Thursday, 13 October 2011

Dale Farm judgment


Perhaps not surprisingly, the last ditch attempt by residents of the Dale Farm travellers’ site in Essex to prevent their eviction from the site failed in the High Court yesterday. The challenge on human rights grounds was rejected by Mr Justice Ouseley, who held that the Council’s action in seeking to evict the residents from the illegal site was not disproportionate.

I have not yet seen a transcript of the judgment, but I understand that a further 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 of 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.

It seems that the claimants have not ruled out the possibility of an appeal against this judgment, but it is very unlikely that the Court of Appeal could be persuaded to give permission for an appeal to be pursued. These claimants have, however, shown remarkable determination in their attempts to use every possible means to prevent their eviction from the site, so it may be premature to predict that this is necessarily the end of the legal road for them.

Although reports which I have seen do not say so in terms, the injunction preventing the Council from proceeding with evictions has no doubt been lifted, so that there is no longer any legal impediment to the Council’s taking the necessary steps to clear the site. I would think it very unlikely that the claimants could persuade any court to order any further delay of evictions pending an appeal.

There has been a certain amount of hot-headed comment out of court on both sides of the case during the course of these proceedings, but the latest hearing 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’ latest 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 must now take its course.

© MARTIN H GOODALL

7 comments:

Martin H Goodall LARTPI said...

As I predicted, permission to appeal to the Court of Appeal was refused by Lord Justice Sullivan on Monday.

It is worth noting that the Dale Farm residents' latest pleas have been 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.

Custom facebook app said...

so was that judgment good for you or not ?

Martin H Goodall LARTPI said...

As to my view of the judgment, one can see 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 LPAs 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 10-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 s.178 of the 1990 Act to secure the clearance of the site. The human rights issues were carefully addressed but ultimately dismissed. So I have to say that I approve of the recent judgments of the two High Court judges, and the refusal of permission to appeal to the Court of Appeal.

I have no comment to make on the manner in which the evictions were carried out. Clearly there were some people (who had never been resident on the site) who were intent of making the maximum trouble, and the Council and the police had to tackle the 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.

HW said...

Hi, in regards to the council exercising their powers under s.178, what is the legal procedure the council must follow in cases like Dale Farm? I have yet to find much information about the process on the internet and most planning law books I've perused are vague on the subject. Any recommended reading or links? Thanks.

Martin H Goodall LARTPI said...

If anyone wants to look this up, there is some material on it in Volume 2 of the Encyclopedia of Planning Law and Practice (Sweet & Maxwell). See paragraphs P178.02 to P178.13.1 - dealing with the purpose of the section and choice of its use, the scope of the power, entry to land, challenge to the validity of the exercise of the power (as attempted in the Dale Farm case), and the recovery of costs, as well as one or two other points. It’s only three or four pages, and I don’t know off-hand of any more detailed text.

HW said...

Thanks Martin. Dale Farm has left me surprised with the amount of various challenges regards validity of the action etc. I always took default powers to mean just that, if enforcement notice is not complied with, the council by default can use direct action to enforce compliance without further notice. However, I seem to be reading now that in a case concerning cessation of residential use it is prudent to seek an order from the court for eviction, is that correct? Is direct action a delegated decision or is it normally taken to the planning committee?

Martin H Goodall LARTPI said...

In answer to HW, these cases tend to be hard fought, and this is only the latest of a long line of similar cases over the years. When enforcement notices are served in such cases they are invariably appealed. Upon the appeals being dismissed, the appeal decisions will if at all possible be challenged in the High Court and, if necessary, taken on to the Court of Appeal. In the meantime, applications for retrospective planning permission may be made, and the refusal of those applications will in turn be appealed and may also be subject to further applications to the High Court. It is precisely in order to put a stop to this sort of thing that a clause has been introduced in the Localism Bill to limit the right to apply for retrospective planning permission where there is a pre-existing enforcement notice.

The exercise of default powers under section 178 is always seen by LPAs as a last resort – it is difficult and expensive, and the prospects of actually recovering the expenses involved are often very poor. Councils usually prefer to rely first on prosecution for non-compliance with the enforcement notice and, if necessary, an application to the court for an injunction. The permission of the Court is not required to secure eviction of persons unlawfully occupying the site (unless it is the Council’s own property – in which case the Council would not have to use its planning powers as such). In the Dale Farm case, the Council was not applying to the Court for an order - they had the necessary power by virtue of the operative enforcement notices. The Council was simply responding to the applications for judicial review of their intended action which had been brought by the Dale Farm residents.

Most councils have arrangements in place for enforcement action to be initiated by officers under delegated powers. However, if a case is controversial and potentially expensive, the officers will usually take the precaution of reporting it to committee and seeking their approval of the proposed action. Precise arrangements for the initiation of enforcement action may vary between one council and another.