The Battle of Dale Farm - the legal angle

November 10, 2011

Basildon Council’s protracted bid to evict Travellers from the Dale Farm site was front page news. Martin Goodall unravels the legal background to the case.

The ‘Battle of Dale Farm’ has attracted a great deal of media attention in recent weeks, but journalists have clearly had difficulty in getting to grips with the legal issues involved and in presenting these accurately and fairly to readers, viewers and listeners.

As one of the people on the Law Society’s list of solicitors who are prepared to talk to the media on planning law issues, I was contacted by BBC Radio 5 Live in September to give a brief interview on air about the Dale Farm case, although I should make it clear that I have had no involvement with any of the parties to this dispute. There were in fact two separate applications – Patrick Egan v Basildon Borough Council [2011] EWHC 2416 (QB) (Edwards-Stuart J, 26 September 2011) and R (on the application of McCarthy) v Basildon Borough Council CO/9316/2011 (Ouseley J, 12 October 2011). [I do not yet have a neutral citation reference for the latter case.]

The first issue which the BBC wanted to ask about was the cost to the council of pursuing this action, then standing at around £18m. Was this a sensible use of public money? The obvious answer to this is that Basildon Council really had no choice in the matter. Having decided ten years ago that the serious breach of planning control which had occurred at Dale Farm could not be allowed to continue, the council quite understandably served enforcement notices on the occupiers of the illegal encampment on the site. The eye-watering costs were incurred by the council in responding to the resulting appeals and the subsequent legal proceedings pursued by the people against whom the council is taking action. A local planning authority should not be deterred from enforcement action, if it has decided that it is in the public interest just because it might prove to be expensive. If councils were to back away from enforcement action for this reason, the planning system would break down and chaos would ensue.

Might it set a precedent?

I was also asked about the precedent effect of the Dale Farm case. In practice, in matters of this sort involving gypsy or traveller sites, each case is so different on its particular facts that no one case is likely to set a precise precedent. On the other hand, a failure on the part of a local authority to take action in such a case might well send out a signal which would encourage similar breaches of planning control in the future. In that sense, failure to act would set a very undesirable precedent. There are in fact a number of similar cases in various other places around the country where local councils are faced with decisions as to whether or not they should pursue enforcement action to its ultimate conclusion as Basildon did. They know that they will face a stiff fight, but the Dale Farm case has demonstrated that the courts, whilst they will bend over backwards to be fair, will ultimately see to it that the rule of law is upheld.

I do have some sympathy with gypsies and travellers, who have great difficulty in finding sites to station their caravans, due to the failure of planning authorities throughout the country to designate enough legal sites where they could go. This is a long-standing problem, which has not been helped by successive changes of mind on the issue on the part of central government. It is this factor which does not make it an automatic decision to take enforcement action in any particular case. A council must balance the human rights of the site occupants with the general public interest, both in planning and environmental terms and in terms of maintaining the integrity of the development control system.

Human rights

The issue of human rights is much misunderstood. Human rights are important and do have to be taken into account, and I was pleased to hear the Deputy Prime Minster say in clear terms at the LibDem part conference that the Human Rights Act is here to stay, no matter what some Tory backbenchers might prefer.

But human rights are not an overriding factor in these cases. They have to be balanced against the wider public interest, and what planning inspectors and the courts have to decide is whether the action taken by a public body or authority which in principle breaches an individual’s human rights is proportionate in the circumstances. That is what the High Court hearings in late September and early October in the Dale Farm case were about, specifically in relation to the timing of the council’s proposed physical eviction of the residents at Dale Farm in relation to various issues such as ill-health, the vulnerability of particular individuals and similar matters. The temporary injunction which delayed the eviction was simply necessary in order to preserve the position until the claimants had had the opportunity to be heard by the court.

The Court’s decision

One could not necessarily have predicted what the outcome of those applications (particularly the second application before Mr Justice Ouseley) would be but, as was to be expected, the judge weighed the issues very carefully, and the case was certainly not a foregone conclusion. It clearly turned on whether or not the judge felt that the immediate physical eviction of the claimants was proportionate in the circumstances. In the event that the judgment had gone the other way, it is unlikely that this would have amounted to outright victory for the Dale Farm residents, but would simply have resulted in a stay while the particular needs of the claimants were addressed.

