Lisa Smith v Secretary of State for Levelling Up, Housing & Communities & Anor. [2022] EWCA Civ 1391

The Court of Appeal found the UK government's definition of "Gypsies and Travellers" in Planning policy for Roma and Traveller sites to be unlawfully discriminatory, after Romani Gypsy Ms Smith was refused planning permission for a permanent site by the local planning authority.

Facts

The UK government’s definition of Gypsies and Travellers in relation to how planning permission and need for sites should be determined was originally worded as: 

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 or permanently, but excluding members of an organised group of travelling showpeople or circus people travelling together as such. 

In 2015, the words ‘or permanently’ were removed from the definition, meaning that Gypsies or Travellers who were unwell or elderly and could no longer travel permanently were no longer included in the definition and could no longer able to depend on these policies when seeking planning permission for a caravan site. 

Ms Smith, a Romani Gypsy, was refused planning permission for a permanent site by the local planning authority. The Planning Inspector also dismissed Ms Smith's appeal to the Secretary of State, who agreed that she did not meet the PPTS definition of a “Gypsy and Traveller.” Ms Smith claimed that the PPTS definition was unlawfully discriminatory and applied for a statutory review, which was dismissed by Pepperall J in the High Court as she did not meet the ab ante test. 

Issues

The issues that the Court of Appeal considered were: 

1. Whether Pepperall J was right to apply the test for ab ante challenges set out in Christian Institute v Lord Advocate 
2. Whether Ms Smith could rely on race discrimination because it had not been pleaded 
3. Whether the PPTS definition was in pursuit of a legitimate aim and whether the definition was proportionate. 

Reasoning 

1. Ab Ante test 

The Court determined that the ab ante test was not applicable as Ms. Smith was directly impacted by the policy definition and she was not raising a hypothetical argument. The Court of Appeal found that the burden was on the Secretary of State to justify the discriminatory policy definition as he had admitted it was discriminatory. 

2. Race discrimination 

The Court held that Ms Smith could rely on race discrimination because Romani Gypsies are members of an ethnic group, and that Pepperall J had been mistaken to find otherwise. Race had been an ‘inherent element of this case from the outset’ [para 62]. 

3. Legitimate aim and proportionality 

The Judge also erred in his findings with respect to the legitimate aim of PPTS, focusing too much on the aim of PPTS as a whole rather than the aim of the definition.  

The Court found that the Secretary of State had not shown that fairness was the aim of the definition, and the equality objectives set out in the Public Sector Equality Duty (“PSED”) analysis were not met. Additionally, the Secretary of State was not entitled to have regard to the perception that the planning regime was unduly advantageous to Gypsies and Travellers, as the evidence highlighted the difficulties they face when making applications for planning permission.  

Finally, the Judge erred in applying the wrong test with respect to proportionality by asking whether the planning system “taken as a whole is capable of being operated” in an appropriate way. The correct test is how the planning system operated in practice. 

The Court found that the change of the definition was not proportionate as it could separate family members from each other, was most likely to affect the elderly, the disabled and potentially women, and would lead to a risk of an increase in homelessness and unauthorised camping. 

The Court of Appeal allowed Ms Smith's appeal on all four grounds and held that the PPTS definition was not justified. The policy definition was found to not be in pursuit of a legitimate aim, and it reduced the number of Gypsies and Travellers who can obtain permanent or temporary planning permission.

Conclusion

The Court of Appeal has found that the Government's planning definition of “Gypsies and Travellers” in Planning Policy for Traveller sites (“PPTS”) was unlawfully discriminatory. The decision meant that the refusal to grant planning permission for a permanent site to Ms Smith, which applied the PPTS definition, was quashed. 

Note: The previous definition of ‘Gypsies and Travellers’ was reinstated by the government in a revised version of the PPTS in December 2023.