The definition in Annex 1 of the Planning Policy for Traveller Sites 2015 of who is a Gypsy or Traveller is not discriminatory, the High Court has found.
Mr Justice Pepperall ruled in Lisa Smith v the Secretary of State for Housing, Communities and Local Government and others that the definition used retained a functional test of nomadism.
FTB Chambers, which acted pro bono for intervenor Liberty, said in a commentary on the case that its the first ground concerned whether the definition of Gypsies and Travellers used was unlawfully discriminatory because it excluded those who ceased to travel permanently.
That could, for example, exclude Gypsies or Travellers who stopped travelling due to old age, disability or caring responsibilities.
Pepperall J expressed “disquiet as to the poor outcomes achieved by so many Gypsies and the disproportionate difficulty faced by many Gypsies and Travellers in obtaining planning permission” but found the definition lawful.
He concluded that the policy retained a functional test of nomadism, with a focus on the specific land-use needs of those leading a nomadic lifestyle.
The judge accepted that the Secretary of State was justified in drawing a distinction between the specific land-use needs of those leading a nomadic lifestyle and those seeking a more settled existence.
He said the policy did not stand alone but part of a “patchwork of provisions” that required planning authorities to address the needs of Gypsies and Travellers irrespective of whether they met the definition - for example in paragraphs 59 and 61 of the National Planning Policy Framework.
Pepperall J also emphasised that the accommodation needs of permanently settled Gypsies and Travellers who seek planning permission to maintain their cultural identity were “material considerations” which must be taken into account under section 70 of the Town and Country Planning Act 1990.
London Gypsies & Travellers had said the definition worsened the accommodation situation for Gypsies and Travellers “because many councils now say there are no needs for more sites in their areas and stop looking for land”.
Ms Smith lodged the challenge after her family was refused planning permission on a private site because they did not meet the planning definition, as some had severe disabilities could not travel for work.