Town and country planning – Gypsies and travellers – Planning policy – Gypsies and travellers previously defined for planning purposes as those of nomadic habit including persons who on grounds of disability or old age ceased to travel temporarily or permanently – Amended definition in 2015 planning policy referring only to temporary cessation – Whether policy unlawfully discriminating against elderly and disabled gypsies and travellers – Appeal allowed
The appellant was a Romany gypsy. For the purposes of planning policy on the provision of suitable caravan sites, government guidance from 2006 defined gypsies 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 Planning Policy for Traveller Sites (PPTS) was published which contained an amended definition of gypsies and travellers which omitted the words “or permanently”. That excluded those who had permanently ceased travelling as a result of disability or old age (the relevant exclusion).
The appellant applied for planning permission for a permanent site for gypsies and travellers at Coalville in Leicestershire on a site which she rented from the interested party. The second respondent local authority refused the application and an inspector appointed by the first respondent secretary of state dismissed her appeal against that refusal.
The High Court dismissed her application under section 288 of the Town and Country Planning Act 1990 for statutory review of that decision. It was accepted that the relevant exclusion in the 2015 policy indirectly discriminated against elderly and disabled gypsies and travellers. The judge concluded that the discrimination was justified: [2021] EWHC 1650 (Admin).
The appellant appealed. Four groups, all of whom represented gypsies and travellers intervened.
Held: The appeal was allowed.
(1) A blanket challenge to legislation or policy, the proportionality of which was being attacked on theoretical or hypothetical grounds, naturally faced a high hurdle, because it would usually be impossible for the court to conclude that, merely as a result of the words alone, the legislation or policy was unlawful.
However, the present proceedings had been brought by an individual, the appellant, who had suffered admitted indirect discrimination, rather than a campaigning organisation; and she was a member of a particular group in society (namely gypsies and travellers) which the state had a positive obligation to assist: Chapman v United Kingdom (2011) 33 EHRR 18 and R (on the application of the Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542; [2020] PLSCS 70 considered.
Where indirect discrimination was admitted, it became critical whether or not it could be justified. It was incorrect for the judge to say that the challenger faced a high hurdle. In the light of the concession, the burden was on the first respondent to demonstrate the necessary justification: Christian Institute v Lord Advocate [2016] UKSC 51 considered.
Further, the judge was wrong to find that the inspector did not discriminate against the appellant in the exercise of her planning judgment. The inspector had applied to the appellant a discriminatory element of policy which put persons with the protected characteristics of disability and age at a particular disadvantage. What mattered was justification. The appellant was not required to demonstrate that the measure was wholly incapable of lawful operation. On the evidence before the court, there was no proper justification for that discrimination: R (Ward) v Hillingdon London Borough Council [2019] EWCA Civ 692; [2019] PTSR 1738 considered.
Accordingly, the judge erred in his approach to the applicable test and the burden of proof where the onus was on the first respondent to make good his case on justification.
(2) Race, or the ethnicity of the appellant and her family as Romany gypsies, was a protected characteristic under the Equality Act 2010. Romany gypsy was an ethnicity: The relevant defining feature was not “being nomadic”, it was the act of living in caravans which was an integral part of the gypsy/traveller way of life which the state had a positive obligation to facilitate. As with any other ethnicity, an individual was either a Romany gypsy or not; there was no in-between status: CRE v Dutton [1989] 2 WLR 17, Clarke v Secretary of State for the Environment, Transport and the Regions [2002] JPL 552; [2002] EWCA Civ 819; [2002] PLSCS 125, Chapman and Moore & Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin); [2015] PLSCS 36 considered.
Accordingly, the nature of the discrimination before the judge was the negative impact on those gypsies and travellers who had permanently ceased to travel due to old age or illness, but who wanted to live in a caravan. That discrimination was inextricably linked to their ethnic identity which was a significant element in the need for justification. Race discrimination was always an element of the appellant’s section 288 challenge.
(3) Whether the relevant exclusion had a “legitimate aim” or objective, and whether or not the importance of that objective outweighed the severity of its effect were linked in this case. The first question was whether the court should consider the legitimate aim of PPTS 2015 as a whole, or of that part of the policy with which this claim was concerned, namely the relevant exclusion of those who had been forced by old age or disability to cease travelling. Although it was necessary to consider the relevant exclusion in the context of PPTS 2015 as a whole, what mattered was the application of that exclusion in the circumstances of the decision made by the inspector.
The judge 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, which was inappropriate.
(4) The acknowledged likely effect of the exclusion was a reduction in the number of gypsies and travellers who could 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 remained within the definition. There had been no suggestion that that was or could be a legitimate aim in seeking to create fairness as between gypsies and travellers and the settled community. The severity of the effect on the rights of aged and disabled gypsies and travellers outweighed the alleged aims or objectives of the policy alteration and were not proportionate.
The inspector’s decision would be quashed and the case remitted to the first respondent for redetermination of the appellant’s appeal.
Marc Willers KC and Tessa Buchanan (instructed by Deighton Pierce Glynn) appeared for the appellant; Timothy Mould KC (instructed by the Treasury Solicitor) appeared for the first respondent; David Wolfe KC, Owen Greenhall and Tim Jones (instructed by Community Law Partnership) made written submissions for the interveners; The second respondent and the interested party did not appear and were not represented.
Eileen O’Grady, barrister