Wrexham County Borough v National Assembly of Wales & Ors

For planning law and policy, gypsy status depends on a functional assessment of whether the applicant has a nomadic habit of life at the date of the planning decision. Ethnic origin, traditional background and caravan residence do not themselves confer that status.

Temporary cessation of travel does not necessarily end a nomadic habit. The decision-maker must assess the reason and likely duration of the interruption, the applicant’s past way of life, and any honest and realistically realisable intention to resume travelling. Permanent retirement from travelling ends planning-policy gypsy status, whatever its cause. Former status and personal circumstances may nevertheless remain material planning considerations.

Mr and Mrs Berry, members of a traditional travelling family, ceased travelling because of Mr Berry’s ill-health and stationed caravans on land in open countryside. They appealed against an enforcement notice and sought retrospective planning permission for use as a private gypsy caravan site.

A Planning Inspector quashed the notice and granted personal planning permission. Sullivan J dismissed the local authority’s statutory challenges, holding that the Inspector could regard the family as gypsies for planning purposes despite their cessation of travel.

The authority appealed. The central issues were the meaning of “gypsies” in planning law and policy, the factual assessment of a nomadic habit of life, and the effect of that status on the subsequent planning judgment.

1. The appeals were allowed. Auld LJ, with whom Clarke and Jonathan Parker LJJ agreed, held that the Inspector had failed to identify and apply the statutory and policy meaning of “gypsies”, and had not adequately explained whether the applicants possessed that status. The decisions were quashed and remitted to another Inspector for fresh determination.

2. The definition in section 24(8) of the Caravan Sites and Control of Development Act 1960 makes a nomadic habit of life the controlling criterion. It applies irrespective of race or origin. The assessment is functional and is made at the date of the planning decision. A pattern or rhythm of full-time, seasonal or other periodic travel may suffice, and a permanent base is consistent with nomadic status.

3. A temporary interruption of travel because of illness or children’s needs does not necessarily end a nomadic habit. The issue is one of fact and degree. Relevant considerations may include traditional background and past travel, an honest and realistically realisable intention to resume travelling, and the reasons for and probable duration of the interruption. Permanent retirement from travelling ends planning-policy gypsy status, whether caused by illness, age or choice. Status may later be reacquired if travelling resumes.

4. A Planning Inspector faced with a disputed claim to gypsy status must first identify the statutory and policy definition, then separately determine whether the facts satisfy it. Only afterwards should the Inspector decide what weight the local plan gives that status and balance the development plan against other material considerations under sections 54A and 70(2) of the Town and Country Planning Act 1990.

5. Applicants who lack planning-policy gypsy status do not thereby lose the benefit of consideration of their traditions, lifestyle, health, family needs or rights under article 8. Those matters may still be weighed as material planning considerations. Chapman v United Kingdom did not enlarge the statutory planning definition; it required proper regard to the interests protected by article 8 within the lawful planning framework.

6. Administrative policy is formulated by Parliament and the Executive. Courts may interpret a clear planning policy but may not extend its ambit because a wider policy appears desirable.

1. Court of Appeal (Civil Division): Allowed the authority’s consolidated appeals, quashed the Inspector’s decisions and remitted both matters for fresh determination by another Inspector: [2003] EWCA Civ 835.

2. Administrative Court: Sullivan J dismissed the statutory challenges under sections 288 and 289 of the Town and Country Planning Act 1990 and upheld the Inspector’s decisions. No citation is stated.

3. Planning Inspector: Quashed the enforcement notice and granted retrospective personal planning permission for use of the land as a private gypsy caravan site.