Wrexham County Borough v The National Assembly of Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Clarke,Lord Justice Jonathan Parker |
| Judgment Date | 19 June 2003 |
| Neutral Citation | [2003] EWCA Civ 835 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2002/2570 & C1/2002/2571 |
| Date | 19 June 2003 |
[2003] EWCA Civ 835
Lord Justice Auld
Lord Justice Clarke and
Lord Justice Jonathan Parker
Case No: C1/2002/2570 & C1/2002/2571
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Sullivan
Mr Timothy Straker QC & Mr Robin Green (instructed by Sharpe Pritchard) for the Appellant
Mr Richard Drabble QC & Mr Stephen Cottle (instructed by The Community Law Partnership) for the Respondents
These consolidated appeals concern three related, but quite separate, questions that may arise for decision when gypsies seek to resist enforcement notice proceedings and/or apply for planning permission in respect of their use of land as a gypsy caravan site. The first two concern the status of applicants – in this case Mr. and Mrs. Berry, who are traditional gypsies —as gypsies for the purpose of planning law and policy. The third concerns the nature of the planning decision according to whether they have that status. The questions are:
1) one of principle —as to what is meant by the word "gypsies" in planning law and policy in the context of national and local planning policies permitting a more relaxed approach to use of land in the countryside for gypsy caravan sites; more particularly, whether an ethnic or traditional family that ceases to follow a nomadic way of life because of illness and/or old age of one or more of its members remain gypsies within the meaning of those policies;
2) one of gypsy status on the facts of each case —as to the factors that a decision-maker should take into account when deciding, as a matter of fact or degree in the particular circumstances of each case, whether the appellants before him are gypsies within the meaning of the policies; and
3) one of planning judgment – namely the nature of the planning decision, according to the decision-maker's conclusion on the facts as to the gypsy status of the appellants.
For the purpose of planning control, national planning policy, in two Departmental Circulars, adopts the definition of "gypsies" currently contained in section 24(8) of the Caravan Sites and Control of Development Act 1960, as amended, namely "persons of nomadic habit of life, whatever their race or origin".
The Planning Inspector, whose decision to grant Mr. and Mrs Berry planning permission to develop land as a private gypsy caravan site in open countryside in Wrexham is the subject of these appeals, was of the view: 1) that Mr. and Mrs. Berry remained gypsies "for the purposes of the planning legislation" although they had given up their travelling because of Mr. Berry's illness; and 2) that the personal circumstances of the Berry family outweighed any conflict with applicable planning policies against development in that location.
On the Council's statutory challenges under sections 289 and 288 of the Town and Country Planning Act 1990 to quash that decision, Sullivan J. held: 1) seemingly as a matter of principle, that traditional gypsies who had been obliged to give up travelling and settle in one place because of illness or age nevertheless retained a nomadic way of life and were thus gypsies as a matter of planning law and policy; and 2) that, on the facts of the case, the Inspector had been entitled to conclude that they were still gypsies for the purposes of the planning legislation although they had ceased travelling because of Mr. Berry's ill-health.
The appellant Council maintains that the Inspector's reasons for his decision were inadequate and that the matter should be remitted for reconsideration and fresh determination by another Inspector. And it contends that Sullivan J. in the purported exercise of statutory review and appellate jurisdictions, embarked on impermissible judicial policy-making and, in so doing, decided the matter contrary to planning law and policy.
Mr. and Mrs. Berry, who were the second and third defendants in the proceedings before Sullivan J, and are the only respondents to these appeals, rely on the Judge's decision and his reasons for it in upholding the Inspector's decisions.
The National Assembly of Wales, the first defendant below, has taken no part in the proceedings below or on this appeal. But it has written to the Court and to the other parties: 1) indicating its view that the Inspector's reasons for his decisions were inadequate; and 2) expressing unease about any interpretation and application of the meaning of "gypsies" in planning law and policy that would, as a matter of principle, widen the definition to those who are not nomadic.
