RESPONSE OF COMMUNITY LAW PARTNERSHIP AND RUSTON PLANNING LTD
The Community Law Partnership (CLP) is an award winning, progressive firm of solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers Advice Team (TAT) – a ground-breaking nationwide 24 hour advice service for Gypsies and Travellers. Ruston Planning is a planning consultancy that specialises in running planning appeals for Gypsies and Travellers.
Unauthorised development and encampments
Most if not all Gypsy and Traveller organisations, those advising and assisting Gypsies and Travellers and Gypsies and Travellers themselves will, doubtless, be saying that the obvious answer to unauthorised development and encampments is the provision of pitches, both public and private, and including not only permanent pitches but also transit pitches and emergency stopping places. Additionally there is the concept of ‘negotiated stopping’: http://leedsgate.co.uk/sites/default/files/media/document_uploads/Leeds%20GATE%20ABCD%20Negotiated%20Stopping%20Excerpt%20from%20Final%20Report%20%281%29.pdf
The flipside of this is that local and public authorities and private landowners already have sufficient powers to deal with unauthorised development and encampments. Indeed we would say that the powers are far too draconian!
Gypsies and Travellers have some of the worst outcomes nationally in terms of health and education. There is an extremely useful list of links to relevant reports in the recent FFT press release on this subject: https://www.gypsy-traveller.org/news/if-there-must-be-a-review-of-powers-to-tackle-unauthorised-sites-the-focus-should-be-on-local-authorities-failure-to-identify-land-for-gypsies-and-travellers-to-live-on/
Anti-social behaviour (ASB) with regard to unauthorised development and encampments is due to a very small minority of people. Additionally it often happens that Gypsies and Travellers are getting the blame for ASB which actually stems from the settled community e.g. deliberate fly tipping near to an unauthorised encampment. There is also the issue of hate crime against Gypsies and Travellers.
The Sedgemoor case study that is quoted in the consultation paper is lacking in detail. Why did the Travellers concerned have to resort to a car park? Was all the other land in the area heavily defended? Why hasn’t the council got a transit site or emergency stopping places? Additionally the case study seems to indicate that the encampment in question was evicted swiftly using existing powers!
Powers for dealing with unauthorised encampmentsAs is stated at para 7:
Local authorities and the police have a wide range of existing powers to deal with unauthorised encampments. …Where occupation of land occurs on public land and local authorities use their powers proactively, enforcement action can be taken relatively quickly. The process for private landowners is through civil possession procedures.
Exactly! This opening paragraph does make you wonder why this consultation is taking place at all!
As long ago as Department of the Environment Circular 18/94 ( Welsh Office Circular 76/94) Gypsy Sites Policy and Unauthorised Camping local authorities were encouraged to provide services to unauthorised encampments (para 9). Provision of services obviously vastly decreases clear up and other costs (and, once again, see negotiated stopping).
Streamlining the powers under which local authorities can direct unauthorised campers to leave land
Local authority powers under Criminal Justice and Public Order Act (CJPOA) 1994 ss77 & 78 were described by Sedley J (as he then was) in R v Lincolnshire CC ex p Atkinson  JPL 65, as ‘draconic’.
These powers can be implemented very quickly. They cover any land where there is no consent to be there from the occupier. Our experience from our extensive casework over many years is that, quite often, the process is so quick that, even where the local authority are acting unlawfully (e.g. by not inquiring as to or taking into account welfare concerns), we are unable to prevent the eviction from taking place. This is a potential criminal offence so not something to be treated lightly!
Extending the circumstances in which police can direct trespassers to leave land
The idea that the police powers under CJPOA 1994 ss61, 62 and 62A could be strengthened beggars belief! The police can give extremely short timescales for an encampment to leave e.g. half an hour or an hour typically. If the Gypsies and Travellers concerned do not leave, they can be arrested and their caravans (i.e. their homes) can be impounded. Once again from our extensive experience over many years, even where the police are acting unlawfully (e.g. failing to take account of serious welfare concerns), the swift timetable can often make any challenge totally impossible.
