11/95 makes it clear that if the damage to amenity cannot be accepted, then the only course open is to refuse permission. I have already decided that the damage to the openness of the Green Belt cannot be accepted.

40.

In the light of the above, I have decided that temporary planning permissions would not be acceptable for these appeals.”

Under section 288(1)(b) of the 1990 Act, the permissible grounds of challenge to a decision by an inspector are:

“(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action…”

Other than these, the validity of any decision on an appeal under section 78 may not be challenged in any legal proceedings: see section 284(1)(f) and (3)(b). It is common ground that the permissible grounds of challenge are analogous to the permissible grounds of challenge to an administrative decision by way of judicial review proceedings.

The RRA provides so far as material:

“71(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need—

(a)

to eliminate unlawful racial discrimination; and

(b)

to promote equality of opportunity and good race relations between persons of different racial groups.

(2)

The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1).

….

71C(1) The Commission may issue codes of practice containing such practical guidance as the Commission thinks fit in relation to the performance by persons of duties imposed on them by virtue of subsections (1) and (2) of section 71.

……

(11)

A failure on the part of any person to observe any provision of a code of practice shall not of itself render that person liable to any proceedings; but any code of practice issued under this section shall be admissible in evidence in any legal proceedings, and if any provision of such a code appears to the court or tribunal concerned to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

(12)

Without prejudice to subsection (1), a code of practice issued under this section may include such practical guidance as the Commission think fit as to what steps it is reasonably practicable for persons to take for the purpose of preventing their staff from doing in the course of their duties acts made unlawful by this Act.”

The Code of Practice on the Duty to promote Race Equality came into force on 31 May 2002 pursuant to the Race Relations Act 1976 (General Statutory Duty: Code of Practice) Order 2002, SI 2002/1435. It includes the following provisions to which Mr Drabble and Mr Allen drew our attention:

“3.2

Four principles should govern public authorities’ efforts to meet their duty to promote race equality:

(a)

promoting race equality is obligatory for all public authorities listed in schedule 1A of the Act.

(b)

Public authorities must meet the duty to promote race equality in all relevant functions.

(c)

The weight to be given to race equality should be proportionate to its relevance.

(d)

The elements of the duty are complementary (which means they are all necessary to meet the whole duty).

3.16

To assess the effects of a policy, or the way a function is being carried out, public authorities could ask themselves the following questions.

a.

Could the policy or the way the function is carried out have an adverse impact on equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage?

b.

Could the policy or the way the function is carried out have an adverse impact on relations between different racial groups?

c.

Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justified by the aims and importance of the policy or function? Are there other ways in which the authority’s aims can be achieved without causing an adverse impact on some racial groups?

d.

Could the adverse impact be reduced by taking particular measures?

e.

Is further research or consultation necessary? Would this research be proportionate to the importance of the policy or function? Is it likely to lead to a different outcome?”

It is common ground that the Circular is a material consideration which the Inspector was required to take into account when deciding the appeals.

The following provisions are relevant:

“2.

The Government is committed to ensuring that members of the gypsy and traveller communities should have the same rights and responsibilities as every other citizen. This Circular replaces Circular 1/94, Gypsy Sitesand Planning and provides updated guidance on the planning aspects of finding sites for gypsies and travellers and how local authorities and gypsies and travellers can work together to achieve that aim. The policies in this Circular apply throughout England.

…

5.

Gypsies and Travellers are believed to experience the worst health and education status of any disadvantaged group in England. Research has consistently confirmed the link between the lack of good quality sites for gypsies and travellers and poor health and education. This circular should enhance the health and education outcomes of gypsies and travellers.

…

11.

This Circular applies equally to the development of public sites by local authorities or registered social landlords (RSLs), to applications for planning permission from gypsies and travellers themselves or from others wishing to develop land for use as a gypsy and traveller caravan site. It applies regardless of whether the site is for residential or transit use, and whatever the expected life of the site itself.

12.

The Circular comes into effect immediately. Its main intentions are;

a)

to create and support sustainable, respectful, and inclusive communities where gypsies and travellers have fair access to suitable accommodation, education, health and welfare provision; where there is mutual respect and consideration between all communities for the rights and responsibilities of each community and individual; and where there is respect between individuals and communities towards the environments in which they live and work;

b)

to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;

c)

to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3 – 5 years;

d)

to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community;

e)

to underline the importance of assessing needs at regional and sub-regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively;

f)

to identify and make provision for the resultant land and accommodation requirements;

g)

to ensure that DPDs include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively;

h)

to promote more private gypsy and traveller site provision in appropriate locations through the planning system, while recognising that there will always be those who cannot provide their own sites; and

i)

to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to.

