Dale Farm: Why Human Rights Needs to Infiltrate the Planning Process
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The impending eviction of travellers from Dale Farm in Essex, delayed again but scheduled for Friday or Saturday, raises the question of whether Basildon Council’s actions will be a violation of the European Convention on Human Rights, as directly applied in the UK Human Rights Act 1998. There have been a number of cases involving Travellers and Roma before the European Court of Human Rights in Strasbourg, but while the Roma have been relatively successful in defending their rights, the Travellers have won only one case.
The Roma have won a series of decisions against a range of Council of Europe states including Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, France, Greece, Hungary, Moldova, Slovakia, Spain and Turkey. The caselaw has included issues such as the failure to carry out an effective investigation into attacks on a Roma settlement (Koky and others v. Romania), segregation of Roma in schools (Orsus v. Croatia) and racially-biased police investigations (Nachova v. Bulgaria). These are examples of the Court acting decisively in tackling what it perceives to be racial discrimination against the Roma, with one commentator noting that in relation to the schools segregation question, the Court was behind “a legal revolution of sorts”. The facts can be extreme, as illustrated in Moldovan and others v. Romania which involved police collusion in the burning down of a Roma village, with three deaths.
The cases involving Travellers have all involved the UK and have all involved evictions. By contrast with the Roma, Travellers have won only one case before the ECHR; the 2004 decision in Connors v. UK. They have lost in Buckley v. UK, Chapman v. UK, Coster v. UK, Beard v. UK, Lee v. UK and Jane Smith v. UK, although some of these cases were decided together. Buckley [1995] provides the benchmark for the ECHR approach as “the first gypsy case that ever got to Strasbourg”, decided on the basis of an Article 8 right to private and family life. It involved a refusal by local authorities to allow the applicant to live in her own caravan on her own land, through a refusal of planning permission. Although the Commission ruled in her favour, the Court ruled against noting that in planning matters, the State enjoys a wide margin of appreciation.
In Chapman v. UK, the Court adopted a more compromising stance than was seen in Buckley, referencing the minority status of the applicant, noting that “the applicant’s occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle”; and “the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle.” However it was held that there was no violation of Article 8, the interference – refusal of planning permission to station caravans on her land and enforcement measures to remove her as a result – having pursued the legitimate aim of protecting the “rights of others”, through preservation of the environment.
In Connors v. UK, the only case in which a violation of Article 8 was found, the situation is similar to what will be seen this weekend, as outlined in the judgment:
“The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children’s education. The family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entails.”
The powers used by the Council involved summary eviction without giving reasons liable to be examined by an independent tribunal. Thus the Court found that the eviction was not accompanied by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference, and consequently could not be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued. There was, accordingly, a violation of Article 8 of the Convention.
The Connors criteria does not apply at Dale Farm. Essentially the judgment supported the eviction process, if accompanied by correct procedural safeguards which were not present in Connors. The Court did note: “the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursuing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle.”
So where will the Dale Farm travellers go? A BBC article highlights the difficulties for the residents upon eviction. Up to 400 people are living illegally on the site in 80 properties (although part of the site is legal), with the BBC contacting 30 sites and all reporting that they were at, or close to, capacity. Alternative locations can be far removed, such as St Helens as suggested by the leader of Basildon Council, which is some 175 miles to the northwest.
The issue revolves around planning permission rather than ownership of land. In many cases Travellers own land but cannot get permission to build on it, making any structures illegal. As even the Telegraph acknowledges, “The Dale Farm residents own the plot of green belt land on which they live, but it is illegal for them to set up caravans and chalets there without planning permission.”
The UK government has recognised the potential clash between human rights and the planning process. A June 2010 Parliament briefing paper examines the specific issue of human rights and planning, noting that “Several cases relating to Gypsies and Travellers have used article 8 of the convention – the right to respect for private and family life. It has been successfully argued that moving on Gypsies from a camp site where they live might be a breach of article 8, unless they have somewhere else to go.” Often these cases involve gypsies who bought land and developed it without planning permission, as is the case at Dale Farm. The paper notes that the Labour government tried to make its policy on Gypsies compatible with Article 8 by increasing the supply of land available for camp sites. Thus: “Provided there is somewhere else for the Gypsies to go, the decision to prevent them from developing one site is unlikely to be an infringement of the Convention.” However the process took time and had not been completed by the 2010 General Election. The Coalition Government subsequently “reversed that policy by scrapping regional planning, along with housing targets and targets for gypsy sites.”
And herein lies the problem. The Coalition’s ‘Planning for Traveller Sites’ draft policy received a withering response (available here under ‘response to draft policy’) from the Irish Chaplaincy in Britain (ICB), a charity that provides services and support to excluded, vulnerable and isolated Irish emigrants in Britain, including to members of the Irish Traveller community. The response argues: “The Government’s decision to take a ‘hands-off’ approach to site provision on the grounds that Local Authorities are ‘best placed to know the needs of their communities’ appears to us to be worrying development, given that many Local Authorities still treat Gypsies and Travellers as problems to be got rid of, rather than as valued members of the community. “
The paper notes the statistic that 20% of Travellers in Britain are statutorily homeless, due to their being based in unauthorised encampments with nowhere else to go. It cites the Gypsy Council which claims that “institutional racism… in the way the planning system works against us to refuse and restrict planning permissions for residential provision”, is the root cause of the shortage of legal sites. And there is overwhelming objective support for this claim – 90% of planning applications submitted by Gypsies and Travellers are rejected, compared with 20% from the general population.
The situation of the Dale Farm residents is indicative of institutional racism in the planning process, and the Strasbourg Court should not continue to ignore it through the margin of appreciation doctrine. It is time human rights infiltrated the planning process.
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