Back To The Past - Planning for Traveller Sites
Copyright © The Community Law Partnership 2011
This is not Community Law Partnership’s (CLP’s) submission to Communities and Local Government on this matter. It is merely a collection of initial thoughts which we hope may help to encourage debate. We would point out that we feel that the terms ‘Gypsy’ and ‘Traveller’ should be capitalised throughout the document.
The Travellers Advice Team at CLP operate a Community Legal Advice funded telephone helpline for Gypsies and Travellers throughout England and Wales which is available between 9.00am to 5.00pm Monday to Friday on 0845 120 2980. For an informal chat with a member of the Team please call 0121 685 8595.
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Planning for Traveller Sites
On 13th April 2011 the Coalition Government published Planning for Traveller Sites, the draft guidance that is designed to replace ODPM Circular 01/2006. This draft guidance relates to England only. The Welsh Guidance 30/2007 remains in place.
This article is not the CLP response to the Consultation process. We will be working on this. The Consultation last until 6th July 2011. We would encourage all Gypsy and Traveller Support Groups and campaigners to respond.
In the ‘Ministerial foreword’ Mr Pickles (The Secretary of State for Communities and Local Government) states that “the current planning policy for traveller sites does not work”. This rather runs against the evidence that Circular 01/2006 had certainly been improving the situation. Research by Dr Jo Richardson and Ros Lishman of the De Montfort University for Lord Avebury (Impact of Circular 01/2006:Supply of New Gypsy/Traveller Sites, 29th March 2007) reviewed a total of 129 appeal decisions, 75 being before 1st February 2006 (the implementation date of Circular 01/2006) and 54 being after that date. Between the two periods the number of allowed appeals increased by 20% and the number of dismissed appeals decreased by 20%. CLG’s own evidence indicates that in the year ending December 2009, local authorities determined 217 applications for Gypsy and Traveller pitches, 50% of which were granted. This is a figure that is unprecedented in terms of the period prior to the introduction of Circular 01/2006.
Mr Pickles continues by stating:- “there is a widespread perception that the system is unfair and it is easier for one group of people to gain planning permission, particularly on sensitive Green Belt land”. On the contrary, previous research had indicated quite otherwise. Looking at the period after the introduction of the old Circular 01/94 (which put the emphasis on the provision of private sites) the Friends, Families and Travellers report Confined, Constrained and Condemned (1996) showed that some 90% of planning applications to local authority planning committees by Gypsies and Travellers were unsuccessful. The big question which arises from a reading of this guidance is:- If local authorities (as, of course, has happened in the past) failed to deliver, what will be done about that? Who will enforce this guidance? The answer appears to be that certainly it will not be central government or any other overseeing body.
One can identify 4 periods of time over the last 50 or so years in terms of the development of Gypsy and Traveller sites and the situation for Gypsies and Travellers on unauthorised sites.
Following on from the Caravan Sites and Control of Development Act 1960, when the Commons were closed down to Gypsies and Travellers and there was an increasing loss of traditional stopping places, the power to supply sites between 1960 and 1970 led to only 12 local authorities acting on that power (see Clark and Greenfields, Here to Stay, University of Hertfordshire Press, 2006 p. 72). Between 1970 (when the duty to provide sites contained in the Caravan Sites Act 1968 was brought into force) and 1994 (when that duty was repealed), some 350 sites were built in England and it is fair to say that, despite the fact that there was still completely inadequate provision, those sites would not have been built without that duty being in place. Between 1994 and 2006, the Government put emphasis on the private provision of sites by Gypsies and Travellers themselves (see Department of the Environment Circular 01/94). Not surprisingly the provision of sites virtually ground to a halt and it became much more difficult to obtain planning permission (see the FFT research referred to above). Between the introduction of the ODPM Circular 01/2006 in February 2006 and the present time, there has been a slow but sure increase in the provision of sites (see the research for Lord Avebury referred to above).
At para 2.9 it is stated:-
Abolishing regional strategies will remove the system of top-down housing and traveller site targets that were set by regional planning bodies...top-down site targets have not delivered.
In many ways these targets were bottom-up targets since they were, of course, derived from the Gypsy and Traveller Accommodation Needs Assessments.
We note reference to the duty to co-operate at para 2.10. We are very pleased to see this since we have been arguing for this in our individual cases for a long time. We remain dubious as to whether it will actually bear fruit in practice. We are pleased to see the use of the New Homes Bonus (para 2.12) but especially pleased to see the return of funding for sites from 2011 to 2015 (para 2.13). However, we doubt whether the amount allocated, namely 60 million pound between 2011 and 2015, is sufficient.
We were also pleased to see that there is recognition that “Discrimination and existing poor social outcomes among traveller communities must be addressed” (para 2.15). We further welcome the setting up of the cross-Government Ministerial Working Group but we trust that there will be sufficient representation on the Group from Gypsies and Travellers and their support groups.
At para 3.5 it is stated:-
The Government has committed to replacing the circulars with new light-touch policy which puts provision into the hands of elected local councils. The new policy aims to:
.....enable local planning authorities to use their assessment of need to set their own targets for pitch/plot provisions.
