Friday, 23 September 2011

Dale Farm

I have studiously avoided commenting on the Dale Farm saga up to now, but I was finally cornered by BBC Radio 5 Live to give a brief interview on air this morning. I should make it clear that I have no involvement with any of the parties to this dispute, and the sole reason for my being contacted by the BBC is that I am 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 asked first about the cost to the Council of pursuing this action, now amounting about £18 million. Was this a sensible use of public money? The obvious answer to this is that the Council really had no choice in the matter. Having decided 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.

I was also asked about the precedent effect of the Dale Farm case. In practice, in matters of this sort involving gipsy 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.

I just had time on air to mention that one has some sympathy with gipsies 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.

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 this week 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 today’s High Court hearing in the Dale Farm case is 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 issues. Wednesday’s temporary injunction was simply necessary in order to preserve the current position until the claimants have had the opportunity to be heard by the court.

I have no intention of predicting what the outcome of today’s application will be, but the judge will no doubt weigh the issues very carefully, and the case could go either way depending on whether or not the judge feels that the immediate physical eviction of the claimants is proportionate in the circumstances. I strongly suspect that success on the part of the claimants in today’s hearing would not amount to outright victory, but would simply result in a stay while the particular needs of the claimants are addressed. The judge may, however, feel that the Council’s current intention to evict the claimants is proportionate in the circumstances and should be allowed to go ahead. We should know later today, or by early next week at the latest.


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