The legal battle between Basildon Borough Council and those members of the travelling community currently living at Dale Farm in Essex has been ongoing for nearly ten years, and with reports in the press that the date for the clearance of those living at the Dale Farm site has finally been set, we consider the issues faced by local authorities in such cases.
The facts
Dale Farm is in the village of Crays Hill. It is a six acre plot of land. Since 2001, a number of travellers have moved onto the site and set up homes in caravans, developing hard standings and road access across the site with approximately 51 illegal pitches. Dale Farm is legally owned, however, it is does not have the necessary planning permission as it is green belt land. Next to Dale Farm there is an authorised travellers’ site (Oak Lane), for which planning permission was granted for 34 pitches between 1992 and 1996.
In 2001, Basildon Borough Council served enforcement notices against those living on the Dale Farm site (see this note for more information). The travellers attempted to get the notices repealed, but were ultimately unsuccessful although the Secretary of State agreed to extend the compliance period by two years. However, by 2005, the number of caravans at the Dale Farm site had increased significantly.
In June 2005, once the two-year compliance period had lapsed, the Council resolved that direct action was necessary to secure compliance with the notices. This decision was judicially reviewed and the High Court found that the decision to proceed with direct action was unlawful as it was disproportionate. This was appealed by the Council in December 2008. The Court of Appeal overturned the High Court decision finding that Basildon Council was correct to refuse to grant planning permission for the Dale Farm site. Permission to appeal to the House of Lords by the travellers was refused.
In July 2011, Basildon Borough Council issued a 28-day notice to requiring those at Dale Farm to vacate in accordance with the enforcement notices that had been served by the Council. In August 2011, lawyers for those at Dale Farm applied for a temporary injunction to stop the Council evicting the families using evidence that one of the elderly residents, who suffers breathing problems and uses an electric nebulizer would be affected by the eviction. The High Court dismissed the application after Basildon Borough Council gave a legal undertaking to review fresh medical evidence relating to that resident before proceeding against her.
The date for clearance of the site has been set for the week commencing 19 September 2011. It is expected that around 400 people will be cleared from the site.
Travellers and gyspies: government guidance
Current national planning policy and guidance for gypsy, traveller and travelling showpeople sites is set out in:
- Circular 01/06: Planning for Gypsy and Traveller Caravan Sites (ODPM).
- Circular 04/07: Planning for Travelling Showpeople.
These are used by local planning authorities (LPAs), the Planning Inspectorate and the Secretary of State to plan for traveller sites and make decisions about planning applications for traveller sites. The government intends to withdraw these circulars and replace them with a single planning policy statement for traveller sites (Travellers’ PPS) (see Consultation on planning for traveller sites).
Circular 01/06 defines gypsies or travellers 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, but excluding members of an organised group of travelling show people or circus people travelling together as such.”
The case
Dealing with planning enforcement contraventions by those in the travelling community is an issue that many local authorities encounter, see for example, cases involving:
- Broxbourne Borough Council.
- South Bedfordshire District Council.
- South Cambridgeshire District Council.
- Bath and North East Somerset Council.
Many travellers have sought to rely on their rights under the Human Rights Act 1998 as an argument for not being evicted from sites by local authorities, see for example, Injunction preventing camping on certain woodland sites not in breach of New Traveller’s Article 8 rights (ECtHR). However, the European Court of Human Rights has held that local authorities do not have a duty under Article 8 of the ECHR to make suitable sites available to gypsies (as an ethnic group). Circular 01/06 also states that “the obligation on public authorities to act compatibly with Convention rights does not give gypsies and travellers a right to establish sites in contravention of planning control.”
Powers to remove
Police attempting to remove any travellers that refuse to leave the Dale Farm site will be required to rely upon section 61 under the Criminal Justice and Public Order Act 1994 which can be used by police to move people on from land if they are there unlawfully. Section 61 states that where a direction under that section has been given and fails to leave the land as soon as reasonably practicable or having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, then a criminal offence will have been committed.
The cost to Basildon Borough Council
According to the Basildon Borough Council website, the estimated direct operational cost of £6.5m together with estimated post operational costs of £1.5m produce a total of £8m. However, some reports suggest that the actual costs may be far higher.
The final result
It is likely that many other local authorities will be anxiously awaiting the outcome of the site clearance at Dale Farm. The protracted legal battle and high costs associated with clearing a site like Dale Farm site is something that local authorities will want to avoid with the current financial pressures that they are already under. However, the conundrum that local authorities may face is being forced to weigh up the legal necessity of enforcing planning controls against the huge financial costs that could be incurred with clearing such sites.