…

45.

Advice on the use of temporary permissions is contained in paragraphs 108 – 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.

…

49.

There is a general presumption against inappropriate development within Green Belts. New gypsy and traveller sites in the Green Belt are normally inappropriate development, as defined in Planning Policy Guidance 2: ‘Green Belts’ (PPG2). National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF, to meet identified need. Criteria-based policies in DPDs for the location of gypsy and traveller sites (see paragraphs 31 and 32 above) should not depart from national planning policy as set out in PPG2.

50.

The presence of Green Belt will constrain and limit opportunities for identifying gypsy and traveller sites in some areas….

...

71.

Section 19A of the Race Relations Act 1976 (RRA 1976) prohibits racial discrimination by planning authorities in carrying out their planning functions. In addition, the majority of public authorities, including local authorities, have a general duty under the RRA 1976 as amended by the Race Relations (Amendment) Act 2000 to actively seek to eliminate unlawful discrimination and to promote equality of opportunity and good race relations in all they do. The duty on local authorities to actively seek to eliminate unlawful discrimination, and promote good race relations does not give gypsies and travellers a right to establish sites in contravention of planning control. In line with their race equality scheme (legally required under the RRA 1976 (Statutory Duties) Order 2001) local authorities should assess which of their functions are relevant to race equality and monitor these functions and policies to see how they impact on different racial groups. The SCI is particularly important in this regard.

72.

When policies are changed or new ones introduced, authorities should assess and consult on their likely impact, and where an adverse impact is identified which cannot be justified, changes should be made. It is particularly important that authorities consider all the racial groups served by the authority in order to assess the impact of their policies on those groups. Romany Gypsies and Irish Travellers have been recognised by the courts as being distinct ethnic groups covered by the RRA 1976. Under the general duty mentioned above, there is a requirement that local authorities seek to promote good race relations between Gypsies and Travellers and the settled community. This is important in the context of gypsy and traveller site planning.”

So far as material, PPG2 provides:

“3.2

Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.

3.3.

Green Belt policies in development plans should ensure that any planning applications for inappropriate development would not be in accord with the plan. These exceptional cases would thus be treated as departures from the development plan, to be referred to the Secretary of State under the Town and Country Planning (Development Plans and Consultation) Directions 1992 (see DOE Circular 19/92).”

There are three grounds of appeal:

“(1)

In breach of section 71(1)(b) of the RRA, the Inspector failed to have due regard to the need to promote equality of opportunity between persons of different racial groups (“the race relations issue”);

(2)

in carrying out the balancing exercise that she carried out at paras 32 and 33 of the decision letter, the Inspector failed to have regard to the highly disruptive effect that a refusal of planning permission would have on the education of the children of the Baker family (“the Baker education issue”); and

(3)

The Inspector erred by (i) interchanging the question of the appellants’ need to live in an area with their need to live on the particular appeal sites and (ii) imposing a requirement upon them to show a special need to live on the appeal sites (“the location issue”).

It is common ground that (i) the appellants (as Irish Travellers) belong to a racial group within the meaning of section 3(1) of the RRA; (ii) in conducting the appeals, the Inspector was a person subject to the section 71(1) duties; and (iii) the section 71(1)(b) duty to have due to regard to the need to promote equality of opportunity between persons of different racial groups was engaged on the facts of these appeals. The question that arises under the race relations issue is whether the Inspector discharged the section 71(1)(b) duty. Mr Drabble submits that she did not. Although Mr Allen was not invited to address us on the facts of the case, it is implicit in his general submissions as to the approach that should be adopted in performing the section 71(1) duty that he supports Mr Drabble. Mr Coppel submits that the Inspector discharged the duty in substance, although she made no explicit reference to it in the decision letter.

It should be said at the outset that, although solicitors were acting in the Maughan, Ross and Owen appeal, no submissions based on section 71 were made on their behalf to the Inspector. Indeed, the race relations issue was not even at the forefront of the case before the judge. Nevertheless, if the Inspector did not discharge the section 71(1) duty, it would be no answer that her attention was not drawn to section 71 and no arguments were based on it. I accept the submission of Mr Allen that, as a matter of law, an inspector is under the duty to have due regard to the relevant needs whether or not the section 71(1) point is raised by a party. The obligation to perform the statutory duty is not dependent on the issue being raised by one of the parties to the appeal (who may or may not have the benefit of professional representation or even advice). I did not understand Mr Coppel to contend otherwise.

