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Planning Law

Volume 405: debated on Tuesday 20 May 2003

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3.30 pm

I wish today to draw the Minister's attention to a serious and growing problem in rural areas, which causes grave concern to decent, law-abiding citizens whose quality of life is adversely affected by abuses of planning law committed mainly, although not exclusively, by travellers.

I hope that the Minister will agree that the crisis that I am about to unveil concerning Cranham road in Little Waltham in my constituency highlights that problem, and illustrates the way in which a determined group of individuals can abuse the law and cock a snook at it. I urge the Minister to act to tighten up the law and to advise me what can be done to put an end to the disgraceful situation in Cranham road as soon as possible. My constituents have suffered unfairly for far too long.

The site in question is in a rural area, outside land allocated for housing. For many years, it was simply a green field. Sadly, that changed in 2001. The land was taken over by travellers, who sited mobile homes and established hard standings and roadways on the land. I am not sure whether the Minister can see them from where he is sitting, but I have two photographs with me that illustrate that the site is now covered with caravans, other vehicles, rubble and rubbish. I believe that, for a greenfield site that is adjacent to domestic dwellings, that is unacceptable.

Since 2001, further homes have been placed on the land. Moreover, there has been alleged tampering with electricity junction boxes, which has caused problems with the electricity supply to bona fide customers in the area. There have been problems with noise, including noise from lorries tipping hardcore, with overflowing rubbish, fly tipping, poor sanitation, and discharges of waste into the nearby ditch. The site has also been used for storing stolen goods, which were recovered only following a police raid. There have also been problems with children using quad bikes on the public highway, and dogs roaming the area, causing problems to motorists and others. In short, what was originally a quiet, green field, has now become a living hell for residents nearby. They are fearful for their own safety and that of their properties, because, whenever they have spoken to the people occupying the land, they have received nothing but aggressive abuse.

Chelmsford borough council has rightly sought to enforce the law and put an end to this blatant and illegal abuse. I make no criticism of its actions, which have been both helpful and proactive.

On 14 December 2001, two enforcement notices were issued under section 172 of the Town and Country Planning Act 1990. They required the then landowner, first, to break up the hard standings and roadways; secondly, to remove all debris from the site and reinstate the land; thirdly, to cease the use of the land as a caravan site; and fourthly, to remove the fence from the land.

No appeals were lodged against those notices. They were meant to be effective from 28 January 2002, but the site was eventually vacated by the then owner, and only by the then owner, in April 2002. However, prior to vacating the site, the landowner submitted a planning application to Chelmsford borough council for the use of the field as a site for three gypsy families. However, the council's planning department refused that on 1 March 2002. An appeal was to be heard in mid-October 2002, but in September the appeal was withdrawn, as the land had been sold.

On 16 September, it was discovered that a hard surface roadway was being built on that greenfield site. After an inspection, Chelmsford borough council was granted a without-notice temporary injunction on 19 September against 20 persons and any unknown persons then occupying the land. The temporary order was renewed on 3 October. That injunction was not complied with, and the defendants' solicitors notified the council that their clients had sold and moved off the land. However, the site had not been cleared and was still being used as a caravan site, even if the previous owner was not using it. The land had been divided in the form of 20 ownerships. The council was told that a planning application would be submitted for use of the land as a caravan site for 20 families.

On 4 December, the court granted Chelmsford borough council's application for an injunction to cover all new persons since the previous order was made on 3 October. On 12 December, seven persons made an application to the court for the order of 4 December to be set aside. On 4 February 2003, when the court heard that application, it ordered that the applicants were to be joined as defendants, and refused their application for the injunction to be set aside. The council gave the occupants until the end of March to vacate the site, but that did not happen. It is clear that, since the end of March, nothing has changed and the occupation of the land is in breach of that court injunction.

Ironically, Cranham Hall caravan park, a proper official Essex county council-controlled travellers' site, is only 150 m due east of the site in Cranham road. That is not the only official county council-controlled travellers' site in the borough of Chelmsford, so it would not be right to say that there are no alternative official sites for travellers to use in the Chelmsford local authority area. In fact, there are a number of sites.

