McCarthy & Ors v Basildon District Council

This is an application by Basildon District Council to seek that this court should order that the Equality and Human Rights Commission should not be permitted to intervene; or, if it is, should only be permitted to intervene in writing; or, failing that, that if it is permitted to intervene orally, it should be made a party and at risk of any costs incurred as a result of any unhelpful intervention. It should be mentioned that the appeal is an appeal from a decision of Collins J in which the Commission was permitted to intervene in accordance with its powers and obligations to promote the equality in those fields over which it has responsibility. Collins J, however, reached a conclusion in which he found in favour of the applicants and against Basildon District Council on grounds which did not include grounds particularly within the purview of the obligations and responsibilities of the Commission. It is in those circumstances that the Commission fear that there should remain in existence a decision of the High Court which fails to do adequate justice both to the Race Relations Act as amended and to the Disabilities Discrimination Act of 1995.

It is by now clear that both of those Acts require not only due regard to be had to the responsibilities of a public body both to eliminate such discrimination in those fields and to promote equality. It is in those circumstances that Mr Epstein submits that there is adequate authority as to the duties of a local authority in a position of Basildon and in particular in relation to its obligations to the gypsy and traveller community as identified by the Court of Appeal in R (Baker & Ors) v Secretary of State for Communities and Local Government & Bromley LBC [2008] EWCA Civ 141. The respondents make only very short mention to those issues in one or two places, and then very briefly in the respondents’ lengthy skeleton; and in those circumstances, Mr Epstein says, that there is nothing to be gained by permitting intervention at this stage. Moreover, the intervention is in effect firstly merely to allow another body which is not a party to advance further grounds for upholding the appeal not advanced by the parties themselves, and is in effect prospective since, if the appeal is dismissed, the Council will itself have to make a fresh decision.

In my view there is an advantage to be gained by allowing the Commission to intervene at this stage so as to give its submissions by way of guidance to the court and to the local authority as to the appropriate actions that an authority in this position, when considering whether to enforce, ought to adopt. Of course Baker to some extent deals with that because it is concerned with refusals of planning permission for the retention of caravans by gypsies set up in the green belt, but, as Mr Allen rightly points out, it was directed at an inspector whose powers to ameliorate the impact of any consequences of the planning decisions would be far more limited than those of a local authority.

In those circumstances, and particularly since I am told that the court had no opportunity to hear oral submissions in the instant case in the light of Baker, I believe that an intervention would be profitable. However, I see no reason or need for an oral intervention, and in my view the intervention should be limited to a written document identifying those issues which the Commission feel the court ought to have in mind and directing their attention to the approach which the Commission assert a district council in the position of Basildon should adopt. So I shall permit a written intervention but not an oral intervention.