Abolition of Regional Spatial Strategies: a planning vacuum? - Communities and Local Government Committee Contents

Written evidence by Dr. Angus Murdoch (ARSS 50)



The decision to revoke and then abolish the RSSs is unlawful because, inter alia, no assessment of the impact on those changes was undertaken by the Government to inform that decision. In particular, the impact on Romany Gypsies and Irish Travellers (both of whom are accepted as being ethnic minority groups for the purposes of Race Relations legislation) was not considered.

Moreover, whilst there remains such a substantial level of unmet need for further authorised sites for Gypsies and Travellers, the related proposals to reform the planning system in this area are ill-conceived and counter-productive.

"It is worse than useless to harass Gypsies from place to place unless some shelter or retreat is allowed"—Hoyland, 1815


Signaled first in the Secretary of State's ["SoS"] letter to the Chancellor on 25 June 2010, the Regional Spatial Strategies ["RSS"] were "revoked"—to be "abolished" in due course—by way of a letter dated 6 July 2010 to all Chief Planning Officers ["the SoS letter"]. In my view, the decision to revoke (and abolish) the RSS is unlawful because, inter alia, that change in policy was not subject to any public consultation; and no racial impact or equalities assessment was undertaken to inform that decision. My principal cause for concern is in relation to the impact of these changes on Gypsies and Travellers who, as I will demonstrate below, will be disproportionately affected.

That the SoS was aware that the revocation of the RSS would impact on Gypsies and Travellers is clear in the SoS letter: in the question and answer section on page four it states "that local councils are in the best place to assess the needs of Gypsies and Travellers in their area. The abolition of RSS will mean that local authorities will be responsible for determining the right level of site provision, reflecting local need and historic demand and bringing forward land in development plan documents. They should continue to do this in line with current policy. Gypsy and Traveller Accommodation Assessments (GTAAs) have been undertaken by all LPAs and if [they] decide to review pitch requirements in their Core Strategies, these assessments will form a good starting point. However, LPAs are not bound by the methodology adopted by the Regional Planning Boards in drawing up the GTAAs…"

It is also clear that Romany Gypsies and Irish Travellers are two groups specifically protected by domestic Race Relations legislation (see CRE v Dutton; and Allied Domec respectively). These groups are also accepted as ethnic minorities under the European Convention on Human Rights. In the case of Buckley-v-the UK (1996) the European Commission on Human Rights held that by refusing to grant planning permission for a Romany Gypsy to live in caravans on her own land and then commencing enforcement action against her, the LPA had violated her rights under Article 8 recalling:

"... that the applicant has been subject to enforcement measures and has been prosecuted in respect of her failure to cease occupying her land in her caravans. This is sufficient to constitute an interference with the terms of the first paragraph of Article 8. Whether there are viable alternatives open to [Mrs. Buckley] if she leaves her land is relevant to the consideration of the necessity of such interference." (emphasis added).

The Government accepted that the applicant's complaints concerned her right to respect for home and stated that it was unnecessary to consider whether the applicant's right to respect for her private and family life was also in issue…

The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate the education of their children. Measures, which affect the applicant's stationing of her caravans, have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition."

My short point, therefore is that the revocation (and abolition) of the RSS is unlawful because the impact on Gypsies and Travellers—particularly in the absence of any public consultation and racial/equalities impact assessment - has not been properly considered.

My second point requires a bit of historical context: for the first time in a generation there is a real possibility that the accommodation needs of Gypsies and Travellers might be addressed properly. However, there is an even greater danger that history will repeat itself, with local authorities trying to avoid meeting those accommodation needs just as they have with previous duties where Gypsies and Travellers are concerned, unless meaningful enforcement action is taken against recalcitrant local authorities by the Secretary of State in the first instance and ultimately, the Courts.

The evidence to support this assertion can be found in the experience of the State providing sites for Gypsies and Travellers these last 50 years or so: only a handful[67] of authorised sites were built when there was a power available to—rather than a statutory duty upon—local authorities to provide sites under the Caravan Sites and Control of Development Act 1960; therefore that power was made ultimately into a duty by the Caravan Sites Act 1968.

There was a "carrot and stick" element to the 1968 Act: for those authorities who had met the need for sites in their area, the "carrot" of Designation status provided for robust eviction powers to move on unauthorised sites. In terms of the "stick", local authorities that failed to make adequate provision could be "Directed" by the Secretary of State to provide the requisite number of sites in their area—a power that, though ultimately enforceable by the Courts, was seldom employed in practice. In fact, on not one single occasion did the Secretary of State actually seek assistance from the Courts to compel obedience to the law.[68] Had the power of Direction been used to ensure that all local authorities had met their duty to provide sites, then the accommodation problems facing us today would quite simply not exist.

