GYPSIES AND PLANNING
By Richard Langham, Barrister
Overview of C1/2006
1. C1/2006 makes important changes in four areas -
a. It establishes a plan-making regime designed to ensure that local planning
authorities will allocate enough land to meet the assessed need in a district.
b. It gives clear instructions on the policy approach that should be applied when
considering whether sites are acceptable for use as gypsy sites.
c. It has important guidance on the grant of temporary planning permissions in
the period before allocations are made.
d. It widens the definition of „gypsies and travellers‟.
Historical background
2. There was no law or policy on gypsies until 1960. According to Sedley J in R v
Wealden DC ex p Stratford [1997] JPL 65, gypsies travelled around the country
stopping on commons quite contendedly.
3. The Caravan Sites and Control of Development Act 1960 gave power to local
authorities to prohibit the use of commons by caravans.
S24 gave a power to
provide caravan sites (for anyone). When enacted the Act did not mention gypsies.
4. The Caravan Sites Act 1968 imposed on County Councils the duty to exercise s24
powers so as to provide adequate accommodation for gypsies „residing in or
resorting to their area‟. That meant acquiring land and developing it as public gypsy
sites.
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5. Areas where adequate provision was made were „designated‟. In designated areas it
was an offence to station caravans on the highway, on unoccupied land or without
the consent of the occupier. The current public sites date from this statutory duty.
6. The 1968 Act defined gypsies for first time - as persons of a nomadic habit of life,
whatever their race or origin (but excluding TSP).
7. The provision of public gypsy sites was extremely unpopular and insufficient
provision was made. Such provision was also expensive – public sites were funded
by Government grant. Most areas did not achieve designation despite the fact that
the duty existed for 26 years.
8. The Criminal Justice and Public Order Act 1994 abolished the statutory duty to
provide sites and enacted a series of provisions to enable the removal of caravans
from highway land and land on which caravans were trespassing. These replaced
the enforcement powers under the 1968 Act.
9. The 1960 Act remains. The 1994 Act moved the definition of gypsies from the 1968
Act to the 1960 Act.
10. The 1994 Act did not deal with how sites were to be provided for gypsies. This was
done in a planning circular, C1/1994. This essentially said that the market would
provide – gypsies would be expected to buy their own land and get planning
permission, just like everyone else.
11. In one sentence the Circular said that local planning authorities should carry out a
quantitative assessment of the need for gypsy pitches in their district. In another
sentence it said that local planning authorities should make adequate provision in
development plans through the appropriate use of locational and/or criteria based
policies. „Where ever possible‟ locations should be identified. Criteria should be
„clear and realistic‟.
12. „Locational policies‟ meant allocations.
13. An amazingly large number of authorities found that it was not possible to make
allocations, including Wokingham.
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14. About the same number of authorities (ie nearly all, including Wokingham) also
missed the sentence requiring quantitative assessments.
C1/2006 establishes a plan-making regime designed to ensure that local planning
authorities will allocate enough land to meet the assessed need in the district
15. This is the main point about C1/2006. The system is (i) GTAA; (ii) consideration at
regional level, leading to the imposition of a pitch requirement on each district; (iii) an
obligation to make sufficient number of allocations in a DPD.
16. There is nothing about „where ever possible‟. The Circular makes it clear that a DPD
will not be sound if it does not have an adequate number of allocations.
C1/2006 gives clear instructions on the policy approach that should be applied when
considering whether sites are acceptable for use as a gypsy site
17. For the purpose of deciding what land to allocate and for dealing with „windfall‟ sites,
the Circular provides guidance as to policy criteria which ought to be applied (or more
precisely which cannot be applied).
18. You will notice that the Circular adopts a rather touchy tone re „criteria based policies‟
– there is no choice but to have them for the above two purposes but they cannot be
used in substitution for allocations.
19. Countryside locations that are not subject to special planning constraints are in
principle acceptable for gypsy sites (paragraph 54); you cannot have criteria which
say that planning permission should be refused if a site involves encroachment into
open countryside (annex C)
20. Sustainability is reduced to nothingness – C1/2006 effectively says that the very fact
of providing a site with planning permission is a sustainability benefit (paragraph 64).
Authorities have to be realistic about the availability of alternatives to the private car
(paragraph 54).
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21. Local authorities are warned off highways objections – they should not refuse
planning permission if the site will cause only modest additional traffic and or if the
impact on minor roads will not be significant (paragraph 66).
22. Green Belt – the draft Circular had said that authorities should not have criteria which
ban gypsy sites in the Green Belt because it is always possible that very special
circumstances may be shown. That does not appear in the Circular, which follows
the conventional line – gypsy sites are inappropriate development; criteria based
policies should not depart from PPGs; if there is to be a gypsy site in the Green Belt,
the land must first be taken out of the Green Belt through the DPD process
(paragraph 51).
