Nowhere to call home

From Inside Housing

Scrapping planning rules gives councils carte blanche to evict Gypsies and Travellers, says Marc Willers, barrister at Garden Court Chambers

Romany Gypsies and Irish Travellers have lived in the UK 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.

Unauthorised developments

In 2005, the government strengthened the planning enforcement powers which could be used to tackle unauthorised developments. Local authorities were given the power to issue temporary stop notices which could be used to prohibit unauthorised development with immediate effect. However, at that time the government recognised that TSNs could have a disproportionate impact on Gypsies and Travellers if they were used while there was a significant lack of sufficient sites to meet their accommodation needs.

As a result, the government issued regulations which prohibited the use of TSNs where a caravan was a main residence, unless there was a risk of harm to a compelling public interest that was so serious as to outweigh any benefit to the occupier of the caravan.

Successful legislation

The regulations were sensible, perfectly balanced and clearly designed to ensure that TSNs were used lawfully and not in circumstances where to do so would violate the human rights of a Gypsy or Traveller. The regulations served their purpose: more than 2,000 TSNs have been issued since 2005 by local authorities to stop a wide variety of unauthorised development, including Gypsy and Traveller sites, without legal challenge.

But on 4 May 2013, the government revoked the regulations. Why now? The revocation might be understood if sufficient caravan sites had been constructed, but 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 government replaced its predecessor’s positive planning policy with its own ‘light-touch guidance’ requiring every local authority to identify a five-year supply of deliverable caravan sites to meet the needs of Gypsies and Travellers in their area by March 2013. However, not a single council has yet complied with the guidance and there seems little likelihood progress will be made until local authorities are required by law to make adequate provision.

‘Light-touch guidance’

The government argues local authorities should be permitted to determine for themselves whether the use of a TSN is a proportionate and necessary response, as part of its localism agenda. Even so, the coalition intends to issue yet more ‘light-touch guidance’ to assist councils.

Whatever the real motive for the revocation, without regulatory safeguards in place, there is a real risk that the power to issue TSNs will be misused. Whatever form the ‘light-touch guidance’ takes, it will be no more than guidance and TSNs risk being used in circumstances where the unauthorised development causes little harm and/or where the personal circumstances of families clearly outweigh any harm to the environment or other matters of planning importance.

The use of TSNs 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.

Left defenceless

In theory, a decision to issue a TSN can be challenged by judicial review. However, in practice, a Gypsy or Traveller wishing to challenge a TSN which requires their family to vacate a site immediately is likely to find it difficult to instruct solicitors with the appropriate expertise to judicially review a council that has misused its powers (especially if the 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 TSNs 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 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 whatever the circumstances. Rather than tinker with well-balanced and proportionate planning enforcement powers, the government would be better advised to address 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.