New Planning Policy on Site Provision for Gypsies, Travellers and Travelling Showpeople

From Garden Court Chambers Blog

On 25 March 2012 the government issued its new planning policy on the provision of caravan sites for Gypsies and Travellers: Planning policy for traveller sites (‘PPFTS’). The policy document replaces both Circular 1/2006 Planning for Gypsy and Traveller Caravan Sites and Circular 04/2007 Planning for Travelling Showpeople and should be read in conjunction with the government’s National Planning Policy Framework (‘NPPF’) which was published on 27 March 2012. Both policy documents came into force on that date.

I hope that this summary of the key policies that are found in PPFTS will assist Gypsies, Travellers and Travelling Showpeople and those representing their interests.

Before embarking on the summary I should register my disappointment that the government has decided to use the lower case when referring to Gypsies and Travellers in PPFTS – notwithstanding the fact that the majority of those to which the policy relates are members of recognised ethnic minorities. In the circumstances, I assume no-one will object to my using the lower case when referring to the government!
The demise of regional planning and targets

When the government came into power it indicated that it was keen to abolish top-down targets set by central and regional government, including those relating to the provision of sites for Gypsies and Travellers and that it would give local planning authorities (‘LPAs’) the power to govern their own affairs. Those representing Gypsies and Travellers remember the days when LPAs were left to their own devices and took little or no steps to meet the accommodation needs of Gypsies and Travellers and expressed concern that the LPAs will simply revert to type if left to their own devices.

That concern fell on deaf ears and in 2011 the Localism Act was passed, giving the government the power to revoke Regional Strategies and the targets set within them for site provision for Gypsies and Travellers to be met by LPAs. PPFTS has been drafted on the basis that LPAs will, in future, make their own assessment of the accommodation needs of Gypsies and Travellers.
First principles

PPFTS begins by stating that it should be read in conjunction with the NPPF and by reminding us that applications for planning permission should be determined in accordance with the development plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004. It also states that the new policy must be taken into account as a material consideration by LPAs when preparing their development plans and making planning decisions.
The government’s aims

Paragraph 3 of PPFTS indicates that the government’s ‘overarching aim is to ensure fair and equal treatment for travellers, in a way that facilitates the traditional and nomadic way of life of travellers while respecting the interests of the settled community.’

Paragraph 4 of PPFTS explains that the government’s

‘… aims in respect of traveller sites are:

that [LPAs] should make their own assessment of need for the purposes of planning
to ensure that [LPAs], working collaboratively, develop fair and effective strategies to meet need through the identification of land for sites
to encourage [LPAs] to plan for sites over a reasonable timescale
that plan-making and decision-taking should protect the Green Belt from inappropriate development
to promote more private traveller site provision while recognising that there will always be those travellers who cannot provide their own sites
that plan-making and decision-taking should aim to reduce the number of unauthorised developments and encampments and make enforcement more effective
for [LPAs] to ensure that their Local Plan includes fair, realistic and inclusive policies
to increase the number of traveller sites in appropriate locations with planning permission, to address under provision and maintain an appropriate level of supply
to reduce tensions between settled and traveller communities in plan-making and planning decisions
to enable provision of suitable accommodation from which travellers can access education, health welfare and employment infrastructure
for [LPAs] to have due regard to the protection of local amenity and local environment.’

The assessment of need

Paragraph 6 of PPFTS details how LPAs should go about compiling an evidence base to support their approach to site provision:

‘In assembling the evidence base necessary to support their planning approach [LPAs] should:

(a) pay particular attention to early and effective community engagement with both settled and traveller communities (including discussing travellers’ accommodation needs with travellers themselves, their representative bodies and local support groups)

(b) co-operate with travellers, their representative bodies and local support groups, other local authorities and relevant interest groups to prepare and maintain an up-to-date understanding of the likely permanent and transit accommodation needs of their areas over the lifespan of their development plan working collaboratively with neighbouring local planning authorities

(c) use a robust evidence base to establish accommodation needs to inform the preparation of local plans and make planning decisions.’
Plan-making

Paragraph 7 of PPFTS states that Local Plans must be prepared with the objective of contributing to the achievement of sustainable development and reminds LPAs that they should be consistent with the policies of the NPPF (including the presumption in favour of sustainable development).

