Tuesday, 9 October 2012
Crowd-pleasing at the Tory Party Conference
Ministers have been queuing up all week in Birmingham to announce little nuggets of policy calculated to please the party faithful (even if it leaves the rest of the electorate profoundly unimpressed). Thus we have had promises from the Minister of Justice to change the law so that we can all ‘have a go’ at burglars, promises of more road building from the Transport Secretary, and from Uncle Eric the promise of a brand new enforcement power – INSTANT stop notices!
This appears to have been in direct reaction to the Dale Farm case (which Pickles mentioned by name, if slightly inaccurately). Any nastiness aimed at disadvantaged and downtrodden members of the community can always be relied upon to raise a cheer from the Tory faithful at their annual shindig. And no group offers a more tempting target for those of a right-wing frame of mind than gypsies and travellers.
Pickles’ avowed target was those travellers who take the law into their own hands by moving onto land (sometimes as trespassers, but quite often after having bought it themselves) without seeking planning permission. This is undoubtedly a breach of planning control, but the travellers would no doubt point out that they often have little practical choice in face of the chronic shortage of legal sites. Local planning authorities have failed over many years to designate sites for gypsies and travellers, and Pickles compounded this soon after taking office by removing the legal duty that councils had to provide sufficient sites in their area.
Pickles intends to give councils greater powers to prevent travellers setting up a campsite without planning permission. What he announced at the conference was “ new rules for councils to literally stop those caravans in their tracks.” Pickles clearly has only a tenuous grasp of what he was announcing. He claimed that new instant stop notices “will allow councils to issue unlimited fines for those who ignore planning rules and defy the law” and he added - "We will stand by those who play by the rules and use the full force of the law against those who break them."
So what does this mean in practice? The first point to bear in mind is that a new kind of stop notice will require primary legislation, so this change will have to await a suitable Bill in which it can be incorporated. The promised ‘Economy Bill’, expected to be introduced this autumn, might possibly provide Pickles with a convenient legislative vehicle.
The next question is precisely how and in what circumstances this new power will operate. One correspondent suggested to me that I should dub this item “50 shades of Stop Notice”. We already have Temporary Stop Notices, and it is difficult to see what additional power the new Instant Stop Notices will give local planning authorities that they do not already have.
Finally, there is the nonsense (and I assure you it really is total nonsense) about councils issuing unlimited fines for those who ignore planning rules and defy the law. Councils do not issue fines. Fines are imposed by the criminal courts as a punishment following the conviction of a defendant who has committed a criminal offence. Pickles may think he is going to make new law, but this is simply a rather garbled version of current legal rules. Failure to comply with a stop notice is a criminal offence, and so the local planning authority will then have to launch a prosecution in the magistrates court (or in the Crown Court, as it is an ‘either way’ offence). A recent change in the law already enables the courts to impose an unlimited fine for this type of offence, but the courts are constrained by very strict sentencing guidelines, which they are legally obliged to follow. So, when all the relevant factors are taken into account, the fines handed down may be somewhat more modest than Pickles seemed to imply.
So to summarise - councils already have the power to serve a temporary stop notice, followed (within 28 days) by an enforcement notice. The new ‘instant’ stop notice will represent no practical change, unless the new ‘instant’ type of stop notice is divorced from the requirement to serve an enforcement notice within some stated time limit (in which case, expect some hard fought litigation over the legal propriety of serving the ‘instant’ stop notice). Furthermore, the further legal steps - prosecution, and possibly injunction proceedings under section 187B - will remain exactly the same as they are now. Pickles may be very pleased with the reception he got at the Tory Party Conference, but the rabbit he appeared to have produced out of his hat was an illusion. More important, it was entirely unnecessary, in view of the powers that local planning authorities already have to deal with these matters.
And as for putting an end to the sort of litigious saga that arose in the Dale Farm case, Pickles was seriously misleading his audience if he really thinks he can prevent that sort of litigation happening again. No amount of extra powers will prevent travellers from fighting for their rights. The only way to put a real stop to illegal encampments, and all the trouble that ensues, is to ensure that enough legal sites are provided for gypsies and travellers in the first place. The Secretary of State (in practice the planning casework team in De-CloG) has been robust in allowing appeals where LPAs cannot demonstrate a 5-year housing land supply. A similarly robust approach should be taken where councils cannot demonstrate a similar provision for gypsy and traveller sites in their area. The message should be – either find the sites yourselves, or we will find them for you.
© MARTIN H GOODALL