As regular readers will know, the definition of Gypsies and Travellers contained in Planning policy for traveller sites (PPTS) excluded those who have permanently stopped travelling for work due to a disability, long term health condition or age. Lisa Smith had, since 2011, rented pitches on a private site owned by a Mr Willshore with temporary planning permission. Two of Ms Smith’s adult sons are severely disabled and, as a result, the family had had to permanently stop their nomadic way of life. Mr Willshore later applied for permanent planning permission and this was refused. On appeal to a Planning Inspector, the Planning Inspector decided that the family were not within the new definition in PPTS 2015. Ms Smith appealed to the High Court but her appeal was refused. She appealed further to the Court of Appeal.
At both High Court and Court of Appeal level we were instructed to intervene by four leading Gypsy and Traveller organisations namely: London Gypsies and Travellers; Friends, Families and Travellers; Derbyshire Gypsy Liaison Group (who took the place of the National Federation of Gypsy Liaison Groups who intervened at High Court level); and Southwark Travellers’ Action Group. The Court of Appeal allowed Ms Smith’s appeal on all four grounds of appeal and quashed the decision of the Planning Inspector. The matter will now return to a new Planning Inspector for a fresh decision.
As we say, the appeal was allowed on all four grounds of appeal namely:
(i) The test that had been applied by Mr Justice Pepperall in the High Court was the wrong test and resulted in Ms Smith facing a ‘high hurdle’ in making out her case.
(ii) Mr Justice Pepperall was wrong to hold that Ms Smith could not rely on race discrimination.
(iii) The Judge had erred in his findings in respect of ‘legitimate aim’.
(iv) The Judge had also erred in respect of whether the definition was proportionate and whether the discrimination could be justified. The Court of Appeal decided that the discrimination contained within the new definition could not be justified.
For a full discussion of all the issues please see the blog on the Garden Court Chambers website here: https://www.gardencourtchambers.co.uk/news/governments-planning-definition-of-gypsies-and-travellers-unlawfully-discriminatory
Albeit that the Secretary of State may attempt to ask the Supreme Court directly (having been refused by the Court of Appeal) for permission to appeal, this decision, whilst not by itself taking away the definition contained in PPTS 2015, has enormous ramifications for many issues:
1. If a Local Authority or a Planning Inspector were to decide, when dealing with a planning application from a Gypsy or Traveller, that that Gypsy or Traveller fell outside the definition in PPTS 2015, they would face an immediate (and probably successful) challenge.
2. It can be presumed that all Gypsy and Traveller Accommodation Assessments carried out by Local Authorities are based on the definition in PPTS 2015 and, therefore, they should surely be now re-visited.
3. Many planning permissions obtained by Gypsies and Travellers will have an occupancy condition attached to them that the occupants of the site should be within the PPTS 2015 definition. It would surely be wrong for a Local Authority to try and take enforcement action if a Gypsy or Traveller occupant has now fallen outside the definition given this Judgment.
We know that our clients in this matter will be looking to write to Local Authorities about these issues and will also be looking to write to the Secretary of State about providing guidance to Local Authorities.
The Travellers’ Advice Team would be very interested to hear from any individual Gypsy and Travellers who are directly affected by the issues arising from this Judgment. If you are directly affected or if you want to discuss the matter further, please telephone us on our Advice Line which is 0121 685 8677 Monday to Friday 9.00 am to 1.00 pm.
CLP were the solicitors for the Interveners and their counsel were David Wolfe KC, Tim Jones and Owen Greenhall.
Keith Coughtrie of Deighton Pierce Glynn was Ms Smith’s solicitor and her counsel were Marc Willers KC and Tessa Buchanan.
You will find a link to the Judgment here: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1391.html