Paragraph 8 of PPFTS states that LPAs should set pitch targets for Gypsies and Travellers and plot targets for Travelling Showpeople which address the likely permanent and transit site accommodation needs of Travellers in their area, working collaboratively with neighbouring LPAs.

Paragraph 9 of PPFTS states that when LPAs produce their Local Plans they should:

‘a) identify and update annually, a supply of specific deliverable sites sufficient to provide five years’ worth of sites against their locally set targets

b) identify a supply of specific developable sites or broad locations for growth, for years six to ten and, where possible, for years 11-15

c) consider production of joint development plans that set targets on a cross-authority basis, to provide more flexibility in identifying sites, particularly if a [LPA] has special or strict planning constraints across its area ([LPAs] have a duty to cooperate on planning issues that cross administrative boundaries)

d) relate the number of pitches or plots to the circumstances of the specific size and location of the site and the surrounding population’s size and density

e) protect local amenity and environment.’

In addition paragraph 10 states that LPAs should set criteria to guide land supply allocations where there is an identified need. Where there is no identified need, criteria-based policies ‘which are fair and should facilitate the traditional and nomadic life of travellers while respecting the interests of the settled community’ should still be provided as a basis for decisions where applications nevertheless come forward for Gypsy and Traveller sites.
Sustainability

As in Circular 1/2006, PPFTS makes it clear that LPAs should ensure that sites are sustainable economically, socially and environmentally. Thus paragraph 11 states that LPAs should ensure that their policies:

‘a) promote peaceful and integrated co-existence between the site and the local community

b) promote, in collaboration with commissioners of health services, access to appropriate health services

c) ensure that children can attend school on a regular basis

d) provide a settled base that reduces the need for long-distance travelling and possible environmental damage caused by unauthorised encampment

e) provide for proper consideration of the effect of local environmental quality (such as noise and air quality) on the health and well-being of any travellers that may locate there or on others as a result of new development

f) avoid placing undue pressure on local infrastructure and services

g) do not locate sites in areas at high risk of flooding, including functional floodplains, given the particular vulnerability of caravans [see the Technical Guidance to the National Planning Policy Framework]

h) reflect the extent to which traditional lifestyles (whereby some travellers live and work from the same location thereby omitting many travel to work journeys) can contribute to sustainability.’
Sites in rural areas and the countryside

Paragraph 54 of Circular 1/2006 stated that sites in ‘rural settings, where not subject to special planning constraints, are acceptable in principle’. That policy was very realistic, given the fact that sites are unlikely to be located in urban settings due to the cost of land within settlements, the competition for such land and the likely conflict that a proposed site for Gypsies, Travellers or Travelling Showpeople would cause to policies designed to ensure that such land is used to its capacity.

Though its authors seem to have recognised that sites may well be found in rural settings, PPFTS does not expressly state that such sites are acceptable in principle. Paragraph 12 of PPFTS states that:

‘When assessing the suitability of sites in rural or semi-rural settings, [LPAs] should ensure that the scale of such sites does not dominate the nearest settled community.’

Paragraph 13 of PPFTS advises LPAs: to consider allocating and releasing sites for use as affordable sites for Gypsies, Travellers and Travelling Showpeople where there is a lack of affordable land to meet local needs; and that it should also consider using a rural exceptions policy which would enable small sites to be used specifically as affordable sites in small rural communities for households who are either current residents or have an existing family or employment connection.
Green Belts

Paragraph 14 of PPFTS makes it clear that the government considers Gypsy and Traveller sites to amount to ‘inappropriate development’ in the Green Belt and that they ‘should not be approved except in very special circumstances’.

The policy in PPFTS reflects paragraph 87 of NPPF, which states that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in ‘very special circumstances’. Paragraph 88 of NPPF explains that:

‘very special circumstances will not exist unless the potential harm by reason of inappropriateness and any other harm, is clearly outweighed by other considerations’.