23. Flooding – government policy on flooding has always been quite unequivocal –
C1/2006 says that gypsy sites should not be located in areas of high risk of flooding,
given the particular vulnerability of caravans (paragraph 64 (e)).
C1/2006 has important guidance on the grant of temporary planning permissions in
the period before allocations are made
24. There is nothing to stop a DM granting a permanent planning permission. This is
what Inspectors have done in the two cases you have had since C1/2006. Normally
a DM only considers temporary planning permission if he considers that permanent
planning permission is not appropriate. As to this see paragraphs 45 and 46.
25. Preconditions for temporary planning permission –
a. unmet need [almost always]
b. no available alternative [almost always]
c. reasonable expectation that new sites are likely to become available at the
end of the period suggested for the temporary planning permission
[paragraph 46 gives an example – local planning authority is preparing
allocations DPD (which ought to be happening in all cases)]
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26. In such cases the DM must give substantial weight to the unmet need; also the grant
of temporary planning permission should not set a precedent.
27. If the pre-conditions are met, the only basis for not granting temporary planning
permission will be that site is exceptionally harmful – ie the harm cannot be tolerated
even for a temporary period.
Difficulty in enforcement
28. In theory these paragraphs apply whether or not land is already occupied by gypsies.
However it very often is.
29. Paragraph 12(i) says that one of the aims of the Circular is to prevent gypsies
becoming homeless through eviction with no alternative site to go to.
30. So if you have the typical situation of gypsies on land and the 3 preconditions
satisfied, both 12(i) and 45/46 are telling you to grant temporary planning permission
– ie to allow the gypsies to remain where they are. If temporary planning permission
is appropriate, any enforcement notice will be quashed.
Any stop notice will be
challenged. An eviction injunction will not be granted.
31. The only way you can retrieve effective enforcement powers is to get yourselves out
of the situation in which paragraphs 45 and 46 apply – ie make the allocations DPD.
We are heading back to something like designation.
Reasonable expectation that sites will come forward
32. This has caused difficulty.
33. Usually the reason why there is no reasonable expectation is because the local
planning authority is not getting on with the allocations DPD.
34. In some cases Inspectors have taken a logical approach and said that, in such a
situation, temporary planning permission cannot be granted.
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In a number of
challenges it has been said that this reasoning is acceptable – despite the fact that
the local planning authority is at fault (Isaacs v Secretary of State [2009] EWHC 557,
Peters v Secretary of State). On the other hand, a local planning authority cannot
complain if an Inspector has not considered granting a temporary planning
permission (as opposed to a permanent planning permission), because there is no
such reasonable expectation (S Staffs DC v Secretary of State [2008] EWHC 3362).
The pitch requirement
35. Although the theory is simple, most authorities do not have a definitive pitch
requirement – SW has not finished; SE has not finished; E has finished but is being
challenged; WM has barely started.
36. I have not come across an adopted allocations DPD; indeed I have not actually come
across the unequivocal identification of any land.
37. The Circular only talks of meeting the pitch requirement by allocating land. But the
actual grant of planning permission for pitches must also count. Many authorities will
meet what is likely to be their pitch requirement by actual grants of planning
permission.
38. Quite alot of new pitches are now being granted on appeal. I have also noticed that
some authorities are well disposed towards making existing temporary planning
permission permanent and permitting extensions to existing sites. These are the
easy options. You aren‟t going to be upsetting a new Parish Council with either of
these. With temporary planning permission made permanent you are helping those
who already have a site. With extensions you will be helping those on the original
site who need more space. Neither helps the gypsy with no site.
Sites „available‟
39. Paragraphs 45 and 46 talk of new sites becoming „available‟. Merely preparing an
allocation DPD will not make anything available. Paragraph 33 says you should only
allocate land which has a „realistic likelihood‟ of becoming available – indeed the
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DPD must explain how the land will be made available. A site is only available in any
meaningful sense if planning permission is granted and implemented.
40. How many landowners will be willing to sell land for use as a gypsy caravan site?
41. The Circular clearly contemplates that Councils will allocate their own land or make
CPOs (paragraph 35). Then what? Are they supposed to sell such land to gypsies?
Or are they supposed to run public sites?
