Evictions from Unauthorised Encampments
Legally correct July 2004
Since the introduction of the 1994 Act and the removal of the duty to provide sites, the role of government guidance has come to the fore when advising Gypsies and Travellers on the law relating to evictions from unauthorised encampments.
GOLDEN RULE: Time is of the essence! Contact either FFT or TAT or whoever it is you want to use as soon as you receive notice of an eviction.
If you leave it until the night before the police or bailiffs are due to turn up to contact someone, don’t expect much of a result.
Under sections 77-80 of the 1994 Act, local authorities may direct persons who are unlawfully residing in vehicles on land in their own area to leave. These powers extend to privately owned land. It is an offence to fail to comply with such a direction or to return within 3 months. A magistrates’ court can make a removal order authorising the local authority to enter the land and remove the persons and vehicles.
Section 77 provides:
(1) If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority’s area -
(a) on any land forming part of a highway;
(b) on any other unoccupied land; or
(c) on any occupied land without the consent of the occupier,
the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.’ Section 61 of the 1994 Act provides a potentially even more draconian power for the police to remove Gypsies and Travellers where the landowner or occupier has taken reasonable steps and where one of three criteria are satisfied. Failure to obey such a direction or returning to the land in question within three months is not only an offence but can result in arrest and impoundment of vehicles (i.e. the Gypsies’ and Travellers’ homes), even before a magistrates’ court order has been obtained.
Section 61 provides:
‘ (1) If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and -
(a) that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or
(b) that those persons have between them six or more vehicles on the land,
he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.’
Department of the Environment (DoE) Circular 18/94.
Faced with such severe provisions (as well as other methods of eviction further discussed below), it is essential that Gypsies’ and Travellers’ advisers try to ensure that government guidance is followed. In the Atkinson (1) case, the judge made it clear that local authorities ought to comply with the guidance in Circular 18/94 (2) before deciding whether or not to evict Gypsies and Travellers from an unauthorised site.
The Circular makes it clear that, whilst it is a matter for local discretion to decide whether it is appropriate to evict an encampment, the Secretary of State believes that local authorities should consider using their powers to do so wherever Gypsies and Travellers are causing a level of nuisance which cannot be effectively controlled.
The Circular also makes it plain that it would usually be legitimate for a local authority to exercise its powers whenever Gypsies and Travellers who are camped unlawfully refuse to move onto an authorised local authority site where there are vacancies. However, where there are no such sites and the authority reaches the view that an unauthorised encampment is not causing a level of nuisance which cannot be effectively controlled, the Circular states that the authority should consider providing basic services, such as toilets, a refuse skip and a supply of drinking water (3).
The Circular then goes on to outline how local authorities should exercise their powers, making it clear that they should be used in a humane and compassionate way, taking account of the rights and needs of the Gypsies and Travellers concerned, the owners of the land in question and the wider community whose lives may be affected by the situation. Local authorities are reminded of their obligations under Part III of the Children Act 1989 (regarding the welfare of ‘children in need’), Part III of the Housing Act 1985 (now Part VII of the Housing Act 1996, regarding duties to homeless people) and also their responsibilities regarding the provision of education for school-age children. It also states that local authorities should bear in mind possible assistance from local health and/or welfare services.
In order to ensure a balanced decision is taken by a local authority that is contemplating the eviction of Gypsies or Travellers from an unauthorised encampment, the local authority should have in place some form of enquiry process and some method of evaluating and considering the relative merits of the information gleaned.
The Good Practice Guide
In 1998 the government produced guidance entitled ‘Managing Unauthorised Camping: A Good Practice Guide’ (produced by the Department of the Environment, Transport and the Regions (DETR) and the Home Office (HO)). (4) This has now been replaced by ‘Guidance on Managing Unauthorised Camping’ (hereafter ‘the Guidance’) (5). Both sets of guidance were the result of research commissioned by the Government from the University of Birmingham.
