Batten down the hatches

From Inside Housing

When I first saw the Ministerial statement made by local government minister Brandon Lewis last week, I thought to myself ‘batten down the hatches, there’s an election coming’

Like much of this government’s observations on Gypsies and Travellers it doesn’t stand up to close scrutiny.

The ministerial statement refers to ‘travellers’. I presume that term is meant to include members of the Romani Gypsy and Irish Traveller community – two distinct ethnic groups, both protected by our equality legislation. It is a status the ministers do not seem to appreciate.

It seems that Mr Pickles is particularly concerned about the grant of planning permission for Gypsy and Traveller sites in the green belt. In fact, Mr Pickles seems so concerned about the grant of planning permissions for Traveller sites in the green belt, and the extent to which his planning inspectors have been applying government policy, that he wants to emphasise to them that ‘Traveller’ sites constitute ‘inappropriate development’ in the green belt and that the unmet need for ‘Traveller ‘ sites is unlikely to outweigh harm to the green belt.

As a planning barrister with many years of experience appearing before planning inspectors on behalf of Gypsies and Travellers, I can say that they are all very well aware of those points.

I do not know a case in which a planning inspector has found unmet need for Gypsy and Traveller sites alone justifies the grant of planning permission for a site in the green belt. There is no need for planning inspectors to be reminded of the policy. The perceived problem simply does not exist in practice.

Since July 2013 the secretary of state has called in a large number of planning appeals involving Gypsy and Traveller sites in the Green Belt. Mr Lewis announced the practice would continue. The recovery of these appeals has been criticised by Gypsies and Travellers as being discriminatory and has led to significant delays in the determination of planning appeals.

The secretary of state’s justification for this practice is said to be a concern to ensure that appeals are determined in a way which meet’s the Government’s policy intentions. But we have to ask why does he not trust his planning inspectors to apply the Government’s policy properly?

Surely by now the Secretary of State has been able to ensure that Government policy is understood by his planning inspectors. Or is there another agenda? Is the reality that Mr Pickles is keen to demonstrate to Conservative and UKIP voters that he is being tough on Gypsies and Travellers and that he is able to do so by recovering appeals for his determination and then dismissing appeals in cases where his inspectors have found that very special circumstances exist to justify the grant of planning permission.

At first blush this may seem speculative. However, the fact is that in many of the appeals that have been determined since July 2013 Mr Pickles has rejected the recommendation of his inspectors that permanent or temporary planning permission be granted; and I have not seen a single decision in which an inspector has recommended refusal and been overturned.

Mr Lewis also announced the Communities and Local Government department was considering the case for changes to the planning definition of ‘Travellers’ to reflect whether it should only refer to those who actually travel and have a mobile or transitory lifestyle. In fact the existing planning definition does just that. It is not based upon the applicant’s ethnicity or culture. Applicants for planning permission cannot simply rely upon the fact that they are Romani Gypsies or Irish Travellers or indeed,, upon the fact that they have lived all their lives in caravans and have a strong aversion to bricks and mortar. Instead, they must show that they travel with their caravans for work, unless they can show that they have ceased doing so temporarily on health grounds or for the education of their children or because they are too old to continue doing so).

It has been held by European and British courts that the Government has a positive obligation under the European Convention on Human Rights to facilitate the traditional Gypsy and Traveller way of life. Living in caravans is an integral part of the culture of both ethnic groups.

Gypsies and Travellers have argued for many years that the current planning definition is deficient because it requires them to demonstrate that they are travelling for work when there are insufficient stopping places and local authorities and the police have draconian powers to evict them from unauthorised encampments. It also fails to address the accommodation needs of those members of their communities that wish to continue living in caravans but do not travel, or wish instead to obtain settled employment in one location.

If the planning definition were to be restricted any further then I think it likely that it will be susceptible to legal challenge on grounds that it was a breach of their human rights.

Marc Willers is a barrister practising at Garden Court Chambers.