Gypsy/Traveller planning policy capable of being discriminatory

An appeal against a planning inspector’s decision that a Romany Gypsy and her family did not have Gypsy/Traveller status because they were not nomadic has succeeded on the grounds of discrimination in Lisa Smith v Secretary of State for Levelling Up, Housing & Communities and others [2022] EWCA Civ 1391, a decision which may have far reaching consequences for Gypsy/Traveller planning policy. Lisa Smith rented a site where she and her family – including two severely disabled sons – had lived in caravans since 2011. In April 2013, planning permission was granted for up to six touring caravans on the land for four years. The site could only be occupied by Gypsies and Travellers as defined in the planning policy. The Caravan Sites Act 1986 defined Gypsies as persons of nomadic habit of life, whatever their race or origin. Revisions in 2006 included persons who have ceased to travel temporarily or permanently on grounds of their or their dependents’ education, health needs or old age. A 2015 policy document Planning Policy for Traveller Sites (PPTS 2015) removed from the definition the words “or permanently”, the effect of which was to exclude those who have permanently ceased travelling due to disability or old age. The government’s overarching aim – set out in 2012 and repeated in PPTS 2015 – was to ensure fair and equal treatment for travellers in a way that facilitates the traditional and nomadic way of life while respecting the interests of the settled community. In March 2016, the site owner sought permission to allow the permanent residential use of the site as a Gypsy site and to permit the construction of a large dayroom. The application was refused and an appeal to a planning inspector, dismissed on the ground that the appellant and her family did not have Traveller status for planning purposes. A statutory review of the inspector’s decision concluded that even though the Secretary of State admitted that the relevant exclusion indirectly discriminated against elderly and disabled Gypsies/Travellers, PPTS 2015 as a whole retained at its core a functional test of nomadism and that a distinction between the land-use needs of those seeking a nomadic lifestyle and those seeking a more settled existence was justified. The Court of Appeal found that the judge had applied the wrong test when considering the appellant’s challenge. This was not an abstract or blanket challenge to the legislation but a classic claim by an affected person for indirect discrimination which had been admitted. The state has a positive obligation to assist Gypsies/Travellers. Romany Gypsy is an ethnicity, the relevant defining characteristic of which is not being nomadic but the act of living in caravans which is an integral part of the Gypsy/Traveller way of life. The judge had also focussed too much on the legitimate aim of PPTS 2015 as a whole, rather than on the legitimacy of the relevant exclusion. The distinction between sub-classes of an ethnicity – those who travel and those who through age or disability are no longer able to do so – required specific justification which had not been provided. The case was remitted to the inspector for redetermination. Louise Clark is a property law consultant and mediator