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

Lord Avebury Excerpts

Monday 17th June 2013 Lords Chamber

Moved by

[Lord Avebury]

That this House regrets that the Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013, laid before the House on 12 April, will have a negative impact on vulnerable Traveller families.

[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.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, first, I thank my noble friend for securing this debate. Like other noble Lords who have participated in it, I, too, acknowledge his great commitment in furthering understanding of, and tackling and highlighting, some of the issues faced by the Traveller community in particular. I also thank other noble Lords, the noble Baroness, Lady Whitaker, and, of course, the noble Lord, Lord Beecham, for their contributions. Both they and my noble friend have raised valuable and thought-provoking comments. However, unlike my noble friend, I do not believe that there is a case to regret this change. Indeed, I welcome it as part of empowering local councils to take effective action against unauthorised sites.

The noble Lord, Lord Beecham, talked about a recent meeting, to which my noble friend also referred, with Brandon Lewis, who is now charged within the department with taking forward the agenda for Travellers. I would say, in defence of my honourable friend, that he has taken to this particular task with great aplomb. He has met with the APPG and is in listening mode, as the noble Lord, Lord Beecham, pointed out.

Just as an aside, the noble Lord, Lord Beecham, mentioned my right honourable friend the Secretary of State, Mr Eric Pickles, talking about approaches to local government. This underlines our Government’s commitment to localism. I, for one, as a former local councillor, actually welcome his intervention on matters such as ensuring that councils take up the good practice of weekly bin collections. Certainly in my 10 years in local government, including my time as cabinet member for the environment, I never found the idea of fortnightly collections resonated with any part of the borough and, indeed, boroughs across London either. However, if that is the case in the noble Lord’s area, I stand corrected.

I will set out from the beginning that the Government are totally committed, I assure my noble friend, to respecting the rights of Gypsies and Travellers, improving socio-economic outcomes and indeed reducing prejudice, which does exist. I encountered this at first hand in my own ward in local government. The Traveller site in Merton was actually in my ward, which itself could be regarded as a very prosperous part of the borough. Nevertheless, it was an eye-opener for me. I visited the site, which was a permanent site, and I worked with the local Traveller community there. I totally hear the points made and I think it is important for government at local level to ensure that there is correct representation for Travellers, because quite often they are not aware of the avenues open to them to make appropriate representations. It is incumbent on us, through our localism approach, to ensure that councils create those avenues and ensure that they are made fully available to all Traveller communities.

As we all know, the majority of Travellers abide by the law and planning procedures. It is only a small minority that may at times seek to set up on an unauthorised site, and that does, unfortunately, damage the reputation of the wider community. However, I highlight also the work undertaken thus far at the DCLG. For example, in April 2012, the ministerial working group looking into Gypsies and Travellers published a progress report, which included 28 commitments from across government to help outcomes for Gypsies and Travellers. These included promoting the improved health outcomes for Gypsies and Travellers within the structures of the National Health Service and encouraging authorised sites that have the backing of the local community. Indeed, £60 million has been made available through the Traveller pitch funding and the new homes bonus. I sought an update on progress in this regard and, by 2015, as part of this scheme, we are seeking to have in place 628 new pitches and 415 refurbished pitches across the country. Another recommendation of the ministerial working group was preventing hate crime, increasing the reporting of incidents and challenging the attitudes that underpin it.

In terms of specific progress, in education, for example, the Department for Education has already recruited virtual head teachers in three areas—Kent, Bradford and Cambridgeshire. In health, the Department of Health’s commitments mainly concern improving the evidence base on Gypsy and Traveller health and using the reformed health system to improve the commissioning of health services from April. The new legal duties as regards health inequalities will be a key lever to improve access to and outcomes from health services. Gypsies and Travellers are one of the priority groups on which their inclusion health programme is focusing.

The commitments made by the Home Office come out of the cross-government hate crime action plan, published in March 2012. This plan is currently being reviewed in order to assess progress and respond to new and emerging issues. Of course, I encourage all noble Lords—as they do; and I am sure that my noble friend will—regularly to ensure that progress is made on these initiatives and to hold the Government to account, as is right. In the Ministry of Justice, another department that I represent from the Dispatch Box, the National Offender Management Service, has started to collect statistics on Gypsy and Traveller prisoners, which, over the long term, will demonstrate outcomes. I am glad that I have been joined by my noble friend from the DWP because that department’s commitment to include Gypsies and Travellers in its internal monitoring systems will be met with the introduction of universal credit.