C1/2006 widens the definition of gypsies and travellers
42. There are 3 definitions –
a. The Circular - defines „gypsies and travellers‟. This is the definition that you
use for development control purposes.
b. S24 of 1960 Act – only defines „gypsies‟ and is narrower than the Circular. It
is only relevant if you want to exercise the power to provide a site.
c. Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and
Travellers) (England) Regulations 2006 “(a) persons with a cultural tradition of nomadism or of living
in a caravan; and
(b) all other persons of a nomadic habit of life, whatever their
race or origin, including –
such persons who, on the 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; and
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members of an organised group of travelling show
people or circus people (whether or not travelling
together as such).”
This is the definition that is used for the GTAA. See McCann v Secretary of
State [2009] EWHC 917.
Nomadic habit of life
43. The Circular definition (see paragraph 15) has four elements, but everything turns on
„nomadic habit of life‟.
44. There has been quite a lot of caselaw. I will summarise.
Actual travelling [or retirement from actual travelling]
45. There must be an element of actual travelling.
46. It must be a „substantial proportion of year‟ (Burton J in Clarke v Secretary of State
[2001] EWHC 800 and [2002] EWCA Civ 819).
2 months a year is sufficient
(Maidstone DC v Secretary of State).
47. The existence of a settled base is not fatal (Wrexham CBC v NAW [2004] JPL 65).
48. The travelling must be for the purpose of earning a living (R v S Hams DC ex p Gibb
[1994] 4 AER 1012, Massey v Secretary of State [2008] EWHC 3353). Travelling for
pleasure is not sufficient (Massey - NATs).
49. Travelling in a group is not essential (Maidstone).
50. Temporary cessation is not fatal (Wrexham).
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Cultural identity as a gypsy/customary habit of nomadism
51. Clarke, decided in 2001/2, says that there is a requirement for „cultural identity as a
gypsy‟.
This was before C1/2006 and the addition of „travellers‟.
Massey
(considering NATs) says that it is not necessary for the claimant to be following a
traditional way of life „the habit of life was a manner of living so established as to have become
customary. [The Inspector] took the view that the definition did not exclude
those who were not following a traditional way of life and thus ... could cover
new travellers ...‟ (24).
52. The reason the NATs in Massey were not gypsies or travellers was that the travelling
was not for an economic purpose.
Aversion to bricks and mortar – but does it have to be cultural?
53. There must be aversion to bricks and mortar – if there is no aversion the decision
maker is entitled to say that bricks and mortar would be adequate accommodation. I
would say that this should be the critical element, although you could be forgiven for
thinking that it was not a requirement at all.
54. See Clarke v SSE, where it was held that, to hold against a gypsy in the planning
balance the fact that she had been offered, but had refused, conventional housing,
could be contrary to his A8 and A14 rights. Burton J said that where this issue arose
the Inspector had to make a specific finding about whether the gypsy in fact had a
cultural aversion to conventional housing, the onus being on the gypsy to prove this.
55. Burton J held that, for the purpose of assessing the relevance of an offer of
conventional housing, the appellant had to satisfy the Inspector that „he and/or his family do indeed subscribe to the relevant tenet or feature of
gypsy life in question here, namely that he or she genuinely has, and abides
by, a proscription of, and/or an aversion to, conventional housing: to bricks
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and mortar. Many gypsies, certainly many Romanies … do not and are not
prepared to live in bricks and mortar, but many, perhaps even many
Romanies, may well do or are prepared to do so and and each particular
person or family must establish the position to the satisfaction of the
Inspector’ (paragraph 33).
56. The decision letter was quashed because it was unclear what conclusion the
Inspector had reached on this. A new decision was needed in which the Inspector
would have to decide „afresh on the issue of gypsy status, then on the question of
conventional housing, and whether reference to its availability would, on the facts, be
a breach of Articles 8 and 14 …‟ (paragraph 44).
57. Supporting indications - actually living in a caravan; actual travelling; cultural identity
as a gypsy.
58. The Court of Appeal dismissed an appeal by the local planning authority and
essentially approved Burton J‟s reasoning.
„What the judge seems… to be … rightly directing the Inspector to is a careful
examination of the objections of the Clarke family to living in conventional
housing in order to determine the extent to which A8 is truly engaged, and the
nature of the engagement by the combination of their gypsy status and their
opposition to conventional housing.‟ (paragraph 15)
59. The Court of Appeal said the aversion must be cultural, not personal (paragraph 6).
Massey seems to accept that NATs can be gypsies. However the nature of aversion
to bricks and mortar was not expressly considered there – Collins J merely records
that the group „for various reasons has not wished to have a permanent base in the
sense of somewhere to live with bricks and mortar ...‟ (paragraph 3).
60. Note definition in the draft Circular: „persons who have a traditional cultural
preference for living in caravans and who either pursue a nomadic habit of life or
have pursued such a habit but have ceased ...‟. You might think that this would have
been a more helpful definition, although it would be hard to apply to NATs.
