Defining Travellers out of existence

• Government changes definition of Gypsy and Traveller in planning law
• Those who have stopped travelling because of ill health or old age no longer classed as Gypsies or Travellers
• Traveller sites in the Green Belt classed as "inappropriate development", regardless of need

THE long-awaited and dreaded changes to Planning policy for traveller sites (PPTS)[1] were introduced by the Government on the August Bank Holiday Monday and come into force immediately. Most controversially if a Gypsy or Traveller stops travelling permanently for health reasons or reasons of old age, they will no longer fall within the planning definition of Gypsy and Traveller! Other changes will make it much more difficult for Gypsies and Travellers to obtain planning permission for sites.

We believe that some of the Government’s changes discriminate against Romani Gypsies and Irish Travellers and may also breach their human rights  and that they may be ripe for challenge by way of judicial review. However, procedural rules require that any such challenge must be brought within 6 weeks of the policy being issued and so those who may be affected should take urgent advice.

The key planning policy changes  

In this blog we will highlight the major changes which will adversely affect Gypsies and Travellers and wherever possible, briefly explain how we consider they might be challenged. 

The new version of PPTS came into force on 31st August 2015 and replaces the previous version. It should be read in conjunction with the National Planning Policy Framework (NPPF).

The change to the planning definition of ‘gypsies and travellers’

We start with the ill-conceived and, in our view, cruel and inhumane  changes to the planning definition of “gypsies and travellers” and “travelling showpeople”.

In the Annexe to the new PPTS the Government explains that any reference in the policy to -

“gypsies and travellers” means:

“Persons of nomadic habit of life whatever their race or origin, including such

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,

but excluding members of an organised group of travelling showpeople or

circus people travelling together as such”;

and to  “travelling showpeople” means:

“Members of a group organised for the purposes of holding fairs, circuses or

shows (whether or not travelling together as such). This includes such

persons who on the grounds of their own or their family’s or dependants’

more localised pattern of trading, educational or health needs or old age have

ceased to travel temporarily, but excludes Gypsies and Travellers as defined

above.”

By replacing the word "permanently" with "temporarily", it follows that Gypsies, Travellers and Travelling Showpeople who have stopped travelling permanently for example, because of ill-health or old age, will no longer be able to seek planning permission for a caravan site to meet their accommodation needs and that the changes to the planning definition will have a very damaging effect upon the most vulnerable members of the Gypsy and Traveller communities.

In our view it is vital that people who could be affected by these changes take steps to challenge the Government’s new definition in the courts on grounds that it is discriminatory and breaches their rights to respect for their family life, their homes and their traditional way of life, an integral part of which involves living in caravans, rights protected by Article 8 of the European Convention on Human Rights.

Planning permission for sites in the Green Belt and countryside

The Government has also brought in a number of new policies (highlighted in bold below) which are clearly designed to make it more difficult for Gypsies and Travellers to be able to obtain planning permission in the Green Belt, other designated areas and the open countryside.

“16. Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development. Subject to the best interests of the child, personal circumstances and unmet need are unlikely to clearly outweigh harm to the Green Belt and any other harm so as to establish very special circumstances.”

“25. Local planning authorities should very strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan.”

“27. If a local planning authority cannot demonstrate an up–to-date 5 year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission. The exception is where the proposal is on land designated as Green Belt; sites protected under the Birds and Habitats Directives and / or sites designated as Sites of Special Scientific Interest; Local Green Space, an Area of Outstanding Natural Beauty, or within a National Park (or the Broads)”.

The fact is that most Gypsies and Travellers cannot afford to buy land within development boundaries and that many have lived and worked for generations in areas such as the South East where the only available and affordable land is located within the Green Belt, otherwise designated areas or the open countryside. That being so, there is a real risk that these policies will force Gypsies and Travellers to make the stark choice between moving away from areas in which their families have lived for generations or giving up their traditional way of life.

We consider that the new policies may well be challenged successfully by Gypsies and Travellers who seek planning permission for sites in the Green Belt or other designated areas on grounds that they constitute a disproportionate interference with their Article 8 rights, in circumstances where they can show that: they have strong local family ties and/or personal reasons for living in the area; they have no other option but to develop land which has been designated.

Nor is there any need to provide sites for people on large-scale unauthorised sites:

“12. In exceptional cases, where a local planning authority is burdened by large-scale unauthorised site that has significantly increased their need, and their area is subject to strict and special planning constraints, then there is no assumption that the local planning authority is required to plan to meet their traveller site needs in full.”

