Are courts beginning to recognize the duty of equality law to respect and protect the rights of minorities to be different? A recent important High Court decision in Moore & Coates v Secretary of State for Communities and Local Government (Equality & Human Rights Commission intervening)  EWHC 44 (Admin), suggests that they may.
Research repeatedly shows that gypsies and travellers’ needs for culturally appropriate obligation are overlooked during the planning process, so in many areas there is a failure to allocate adequate land for travellers’ needs for regular stopping sites. The failure to include the needs of gypsies and travellers in local plans makes it easier for planning authorities to refuse planning permission, often under local pressure to do so. But planning inspectors, deciding whether to make exceptions to policies against permitting housing in the Green Belt, were sometimes prepared to take steps to mitigate this, by taking into account the absence of a supply of suitable land allocation for gypsy sites.
Eric Pickles, Secretary of State for Communities and Local Government, resolved to put an end to what he perceived as an over-emphasis on exceptionalism in the cases of gypsies and travellers. Ministerial Statements of July 2013 and January 2014 announced that he would consider for recovery all traveller site appeals in the Green Belt for the Minister to determine them himself. Those statements set out that the Secretary of State “wishes to give particular scrutiny to traveller site appeals in the green belt, so that he can consider the extent to which Planning Policy for traveller sites is meeting this government’s clear policy intentions”. The evidence was that at first 100% of gypsy and traveller applications were called in and then 75%.
This use of the policy creates particular, and disparate, disadvantage for gypsies and travellers. It results in serious delay in determination of applications for planning permission (1-2 years), and the policy approach which the Secretary of State has taken in determining these appeals means that fewer are succeeding.
The policy was the subject of a judicial review in the case of Moore & Coates. The Claimants were gypsies whose appeals against refusal of planning permission for small sites to pitch caravans in the Green Belt had been called in and refused. Mr Justice Gilbart decided that the application of the Ministerial Policy to recover all travel pitch appeals, or an arbitrary percentage of them, constituted unlawful indirect race discrimination in the performance of a public function, contrary to sections 19 Equality Act 2010, and also involved a breach of the Public Sector Equality Duty. Although it was a matter for the Minister if he wished to recalibrate the policy approach to special circumstances and to encourage more effective provision for traveller sites in local plans, the means he had chosen was disproportionate, given the extent of detriment it imposed and other means of achieving those objectives which had been drawn to his attention by his own officials.
The judge quashed the decisions to recover the Claimants’ appeals, though he did not quash of the Ministerial Policy itself. This judgment is an important landmark, countering the suggestion that singling out applications for planning permission by gypsies and travellers for scrutiny is not discriminatory because they are asking for something different from the settled community rather than symmetrical ‘equal treatment’. Although the judgment does not expressly rely on the Council of Europe Framework Convention on Minority Rights, it chimes with its overarching policy purpose, that members of minorities should not have to choose between respect for their differences and equal enjoyment of the social advantages enjoyed by the majority, and that proper reasons are needed before a policy particularly affecting the lifestyle of a protected minority group is singled out for special attention.
Despite the determination that the application of Ministerial Policy was unlawful, there is no evidence that the Minister has changed his approach to the recovery of traveller appeals. Unless and until he does so, we can expect further challenges to refusals of planning permission, building on the logic of the Moore & Coates case.