Thus, when determining whether to grant planning permission for a Gypsy or Traveller site in the Green Belt the LPA (or a planning inspector on appeal) will have to undertake a balancing exercise. When doing so, Paragraph 88 of NPPF states that the decision-maker must attach substantial weight to the harm by reason of inappropriateness.

Paragraph 15 of PPFTS states that Green Belt boundaries should only be altered in exceptional circumstances and that if a LPA wishes to alter them to meet a specific identified need for a site then it should do so through the plan-making process and not in response to a planning application.
Mixed planning use sites

PPFTS advises LPAs to consider, wherever possible, making provision for sites which are suitable for mixed residential and business use and paragraph 17 of PPFTS states that LPAs should:

‘have regard to the need that travelling showpeople have for mixed-use yards to allow residential accommodation and space for storage of equipment.’
Determining planning applications

The new planning policy reiterates the fact that planning applications should be determined in accordance with the development plan, unless material considerations indicate otherwise, and that they should be assessed and determined in accordance with the presumption in favour of sustainable development and the policies in the NPPF and PPFTS. The government also stated in paragraph 22 that LPAs should take the following issues, amongst others, into account when determining planning applications for sites:

‘a) the existing level of local provision and need for sites

b) the availability (or lack) of alternative accommodation for the applicants

c) other personal circumstances of the applicant

d) that the locally specific criteria used to guide the allocation of sites in plans or which form the policy where there is no identified need for pitches/plots should be used to assess applications that may come forward on unallocated sites

e) that they should determine applications for sites from any travellers and not just those with local connections.’

Paragraph 23 states that LPAs:

‘should strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan.’

It also emphasises the requirement that LPAs:

‘should ensure that sites in rural areas respect the scale of, and do not dominate the nearest settled community, and avoid placing an undue pressure on the local infrastructure.’

It follows that large sites which are some distance away from existing development will be more difficult to justify than those which are close to settlements and/or are relatively small in scale.

Paragraph 24 advises LPAsthat when considering planning applications they should attach weight to the following matters:

‘a) effective use of previously developed (brownfield), untidy or derelict land

b) sites being well planned or soft landscaped in such a way as to positively enhance the environment and increase its openness

c) promoting opportunities for healthy lifestyles, such as ensuring adequate landscaping and play areas for children

d) not enclosing a site with so much hard landscaping, high walls or fences, that the impression may be given that the site and it’s occupants are deliberately isolated from the rest of the community.’

PPFTS reminds LPAsthat they should consider how they could overcome planning objections to particular proposals using planning conditions or planning obligations and suggests, for example that that they should consider:

a) limiting which parts of a site may be used for any business operations, in order to minimise the visual impact and limit the effect of noise

b) Specifying the number of days the site can be occupied by more than the allowed number of caravans (which permits visitors and allows attendance at family or community events)

c) Limiting the maximum number of days for which caravans might be permitted to stay on a transit site.

Significantly, paragraph 25 states that:

‘Subject to the implementation arrangements at paragraph 28, if a [LPA] cannot demonstrate an up-to-date five-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.

Paragraph 28 states that:

‘The policy set out in paragraph 25 only applies to applications for temporary planning permission for traveller sites made 12 months after this policy comes into force.’

Clearly, those seeking temporary planning permission in 12 months time in areas where LPAs cannot demonstrate an up-to-date five-year supply of deliverable sites will be able to rely on paragraph 25. >In the meantime it seems that those Gypsies and Travellers seeking planning permission may be able to argue that they should be granted temporary planning permission for a period which would enable the LPA to comply with PPFTS.
Policy definition of Gypsies, Travellers and Travelling Showpeople

Finally, in Annex 1: Glossary of the PPTS the government advises that:

‘For the purposes of this planning policy “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 or permanently, but excluding members of an organised group of travelling showpeople or circus people travelling together as such.’;

and that ‘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 family’s or dependants’ more localised pattern of trading, educational or health needs or old age have ceased to travel temporarily or permanently, but excludes Gypsies and Travellers as defined above.’;

and that for the purposes of the PPFTS

”travellers’ means ‘gypsies and travellers’ and ‘travelling showpeople’ as defined above’.