The starting points for the Court's considerations of the appeals are the definition of "gypsies" in section 24(8) of the 1960 Act and its adoption in national planning policy in Departmental Circulars WO 2/94 – Gypsy Sites And Planning — and WO Circular 76/94–Gypsy Sites Policy And Unauthorised Camping.
The statutory definition of "gypsies"
Section 24(8) of the 1960 Act provides:
"… 'gypsies' means persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or persons engaged in travelling circuses, travelling together as such."
This definition was introduced as an amendment to the 1960 Act by the Criminal Justice and Public Order Act 1994 as an identical replacement of that in section 16 of the Caravan Sites Act 1968, the long title of which included the purpose:
"… to secure the establishment of … [caravan] sites by local authorities for the use of gipsies and other persons of nomadic habit, and control in certain areas the unauthorised occupation of land by such persons; …".
As Mr. Timothy Straker QC, for the Council, has observed, the definition is generally regarded as having been prompted by the Divisional Court's decision in Mills v. Cooper [1967] 2 QB 459, a case concerning the meaning of the word "gypsy" in section 127 of the Highways Act 1959. Section 127 made it an offence for a gypsy to pitch a booth or to camp on a highway. Lord Parker CJ and Diplock LJ, with whom Ashworth J agreed, held, at 467B-C and 468C-D respectively, that the word "gypsy" could not, in that context, bear the dictionary meaning of a member of the Romany race, but should be given its colloquial or popular meaning of a person leading a nomadic life with no, or no fixed employment and with no fixed abode. Lord Parker said, at 467C-D:
"Looked at in that way, a man might well not be a gipsy on one date and yet be one on a later date"
And Diplock LJ, at 468C-D, defined the word:
"… as a person without fixed abode who leads a nomadic life, dwelling in tents or other shelters, or in caravans or other vehicles.
If that meaning is adopted, it follows that being a gipsy is not an unalterable status. It cannot be said, 'once a gipsy always a gipsy'. By changing his way of life a modern Borrow may be a gipsy at one time and not a gipsy at another."
Although living a nomadic life for this purpose does not necessarily connote constant movement, it does require a habit or a rhythm of movement. Thus, in Greenwich London Borough Council v. Powell [1989] 1 AC 995, HL, Lord Bridge of Harwich, with whom the other Law Lords agreed, said that a person could be a gypsy for the purpose of section 16 of the 1968 Act if he led a nomadic way of life only seasonally. To similar effect were the observations of Neill and Leggatt LJJ in a case concerning the duty to provide adequate accommodation for gypsies under section 6 (now repealed) of the 1968 Act, R v. South Hams District Council, ex p. Gibb [1995] QB 158, CA, where they said, at 169E-F and 172G-H respectively, that the nomadic habit of life contemplated for that purpose by section 16 of the Act was one that enabled gypsies to take their home to their work – to go where the work is. The following analysis of Neill LJ, giving the leading judgment, at 169A-E, indicates the necessary confines of the statutory language and the purpose for which it was adopted as part of national planning policy:
"In seeking to apply the statutory definition of gipsies it is important to keep the actual words used in section 16 in the forefront of one's mind. At the same time it is necessary to take account of the purpose behind Part II of the Act of 1968 and the extent of the duty imposed by section 6(1). In the light of these considerations I have come to the conclusion that one can identify the following matters as being relevant to a decision whether or not any particular group is composed of gipsies. (1) The links between members of the group and other groups who are either at the site or visit the site. Living and travelling together in cohesive groups is a feature of nomadic peoples. (2) The pattern of the journeys made by the group. Though a group of gipsies may have a permanent residence ( Greenwich London Borough Council v. Powell …), a nomadic habit of life necessarily involves travelling from place to place. Furthermore, as the duty imposed by section 6(1) relates to the provision of adequate accommodation 'for gipsies residing in or resorting to' the area of the county council, it is relevant to inquire whether the group visits sites in the county on a regular basis. (3) The purpose of the travel. I accept that the word 'nomadic' no longer has any connection with the concept of 'seeking pasture,' but it seems to me that in the context of the Act the word 'nomadic' adds to the words 'habit of life' a sense of purpose for...
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