Factual and Procedural Background
By a judgment dated 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. The Inspector had dismissed three appeals under section 78 of the 1990 Act against the refusal by the London Borough of Bromley ("Bromley") to grant planning permission for the retention of touring caravans and mobile homes on three plots within Waldens Farm, a 30 hectare estate subdivided into approximately 800 small leisure plots, located within the Green Belt near Orpington, Kent.
The appellants, all having "gypsy status" (mostly Irish travellers), occupied plots previously granted 2-year planning permissions which expired in June 2005. After Bromley refused planning permission on 24 October 2005, the appellants appealed to the Secretary of State. The Inspector held an inquiry and site visit before dismissing the appeals, concluding that the harm to the Green Belt outweighed other considerations. The appellants then challenged the Inspector's decision on nine grounds before the judge, who rejected all. The appellants now appeal on two of those grounds and an additional third ground relating to an alleged breach of the Race Relations Act 1976 ("RRA"). The Equality and Human Rights Commission was permitted to intervene due to the importance of the RRA issues.
Legal Issues Presented
- Whether the Inspector breached section 71(1)(b) of the Race Relations Act 1976 by failing to have due regard to the need to promote equality of opportunity between persons of different racial groups ("the race relations issue").
- Whether the Inspector failed to properly consider the disruptive effect on the education of the Baker children if planning permission was refused ("the Baker education issue").
- Whether the Inspector erred by conflating the need for the appellants to live in the area with a requirement to show a special need to live on the particular appeal sites ("the location issue").
Arguments of the Parties
Appellants' Arguments
- The Inspector failed to discharge the statutory duty under section 71(1)(b) of the RRA by not explicitly considering the need to promote equality of opportunity between racial groups, particularly in relation to Irish travellers.
- The Inspector did not adequately consider the highly disruptive effect that refusal of planning permission would have on the education of the Baker children, especially given their prior unstable schooling.
- The Inspector wrongly required the appellants to demonstrate a special need to reside specifically on the appeal sites, rather than the broader area, thus misapplying the test for very special circumstances under PPG2.
Respondent's Arguments
- The Inspector discharged the section 71(1)(b) duty in substance by taking "gypsy status" into account as a factor weighing in favour of the appellants, despite no explicit reference to the statutory duty.
- The Inspector reasonably assessed the educational disruption to the Baker children and the other appellants’ children, with no perverse findings or failure to explain her conclusions.
- The Inspector correctly applied the legal test by requiring the appellants to establish very special circumstances to justify inappropriate development, including consideration of their ties to the appeal sites, consistent with established case law.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| The Queen (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin) |
Clarification that the section 71 duty under the Race Relations Act requires a decision-maker to have a thought process addressing race equality issues, but explicit reference to the statute is not mandatory. |
The court endorsed this approach, holding that substance matters over form and that the Inspector's consideration of gypsy status satisfied the duty in substance. |
| The First Secretary of State v Simmons [2005] EWCA Civ 1295 |
Clarified the scope of the relevant area for assessing availability of alternative sites for gypsies/travellers and the burden on appellants to show very special circumstances to justify inappropriate Green Belt development. |
The court held that the Inspector’s approach was consistent with this precedent, as she did not impose an improper burden but correctly evaluated the appellants’ needs in context. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework under the Town and Country Planning Act 1990 and the Race Relations Act 1976, including the duty under section 71(1)(b) to have due regard to promoting equality of opportunity between racial groups. It noted that the appellants, as Irish travellers, are within a racial group protected by the RRA.
The court emphasized that the section 71(1)(b) duty is a procedural obligation to have due regard, not a substantive requirement to achieve a particular outcome. Due regard requires an appropriate level of consideration of the need to promote equality, balancing it against other relevant factors.
Although the Inspector did not explicitly mention the statutory duty, the court found that she discharged it in substance by explicitly considering "gypsy status" as a factor weighing in the appellants’ favour, referencing relevant government guidance and acknowledging the disadvantages faced by gypsies and travellers. The Inspector also considered the need for additional gypsy sites and the unavailability of suitable alternative accommodation, demonstrating awareness of the equality issues.
The court rejected the appellants' argument that the Inspector failed properly to consider the educational disruption to the Baker children. It interpreted the Inspector’s findings as distinguishing between the older Baker children and the younger children of the other appellants, and found no perversity or inadequacy in her reasoning. The Inspector acknowledged potential disruption but exercised planning judgment in weighing this against environmental protection.
Regarding the location issue, the court held that the Inspector did not impose an improper burden on the appellants to show a special need to reside on the appeal sites per se, but rather correctly required them to demonstrate very special circumstances to justify inappropriate development in the Green Belt. The court found the Inspector’s approach consistent with authoritative case law, including the Simmons decision.
Finally, the court considered the Inspector’s refusal to grant temporary planning permission. It found her reasoning, based on uncertainty about future planning circumstances and the potential for undermining planning control, to be rational and lawful.
Holding and Implications
DISMISSED
The court dismissed the appeals, upholding the Inspector’s decision to refuse planning permission for the retention of the caravans and mobile homes on the appeal sites within the Green Belt. The decision confirms that an Inspector’s duty under section 71(1)(b) of the Race Relations Act 1976 is discharged by giving substantive consideration to relevant equality issues, even if not expressly referenced. The ruling affirms the balancing exercise required between equality considerations and Green Belt protection, without imposing a rigid requirement to explicitly cite statutory provisions. No new precedent was set beyond clarifying the application of the statutory duty in a planning context. The direct effect is that the appellants remain without planning permission for the sites at Waldens Farm.