We had detailed submissions from Mr Allen as to the meaning of section 71(1) and in particular the promotion of equal opportunity limb of section 71(1)(b). I shall summarise his principal submissions briefly, because they were not disputed by Mr Coppel. First, the duty is imposed on a large range of public authorities. This demonstrates its importance as a national tool for securing race equality in the broadest sense. Secondly, promotion of equality of opportunity (and indeed good relations) will be assisted by, but is not the same thing as, the elimination of racial discrimination. Mr Drabble emphasised that his case on behalf of the appellants was not based on an allegation of racial discrimination. Thirdly, the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination. Fourthly, the duty is to have due regard to the need to promote equality of opportunity (and good relations) between the racial group whose case is under consideration and any other racial groups. The reference to any other racial groups may be no more than a reference to the general settled community. Fifthly, the equality of opportunity is of opportunity in all areas of life in which the person or persons under consideration are, or may not be, at a disadvantage by reason of membership of a particular racial group. In practice, this is likely to include disadvantage in the fields of education, housing, healthcare and other social needs.

In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.

In the context of the present case, the areas of the appellants’ lives affected by the inequality of opportunity are of central importance to their well-being and the extent of the inequality of opportunity is substantial. As is clearly stated at para 5 of Circular 01/2006, gypsies and travellers suffer the worst health and education status of any disadvantaged group in England and there is a pressing need to promote equality of opportunity in these areas between gypsies/travellers and the general settled community in order to eliminate the problem. Again as recognised by the Circular, an effective way of achieving this is to reduce the number of unauthorised encampments and developments and increase the number of gypsy and traveller sites in appropriate locations with planning permission.

On the other hand, the fact that the appeal sites are on Green Belt land is a powerful countervailing factor: see paras 3.2 and 3.3 of PPG2. It is common ground that the residential use of all 3 appeal sites is “inappropriate development” within the meaning of para 3.4 of PPG2. Paras 49, 50 and 71 of the Circular make it clear that PPG2 applies with equal force to applications for planning permission from gypsies and travellers.

Thus, in discharging the duty to have due regard to the need to promote equality of opportunity in this case, the Inspector was required to take into account the need to promote equality of opportunity for the appellants to have housing which would enable them to have access to education, health care and other social needs. But she also had to take into account the powerful countervailing imperative of PPG2. Ultimately, how much weight she gave to the various factors was a matter for her planning judgment.

Mr Drabble (supported by Mr Allen) submits that a person does not perform the section 71(1) duty unless he demonstrates by the language in which he expresses his decision that he is conscious that he is discharging the duty. Applying that approach to the facts of the present case, Mr Drabble submits that the Inspector’s decision letter should have included something along these lines:

“I recognise that, in addition to the considerations flowing from ordinary gypsy policy, there is a situation in Bromley in which there is not equality of opportunity for Irish travellers. I am under a duty to have due regard to the need to promote such opportunity. I must, therefore, give proportionate weight to that need”.

I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form. I agree with what Ouseley J said in The Queen (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin), para 87:

“I do not accept the submission made by Mr Bird that s71 was concerned with outcomes; ultimately of course it is aimed at affecting the way in which bodies act. But it does so through the requirement that a process of consideration, a thought process, be undertaken at the time when decisions which could have an impact on racial grounds or on race relations, to put it broadly, are being taken. That process should cover the three aspects identified in the section. However, that process can be carried out without the section being referred to provided that the aspects to which it is addressed are considered, and due regard is paid to them...”

The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.

Nevertheless, although a reference to section 71(1) may not be sufficient to show that the duty has been performed, in my judgment it is good practice for an Inspector (and indeed any decision-maker who is subject to the duty) to make reference to the provision (and any relevant material, including the relevant parts of the Code of Practice and Circular) in all cases where section 71(1) is in play. In this way, the decision-maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.

I now turn to the Inspector’s decision to consider whether in substance she performed the section 71(1) duty. I emphasise that the only element of the section 71(1) duty which is said by Mr Drabble to have been infringed is the duty to have due regard to the need to promote equality of opportunity between the appellants (as Irish travellers) and different racial groups. My reference in what follows to “the section 71 duty” should be understood in that sense.