As it turned out, the judge did agree that the council’s action was proportionate in the circumstances, particularly bearing in mind the history of the case and the previous dismissal of substantially similar human rights arguments by the Court of Appeal in 2009 (Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 (Pill, Lloyd and Moses LJJ. 22/01/2009 on appeal from Collins J - [2008] EWHC 987 (Admin) 9 May 2008), and so the council’s intention to evict the claimants was allowed to go ahead.

What those who expressed support for the residents of Dale Farm overlooked, whether deliberately or inadvertently, was that the history of this site has been a long one. Basildon Council had been seeking to remove the unauthorised development on the site for some ten years, but (in common with similar cases elsewhere) the people against whom the enforcement action was taken had fought a long and bitter legal battle, which had in effect turned into the legal equivalent of trench warfare.

The enforcement notices were upheld in previous appeals, and legal challenges to those decisions were ultimately dismissed. The final legal proceedings seeking judicial review of the council’s decision to go ahead with the clearance of the site were directed at the precise nature and timing of that action. The basis of the challenge was that the council had failed to take into account various material considerations, such as the consequences for children living on the site and their education, as well as the effect on those residents who were elderly or ill. Thus the argument was that eviction now would be in breach of the travellers' human rights (under Article 8 of the ECHR).

As noted above, an earlier challenge on this same ground was dismissed by the Court of Appeal in 2009, and in any event human rights are never absolute; they have to be balanced against the wider public interest in the enforcement of the law. I predicted that the latter point might well defeat the latest claim and, in order to get round the previous dismissal of the human rights claim, the claimants would have had to show that there had been a change of circumstances which should lead to a different conclusion now. This might have been arguable, but I remained sceptical, and my expectation of the ultimate outcome proved to be correct.

At this stage, the denizens of Dale Farm seemed to be fighting on every conceivable front. They even tried to get the structures they had erected on the site listed by the Department of Culture Media and Sport, and sought to that end to persuade English Heritage of their architectural or historic interest! I wondered at the time whether they might possibly seek to judicially review the DCMS’s refusal to list them. Frankly, such an application might well have been seen as frivolous or vexatious. At one point there was also an attempt to judicially review the council’s decision to remove these structures themselves.

Some have questioned the judgment of Edwards-Stewart J in finding that the Council was not entitled to remove certain structures from the land. However, he made it clear that the Council could not, when exercising its powers under section 178, demolish buildings or structures that had been erected unlawfully before the issue of the enforcement notice, which could have been but were not the subject of an enforcement notice (or mentioned in an enforcement notice). This must surely be right. If an existing building is to be demolished or removed, then this requires the service of an enforcement notice which relates to that building or structure.

On the other hand, the judge held that the removal of a structure unlawfully erected subsequent to the issue of an enforcement notice is permitted if that is necessary for the carrying out of the necessary steps under section 178 of the 1990 Act. This is because such a structure could not have been mentioned in the enforcement notice (since it did not exist at the time), with the result that the Council could not exercise a statutory power to remove it. His lordship saw no reason why the Council has to issue a fresh notice if the structure has been erected in breach of planning control and with the knowledge of the existing enforcement notice.

In retrospect it is not perhaps surprising that the last ditch attempt by residents of the Dale Farm site to prevent their eviction from the site failed in the High Court. Quite apart from the rejection of the challenge on human rights grounds, another important reason for refusing this latest application for judicial review was that there had been undue delay in bringing these proceedings against the council’s decision to take direct action to evict the residents from the site.

It seems clear that the judge felt that this last-minute attempt to prevent or delay the physical execution of enforcement notices which had previously been upheld by planning inspectors and by the courts was totally lacking in merit, and that preventing the effective enforcement of planning law would bring the whole planning system into disrepute. Thus upholding the rule of law was an important consideration in the outcome of these proceedings.

These claimants had shown remarkable determination in their attempts to use every possible means to prevent their eviction from the site, and so even this decision did not necessarily represent the end of the legal road for them. Mr Justice Ouseley refused permission to appeal to the Court of Appeal, but the application for permission was nevertheless renewed in the Court of Appeal, and was ultimately dismissed by Lord Justice Sullivan.

It was his decision which spelt final defeat for the Dale Farm residents, and it then only remained for the council to proceed with the evictions and clearance of the site. There was talk of further applications to the court, but this was clearly unrealistic, and even the application to the Court of Appeal realistically stood very little chance of success. Even if some other legal action could have been commenced, it is very unlikely that the claimants could have persuaded any court to order any further delay of evictions pending a further hearing.

