‘Wherever I lay my hat is my home’

Andrew Arden QC and Emily Orme discuss the recent guidance on the use of Temporary Stop Notices issued by DCLG to deal with unauthorised Gypsy and Traveller sites.

Wherever I lay my hat is my home‘ may be a song by Marvin Gaye and others, and a song by Paul Young, but it is also an old and well-known Gypsy saying, one that, these days, is probably spoken with more irony than affection.

On 9 August 2013, the Department for Communities and Local Government (DCLG) published new guidance to local authorities, Dealing with illegal and unauthorised encampments: a summary of available powers. It follows the removal of the restriction – in May 2013 – of the restriction on the ability of local authorities to use Temporary Stop Notices (TSNs), ie a notice served by a local authority under section 171E of the Town and Country Planning Act 1990, to prevent or terminate a breach of planning control in its area: until then, an authority had to ask itself whether ‘the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious so as to outweigh any benefit, to the occupier of the caravan’ before serving a TSN (Town and Country Planning (Temporary Stop Notice) (England) Regulations 2005 SI No 206, revoked by Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013 SI No 830).

The emphasis of the guidance is on empowering and encouraging local authorities to keep a tight control on the places that Gypsies and Travellers station their caravans. The opening sentence is indicative of the general tone: it describes the guidance as setting out ‘… robust powers councils and landowners now have to clamp down quickly on illegal and unauthorised encampments’ and goes on to say that authorities should be ‘… ready to take swift enforcement action to tackle rogue encampments and sites’.

It is one more blow to Gypsy and Traveller communities.

Under section 24 of the Caravan Sites and Control of Development Act 1960, local authorities had a power to provide sites for caravans in their area, to be used as temporary or permanent residences for Gypsies. In 1968, the Caravan Sites Act 1968 s6, added a duty requiring every county council, metropolitan district council and London borough to provide, so far as may be necessary, adequate accommodation for gypsies residing in or resorting to their area. The duty was accompanied by a power to provide ‘working space and facilities for the carrying on of such activities as are normally carried on by’ Gypsies. The Criminal Justice and Public Order Act 1994 repealed that duty and replaced it with a circular – Gypsy sites and planning, Circular 1/94 – itself subsequently replaced by Planning for Gypsy and Traveller sites, Circular 1/06. The circulars paid lip service to the importance of the adequate provision of Gypsy and Traveller sites in local development plans but, of course, the provision of new sites by local authorities dropped dramatically.

It is that legacy that has led to the proliferation of recourse to the use of illegal pitches and sites; following a number of planning cases under the Human Rights Act 1998, this led in turn to the 2005 restriction on stop notices which has, following the change of administration, now been lifted.

The removal of the restriction comes in the direct wake of the Dale Farm saga. No one can have forgotten the media frenzy over the eviction of some 400 who were illegally occupying the Dale Farm site on 20 October 2011: the burning caravans, barricades and pitched battles evocative of the conflicts between police and miners in the 1980s. The Dale Farm issue was not straightforward: some of the occupiers at Dale Farm were occupying legally under planning permission granted by Basildon District Council for 40 legal pitches (on an area known as Oak Lane). The row and the ensuing evictions arose out of the expansion of the legally-occupied Oak Lane area onto the adjacent Dale Farm land, bought by a community member in 2001 at a cost of £120,000 and subject to repeated, failed applications for planning permission.

The reported cost to the tax-payer of the entire process, including court fees, bailiff fees, police costs and other associated costs, is estimated to be in the region of £22 million (although the actual cost is not yet known because the site has still not been cleared and restored to its former greenbelt condition). One cannot help wondering how many pitches could have been provided for the community with that amount of public money.

Following the evictions, many of the Gypsies and Travellers moved their caravans onto local roads and parked on the roadside, where some still remain today. Others dispersed around the country and attempted to settle on other land but were routinely moved on or turned away. The problem, of course, being the extreme shortage of available legal sites, whether provided by public authorities or privately owned. There is no real doubt that it was repeal of the 1968 Act duty that has ultimately forced the community to resort to solutions such as unauthorised sites like Dale Farm.

Gypsy and Traveller communities face some of the greatest difficulties of any ethnic group in the UK. The lifestyle adversely affects and disadvantages their members in almost every aspect of their lives. The life expectancy for gypsy and traveller men and women is 10 years lower than the national average (Gypsies and Travellers: simple solutions for living together, Equality and Human Rights Commission, March 2009) and they are more prone to suffer poor health (A qualitative study of the health experience of Gypsy Travellers in the UK with a focus on terminal illness, Griffiths and Smith, Warwick University, 2008). Their children are reported to be amongst the lowest achieving ethnic groups within schools in England, more likely to be identified as having special educational needs, and four times more likely than any other group to be excluded from school as a result of their behaviour (Improving the outcomes for Gypsy, Roma and Traveller pupils: final report, Department for Education, October 2010). Gypsy and Traveller mothers are 20 times more likely than the rest of the population to have experienced the death of a child (Gypsies and Travellers: simple solutions for living together, Equality and Human Rights Commission, March 2009).

According to the Office for National Statistics, in 2011, there were 18,383 Gypsy and Traveller caravans in the UK. That figure rose to 18,730 by January 2013. Given the struggle to find accommodation that respects the community’s inherent aversion to bricks and mortar, no surprise there. Some idea of how ill-served Gypsies and Travellers are by local authorities may be found in the figures for publicly-provided and privately-owned sites (including those bought and paid for by Gypsy communities that go on to occupy the land): in 2011, there were 6,942 caravans on authorised public sites and 8,332 on authorised privately-owned sites; in 2013, the figure for public sites had barely changed at 6,930 (indeed decreased, albeit only by 12), but there were 9,100 caravans on private sites (an increase of 768).

The two year anniversary of the Dale Farm evictions will soon be upon us. What – if anything – has been learned?

At the same time as the new guidance from DCLG is encouraging a clampdown on unauthorised encampments, the Gypsy and Traveller community is facing increased difficulties securing planning permission for authorised pitches. A recent article (‘Councils reject Traveller sites’, Inside Housing, 6 September 2013) reported unpublished statistics from the Homes and Communities Agency that disclose that, since 2012, only 101 pitches out of 597 pitches located outside of London and earmarked for funding have secured planning permission.

What is the Gypsy and Traveller community to do to continue to secure authorised pitches and avoid eviction when there is no duty to provide them and when it cannot get permission to live on land its members purchase? On the one hand, the importance of the way of life requires special consideration, eg on a homelessness application (Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925; [2005] HLR 1); on the other, the community is hamstrung by government guidance and planning regulation so that it is virtually impossible to obtain any new legal pitches for caravans.

This is simply untenable. The coalition government preaches a doctrine of a Big Society yet continues to undermine and frustrate progress for the Gypsy and Traveller community, one that is no less a part of modern society than any other ethnic group. Either the government has to acknowledge the need for a proactive policy to assist in the provision or procurement of authorised pitches or there has to be a change in the clampdown mentality towards temporary unauthorised pitches and encampments.

Of course, if we returned to a duty to provide caravan pitches as under the 1968 Act, the problem would solve itself. Local authorities are under a duty to provide allotment gardens (Small Holdings and Allotments Act 1908) so why not caravan pitches?

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