Secretary of State “discriminatory and unlawful” in dealing with Gypsy and Traveller planning appeals

Monday 1 February 2016

Marc Willers QC and Tessa Buchanan represented a Romani Gypsy and an Irish Traveller in the Planning Court last month in the latest case concerning the practice of the Secretary of State for Communities and Local Government of recovering all Gypsy and Traveller planning appeals relating to sites in the Green Belt for his own determination – a practice which had been found to be discriminatory by Mr Justice Gilbart in the case of Moore and Coates v SSCLG and EHRC [2015] EWHC 44 (Admin).

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The claimants’ cases were heard together because they raised the same issue. In each case an independent planning inspector had recommended that they be granted planning permission to live in their caravans on their land but the Secretary of State had rejected his inspector’s view and dismissed their planning appeal.

The claimants argued that the Secretary of State should never have been in a position to determine their appeals and that his unlawful recovery decision had a ‘domino effect’ which rendered his appeal decisions nullities. The Equality and Human Rights Commission agreed. The Secretary of State acknowledged that his recovery of the claimants’ appeals was discriminatory and unlawful. Somewhat unattractively one might think, he argued that fact did not render his subsequent decisions to dismiss their appeals unlawful, and that having reached his decisions he was functus officio, i.e. that he had no power to take any further action. In fact it was those arguments which found favour with Mr Justice Cranston and he dismissed the claims. An appeal is pending.

More information can be found in the judgment: Mulvenna and Smith v SSCLG and EHRC [2015] EWHC 3494 (Admin)

Marc Willers QC and Tessa Buchanan are both members of Garden Court Chambers’ Planning Team and the Romani Gypsy and Traveller Rights Team.

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