Following the Atkinson case, it was clear that the process of information gathering and consideration applied to local authorities when considering potential eviction action under section 77 of the 1994 Act (6). However, the question then arose as to whether other methods of eviction using civil procedures in the county court or high court (7), byelaws, highways legislation, planning enforcement powers or even common law powers of eviction were also subject to the principles of Circular 18/94? From late 1995 to late 1998 there followed a series of conflicting and confusing high court decisions, all attempting to answer this question (8).
The confusion was resolved by the Good Practice Guide (9) (and has been maintained by the Guidance) – local authorities should make welfare enquiries and take into account considerations of common humanity regardless of the eviction process being deployed. Through its widespread use, the Good Practice Guide became an essential tool for advisers on both sides and there have been some clear signs of improvement in practice throughout England and Wales as a result. It is hoped that that trend will continue with the new Guidance.
The Guidance calls on local authorities, the police and other relevant agencies and bodies to have written policies on the issue of unauthorised encampments. Some quotes from the Guidance follow:
‘ 5.4. Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampment will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risks, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses.
5.5 … .Identification of possible ‘acceptable’ sites could assist local authorities and the police in the management of unauthorised encampments in circumstances where there are no available pitches on authorised sites. If the unauthorised campers refuse to move from an unacceptable location, eviction processes (including appropriate welfare enquiries) should be commenced.
5.7. Local authorities may have obligations to unauthorised campers under other legislation (mainly regarding children, homelessness and education). Authorities should liaise with other local authorities; health and welfare services who might have responsibilities towards the families of unauthorised campers. Some form of effective welfare enquiry is necessary to identify whether needs exist which might trigger these duties or necessitate the involvement of other sectors, including the voluntary sector, to help resolve issues. The police and other public bodies who might be involved in dealing with unauthorised encampments do not have comparable duties but must still, as public servants, show common humanity to those they meet.
5.8. The Human Rights Act (HRA) applies to all public authorities including local authorities (including town and parish councils), police, public bodies and the courts. With regard to eviction, the issue that must be determined is whether the interference with Gypsy/Traveller family life and home is justified and proportionate. Any particular welfare needs experienced by unauthorised campers are material in reaching a balanced and proportionate decision. The human rights of members of the settled community are also material if any authority fails to curb nuisance from an encampment.
5.9. Case law is still developing with regard to the sorts of welfare enquiries, which the courts consider necessary to properly taken decisions in relation to actions against unauthorised encampments. Cases are testing the requirements under different powers … Very generally, court decisions to date suggest:
- All public authorities need to be able to demonstrate that they have taken into consideration any welfare needs of unauthorised campers prior to making a decision to evict.
- The courts recognise that the police and other public bodies have different resources and welfare duties from local authorities. Generally the extent and detail of appropriate enquiries is less for police and non-local authority ‘public authorities’.
- In the case of local authorities, the onus of making welfare enquiries appears to be greater when using Criminal Justice and Public Order Act 1994 s77, where the use of the section can result in criminal sanctions, than when using landowners’ civil powers against trespass. Local authorities should, however, make thorough welfare enquiries whatever powers they intend to use [authors’ emphasis]
5.10. Because local authorities have appropriate skills and resources to enable them to make (or to co-ordinate) welfare enquiries, it is considered good practice for local authorities to respond positively to requests for assistance in making enquiries from the police or other public bodies.’
The Guidance gives some specific examples of welfare needs to be considered (10) :
‘ Advanced pregnancy: a period shortly before and after birth in normal circumstances; longer on medical advice if there are complications.
Ill health: indicators might include a hospital appointment booked; in-patient treatment of a close family member; period during which a condition can be diagnosed, stabilised and a course of treatment started.
Educational needs: children in school if within 4 weeks of the end of term or if access to special education has been gained.’