The Courts have placed the issue of unauthorised encampments within a wider historical context that sees Gypsies and Travellers as more sinned against than sinning. Progressively restrictive legislation and policy have deprived Gypsy and Traveller communities of their traditional stopping places and park-ups, with inadequate alternative provision to replace them. To then criticise those communities for unauthorised camping today, is to poke out their eyes and blame them for being blind:

"For centuries the commons of England provided lawful stopping places for people whose way of life was…nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given powers to close the commons to Travellers. This they proceeded to do with great energy, but made no use of the concomitant power given to them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravan Sites Act 1968, therefore, Parliament legislated to make the s.24 power a duty…For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this Court holding local authorities to be in breach of their statutory duty, to apparently little practical effect….."[69]

Therefore, it was not the 1968 Act itself that failed—what failed was ensuring that local authorities met their duty under it to provide Gypsy sites. By the time the duty was repealed via the Criminal Justice and Public Order Act 1994, fewer than 40%[70] of local authorities had met their legal obligation to provide an adequate number of lawful sites and achieved Designation status.

The privatisation of Gypsy site provision: Circular 1/94 Gypsy sites and planning

Just as most local authorities effectively ignored the duties imposed on them under the 1968 Act, so most similarly failed to meet the requirements imposed on them by 1/94. This latter policy was supposed to introduce a "plan-led system for Gypsy site provision", wherein the Development Plan process would meet the need for sites in the following ways:

Local authorities would be required to quantitatively assess the extent of need for sites over the Plan period;

Such assessments were to provide the evidential basis for locational policies that showed where Gypsy sites could be lawfully accommodated;

Where it proved "impossible" to identify actual locations where Gypsy sites might be suitable, local authorities should produce "clear, realistic" criteria-based policies for assessing applications that could not have been foreseen in the Development Plan.

Back in 1994 then Shadow Lord Chancellor, Lord Irvine of Lairg could see that:

"There is humbug at the heart of the government's policy. The humbug is not simply that what they are suggesting is unrealistic as a solution to the problem of unauthorised sites; it is also that at the same time as they suggest that private site provision is the solution on which we should rely, they are making such provision more difficult by altering national planning policies. The real effect of the legislation, which they dare not openly avow, is to make those who have no lawful place to reside in their vehicles disappear through the imposition of criminal sanctions."

It is to be regretted that, just as with the former statutory site provision duty, yet again the majority of local authorities failed to meet their obligations under 1/94. There was almost universal agreement—from groups as diverse as the Local Government Association, the Royal Town Planning Institute, Gypsies and Travellers themselves, and people affected by the inevitable unauthorised sites that flow from under-provision—that that Circular 1/94 was an utter failure. In consequence a root and branch policy review commenced in 2001:

"…because… 1/94 has failed to deliver adequate sites for Gypsies and Travellers…over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities' duty to provide Gypsy and Traveller sites there have been more applications for private Gypsy and Traveller sites. However, LPAs have refused the majority of these. A new direction is necessary to ensure that the accommodation needs of Gypsies and Travellers are addressed with the same consideration as is given to the accommodation needs of other sections of the community. This will also help to promote good community relations at the local level, and avoid the conflict and controversy associated with unauthorised developments and encampments." (DCLG, 2004 paragraphs 2-3)

The CLG concluded that the issue of unauthorised camping and developments is a consequence of under-provision:

"…There is a serious shortage of sites for Gypsies and Travellers across the country. This has led to a growing tendency for Gypsies and Travellers to buy land and develop it without planning permission. This goes back to 1994 when the Government of the day removed the duty on Local Authorities to provide appropriate sites…The solution: Gypsies and Travellers must have somewhere to go… If they cannot find an authorised site, their only alternative is to camp somewhere that is not authorised. So it is clear that the problem of unauthorised development and encampments can only be solved by the provision of more public or private sites." (DCLG, 2005 Gypsies and Travellers—The Facts)

The human and social consequences of this shortfall in lawful site provision are becoming increasingly evident, as the Joint Committee on Human Rights recently found when they expressed

