Marc Willers examines why changes to temporary stop notice provisions risk forcing Gypsies and Travellers onto the roadside.
Romani Gypsies and Irish Travellers have lived in the United Kingdom in their caravans in accordance with their traditional way of life for centuries. However, their ability to do so in the last 50 years has been curtailed by legislative measures and a failure on the part of both central and local government to ensure that sufficient caravan sites are constructed to meet their needs.
In 2005 Sarah Spencer, one of the Commission for Racial Equality’s Commissioners, noted that Gypsies and Travellers remained amongst the most vulnerable members of our society and summarised the difficulties faced by those without lawful sites in the following terms:
Lacking sites on which to live, some pitch on land belonging to others; or on their own land but lacking permission for caravan use. There follows a cycle of confrontation and eviction, reluctant travel to a new area, new encampment, confrontation and eviction. Children cannot settle in school. Employment and health care are disrupted. Overt discrimination remains a common experience … There is a constant struggle to secure the bare necessities, exacerbated by the inability of many adults to read and write, by the reluctance of local officials to visit sites, and by the isolation of these communities from the support of local residents … But we know that these are communities experiencing severe disadvantage. Infant mortality is twice the national average and life expectancy at least 10 years less than that of others in their generation.
In the same year the government decided to strengthen the planning enforcement powers which could be used to tackle unauthorised developments. Local authorities were given the power to issue temporary stop notices (TSN) which could be used to prohibit unauthorised development with immediate effect. However, at that time the government recognised the fact that the use of TSN could have a disproportionate impact on Gypsies and Travellers if they were issued whilst there remained a significant lack of sufficient sites to meet their accommodation needs. As a consequence, the government issued regulations which prohibited the issue of a TSN where a caravan was being used as a main residence, unless there was a risk of harm to a compelling public interest arising from the stationing of the caravan that was so serious as to outweigh any benefit to the occupier of the caravan for the period for which the TSN had effect.
The TSN regulations were sensible, perfectly balanced and clearly designed to ensure that TSN were used lawfully and were not issued in circumstances where to do so would violate the rights of a Gypsy or Traveller which are protected by Article 8 of the European Convention on Human Rights (the right to respect for the home and family life). Evidence shows that the TSN regulations served their purpose: more than 2000 TSN have been issued since 2005 by local authorities to stop a wide variety of unauthorised development (including where it was appropriate to do so, the establishment of Gypsy and Traveller sites) without legal challenge.
On 4 May 2013 the TSN regulations were revoked by the coalition government. Why now? The revocation might be understood if sufficient caravan sites had been constructed to meet the accommodation needs of Gypsies and Travellers but the reality is that there has been little improvement in site provision since 2005. Indeed, the slow progress which had been made came to a shuddering halt in 2012 when the coalition government replaced its predecessor’s positive planning policy on the site provision with its own ‘light touch guidance’. The new guidance did require every local authority to identify a 5-year supply of deliverable caravan sites to meet the needs of Gypsies and Travellers in their area by March 2013. However, true to form, not a single council has yet complied with the guidance and there seems little likelihood that any real progress will be made unless and until local authorities are required by law to make adequate provision.
The coalition government claims that its revocation of the TSN regulations chimes with its localism agenda: that local authorities should be permitted to determine for themselves whether the use of a TSN is a proportionate and necessary response to a breach of planning control; and that their hands should not be tied by central government. That said, the coalition government has indicated that it intends to issue yet more ‘light touch guidance’ to assist councils to use their powers effectively and with due consideration.
Whatever the real motive for the revocation, the fact is that without the regulatory safeguards in place there is a real risk that the power to issue TSN will be misused. Whatever form the ‘light touch guidance’ takes it will be no more than guidance and the risk is that TSN will be used in circumstances where the unauthorised development causes little harm and/or where the personal circumstances of members of the Gypsy or Traveller family concerned (for example, their health or educational needs) clearly outweigh any harm to the environment or other matters of planning importance.
The use of TSN in such circumstances has a high human cost. Forcing a Gypsy or Traveller family back onto the roadside will cause them to suffer considerable hardship. They will have to live without proper sanitation, access to schooling or appropriate healthcare provision and under the constant threat of eviction wherever they stop.
In theory, a decision to issue a TSN can be challenged by way of judicial review. However, in practice a Gypsy or Traveller wishing to challenge a TSN which requires his family to vacate a site with immediate effect is likely to find it very difficult to instruct a firm of solicitors with the appropriate expertise to judicially review a council that has misused its powers (especially if the coalition government’s proposed cuts to legal aid in judicial review cases are implemented). Unfortunately, the absence of an effective means of challenging unlawful decisions may encourage some local authorities to use TSN in situations where they are not warranted, safe in the knowledge that their decisions are unlikely to be scrutinised by the courts.
All in all it seems that the coalition government’s decision to revoke the regulations was ill advised – unless of course its real motive for doing so was to give local authorities carte blanche to evict Gypsies and Travellers from land whatever the circumstances. Rather than tinker with well balanced and proportionate planning enforcement powers the coalition government would be far better advised to put its effort into addressing the accommodation needs of Gypsies and Travellers. With sufficient sites in place the cost of planning enforcement will be minimised and Gypsies and Travellers and their children will be able to achieve their true potential and make an effective contribution to our society; without them, many Gypsies and Travellers will be condemned to continue living on the road to nowhere.
An abridged version of this blog was published in Inside Housing on 12 July 2013.