Home > yourrights > rights of gypsies and travellers/Evictions from Unauthorised Encampements > Evictions from Unauthorised Encampements
> Local Authorities
In R v Lincolnshire CC ex p Atkinson & ors (1995), Sedley J made it clear that when local authorities considered the eviction of unauthorised encampments they ought to comply with Department of the Environment (DoE) Circular 18/94, Welsh Office 76/94 (hereafter DoE 18/94), Gypsy Sites Policy and Unauthorised Camping. Sedley J stated:
‘Detailed analysis of [passages from the circular]and debate about what legal force, if any, an advisory circular of this kind possesses has been made unnecessary by the realistic concession of counsel for both local authorities that whether or not they were spelt out in a departmental circular the matters mentioned…would be material considerations in the public law sense that to overlook them in the exercise of a local authority’s powers under sections 77 to 79 of the Act of 1994 would be to leave relevant matters out of account and so jeopardise the validity of any consequent steps. The concession is rightly made because those considerations in the material paragraphs which are not statutory are considerations of common humanity, none of which can be properly ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security.’
Clearly, therefore, such government guidance (see further below) is a relevant material consideration for public authorities, and particularly local authorities, to take into account when considering whether or not to evict an unauthorised encampment.
DoE 18/94 paragraph 6 states:
‘While it is a matter for local discretion to decide whether it is appropriate to evict an unauthorised gypsy encampment, the Secretary of State believes that local authorities should consider using their powers to do so wherever the gypsies concerned are causing a level of nuisance which cannot be effectively controlled. They also consider that it would usually be legitimate for a local authority to exercise these powers wherever gypsies who are camped unlawfully refuse to move onto an authorised local authority site. Where there are no such sites, and the authority reaches the view that an unauthorised gypsy encampment is not causing a level of nuisance which cannot be effectively controlled, it should consider providing basic services, such as toilets, a refuse skip and a supply of drinking water at that site.’
Paragraph 9 of DoE 18/94 states:
‘[Local authorities] should use [their] powers in a humane and compassionate way, taking account of the rights and needs of the gypsies concerned, the owners of the land in question, and the wider community whose lives may be affected by the situation.’
More recently central government has also produced the ODPM Guidance on Managing Unauthorised Camping (February 2004, hereafter the ‘2004 Guidance’) and the ODPM Guide to effective use of enforcement powers-Part 1: Unauthorised Encampments (February 2006, hereafter the ‘2006 Guidance’). The 2004 and 2006 Guidance both apply to England. The National Assembly for Wales/Home Office have produced Guidance on Managing Unauthorised Camping (January 2005). The Welsh Guidance is extremely similar to the 2004 Guidance.
The 2004 Guidance makes it clear that humanitarian considerations apply to public authorities regardless of the eviction process being used. Clearly some form of enquiry process is required in order to gather the necessary information and then a suitable method needs to be adopted for analysing and considering that information and Chapter 3 of the 2004 Guidance stresses the importance placed upon the adoption of strategies by public bodies involved in the management of unauthorised encampments.
The 2004 Guidance reiterates the government’s emphasis on the need for site provision. For example, at paragraph 4.2, it states:
‘Site provision is an essential element in any strategy. In a context where the number of Gypsy caravans exceeds the number of authorised places where they can stop – which is the case in England – provision of suitable accommodation for Gypsies and Travellers must be seen as a vital part of an approach to dealing with unauthorised camping.’
The 2004 Guidance further emphasises the importance of welfare enquiries and the need for public bodies to take account of considerations of common humanity. This emphasis is repeated in the 2006 Guidance:
‘Local authorities should ensure that, in accordance with their wider obligations, and to ensure that they comply with Human Rights legislation, proper welfare enquiries are carried out to determine whether there are pressing needs presented’ (paragraph 77).
The 2004 Guidance also makes it clear that the location of an encampment will be an important consideration:
‘Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampments will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risk, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses’ (paragraph 5.4).
The 2006 Guidance gives examples of locations that cause serious disruption and may need to be moved, e.g. school grounds during term time, urban parks, business parks (paragraph 59).
The 2004 Guidance refers to methods of obtaining information on welfare needs:
‘Reasonable attempts should be made to get information from unauthorised campers not present at the time of the visit. Other members of the group may sometimes be able to provide information. A letter or self-completion form may be left with clear instructions for its return (at no cost to the unauthorised camper). All such actions should be clearly recorded, and if there is still no response, this should be noted’ (paragraph 5.17).
The 2004 Guidance continues:
‘Any welfare needs of unauthorised campers are a material consideration for local authorities when deciding whether to start eviction proceedings or to allow the encampment to remain longer. Welfare needs do not give an open-ended ‘right’ for unauthorised campers to stay as long as they want in an area. For example, the presence of a pregnant woman or school aged children does not, per se, mean that an encampment must remain indefinitely. To defer an eviction which is justified on other grounds, the need must be more immediate and/or of a fixed term’ (paragraph 5.20).
The 2004 Guidance goes on to give some specific examples of situations where good practice suggests that evictions should be delayed:
The 2004 Guidance gives examples of unacceptable behaviour such as over-large encampments, aggressive or threatening behaviour, failure to control dogs, persistent and disturbing noise, littering/fly-tipping, damage to property or criminal activity (paragraph 7.3).