These ambitions are also enshrined in our planning policy for Traveller sites. This sets out up front that the Government’s overarching aim is to ensure,

“fair and equal treatment for travellers, in a way that facilitates the traditional nomadic way of life of travellers while respecting the interests of”

the community at large. As is the case with all communities, our planning policy asks local councils to plan to meet their objectively assessed needs for development in a way that is consistent with planning policy as a whole. Our policy promotes private-site provision and requires councils to identify and update a five-year supply of deliverable sites, and consider them against needs, as part of their local plan. Legislation requires that local plans take account of this policy. From March this year, where a local planning authority cannot demonstrate an up-to-date supply of sites, that should be a significant consideration in any planning application for temporary permission.

I can therefore reassure my noble friend that we as a Government have been absolutely clear that authorised site provision is key in planning effectively for travellers. When we look at issues such as health and education, some of the unauthorised sites are often not located in a way that is reflective of the needs of the local community and the needs of the Traveller community in terms of the provision of local services. In turn, sufficient, well planned and well managed sites are important in improving educational, health and integration outcomes for Travellers.

In support of this, we have provided £60 million Traveller-pitch funding through the Homes and Communities Agency to provide for new and improved sites. Similarly we are working closely with the Planning Inspectorate and Planning Advisory Service to promote high-quality plans, including in respect of Travellers. We are also seeing good progress towards local plan adoption, given that seven out of 10 local councils have already published their plans.

However, let me turn to matters related to enforcement against unauthorised Traveller sites, which caused my noble to raise this debate and to which he referred. While recent figures show that the number of unauthorised caravans has fallen—a point made by the noble Lord, Lord Beecham; only 14% are now on unauthorised land—the Government continue to hear about the problems associated with unauthorised Traveller sites and with long drawn-out and costly enforcement and eviction proceedings. Unauthorised development related to caravan sites often happens very quickly because caravans are mobile. Unauthorised provision is by definition inappropriate provision that often raises public health and safety concerns for those living on those sites, as well as for the surrounding community. Our policy makes clear that local councils should seek to reduce the number of unauthorised sites and make enforcement more effective. Intentional abuse of the planning system by a small minority of Travellers who set up unauthorised developments leads to tension, undermines community cohesion and damages the integrity of the planning system.

To ensure the legitimacy of the planning system, we have already introduced stronger enforcement measures through the Localism Act 2011 to enable local councils to deal robustly and effectively with retrospective and misleading planning applications in relation to all forms of development. Removing limitations on the use of temporary stop notices will further empower local councils to take appropriate enforcement action locally. As with other enforcement powers, temporary stop notices can have immediate effect. In most cases, the previous regulations prohibited local councils from using temporary stop notices against caravans used as a main residence. The new regulations simply remove this restriction and enable the local planning authority itself to determine whether the use of temporary stop notices is a proportionate response to the breach of planning control and safeguard valuable local areas.

The noble Baroness, Lady Whitaker, also highlighted specific cases and issues. It is down to the local authority to use these powers. I am confident that local authorities consider individual cases before they make a judgment call on whether to proceed. The change will encourage Gypsies and Travellers to apply for planning permission through proper channels, enabling full consideration of individual proposals, and result in better quality and more appropriate site provision for Gypsies and Travellers. I assure my noble friend that in exercising these powers, the local council as a public authority must have regard to its duties and responsibilities under the Equality Act 2010 and the Human Rights Act 1998, including to facilitate “the gypsy way of life” with regard to the Traveller community. In particular, it will need to consider whether taking such action could simply lead to displacing the occupants onto the roadside or onto other unauthorised sites which could potentially be less suitable. Again, I reiterate the point that local authorities acting responsibly within their legal requirements and obligations should make the decision which is right for the Traveller community and right for the community as a whole.

Perhaps I may pick a few other specific questions which were raised during the debate. My noble friend raised the issue on the guidance on temporary stop notices, a point also made by the noble Lord, Lord Beecham, in relation to legal aid. We confirm that the guidance on the use of temporary stop notices will be published in the summer, as part of the wider review of planning guidance. On the issue of no right of appeal against temporary stop notices, and also whether issues of legal aid are being tackled, temporary stop notices expire, as has been acknowledged during the debate, after a period of 28 days. Local councils will have to consider their duties under the equalities and human rights legislation in determining whether the use of a temporary stop notice is appropriate. In some cases, compensation may be claimed where temporary stop notices are served inappropriately.

I can also assure noble Lords that the Government’s proposed reforms to legal aid and judicial review are designed to ensure that those who can afford to pay, do so, to ensure that legal aid is not funding cases which lack merit, or which are better dealt with outside the court, and to target the unmeritorious cases which congest the courts and cause delays. Nothing in the Government’s reforms will prevent those who have arguable claims from having their claims heard. Indeed, the whole reforms are intended to protect the most vulnerable in society.

