“On 21 December 2022 the Scottish Government launched its consultation seeking views on or before 15 February 2023 about a definition of ‘Gypsies and Travellers’ for the specific purpose of planning legislation relating to local development plan evidence reports. It also published a related ‘interim impact assessments’ comprising 51 pages.
The Scottish Government considers that early consultation and involvement of the Gypsy and Traveller communities at the Evidence Report stage of Local Development Plans will enable local authorities to accurately identify accommodation needs.
The proposed definition
The Scottish Government is considering the following statement to define the Gypsy and Traveller communities for specific planning purposes:
‘For the purposes of section 16B(14) of the Town and Country Planning (Scotland) Act 1997 (evidence report for preparation of local development plan), “Gypsies and Travellers” means-
persons of or from a nomadic cultural tradition, whatever their race or origin, including-
(i) persons who have ceased to travel temporarily or permanently as a result of their own or their family’s (including dependants) educational needs, health needs, or old age,
(ii) members of an organised group of travelling show people or circus people (whether or not travelling together as such),
(iii) persons who require the provision of land for temporary or permanent living (including the use of caravans as defined in section 16 of the Caravan Sites Act 1968).’
The consultation paper also states that:
‘Creating a justified, accurate and inclusive definition of ‘Gypsies and Travellers’ will help to ensure that these communities have stronger visibility in [Scotland’s land-use] planning system. It also allows local authorities to correctly identify these groups during the development planning process.’
The Scottish Government says that the definition is relevant to the way planning authorities plan for the accommodation needs of Gypsies and Travellers and that it will enable the community to voice their needs to planning authorities and promote relationships with the community going forward. It also states that the suggested definition ‘…is proposed as a starting point for discussion with Gypsy and Traveller communities and other relevant groups’ and it ‘…has been provided to enable feedback and all views and suggestions are welcome’.
Comments
The consultation ‘overview’ states that the Scottish Government wants to engage with members of the Gypsy/Traveller community and other travelling communities and to hear from those working closely with them, third sector organisations/representative bodies of the Gypsy/Traveller community and local authorities. Some may question whether those aims are best achieved by issuing a consultation paper a few days before Christmas and the festive holidays and a response deadline of 15 February 2023.
This consultation takes forward the October 2019 joint action plan by the Scottish Government and the Convention of Scottish Local Authorities (‘COSLA’) Improving the Lives of Gypsy/Travellers: 2019-2021, in particular, the commitment to support local authorities and the wider public sector to listen to Gypsy/Travellers in their areas in a meaningful and supportive way and engage them through local policy, planning and budgetary processes.
Two related points can be made. First, the Gypsy/Traveller community has for some time, even before the Equality Act 2010, been considered in law as a ‘distinct ethnic group’. See, for instance, the acknowledgement in the March 2013 report Where Gypsy/Travellers Live by the Scottish Parliament’s Equal Opportunities Committee. That report references a Tribunal decision (Mr K MacLennan v Gypsy Traveller Education and Information Project 2009) in which it was held that Gypsy/Travellers are a distinct ethnic group and therefore covered by the Race Relations Act 1976. Second, the issue arises of ensuring that the land-use planning system applies fairly and equally to both the settled and traveller communities. This aspect was one which was considered as part of the 2014 consultation by the UK Government with the August 2015 consultation report by its Department for Communities and Local Government addressing that issue. This directly referenced that local planning authorities will need to be mindful of the European Convention on Human Rights, Art 8 (the right to respect for private and family life, home and correspondence) and the best interests of the child. Further, if the most significant test is to ensure ‘fairness’ in accessing or influencing the Scottish land-use planning system, this consultation could have perhaps addressed this directly.
By including in the proposed definition those who have permanently ceased to travel as a result of, inter alia, disability or old age the Scottish Government avoids an issue raised in the 31 October 2022 Court of Appeal decision in Smith v Secretary of State for Levelling Up, Housing & Communities and Anor [2022] EWCA Civ 1391.
Also, the Planning (Scotland) Act 2019 does not define any group within a community save, in its Sched 19, a ‘community body’. A community body is empowered to prepare a Local Place Plan. It will be interesting to follow this consultation exercise having regard to the preparation of such a plan especially as regards endeavours to making places and the integration of recognised minority groups such as the Gypsy/Traveller community.
In practice, as with this consultation, many in the Gypsy/Traveller community will see practical action on their behalf as the key test, given that for many within this community literacy levels are often low. Some will perhaps also be pointing to the apparently on-going delivery of the 2021 Scottish Government ‘Housing to 2040’ strategy including its commitments for more and better sites for Gypsy/Travellers and for a Design Guide for Gypsy/Traveller sites. That strategy’s welcome capital allocation of £20m over five years to improve local authorities Gypsy/Traveller provision appears however to have been already allocated to up to four demonstration locations (within the administrative areas of Aberdeen City Council, Clackmannanshire Council, Fife Council and East Dunbartonshire Council) without any apparent cognisance being given to the outcomes of this consultation. Had such an alignment occurred, perhaps the opportunity could have been afforded to the Gypsy/Traveller community (as defined) and local authorities (as mutually agreed) to apportion this spend and indeed to agree such pilot ‘demonstration locations.’
Finally, this attempt to define who those within the Gypsy/Traveller community are does not immediately appear to signpost what their respective needs are, or their individual (and often private) intentions and lifestyles. If this is for local authorities to do the outcome of the consultation will required to be aligned with assessments of appropriate places. Thereby ensuring that the focus is placed not solely on defining the grouping or societal mix but rather the qualities of appropriate places for Gypsy/Travellers.
Regrettably, the consultation may not afford the Gypsy/Traveller community the time nor be configured and presented in a manner which they can practically access or influence. However, as many within the Gypsy/Traveller community, by virtue of their chosen lifestyle and tradition often have low levels of literacy it perhaps therefore falls to professional advisors or representatives, including the third sector, to respond on their behalf.”
Andrew Sim, MRTPI
LASplanning LLP
[1] https://consult.gov.scot/planning-architecture/local-development-plan-evidence-report/
[3] https://www.gov.scot/publications/improving-lives-scotlands-gypsy-travellers-2019-2021/
[4] https://archive2021.parliament.scot/S4_EqualOpportunitiesCommittee/Reports/eor-13-01w.pdf
[7] https://www.gov.scot/publications/housing-20402/
[8]https://www.gov.scot/policies/gypsy-travellers/social-care-and-housing-services/
Background to SPEL Journal
SPEL Journal (Scottish Planning & Environmental Law) is one of the leading information sources on land use planning and environmental legislation across the country.
Citation (2023) 215 SPEL 4
More Information
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