With regard to reference to the Irish legislation, we consider that there is a serious problem with the presentation of the law as it stands in the Republic of Ireland. After several positive references to the law in the Republic during the Parliamentary debates, the consultation document addresses this at pages 10 and 11. The most substantial error is in the sentence: ‘The Irish Government has criminalised trespass in certain circumstances, in conjunction with a statutory requirement for local authorities to provide sites for travellers.’ While there has been a statutory obligation placed on local authorities in the Republic to develop Traveller accommodation programmes pursuant to the Housing Act 1998 there is no correlation between those programmes and the implementation of a criminal provision. The fact that a local authority has or has not made sufficient alternative accommodation available is not a ‘defence’ to any direction or prosecution under Section 19A of the Public Order Act 1994. Section 19A is a criminal provision implemented by An Gardaí Siochana (the Police Force) who have no statutory obligation to provide sites, or to consider if alternative accommodation is available. So to imply that there is a balance or correlation between the function of the local authority as a housing authority and the implementation of criminal trespass law in Ireland is completely incorrect.
We note the statement ‘The legislation does not amount to a ban on all unauthorised encampments. It criminalises encampments that ‘substantially’ damage the land or prevent use of the land by the owner or other lawful users’. In fact, this statement is incorrect: the legislation in effect bans all unauthorised encampments (the only specific exception relates to roadside encampments on minor roads for the purposes of the Roads Act).
The focus in the sentence on the term ‘substantially damage’ the land is disingenuous as there are five grounds on which the offence is committed. It is not just about substantial damage. A person commits the offence where they bring or place on any land any object, where the entry or occupation or the bringing onto or placing on the land of such object is likely to: (i) substantially damage the land; (ii) substantially and prejudicially affect any amenity in respect of the land; (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity; (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe; or (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land. Any one or all of the above constitute the offence. Indeed it is quite difficult to imagine how Gypsies or Travellers in the Republic of Ireland who had no alternative but to stop on an unauthorised encampment could avoid committing this offence.
Insofar as the consultation is presenting the Irish legislation as a potential template for changes to the legislation in England and Wales, it is essential that consultees (who clearly cannot be expected to be experts on the situation in the Republic of Ireland) are given a correct and sufficient explanation of the legal position in the Republic so that they can properly assess it as a template. This has clearly not been achieved in the consultation paper to such an extent that the consultation is misleading to consultees. Consultees may conclude that the equivalent of the Irish legislation on eviction should be introduced in England and Wales because of this misleading interpretation of the law in Ireland. It is noted that a Traveller has instructed CLP to take forward a challenge against the consultation itself on this and other issues. We believe that this consultation process should be halted while that challenge proceeds.
Complete criminalisation of trespass would lead to:
- A sure fire action for a declaration of incompatibility with regard to the Human Rights Act 1998 – how could such a vast increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?
- No account at all being taken of welfare circumstances or the question of alternative locations;
- Failure to facilitate the Gypsy way of life ( Chapman v UK (2001) 33 EHRR 399);
- Breach of the public sector equality duty under Equality Act 2010 s149 (given that Romani Gypsies and Irish Travellers are recognised as ethnic groups);
- Gypsies and Travellers without pitches literally being driven out of the whole of England and Wales;
- Other groups of people being caught by these new powers, e.g. ramblers accidentally straying off the footpath; children getting their ball back from a neighbour’s garden
The concept is a total nonsense!
Aggravated trespass was created especially to deal with hunt saboteurs. In other words it was created to deal with people who (at least in some cases – many hunt saboteurs were very peaceful) were deliberately intending to intimidate or challenge the landowner or others lawfully on the land. Gypsies and Travellers are trespassing on land because there are insufficient pitches and stopping places and because they have no other alternative. These aggravated trespass provisions are totally inappropriate and irrelevant for unauthorised encampments. There are, in any event, separate powers that can be used to deal with criminal damage, fly tipping, ASB etc
Use of injunctions to protect land
The power to use injunctions already exists. In any event we believe that such wide injunctions are potentially seriously challengeable. Unfortunately, in the only cases to date, none of the defendants have had legal representation.
Joint-working between local authorities, communities and the police
Unfortunately there is no mention in this section of joint-working with Gypsies and Travellers themselves (see, yet again, the example of negotiated stopping).
At para 22 it is stated:
There have been a number of improvements made to the court system, to streamline and improve the efficiency of the appeal and judicial review (JR) process.
This is total nonsense.
Many courts have been closed leading to inconvenience, disruption and lack of access to justice. Judicial Review (JR) regulations have been changed meaning that there is a risk for a legal aid provider, when taking a JR under legal aid, that you will not be paid at all. Asa result many providers will no longer run JR cases.
Regarding an action under CPR Part 55 against trespassers (para 24), 2 days’ notice of a hearing is already a very short timescale within which to try and get advice and should certainly not be shortened any further.
