Written evidence by Dr. Angus Murdoch
(ARSS 50)
PUTTING THE CART BEFORE THE HORSE
SUMMARY
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
INTRODUCTION
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.
ENFORCEMENT BEFORE
PROVISION IS
PUTTING THE
CART BEFORE
THE HORSE
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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