Applications for Planning Permissions by Gypsies and Travellers 1 Comment

Applications for Planning Permissions by Gypsies and Travellers

Question:  Where applications for planning permission are made by or on behalf of gypsies or other travellers, are local planning authorities (LPAs) having sufficient regard to government guidance and relevant case law?

The following comments are limited to the question raised above; I am concerned here only with applications by persons claiming gypsy or traveller status for the development of their own land, and not with the obligations of local planning authorities to provide public sites for gypsies and travellers.  Having recently been asked to advise objectors to the grant of consent for the placing of mobile and static caravans, I am concerned that, in the case of some LPAs, there may be a degree of confusion as to the considerations to be applied.

The starting point for consideration of the question must be the guidance note issued by the Department for Communities and Local Government (the Guidance Note) in March 2012 titled “Planning policy for traveller sites”.  In applying the guidance, the obvious first question to be examined by LPAs in the case is whether the applicant is entitled to gypsy or traveller  status.

Gypsies and TravellersThe issue of status is important in cases where the proposed development would contravene any provision of any applicable development plan.  The Planning and Compulsory Purchase Act 2004 s.38(6) provides that planning applications are to be determined in accordance with the development plan unless material considerations indicate otherwise.

Gypsy and Traveller LawThe learned authors of the leading text on the subject, Gypsy and Traveller Law (Second Edition) (Legal Action Group) recognise (at paragraph 4.65 on page 109) 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.  The authors continue:

“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 authors then quote Cooke J in Stringer v Minister of Housing and Local Government [1971] 1 All ER 65 at 77:-

“In principle … any consideration which relates to the use and development of land is capable of being a planning consideration.  Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances”.

Gypsy and Traveller Law sets the position out so clearly that I hope the authors will not mind my continuing to quote them.

Gypsies and TravellersAt paragraph 4.67 on page 110, the authors note that Romani Gypsies are a separate racial group for the purpose of the Race Relations Act 1976 and that the Irish Travellers are also recognised as a separate ethnic group.  The authors also refer to sections s.19(A) and s.76 of the Race Relations Act 1976 which together provide that local authorities must ensure that they exercise their planning functions with due regard to the need to eliminate unlawful discrimination, including discrimination against Romani Gypsies and Irish Travellers.

I do not take the authors to suggest however that the mere fact of the gypsy status of an applicant for planning permission is in itself a material consideration justifying departure from the development plan.  Certainly, gypsy status may give rise to other considerations which may be material, but before considering that we need to return to the Guidance Note and in particular to the Glossary in Annex 1.  This (in paragraph 1) defines “gypsies and travellers” for the purposes of planning policy as:-

Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their families 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”.

Two points on this definition are of interest.  The first is the inclusion of the words “whatever their race or origin”, which suggest that it is not only ethnic minorities with which the Guidance Note is concerned; the second is the lack of any detailed guidance on the meaning of a “nomadic habit of life”.  The words last quoted are crucial, and the lack of a detailed definition may well be because the draftsman considered that there was already sufficient case law on the subject.  The principal authority on this is to be found in the decision of the Court of Appeal in R v South Hams District Council and Another, Ex Parte Gibb; and other Appeals [1994] 4 ALL ER 1012.

South HamsIn South Hams the Court of Appeal was concerned with the definition of “gypsies” in s.16 of the Caravan Sites Act 1968, which also used the word “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 South Hams, 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:

Gypsies and Travellers“ S.16 [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”.

The conventional concept of gypsies would involve not only the people moving from place to place but taking their dwellings with them.  However, the fact that a gypsy or traveller may have a permanent base will not necessarily debar him from claiming gypsy status.  In the Court of Appeal decision in Wrexham CBC V National Assembly for Wales and Berry [2003] EWCA Civ 835 Auld LJ stated that the following propositions of law should be applied:-

“(2)      WGypsies and Travellershether 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 full time 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 the 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; (i) clearly direct himself to and indentify, the statutory and policy meaning of that word; and (ii) as a second and separate exercise, decide by reference to that meaning on the facts of case whether the applicants fall within it …”

“(4)      In making the second, factual, decision whether applicants for planning permission are gypsies, the first and most important question is whether they are – to use a neutral expression – actually living a travelling life, whether 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 habit of life.”

“(5)      On such an issue of fact and degree, the decision maker may find any one or more of the following circumstances relevant and, if so, of varying weight: (i) the fact that the applicants do or do not come from traditional gypsy background and/or have or have not followed a nomadic way of life in the past – the possible relevance in either case being that respectively they may be less or more likely to give it up for very long or to abandon it entirely; (ii) the fact that the applicants do or do not have an honest and realistically realisable intention of resuming travelling and, if they do, how soon and in what circumstances; (iii) the reason or reasons for the applicants not living the travelling way of life at the time of the determination and their likely duration”.

Gypsies and TravellersI have already said that the authors of Gypsy and Traveller Law do not appear to argue that the mere presence of gypsy status is a material consideration for planning purposes which would in itself justify a departure from the development plan.  The factors which the authors do suggest may be taken in account are:

- the need for Gypsy and Traveller sites;
- the availability of alternative sites;
- fear of crime;
- personal circumstances;
- human rights.

