As we await the latest court judgment, Marina Sergides analyses the legal and social aspects of the Dale Farm case
Contrary to the ill-informed views expressed almost daily in the right-wing press, supporters of Dale Farm are not ‘just’ left wingers, students or anarchists. Despite widespread hostility from locals towards the Travellers, the story of Dale Farm has received an astonishing amount of international support and recognition. Advocates cut across the political spectrum because this eviction is unlawful, unfair and morally unjustifiable.
In 1994 the then Conservative government overturned a legal requirement for local authorities to provide adequate sites for Travellers and Gypsies. This shortage of sites, coupled with the extremely low success rates of planning applications made by Travellers and Gypsies, has resulted in the gradual erosion of their way of life. The new Localism Bill, sponsored by a Conservative MP, will further compound this problem. It promises to outlaw retrospective planning permission, which has been virtually the only way in which Gypsies and Travellers have managed to get sites approved. The Gypsy and Traveller Sites Grant, launched in 2008, provided funding for local authorities and registered social landlords to create new sites and refurbish existing sites. This programme, with its stated aim of creating new, permanent, sites to “tackle the inequalities experienced by Travellers … one of the most disadvantaged [groups] in the country”, led to the building of just four new sites, with a total of 37 pitches. 62 new pitches were created on existing sites and 178 pitches were refurbished. Rather predictably, the present government has since scrapped the grant and provided only half of the funding to provide sufficient sites.
In the Dale Farm case, the response of the local authority to this shortage was not to offer sufficient suitable sites to preserve the traditions of this evicted group, but to offer “bricks and mortar” accommodation in a number of different areas. There was a complete failure to recognise that separation of the community represented a complete affront to their way of life.
Furthermore, the exhortations from international bodies to recognise the needs of Gypsy and Traveller communities have been completely ignored. The UN Committee on the Elimination of Racial Discrimination has condemned the Dale Farm eviction as ‘unwise and immature’. The UN was joined by Thomas Hammarberg, the Council of Europe’s commissioner for human rights, who warned there was a great risk of human rights violations if 86 families and 100 children were forcibly removed. The UN proposed a peaceful and appropriate solution in which negotiations would take place between all parties. This would include identifying culturally appropriate accommodation, with full respect for the rights of the children and families involved. According to the Equality and Human Rights Commission the life expectancy of Gypsies and Travellers is 10 years lower than the national average, while mothers are 20 times more likely to experience the death of a child. Despite this compelling evidence of socio-economic disadvantage, those proposing the removal of the Dale Farm residents, the single largest eviction to be undertaken in Britain in modern times, have not shown any willingness to protect this vulnerable part of society.
The approach of Basildon Council, whilst grossly unfair, might be at least partly understandable if the argument based on green belt land had any substance. But prior to the Travellers’ purchase of Dale Farm the land was used as a scrapyard and held no significance for the local authority. It is baffling how anybody can possibly advance environmental considerations as some sort of justification for the action currently being taken.
DALE FARM: ITS COMPLICATED LEGAL HISTORY
Dale Farm is the largest Traveller site in the country. Irish Travellers own all of the land on Dale Farm; however part of the site is ‘greenbelt’ land. Approximately 400 Travellers live on this part of the site, but they have not obtained the required planning permission. Basildon Borough Council has served a number of enforcement notices relating to the occupation of this unauthorised site, and the council have also sought to take direct action under the section 178 of the Town and Country Planning Act 1980 in order to secure compliance with these enforcement notices.
The main aspects of the site’s history are as follows:
- In 1996 scrapyard owner Ray Bocking, denied permission to carry on his business, sold Dale Farm to an Irish travelling family for £122,000.
- By 2001, a growing number of families were moving in and various planning breaches were reported, but no action was taken by Basildon Council.
- Between 2002 and 2004, Basildon Borough Council served eviction notices.
- In 2008 the High Court held that the council’s decision to take direct action under section 178 was unlawful because (1) the council had failed to consider that enforcement action could be taken against some of the occupants but not all of them; (2) the council should have given further consideration to the issue of whether alternative sites could be found for the Travellers ;and (3) the council had failed to consider whether there were any individual families whose circumstances were such that an eviction would be disproportionate.
- Basildon council appealed. The Court of Appeal overturned the High Court decision and found in favour of the council. The Court of Appeal held that the council had given sufficient consideration to the case of each person and there was no breach of Article 8 of the European Convention of Human Rights. The decision of the European Court of Human Rights in Chapman v United Kingdom applied. Chapman stated that a court would be slow to protect those who, in conscious defiance of the law, established a home on an environmentally protected site. The Court of Appeal held that the persistent breaches of both planning control and the criminal law by the Travellers legitimately formed the basis of a decision to take direct action under section 178. Therefore, in light of all these factors, the action taken was lawful and the council could legally evict the Travellers living on the unauthorised site.
- In August 2011 the Travellers failed to win a last-minute injunction in the High Court in an attempt to halt the eviction. The case largely hinged on the circumstances of an occupant of Dale Farm, 72 year-old Mary Flynn, who had suffered a serious deterioration in health since the Court of Appeal decision. However, the judge was told by the council that this fresh material would be considered before proceeding against her. The judge ruled that the planning system had been efficient and fair. He stressed that it was in the public interest that there should be finality to the litigation and there were no exceptional circumstances that would justify the reopening of the judgment given by the Court of Appeal
- Basildon council set 19th September 2011 as the date for the eviction of residents of the unauthorised site on Dale Farm. However, on that very day the High Court granted the Travellers an emergency injunction restraining the council from clearing structures on the site pending a further hearing at the High Court on 23rd September. The crux of the judge’s decision was that the residents had not been sufficiently informed about what was allowed on each pitch and what must be removed. He held that the council had to inform residents, on a plot-by-plot basis, as to the enforcement measures which were being proposed.
- On 29th September 2011, at a further High Court hearing, the Travellers argued that Basildon could not achieve a full-scale site clearance that would restore the site to greenfield. At best it could only be a partial clearance. As such, eviction was disproportionate.
On 3rd October 2011, Mr Justice Edwards-Stuart ruled that most of the caravans at the Dale Farm Traveller site can be removed. Basildon now has permission to remove 49 out of 54 plots but, because of the wording of the eviction notice, it cannot remove the walls, fences and gates. The Council’s stated hope of “clearing” the site and returning it to green belt land is not, therefore, apparently possible. But, given the complexity of the arguments, who knows where the fate of Dale Farm lies. The permission to evict granted on 3rd October cannot begin immediately, as Travellers wait to hear about three separate judicial reviews concerning the legality of the eviction and an injunction preventing any removal from the site is expected to remain in force until at least a week. If the Dale Farm residents’ claim for a judicial review into the legality of the entire eviction fails, Basildon Council must then decide whether to spend £22 million on a partial eviction
In response to Mr Justice Edwards-Stuart’s decision, Dale Farm resident Kathleen McCarthy said:
“This will leave Dale Farm as a patchwork of concrete and fences, not the green belt the council are claiming it will be. Where are we supposed to go? They are separating families and ruining so many lives here, and for what? To turn Dale Farm into a scrapyard again. It’s ridiculous.”