House of Commons - Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions

Select Committee on Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions Thirteenth Report

2 BACKGROUND - LEGISLATION AND POLICY

Accommodation Provision

The Caravan Sites and Control of Development Act 1960

13. Under section 24 of this Act, local authorities were given discretionary powers to provide caravan sites, but there was no mandatory duty. The aim was to regularise static caravan sites and raise standards for sites residents through requirements for planning permission and site licences. Caravans were prohibited from common land. This led to a reduction in the number of places where Gypsies could stop. Some central funds were available to fund provision of sites, but by 1967 only 14 had been built.

THE CARAVAN SITES ACT 1968

14. This Act, which came into force in 1970, placed a duty on county councils and districts to provide accommodation for Gypsies residing in and resorting to their areas. The Act required counties to assess the level of provision required, and to acquire the land. In Shire counties districts were responsible for the management of sites. If the Secretary of State deemed adequate provision to have been made, counties (and later individual districts) could apply to be 'designated'. This gave them increased powers to deal with illegal encampments. There was no time-scale given for local authorities to make provision, and some authorities failed to meet their obligations. The Secretary of State could direct a county to make adequate provision of sites but these powers were rarely used.

15. To ensure adequate numbers of sites and monitor progress in meeting the provisions of the 1968 Act, a bi-annual count of Gypsy caravans and families was introduced in England in 1979. It is voluntary, although has a high return rate; 94% of authorities completed the relevant form in January 2003. The Count is based on two returns made by local authorities to the Office of the Deputy Prime Minister:

GS1 is a count of the number Gypsy caravans, families, adults and children on unauthorised sites, authorised local authority sites and authorised private sites in each local authority area on specified dates in January and July. Numbers on unauthorised sites are split according to land-ownership (Gypsy owned land and other) and 'toleration' status (local authorities may 'tolerate' some unauthorised encampments in the sense that they will not take enforcement action).

GS2 assess the provision of local authority Gypsy sites. This return requires details of the address, total number of pitches, type of pitches (residential and transit), total caravan capacity, and date of opening for all local authority Gypsy and Traveller sites at a specified date in January each year.

CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994 (CJPOA)

16. Section 80 of this Act repealed the duty imposed on councils by the 1968 Act to provide sites. Grant aid for the provision of sites was also withdrawn. Further sections of the Act, which are explained later, dealt with police and local authority powers to remove unauthorised campers.

HOUSING ACT 1996

17. This Act defined a person as homeless if they have accommodation but:

i. Cannot secure entry to it, or

ii. It consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

Consequently Gypsies on unauthorised sites are, by law, homeless.

HOMELESSNESS ACT 2002

18. By July of 2003, all local authorities were required to develop housing strategies that reviewed and predicted levels of homelessness within the authority's area. The strategy is required to ensure there is sufficient accommodation for all homeless people in the area.

GYPSY SITES REFURBISHMENT GRANT

19. The Office of the Deputy Prime Minister introduced this Grant in 2001 to provide funding for refurbishment of existing local authority Gypsy and Traveller sites in England. £17 million was made available over three years to local authorities, who were required to bid for funds. The grant provided 75% of the total costs, with local authorities funding the remainder. For 2003/04 the grant was extended to allow local authorities to bid for funds to build temporary sites and emergency stopping places. A further two years funding of £16 million was announced for 2004/5 and 2005/6.

Discrimination and Equal Opportunities Legislation

The Race Relations Act 1976, and Race Relations (Amendment) Act 2000

20. This Act places a duty on public authorities, including local authorities, to eliminate unlawful discrimination and promote equal opportunities and good race relations. The Act requires local authorities to assess the impact of any proposed policies on all ethnic minorities; and to have due regard to the need to eliminate unlawful racial discrimination, to promote equality of opportunity and good relations between persons of different racial groups. Gypsies were recognised as an ethnic minority in 1989, and Irish Travellers in 2000.

THE HUMAN RIGHTS ACT 1998

21. This Act came into effect in October 2000 when provisions of the European Convention on Human Rights were incorporated into UK law. The Act makes it unlawful for a public authority to act in breach on Convention Rights unless it could not have acted differently under primary legislation. Any interference with a Convention Right must be proportionate to the objective in question and must not be arbitrary, unfair or oppressive.

