Planning applications by gypsies and travellers
Local planning authorities are in many cases taking a flawed approach when it comes to planning applications submitted by gypsies and travellers, argues Raymond Cooper.
There are those who continue to believe that members of the travelling community suffer from discrimination in favour of the settled community. The author intends to show that in one very important respect, the opposite is true: the treatment by local planning authorities (LPAs) of applications for planning permission by gypsies and travellers for the development of their own land.
The definition of “Gypsies and travellers”
In the interests of brevity, from here on the word “travellers” will be used to include gypsies. This article is not primarily concerned with ethnicity (though that will come back into consideration in the context of The Equality Act 2010). Travellers in this sense includes Romani gypsies and Irish travellers (both of which have been recognised by the courts as distinct ethnic groups) as well as “new age” or “new” travellers. Since this article is concerned solely with planning issues, the only definition which is relevant to its purposes is to be found in the guidance note of the Department for Communities and Local Government August 2015 “Planning policy for traveller sites” ( “the Guidance”). The definition is in the Glossary in Annex 1 and is as follows:
“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.”
Relevant principles of planning law
Planning control in the UK is plan-led. The Guidance itself (in paragraph 2) correctly states that planning law requires that applications for planning permission must be determined in accordance with the development plan (Planning and Compulsory Purchase Act 2004 s.38 (6)), unless material considerations indicate otherwise. Note that what is to be taken into account, and is a material consideration in planning decisions, is the policy set out in the Guidance as a whole – it is not the fact that the application is made by a person or persons who is or are within the definition in the Guidance. From here on, for brevity, the expression “gypsy status” will be used to mean persons who are within the definition. The Guidance does not say that the gypsy status of applicants for planning permission is the only consideration; it is a material consideration only and needs to be balanced with other material considerations, including not only the provisions of the development plan, but the contents of the Guidance itself.
The Guidance
What has just been said is demonstrated by reference to some other provisions of the Guidance, in particular the following (using the paragraph numbers of the Guidance itself):
“3) The Government’s overarching aim is to ensure fair and equal treatment for travellers, in a way that facilitates the traditional and nomadic way of life of travellers while respecting the interests of the settled community.”
“4(i) - to reduce tensions between settled and traveller communities in plan-making and planning decisions.”
“4(k) - for local planning authorities to have due regard to the protection of local amenity and local environment.”
“14. When assessing the suitability of sites in rural or semi-rural settings, local planning authorities should ensure that the scale of such sites does not dominate the nearest settled community.”
“16. Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development. Subject to the best interests of the child, personal circumstances and unmet need are unlikely to clearly outweigh harm to the Green Belt and any other harm so as to establish very special circumstances.”
“25. Local planning authorities should very strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan. Local planning authorities should ensure that sites in rural areas respect the scale of, and do not dominate, the nearest settled community, and avoid placing an undue pressure on the local infrastructure.”
“27. If a local planning authority cannot demonstrate an up–to-date 5 year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission.” (Emphasis added).
Again, in view of the comments to follow, it is also worth referring to paragraph 28 of the Guidance, which lists certain planning conditions or planning obligations which may be used to mitigate the impact of traveller development. This limited list (which I acknowledge is not intended to be inclusive) does not include a condition on a permanent planning permission limiting occupiers of the permitted units to persons with gypsy status – see below.
The approach of LPAs to applications
The above is necessary background to the author’s two main propositions. The first is that some LPAs are too inclined to assume gypsy status from the twin facts that the applicant claims to be a traveller (or sometimes only “of traveller culture”) and that the application is for the stationing of caravans and the carrying out of associated engineering operations. In the author’s view (based on direct experience) some LPAs tend to take far too relaxed a view on traveller applications. The leading book on the subject is Gypsy and Traveller Law 2nd Edition, edited by Chris Johnson and Marc Willers (Legal Action Group). The book is an excellent guide to the relevant law, but it is hoped that the learned editors will not be offended by the suggestion that they are generally supportive of travellers (which is a long way from saying that the text of the book is itself biased – quite the contrary). Indeed, the editors acknowledge in paragraph 4.6 (5) that:
“In the majority of cases concerning gypsies and travellers, the proposed use of a piece of land as a Gypsy caravan site will conflict with some policies contained in the development plan. In such circumstances, gypsies and travellers will only be granted planning permission if they can show that there are material considerations that outweigh the development plan policy objections and justify the grant of planning permission.”
