Respondent gypsies ceasing to travel due to ill health — Whether “nomadic way of life” an essential component of gypsy status for planning purposes — Appeal allowed
The second and third respondents were members of a traditional travelling family who had abandoned their travelling way of life because of ill health. After they stationed a number of caravans and other buildings on land within the green belt, the appellant council served them with an enforcement notice. On appeal before an inspector, whose decision was upheld in the High Court, it was found, inter alia, that gypsies who gave up travelling for reasons such as ill health were still entitled to be treated as gypsies for planning purposes.
The appellants appealed that decision. The questions for the court were, inter alia: (i) whether a gypsy family that had abandoned the nomadic way of life because of the incapacity of one of its members retained its gypsy status within national and local planning policies; (ii) what factors should a decision maker take into account when deciding, as a matter of fact and degree, whether an appellant was a gypsy within the meaning of those policies; and (iii) how should the decision maker’s conclusion as to the gypsy status of the appellants affect a planning decision?
Held: The appeal was allowed.
The gypsy status of applicants for planning permission was relevant to the question of whether they were entitled to a more relaxed regime of planning control than was generally applicable to others, in that their nomadic lifestyle brought with it special requirements. National planning policy provided for those who followed a “nomadic lifestyle” rather than for those who were “gypsies”, so that ethnic background or race were not the essential components of the test. For the purposes of national planning policy, therefore, the definition of “gypsies” was that found in section 24(8) of the Caravan Sites and Control of Development Act 1960: “persons of nomadic way of life, whatever their race or origin”.
(i) Whether applicants followed the required nomadic way of life was a functional test to be applied at the time of the determination. The test was whether they were pursuing a nomadic lifestyle, which did not have to be one of continuous travelling but was required to have a pattern or rhythm. For example, the applicants could have a settled site to and from which they travelled on a seasonal basis.
The fact that the pattern might be in temporary abeyance would not deprive them of that nomadic status, but it was a question of intention. Nomadic status was not unalterable: see Mills v Cooper [1967] 2 QB 459. In circumstances where a nomadic way of life had lapsed, a gypsy by descent, culture and tradition might cease to be a gypsy for the purposes of planning legislation: see Horsham District Council v Secretary of State for the Environment unreported 31 October 1989.
(ii) A decision maker who was asked to decide whether applicants for planning permission were gypsies had to: (a) clearly address the statutory and policy meaning of the word; and (b) decide, as a separate exercise, whether the applicants came within that definition in the particular circumstances of the case: he therefore had to consider whether the applicants were following a nomadic lifestyle, be that seasonal or periodic, or temporarily or permanently in abeyance at the time of the determination. In deciding that issue, the decision maker could take into consideration various matters, including, inter alia, the fact that the applicants did not have an honest and realistically realisable intention of resuming travelling and the reasons why the applicants were not living the travelling way of life at the time of the determination.
(iii) Having concluded that the applicants did not have the status of gypsies as a matter of planning law and policy, the decision maker could still give weight to their personal circumstances as material considerations.
In the instant case, the decision maker had failed to determine the matter according to these guidelines, and the matter was referred back for redetermination.
Timothy Straker QC and Robin Green (instructed by Sharpe Pritchard, as agent to Wrexham County Borough Council) appeared for the appellants; Richard Drabble QC and Stephen Cottle (instructed by the Community Law Partnership) appeared for the respondents; the National Assembly for Wales did not appear and was not represented.
Vivienne Lane, barrister
