The case Smith v Secretary of State for Levelling Up, Housing and Communities & Anor  EWCA Civ 1391 has been featured in Discrimination Law Association Briefings March 2023 (Volume 78) Edition.
Marc Willers KC and Tessa Buchanan of Garden Court Chambers appeared for the successful appellant, instructed by Keith Coughtrie of Deighton Pierce Glynn.
The Court of Appeal held that the definition of ‘gypsies and travellers’ in the government’s Planning policy for traveller sites (PPTS) was unlawfully discriminatory.
The case has significant consequences for practitioners representing Gypsies and Travellers in planning cases. Decision-makers will not be able to apply the definition without careful consideration as to whether it would result in unlawful discrimination in that particular case.
The decision will also be of interest to practitioners of discrimination law more widely. The CA confirmed a number of principles of general importance, including that:
- a discrimination claim brought by an alleged victim such as the appellant, Lisa Smith (LS), is not an ab ante challenge (i.e. a challenge to the lawfulness of legislation or policy in the abstract, brought at the outset and before such legislation or policy has been tested in practice), and does not, therefore, have to overcome the high hurdle applicable to such cases;
- when considering whether discrimination is justified, the relevant aim is that of the measure in question and not (for example) the broader policy containing the measure; and
- when deciding whether a measure is proportionate, what matters is what happens in practice.