Interim possession orders
IPOs were created to deal with people squatting in residential properties i.e. in circumstances where the person entitled to reside in the property was now denied access. These are not the circumstances with regard to Gypsies and Travellers and these powers would be totally inappropriate with regard to unauthorised development and encampments.
Powers for dealing with unauthorised development
Talking of the existing powers, at para 32 it is stated:
Used properly, the powers can tackle unauthorised development which has already happened and help to prevent it occurring in the first place. These powers are intended to deal with the full range of breaches of planning control, including unauthorised changes of use and unauthorised new buildings – not just unauthorised encampments.
Once again, you read this and wonder why this consultation is taking place at all!
Additionally, it is stated, at para 34, that “the current planning enforcement powers are extensive.”
As we all know, many local authorities, almost as a matter of course, reject planning applications from Gypsies and Travellers. The Gypsies and Travellers then have to go to the time and expense of appealing to a Planning Inspector. In many cases, the Planning Inspector then grants planning permission. The MHCLG should be concentrating on why more local authorities are not granting the initial applications for planning permission. This is not an issue addressed in the consultation document.
Improving the efficiency of enforcement notice appeals
The timetable for such an appeal is already a very tight one especially when there are not many sources of advice and assistance for Gypsies and Travellers. The idea that the powers should be ‘streamlined’ just for Gypsies and Travellers is clearly discriminatory and disproportionate and would inevitably lead, we would suggest, to successful challenges on that basis alone.
There is no evidence provided in the consultation paper on what the suggested ‘barriers’ are. It rightly acknowledges that there are extensive enforcement powers. At present, the procedure for the submission of an enforcement appeal following the service of a notice is adequate. Like all planning appeals there are delays in getting a start letter, presumably due to the impact of government cuts on public services. Such delays are of no benefit to any party.
However, beyond these delays in our view the current procedures are sufficient to meet the requirement for ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal’ as required by Article 6 of the Human Rights Act 1998.
On the point of temporary stop notices, these powers are available, and it is up the LPA in question as to whether they should be used. There are no ‘barriers’ to their use.
In our experience, where local planning authorities take a pragmatic approach to enforcement, for instance by inviting a planning application before taking action, this can end with positive outcomes for all parties (i.e. the resolution of a breach and meeting pitch targets). Where LPAs rush to take action through injunctions without first seeking to engage with those in breach of planning control, this often results in considerable costs to all parties, and on many occasions a grant of planning permission, but only after significant expense.
The only guidance that is mentioned is the March 2015 ‘guidance’ which is largely just a list of existing powers. The English and Welsh guidance on unauthorised encampments is extremely important in ensuring that welfare enquiries are carried out, that welfare issues are taken into account and alternative accommodation is taken into account.
Planning and Traveller site provision
As we say at the commencement of this paper, the obvious answer to the situation is more site provision.
We consider that this consultation paper is fatally flawed because it fails to address a realistic alternative, namely that the perceived problems arising from such encampments and developments could be addressed by the provision of more permanent and temporary sites. It is true that the consultation paper asks consultees whether they can suggest ways in which more site provision could be facilitated in one of the last questions (question 19) of the paper but there is no suggestion that site provision is a viable alternative to the other options identified in the paper.
Equality Impact Assessment
Following a Freedom of Information Act request, CLP were supplied with an Equality Impact Assessment that MHCLG had carried out with regard to this consultation. However this Assessment has not been made available on the MHCLG website as part of the consultation process and this amounts to, in itself, a fatal flaw in the process since consultees have been unable to refer to the Assessment and consider it.
Impacts on the Travelling community
It is rather bizarre, to say the least, to have an accurate list of the negative data with regard to health, life expectancy, education etc in a paper which seems to lean in favour of strengthening enforcement powers across the board. This data ought to, yet again, point to the need for site provision in all its aspects: public and private; permanent; transit; emergency stopping places; negotiated stopping. We note that the Welsh Government have realised this simple truth and enacted a duty to meet assessed needs (Housing (Wales) Act 204 s103). On this point, any strengthening of powers will also affect Wales which we trust the Welsh Government will have something to say about (as well as organisations in and covering Wales, of course). Both CLP and Ruston Planning represent clients in both England and Wales.
In conclusion, the answer to unauthorised development and encampments is more site provision and not the strengthening of the already draconian enforcement powers.
June 14th 2018
 The Government do not use capital ‘T’ for Traveller, of course.
 See footnote 1.