Clarity of planning law required as Dale Farm Legal Challenge succeeds

Basildon Council have waited nine years to eject the travellers of Dale Farm, Essex, and will have to wait a little longer as three travellers, without the aid of a lawyer, were successfully granted an injunction at the High Court to delay eviction pending the resolution of a ‘triable’ factual issue. But how did they do it?

Despite the large outcry from human rights bodies around the world, the success of the Dale Farm injunction was not human rights based, but founded in a simple proposition of planning law: the need to be clear when submitting draft planning enforcement notices.

Between 2002 and 2004, Basildon council served a number of enforcement notices (for breaches of planning permission) on travellers occupying land which the travellers owned at Dale Farm, Essex. The enforcement notices required that the occupants remove hard standing that had been laid down, and caravans and other vehicles from the site. These notices, however, did not require the removal of any buildings or unlawfully erected fences.

This year, Basildon Council decided to enforce these notices under section 178 of the Town & Country Planning Act 1990, resulting in a petition by representatives of the travellers to the High Court for an injunction to restrain the proposed enforcement action. The representatives stated that it was arguable that the enforcement notices did not explicitly require removal of the buildings and fences. They believed that an injunction should be granted preventing enforcement action pending a court ruling on the exact scope of the enforcement notices

The High Court granted this injunction because, although they believed that the enforcement notices applied to buildings constructed on hard standing after the issuance of the notice, there was no such implication for buildings constructed before the notice was issued and fixed on to the hard standing.

The Court thus ruled that buildings erected unlawfully before the notice were not required to be demolished under an enforcement notice directed only at the removal of hard standing. If there were such buildings, the enforcement notice should have dealt with them expressly. A similar point applied to the fences.

This meant that there was a ‘triable’ factual issue regarding whether the buildings on the site were built before or after the issuance of the enforcement notices. As a result, the council’s enforcement proposals, which included demolishing the buildings, had to be put on hold until that issue could be resolved.

The travellers, therefore, were given a ‘stay of execution’, but the injunction was never a permanent means to stave off eviction. Monday 3rd October saw a High Court Judge rule that the Council could remove 49 of the 54 plots at the unauthorised site. Buildings constructed before the first enforcement notices, the old farmhouse and a utilities block, must remain.

The Judge also ruled that a third of the travellers’ legal costs would be paid by Basildon Council, despite the fact that attempting to evict these illegally positioned travellers has cost the council an estimated £22 million already, in the course of a 10 year long struggle.

Regardless, a separate injunction remains in place until the Judge decides on three applications by the travellers for judicial reviews. This is expected soon.

Still the wait goes on for Basildon council.

27-09-11

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