Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013

Debate between Baroness Whitaker and Lord Avebury

Monday 17th June 2013 Lords Chamber

[Lord Avebury]

My Lords, this order removes the restriction from the Town and Country Planning Act 1990 on a local authority’s powers to serve a temporary stop notice in respect of caravans which are used by the occupants as their main residence, where there is a suspected breach of planning control. Hitherto, a local authority could issue a TSN in these circumstances only if it considered that the risk of harm to a compelling public interest arising from stationing the caravan on the land in question was so serious that it outweighed any benefit to the occupier of the caravan of stationing the caravan there for the period of a TSN.

The Government say that unauthorised caravans can often cause immediate and significant impact on the local area and that this is no longer to be weighed against the interests of the occupiers. The order equalises the planning authority’s powers in regard to caravans used as a person’s main residence with other types of development. That is the point. Parliament has rightly in the past made a distinction between a caravan which is somebody’s home and all other types of development. There is a huge difference between stopping ordinary breaches of planning control and depriving a family of their home, with devastating consequences for their future. Not only do they become homeless, but their access to education, health and other public services is seriously prejudiced.

The Community Law Partnership deals with a great many planning cases on behalf of Gypsies and Travellers and in its response to the consultation, it said that the untrammelled use of TSNs would lead to breaches of Articles 6, 8 and 14 and the first protocol of the European Convention on Human Rights. Article 6 deals with the right to a fair hearing and there is, of course, no appeal against a TSN. Article 8 covers the right to respect for private and family life, which is obviously impaired when a person or family is evicted. If councils provide a five-year rolling supply of land with planning permission for Traveller sites—as required by 31 March this year under the CLG’s Planning Policy for Traveller Sites—and if they refrain from using these powers until those sites are provided, a great deal of unnecessary human suffering would be avoided. It would also avoid the additional public spending which is incurred in dealing with the health, social and educational problems caused by the notices.

Not a single local authority has implemented PPTS, three months after the Government’s deadline. Essex, for example, expects only to complete the preparatory assessment of need demanded by the policy six months hence; and no authority has identified the required five-year supply of deliverable sites. That word “deliverable” means that they should be,

“available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years”.

I would be grateful if the Minister would explain why this information, which is so crucial to the success of the Government’s strategy for Gypsies and Travellers, is not collected centrally. When a delegation from the Gypsy APPG asked Brandon Lewis, the junior Minister at the CLG, this question last Tuesday, he said that it would be a top-down approach, contrary to the philosophy of this Government. He added that it was up to local planning inspectors to deal with the failure of councils to comply with the PPTS as they saw fit.

I ask my noble friend if that means widespread rejection of local plans and random granting of appeals against refusing planning applications by Travellers. For the last 50 years we have said that the problem of unauthorised sites arises from the failure of the political system to provide adequate accommodation for Gypsies and Travellers. Governments have generally agreed that accommodation is a key factor, not only in dealing with unauthorised sites, but also in tackling the appalling educational, health and other social disadvantage suffered by Gypsy and Traveller families. Yet they have ducked the responsibility of ensuring that these problems, affecting 0.02% of the population, are resolutely addressed. On the contrary, their priority has been to make life harder for those who have nowhere to live, as this order will inevitably do.

That brings me to the prohibition of discrimination in Article 14 of the ECHR, taken together with Protocol 1, Article 1. This entitles a person to the peaceful enjoyment of his possessions. This combination calls into question the difference in treatment between Gypsies and Travellers, who may be deprived of their homes without notice or right of appeal, and gorgias—that means non-Gypsies—who are protected against this treatment by Section 171F (1)(a) of the 1990 Act. The JCHR has drawn attention to the risk of breaching these ECHR provisions, as well as those of Article 2 (1)(a) and Article 5 (b)(3) of the Convention on the Elimination of All Forms of Racial Discrimination.

In some cases, the use of a TSN may be contrary to the public sector equality duty, particularly to the requirements in Section 149 of the Equality Act, to:

“Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.

There may also be cases where, because of our adherence to the Convention on the Rights of the Child, the use of the TSN may be unlawful because it would not be in the best interests of a child. Under the Health and Social Care Act, too, the Secretary of State must have regard to health inequalities in exercising his functions. Will my noble friend explain how he can do that if Gypsies, who are already at the bottom end of the scale in morbidity and mortality, are harried from pillar to post, unable to seek the medical attention that they may need?

The Explanatory Memorandum says that the Government intend to produce guidance to assist councils in taking into account human rights and inequalities considerations and balancing those considerations against the impact of the unauthorised development on the local area. However, the guidance is likely to be so general as to be useless in enabling the council to decide whether it is safe to issue a TSN. It will hardly venture into the dangerous territory of predicting how the courts will deal with a particular set of circumstances.

Councils may be aware in general terms of the need to take account of human rights and equalities considerations in deciding whether to issue a TSN, as the consultation showed. However, the Explanatory Memorandum envisages the possibility that they may use these powers inappropriately and may then be challenged by judicial review. However, since the order has been published, legal aid for such cases has been withdrawn. Do the Government really believe that Traveller litigants in person are likely to launch judicial review proceedings?