It seems that the law and the court orders are being ignored with impunity and by clever abuse of legal procedures. I find it wrong and incomprehensible that court orders can be defied in that way, but it seems that, if one is clever, one can seek to abuse the law with impunity. That must be wrong. The borough council has sought at every stage to use the full weight of the law to stop the illegal activities at Cranham road and to protect my constituents. However, apart from running up costs through no fault of its own, the council is little further forward in putting an end to this crisis and abuse than it was 18 months ago, when it started enforcement proceedings, and, more recently, when it started county court action. My constituents, who have had to live with this hellish situation, cannot understand why that is the case, and nor can I. We cannot comprehend why, when court orders and injunctions have been granted to the borough council, the law is not allowed to proceed and put an end to an abuse and an illegal act. The law is clear on this issue, and the borough council has been granted injunctions by a series of courts to put an end to the abuse. So far, it has proved impossible to enforce the will of the courts as expressed in the injunctions. My constituents and I want to know why that is so. How can that happen when a court has ordered the land to be vacated and restored to its original condition? The travellers are making a mockery of the law, and that is wrong.

I want the Minister to say what effective action can be taken now; I do not mean in three, six or nine months' time as the process continues to drag on, with the ensuing misery and problems to decent, law-abiding citizens who have to live near the road. What can be done now to enforce the law and to seek a proper resolution of the problem?

If the answer is that the law is weak, which it probably is, what can and will the Government do to block up the legal loopholes and failings in the legislation and put an end to the nightmare of this travesty of justice, not only for my constituents but for many others throughout the country?

The Minister was extremely generous in writing to me on 28 March following my letter to him about the problem and a question to a junior Minister at the Home Office. The Minister said in his letter that
"last July the ODPM and the Home Office issued a joint press release outlining the Government's approach to tackling unauthorised Gypsy and Traveller encampments."
He also said that the approach was to seek
"new powers for the police to move on unauthorised Gypsy/Traveller camps…. The new police powers will be dependent on local authorities providing adequate site provision to move Gypsies and Travellers on to. If local authorities do not have sites in place, then the police cannot use these powers."
In Essex, and particularly in the Chelmsford local authority area, there are a number of official sites that could be used. The letter went on:
"Both the ODPM and the Home Office have made clear that the new power would not replace existing legislation currently in place under sections 61 to 62, and 77 to 79 of the Criminal Justice and Public Order Act 1994. The new power would simply work alongside it."
If, when the Government have finished their consultations and considerations, they give real powers to the police to achieve their aim, I would welcome those powers, provided that they are real and effective and ensure that people who behave like the individuals at Cranham road are removed.

One aspect of the problem is not raised in that letter. It is to be hoped that the police would have enough powers to remove people who illegally occupy land that they should not be on, but what happens to land that has been damaged, if, for example, roads have been built and buildings have been erected on it? Whose responsibility is it to remove the rubbish and litter that is left behind and to clear up the land and restore the site to its original condition?

I am concerned about the nature of the legal processes. There is a serious problem with the injunctive process because that action is attached to an individual or to some individuals on the relevant land. The occupiers of the site in Cranham road are highly transient in nature; the adult population changes regularly. As the Minister is aware, the process of enforcing a court injunction is through committal proceedings, but sadly the transient nature of the occupiers means that the process of committal cannot be achieved and the proceedings are useless. That cannot be right. The law has to offer more protection in such situations. My constituents and I might have an old-fashioned view, but we thought that court orders had to be obeyed or enforced. That has not happened in this case, and our patience with the process has run out. We want action now.

I sincerely hope that the Minister will be able to offer hope to my constituents by telling me how the injustice can be rectified now. My constituents and, to be fair, Chelmsford borough council, have waited too long. For more than 18 months, they have used every legal process available to them to achieve what they are asking of the court. Yet, whatever court orders and injunctions have been issued, they have not been enforceable, so the misery and suffering continues daily, while those who perpetrate the abuse are cocking a snook at the authorities and laughing that they are getting away with something that I cannot believe the Minister would want to continue.

3.46 pm

The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister
(Mr. Tony McNulty)

I thank the hon. Member for West Chelmsford (Mr. Burns) for raising a very important aspect of the planning system, and, in particular, the situation in Cranham road, Little Waltham. He will understand that I am not able to comment on specific cases. However, I fully appreciate that the issue is of concern locally—

Will the Minister explain to me and to my constituents why he cannot comment on this particular case?