The Guidance fails to address the historical failure by many local authorities to properly assess need (see Niner, Counting Gypsies and Travellers: A review of the Gypsy Caravan Count system, ODPM 2004). Many local authorities give zero returns either because they do not actually carry out the count or because they do not do it properly. To give just one example, we are currently representing a Traveller who is faced with eviction action from an unauthorised encampment where he has been for 7 years and for each of those 7 years, the local authority in question has produced (twice yearly) a zero return. So who will check the figures now that Regional Strategies and regional planning bodies are to be abolished?
At paras 3.7 to 3.39 the Government proposes to keep the definition of “Gypsies and Travellers” currently contained in Circular 01/2006. However, we are strongly in favour of the definition for the purposes of Housing Act 2004 being used for planning purposes. Housing (Assessment of Accommodation Needs) (Meaning of Gypsies and Travellers) (England) Regulations 2006 states:-
‘Gypsies and Travellers’ means:-
(a) persons with a cultural tradition of nomadism or of living in a caravan; and
(b) all other persons of a nomadic habit of life, whatever their race or origin, including – (i) such persons who , on grounds only of their own or their family’s or dependant’s educational or health needs or old age, have ceased to travel temporarily or permanently; and
(ii) members of an organised group of travelling showpeople or circus people (whether or not travelling together as such).
Basically, if a Gypsy or Traveller living in a house is saying that she or he can no longer stand this accommodation due to his or her cultural aversion to conventional housing, then that Gypsy or Traveller should be included in the Needs Assessment (see the arguments over the Mayor of London’s proposed amendment to the London Plan regarding Gypsy and Traveller provision).
Importantly at para 3.11 it is stated that:-
The Government, therefore, proposes to give local planning authorities the power to set their own targets for pitch/plot provision, based on robust evidence on local need in the light of historical demands.
See our comments above and additionally it is pointed out that local authorities ought already to have the figures at hand from their Gypsy and Traveller Accommodation Assessments.
At para 3.12 it is suggested that there is no need for local authorities to have regard to the current ODPM Gypsy and Traveller Accommodation Needs Assessment Guidance. However, such Guidance is absolutely essential in obtaining consistency and in trying to ensure that local authorities proceed in the correct way in these matters. For example we have come across the following examples:- a local authority excluding a group who they decide to call “van-dwellers”; local authorities excluding “New Travellers”; local authorities excluding those Gypsies and Travellers who happen to be on tolerated sites.
Also importantly at para 3.14 it is stated:-
The Government, therefore, proposes to ask local planning authorities to plan for a 5- year supply of traveller pitches/plots. This provides them with a more reasonable timescale in which to meet their own targets, thus making the delivery of pitches/plots much more likely.
However local authorities have already had 5 years since the introduction of Circular 01/2006 in February 2006. A shorter period – we would suggest a year – should be imposed. 5 years is far too long.
At para 3.15 it is stated that:-
Circular 01/2006 states that new sites in the Green Belt are ‘normally inappropriate development’....the inclusion of the word ‘normally’ could give rise to applications by travellers being treated more favourably than applications for members of the settled community.
It is simply the case that in some areas there is no alternative but to attempt to set up a site in the Green Belt. Additionally we have heard of many instances where the Green Belt boundary has been re-drawn for purposes of housing development but we have yet to hear of a case where the Green Belt boundary has been re-drawn for the purposes of Gypsy/Traveller site development.
At paragraph 3.19 it is stated:-
If a local planning authority has not planned for a 5-year supply of traveller pitches/plots, the draft policy asks them to ‘treat favourably’ applications for a temporary permission.
This is a change from the reference in the previous Circular to “substantial weight” and we feel that this is a very detrimental change.
At paras 3.22 to 3.23 the Government explains that they have decided to incorporate the needs of Travelling Showpeople within this new Circular. They say this is because there is a lot of duplication of policies between the two current Circulars that exist. However, we are concerned that there is a danger that the needs of Travelling Showpeople will not be fully taken into account if they are simply incorporated in this new guidance. We are very interested to hear the views of the Showmen’s Guild and others on this point.
Importantly the identification of locations is still stressed. Thus at page 35 para 9(a) it is stated:-
Local planning authorities should.......a) set out their policies and strategies for delivering their locally set targets, including identifying specific sites that will enable continuous delivery of sites for at least 15 years from the date of adoption.
We are not attempting in this article to do any analysis of the Equalities Impact Assessment which is attached to the draft Consultation though, of course, we encourage all groups to carefully study that.
Conclusion
In conclusion we believe this Guidance is a serious backward step. Already in our casework we are forever coming across local authorities who state:- “Unfortunately we do not have any land for sites”. Remarkably, when the two Travellers’ sites had to move because of the London Olympics, 4 separate pieces of land in London were identified and the 4 sites were built within a period of about 2 years. In our experience there is land available for Gypsy and Traveller sites. The problem is a lack of political will. This guidance is not going to improve that situation. Memories of DoE Circular 01/94 are being raised by this draft guidance, thus we think this is very much a case of “back to the past”.
The Travellers Advice Team at CLP operate a Community Legal Advice funded telephone helpline for Gypsies and Travellers throughout England and Wales which is available between 9.00am to 5.00pm Monday to Friday on 0845 120 2980. For an informal chat with a member of the Team please call 0121 685 8595.