Almost certainly, the families targeted by a TSN will end up back on the roadside, with all the disastrous consequences for their access to healthcare, education and other public services that are well known from evictions such as Dale Farm in 2011. The public expenditure costs downstream are likely to be enormous. This no doubt explains why the Government make no effort to quantify them.

Forty per cent of respondents to the consultation felt that the impact of the changes on caravan occupiers would be unacceptable—as it certainly would be when they have nowhere else to go. The government response to the consultation on the Taylor review of planning practice guidance was published in May. Will the Minister confirm that the guidance on the use of TSNs will be part of the new guidance suite that will be published before the Summer Recess? Will the guidance say that councils should use TSNs only once they have a five-year deliverable supply of sites in place? If it will not, these regulations put the cart before the horse. The draconian power to make people homeless should be invoked only after a local deficit of sites has been eliminated.

[Baroness Whitaker]

My Lords, when on 13 February this year the Department for Communities and Local Government concluded its consultation on the proposal to change the temporary stop notice system and, in effect, leave it up to local planning authorities to determine whether it is right to evict families from unauthorised caravan sites irrespective of the availability of other sites, special circumstances of health and education, or any kind of disproportionate impact, more than 40% of responses stated that the impact on Gypsies and Travellers would be unacceptable. However, six weeks or so later, on 29 March, just before the Easter bank holiday, the Secretary of State, Mr Pickles, announced that he would go ahead with measures that he unveiled just two weeks later. His precipitous move means that there will now be a complete absence of any need to consider, let alone provide, an alternative legal site if a family, even in great need, perhaps with an oxygen machine or with a heavily pregnant mother, is evicted from an unlawful site.

Noble Lords will know that unlawful sites happen because far too few councils have made a proper assessment of site need, let alone made new council sites or approved private ones. Therefore those families—not a large number—who have been obliged to stop on unauthorised ground will be even more disadvantaged, sometimes dangerously so. Nor, if the Ministry of Justice’s proposals go ahead, will judicial review be as available as in the past.

Is this warfare between communities necessary? Is it essential that in addition to enforcement notices, injunctions and direct action, councils should be able, without any corresponding duty to provide or allow the small number of sites required, to remove whole families into a further progression of illegal stopping, and enduring a lack of facilities such as mains drainage, piped water and rubbish removal, which will further deny their children education and their sick people healthcare?

It is not as if there are not examples of much better practice. The successful pilot of the negotiated stopping system in Leeds is one of the best. Everyone took part: the council, the police, the local Traveller support group, Gypsy and Traveller families themselves and local businesses. Leeds City Council estimates that it has saved more than £100,000 so far by avoiding eviction and clean-up costs—a far cry from the millions of pounds spent in the Dale Farm disaster. It also says that access to healthcare, education and training has significantly improved for the roadside families concerned. Your Lordships will well understand the benefit of that for community cohesion and for the prospects of employment and, in some cases, life itself.

Councils need to be encouraged through the legal framework to behave like this, not discouraged. How will the Government achieve improvements? I am reminded of Mahatma Gandhi’s famous answer to the question of what he thought of English civilisation. He said, “It would be a good idea”. A good start would be to drop these regulations.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Whitaker and Lord Avebury

Monday 12th March 2012 Lords Chamber

[Lord Avebury]

My Lords, I shall speak also to Amendments 77B to 77D, and after that my noble friend will probably deal with Amendment 77E, which covers a different matter.

We are grateful to my noble and learned friend Lord Wallace of Tankerness for his Pepper v Hart statement in our previous debate on the effect of the Bill on Gypsies and Travellers that cases under Sections 187B, 288 and 289 of the Town and Country Planning Act 1990 will remain within the scope of legal aid. We are also very grateful to him for giving us the time to explain these amendments to him personally last week.

The main amendment in this grouping—Amendment 77B—would remove paragraph 28(10) of Schedule 1, to which I now turn. As the Minister is aware, we are still deeply concerned about the Bill’s impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action—for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994—then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.

If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.

Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council’s decision to seek possession in the High Court on the basis of the local authority’s failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?

We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady’s brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these conditions. They have been fortunate in having remained on this site for the past four months without being noticed, but at any moment the local authority could seek possession and they would be removed from the site and would be unable to continue to obtain medical advice and treatment, which clearly they desperately need.

Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.

I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided—wrongly, in my opinion—to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe’s High Commissioner for Human Rights.

We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment and on the others in this group, which are consequential. The noble Baroness, Lady Whitaker, will deal with Amendment 77E. This concerns the separate issue of actions under the Mobile Homes Act 1983, which will also be taken out of scope. I beg to move.