I will explain very clearly. First, as the hon. Gentleman knows, it remains a matter of legal dispute and therefore before the courts. Secondly, any number of subsequent applications germane to the site might cross my desk or that of a colleague as the final arbiter in an appeal process. It is not, therefore, appropriate to talk specifically to the application. If the hon. Gentleman were frank, he would realise that that would be the case whoever stood in this position.

In general—this should underpin all that I say on the matter—everyone has an absolute right to live in peace and harmony. Nobody should have to endure antisocial behaviour of the form that has been described from any quarter, so my sympathy is with those who are suffering such behaviour on the part of the travelling community or anyone else. The Government recognise that gypsies and travellers have a right to pursue their own lifestyle, and we are committed to ensuring that the planning system treats members of that community as fairly as it treats everyone else.

Planning policy is concerned with the provision of suitable locations for gypsy and traveller sites, whether provided by the local authority or privately, as set out in Department of the Environment circular 1/94, "Gypsy Sites and Planning", which remains the mainstay of the interface between gypsies and the travelling communities and planners, even though it is some nine years old. The circular places gypsies and travellers on the same footing as others in relation to the planning system, while recognising their special accommodation needs and the desire of many gypsies to find their own sites to develop and manage. Such sites constitute development and therefore require planning permission.

As an aside, and without commenting on the specific case, I would say that dividing any land into 20 portions owned by different people does not obviate the need to comply in full with planning law and the local planning process. That is as applicable in this context as it is in the case—a slight tangent, but germane none the less—in which a number of speculators carve up land, whether it is green belt or anything else, in growth areas identified in the communities plan and sell it off to gullible people who think that they do not need planning permission because it is only a 20th of the original site. Breaking down the ownership of a site does not change the planning framework within which it sits. We recognise that for many local authorities, especially in rural areas, the identification of specific sites for gypsies and travellers is not easy. I am not going to say that Essex county council has been remiss in what it provides. I suspect that if I did a rough calculation in my head of county-based provision, that council would be in the middle or at the top of the league, so I am not impugning its performance in that regard.

Where local authorities have found it impossible to identify suitable locations, they should define clear and realistic criteria as a basis for extra provision in line with the advice given in the circular. As I said, however, the circular is now nine years old, and does not encourage the local authorities to discuss accommodation or offer advice and practical help with planning procedures for members of the gypsy and traveller communities.

That said, we are aware that some gypsies proceed to establish sites without first obtaining the necessary planning permission. In some cases, the locations that they choose are inappropriate for land use, such as greenbelt land or open countryside. Enforcement action by local authorities against such unauthorised development is therefore common. As I said, when the planning system gives everyone in the community equal status, it means precisely that.

The Minister is talking about how the planning system works. May I remind him that a planning application was submitted, but that Chelmsford borough council refused it on 1 March 2002? My constituents who live there and who are anxiously waiting to hear what the Minister has to say want to know more about what can be done about such problems. They do not want a history of how the planning system works in rural areas.

With the best will in the world, I am not giving a history but setting out the context of the comments that I am about to make, which will reflect the three key points to which the hon. Gentleman referred. I am talking not about the current planning system but about the legal consequences of a breach of the planning system. That is why I want to talk about enforcement.

To be candid, the answer to the hon. Gentleman's first question about what effective action the Government can take now—what I might call the press release question—is "not a lot", because the matter is in the courts' domain and it remains for the legal process to unfold. I am not about to give legal advice to Chelmsford borough council through the hon. Gentleman about where it should go next as part of that legal process, although it can now go in other directions.

We share the view that local planning authorities should take appropriate enforcement action if they consider that there has been an unacceptable breach of planning control, which they have done. However, enforcement, as the hon. Gentleman said, has proved to be difficult in this case and in many others because of some of the loopholes. That is why the 2001 planning Green Paper announced the Government's intentions to review the current arrangements for the entire enforcement system underpinning development control and planning. The Green Paper stressed the need to engender public trust in the development control system. Without effective enforcement, confidence in the system is undermined. To answer the hon. Gentleman's second point, that is where the Government can and will be doing something.

The first step in the review was to call a meeting of many of the key players in planning enforcement, including representatives from local authorities. The review concluded that the current enforcement regime was working reasonably well and that wholesale reform was unnecessary. However, it highlighted a range of potential improvements. The conclusions of this group and comments received in response to the Green Paper informed the drafting of the consultation paper, which was published last September.