Even if there are not the most pressing welfare concerns, any group of Gypsies or Travellers will have a need for some consideration due to the lack of suitable sites and due to the lack of any duty to provide sites at this time. Though the 2000 amendment of the Good Practice Guide removed any trace of the word ‘toleration’ (11), if there is no significant nuisance or disruption caused then toleration may be required.
Police Evictions
The Guidance also contains important recommendations for the police to refer to when considering whether to use their powers under section 61 of the 1994 Act . Even without the Guidance, several high court cases had indicated that the police must have regard to ‘considerations of common humanity’. For example, one notable case, R v The Commissioner of the Metropolitan Police ex p. Small, is now quoted in the guidance on the 1994 Act produced by the Association of Chief Police Officers(ACPO).
The Guidance has reinforced this approach, advising that local authorities and the police should draw up joint policies towards unauthorised encampments and highlighting that, whilst section 61 is a legitimate power to use against encampments in appropriate circumstances, it would not be appropriate for it to be the first response in every case. It is made clear that the decision to use section 61 must be an operational one, taken by the senior police officer at the scene, on the basis of whether ‘triggers’ are evident. Appropriate triggers might include: individual criminal activity; serious breaches of the peace; disorder or significant disruption to the life of the local community.
The police should not adopt ‘blanket policies’ either for or against the use of section 61.
In the case of R (Josette Fuller & ors) v The Chief Constable of the Dorset Constabulary it was made clear that the landowner must provide a deadline before the police can seek to apply section 61 and it was decided that the use of section 61 had been unlawful in circumstances where the borough council and the police gave the Travellers notice to leave the land at the same time and with the same termination date. However, it was also decided that section 61 was not in itself incompatible with the Human Rights Act 1998.
Home Office Circular 45/94 effectively reiterates the position set out in the guidance that due consideration should be given to welfare needs and personal circumstances when the police decide whether or not to evict Gypsies or Travellers from a site. The Circular indicates that the senior officer at the scene may wish to take account of the personal circumstances of the trespassers, ‘for example, the presence of elderly persons, invalids, pregnant women, children and other persons whose well-being may be jeopardised by a precipitate move.’
The Anti-Social Behaviour Act 2003 has introduced a new section 62A into the 1994 Act. Section 62A exists alongside section 61, i.e. the police can use either power provided that the necessary criteria are met. Section 62A states as follows:
‘ (1) If the senior police officer present at a scene reasonably believes that the
conditions in subsection (2) are satisfied in relation to a person and land, he may direct the person:
(a) to leave the land;
(b) to remove any vehicle and other property he has with him on the land.
(2) The conditions are -
(a) that the person and one or more others (‘the trespassers’) are trespassing on land;
(b) that the trespassers have between them at least one vehicle on the land;
(c) that the trespassers are present on the land with the common purpose of residing there for any period;
(d) if it appears to the officer that the person has one or more caravans in his possession or under his control on the land, that there is a suitable pitch on a relevant caravan site for that caravan or each of those caravans;
(e) that the occupier of the land or a person acting on his behalf has asked the police to remove the trespassers from the land.
(3) A direction under subsection (1) may be communicated to the person to whom it applies by any constable at the scene.
(4) Subsection (5) applies if -
(a) a police officer proposes to give a direction under subsection (1) in relation to a person and land, and
(b) it appears to him that the person has one or more caravans in his possession or under his control on the land.
(5) The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority’s area.’
There are a number of differences between section 62A and section 61, which will be highlighted below.
As with section 61, it appears that a single Gypsy or Traveller, travelling on his or her own, would not be caught by the new section. The pitch must be ‘suitable’, though there is no further definition of the word ‘suitable’ and case law is awaited. No doubt questions of how far away the pitch is and whether the Gypsy or Traveller in question might have some very good reason for not accepting this pitch will come into play. Additionally the DCLG emerging guidance on section 62A indicates that transit sites should have facilities, i.e. water, sanitation and refuse collection, in order to be ‘suitable’.