This is a wholly new policy and one which the Government has introduced in reaction to the situation at Dale Farm in Basildon. We see no rational basis for the introduction of this policy. Firstly, it should be noted that large-scale developments are very uncommon. Secondly, the very presence of such a development is likely to indicate that local authorities in the area have failed in the past to make adequate site provision. Thirdly, if the accommodation needs of Gypsies and Travellers on such sites are not to be met in the locality, where will they be addressed?

Given those points it seems to us that this policy could be challenged by Gypsies and Travellers living on such sites on the basis that it is perverse and/or disproportionate because it will mean that their needs for a lawful site will not be met.

Lies, damned lies and statistics

The Government claim that one of the key aims of their new PPTS is:

“[4(e)] to promote more private traveller site provision while recognising that there will always be those travellers who cannot provide their own sites.

As our readers will appreciate the policy changes will have the very opposite effect on site provision, particularly for those who are elderly and infirm!  In their press release on August 31st accompanying the new PPTS[2] the Department for Communities and Local Government (DCLG) state:

Between 2000 and 2009 there was a four-fold increase in the numbers of caravans on unauthorised sites – creating tensions between travellers and the settled populations.

These are, of course, out of date statistics that are being used to justify the policy changes. If one takes the English Traveller Caravan Count over the last three years the numbers of unauthorised encampments and unauthorised developments are as follows:

January 2013 1455

January 2014 1354

January 2015 1283

So one sees that, in reality in recent years the figures have been going down!

Revocation of guidance on managing unauthorised camping

In addition to the planning policy changes, the Government also announced that it is withdrawing a key piece of guidance relating to the management of unauthorised encampments, namely the Office of the Deputy Prime Minister /Home Office Guide to effective use of enforcement powers – Part 1: Unauthorised  encampments (2006).

There was no consultation before the 2006 guidance was revoked and it does not seem that the Government carried out an equality impact assessment before deciding to do so.

The fact is that the 2006 guidance provided local authorities with valuable advice on how to manage unauthorised encampments in a humane way, for example, by stressing the need for welfare enquiries, advising on the type of locations that may be considered appropriate stopping places and many other vital issues. Combined with other guidance still in force[3], it has led to a radical change in practice on the ground by local authorities in England and its revocation is likely to make it even more difficult for those Gypsies and Travellers without a lawful site to continue living in their caravans, at the very same time as the Government is making it harder for them to obtain planning permission for lawful sites.

Though any judicial review challenge to the repeal of this guidance will have a three month time limit, it should be noted that challenges should still be brought ‘promptly’.

Conclusion

Faced with relentless enforcement action taken against unauthorised encampments many Gypsies and Travellers will decide that it is no longer possible to continue travelling and will seek planning permission for a site. Yet in order to stand some chance of getting planning permission they will have to show that are still travelling! It’s a classic vicious circle of the Government’s own making!

The position of those Gypsies, Travellers and Travelling Showpeople who are too old or too ill to continue travelling is even more problematic. They will no longer fall within the planning definition of “gypsies and travellers” and “travelling showpeople” and will stand no real chance of obtaining planning permission for a caravan site despite the fact that they may be in greater need of a site than younger and more mobile members of their respective communities!

We believe that these policy changes may be challengeable on grounds that they are discriminatory and violate the rights of Gypsies, Travellers and Travelling Showpeople which are protected by Article 8 of the European Convention on Human Rights. We hope that those people most affected will take action to force the Government to reverse these policy changes and that this blog will encourage them to do so.

Chris Johnson (chrisjohnson@communitylawpartnership.co.uk) is the team leader of the Travellers Advice Team (TAT) at Community Law Partnership (CLP).

TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm. CLP’s website is at http://www.communitylawpartnership.co.uk/

TAT are very interested in hearing from Gypsies and Travellers affected by any of these changes as mentioned in this blog.

Dr Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work. Simon can be contacted at simon@rustonplanning.co.uk or on 07967 308752/0117 325 0350

Marc Willers QC (marcw@gclaw.co.uk) specialises in representing Gypsies and Travellers and is a member of Garden Court Chambers’ Romani Gypsy and Traveller Team. Its website is at www.gardencourtchambers.co.uk

Notes

[1] Note that the Government persists in using the lower case when referring to Gypsies and Travellers, despite the fact that Romani Gypsies and Irish Travellers are recognised ethnic minority groups. Where we quote from Government policy in this blog we will do the same but otherwise we will use the upper case.

[2] See https://www.gov.uk/government/news/new-rules-will-offer-stronger-protection-against-unauthorised-occupation.

[3] Department of the Environment Circular 18/94 Gypsy Sites Policy and Unauthorised Camping and Office of the Deputy Prime Minister Guidance on Managing Unauthorised Camping (2004).