In essence, the consultation paper is scooping in nature. It has two objectives. First, we intend to gather information. The hon. Gentleman is right to say that in many instances in the enforcement process, the most difficult part is information gathering and determining who should be served enforcement notices. We want to gain a better appreciation of what people really think about planning enforcement and its discretionary nature, the principles that underpin it, and the framework of powers and procedures that govern its operation.

We want to know whether planning enforcement is as effective as it could be, and if not, why not. Are there problems with the system or with the way in which local authorities operate it? Is the enforcement function hampered by a lack of resources such as money and the availability of suitably trained staff, or by a fear of the consequences of failure? That is the case in many authorities, which is not a comment on the specific case that the hon. Gentleman mentioned.

Secondly, we are seeking views on a range of possible changes to the current system that might improve its speed and effectiveness and help to engender greater confidence in enforcement as a key development control tool. These are simply suggestions, many of which flow from ideas proposed by the consultative group. The consultation paper does not contain any specific proposals for change. Some of the suggestions, if pursued, would require legislation, but others could be delivered through administrative action and could therefore be delivered much more quickly. The hon. Gentleman is right to say that we need an enforcement system that delivers and that is seen to do so by local people. I fully understand the frustrations felt in the case that he cited.

The consultation paper examines three fundamental principles that underpin the planning enforcement system.

3.55 pm

Sitting suspended for a Division in the House.

4.10 pm

On resuming—

As I was saying, the consultation paper examines the three fundamental principles that underpin the planning enforcement system—that the use of enforcement powers is discretionary, that developing without planning consent is not a criminal offence, and that planning permission may be sought retrospectively. It also looks at the range of powers available to local authorities and the rights of appeal.

Among the range of possible changes to the detailed powers and procedures are a power to require the submission of a retrospective planning application; to require a fee to be paid if permission is not sought for unauthorised development; the right for local authorities to decline to consider planning applications where an enforcement notice has already been issued in respect of the same development; and a requirement for developers to self-certify that an approved development accords with the permission granted.

The consultation paper also raises the possibility of abolishing in part the rule under which unauthorised development acquires lawfulness through the passage of time and thereby becomes immune from enforcement action. The paper suggests a number of good practice changes that might improve the speed and effectiveness of enforcement. They include the timing of enforcement notices where retrospective permission has been refused, skill sharing and joint working between local authorities, sharing legal representation, and grouping cases together to take to court.

The consultation period ended in January, and we are currently analysing some 500 responses. Our intention to review planning enforcement has been widely welcomed. There are gaps in the system and elements that need refining, to say the least. We expect to announce the results of the consultation later this year. Even though the consultation period has ended, the hon. Gentleman and Chelmsford borough council are invited to make their comments. They will be welcome.

The hon. Gentleman spoke about unauthorised encampments. Guidance on the provision of transit and temporary encampments, and greater police powers to evict, is currently under consultation. That consultation will end shortly, but it refers specifically to unauthorised encampments. It would not prevail if those transgressing—the term used by Chelmsford borough council—owned the land. It would not run if the ownership of the land was not an issue.

Ultimately, everyone will agree that gypsies and travellers must be able to live somewhere. I return to my earlier comment that local authorities must either provide appropriate authorised sites or work with gypsies to find suitable locations that they can purchase and develop. By doing so, authorities can avoid the sort of situation that has brought the hon. Gentleman here today.

That is not why I am here today. As the Minister said, there are a number of authorised sites in the Chelmsford local authority area—one is 150 m away—and in Essex.

I do not doubt that. I was referring to the fact that gypsy and travelling communities need to work together with local authorities when wanting to establish sites in their ownership. As I have said, I have no doubts about the site provision of Essex county council.

I congratulate the hon. Gentleman once again on raising this important issue. Some matters are under consultation; the enforcement procedures need particular consideration. I urge him and, through him, Chelmsford borough council, to partake in that consultation.

I end by saying what has underpinned much of my speech. Wherever possible, we should encourage gypsies and travellers to consult local authorities on planning matters before buying land on which they intend to camp, or for which planning permission will be required for any subsequent development. That is advice that I would give any prospective applicant in any regard in any county. If we are to draw a fair line, and have a level playing field for all communities, that must be respected in full by all communities.