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Proof of gypsy status
61. The exceptions to the requirement for nomadism mean that you do not need to look
for a present habit of travelling in many cases, although you need to establish that it
existed in the past.
62. You are entitled to be satisfied that a claimant is a gypsy.
Inspectors certainly
investigate this in cases of doubt. They used to send out a letter to appellants stating
that details of travelling over the last 5 years should be given in the evidence. They
occasionally find that a claimant is not a gypsy.
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Personal circumstances, human rights and discrimination
The A8 right and personal circumstances distinguished
63. The gypsy‟s caravan is his home. Interfering with his enjoyment of his caravan
involves interference with his A8 right. It does not matter that a present site does not
have planning permission and that the stationing of the caravan there is therefore
unlawful (Buckley v UK). Indeed the gypsy‟s A8 rights are engaged even if he is not
actually on the site (eg is waiting in a layby – see Rafferty v Secretary of State Court
of Appeal 29.7.09).
64. Making an enforcement notice or refusing planning permission involves an
interference if a particular gypsy is involved and he has no alternative site to go to.
Human rights will not be in issue where no particular gypsy is identified or the gypsy
is already on a lawful site. If there is a lawful and suitable alternative for the gypsy
there may be an interference, but it will not be serious.
65. The A8 right is qualified. An interference is acceptable (ie not a violation) if it falls
within A8(2) and is proportionate.
The protection of the environment and the
upholding of planning policy (eg in the Green Belt) are aspects of the „rights and
freedoms of others‟.
On the other hand the strength of such justification is
undermined if the local planning authority has itself failed to comply with planning
policy on the provision of gypsy sites (Chichester DC v Secretary of State [2005] 1
WLR 279).
66. A8 is engaged simply by reason of the interference with the home.
67. Personal circumstances are relevant if the consequence of a refusal of planning
permission etc will be homelessness. Homelessness will involve additional hardship
if the gypsy is ill/pregnant/has children etc.
The need to consider personal
circumstances arises from the obligations of common humanity which apply
whenever any public function is discharged and was first articulated in R v Wealden
DC ex p Stratford (supra), which did not concern human rights at all.
Hardship
caused by the making of an enforcement notice/refusal of planning permission is a
material consideration of the ordinary kind.
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Role in planning decisions
68. Interference with human rights and the avoidance of hardship are relevant as
reasons why planning permission should be granted. They are normally in issue in
cases where there are countervailing reasons why planning permission should be
refused.
But if a site is in ordinary countryside and there are no site specific
objections (visual, highways) development as a gypsy site ought to be acceptable –
meaning that there is no need for any balancing.
69. Where human rights and personal circumstances are in issue you have to ascertain
what the particular circumstances are. The best practice is an interview utilising a
pro forma questionnaire.
70. A8 and hardship are purely personal considerations – ie are particular to an
individual. A group cannot have a collective A8 right. If you are dealing with a group
of gypsies, A8/hardship considerations could lead to you treating different gypsies
differently.
71. If human rights and personal circumstances contribute towards a decision to grant
planning permission, the permission ought to be personal.
Race equality duty
72. English Romanies and Irish Travellers are (separate) racial groups for the purposes
of the RRA. It is quite possible to fall within the Circular definition and not be a
member of either of these racial groups.
73. See s71 RRA 1976 as amended “Every body or other person specified in Schedule 1A [which includes
local authorities] … shall, in carrying out its functions, have due
regard to the need –
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to eliminate unlawful racial discrimination; and
to promote equality of opportunity and good relations between
persons of different racial groups.”
74. Note also the rather unhelpful guidance in paragraphs 71 and 72 of C1/2006.
75. You should have a Race Equality Scheme which should address enforcement action
taken against vulnerable racial groups.
76. This duty is relevant to planning decisions, especially enforcement decisions. If you
breach the duty in a decision to serve a stop notice or to take direct action, your
decision could be challenged. See however R (Smith) v South Norfolk DC [2006]
EWHC 2772 and Baker v Secretary of State [2008] EWCA 141: a proper planning
decision which applies C1/2006 correctly will take into account the particular
vulnerability of (racial) gypsies and so will have due regard to the relevant objectives.
The RED does not require that a local planning authority should desist from
enforcement action in a situation where no alternative sites are available (McCarthy v
Basildon). Inspector‟s decisions which do not even mention the RED have been
upheld (Holland v Secretary of State [2009] EWHC 2161).
This seminar paper is made available for educational purposes only. The views expressed in it are
those of the author. The contents of this paper do not constitute legal advice and should not be relied
on as such advice. The author and Landmark Chambers accept no responsibility for the continuing
accuracy of the contents.
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