Lisa Smith -v- The Secretary of State for Levelling Up, Housing and Communities and Others [2021] EWHC 1650 (Admin) 17 June 2021

The Government’s planning policy for Gypsy and Traveller caravan sites is contained in Planning policy for traveller sites (PPTS). Applicants who are covered by this policy benefit from a number of advantages, including a somewhat more relaxed approach to rural development. In the original version of PPTS, published in 2012, the policy was stated to apply to:

Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling showpeople or circus people travelling together as such.

In August 2015, the Department for Communities and Local Government published a revised version of PPTS which modified the definition to remove the words “or permanently”, thus excluding from the policy those who had permanently ceased to travel on the grounds of their own, or their family’s or dependants’, educational or health needs or old age.

Lisa Smith is a Romany Gypsy who lives with her extended family in caravans on a private site. She challenged the lawfulness of the 2015 policy definition following the decision of a Planning Inspector to refuse her planning appeal. The Planning Inspector found that she did not come within the revised definition of Gypsies and Travellers and therefore could not rely upon the more permissive policies in PPTS. Ms Smith applied for a statutory review of this decision under Town and Country Planning Act 1990 s 288. Four Gypsy and Traveller organisations together with Liberty and the Equality and Human Rights Commission were granted permission to intervene. The four organisations were: London Gypsies and Travellers; Friends, Families and Travellers; Southwark Travellers Action Group; and the National Federation of Gypsy Liaison Groups.

The Government did not dispute the fact that the amended definition was prima facie discriminatory. The Judge, Mr Justice Pepperall, referred to the equality impact assessment carried out by the Government prior to changing the policy:

49. In June 2015, the Secretary of State undertook an impact assessment of the new planning policy in accordance with the public sector equality duty pursuant to s149 of the Equality Act 2010. Such analysis concluded:

‘We recognise that this proposal will have an impact on the identified racial group i.e. Gypsies and Travellers. We note, for example, that Romany Gypsies and Irish Travellers are a protected race under the Equality Act 2010….Additionally, within this group there is likely to be a specific impact on the elderly, disabled and possibly women (particularly those from single parent families). We recognise that age, disability and gender are also protected characteristics under the Act.
The impacts are likely to be on article 8 rights to private and family life, home and correspondence. For example, this could mean that those persons without family connections will no longer be able to live with other members of their Gypsy and Traveller community’.

The only issue was therefore whether this discrimination was justified. Pepperall J accepted that Gypsies and Travellers faced serious difficulties in obtaining planning permission (para 47):

There is, however, clear evidence before me that there is an endemic problem, and I am entitled to express disquiet as to the poor outcomes achieved by so many Gypsies and the disproportionate difficulty faced by many Gypsies and Travellers in obtaining planning permission.

Pepperall J also noted the evidence of the Interveners as to the effect of the amended definition:

52. In 2019, the EHRC published its research report, Gypsy and Traveller Sites: The Revised Planning Definition’s Impact on Assessing Accommodation Needs. The report’s key finding was that the pre-2015 assessment of a sample of 20 local planning authorities that a further 1584 pitches were required fell to just 345 plus a further 450 pitches for households whose travelling status had not been ascertained. Dr Siobhan Spencer MBE, a trustee and co- founder of the National Federation of Gypsy Liaison Groups, observes that the report showed that PPTS 2015 had led to a sharp drop of almost 75% in the provision of pitches.

53. Ms Kirkby [of FFT] explains that nearly half of those assessed as needing a pitch in the south east fall outside the PPTS 2015 definition of Gypsies and Travellers. Since the needs of such people will not be counted by Local Authorities assessing the required number of pitches, there will be inadequate provision for Gypsies and Travellers both now and for future generations.

Nevertheless, the Judge found that the amended definition was justified. He placed reliance on the Court of Appeal judgment in Wrexham County Borough Council v National Assembly of Wales [2003] EWCA Civ 835, which considered the lawfulness of a previous definition of Gypsies and Travellers for planning purposes:

78. The Wrexham Case authoritatively dealt with the position under article 8. While the case was not argued on the basis of article 14, the Court of Appeal’s clear conclusions are instructive on three issues:

78.1 First, that the ambit of the then applicable planning policy for Gypsies and Travellers was functional in that it focused on the applicant’s way of life and consequent land-use needs, rather than upon his or her cultural needs.

78.2 Secondly, the rationale for such policy was that a nomadic lifestyle brings with it special needs in that it renders nomads more vulnerable to homelessness if subjected to the normal rigours of planning control.

78.3 Thirdly, that once a Gypsy or Traveller gives up his or her nomadic lifestyle, there is no justification for continuing to apply a more relaxed planning regime provided the planning system continues to respect the applicant’s article 8 rights.

79. I am satisfied that PPTS 2015 remains at its core a functional test of nomadism and that its focus is upon the specific land-use needs of those leading a nomadic lifestyle.

The Judge continued:
80. In my judgment, the Secretary of State was plainly justified in drawing a distinction between the specific land-use needs of those seeking to lead a nomadic lifestyle and those seeking a more settled existence. The former throws up particular challenges both for applicants and planning authorities, and the Secretary of State was entitled to devise a specific policy focusing on that issue which did not also seek to address the cultural needs of those Gypsies and Travellers now seeking a permanent home.

The Judge further stated:
81. It was a matter for the executive and not the judiciary to determine whether:

81.1 The PPTS should make provision for the land-use needs of all Gypsies and Travellers irrespective of whether they remain nomadic or have ceased travelling.

81.2 Alternatively, the policy should make discrete provision only for the land-use needs of Gypsies and Travellers who remain of a ‘nomadic habit of life’ and make provision for the needs of permanently settled Gypsies and Travellers through the mainstream planning system.

82. There is nothing inherently objectionable to the executive choosing to take the latter approach as it did between 1994 and 2006 and again from 2015, provided that the system is capable of taking into account the article 8 rights of permanently settled Gypsies and Travellers and their particular personal circumstances.

Pepperall J concluded:
87.1 It was a legitimate aim to distinguish between the land-use needs of nomadic people and of the settled community.

87.2 Provided the planning system as a whole takes into account the particular needs of Gypsies and Travellers who have retired from travelling, whether through age or disability, it was a proportionate means of achieving a legitimate aim to limit PPTS 2015 to the particular land-use needs of nomadic Gypsies and Travellers.

Ms Smith has been granted permission to appeal to the Court of Appeal and the final hearing of that appeal is listed for 29 and 30 June 2022. Three of the Gypsy and Traveller organisations that intervened in the court below (together with the Derbyshire Gypsy Liaison Group replacing the National Federation) have been given permission to put in written submissions.