Planning law - Hopes rise as crucial ‘gypsy status’ court challenge is heard

Hopes have risen after legal challenge to a planning law that ‘abuses the human rights of Gypsies and Travellers’ was heard in front of three Lord Justices at the Court of Appeal in London, last week.

The court decision, which is expected to be handed down at some point in the next few weeks, could determine that the government’s planning definition of Gypsies and Travellers (known as ‘gypsy status’) is unlawful.

Legal sources close to the case, told the Travellers’ Times that they hoped that the Court of Appeal would conclude that the definition change was not reasonably and objectively justified and declare that it discriminates against elderly and disabled Gypsies and Travellers.

Campaigners say that the planning definition, which was changed to its current form in 2015, now discriminates against elderly and disabled Gypsies and Travellers because to get ‘gypsy status’ you have to prove that you are able to continue to travel to look for work. No exception to that rule is given if you are disabled and/or elderly.

The legal challenge to the government was lodged by Lisa Smith, a Romany woman in North West Leicestershire, against the government might bring a change in the definition, and win an important victory in the fight for sites, say campaigners.

Lisa Smith’s family was refused planning permission on a private site because they did not meet the planning definition, as members of the family with severe disabilities could not travel for work. The decision has a damaging effect on their ability to care for the most vulnerable family members and to continue living their traditional way of life together.  Lisa Smith’s challenge to the government was originally unsuccessful in the High Court in 2020, but her legal team successfully fought for the right to appeal to a higher court, the Court of Appeal. If Lisa Smith wins her legal challenge, it could help tens of thousands of other Gypsies and Travellers who live on, or want to live on, a public or private Traveller site.

Lisa Smith was represented by Marc Willers QC. The government was represented by Tim Mould QC.

Addressing the court, Mark Willers QC said: “Those ethnic Gypsies and Travellers who are currently living on a site, with planning permission, with, as is ordinarily the case, a condition that they comply with the definition of what it means to be a Gypsy or Traveller will be, and indeed have been since 2015, be in jeopardy of being the subject of enforcement action for non-compliance with that condition, which could lead to their ultimate eviction.

Lord Justice Coulson, interjecting, said: “Speaking for myself Mr Willers, when I looked at the papers, this was one of the points that slightly jumps out at you. One morning you could be on a site lawfully and the following morning you are there unlawfully and doubtless Mr Mould (for the Government) will take us to the justification for that, but on the face of it that’s taking away an accrued right, which in public law generally is not usually done.”

Marc Willer QC agreed: “Indeed. And all the more so when one is talking about (…) taking away the established lawful home of someone who is a member of what our society accepts is a vulnerable community, with there being no option (…) than for that family to either move onto the roadside and possibly suffer the deprivations for doing so (..) or move into conventional housing and give up their traditional way of life.”

Friends, Families and Travellers, London Gypsies and Travellers, Southwark Travellers Action Group and Derbyshire Gypsy Liaison Group are joining the challenge together as “interveners”, bringing evidence of the discriminatory effects of the government’s definition on the wider community.

Mena Mongan, for London Gypsies and Travellers, said: “Our human rights are being abused right now, so let’s hope that Lisa can win this court case next month and have the definition changed back. London Gypsies and Travellers are supporting Lisa Smith all the way. Go Lisa, we are here behind you.”

When the ‘gypsy status planning definition was changed in 2015 it sparked off protests and demonstrations by Gypsies and Travellers who correctly predicted that the change would eventually be challenged in the High Courts.

Further reading:

New challenge to government planning rules » London Gypsies and Travellers

Lisa Smith says the Government need to think again about ‘gypsy status’ | Travellers Times

The definition of Gypsy and Traveller - The Community Law Partnership

Mike Doherty/TT News

(Lead photograph: A Traveller child at a demonstration for more sites in London, 2016 (c) Natasha Quarmby)