Enforcement notices — Structure plan policy on caravans for ‘gipsies’ — Meaning of ‘gipsies’ — Caravan Sites Act 1968 — Winter quarters for travelling showmen — Whether within ‘travelling showmen’ exception — Whether exception applied during winter — Whether time element or quality element
The
applicants/appellants are travelling showmen and go into winter quarters for
some four months when the fairs are not operating. Enforcement notices had been
served on the appellants in respect of two sites in the Surrey green belt
alleging breaches of planning control by the use of the sites for caravans. The
appellants appealed the validity of those notices, claiming they were ‘gipsies’
within the meaning of section 16 of the Caravan Sites Act 1968, and accordingly
certain policies in the Surrey structure plan on activities within the green
belt did not apply to them. The Secretary of State for the Environment
dismissed their appeals, and Nolan J (June 5 1987) and Mr David Widdicombe QC
(sitting as a deputy High Court judge) (December 21 1987) dismissed the appeals
from that decision. On appeal it was contended that although the appellants
fell within the exception in section 16 of the 1968 Act to the definition of ‘gipsies’,
namely ‘travelling showmen’, during the summer months, they were not within the
exception during the winter months and were ‘gipsies’.
Held The Secretary of State for the Environment
had been correct in his interpretation: there is no time element in the
construction of the exception in section 16 of the 1968 Act, only a quality
element. The appellants were ‘travelling showmen’ and therefore could not be
‘gipsies’ see p 92D.
to in the judgments
Mills v Cooper [1967] 2 QB 459; [1967] 2 WLR 1343; [1967] 2 All ER
100; (1967) 65 LGR 275; 131 JP 349, DC
West
Glamorgan County Council v Rafferty [1987] 1
WLR 457; [1987] 1 All ER 1005, CA
Appeal against
decisions of Nolan J and Mr David Widdicombe QC
These were two
appeals against decisions of Nolan J (June 5 1987) and Mr David Widdicombe QC
(December 21 1987), who had dismissed appeals against decisions of the
Secretary of State for the Environment to dismiss appeals against enforcement
notices issued by Tandridge District Council and Runnymede Borough Council.
Speaight (instructed by EDC Lord & Co, of Hayes, Middlesex) appeared for
the appellants.
Ouseley (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
(instructed by the solicitor to Runnymede Borough Council) appeared for the
second respondent, the local planning authority in the second appeal.
respondents in the first appeal did not appear and were not represented.
following judgments were delivered.
O’CONNOR LJ:
These two appeals have been heard together and they
raise a single point of law, namely the true construction of the definition of
‘gipsies’ in section 16 of the Caravan Sites Act 1968. The reason why that
definition is in question is because these appeals arise initially out of
appeals against enforcement notices served on the applicants, who each had
acquired sites within the Surrey green belt and were using them for the siting
of caravans during the winter.
The applicants
are travelling showmen, and they go into winter quarters for some four months
when the fairs are not operating throughout the country as they do in the
summer. Effectively, the reason these appeals are brought is that if the
applicants fall within the definition of ‘gipsies’ they would escape the
rigours of the Surrey structure plan. I need say no more about it at this
stage.
Section 16
defines ‘gipsies’ in this way:
‘gipsies’
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 of persons
engaged in travelling circuses, travelling together as such.
In the present
cases it was conceded that the applicants fell within the exception in the
summer when they were travelling the country with fairs. For that reason it is
unnecessary, in my judgment, to give any decision as to what is meant by ‘an
organised group of travelling showmen’. I am clear that it cannot mean the
Showmen’s Guild, because it is common ground that the members of the Showmen’s
Guild do not always all travel together. But what sort of organised group is
required to bring travelling showmen within the exception we need not consider
within these appeals.
The question
really was as to whether the exception was confined to the applicants during
the period when they were actually travelling from fair to fair. It was the
applicants’ case that they were persons of a nomadic habit of life. Again that
is not in dispute. They therefore would have been gipsies within the definition
unless they were removed from being gipsies by the exception.
It was
submitted quite shortly by Mr Speaight that, when one looks at the wording of
the definition, it was seeking to say that travelling showmen did not qualify
as gipsies while they were travelling the country, but, when they stopped
travelling for the winter, they did qualify as gipsies. The effect of that
construction would be to put a time factor into the definition.
Mr Ouseley,
for the Secretary of State, has submitted that there is no time factor in the
definition. What one is looking at is whether travelling showmen remain
‘persons of a nomadic habit of life’. He submits that they take themselves out
of that class if they are travelling showmen who are members of an organised
group travelling together as such.
Mr Speaight
submitted that if what was intended was to remove travelling showmen from the
definition, Parliament would have said so. Quite obviously it was not the
intention of Parliament to remove travelling showmen as such. So one finds that
they had to be members of an organised group of travelling showmen. Once again,
an organised group, as Mr Ouseley submitted, might cover organised for purposes
quite other than travelling together, and it was because it was sought to limit
the number of people being excluded from the class that we find ‘travelling
together as such’.
In the one
case Nolan J and in the other case Mr Recorder Widdicombe,
Secretary of State for the Environment’s construction was the correct one. It
is a very short point, and for my part, although for a time I was attracted by
Mr Speaight’s excellent argument that Parliament might have been intending to
exclude showmen only during the summer, I have come to the conclusion that the
Secretary of State’s construction is the right one. I do not overlook the cases
to which we have been referred, but they are not very useful on this point.
First, there was the decision of the divisional court in Mills v Cooper
[1967] 2 QB 459. In that case the court did not deal with the definition of
‘gipsies’ but was concerned with a defendant who had been acquitted of an
offence which involved a finding that he was not a gipsy. Ten weeks later he
was convicted of a similar offence when it was held that he was a gipsy, and
the question was whether there was an issue estoppel. The divisional court held
that there was none, and I do not think that that is an authority which helps
us to construe section 16 of the 1968 Act.
The case of West
Glamorgan County Council v Rafferty [1987] 1 WLR 457 was referred to
for some dicta of Ralph Gibson LJ and Sir John Megaw, both of which are obiter,
as to the meaning of section 6 of the 1968 Act. Again, I do not derive any help
from that case in construing this definition.
It is a very
short point. The question is: does it introduce a time element or does it
confine itself to a quality element? In
my judgment, it is a quality element alone, and I would dismiss both these
appeals.
NEILL LJ: I agree.
SIR ROGER
ORMROD: I agree.
Appeals
dismissed with costs to the first and second respondents not to be enforced
without the leave of the court. Legal aid taxation of appellants’ costs.
Application for leave to appeal to the House of Lords refused.