‘Detailed analysis of [passages from the circular]and debate about what legal force, if any, an advisory circular of this kind possesses has been made unnecessary by the realistic concession of counsel for both local authorities that whether or not they were spelt out in a departmental circular the matters mentioned…would be material considerations in the public law sense that to overlook them in the exercise of a local authority’s powers under sections 77 to 79 of the Act of 1994 would be to leave relevant matters out of account and so jeopardise the validity of any consequent steps. The concession is rightly made because those considerations in the material paragraphs which are not statutory are considerations of common humanity, none of which can be properly ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security.’
Clearly, therefore, such government guidance (see further below) is a relevant material consideration for public authorities, and particularly local authorities, to take into account when considering whether or not to evict an unauthorised encampment.
DoE 18/94 paragraph 6 states:
‘While it is a matter for local discretion to decide whether it is appropriate to evict an unauthorised gypsy encampment, the Secretary of State believes that local authorities should consider using their powers to do so wherever the gypsies concerned are causing a level of nuisance which cannot be effectively controlled. They also consider that it would usually be legitimate for a local authority to exercise these powers wherever gypsies who are camped unlawfully refuse to move onto an authorised local authority site. Where there are no such sites, and the authority reaches the view that an unauthorised gypsy encampment is not causing a level of nuisance which cannot be effectively controlled, it should consider providing basic services, such as toilets, a refuse skip and a supply of drinking water at that site.’
Paragraph 9 of DoE 18/94 states:
‘[Local authorities] should use [their] powers in a humane and compassionate way, taking account of the rights and needs of the gypsies concerned, the owners of the land in question, and the wider community whose lives may be affected by the situation.’
More recently central government has also produced the ODPM Guidance on Managing Unauthorised Camping (February 2004, hereafter the ‘2004 Guidance’) and the ODPM Guide to effective use of enforcement powers-Part 1: Unauthorised Encampments (February 2006, hereafter the ‘2006 Guidance’). The 2004 and 2006 Guidance both apply to England. The National Assembly for Wales/Home Office have produced Guidance on Managing Unauthorised Camping (January 2005). The Welsh Guidance is extremely similar to the 2004 Guidance.
The 2004 Guidance makes it clear that humanitarian considerations apply to public authorities regardless of the eviction process being used. Clearly some form of enquiry process is required in order to gather the necessary information and then a suitable method needs to be adopted for analysing and considering that information and Chapter 3 of the 2004 Guidance stresses the importance placed upon the adoption of strategies by public bodies involved in the management of unauthorised encampments.
The 2004 Guidance reiterates the government’s emphasis on the need for site provision. For example, at paragraph 4.2, it states:
‘Site provision is an essential element in any strategy. In a context where the number of Gypsy caravans exceeds the number of authorised places where they can stop – which is the case in England – provision of suitable accommodation for Gypsies and Travellers must be seen as a vital part of an approach to dealing with unauthorised camping.’
The 2004 Guidance further emphasises the importance of welfare enquiries and the need for public bodies to take account of considerations of common humanity. This emphasis is repeated in the 2006 Guidance:
‘Local authorities should ensure that, in accordance with their wider obligations, and to ensure that they comply with Human Rights legislation, proper welfare enquiries are carried out to determine whether there are pressing needs presented’ (paragraph 77).
The 2004 Guidance also makes it clear that the location of an encampment will be an important consideration:
‘Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampments will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risk, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses’ (paragraph 5.4).
The 2006 Guidance gives examples of locations that cause serious disruption and may need to be moved, e.g. school grounds during term time, urban parks, business parks (paragraph 59).
The 2004 Guidance refers to methods of obtaining information on welfare needs:
‘Reasonable attempts should be made to get information from unauthorised campers not present at the time of the visit. Other members of the group may sometimes be able to provide information. A letter or self-completion form may be left with clear instructions for its return (at no cost to the unauthorised camper). All such actions should be clearly recorded, and if there is still no response, this should be noted’ (paragraph 5.17).
The 2004 Guidance continues:
‘Any welfare needs of unauthorised campers are a material consideration for local authorities when deciding whether to start eviction proceedings or to allow the encampment to remain longer. Welfare needs do not give an open-ended ‘right’ for unauthorised campers to stay as long as they want in an area. For example, the presence of a pregnant woman or school aged children does not, per se, mean that an encampment must remain indefinitely. To defer an eviction which is justified on other grounds, the need must be more immediate and/or of a fixed term’ (paragraph 5.20).
The 2004 Guidance goes on to give some specific examples of situations where good practice suggests that evictions should be delayed:
- advanced pregnancy – a period shortly before and after birth, longer on medical advice if there are complications;
- ill health – where a hospital appointment is booked;
- in-patient treatment for a close family member;
- a period during which a medical condition can be diagnosed, stabilised and a course of treatment started;
- educational needs – children in school if within four weeks of the end of term or if access to special education has been gained (page 31 box 18).
The 2004 Guidance gives examples of unacceptable behaviour such as over-large encampments, aggressive or threatening behaviour, failure to control dogs, persistent and disturbing noise, littering/fly-tipping, damage to property or criminal activity (paragraph 7.3).