[Baroness Whitaker]

My Lords, I apologise for the fact that my voice has not kept up with the strength of my convictions. For that reason, I will say no more about the earlier amendments that the noble Lord, Lord Avebury, spoke to so clearly. Amendment 77E will make a big difference to the security of place for many Gypsies and Travellers. The Bill proposes that all aspects of the Mobile Homes Act 1983, apart from those that concern possession, will go out of scope. The result will be that Gypsies and Travellers living on rented sites will be deprived of legal aid and legal advice of any sort to deal with cases that involve breach of a covenant of quiet enjoyment, succession, resiting of a mobile home, rent increases and repairs. Both the law and the facts relating to these issues can be complex. The consequences of failing to deal properly with them can be serious. They can result in homelessness—even though the intended effect is not to create homelessness—because the tenants are effectively driven out.

The further complication in the situation of many Gypsies and Travellers is that they have not always been educated to read and write, and to be able to follow the complexities of the law. Therefore, because of the situation in which they will find themselves, they will be discriminated against in all these matters. We are talking only about the continuation of the legal aid initial advice scheme for these cases. The provision of this kind of advice is quite cheap and extremely cost-effective.

These actions are not technically called “harassment”, but they amount to it when the person who is on the receiving end cannot deal with them and is cast out of their home. The noble and learned Lord, Lord Wallace, said in Committee that he could reassure us that legal aid would be available for harassment injunctions in relation to the Mobile Homes Act. I was very glad to hear that. It showed that he understood the injustice that can so easily befall people who are marginalised by society, and that it is incumbent on society to reduce this marginalisation. Given his helpful response, I ask him to consider whether cases of breach of a covenant of quiet enjoyment—that is to say, Article 8 rights under the Human Rights Act—should also be included in the scope of legal aid. If he prefers, he could confirm that the Government intend that such breaches should be included under the term “harassment”. It would be a small step conceptually, but it would make a big difference.

Localism Bill

Debate between Baroness Whitaker and Lord Avebury

Monday 17th October 2011 Lords Chamber

[Baroness Whitaker]

My Lords, I would like to add my support to Amendment 204EA—supported also by the RTPI, which I think is very significant—and particularly subsection (14) of the new clause, which specifies the three-year minimum for transition. I completely understand why the Government have eliminated the regional tier but there remain instances where regional decisions are particularly valuable—I would say irreplaceable—such as matters to do with housing shortages, the issue of Gypsy and Traveller sites, which we discussed at the last Committee meeting, and the lack of planning expertise at a local level which could result in really unattractive developments. If we are not to go backward in all of these areas we need a transitional period as the amendment specifies for local authorities to work out how to co-operate where it is really essential.

[Lord Avebury]

My Lords, I would like to follow the noble Baroness, Lady Whitaker, in what she said, and to point out that in the case of Gypsies and Travellers we have an additional difficulty in that the NPPF and the equivalent document on planning for Gypsy and Traveller sites are mutually incompatible. The Government say that these difficulties will be ironed out in a new version of the amalgamated documents which will be published at some time in the future. Meanwhile there is a policy vacuum which is being only partially filled by the Secretary of State’s dictum that all previous work on planning for Traveller sites has been torn up and local authorities are free to decide how many pitches for Gypsy and Traveller sites will be provided in their area, if any.

The result of this new-found freedom, according to research by the Irish Traveller Movement in Britain, is that roughly 50 per cent of the needs which emerged from the regional spatial strategies, the Gypsy and Traveller accommodation needs assessments, the public inquiries following those GTANAs and the redistribution between local authorities in the region—to accommodate the fact that some councils had done nothing whatever to meet the needs—have not been met. Perhaps I may just interpolate an aside here. In the new process the local authorities will only have to consider their local needs and will not have to co-operate with neighbouring authorities; and if authorities have steadfastly avoided making provision for Gypsies and Travellers in the past they will be able to demonstrate zero need because there are no Gypsies and Travellers in their particular area.

I see no way in which under the proposed system—and subject to what we do not know yet about the guidance that will be issued by the CLG—there will be any mechanism for adjusting that. I would like to know from my noble friend where we have got to in this process. Are we still in the position where every local authority will make up its mind irrespective of what any of the neighbours are doing? Will there be no contribution to the provision of sites for Gypsies and Travellers where a local authority can demonstrate that it has not had a need in the past because it has been successful in excluding Gypsies and Travellers from its area?

We in the Liberal Democratic Party made a reservation to the abolition of regionalism in our manifesto. We said that the numbers emerging from the regional spatial strategies with regard to Gypsies and Travellers should be preserved and should be the basis on which planning for Gypsies and Travellers would be effected under the new system. If we had done that we would have avoided the process that is currently being undergone all over the country as local authorities start again from scratch to consider their local needs and come up with figures which, as I say, are only 50 per cent of what had been provided where the regional process had been completed, as for example in the east of England. This will result in a severe shortage of sites in the whole country and there will be a proliferation of unauthorised sites, which is the chief source of friction between Gypsies and Travellers and the settled population. I do not know whether that is intentional but it will be the result of following the Government’s present policies.