Thanks to Tessa Buchanan of Garden Court Chambers for her comments on this paper.
In August 2015, the new Planning policy for traveller sites (PPTS) was published by the Secretary of State for Communities and Local Government (SSCLG – as he then was[1]). This introduced a number of amendments to the Government guidance on planning issues relating to Gypsy and Traveller sites. Many of these changes were regarded as detrimental to the interests of such applicants, but perhaps the most controversial has been the amendment made to the definition of Gypsy/Traveller contained in Annex 1 of the PPTS. This definition governs who will, and who will not, be regarded as a Gypsy or Traveller for planning purposes and therefore who will, and who will not, be entitled to the more permissive regime of the PPTS. It is a question of immense importance both to local planning authorities and to individual applicants.
[1] Now the Minister for Housing, Communities and Local Government (MHCLG).
The definition
The old definition read:
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 show people or circus people travelling together as such (our emphasis).
It now reads:
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, but excluding members of an organised group of travelling showpeople or circus people travelling together as such.
As is evident, the effect of this change was to exclude those Gypsies and Travellers who have had to stop travelling permanently due to age, ill health, or educational needs. Many interested parties, including Community Law Partnership (CLP) on behalf of their clients, have been arguing ever since that the definition is discriminatory, prejudicial, unreasonable and disproportionate especially as regards those Gypsies and Travellers who are old, disabled, in serious ill health or caring for others.
The consultation process
Unsurprisingly, such a significant change to policy required a consultation. The consultation on the proposed new PPTS was undertaken by the Government between 14 September 2014 and 23 November 2014 (see at: https://www.gov.uk/government/consultations/planning-and-travellers-proposed-changes-to-planning-policy-and-guidance ).
The Government provided their response to that consultation in August 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/460289/Final_planning_and_travellers_govt_response.pdf
The consultation received hundreds of responses, 48% of which were from local authorities and 28% from non-Gypsy/Traveller individuals. Chris Johnson of CLP has undertaken a detailed analysis of all responses to the Government consultation. Attached as an appendix to this paper are the details of our analysis. What follows is a discussion of the main themes – and problems – arising from it.
Discussion
What was surprising to us was the level of opposition to the new definition.
At the commencement of this process we had thought that there would be far more responses in favour of the new PPTS and in favour of the new definition than there would be responses against. However, the figures were not in fact as far apart as we thought would be the case. There was a majority in favour of the new definition, but only just: 52%. There was a very significant minority against it: 33%.[1] The position in respect of the new PPTS as a whole was even more equivocal, with 46% of respondents being in favour and 22% against. Interestingly it was not uncommon for respondents, especially local authorities, to be opposed to the new definition whilst being in favour of most of the rest of the proposed new PPTS.
Moreover, there was a great deal of concern about how the new definition would work in practice and as to the amount of extra work this would involve for local authorities. For example, many local authorities were concerned that they would be involved in substantial amounts of work in trying to ascertain whether planning applicants were or were not within the new definition and felt that it would be extremely difficult to come up with a conclusion.
We also noticed a number of problems with the consultation process:
(a) The central plank of the Government’s reasoning behind the introduction of the new definition was that it was intended to promote ‘fairness’ in the planning system. However there was no actual question directed to this issue. Respondents were not asked, for example, “Do you think that the new definition will promote fairness in the planning system?”. For this reason it is not surprising that only 6% of respondents directly addressed the question of fairness in the planning system (with 2% saying that the new definition will promote fairness and 4% saying that it will not). The consultation exercise does not therefore support the existence of a consensus that the new definition will promote fairness in the planning system.
(b) Though, of course, the Equalities Statement (see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/354062/Equalities_Statement__publication_format_140905.pdf) accepted that there was, on the face of it, discrimination against Romani Gypsies and Irish Travellers and against the elderly, the disabled and (often female) carers, there was no direct question about the possibility of discrimination. Therefore, once again, it is not surprising that only 8% of respondents addressed the question of discrimination against Romani Gypsies and/or Irish Travellers and only 5% of respondents addressed the question of discrimination against the elderly, the disabled and those that care for them. However, once again, given the lack of any direct question, we thought that these were not insignificant percentages in terms of people who have actually directed themselves to the question and answered it. In fact we would call this a relatively significant percentage of respondents.
(c) Many respondents took “intentional unauthorised occupation” to include unauthorised encampments and not (as it clearly was intended to be referring to) unauthorised developments. ‘Unauthorised encampments’ involve Gypsies and Travellers stopping without permission on land they do not own. ‘Unauthorised developments’ involve Gypsies and Travellers living on their own land without planning permission.
(d) There was a great deal of confusion about what the definition actually referred to. Obviously the change is to do with whether a Gypsy or Traveller has stopped travelling “permanently” but a surprising number of respondents seemed to be believe it was referring to permanent sites (as opposed to transit sites).
Given what is stated above, it can be seen that there was a surprising amount of misunderstanding about the Government’s reasoning and intentions and it is quite possible that this influenced the answers to questions.
Conclusion
Obviously it is difficult to assess to what degree these misunderstandings may have influenced the answers to questions but it is quite likely that there has been at last some influence in the way respondents answered questions as a result of these misunderstandings.
More significantly, the Government failed to gather any real evidence of whether respondents felt that the new definition would ‘promote fairness in the planning system’ or, alternatively, whether it would result in discrimination against certain groups.
Appendix – full analysis of the consultation responses
- Total number of respondents 384[1].
Please note that percentages of total number of respondents are shown below for each relevant category. In terms of the questions about being in favour or not of PPTS or partly in favour and the questions about being in favour or not of the definition or undecided, these do not add up to 100% since some respondents did not actually come to a relevant conclusion on these matters.
- Is the respondent:
(a) A local authority 183 (48%);
(b) Another public authority 3 (1%);
(c) A Gypsy and Traveller Support Group 9 (2%);
(d) A law firm 1;
(e) A Barrister’s Chambers 1;
(f) Another type of organisation 42 (11%);
(g) An individual Solicitor 1;
(h) An individual Barrister 0;
(i) An individual Gypsy/Traveller or Travelling Showperson 12 (3%);
(j) Another individual 106 (28%);
(k) A Police Force 2 (1%);
(l) A Residents’ Association 7 (2%);
(m) A Planning Consultant 5 (1%);
(n) An MP 2 (1%);
(o) EHRC 1.
- How many are in favour of the new PPTS?
175 (46%).
- How many are not in favour of the new PPTS?
84 (22%).
- How many are partly in favour of the new PPTS?
91 (24%);
- How many are in favour of the new definition?
201 (52%).
- How many are opposed to the new definition?
128 (33%).
- How many are undecided?
22 (6%).
- How many respondents feel that the current planning system is unfair in that it favours Gypsies and Travellers?
40 (10%).
- How many respondents feel that the current planning system is unfair because it does not assist Gypsies and Travellers?
18 (5%).
- How many respondents agree that the new definition is required to promote the need for fairness in the planning system?
9 (2%).
- How many respondents do not consider that the new definition will promote fairness in the planning system?
16 (4%).
- How many respondents consider that the new definition would discriminate against Romani Gypsies and/or Irish Travellers?
30 (8%).
- How many respondents consider that the new definition would discriminate against the elderly and/or the disabled and/or those that care for them?
19 (5%).
[1] The Government figures, contained in their own response to the consultation, included 398 postcards from individual Gypsies and Travellers. We were not provided with copies of those so have not included them in our analysis but clearly they would have a significant impact on the figures.