Over the two or three weeks of the final legal proceedings in the case, there had been a certain amount of hot-headed comment out of court on both sides of the dispute, but the patient way in which the court dealt with these applications does demonstrate that the courts will bend over backwards to do justice and to ensure that it is manifestly seen to be done. It is right that the claimants’ final legal challenge should not have been dismissed out of hand but that it was given a fair hearing. On the other hand, the judge was undoubtedly right, after careful consideration of the matter, to dismiss the claim and to insist that the law should finally take its course.

It is worth noting that these recent pleas by the Dale Farm residents were turned down by two notably fair-minded judges (Duncan Ouseley in the High Court and Jeremy Sullivan in the Court of Appeal). No-one could accuse these two judges of being reactionary or authoritarian in their attitudes. Both judges have a well-deserved reputation for upholding liberal values and the rule of law. There is no doubt that the Dale Farm residents got the fairest of fair hearings, and that the legal system dealt with them with great consideration and patience throughout.

As to my view of the final judgment, I can appreciate both sides of this argument. Gypsies and travellers have a hard time of it finding sites where they can lawfully station their caravans. There has been substantial failure on the part of local planning authorities to allocate sufficient pitches. Repeated changes of central government policy on this issue have not helped. This is clearly what leads to unauthorised encampments such as the extension of the site at Dale Farm.

But each case has to be dealt with on its own merits. Some unauthorised encampments have subsequently achieved retrospective planning permission. However, it is clear that after exhaustive examination of the legal and planning issues by the Planning Inspectorate and by the Courts over a ten-year period, the conclusion was reached that the extension of the Dale Farm site could not be permitted, and had to be removed.

Faced with outright defiance of the law, Basildon Council had little choice other than to use their powers under section 178 of the 1990 Act to secure the clearance of the site. The human rights issues were carefully addressed but ultimately dismissed. So a fair-minded and impartial observer must surely approve of the recent judgments of the two High Court judges, and the refusal of permission to appeal to the Court of Appeal.

The manner in which the evictions were carried out raises a different set of issues. Clearly there were some people (who had never been resident on the site) who were intent on making the maximum trouble, and the council and the police had to tackle a threatened and actual breach of the peace. I am not in a position to say whether or not the actual tactics used were appropriate, but it seems that the residents themselves were prepared to leave peacefully and ultimately did so – the violence seems to have been caused by outsiders who had latched onto the situation as an opportunity to cause trouble.

Future prospects

So the ‘Battle of Dale Farm’ is over, but the future of the former residents of the site remains unresolved, and a significant number of other gypsies and travellers are still unable to find a sufficient number of legal sites where they can station their caravans. An important change of policy announced by the present government last year has compounded these problems. One of the consequences of the proposed scrapping of regional strategies, and the stated intention of the Secretary of State for Communities and Local Government, Eric Pickles, that this should be treated as a material consideration from now on, is that this will relieve local planning authorities of the obligation to achieve specified targets for the provision of sites for gypsies and travellers.

Several authorities have already seized on this as an easy excuse to surrender to NIMBY pressures, and have announced their intention to reduce the number of gypsy and traveller sites they will seek to provide in their areas through their local development frameworks. This is an extremely short-sighted and ill-advised change of policy. There is a considerable unmet need for gypsy and traveller sites in this country, and this is precisely what has led to groups, such as those at Dale Farm, taking matters into their own hands and establishing their own sites, often resulting in long drawn out and hard fought planning battles. Dale Farm was only the latest of a long line of cases that have ended up in the High Court.

The result of this change of policy on the part of the government will undoubtedly be an increase in the number of planning battles over gypsy and traveller sites, and more cases can be expected to reach the High Court, whether as challenges to appeal decisions or as fights over injunctions or other legal proceedings. It is quite possible that, sooner or later, one of these cases may get as far as the European Court of Human Rights.

Local planning authorities are going to have to think long and hard about their overall policy in relation to the provision of gypsy and caravan sites in their area, and some of them will have to address situations similar to Dale Farm. The decisions facing them will not be easy, and the cost of the Dale Farm case to Basildon Council and its council taxpayers may indicate that a different approach may have to be taken to such matters in the future. This is not to say that councils should surrender in the face of defiance of the law, but that other solutions to the problem may have to be found which would avoid further episodes of legal ‘trench warfare’ of the type we have seen over the Dale Farm site.

Martin Goodall is a specialist planning lawyer who is a member of the Law Society’s planning panel. He is a consultant solicitor with Keystone Law of 53, Davies Street, London W1K 5JH. His regular planning law blog can be found at: http://planninglawblog.blogspot.com