Forced eviction and planning enforcement: the Dale Farm Gypsies

AuthorRobert Home
PositionLaw School, Anglia Ruskin University, Chelmsford, UK
Introduction

Forced evictions are apparently on the increase world-wide, in frequency, number, scale and levels of violence, and were brought to wider attention through a 1994 report by the Habitat International Coalition ( Leckie, 1994 ). Cases have been reported since 1990 by the Centre on Housing Rights and Evictions (COHRE, a Geneva-based NGO), and since 2005 by the Advisory Group on Forced Evictions (established by UN-Habitat1). In 1997 a workshop convened by the UN Human Rights Commissioner agreed guidelines on “development-based displacement”, and listed dam and energy projects, urban renewal, city beautification, and clearing of land for agricultural purposes as giving rise to forced evictions, which it defined as:

The coerced and involuntary removal of individuals, groups and communities from their homes and/or lands and common property resources they occupy or are dependent upon, thus eliminating or limiting the possibility of an individual, group or community residing or working in a particular dwelling, residence or place ( COHRE, 1999 ).

The groups displaced are usually already marginalized and vulnerable. High-profile and large-scale examples include Palestinians displaced by the Israeli state ( Coon, 1992 ; Shamir, 2001 ), and non-whites displaced by racial laws in apartheid South Africa until reversed by the Prevention of Illegal Evictions Act 1998 ( Murray and O'Regan, 1990 ).

Evictions involve three basic legal concepts: ownership, occupation, and use/development of land. Where those evicted may be the lawful owners and occupiers, public authorities may expropriate through compulsory acquisition, but the land use planning system is often the mechanism for eviction, applied by the local planning authority through refusal of planning permission and subsequent enforcement action. The planning objectives pursued may include urban regeneration or renewal, and in rural areas environmental or countryside protection. As a result people's right of access to housing (or in case of Gypsies right to live in caravans) may be denied, since the wider social demands of the land use planning system can over-ride individuals' human right to property and family life (the 1st protocol and Article 8 of the European Convention on Human Rights). The existence of private property rights may require separate legal proceedings against each land ownership parcel affected, which makes the costs to both sides high, in time, resources, stress-related health problems and ultimately violent action.

Evictions are undertaken within the framework of formal law, enforced by the state, of which planning forms a part, but there are other legal “cultures” involved. Karsten (2002) offered an historical analysis of the interactions between bureaucratic “formal” systems regulating land ownership and use, and the “informal” perceptions, understandings and practices of those on the ground, where local community-based land rights may try to over-ride statutory rules. The belief that ordinary people are morally entitled to live on land that they own, or to occupy land to meet their basic housing needs, has deep historical roots, and may conflict with the coercive power of the state ( Everton, 1975 ).

Another legal culture is the supra-national framework of “soft” law of international conventions, including human rights, rights to housing and minority rights, which states may sign up to but disregard in specific cases where a substantial “margin of appreciation” may be held to apply. Internationally accepted guidelines have emerged that include legal remedies (fair hearing before a competent, impartial and independent court or tribunal) and provision of adequate alternative accommodation where possible. The state has responsibilities to ensure that evictions are authorized by law, reasonable and proportionate, carried out in accordance with international human rights law, undertaken solely for the purpose of promoting the general welfare, and ensure full and fair compensation and rehabilitation.

Most of the publicized forced evictions were in the developing countries of Asia, Africa, the Middle East and South America, but the forced eviction of Gypsies (or Roma) and Travellers in Europe attracted early attention. The International Convention on the Elimination of All Forms of Racial Discrimination, in force since 1969, is a human rights instrument monitored by the Committee on the Elimination of Racial Discrimination (CERD), which has received several complaints on the treatment of Roma in Eastern Europe, and COHRE reported France's treatment of Roma to the Secretariat of the European Human Rights Commission. In 2005 the UK began to appear in reports of forced evictions, particularly the planning enforcement action against the notorious Dale Farm site in the Essex Green Belt, where a large group of Irish Gypsies/Travellers were eventually forcibly cleared by Basildon District Council in October 2011.

This article explores the legal and policy development of the long-running Dale Farm dispute, in the context of Gypsy/Traveller accommodation and wider housing shortages, and examines how planning and judicial process approached the complex issues arising.

Gypsies and Travellers as forced eviction targets in the UK

The terms Gypsy and Traveller have become a convenient policy categorisation for a wide variety of people who have never constituted a homogeneous group, which the State seeks to control by the use of “nomadism” as a defining characteristic. The current definition (since 2006) is widely drawn:

Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such' (Circular 01/06, para. 15).

Gypsies and Travellers living in caravans in the UK probably comprise less than a tenth of one per cent of the population, yet vastly disproportionate public resources have been expended on controlling and regulating them. Prejudice against them is high from the settled or sedentary population, and much policy debate and academic research has been generated ( Acton and Mundy, 1997 ; Kenrick and Clark, 1999 ; Mayall, 1995 ).

The key legislation is contained in three Acts of Parliament – the Caravan Sites Act 1968 (Part II), the Criminal Justice Act 1994 and the Housing Act 2004 ( Home, 2009 ; Johnson and Willers, 2004 ). The first, passed under a Labour Government but promoted by a Liberal MP (now Lord Avebury), required local authorities “so far as may be necessary to provide adequate accommodation for Gypsies residing in or resorting to their area”, and empowered the Secretary of State to make designation orders for areas where satisfied that adequate provision of “gypsy sites” had been made by local authorities (or on grounds of expediency). The second Act, passed by a Conservative government, abolished both designation and the local authority duty to provide accommodation, and criminalized unauthorised encampment on land without the owner's consent ( Hawes and Perez, 1996 ). Since that criminalisation did not apply to owner-occupied land, which was subject to planning controls, the Gypsies and Travellers responded by buying up land, moving onto it, sometimes in large groups, and taking their chances through the planning system.

After ten years of a deteriorating situation following the 1994 Act, the Labour Government in 2004 initiated a major review, which included a report by the Commission for Racial Equality, a Parliamentary Committee inquiry, report and government response, as well as various new circulars, reports and policy guidance ( Morris and Clements, 1999 ; House of Commons, 2004 ). While the Government declined to restore the statutory duty upon local authorities to provide sites, and the powers in the 1994 Act remained in force, a significant change was introduced in the Housing Act 2004 (section 225), which required local authorities to “carry out an assessment of the accommodation needs of Gypsies and Travellers residing in or resorting to their district”. By 2008 these new Gypsy and Traveller Accommodation Assessments (GTAAs) covered much of...

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