Lisa Smith -v- The Secretary of State for Housing, Communities and Local Government and Others  EWHC 1650 (Admin) 17 June 2021
Between 2006 and 2015, planning policies included within the definition of ‘Gypsies and Travellers’ those who had either temporarily or permanently ceased to travel by reason of health, education or old age. By a revised planning policy issued in August 2015, the Department for Communities and Local Government modified the definition to remove the reference to those who had permanently ceased to travel for such reasons. Lisa Smith, a Romany Gypsy who lives with her extended family in caravans on a private site in Leicestershire, challenged the lawfulness of the 2015 policy following a Planning Inspector refusing her planning appeal because she did not come within the definition. As a result the Planning Inspector concluded that the application by Ms Smith did not benefit from the more permissive planning regime contained in Planning policy for traveller sites.
Mr Justice Pepperall dismissed her appeal. Originally Ms Smith appealed on another ground, aside from the challenge to the alleged unlawfulness of the definition, but she is no longer pursuing that other ground.
CLP were instructed by four Gypsy and Traveller organisations to intervene in support of Ms Smith and her challenge to the lawfulness of the definition. Those organisations are: The National Federation of Gypsy Liaison Groups; Friends, Families and Travellers; London Gypsies and Travellers; and the Southwark Travellers’ Action Group.
Despite dismissing the appeal, Pepperall J did accept that there was a problem as a result of the changed definition stating:
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. I ask Mr Mould in the course of his submissions on behalf of the Secretary of State why, if the planning system is capable of operating lawfully, it is going wrong. He thoughtfully replied that there are a number of problems:
47.1 First, there is an unwillingness on the part of planning authorities to prioritise the needs of Gypsies and Travellers.
47.2 Secondly, the voice of Gypsies and Travellers is not heard as loudly as that of the major housebuilders.
47.3 Thirdly, there is a shortage of land that is obviously suitable.
47.4 Fourthly, he cautioned that the pattern of evidence presented to the court was designed to emphasise the failures of the current system.
48. The fourth point was well made. It was of course open to the Secretary of State to present evidence to correct the picture, but in fairness he could properly conclude that such course would be inappropriate since the court is dealing with a discrete challenge to the lawfulness of PPTS 2015 and not undertaking a wide-ranging audit as to the effectiveness of government policy.
Pepperall J 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’.
Pepperall J referred to a very important report from the Equality and Human Rights Commission (EHRC):
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.
Pepperall J decided that points raised about race discrimination were not open to Ms Smith since they had not been pleaded but it is not accepted by Ms Smith and her lawyers that those points were not pleaded and this will be part of the appeal against this decision.
Since the Secretary of State had conceded that there was, on the face of it, discrimination the fundamental issue was whether there was objective and reasonable justification for the Secretary of State’s decision to limit the ambit of the definition. Pepperall J placed reliance on a previous Court of Appeal judgment relating to a previous version of the definition of Gypsy and Traveller, namely the case of Wrexham County Borough Council -v- National Assembly of Wales  EWCA Civ 835. Pepperall J stated:
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. For the reasons explained above, I reach the following conclusions:
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 is now seeking permission to appeal to the Court of Appeal. The Interveners intend to continue with their intervention since they fully support this appeal and find this judgment extremely disappointing to say the least. The Interveners had presented a great deal of evidence showing that ‘permanently’ settled Gypsies and Travellers are not having their needs catered for under the current planning system. As was recognised by Pepperall J, the Secretary of State failed to provide any evidence to the contrary.
We hope that Ms Smith will be given permission to appeal by the Court of Appeal on this crucial issue and that the matter will now proceed to a final Hearing in the Court of Appeal.
27 July 2021
Postscript: The National Federation of Gypsy Liaison Groups (NFGLG) have now ceased trading due to changes in funding arrangements and their national policy role has been taken over by Derbyshire Gypsy Liaison Group (DGLG). DGLG will be seeking to take the place of NFGLG in the ongoing intervention in the Court of Appeal. CLP continue as the Solicitors for the Interveners and the Counsel for the Interveners are David Wolfe QC of Matrix Chambers and Owen Greenhall of Garden Court Chambers. The Equality and Human Rights Commission and Liberty also intervened at High Court level and we would hope that they will continue with their intervention in the Court of Appeal.