22. Several Articles of the Act are important in relation to Gypsies and Travellers:

a) Article 1 states:

i. Every natural person or legal person is entitles to the peaceful enjoyments of his possessions.

ii. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by the law and by the general principles of international law.

b) Article 8 states:

ii. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.

In relation to Article 8 the European Court of Human Rights has held that, "occupation of [a] caravan is an integral part of [...] ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though […] many gypsies increasingly settle for long periods on one place […]."[10]

23. Other Articles are also relevant:

b) Article 3, prohibiting inhuman or degrading treatment

c) Article 11, freedom of peaceful assembly and association

d) Article 14, prohibition against discrimination in the enjoyment of the other rights and freedoms in the Convention on the grounds of personal circumstance.

Planning Law and Guidance

Town and Country Planning Act 1990 (TPCA 1990) and Planning and Compensation Act 1991

24. Planning legislation is the main tool used to tackle unauthorised development on land owned by Gypsies and Travellers. Under the TCPA 1990, local planning authorities have a number of powers:

a) Where an apparent breach of planning control has taken place, a planning contravention notice may be served requiring information regarding activities on the land or interests in the land.

b) An enforcement notice may be served requiring that steps be taken to remedy a specified breach within a given period of time.

c) Direct action may be taken where steps required by an enforcement notice have not been taken within the compliance period.

d) A stop notice may be served which immediately stops any activity which contravenes planning control.

e) A breach of condition notice may be served where a condition or limitation imposed through a planning permission is not complied with. There is no statutory right of appeal against a breach of condition notice.

f) High Court or County Court injunctions may be served in order to restrain any actual or expected breach of planning control.

g) Compulsory purchase can take place following authorisation from the Secretary of State.

In addition, local authorities have the option to take civil action for trespass in their capacity as landowners.[11]

CIRCULAR 1/94: GYPSY SITES AND PLANNING

25. This circular offered guidance on the planning aspects of Gypsy sites including: suitable locations; design; development plan policies; consulting with Gypsies and their representatives; and dealing with applications for sites. The intention was "to provide that the planning system recognises the need for accommodation consistent with gypsies' nomadic lifestyle".[12]

26. The circular noted that the removal of local authorities' duty would probably lead to more applications for private Gypsy sites. Local authority structure plans were expected to set out strategic policies and provide a framework for site provision. Local planning authorities were to quantify need for Gypsy accommodation in their districts, and where possible identify locations suitable for development as sites. Where this was not possible, they should set out clear, realistic criteria for suitable locations.

27. The circular contained an important change in location policy which "withdrew the previous guidance indicating that it may be necessary to accept the establishment of gypsy sites in protected areas, including green belts." The circular emphasised that "as a rule, it will not be appropriate to make provision for gypsy sites in areas of open land where development is severely restricted, for example, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest and other protected areas. Gypsy sites are not regarded as being among those uses of land which are normally appropriate in green belts"[13] and that "proposals for gypsy sites should continue to be determined solely in relation to land use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, […], countryside, environmental and green belt policies. The aim should always be to secure provision appropriate to gypsies' accommodation needs while protecting amenity."[14]

28. On 27 May 1998, the department then responsible, the Department of Environment, Transport and the Regions, wrote to all chief planning officers to remind them of the requirements of circular 1/94 to include realistic policies in local plans. In relation to unauthorised encampments the circular stated:

"If planning permissions are required but not obtained for a gypsy site and the local planning authority is considering possible enforcement action, they should be guided by the policy advice in PPG18. Local planning authorities should regard gypsies in the same manner as small businesses when considering possible enforcement action. The existence or absence of policies for gypsy sites in development plans could constitute a material consideration in matters of enforcement."[15]

CIRCULAR 18/94: GYPSY SITES POLICY AND UNAUTHORISED CAMPING

29. This circular, issued in November 1994, provided additional guidance for local authorities following the Criminal Justice and Public Order Act 1994, which repealed the duty on local authorities to provide and manage Gypsy and Traveller sites.

