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 Act 1990 (“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:

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):

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:

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

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:

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

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

The RRA provides so far as material:

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:

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:

So far as material, PPG2 provides:

There are three grounds of appeal:

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 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:

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:

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:

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.