The work goes on to discuss the meaning of “material considerations”: space does not allow a detailed examination of that here (those mentioned in the work include the local need for, and availability of, sites; the applicant’s personal circumstances; and human rights): the point made here is simply that the learned editors appear to acknowledge the truth of what has been said above, i.e. that gypsy status, although a material consideration, is not in itself enough to override development plan policies.
The same work at paragraph 4.125, in giving guidance to advisors assisting with an application for planning permission, suggests that the application should ideally be accompanied by information on evidence of the applicant’s gypsy status:
“including details of travelling by the applicant and by family members for the purpose of work and copies (not originals in case they are lost) of family photographs”.
The editors go on to list a number of other matters which would assist in establishing the applicant’s gypsy status. The fundamental point made here is that if an applicant for planning permission wishes to ask for his gypsy status to be taken into account as a material consideration in his favour, then it is for the applicant to demonstrate that status and for the LPA to be satisfied with the evidence presented. It is not enough for an officer in a planning assessment to say (as in cases I have seen) that, although objectors have questioned the applicant’s gypsy status, “I have seen no evidence to the contrary”.
In performing their planning control functions, LPAs should have due regard to the meaning of the words in the definition “persons of nomadic habit of life”. Historically, nomadic groups would move from place to place for the purposes of commerce. They would normally have skills in trade and craftsmanship and would travel from place to place selling those goods or performing agricultural services, and also sometimes providing musical and other entertainment. Going back still further, the original meaning of “nomadic” was connected with the concept of “seeking pasture”. In the case of R v South Hams DC Ex p. Gibbs [1995] Q.B. 158, the Court of Appeal was concerned with the definition of “gypsies” in s16 of the Caravan Sites Act (which also used the words “persons of nomadic habit of life”). The Court recognised that societal changes (particularly in industry and agriculture) required a somewhat broader definition, and whilst confirming that nomadism must necessarily involve “wandering or travelling from place to place” the Court also decided that:
“there must be some recognisable connection between the wandering or travelling from place to place and the means whereby the persons concerned make or seek their livelihood”. In addition, “section sixteen [of the Caravan Sites Act 1968] does not therefore apply to persons or individuals who move from place to place merely as the fancy takes them and without any connection between the movement and their means of livelihood”.
LPAs should ask the question: if an applicant for planning permission is of a generally nomadic habit of life in the sense described in South Hams, why is he applying for (which is usually the case) a permanent residential planning permission – he should not need it. But perhaps LPAs would regard that as overly simplistic?
It is also worth referring to another Court of Appeal decision: Wrexham CBC v National Assembly of Wales [2003] EWCA Civ 835 where Auld LJ stated that the following propositions of law should be applied:
“(2) Whether applicants for planning permissions are of a ‘nomadic way of life’ as a matter of planning law and policy is a functional test to be applied to their normal way of life at the time of the determination. Are they at that time following such a habit of life in the sense of a pattern and/or a rhythm of fulltime or seasonal or other periodic travelling? The fact that they may have a permanent base from which they set out [on], and to which they return from, their periodic travelling may not deprive them of a nomadic status. And the fact that they are temporarily confined to their permanent base for personal reasons such as sickness and/or possibly the interests of their children may not do so either, depending on the reasons and the length of time, past and projected, of the abeyance of their travelling life. But if they have retired permanently from travelling for whatever reason, ill health, age or simply because they no longer wish to follow that way of life, they no longer have a ‘nomadic way of life’. That is not to say that they cannot recover it later, if their circumstances and intention change…But that would arise if and when they made some future application for permission on the strength of that resumption of status”.
