Marc Willers KC and Tessa Buchanan of Garden Court Chambers appeared for the successful appellant. They were instructed by Keith Coughtrie of Deighton Pierce Glynn.
Owen Greenhall of Garden Court Chambers appeared, together with David Wolfe KC of Matrix Chambers and Tim Jones of No5 Barristers Chambers, for the Interveners. They were instructed by Chris Johnson of Community Law Partnership.
The Court of Appeal has held that the Government’s planning definition of “gypsies and travellers” in Planning policy for traveller sites (“PPTS 2015”) is unlawfully discriminatory with the result that a refusal to grant planning permission for a permanent site which applied that definition was quashed.
PPTS 2015 contains guidance as to how local planning authorities should assess the need for Gypsy and Traveller sites and how applications for planning permission for Gypsy and Traveller sites should be determined. It applies only to Gypsies and Travellers as defined within Annex 1 of the policy, namely:
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.
Ms Smith was a Romani Gypsy who had been living with her family in their caravans on a privately owned site under temporary planning permission. In 2016, an application was made for the permission to be made permanent. The application was refused by the local planning authority. Ms Smith’s appeal to the Secretary of State’s Planning Inspector against the refusal was dismissed. The Inspector found that Ms Smith, who had been forced to stop travelling due to the age and disability of family members, did not come within the planning definition and therefore could not rely upon the positive planning policy contained within PPTS 2015.
Ms Smith applied for a statutory review of the Inspector’s decision. She argued that the decision was flawed because the PPTS 2015 definition of Gypsies and Travellers, which the Inspector had applied and which she had been found not to meet, was unlawfully indirectly discriminatory. Her application was dismissed by Pepperall J in the Planning Court and she appealed to the Court of Appeal.
The Court of Appeal allowed her appeal on all four grounds:
i. Pepperall J was wrong to apply the test for ab ante challenges set out in Christian Institute v Lord Advocate  UKSC 51 and to hold that Ms Smith faced a “high hurdle” in making out her case. Ms Smith was not bringing an abstract or hypothetical challenge. The Secretary of State admitted that the policy definition was discriminatory and the burden was therefore on him to justify that discrimination.
ii. The Judge was also wrong to hold that Ms Smith could not rely on race discrimination because it had not been pleaded. Race was “an inherent element of this case from the outset”: §62. Romani Gypsies are members of an ethnic group, the defining feature of which was not being nomadic but “the act of living in caravans”: §65.
iii. The Judge had erred in his findings in respect of the legitimate aim. He had “concentrated too much on the legitimate aim of PPTS 2015 as a whole, rather than focusing on the legitimacy or otherwise of the relevant exclusion itself” and his judgment gave rise to “uncertainty” over what the legitimate aim actually was (an uncertainty which stemmed at least in part from the “changing emphasis of the Secretary of State’s submissions as these proceedings have progressed”): §§75-81.
iv. The Judge had also erred in respect of whether the definition was proportionate. By asking “whether the planning system ‘taken as a whole is capable of being operated’ in an appropriate way”, he had applied the wrong test: §114. Although “the theoretical capability of the planning system to meet the need of Gypsies and Travellers” was a relevant consideration, what mattered was “how the planning system operates in practice”: §115. There was no evidence that “any of the inherent capabilities of the planning system actually made up for the admitted indirect discrimination”: §117.
The Court of Appeal proceeded to decide for itself whether the planning policy definition was justified. It held that it was not.
First, the definition was not in pursuit of a legitimate aim. The stated aim of the amended definition was “to ensure that the planning system applies fairly to all”: §90. If the Secretary of State could show that the aim was to create fairness, that would be legitimate. But the Secretary of State had not in fact shown that fairness was the aim of the definition. It was apparent from the Public Sector Equality Duty (“PSED”) analysis that the equality objectives set out at s149(1) of the Equality Act 2010 were not met, which was “an unpromising starting point”: §93. There was uncertainty regarding the evidence that was said to raise concerns about fairness. The Secretary of State was not entitled to have regard to the perception that the planning regime was unduly advantageous to Gypsies and Travellers. That perception was in any event misplaced, as “the evidence…highlighted the difficulties which Gypsies and Travellers generally face when making applications for planning permission”: §96. The Court concluded at §99 that:
"…the evidence before the court does not succeed in demonstrating that, in substance, “fairness” could realistically be regarded as the objective of this exclusion. The acknowledged likely effect of the exclusion was that identified in the PSED analysis: to reduce the number of Gypsies and Travellers who can obtain permanent or temporary planning permission, and to ensure that those excluded by the new definition would not have the benefit of the policy applicable to those who remain within the definition. It was not suggested, either before the judge or before us, that this was, or could be, a legitimate aim."
Second, even if the Secretary of State had demonstrated that the definition was in pursuit of a legitimate aim, the measure was not proportionate. The “harshness” of the measure was “clearly spelt out in the PSED analysis”: §103. This showed that the definition could mean that people without family connections could no longer live with other members of the Gypsy and Traveller community, and even those with family connections could be separated from their families; that the people most likely to be affected were the elderly, disabled, and potentially women; and that there was a risk of an increase in homelessness and unauthorised camping. The Court rejected the suggestion that the group likely to be affected by the definition was (or would be) small, noting that “the relevant exclusion will eventually exclude all Gypsies and Travellers, with the exception of those who are determined to live their whole lives on the road”: §104.
In addition to these issues, the amended definition meant that there would be people who in July 2015 were defined as Gypsies and Travellers and who in August 2015 were not, and who thus could “one day be occupying a site in accordance with national policy and with the concomitant status in planning decision-making…and the next day would not”: §106. Although the PSED analysis had indicated that those affected by the definition could rely upon the National Planning Policy Framework and their personal circumstances, this point had not been included in PPTS 2015 and no guidance had been provided on it. In addition, a promised review of the consequences had not happened. The fact that Gypsies and Travellers who did not meet the definition could rely on their ethnicity within the wider planning system did not justify the discrimination.
The Court of Appeal also rejected the Secretary of State’s argument that a previous decision of the Court of Appeal in Wrexham County Borough Council v National Assembly of Wales  EWCA Civ 835 meant that the definition was lawful. That decision had been concerned with different words and with a different exercise.
Because Ms Smith’s case had been brought as a challenge under s288 of the Town and Country Planning Act 1990, the Court had no power to grant a declaration that the amended definition was unlawful and it made clear that “we do not go beyond our conclusion that in the particular circumstances of this case Ms Smith’s Equality Act 2010 claim, and her Convention claim, based on admitted discrimination, has been made out in her challenge to the inspector’s decision on her appeal”: §134. However, the decision will clearly have consequences beyond this individual case, as the Court recognised at §139:
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.
Given the Court’s comprehensive review of the definition’s origins and effects, and its clear findings of unlawfulness in the case before it, it is difficult to see how the PPTS 2015 definition can be safely applied in other cases where elderly and disabled Gypsies and Travellers seek planning permission for a caravan site on which to live in accordance with their traditional way of life.
In addition to this, in our view, the Court’s decision is likely to have significant consequences for local planning authorities’ assessments of the need for Gypsy and Traveller sites and the planning policies prepared on the basis of such assessments. The Court of Appeal noted that the Equality and Human Rights Commission had found that “the need for pitches for Gypsies and Travellers as assessed by local planning authorities” had fallen by up to 75% since 2015: §111. It is anticipated that the assessments of need based on the 2015 definition, and the policies adopted in reliance on those assessments, will all now need to be reviewed as a matter of urgency.