30. This circular clarified the definition of a Gypsy, drawing attention to The Court of Appeal's recent definition of Gypsies as persons who wandered or travelled for the purpose for making or seeking their livelihood. It excluded persons to whom this could not be applied.

31. The Department of Environment, Transport and the Regions updated this circular on 26 July 2000. The update drew a distinction between unauthorised camping where there are no problems and no criminal offences, which should be tolerated unless there are vacancies on an authorised local authority site; and unauthorised camping where there is anti-social or criminal behaviour which should not be tolerated in any circumstances. Where there are no available authorised pitches and no nuisance is being caused, local authorities are advised to consider providing basic services including drinking water, a skip and toilets.

32. The circular emphasised that local authorities need to act in a humane and compassionate way taking into account the rights and needs of Gypsies, land owners and the wider community. The responsibilities to Gypsies and Travellers of local authority services, such as housing, social services, education and health and welfare were emphasised. An additional paragraph added that "Local authorities should try to identify possible emergency stopping places, as close as possible to the transit routes used by gypsies, where gypsy families would be allowed to stay for short periods."[16]

PLANNING POLICY GUIDANCE 1: GENERAL POLICY AND PRINCIPLES

33. This 1997 guidance advises on the approach to be adopted when determining planning applications:

"Where an adopted or approved development plan contains relevant policies, section 54A requires that an application for planning permission or an appeal shall be determined in accordance with the plan unless material considerations indicate otherwise. Conversely, applications which are not in accordance with relevant policies in the plan should not be allowed unless material considerations justify granting a planning permission. Those deciding such planning applications or appeals should always take into account whether the proposed development would cause demonstrable harm to interests of acknowledged importance In all cases where the development plan is relevant, it will be necessary to decide whether the proposal is in accordance with the plan and then take into account other material considerations."[

The applicant has a responsibility to demonstrate that material considerations outweigh the policies on an up-to-date development plan. In addition, the personal circumstances of an applicant may be material to the determination of an application.

PLANNING POLICY GUIDANCE 3: HOUSING

34. PPG3 states that local planning authorities should work jointly with housing departments to assess the needs for different types and sizes if housing across all tenures. Assessments should include housing to meet the needs of specific groups, including Travellers and occupiers of mobile homes.[18]

PLANNING POLICY GUIDANCE 12: DEVELOPMENT PLANS

35. This guidance states that:

"As circular 1/94 makes clear, plans should wherever possible identify locations suitable for gypsy sites, whether local authority or private sites. Where this is not possible, they should set out clear, realistic criteria for suitable locations as a basis for site provision policies. They should also identify existing sites which have planning permission, whether occupied or not, and should make a quantitative assessment of the amount of accommodations required."[

PLANNING POLICY GUIDANCE 18: ENFORCING PLANNING CONTROL

36. This guidance, dating to December 1991, is referred to in circular 1/94. The relevant section, on unauthorised development by small businesses or self-employed people, concludes that, "Nevertheless, effective enforcement action is likely to be the only appropriate remedy if the […] activity is causing irreparable harm".[20]

ADDITIONAL GUIDANCE

37. Further PPGs are relevant to the development of Gypsy and Traveller sites, including PPG2 which advises on development within green belt areas; PPG7 which covers the countryside, environmental quality and economic and social development; and PPG13 on transport which stresses that new development should be within developed urban areas close to existing services and public transport in order to promote sustainability.

Local Authority and Police Powers

Criminal Justice and Public Order Act 1994 (CJPOA)

38. This Act provides the police and local authorities with powers to tackle unauthorised encampments where no trespass is involved. A senior policeman can direct people to leave land if they have 6 vehicles or more. It is an offence to refuse or to return within 3 months. The police can seize vehicles if the order to leave is not adhered to. Case law has determined that any period of notice given to those encamped must have expired before the police can order people to leave.

39. Local authorities have the power to direct unauthorised campers to leave and to remove vehicles. Failure to comply with this order is an offence and the local authority can apply to the local magistrates' court for an order requiring the removal of vehicles and occupants from the land.