Largely for the reasons given by Mr Coppel, I am in no doubt that there was no breach of the section 71 duty in this case. The Inspector was alive to the plight of gypsies and travellers and the disadvantages under which they labour as compared with the general settled community. The first of the “other considerations” which she addressed in her decision was what she referred to as “gypsy status”. It is clear from para 32 that she considered this to be a factor which weighed in the balance in the appellants’ favour. The only reason that there could rationally have been for this view was that gypsies suffer from inequality of opportunity as compared with persons of different racial groups, i.e. the general community. The Inspector took full account of this and, by treating it as a factor which weighed in the appellants’ favour, she showed that she was having due regard to the need to promote equality of opportunity between them (as persons of gypsy status) and persons of different racial groups. There is no other explanation of why she identified gypsy status as a factor weighing in favour of the appellants. It is immaterial whether she was aware of the existence of the section 71(1) duty.

Quite apart from the explicit reference to gypsy status in the crucial para 32 of her decision letter, there are other indications that the Inspector took into account as a factor which counted in the appellants’ favour the inequality of opportunity suffered by them by reason of their gypsy status. First, she made various references to Circular 01/2006. That in itself is highly significant. I have referred to the relevant paragraphs of the Circular above. The underlying premise of the Circular was that, at the time when the Circular was issued, gypsies and travellers were disadvantaged as compared with persons of different racial groups.

Secondly, in para 13 of the decision, the Inspector referred to the Circular for its definition of gypsies and travellers. In paras 17-21, she discussed the need for additional gypsy sites in the Bromley area. This is a recognition of the inequality of opportunity of gypsies and travellers as compared with persons of different racial groups in the area who do not suffer from the disadvantage of the lack of suitable sites to house them. This is obvious from the discussion in paras 17-21 itself and is reinforced by the reference in paras 20 and 21 to the Circular.

Thirdly, in paras 26-29, the Inspector explained in detail why the 5 authorised sites in Bromley are not available to the appellants at the present time. Once again, this is relevant because it shows that she recognised the disadvantages facing the appellants as compared with persons of different racial groups: there are only 5 authorised sites in Bromley and none of these is available to the appellants. It is implicit in this part of the decision that the Inspector was saying that the appellants are at a disadvantage because persons of other racial groups in the area are not limited to the 5 authorised sites to meet their accommodation needs.

Mr Drabble submits that the discharge of the section 71(1) duty required at least that the Inspector grant the appellants temporary planning permission. But the Inspector explained in some detail at paras 36-40 why she decided otherwise. In my judgment, the way she dealt with the issue of temporary planning permission is beyond challenge. In particular, she took into account the advice contained in para 45 of the Circular to which I have already referred.

In the light of this paragraph of the Circular and the Inspector’s finding that there was no certainty as to when the planning circumstances in Bromley would change or how long it would take to resolve the problems at the Star Lane and Old Maidstone Road sites, it is hardly surprising that she decided not to grant temporary planning permissions. Her conclusion was reinforced by the points she made at paras 39 and 40 of her decision letter. These too were points that she was entitled to take into account.

Finally, I have considered whether there is anything in the Code of Practice which the Inspector should have, but failed to, take into account. It is true that she did not make any express reference to it. But in my judgment, the Code of Practice does not amplify the section 71(1) duty in any way which is material to these appeals. The guiding principles stated in para 3.2 are no doubt of value, but they are expressed at a high level of abstraction. For the reasons that I have given when dealing with the way in which the Inspector approached the race relations issue as a matter of substance, I am satisfied that she did not infringe the letter or the spirit of para 3.2 of the Code of Practice. Nor do I consider that para 3.16 assists the appellants. This paragraph is not prescriptive: “public authorities could ask themselves the following questions” (emphasis added). In any event, it seems to me that, although she did not articulate questions in para 3.16 terms, she adopted an approach which, in substance, addressed the issues raised by these questions.

Mr Drabble submits that the Inspector’s finding in the last sentence of para 24 (“To my mind, if they had to move from Walden’s Farm, their education would not be significantly disrupted”) included a reference to the Baker children; that it was a perverse finding in relation to those children; and that, even if that sentence did not include a reference to the Baker children, she did not have regard to the highly disruptive effect a move from Waldens Farm would have on the education of the Baker children and/or did not explain why it would not have such an effect. As part of his argument, Mr Drabble relies on the finding at para 14 of the decision letter that until they arrived at Waldens Farm, the Baker children were never in one school for more than a few weeks. He submits that this shows that, if the family were moved from Waldens Farm and required to camp on the roadside or in other unauthorised locations (as forecast at para 30), there would be a resumption of the previous pattern of interrupted schooling. This would be highly disruptive of the Baker children’s education.

