Tag Archives: dale farm

Dale Farm Update

So the encampment at Dale Farm has been broken up. The travellers and protestors have left. The final throw of the litigious dice has failed, and the expulsion has been achieved.

How did the judicial route, once seemingly so endlessly promising, ultimately turn into a cul-de-sac?

The details of what was to be done by way of implementation of the enforcement notices (entitling the Council to act) were finally judged sufficient to allow the action. And a last minute dependence on the Human Rights Act proved of no avail: the argument had come too late in the day to make a difference. In any event, ruled Ouseley J on the 12th October, the local authority had lawfully and rationally considered the proportionality of its conduct and had taken the claimants’ personal circumstances, health and education into account when making its decision. The planning system and the criminal law could not be indefinitely defied, thereby bringing both into disrepute. The interests of the children of the campers were being looked after – if the families did not take up the offer of alternative bricks and mortar accommodation then that was their problem, not that of the Council.

Sure there would be distress just as there had already been a vast expenditure of legal costs. But that was simply how it had to be.

Some questions:

  • Will David Cameron, Teresa May, Melanie Phillips, the Daily Mail and all the other Human Rights Act haters now praise the Act for its failure to provide protection for the travellers? Or do they only notice the measure when opportunity gives them a chance to disparage it?
  • Will Basildon Council think hard about its statutory duty to provide sites for travellers? Will other councils?
  • Will this case lead to copycat acts of legalised brutality across the country?
  • Should it worry us that the Human Rights Act is so marginal in a case like this, while being so vital where you might think interests are much less central to people’s lives than they were here?
  • Does this show up the limitations inherent in any human rights law intended to operate in a way that complements rather than subverts the status quo?

What Is Really Going On At Dale Farm?

The attempt to remove travellers from Dale Farm in Essex has been the subject of a series of complicated legal actions, some of which are ongoing. Here is a snapshot of the current state of play.

In the 1990s Dale Farm was owned by a Mr Roy Bocking. Even then it wasn’t a farm – more a scrap-yard made up of a hard surface used for storing cars. The property is within the Green Belt and as early as 1992 it was the subject of no fewer than 42 planning enforcement notices related to the unlawful activity that was taking place on it. Hard surfaces and various fences were required to be removed. When the travellers who are at the centre of today’s dispute purchased the place in 2001 they inherited a large amount of hard-standings and these are very likely to have dated from this time; it would seem that (contrary to what the Council was later to tell itself) these early enforcement notices had not been complied with.

New enforcement notices ensued between 2002 and 2004, requiring removal of hardcore or hard standings and subsequent re-seeding of the land, the cessation of residential use on the plots, and the removal of caravans and vehicles and other mobile and portable structures. Apart from one plot however there was no requirement in any of the notices to demolish or remove buildings. And unlike the 1992 enforcement notices, none of the current notices required the removal of unlawfully erected fences.

The issue that has preoccupied the courts this week has been how far the Basildon Council is entitled to go in executing these new enforcement notices. Everyone initially agreed that they are valid (see R (McCarthy) v Basildon District Council [2009] EWCA Civ 13) and that stuff can be done – the question is how much. As Mr Justice Edwards-Stuart put it in his judgement this Monday ([2011] EWHC 2416 (QB)) ‘the residents contend that a wholesale removal of the hard standings (apart from the excepted plots), removal of fixed caravans and demolition of certain buildings and other fixed structures, such as walls, fences and gates, goes beyond the scope of the steps described in the notices’ whereas the Council submits that ‘these objections are misconceived and that, save for [some very few exceptions], it is entitled to carry out what is, in effect, a wholesale clearance of nearly all of the plots on the site.’

At an earlier hearing the week before this latest judgement, the judge asked for the Council to be much more particular about what it was planning to do. Basildon duly put together a more detailed analysis and presented it to Court on Friday the 23rd. The judge heard evidence from both sides on the Friday and gave written judgement two days ago: this is the judgement of Monday 26th mentioned above.

And what has the judge now decided? Yes you have guessed – that another hearing is necessary! This time it is mainly to work out which buildings, if any, can be demolished and which are to be protected, with everything hinging on when they were constructed. It seems that buildings, walls, fences and gates which predate the second set of enforcement notices but which are nowhere mentioned in them will be now safe from destruction – so long as their age can be established, with the onus being on the residents to show that they were there when the notices (which fatally didn’t mention them) were issued and have not been opportunistically (and illegally) added since. As the judge put it in a neatly understated way the enforcement notices ‘may not have been sufficiently precisely drawn’. He is surely right about that: you can’t issue an enforcement notice to remove a ground surface and then nip in and destroy a house to get at it – the second action is not just an enabler of the first, and so in fairness requires its own enforcement notice.

As though all this were not complicated enough, the day before the hearing on the 23rd the residents started a whole new parallel legal action saying the implementation of the enforcement power was itself unlawful, a much wider attack than they had hitherto contemplated and one that is to be decided upon tomorrow (the 29th).

So there you have it – two proceedings ongoing, each enmeshing the Council’s desire to get rid of these travellers in ever increasing amount of red tape and legalistic confusion. No mention of the Human Rights Act, or of international human rights law, or of the rights of travellers. But out of sight is not out of mind, so far as this judge is concerned, I’d say. Behind the pedantry is a truly ethical position, even if it is unspoken: before you wreck people’s lives make sure you have made your legal authority crystal clear. The judgement reminds me of those cases in apartheid South Africa where brave human rights lawyers and the occasional sympathetic judge cleverly used every loophole they could to reduce or undermine the actions of the state agents with whose immoral conduct they were confronted. A worrying analogy to make of a British court decision.

And what next?

I’ll return to this when we have the ruling tomorrow on the validity of the enforcement notice and then (if that goes well for the Council) the final ruling on what exactly they will be able to do at Dale Farm.