Material considerations are matters or planning policies which legislation and the courts have determined should be taken into account when deciding an application.
The most obvious material considerations are national planning policy documents including, the National Planning Policy Framework (NPPF) and the planning practice guidance. These documents set out how the government wants the planning system to work, and Local Plan policies should be in line with these documents.
For Gypsy and Traveller site applications, it’s also important to look at the government’s planning policy for Traveller sites. Along with the Local Plan, this sets out what issues local planning authorities should consider and is an important material consideration when making decisions on new sites.
Gypsy / Traveller status
For the purposes of planning policy, Gypsy and Travellers are defined as:
”Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently, and all other persons with a cultural tradition of nomadism or of living in a caravan, but excluding members of an organised group of travelling showpeople or circus people travelling together as such”. planning policy for Travellers sites: Annexe 1: Glossary, updated 12 December 2024
This definition was amended in December 2024 as part of the government’s response to the NPPF consultation. The revised definition follows both domestic and European Court judgments and seeks to ensure that the accommodation needs for those persons with a cultural tradition of nomadism or of living in a caravan are covered by the planning policy for Traveller sites.
The practical implications of this revised definition are that Romany Gypsies and Irish Travellers who do not follow a nomadic way of life, will be able to both apply for planning permission for, and live on, a Gypsy or Traveller site.
It also means that local planning authorities who are undertaking new Gypsy and Traveller Accommodation Assessments to inform forthcoming plans and decision making, will need to consider a far wider range of Romany Gypsies and Irish Travellers.
The need for Gypsy and Traveller sites
Local planning authorities must take into account whether there is an unmet need for sites when making decisions on planning applications. You can find out if there is an unmet need for sites by looking at a local planning authority’s Gypsy and Traveller Accommodation Assessment (discussed further in section 8) or by looking at recent judicial cases. In the case of Hedges and Hedges v Secretary of State for the Environment and East Cambridgeshire DC[1] the court said that the national, regional and local need for Gypsy and Traveller sites is capable of being a material consideration.
The availability of alternative sites
The local planning authority or planning inspector will need look at whether there is any alternative, available, affordable, acceptable and suitable land available instead of your site. You do not have to prove that there are no sites available, but if you can provide any evidence of looking at other sites and why they were not suitable this will help your case. This could be as simple as taking screen shots of adverts of land that you may have looked at.
The failure of policy
If a council has not done anything to provide Gypsy and Traveller sites over many years, you can make the argument that there has been a ‘failure of policy’. To do this you will need to look at historic appeal decisions and development plan documents.
Personal circumstances
The personal circumstances of Gypsies and Travellers are important. The health and wellbeing of the Gypsies and Travellers concerned, including the situation of any children, are of specific relevance. Providing evidence of this is helpful. This could include letters from doctors or other health professionals that describe any health condition you may have, and the importance of having a permanent site to allow you to access healthcare easily. In accordance with the UK GDPR and the Data Protection Act 2018, the Local Authority should not publish any personal information on its website.
The best interests of the children
The council and/or a planning inspector has to take into account the best interests of any children involved in a case and treat them as being as important as any other consideration. Any evidence you can provide is helpful. For example, a letter from a teacher or Traveller education worker is a good idea. Again, in accordance with the UK GDPR and the Data Protection Act 2018 the local planning authority should not publish any personal information on its website.
Human rights
The local planning authority and/or a planning inspector also needs to take account of human rights and specifically, Article 8 of the European Convention on Human Rights. This states that:
“Everyone has the right to respect for his private and family life, his home and his correspondence.
There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others.”
This means that the local planning authority and / or planning inspector need to balance the need for a home (and other matters) against any issue with the development plan.
In many cases, Article 8 rights will be relevant when people are already living on site. However, it is also important to note that the Article 8 rights of Gypsies and Travellers not yet on site can be engaged, see Rafferty and Jones v SSCLG and North Somerset DC.[2] In this case the judge held that even though the Gypsies in question were not living on site, their Article 8 rights were still relevant.
The public sector equality duty
The public sector equality duty aims to ensure that public authorities consider how their policies and decision-making affect people who are protected under the Equality Act.
Those protected under the Equality Act have what’s called ‘protected characteristics’. This includes Romany Gypsies and Irish Travellers who are recognised ethnic minorities.
The Equality Act says that public authorities must have due regard or think about the need to:
- Eliminate unlawful discrimination;
- Advance equality of opportunity between people who share a protected characteristic and those who don’t;
- Foster or encourage good relations between people who share a protected characteristic and those who don’t.
A helpful example of how this works in action can be found in a planning appeal decision letter in Hambleton:[3]
86. I have had due regard to the Public Sector Equality Duty (PSED) set out in the Equality Act 2010, which concerns the need to eliminate unlawful discrimination, harassment and victimisation, and to advance equality of opportunity and foster good relations between people who share a protected characteristic and people who do not share it. Having found that the appellant has gypsy status, he has a protected characteristic for the purposes of the PSED.
87. A refusal of permission for development that is acceptable in planning terms would fail to foster good relations between the site occupants and the settled community – and it could amount to unlawful discrimination. I am also concerned that the shortage of sites for travellers, if not the ‘need’ test set out in DP14 could indicate inequality of housing opportunity for gypsies. The Council’s efforts to bring forward gypsy sites may overcome any such inequality in time – and I note that CP1 seeks to reduce disadvantage. Even so the PSED adds weight to my overall conclusion that Appeal A should succeed on ground (a) and the deemed planning application should be approved.
Disability is also a protected characteristic under the Equality Act, which means that the local planning authority and/or planning inspector must give this special consideration as well.
[2] [2009] EWCA Civ 809
[3] Appeal Decisions: APP/G2713/C/13/2198583, 2198584, 2199511, 2198585, 2198586 & 2199509