(3) “Where, as here, a question is raised before a Planning Inspector as to whether the applicants for planning permission are ‘gypsies’ for the purpose of planning law and policy, he should, (1) clearly direct himself to and identify, the statutory and policy meaning of that word; and (2) as a second and separate exercise, decide by reference to that meaning on the facts of the case whether the applicants fall within it…
(4) In making the second, factual, decision whether applicants of planning permission are gypsies, the first and most important consideration is whether they are – to use a neutral expression – actually living a travelling life, whether a seasonal or periodic in some other way, at the time of the determination. If they are not, then it is a matter of fact and degree whether the current absence of travelling means that they have not acquired or no longer follow a nomadic way of life.”
It is submitted that these cases remain good law. With that in mind, the question arises whether the societal changes referred to in South Hams might have so reduced the number of families whose gypsy status would survive close examination as to render this discussion redundant, and whether recent high-profile cases are not essentially another aspect of the national shortage of affordable housing.
The inappropriate use of conditions
Reference was made above to two propositions. In essence, the first was that LPAs generally do not properly investigate gypsy status before applying the Guidance in considering applications. Where proper investigation is made, and it appears that the applicants (or intended occupiers) do not have gypsy status, then in the absence of other material considerations of sufficient weight to override the development plan (which will typically prohibit new housing development in the open countryside), the development plan should prevail and the application should be dismissed. But what if the applicant’s (or occupier’s) status does add up? The author’s second proposition is that in that situation (or indeed where they wrongly believe that the applicant has made his case) LPAs are granting the wrong kind of planning permission.
Paragraph 16 makes it clear that traveller sites (whether temporary or permanent) in the Green Belt are inappropriate development. Only exceptional factors relating to best interests of the child, personal circumstances and unmet need are remotely likely to be regarded as outweighing harm to the Green Belt so as to establish very special circumstances.
Paragraph 25 also states that LPAs should very strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan (which will often echo the development plan). Where the ground regarded as justifying an exception to this rule is the lack of an up-to-date five year supply of deliverable sites, paragraph 25 states that this should be a significant material consideration when considering applications for the grant of temporary planning permission (Emphasis added).
Other outweighing material considerations are likely to be personal circumstances. In the case of personal circumstances, surely the logical thing for an LPA to do if it wishes to respect those circumstances is to grant a personal planning permission? This is logical and there is nothing to stop LPAs so acting. The Town and Country Planning Act 1990 s70 (1) empowers an LPA to grant permission “either unconditionally or subject to such conditions as they think fit”. Also, s.75 (1), while stating that normally permissions to develop land enure for the benefit of the land and all persons being interested in it, also states this applies “except in so far as the permission otherwise provides”. In other words the general rule may be expressly excluded.
The Government’s policy on personal conditions is that, while it is seldom desirable to limit permission to the applicant or any other named individual, there may be occasions where there are strong compassionate or personal grounds to do so; see Circular 11/95, “The use of conditions in planning permissions”, para 93. This is precisely the situation being contemplated here, i.e. where permission would not normally be allowed and the condition is intended to ensure that the permission does not run with the land and is in effect a temporary permission. This approach can be seen as being endorsed by Lord Scarman in Westminster CC v Great Portland Estates [1985] A. C. 661. Personal permissions are in fact granted quite often. Thus in a Ministerial decision ref App/5034/A/81/02199 reported in the Journal of Planning and Environment Law (see [1982] J.P.L. 543), a condition restricting the occupation of the office building known as Queensland House in The Strand, London to occupation by the Government of Queensland, to enable the Greater London Council to have control over the future of the building if the Governor of Queensland gave it up, was successfully imposed. In another case referred to in the same issue of the J.P.L., permission was granted for a storage use solely for the benefit of the then-named occupier, to prevent an increase in traffic which might be generated by the establishment of a haulage-type depot. In practice, personal consents are often granted.
