Government planning definition of “gypsies and travellers” unlawfully discriminatory, Court of Appeal rules

A decision on a planning application made by settled Travellers by North West Leicestershire District Council and the Secretary of State for Levelling Up, Housing & Communities has been quashed by the Court of Appeal.

Giving judgment in Smith v Secretary of State for Levelling Up, Housing & Communities & Anor [2022] EWCA Civ 1391, Sir Keith Lindblom, Lord Justice Holroyde and Lord Justice Coulson said the case concerned the exclusion of Gypsies and Travellers who are no longer nomadic from planning rules concerning their sites.

The judges noted: “The consequences of this outcome for future decision-making on applications for planning permission and appeals in which the relevant exclusion is engaged will inevitably depend on the particular circumstances of the case in hand.

“In every such case it will be for the decision-maker – whether a local planning authority or an inspector – to assess when striking the planning balance what weight should be given, as material considerations, to the relevant exclusion and to such justification for its discriminatory effect as obtains at the time, and also to undertake such assessment as may be required under Article 8 of the Convention.”

The claimant, Ms Smith, had appealed against the order of Pepperall J. The judge had refused her application for an order to quash a planning inspector’s dismissal of her appeal against North West Leicestershire’s decision to refuse her application for planning permission for a permanent site for Gypsies and Travellers at Coalville.

The judges said the principal issue concerned the August 2015 amendment by the Secretary of State to the definition of ‘Gypsies and Travellers’, in the policy document Planning Policy for Traveller Sites.

Before that, the definition expressly included those who had permanently ceased travelling as a result - for example - of disability or old age but the amendment excluded them.

They noted it was accepted on behalf of the Secretary of State that the exclusion indirectly discriminated against elderly and disabled Gypsies and Travellers.

Pepperall J had though concluded that the discrimination was lawful because it was justified.

Ms Smith argued the judge applied the wrong test and/or reversed the burden of proof, erred in concluding that there was no race discrimination claim, erred in his reasoning and conclusions as to the legitimate aim or objective of the relevant exclusion and on whether it was proportionate.

The appeal judges said: “We must emphasise at the outset that the only relief Ms Smith can seek in these proceedings is the quashing of the inspector's decision in her own particular case.

“She has not sought, and could not seek, any declarations from the court as to the legitimacy or otherwise of the relevant exclusion.”

Ms Smith has rented a site at Coalville since 2011 where her family has lived in caravans since 2011. Two of Ms Smith's adult sons are severely disabled and cannot travel for work.

In 2016, the site’s owner applied to allow permanent residential use as a Gypsy site and to permit the construction of a large dayroom.

Officers supported the application, but North West Leicestershire refused it and an inspector dismissed an appeal in 2018, by which time the site’s temporary planning permission had expired.

The inspector concluded the proposal “would neither safeguard nor enhance the character or appearance of the area and would undermine the physical and perceived separation and open undeveloped character between the two settlements”.

She said any travelling had to have an economic purpose and so was unable to conclude that the Smith family had Traveller status for planning purposes.

Appeal judges accepted the original judge erred in his approach to the applicable test and the burden of proof.

They said: “The judge erroneously imposed a burden of proof, a ‘high hurdle’, on Ms Smith in circumstances where the onus was on the Secretary of State to make good his case on justification.”

The nature of the discrimination before the judge was the negative impact on those Gypsies and Travellers who had permanently ceased to travel due to old age or illness, but who lived or wanted to live in a caravan.

"This discrimination was inextricably linked to their ethnic identity,” the judges said.

“It might be said that adding the additional protected characteristic of race/ethnicity may not make any real difference, given that the burden here remains on the secretary of state to justify the indirect discrimination in any event.

“We do not consider that to be right, for two reasons. First…ethnicity is, at least potentially, bound up with age and disability discrimination in this case. But more importantly, it seems to us that ethnicity is a significant element in the need for justification.”

Ms Smith and her family’s land-use needs relate to their ethnicity as Gypsies and Travellers and the 2015 amendment distinguished between those who travel and those who no longer do so.

“But that, it seems, is to create sub-classes of an ethnicity and to distinguish between those sub-classes,” the judges said.

“In our judgment, that would require specific justification, which has not been provided. It also seems to sit uneasily with the stated aim of [the 2015 policy] to facilitate the ‘traditional’ way of life of Gypsies and Travellers, and not simply the ‘nomadic’ way of life.”

They said that given the lack of available sites “we do not go so far as to conclude that…the relevant exclusion was designed to provide a solution to that problem, because it would reduce the number of those defined as Gypsies and Travellers for planning purposes.

"That aim is not expressed in the contemporaneous material, and we shall not conjecture that it informed the exclusion with which we are concerned.”

Having upheld all appeals grounds, the judges said Ms Smith had made good her claim under the Equality Act 2010 and the Convention.

She had suffered indirect discrimination, on the basis of age, race and disability, “which has not been justified”, they concluded.

Quashing the inspector’s decision, they noted: “although we accept that the inspector undertook a planning balance, we are bound to say that that part of her decision letter is not entirely easy to understand.

"She concluded that the personal circumstances of Ms Smith and her family deserved to be given ‘considerable’ weight in the planning balance, a position that could only have been strengthened if they had fallen within the definition of ‘Gypsies and Travellers’.

“The countervailing factors, in particular the effect on the countryside, which the inspector said weighed against the proposal, were not said to be of considerable weight or of any particular weight at all. However, it was those considerations which she found outweighed the factors in favour of Ms Smith, to which she had given ‘considerable' weight.

“This, we think, lends some support to the conclusion that we should quash the inspector's decision and remit the matter to the Secretary of State for redetermination.”

Mark Smulian