Smith v Secretary of State for Housing, Communities and Local Government and another (Equality and Human Rights Commission and Others intervening)
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWHC 1650 (Admin) |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
2020 Dec 10, 11; 2021 June 17
Planning - Gipsies and travellers - Planning policy - Traveller sites policy defining gipsies and travellers as those of nomadic habit including persons who on grounds of educational or health needs or old age had ceased to travel temporarily - Whether policy unlawfully discriminating against elderly and disabled gipsies permanently settled on those grounds -
In the context of the need to provide suitable caravan sites for gipsies and travellers, Government planning policy in force from 2006 to 2015 defined gipsies and travellers as persons of nomadic habit of life “including 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 or permanently”. In 2015 the Secretary of State issued a revised policy which conferred a number of advantages on gipsies and travellers in respect of planning policy but modified the definition of gipsies and travellers by removing the reference to those who had “permanently” ceased to travel for the specified reasons. The 2015 policy made clear that it was to be read in conjunction with the National Planning Policy Framework, that it had to be taken into account in preparing development plans and that it was a “material consideration” to be taken into account in planning decisions. The claimant, a Romany gipsy, had since 2011 lived with her family in their caravans on rented land for which temporary planning permissions were granted permitting use as a gipsy caravan site. In 2016 the local planning authority refused the landowner’s application to vary the permission to allow the permanent residential use of the land for that purpose and in 2018 an inspector appointed by the Secretary of State refused the landowner’s appeal against that decision on the basis that no member of the claimant’s family fell within the definition of gipsies and travellers in the 2015 policy and that, accordingly, the application did not benefit from the more permissive planning regime contained in that policy. The inspector also decided not to grant a further temporary consent. The claimant sought a statutory review on the ground, inter alia, that the 2015 policy was unlawfully discriminatory, in contravention of article 14 read with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of section 19 of the Equality Act 2010, in that it had a disproportionately detrimental effect upon elderly and disabled gipsies.
On the claim—
Held, dismissing the claim, (1) that in so far as article 8 of the Human Rights Convention imposed a positive obligation on the state to facilitate the gipsy way of life, the 2015 traveller sites planning policy was a modality of the right conferred by article 8; that the present claim thus fell within the ambit of article 8, with the result that article 14 required the 2015 policy to operate without discrimination; that while the 2015 policy did not expressly exclude those who had permanently ceased travelling, such retired gipsies could only be covered by the definition in the event that they were of a “nomadic habit of life”, which criterion required a habit or rhythm of movement and necessarily involved travelling from place to place; that in so far as the 2015 policy retained, at its core, a functional test of nomadism and focused upon the specific land-use needs of those leading a nomadic lifestyle it continued to recognise the special needs of nomadic people; but that, to the extent that the exclusion of permanently settled gipsies and travellers from the planning benefits of the 2015 policy particularly disadvantaged older and disabled gipsies, when compared to younger and able-bodied gipsies respectively, it was discriminatory on the grounds of age and disability and thus required justification in order to be lawful (post, paras 32.1, 60, 62, 79, 85, 86).
(2) That the Secretary of State had plainly been justified in drawing a distinction between the specific land-use needs of those seeking to lead a nomadic lifestyle and those seeking a more settled existence, where the former threw up particular challenges both for applicants and planning authorities, and in devising a specific policy focusing on that issue which did not also seek to address the cultural needs of those gipsies and travellers now seeking a permanent home; that the critical consideration was that the 2015 policy did not stand alone but formed part of a “patchwork of provisions”, in which regard it was relevant that (i) paragraphs 59 and 61 of the National Planning Policy Framework required planning authorities to address the needs of gipsies and travellers irrespective of whether they met the definition in the 2015 policy definition, (ii) the specific accommodation requirements of permanently settled gipsies who sought planning permission in order to maintain their cultural identity as such were “material considerations” which had to be taken into account pursuant to section 70(2)(c) of the Town and Country Planning Act 1990 and (iii) other personal circumstances of gipsy applicants could properly be taken into account as part of the material considerations; that, moreover, it was a matter for the executive, and not the judiciary, to determine whether the 2015 policy ought to make provision for the land-use needs of all gipsies and travellers, irrespective of whether they remained nomadic or had ceased travelling or ought, alternatively, to make discrete provision only for the land-use needs of gipsies and travellers who remained of a “nomadic habit of life” with provision for the needs of permanently settled gipsies and travellers being made through the mainstream planning system; that there was nothing inherently objectionable in the executive choosing to take the latter approach where, as the court found, the planning system taken as a whole was capable of being operated in such a way as to respect the article 8 rights of gipsies and travellers, both those who were nomadic and those who through age or disability had been forced to give up a nomadic life; that the exclusion of permanently settled gipsies from the 2015 policy was therefore objectively and reasonably justified as being rationally connected to, and a proportionate means of achieving, the objectives of the 2015 policy, namely, to ensure the fair and equal treatment of gipsies and travellers in a way that facilitated their traditional and nomadic habit of life, while also respecting the interests of the settled community; and that, accordingly, there had been no breach of either the Human Rights Convention or the Equality Act 2010 (post, paras 80–83, 87, 95).
Per curiam. While the causes of socioeconomic deprivation among gipsies cannot simply be explained by difficulties in securing planning permission, and some disadvantage is intrinsic in a nomadic lifestyle and a preference for casual labouring work, there is nonetheless clear evidence of an endemic problem. The court is entitled to express disquiet as to the poor outcomes achieved by so many gipsies and the disproportionate difficulty faced by many gipsies and travellers in obtaining planning permission (post, para 47).
The following cases are referred to in the judgment:
Bank Mellat v HM Treasury (No 2)
Basildon District Council v Secretary of State for the Environment, Transport and the Regions [
Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government
Brewster, In re
Chapman v United Kingdom (Application No 27238/95) (
Chief Constable of West Yorkshire Police v Homer
Christian Institute v Lord Advocate
Clarke v Secretary of State for Transport, Local Government and the Regions
Collins v Secretary of State for Communities and Local Government
Greenwich London Borough Council v Powell [
Hardy & Hansons plc v Lax
Hearne v National Assembly for Wales
Horsham District Council v Secretary of State for the Environment 13 October 1989;
JD v United Kingdom (Applications Nos 32949/17, 34614/17) [
M v Secretary of State for Work and Pensions
Mills v Cooper [
Petrović v Austria (Application No 40485/08) (
R v Lincolnshire County Council, Ex p Atkinson (
R v South Hams District Council, Ex p Gibb [
R (Bibi) v Secretary of State for the Home Department
R (C) v Secretary of State for Work and Pensions
R (Clift) v Secretary of State for...
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