In the case of a planning permission of the kind under discussion here, it is submitted that there would never be any ground on which a personal condition should be discharged; the planning permission would otherwise remain in force indefinitely and the danger of a change of owner or occupier is not going to go away. Temporary consents are another matter, and as mentioned above are specifically envisaged by paragraph 27 of the Guidance where the material consideration relied upon is the lack of deliverable sites in the area. Again, in practice temporary consents are often granted (although it is fair to say that one problem is that even if a consent is temporary, the applicant may decline to leave at the end of the limited period and LPAs are not always keen on taking any form of enforcement action).
In the author’s experience, what LPAs tend to do when, for whatever reason, they believe that consent should be granted, is neither of the above i.e. grant neither a personal nor a temporary consent. Instead, they tend to grant a permanent consent which by its very nature enures for the benefit of the affected land in perpetuity and irrespective of who might in the future come to own or occupy it; whatever considerations led the LPA to consider the applicant deserving of the grant of planning permission may not apply to any future owner or occupier. LPAs tend to brush this aside by imposing a condition in terms of which the following (on the grant of consent for a number of pitches) is a typical example:
“The site shall not be occupied by any persons other than gypsies and travellers as defined in Annexe 1: Glossary of the planning policy for traveller sites (August 2015)”.
The LPA then gives as the reason for the imposition of the condition that “The site lies in an area where an unrestricted caravan site would not normally be permitted”.
This raises a number of issues. The first is enforceability. The author has argued at length in the Journal of Planning and Environment Law [214] J.P.L. 1057 that a condition of this kind does not comply with the Government’s policy on the use of conditions in planning permissions as set out in the Planning Practice Guidance issued under the NPPF ; “the Six Conditions”. Space does not permit a similarly detailed discussion here but what can be said is that it really requires little more than common sense to realise that LPAs are never in practice going to be able to enforce conditions of this kind indefinitely. Generally speaking, once a consent is granted they do not have the will and, in the majority of cases, the resources. What would be required would be a regular inspection of the site and the investigation of the identity and status of its then current owners or occupiers, applying the same evidential standards as the LPA probably did not apply when considering the application in the first place.
In summary, the author believes that many (perhaps the majority) of applications by travellers are mishandled, and that the correct result where the grant of planning permission is justified contrary to the provisions of the development plan by other material considerations is to grant either a personal consent (where personal circumstances are being relied upon) and/or a temporary consent (particularly where the lack of suitable or available sites is the overweighing issue).
Equality and human rights
First, the Equality Act 2010. When an LPA imposes a condition of the kind just described and justifies it by reference to a statement that unrestricted consent for a caravan site would not normally be granted in that location, it is unequivocally discriminating against caravan dwellers who are not travellers: and in most cases the LPA means that no residential consent (including consent for a permanent dwelling for a member of the settled community) would be likely to be granted. This is because, in many cases, the reason consent would not be likely to be granted is that it would infringe a provision of the local development plan which prohibits development in the open countryside. Section 4 of the Act which defines the “protected characteristics” includes “race” and, as has already been seen, Romani gypsies and Irish travellers are separate racial groups (and it would no doubt be argued that “new” travellers are at least a distinct socio-economic group). LPAs are under a duty under the 2010 Act and there is clearly some tension here (acknowledged by planning inspectors) between the legislation and the favourable treatment of travellers as opposed to the settled community. It is only a matter of time before this issue comes before the courts and it will be very interesting to see the result.
Finally, since travellers often rely on Human Rights arguments, it is worth pointing out that the European Convention on Human Rights (included in UK law by the Human Rights Act 1988) confers rights on the settled community as well as on travellers. The two Convention rights which are seen as of most particular relevance to travellers are Articles 8 (“The right to respect for private and family life, home and correspondence”) and 14 (which outlaws discrimination on a variety of grounds including race). For as long as the UK remains bound by the Convention, it is not only The Equality Act 2010 which will come into play when this issue is finally and properly examined.
Raymond Cooper is a consultant property lawyer and his website is at www.raymondcooper.co.uk.