"…concern at the discrimination [Gypsies and Travellers] face, reflected in their higher child mortality rate, exclusion from schools, shorter life expectancy, poor housing conditions, lack of available camping sites, high unemployment rate and limited access to health services…Evidence…attests to the multiple discrimination faced by Gypsies and Travellers, and their exceptional level of social exclusion…It is unequal access to adequate and culturally appropriate accommodation, however, which lies at the root of many of the inequalities that face Gypsies and Travellers. In their evidence to us, the Gypsy and Traveller Law Reform Coalition emphasised the consequences of insecurity of tenure for the health and education of Travellers, and the … detrimental impact which eviction and the lack of secure sites had on the welfare of Traveller children …"

In December 2004 the DCLG launched the Consultation paper which, as Circular 1/06 Planning for Gypsy and Traveller caravan sites replaced 1/94. That Consultation exercise was informed by research conducted by Pat Niner, whose work concluded that

"Perhaps the most striking impression from this spectrum of research and reports from almost forty years is the similarity of the issues and concerns being discussed, and the resistance of the problems being identified to "solution"… There are particular continuities in terms of basic demographic factors, poor health, prejudice and discrimination on the part of the settled community and very poor living conditions… experienced by Gypsies and other Travellers not living on authorised sites. Resistance to site provision and objections from the settled community to proposals for development are recurring themes…" (DCLG 2003 p40)

The main intentions of 1/2006:

A new Circular is necessary because evidence shows that the advice set out in Circular 1/94 has failed to deliver adequate sites for gypsies and Travellers in many areas of England over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities' duty to provide Gypsy and Traveller sites there have been more applications for private Gypsy and Traveller sites, but this has not resulted in the necessary increase in provision.

Creating and sustaining strong communities, for the benefit of all members of society including the Gypsy and Traveller community, is at the heart of the Government's Respect Agenda. These communities will depend ultimately on a shared commitment to a common set of values, clear rules and a willingness for people to act together to resolve differences.

This circular will help to promote good community relations at the local level, and avoid the conflict and controversy associated with unauthorised developments and encampments.

Gypsies and Travellers are believed to experience the worst health and education status of any disadvantaged group in England. Research has consistently confirmed the link between the lack of good quality sites for Gypsies and Travellers and poor health and education. This circular should enhance the health and education outcomes of Gypsies and Travellers.

The planning tools which the Planning Act (2004) makes available and the associated move to more positive planning will help deliver communities that are sustainable and work better for people.

Circular 1/2006's intention of replacing unauthorised sites through the provision of authorised sites in suitable locations by 2011 would have succeeded had LPAs complied with the law and policy in this area. Although there has been a steady increase in site provision since 2006, unfortunately much of this has been in the form of temporary permissions whilst more appropriate sites were to be provided by LPA's in their Development Plan Documents (DPDs) (see the transitional arrangements at paragraphs see 41-46). If the Circular is withdrawn, then when those temporary permissions expire shortly, the current shortfall in authorised sites of approximately 20% will increase significantly with no effective mechanism for site creation. This situation will be exacerbated by the withdrawal of the 100% grant which until recently was available to LPAs to build and renovate sites.



Unfortunately, the emphasis in the proposed reforms seems to be towards yet stronger enforcement against those unauthorised sites which the under-provision of authorised sites necessarily ensures, whilst enforcement against the recalcitrant authorities whose avoidance of successive responsibilities has created that very situation, is ignored. The resultant unauthorised sites are the cause of social conflict, as the Secretary of State acknowledged during a Local Plan Inquiry recently:

"…On the question of maintaining community relations... the Secretary of State considers that the proper identification of appropriate and authorised sites for Gypsies and Travellers, as opposed to leaving them to fend for themselves by camping on unauthorised sites, would be more likely to assist the promotion of harmonious community relations than undermine them."

In my view, what is required is for the intentions of Circular 1/2006 to be enforced against all LPAs. This includes restoring the RSS figures on need as history shows that without central direction, LPAs will not meet the accommodation needs of Gypsies and Travellers, resulting in a lose-lose position for both Gypsies and Travellers and the settled community alike.

September 2010

67   By my reading, only nine sites, providing 25 pitches, were created in the eight years between the power to create sites being enacted and that power being made mandatory.  Back

68   Interestingly, the written evidence from the DCLG to the Select Committee in June 2004 fails to even refer to the power of Direction when discussing the context for the current provision and location of sites for Gypsies. Back

69   Sedley, J (now LJ) alluded to this problem in R v Lincolnshire County Council, Ex p Atkinson (1995) 8 Admin LR 529 at 533. Back

70   See the Memo @ 4.4. Back

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