ANTI-SOCIAL BEHAVIOUR ACT 2003

40. On 26 July 2002, the Office of the Deputy Prime Minister and the Home Office issued a joint press release outlining the Government's new approach to tackling unauthorised camping, introducing stronger police powers to move unauthorised encampments provided there was adequate site provision. The powers were provided under the Anti-Social Behaviour Act. This Act provided the police with additional powers when a suitable pitch is available on a relevant site. A relevant site is defined as one within the same local authority area, although in a two tier authority, the availability of a pitch would be on a county-wide basis. There is no definition of 'suitable pitch'. The powers of the Act may be used when:

a) At least two people are trespassing;

b) There is at least 1 vehicle;

c) It appears that there are 1 or more caravans or;

d) The trespassers are on the land for the purpose of residing there for any period of time.

In such circumstances, a police officer may direct trespassers to move off the land. However, the police and local authority are bound by the Human Rights Act and the local authority should first undertake a welfare check at the encampment. Efforts should be made to keep members of the encampment together; where this is not possible, dependant members of the encampment should not be separated.

GUIDANCE ON MANAGING UNAUTHORISED CAMPING

41. In February 2004 the Office of the Deputy Prime Minister and the Home Office published guidance on managing unauthorised camping. It identifies a number of principles to be followed in managing unauthorised camping:

"Although unauthorised camping is unlawful, it is likely to continue while there are insufficient spaces to accommodate Gypsies and travellers on authorised sites. While more places are being provided, it is vital that local authorities, with their police and other partners, pro-actively manage encampments to minimise the disruption caused. The principles involved are:

To enforce the same standards of behaviour by unauthorised campers as are expected of the settled community.

To respond rapidly to any deterioration of behaviour and growing disruption from an encampment.

To facilitate access to services for Gypsy and Travellers on encampments.

To keep all parties informed of decisions and actions."[21]

The guidance also recommends development of a co-ordinated strategy by all involved authorities:

"It is primarily aimed at local authorities and police who share responsibility for managing unauthorised camping, but will also be relevant to all bodies likely to be involved in partnership approaches. While the guidance is advisory, local authorities and police are strongly advised to bear it in mind when devising and implementing their approaches, and are reminded that the courts may consider it as a material consideration in eviction or other enforcement decisions."

Research and Reports

42. A number of reports have been produced in recent years which have made suggestions as to how Gypsy and Traveller accommodation policies could be improved. In 2004 the Institute for Public Policy and Research produced "Moving Forward - the provision of accommodation for travellers and gypsies". This report recommended that:

a) Local authorities include Gypsies and Irish Travellers in the Equalities Standard as a matter of urgency.

b) Local authorities should develop overreaching strategies for the travelling community in all areas, including housing, social care and welfare, education, health and public information.

c) Local authorities should be required to make provision for sites within their Local Development Frameworks (LDFs).

d) Local authorities should produce and/or review their Homelessness Strategies to ensure compliance with the Race Relations (Amendment) Act 2000.[22]

43. In 2003, the ODPM commissioned the Centre for Urban and Regional Studies at the University of Birmingham to carry out a desk-top study of the bi-annual Gypsy count. Also in 2002 the Centre conducted further research for ODPM into "The Provision and Condition of Local Authority Gypsy/Traveller sites in England".

44. In 2003 this Committee conducted pre-legislative scrutiny of the draft Housing Bill. In our report we recommended that within two years the Government should re-introduce a statutory duty on local authorities to make or facilitate provision of sites for Gypsies and Travellers.[23] In their response the Government stated, "it is actively considering the most effective mechanism for the provision of such sites to ensure that the accommodation needs of travellers are met".[24]

45. In May 2003 the Welsh Assembly Equality of Opportunity Committee published their "Review of Service provision for Gypsies and Travellers". They recommended that "there should be a duty to provide, or facilitate the provision of accommodation for Gypsies and travellers and that this should be supported by additional funding".[25]

46. In March 2004 the Barker Review of Housing Supply, "Delivering Stability: Securing our Future Housing Needs" was published. The objectives of the Review were:

To achieve improvements in housing affordability in the market sector;
A more stable housing market;
Location of housing supply which supports patterns of economic development; and
An adequate supply of publicly-funded housing for those who need it.

The last bullet point may, through housing strategies and needs surveys, result in a requirement to provide additional local authority sites for the travelling community.

