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> The Implication of Circular 1/06
The implications of the planning Circular 1/06
In February 2006 the Office of the Deputy Prime Minister (ODPM) issued a new planning circular (ODPM 01/2006, Planning for Gypsy and Traveller Sites- hereafter Circular 1/06). The ODPM also issued certain guidance and draft guidance (e.g. the 2006 Guidance referred to above). Though Circular 1/06 is a planning circular, it contains important emphasis on the need for all types of site provision (public and private) in order to resolve the problem of unauthorised encampments and developments. At para 33 it states:
‘Local authorities must allocate sufficient sites for gypsies and travellers.’
This is obviously an extremely important change of emphasis (for full discussion of Circular 1/06, see Planning permission for caravan sites above).
Though the word ‘tolerance’ does not appear in the 2006 Guidance (the word did appear in much earlier government guidance), nevertheless a lot of the emphasis is, effectively, on the possibility and sense of ‘tolerance’. Thus, for example, it is stated that:
‘Action will be more effective if there is an alternative site…either pitches on an authorised transit site, or a location which is deemed to be a more ‘acceptable’ unauthorised site’ (paragraph 61).
The 2006 Guidance puts emphasis on taking action where there is anti-social behaviour but, by implication, where an encampment is not causing severe problems, there is no need for enforcement action or certainly not immediate enforcement action.
The central link with adequate provision is repeatedly emphasised:
‘Enforcement action will be quicker and more effective, and a wider range of powers can be used, where appropriate authorised provision is made for Gypsies and Travellers within the area’ (paragraph 72).
‘The Courts are more likely to grant possession orders to local authorities who show they are acting responsibly in carrying out their wider duties and who deal with each incident of unauthorised camping on its merits’ (paragraph 72).
There is also a lot of emphasis in the 2006 Guidance on the possibilities of alternatives to eviction or immediate eviction:
‘Before taking action, landowners should consider whether enforcement is absolutely necessary. It may be that in certain circumstances, alternatives to eviction action are appropriate, for example:-
Also in February 2006 the ODPM produced a document entitled Local Authorities and Gypsies and Travellers: Guide to Responsibilities and Powers. At page 12 the Guide states:
‘Many unauthorised sites are not contentious and are trouble-free. In these circumstances, some authorities choose not to take enforcement action. However, a ‘toleration’ approach does not negate the need for local authorities to allocate land for authorised sites.’
With regard to those Gypsies and Travellers who are passing through an area and who need transit or temporary sites, the 2006 Guidance states:
‘The most effective method of combating unauthorised camping is to provide sites in accessible locations for those Gypsies and Travellers who pass through the area. This may not be limited to official residential and transit sites; it might also include particular locations which have been identified in a district where Gypsies and Travellers can stop for limited and agreed short periods of time, without having an adverse impact on the settled community’ (paragraph 97).
The Casey case
The most recent significant court decision on unauthorised camping is the case of R (Casey & ors) v Crawley BC and the ODPM (2006). The judgment by Burton J was delivered after February 2006 (i.e. after the 2006 Guidance, Circular 01/06 etc were published) but referred to a decision to evict taken by the local authority pre-February 2006. The case involved a group of Irish Travellers who were originally split between two unauthorised encampments and who had also made homelessness applications seeking a permanent site, rather than bricks and mortar accommodation. On anyone’s view of the matter, the two unauthorised encampments in this case could not be said to be on appropriate locations. One was at the entrance to a car park to a playing field and the other was on the grass verge of a narrow road leading up to a housing estate with part of the encampment abutting the houses themselves.
Burton J concluded that the welfare enquiries that had been carried out were sufficient to comply with the 2004 Guidance. Whilst he felt that he might have come to the same conclusion even after the 2006 Guidance (not then published at the time of the decision to evict) came into force, this comment was, strictly speaking, not part of the reason for the decision and therefore not binding law. Burton J took account of the fact that the local authority had previously tolerated encampments involving the same Travellers and the fact that the local authority had itself tried to identify a location for a site.
Importantly Burton J framed three options that he felt faced a local authority in such circumstances:
(i) to seek and obtain possession of an unauthorised encampment (Option 1);
(ii) to tolerate the encampment, if only for a short time, until an alternative
could be found (Option 2);
(iii) to find an alternative site, if only on a temporary basis, and offer the Gypsies and Travellers a move to it (Option 3).
He made it clear that local authorities should give reasonable consideration to each of these three options before coming to a conclusion as to what action to take.
The ODPM intervened in the case as an interested party. Burton J accepted a submission from the ODPM that local authorities were not expected to have done proactive searches for temporary toleration sites, though he went on to say:
‘If, in a given situation, reactively the council can find for travellers on an unauthorised site another temporary toleration site where lawfully and, notwithstanding the absence of planning permission, they can be temporarily sited, that would be a suitable administrative decision and exercise of [the third option]: but there is no need for them to have a pro-actively identified pool ready, even if that were feasible…’
Following the above case, it is clear that local authorities faced with decisions about unauthorised encampments, especially those on their own land, must give careful consideration to each of the three options outlined by Burton J. The Casey case provides an important update on this area of the law some ten years after the Atkinson case. However, it should be remembered that the decision in Casey involved a pre-February 2006 decision to evict, and it is suggested that post the publication of Circular 1/06 it may be possible to persuade the Courts that local authorities should adopt a more proactive approach to the identification of alternative sites
‘Local authorities must allocate sufficient sites for gypsies and travellers.’