This blog post would be too long if I was to examine all of these factors in detail, but I will add some comments on the application of the Human Rights Act 1998.  The article of the Convention which is most likely to apply in the present context is Article 8, which provides that:

Human Rights Act 1998“1.  Everyone has a right to respect for his private and family life, his home and his correspondence;

2.  There shall be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society and in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

There has been a number of decisions of the European Court of Human Rights which are material to this but again space does not permit a detailed examination: on the general issue, I want to refer to two points only: the first is that settled people with homes in the vicinity of the application site are, of course, equally entitled to the protection of Article 8, so there needs to be a balancing exercise by the LPA  Secondly, the principal of proportionality I want to refer only to the principal of proportionality, which allows a wide “margin of appreciation”.  If I may quote again from Gypsy and Traveller Law, at page 31;

Human Rights Act 1998“2.3.1  In principle, the national authorities enjoy a wide margin of appreciation ‘in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies’;

2.3.2    The rationale for this is also explained, and is principally the common sense reason familiar to any court (whether exercising a reviewing or appellate jurisdiction), namely that, compared with the primary fact-finder, the European Court of Human rights is not well equipped to challenge judgements which have been made on detailed questions of local fact by a decision maker who has visited the site and heard the evidence.  Planning inspectors, in short, are much better placed to assess the impact of a particular use on the particular locality and, therefore, to assess the legitimacy of planning objections to their use.  It is primarily a matter of relative institutional competence.

2.3.3    The effect of a presumptively wide margin of appreciation is that, in most cases concerning the exercise of planning judgement, the European Court of Human rights will confine itself to a standard of review which is not at all intense and which centres on whether there has been a ‘manifest error of appreciation by the national authorities’.”

The principles in stated in these paragraphs are based on the decision of the European Court of Human Rights in Chapman [2001] 33 EHRR 399.

Before coming to the point of real concern which is the subject of this blog post, it is worth just setting out three paragraphs from the Introduction to the Guidance Note (despite the fact that I already referred to the principles set out in paragraph 2):-

“2.        Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise.  This policy must be taken into account in the preparation of development plans, and is a material consideration in planning decisions.  Local planning authorities preparing plans for and taking decisions on travellers sites should also have regard to the policies in the National Planning Policy Framework so far as relevant.

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.         To help achieve this, Government’s aims in respect of traveller sites are:-

- that local planning authorities should make their own assessment of need for the purposes of planning
- to ensure that local planning authorities, working collaboratively, develop fair and effect strategies to meet need through the indentification of land for sites
- to encourage local planning authorities to plan for site over a reasonable timescale
- that plan-making and decision-taking should protect Green Belt from inappropriate development
- to promote more private traveller site provision while recognising that there will always be those travellers who cannot provide their own sites
- that plan-making and decision-taking should aim to reduce the number of unauthorised developments and encampments and enforcement more effective
- for local planning authorities to ensure that their Local Plan includes fair, realistic and inclusive policies
- to increase the number of traveller sites in appropriate locations with planning permission, to address under provision and maintain an appropriate level of supply
- to reduce tensions between settled and traveller communities in plan-making and planning-decisions
- to enable provision of suitable accommodation from which travellers can access education, health, welfare and employment infrastructure
- for local planning authorities to have due regard to the protection of local amenity and local environment.

Although, as I have said, ethnicity is not in itself a material consideration, it is a prerequisite to the application of the factors which are material considerations.  What then does a local planning authority need to do in order to satisfy itself of the gypsy status of an applicant for planning permission?  There is not, as far as I can see, any specific published guidance on this so again I hope the authors will forgive me if I refer yet again to Gypsy and Traveller Law where the authors indicate what advisors assisting with an application for planning permission should consider including in an application made on behalf of a gypsy or traveller – at paragraph 4.126 on page 128 the authors suggest that advisors may wish to consider submitting information on the following matters:-

Gypsies and Travellers- Evidence of the applicant’s circular 1/06” [now replaced by the Guidance Note] “of Gypsy status and of Gypsy ethnicity, including details of travelling by the applicant or by family members for the purpose of work and copies (not originals in case they are lost) of family photographs.
- Where applicants and their families have ceased travelling temporarily, evidence of any intention to resume travelling or of the health or educational reasons for ceasing to travel.
- Details and evidence of any factors relevant to the personal circumstances of members of the family, in particular any health, educational or other welfare needs.  Ill health should be evidenced by a detailed letter or a report from the relevant GP or consultant.  Letters from head teachers and/or Traveller education support staff can also be of considerable benefit.
- Details and evidence of attempts to find alternative sites, including, for example, letters to local estate agents and evidence of enquiries of local authorities.
- Evidence of any aversion to conventional housing.
- Occupational needs.
- Any specific need for accommodation what would assist Romani Gypsies and Irish Travellers who keep animals, particularly horses and ponies.”

Gypsies and TravellersThis should provide LPAs with guidance as to the enquiries they should consider making, but in my experience, LPAs tend not to go to these lengths and will often assume gypsy status from the fact that the application is for the positioning of a mobile or static caravan or caravans.   I suspect that many applications are permitted on this basis, and that the applicants in such cases are in fact permanently resident (and perhaps carrying on a business) on the site.  The applicant may well travel daily for work, but that is more akin to commuting than travelling in the nomadic sense.  In cases of this kind, in the absence of other material considerations justifying departure from it, the LPA should apply the provisions of their development plan or plans (which, as acknowledged above, will usually point to the refusal of consent).

Gypsies and TravellersThis is a controversial subject, and I am hoping for responses agreeing or disagreeing with my comments.  What I do think, in summary, is that it would be helpful for LPAs if the DCLG guidance were to deal in more detail with the true meaning of “nomadic”.

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  1. […] is an updated and comprehensive review of the issues first discussed in my three previous posts, Application for Planning Permissions by gypsies and Travellers, Applications for Planning Permissions by Gypsies and Travellers 11 and Applications for Planning […]

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