Elizabeth Thomson and Rachel Lee give a roaming view of the law affecting the travelling community.
On 6 February the home secretary announced plans to enhance police powers when dealing with gypsy and traveller encampments. The Ministry for Housing, Communities and Local Government also announced that it will provide local authorities with greater practical and financial support to handle unauthorised encampments.
Encampments are a perennially controversial issue. There is never any shortage of local news stories cataloguing social problems associated with gypsies and travellers. In contrast, human rights groups cite a shortage of lawful sites as the root of the problem and accuse local authorities and the government of reinforcing prejudice against nomadic communities. While we wait with interest to see whether the government’s draft measures materialise into a change in the law, here is an overview of the current position.
Background
Gypsies and travellers are typically considered to include Romani gypsies, Irish travellers, Scottish and Welsh gypsy travellers, new age travellers and travelling showpeople. It is estimated that there are between 63,000 and 300,000 such people in the UK. Many live in housing but a significant number adopt a traditional itinerant lifestyle in accordance with their culture.
Different legal considerations may apply depending on the category of traveller. For example, Romani gypsy and Irish travellers have been held to be separate ethnic groups for the purposes of the Equality Act 2010 and are thus protected from discrimination. The position is likely to be the same for Scottish and Welsh gypsy travellers. However, travelling showpeople and new age travellers have not been recognised as separate racial groups.
In contrast, for the purposes of planning law, the planning definitions of gypsy or traveller and travelling showperson are not dependent on ethnicity but rather on “the nomadic habit of life”.
Here, the term “gypsy” is used to refer to all categories of gypsies and travellers unless the context requires otherwise.
Obligation to provide caravan sites
In Chapman v United Kingdom [2001] ECHR 27238/95, the European Court of Human Rights held that Article 8 (right to respect for one’s home and private and family life) protected the right of ethnic gypsies to enjoy a traditional lifestyle. The court said “…there is thus a positive obligation imposed on the contracting states by virtue of Article 8 to facilitate the gypsy way of life…”.
In domestic law, local authorities were first placed under a duty to provide caravan sites in 1970 (Caravan Sites Act 1968). It is fair to say that there was little compliance with this duty and in 1994 the duty was repealed (Criminal Justice and Public Order Act 1994 (the 1994 Act)). By the early 2000s, local authorities were under a duty to prepare a strategy to meet the accommodation needs of gypsies. (See below for the current planning policy position).
Unauthorised developments
A further pressure on the traditional gypsy way of life is the difficulty gypsies encounter in developing their own land for use as a caravan site. The stationing of a caravan on land can constitute a “development” for planning purposes. The infamous Dale Farm evictions (2001 to 2011) typified the competing issues at stake.
In those cases, Irish travellers were using their own green belt land unlawfully as caravan sites. The travellers had tried and failed to obtain planning permission and subsequently challenged the lawfulness of the local authority’s direct enforcement action under the Town and Country Planning Act 1990. The travellers ultimately lost the cases, but the judgments emphasise the difficult balance that must be struck when weighing protection of the green belt, public confidence in the planning system and the proper enforcement of criminal law against the needs and human rights of gypsies.
Unauthorised encampments
Unofficial sites on third-party property may be on private land (industrial estates, private car parks, fields) or on local authority land (roadsides, recreation parks, plots of land awaiting development, car parks). Even when an unauthorised encampment is on local authority land, the impact on commercial occupiers and local businesses can be considerable, for example where a supermarket car park is operated by the local authority.
Various laws are relevant when seeking to move on unauthorised encampments, depending on whether the land is public or private.
Public land
If gypsies are camping on the public highway, then they may be prosecuted pursuant to the Highways Act 1980. It is also an offence under the Road Traffic Act 1988 to park a vehicle so as to cause danger to other road users.
Section 61 to section 62A of the 1994 Act (which does not apply to public highways, but which does apply to other public and private land) gives the police discretionary powers to direct that gypsies move off unauthorised encampments when:
- The police reasonably believe two or more people are trespassing with the intention of residing on the land for any period, where reasonable steps have been taken by the occupier to ask them to leave; and
- Any of those persons has caused damage to the land or property on the land or used threatening, abusive or insulting words or behaviour; or
- Those persons have between them six or more vehicles on the land.