I cannot accept Mr Drabble’s criticisms of this part of the Inspector’s decision. First, it seems to me that the most natural interpretation of the last sentence of para 24 is that it referred only to the 9 children in Appeals B and C mentioned in the immediately preceding sentence. Because of their age (none more than 5 years old), their position was different from that of the Baker children. The position of the Baker children was considered in the earlier part of the paragraph, where the Inspector says that their education “might be disrupted” if they had to leave Waldens Farm, although she noted that their journeys to school were currently undertaken by bus or car, and said that their mobility might be to their advantage. In other words, it was difficult to assess the degree of disruption that would be likely to be caused to the education of the Baker children. I see no basis for holding that it was perverse of the Inspector not to find that there would be a high degree of disruption to their education if they were to be required to move. It did not follow from the fact that the children had never been in one school for more than a few weeks before they arrived at Waldens Farm that the same pattern would be replicated after they had moved away from the appeal sites.

At para 30, the Inspector recognised that there would be interference inter alia with “the right to an education”. It was difficult for her to quantify. But she acknowledged that the most likely short-term option if the appeals were dismissed was that the appellants would be camping on the road side or in other unauthorised locations. She appreciated that the result would be that the appellants would undoubtedly suffer hardship and that there would be some interference with the right to education. But she had to balance this against the need to protect the environment. How much weight to attach to educational disruption was a matter for the exercise of her planning judgment. Her conclusion on this issue was not perverse, nor was it inadequately reasoned. I would dismiss this ground of appeal.

Mr Drabble submits that the Inspector focused on the question whether the appellants needed to be at Waldens Farm and erroneously imposed a requirement on them to establish a special need to live there as a pre-requisite to their demonstrating the existence of the “very special circumstances” demanded by para 3.2 of PPG2 to justify inappropriate development. He contends that the Inspector misunderstood what Carnwath LJ said in The First Secretary of State v Simmons [2005] EWCA Civ 1295, 2006 JPL 575, para 28-29. Where it is claimed that an absence of available sites for gypsies or travellers constitutes a very special circumstance within the meaning of para 3.2 of PPG2, Carnwath LJ disapproved an approach that confined the relevant area within which alternative sites might be found to that of the planning authority whose decision was being challenged. He said:

“That is clearly too narrow an approach, insofar as it appears to confine attention to the particular planning district. Indeed the Judge went on (para 33) to accept “that availability outside the Green Belt and outside the district in which the application is made” may also be relevant.

In any event, the availability of alternative sites in a particular area is only logically relevant, once it is established that there are special circumstances which require a site in that area, and that those circumstances are in themselves sufficiently compelling to overcome Green Belt policy. Mr Simmons failed at the first hurdle, since he failed to establish a special requirement to be located in the Sevenoaks district area. But even if he had been able to make such a case, based on a strong personal need, and that there were no viable alternative sites, it would not follow that as matter of policy the Secretary of State would be bound to regard it as a sufficient reason to justify the grant of permission.”

I cannot accept that the Inspector’s decision is in any way inconsistent with Carnwath LJ’s reasoning. She did not impose on the appellants the burden of showing that they needed to be at the appeal sites. They had to discharge the burden of showing that there were very special circumstances such as would justify their inappropriate development in the Green Belt. Had they been able to show particular ties to the appeal sites, they might have discharged this burden. It was in this context and for this reason that the Inspector asked the question whether the appellants needed to be at Waldens Farm.

The judge put the point well at para 50 of his judgment:

“The correct approach, which is the one, it seems to me, the inspector follows, is simply that it is for the applicant to establish very special circumstances that override Green Belt considerations. A need to be on or near a particular site may be one of such very special circumstance. If the applicant can show a special requirement to be in a particular area, his or her claim of need may be countered by the suggestion that there is somewhere else reasonably close by to which he or she could go. For that reason it would be, if not necessary, at least wise for such an applicant to seek to demonstrate not only a special need to be in the area but also that there is nowhere else in the area other than the site in respect of which he is applying available to him. If such an applicant succeeds in that it may well amount to a very special circumstance. That, as I read Lord Justice Carnwath, is simply putting what he says in rather less elegant English.”

I agree. It follows that I would dismiss this ground of appeal too.

For these reasons, I would dismiss these appeals. In concluding, I wish to pay tribute to the Inspector. Her decision letter is a model of clarity, economy of language and careful treatment of the issues. She is not to be criticised for failing to deal explicitly with the race relations issue, nor has she been so criticised.

I agree.

I agree that this appeal should be dismissed for the reasons given by Dyson LJ.