This is an important issue. I can assure my noble friend and all noble Lords that the Government are fully committed to consider our responsibility, and the responsibility of local authorities, to the Traveller community. I hope this debate has helped somewhat to illustrate an understanding of the Government's approach to this issue. I also hope it has reassured my noble friend that we share the same objectives in terms of improving outcomes for the Traveller community. The Government’s reforms have struck a careful balance between meeting the needs of the Traveller community while—and this is an important point as anyone who has served in local government will know—in considering and balancing the rights and merits of the Traveller community, it is also important to do so in the interest of the wider community as a whole. This particular measure will assist in ensuring that the planning system applies fairly and equally to all.

[Lord Avebury]

My Lords, in the few minutes that remain, I thank my noble friend the Minister warmly for his comprehensive reply to the points that have been raised in this debate; the noble Baroness, Lady Whitaker, whose invaluable work on Gypsies and Travellers is applauded by everybody; and the noble Lord, Lord Beecham, for the most important questions that he asked. We did get an answer on guidance; I understand from the Minister that it will appear before the Summer Recess. When the package of guidance on PPTS appears as promised, it will be part of that suite.

I am still very concerned that the victims, if I may put it that way, of temporary stop notices will have no right of appeal or a mechanism by which they can challenge the use of such notices. My noble friend rather avoided the questions about legal aid which both I and the noble Lord, Lord Beecham, put to him. However, since the order was first published, the fresh group of cancellations of legal aid affects this matter as well as many other important issues. The victim of a temporary stop notice will have no right of appeal or redress whatever and, as the noble Lord, Lord Beecham, said, he will face a huge fine if he fails to comply.

My noble friend also did not answer the question we put to him about the failure of the Department for Communities and Local Government to publish any statistics on progress towards the obligation on local authorities to provide by 31 March this year a five-year deliverable supply of land for caravan sites. We are now almost at the end of June, and as I have said, not a single authority has actually done this. My noble friend did not challenge that statement, not because he is unaware of the situation on the ground, but because DCLG does not bother to collect the statistics. I have to say that although I am grateful to my noble friend for setting out what the Government are doing in other areas, such as NOMS collecting statistics on offenders and the DWP collecting them on universal credit, that demolishes the argument put to me by Brandon Lewis that the department does not wish to collect statistics on the performance of local authorities in providing planning permissions because it would be a top-down approach.

On the amount of money that is available, a question also asked by the noble Lord, Lord Beecham, we applaud the £60 million that has been allocated by the Government for new sites and refurbishment. As I understood my noble friend, that was planned to produce 628 new pitches and 400 refurbished pitches by 2015. While my noble friend obviously cannot do it this evening, I hope that he will be able to tell me on another occasion how much of that money has been spent. Of the £60 million that has been allocated to local authorities and social housing agencies, has a single site been identified? If so, has planning permission been granted and what progress has been made towards the achievement that the £60 million is intended to produce?

[Lord Ahmad of Wimbledon]

Perhaps I may assure my noble friend and other noble Lords that I shall write in that regard after the debate.

[Lord Avebury]

That will be very helpful, and I am sure that the noble Baroness, Lady Whitaker, and the noble Lord, Lord Beecham, would also like to be informed about what is being done with the £60 million. I could have asked about what is to happen after 2015 because although the money will provide that number of pitches, it will not by any means cure the problem of unauthorised sites. As my noble friend said, the position has been improving, but it is not fully resolved. The reason people camp on unauthorised sites is not because they want to abuse the planning system, but because there is simply nowhere else they can go. I must say that until we have the properly delivered programme of sites which the Government set out in their policy on PPTS, we will still have a long way to go. In the mean time, I beg leave to withdraw the Motion.

[Baroness Stowell of Beeston]

My Lords, I am sure that the noble Lord could expand his views for a couple of minutes more.

[Lord Avebury]

If the noble Baroness wishes, there are some other questions that cropped up during the course of the debate on which it would be useful to have a few words. The noble Lord, Lord Beecham, asked what other considerations would be taken into account in deciding whether temporary planning permissions should be granted. I am also interested in that question. I can see that when a caravan is parked on a totally unsuitable site such as a playing field, urgent action needs to be taken. If a caravan is parked on the green belt, that might also be a factor to be taken into consideration.

I wonder if my noble friend the Minister has considered the suggestion made by Councillor Ric Pallister of South Somerset District Council. He has suggested that, where it is necessary to remove a person from a totally unauthorised and inappropriate site such as a playing field, a temporary permission might be granted on another piece of land, which is not unsuitable, for a period of 28 days. That would enable the persons in receipt of the temporary stop notice to draw breath and look around for whatever alternative accommodation might be available. It would be helpful if the Minister could think about that. I am not asking for a reply now but, perhaps, when he writes to us, he could cover that point as well.

I beg leave to withdraw the Motion.

Motion withdrawn.