If the gypsies do not comply with a section 61 direction to leave the land, the police have powers of arrest and impoundment of vehicles.
Section 62A (which does apply to highways) also gives the police wider powers to move on travellers (eg fewer than six, but more than one, and where there is no damage or threatening behaviour, etc) where there is a suitable alternative pitch available on a local authority caravan site.
Local authorities also have eviction powers in relation to local authority land (including highways and tenanted land). These are contained in section 77 of the 1994 Act and allow local authorities to serve a direction notice requiring the gypsies to leave the land and remove any vehicles and property. If the gypsies do not leave as soon as practicable after receiving such a direction, they will commit a criminal offence. It is also a criminal offence for them to return to the same land within three months. Section 78 grants to the Magistrates Court power to take the necessary steps to remove vehicles and property which are present on land in contravention of a local authority direction notice.
Local authorities also have common law powers of eviction (see below) but it is recommended that local authorities use procedures that involve court action rather than their common law powers.
Finally, local authorities can issue a claim for possession against trespassers using the procedure laid down in Part 55 of the Civil Procedure Rules 1998 (CPR). Trespassers will need to be given at least two clear days’ notice of the hearing.
When local authorities or the police exercise their powers or rights they are required to take account of welfare considerations. If they fail to do so, a decision to evict may be susceptible to challenge by way of judicial review. Also, Article 8 of the European Convention on Human rights, which protects private and family life and the home, could be relied on by gypsies as a defence to a claim for possession action brought by a public body.
A case due to be heard in the High Court later this month – Bromley London Borough Council v Persons Unknown – will consider the lawfulness of a blanket injunction obtained by the local authority banning gypsy and traveller encampments anywhere on 171 parks, commons and other open spaces in the borough. It is reported that more than 20 local authorities have obtained similar injunctions giving them the power to fine, imprison or seize the property of gypsies if they continue to camp on open land. It will be interesting to see how the court will rule on the lawfulness and proportionality of the injunction as a means of preventing the infringement of planning rules.
Private land
Landowners have common law powers to use no more force than is reasonably necessary to evict trespassers. These can be used without a court order.
Landowners can also issue a claim for possession under the CPR. Gypsies will have no defence to a possession claim by a private landowner unless then can prove they benefit from consent to occupy or that the person claiming possession is not entitled to do so due to insufficient interest in the land or lack of title.
There are no obligations on private landowners to take account of humanitarian considerations when deciding whether to take eviction action against an unauthorised encampment. However, if using common law powers of eviction, police should always be notified of an eviction and called in to stand by to prevent a breach of the peace. If a landowner (or their agents or employees) exceeds the use of “reasonable force” then they may face an action for criminal damage, trespass to person or property or assault.
The police may also use their powers contained in sections 61 to 62A of the 1994 Act (see above) in favour of a private landowner. However, a landowner must provide a deadline to gypsies to vacate before the police can seek to apply section 61. Local authorities may also use their powers in section 77 of the 1994 Act for the benefit of private landowners, but are not under a duty to do so.
Unfortunately, the tension between the traditional gypsy way of life and the rights of landowners (both private and public) appears set to continue for the foreseeable future. There are currently more than 300 local authority caravan sites in existence but demand clearly exceeds supply with around 20% of those living in caravans being technically homeless, with nowhere to lawfully station their caravan. This 20% has no alternative but to break the law when they stop for the night.
Planning obligations
- The Housing and Planning Act 2016 includes a duty on local housing authorities to consider the needs of those residing in their areas in relation to the provision of “sites on which caravans can be stationed”.
- Planning for homes for all gypsies and travellers (nomadic and settled) needs to be part of the housing strategic policy context, as outlined in the National Planning Policy Framework.
- When taken alongside the government’s planning policy for traveller sites (which must be taken into consideration in preparing local plans and taking planning decisions), all local authorities are subject to a requirement to have policies in place for a proactive and planned for approach to development to meet the housing needs of the community, including gypsies and travellers.
- Local authorities are encouraged to formulate their own evidence base for gypsy and traveller needs and to provide their own targets relating to pitches required.
Elizabeth Thomson is a professional support lawyer and Rachel Lee is a planning associate at Irwin Mitchell
