Wrexham County Borough v National Assembly of Wales & Ors

The Court of Appeal held that the statutory and national planning policy definition of "gypsies" (section 24(8) Caravan Sites and Control of Development Act 1960, as adopted in Circulars WO2/94 and WO76/94) is a functional test focused on a person's nomadic habit of life at the date of the planning decision. The court rejected the lower court's broadening of that definition to include, as of principle, traditional gypsies who have permanently ceased to travel by reason of illness or age.

The court found that a planning decision‑maker must first identify the statutory and policy meaning of "gypsies" and then, as a separate and factual exercise, decide whether the applicants fall within that meaning. Because the Inspector had not carried out those two distinct steps or given adequate reasons, and Sullivan J had erred in part by extending policy, the appeal was allowed and the matter was remitted to a different Inspector for fresh determination.

The court also confirmed that even if applicants do not meet the statutory definition, their personal circumstances remain material considerations to be weighed under sections 54A and 70(2) of the Town and Country Planning Act 1990.

Background and parties: Mr and Mrs Berry, traditional Irish travellers, occupied land in Wrexham with a static caravan and other structures. Wrexham County Borough Council issued an enforcement notice alleging unauthorised residential caravan use. The Berrys appealed the enforcement notice under section 174(a) and applied for retrospective planning permission under section 78. The Planning Inspector quashed the enforcement notice and granted planning permission. The Council sought to quash the Inspector’s decision. Sullivan J in the Administrative Court upheld the Inspector. The Council then appealed to the Court of Appeal.

Nature of the claim and relief sought: The Council sought judicial review/quashing of the Inspector’s grant of planning permission and of the decision to quash the enforcement notice. The appeal raised principally whether the applicants were "gypsies" for planning policy purposes and whether the Inspector had lawfully applied the statutory/policy definition.

Issues framed by the court:

• What the word "gypsies" means in planning law and policy, in particular whether traditional gypsies who have ceased travelling through illness or old age remain "gypsies" for those purposes.
• On the facts, what factors should a decision‑maker take into account when deciding whether particular applicants are "of nomadic habit of life".
• How the planning judgment is to be taken once the decision‑maker has reached a conclusion on gypsy status.

Procedural history to this court: Appeal from the Queen’s Bench Division, Administrative Court (Sullivan J) upholding the Inspector’s decision; now before the Court of Appeal ([2003] EWCA Civ 835).

Court’s reasoning and conclusions: The Court of Appeal emphasised that national policy adopts the statutory definition in section 24(8) Caravan Sites and Control of Development Act 1960: "persons of nomadic habit of life, whatever their race or origin." That is a functional and pragmatic test focusing on the applicant’s way of life at the time of the planning decision. Precedent (Mills v Cooper; Greenwich v Powell; R v South Hams ex p Gibb; Hearne) shows that nomadic habit can include seasonal or periodic travelling and that status can be alterable.

The court rejected Sullivan J’s interpretative expansion that, as a matter of principle, traditional gypsies who become too ill or old to travel nevertheless retain gypsy status for planning policy. The court held that such a policy extension is for the Executive and Parliament, not the courts. The court further held that the Inspector had not separately identified the statutory/policy meaning nor properly applied it to the facts; his reasoning was inadequate. Because of that procedural and reasoning defect, and notwithstanding discussion of Article 8 jurisprudence (Chapman v UK) which the court said did not displace the statutory test, the Court of Appeal allowed the appeal, quashed the Inspector’s decision and remitted the matter to be re‑determined by a different Inspector, giving guidance on the factors and approach to be taken.

Wider comments: The court noted that even where applicants do not meet the statutory "gypsy" test, their personal circumstances can still be material considerations under sections 54A and 70(2) of the 1990 Act and that planning policy formulation is for the Executive.

Appeal allowed. The Court of Appeal held that the statutory and policy definition of "gypsies" is a functional test based on a nomadic habit of life at the date of decision; the Inspector should first identify that statutory/policy meaning and then decide, as a separate factual exercise, whether the applicants fall within it. The Inspector failed to perform and to explain those separate steps and gave inadequate reasons; Sullivan J erred to the extent he broadened policy. The Inspector’s decisions were quashed and the matter was remitted to another Inspector for fresh determination in accordance with the court’s guidance.

Appeal from the Queen’s Bench Division, Administrative Court (Sullivan J) which had upheld the Planning Inspector’s grant of planning permission. The Court of Appeal ([2003] EWCA Civ 835) allowed the Council’s appeal, quashed the Inspector’s decisions and remitted the matter for redetermination by another Inspector.