47. The Office of the Deputy Prime Minister is currently conducting a review of Gypsy and traveller accommodation. The review was due to report to Ministers in the summer of 2004. As part of this review, some Gypsies and Travellers have participated in seminars with officials from the Office of the Deputy Prime Minister.

Policy Development

48. Circular 1/94 is being revised, it is anticipated that a new draft will be published for consultation in autumn of 2004. Planning Policy Statements are also currently being produced to replace Planning Policy Guidance. A number of Planning Policy Statements will be relevant to provision of accommodation for Gypsies and Travellers:

Draft PPS1 outlines principles of sustainability, relevant to location of sites.

Draft PPS2 will relate to green belt areas.

Draft PPS3 on housing is expected to refer to Gypsy and Irish Traveller requirements in the light of the Race Relations (Amendment) Act 2000.

Draft PPS11 on regional planning outlines how Regional Spatial Strategies will introduce documents with both a regional and sub-regional agenda as part of development plans. There is a requirement to look at issues of race quality.

Draft PPS12 on Local Development Frameworks explains how local development frameworks should "act as the land use and development delivery mechanism for the objectives and policies set out in the community strategy"[26], providing joined up policies to meet community needs. Local Development Frameworks will require community involvement in their production, including that of Gypsies and Irish Travellers as ethnic minorities.

In addition Regional Housing Strategies have to be produced by 2007; work should start on these at the end of 2005.

Planning Appeals

49. The legislative position is frequently complicated by decisions made in relation to specific planning and eviction appeals, where the decisions often appear to be contradictory. A study by WS Planning highlighted that the majority of appeals identified were centred around the following issues:

Gypsy status;

Previous discussions with local planning authority;

Previous planning history of site;

Quantitative assessment of the need for additional Traveller sites;

Assessment of alternative site availability;

Availability of vacancies on nearby sites;

Local plan Gypsy policy and site selection criteria;

Appropriateness of development (for example, green belt or countryside beyond);

Conflict with national or local policies;

Demonstrable harm to interests of acknowledged importance;

Nationally or locally protected landscapes;

Character of site as against surrounding area;

Harm to visual appearance and character if the countryside (impact): possible mitigation;

Impact on built and natural conservation features in locality;

Impact on local residents;

Personal needs of the appellant for a site;

Local connections and personal circumstances - relationships, family, health, work connections;

Educational needs of children;

Financial status of individual and cost of land;

Highway safety and access criteria;

Sustainability; and

Human Rights Act Article 8, 1 Protocol 1 and Article 14.[27]

50. WS Planning assessed recent appeals and found that decisions made by inspectors appeared to be inconsistent. For example, a planning inspector considering a site in Bristol in November 2003 rejected the Gypsy appellant's case on the basis that the site was not sustainable, and therefore not in accordance with PPG13. The inspector concluded that:

In contrast, an inspector considering an appeal at the Pennypot Lane Showmen site did not think global principles of sustainability helpful. He considered travelling showpeople to be a small proportion of the community, and their land requirements modest, although unusual. Such inconsistencies make it difficult for Gypsies and Travellers and planning inspectors to assess the likelihood of success at appeal and may encourage speculative appeals, supported by specialist law firms.

10 WS Planning, Strategic Assessment of Travellers' Needs in Surrey, April 2004 Back

11 WS Planning, Strategic Assessment of Travellers' Needs in Surrey, April 2004 Back

12 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Gypsy Sites and Planning, Circular 1/94, p 1 Back

13 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Gypsy Sites and Planning, Circular 1/94, p 1 Back

14 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Gypsy Sites and Planning, Circular 1/94, p 13 Back

15 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Gypsy Sites and Planning, Circular 1/94, p 26 Back

16 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Guidance on Managing Unauthorised Camping, Circular 18/94 Back

17 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, General Policy and Principles, PPG 1, p 40 Back

18 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Housing, PPG 3, p 13 Back

19 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Development Plans, PPG 12, p 4.14 Back

20 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Enforcing Planning Control, PPG 18, p 17 Back

21 Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions, Guidance on Managing Unauthorised Camping, p 7.1 Back