Thursday, 29 September 2011

Dale Farm again


Rightly or wrongly, my interest in the Dale Farm saga is strictly limited, and I am commenting on it again only because I wrote a short piece last week at a time when the scope and purpose of the latest court action was far from clear.

The history of this site is a long one, and I have no intention of trying to summarise it here. Suffice it to say that Basildon District Council has been seeking to remove the unauthorised development on the site for a very long time, but (in common with similar cases elsewhere) the people against whom the enforcement action was taken have fought a long and bitter legal battle, which has 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. However, so far as I have been able to understand it, the latest proceedings are seeking judicial review of the Council’s decision to go ahead with the clearance of the site at this particular point in time. I have not seen the pleadings, but I gather that the basis for the challenge is that the Council has 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 are elderly or ill. Thus the argument is essentially the same as I had guessed when writing my initial note, and alleges that eviction now would be in breach of the travellers' human rights (under Article 8 of the ECHR).

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. The latter point might well defeat the current claim and, in order to get round the previous dismissal of the human rights claim, the claimants would have to show that there has been a change of circumstances which leads to a different conclusion now. This might be arguable, but I remain sceptical.

The denizens of Dale Farm seem to be fighting on every conceivable front. They even tried to get the structures they have erected on the site listed by English Heritage! Will they possibly try to judicially review EH’s refusal to list them? Ant such application might well be seen as frivolous or vexatious. Another ongoing action is an attempt to judicially review the Council’s decision to remove these structures themselves. The argument seems to be that these structures are not covered by the actual enforcement notices and their removal is unnecessary in order to achieve the objective of the enforcement action. I would have thought that the decision in Somak Travel would be sufficient to defeat this claim.

The outcome of the next stage in these various proceedings may be known within the next week or so, but that clearly won’t be the end of the story. To use an old journalistic cliché, this one will run and run.

© MARTIN H GOODALL

1 comment:

Martin H Goodall LARTPI said...

These posts are inevitably written in a hurry, to avoid impinging on my professional work as a planning lawyer. So there isn't time to check facts or look things up, and I tend to rely on my memory for a lot of the background material. In the case of this post, I attributed to English Heritage (EH) the power to list buildings, whereas it is in fact the Department of Culture Media and Sport (DCMS) which has statutory responsibility for this function. The role of EH is purely advisory. If the draft Heritage Bill had ever been enacted, this would have changed, but for the foreseeable future it is DCMS which will retain responsibility for listing historic buildings.