This is obviously an extremely important change of emphasis (for full discussion of Circular 1/06, see Planning permission for caravan sites above).
Though the word ‘tolerance’ does not appear in the 2006 Guidance (the word did appear in much earlier government guidance), nevertheless a lot of the emphasis is, effectively, on the possibility and sense of ‘tolerance’. Thus, for example, it is stated that:
‘Action will be more effective if there is an alternative site…either pitches on an authorised transit site, or a location which is deemed to be a more ‘acceptable’ unauthorised site’ (paragraph 61).
The 2006 Guidance puts emphasis on taking action where there is anti-social behaviour but, by implication, where an encampment is not causing severe problems, there is no need for enforcement action or certainly not immediate enforcement action.
The central link with adequate provision is repeatedly emphasised:
‘Enforcement action will be quicker and more effective, and a wider range of powers can be used, where appropriate authorised provision is made for Gypsies and Travellers within the area’ (paragraph 72).
‘The Courts are more likely to grant possession orders to local authorities who show they are acting responsibly in carrying out their wider duties and who deal with each incident of unauthorised camping on its merits’ (paragraph 72).
There is also a lot of emphasis in the 2006 Guidance on the possibilities of alternatives to eviction or immediate eviction:
‘Before taking action, landowners should consider whether enforcement is absolutely necessary. It may be that in certain circumstances, alternatives to eviction action are appropriate, for example:-
- Where unauthorised campers have chosen an unobtrusive location in which to camp it may be preferable to agree a departure date with them;
- Where unauthorised campers have chosen to stop in an unacceptable location, but where the local authority has also identified a location in the vicinity which would be much less damaging or obtrusive, unauthorised campers could be encouraged to move to this location (paragraph 83).
Also in February 2006 the ODPM produced a document entitled Local Authorities and Gypsies and Travellers: Guide to Responsibilities and Powers. At page 12 the Guide states:
‘Many unauthorised sites are not contentious and are trouble-free. In these circumstances, some authorities choose not to take enforcement action. However, a ‘toleration’ approach does not negate the need for local authorities to allocate land for authorised sites.’
With regard to those Gypsies and Travellers who are passing through an area and who need transit or temporary sites, the 2006 Guidance states:
‘The most effective method of combating unauthorised camping is to provide sites in accessible locations for those Gypsies and Travellers who pass through the area. This may not be limited to official residential and transit sites; it might also include particular locations which have been identified in a district where Gypsies and Travellers can stop for limited and agreed short periods of time, without having an adverse impact on the settled community’ (paragraph 97).
The Casey case
The most recent significant court decision on unauthorised camping is the case of R (Casey & ors) v Crawley BC and the ODPM (2006). The judgment by Burton J was delivered after February 2006 (i.e. after the 2006 Guidance, Circular 01/06 etc were published) but referred to a decision to evict taken by the local authority pre-February 2006. The case involved a group of Irish Travellers who were originally split between two unauthorised encampments and who had also made homelessness applications seeking a permanent site, rather than bricks and mortar accommodation. On anyone’s view of the matter, the two unauthorised encampments in this case could not be said to be on appropriate locations. One was at the entrance to a car park to a playing field and the other was on the grass verge of a narrow road leading up to a housing estate with part of the encampment abutting the houses themselves.
Burton J concluded that the welfare enquiries that had been carried out were sufficient to comply with the 2004 Guidance. Whilst he felt that he might have come to the same conclusion even after the 2006 Guidance (not then published at the time of the decision to evict) came into force, this comment was, strictly speaking, not part of the reason for the decision and therefore not binding law. Burton J took account of the fact that the local authority had previously tolerated encampments involving the same Travellers and the fact that the local authority had itself tried to identify a location for a site.
Importantly Burton J framed three options that he felt faced a local authority in such circumstances:
(i) to seek and obtain possession of an unauthorised encampment (Option 1);
(ii) to tolerate the encampment, if only for a short time, until an alternative
could be found (Option 2);
(iii) to find an alternative site, if only on a temporary basis, and offer the Gypsies and Travellers a move to it (Option 3).
He made it clear that local authorities should give reasonable consideration to each of these three options before coming to a conclusion as to what action to take.
The ODPM intervened in the case as an interested party. Burton J accepted a submission from the ODPM that local authorities were not expected to have done proactive searches for temporary toleration sites, though he went on to say:
‘If, in a given situation, reactively the council can find for travellers on an unauthorised site another temporary toleration site where lawfully and, notwithstanding the absence of planning permission, they can be temporarily sited, that would be a suitable administrative decision and exercise of [the third option]: but there is no need for them to have a pro-actively identified pool ready, even if that were feasible…’
Following the above case, it is clear that local authorities faced with decisions about unauthorised encampments, especially those on their own land, must give careful consideration to each of the three options outlined by Burton J. The Casey case provides an important update on this area of the law some ten years after the Atkinson case. However, it should be remembered that the decision in Casey involved a pre-February 2006 decision to evict, and it is suggested that post the publication of Circular 1/06 it may be possible to persuade the Courts that local authorities should adopt a more proactive approach to the identification of alternative sites