Furthermore, the Guidance, at para.4.8 states:
‘ There must be close working between site managers and local authority and police officers dealing with unauthorised camping over allocations of pitches on sites. Site managers may be aware of issues around Gypsy/Traveller group and family compatibility, which must be taken into account when allocating pitches on residential sites.’
It should also be mentioned that the specific guidance on the use of the new police powers is currently out to consultation.
The pitch must be on a ‘relevant caravan site’ which is defined as:
‘…a caravan site which is -
(a) situated in the area of a local authority within whose area the land is situated, and
(b) managed by a relevant site manager.’
‘Relevant site manager’ is defined as:
‘ (a) a local authority within whose area the land is situated;
(b) a relevant social landlord.’
It appears that the occupier no longer has to take reasonable steps to ask the Gypsies/Travellers to leave though it is unclear how this squares with the Fuller case (see above). As with section 61, there is no need for written notice.
Consultation in some areas may involve two local authorities having to be contacted by the police, e.g. both a county council and a district council.
A person commits an offence if s/he knows that a direction under section 62A(1) has been given which applies to him/her and:
‘ (a) he fails to leave the land as soon as reasonably practicable, or
(b) he enters any land in the area of the relevant local authority as a trespasser
before the end of the relevant period with the intention of residing there.’
The ‘relevant period’ is 3 months from the day on which the direction is given.
‘Relevant local authority’ is defined as:
‘ (a) if the relevant land is situated in the area of more than one local authority (but is not in the Isles of Scilly), the district council or county borough council within whose area the relevant land is situated;
(b) …the Council of the Isles of Scilly;
(c) in any other case, the local authority within whose area the relevant land is
situated.’
A person guilty of an offence under section 62A is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine or both. A constable may arrest a person committing an offence under this section. A constable may also seize and remove any vehicles.
It is a defence to show: you were not trespassing, or you had a reasonable excuse for failing to leave the land or entering other land, or you were under the age of 18.
As is the case with section 61, section 62A will normally be effective without the need to take the matter to court, since the threat of arrest and impoundment of their homes will usually (and understandably) be sufficient to persuade the Gypsies/Travellers to move.
Any unlawful use of either sections 61 or 62A may be challenged by way of judicial review and could include an application for an injunction (e.g. to prevent the three month ban being put into effect).
Evictions by Government Departments and other Public Authorities
It will be noted that the Guidance quoted above makes it clear that all public authorities must make some welfare enquiries or, if enquiries by the local authority in question are relied on, take some account of humanitarian considerations. This will include bodies such as the Forestry Commission, the Highways Agency, the Ministry of Defence and potentially even organisations such as Network Rail.
Circular 18/94 indicates that, where Gypsies and Travellers are unlawfully encamped on Government-owned land, it is for the local authority, with the agreement of the land-owning department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It also indicates that Government departments should act in conformity with the advice that unauthorised encampments should not normally be allowed to continue where they are causing a level of nuisance which cannot be effectively controlled, particularly where local authority authorised sites are available. The converse of this, of course, is that ‘toleration’ should be considered if nuisance or annoyance is not being caused.
Private landowners
There are no such obligations on private landowners to take account of humanitarian considerations when deciding whether to take eviction action against an unauthorised encampment. However, if using common law powers of eviction (by ‘reasonable force’), the Guidance does suggest the following:
‘ Police should always be notified of an eviction and called in to stand by to prevent a breach of the peace;
If police advise that it is inappropriate to carry out an eviction, it should always be delayed until an agreed time.’
If a landowner (or his or her agents or employees) exceeds the use of ‘reasonable force’, then s/he may face an action for criminal damage, trespass to person or property or assault. If such an action were being taken, failure of the landowner to have regard to the Guidance may be relevant.
If the relevant local authority or police force are called in by a landowner to carry out eviction action using the 1994 Act, they will, of course, have to have regard to the Guidance and carry out the necessary welfare enquiries.
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Footnotes
1. R v Lincolnshire CC ex p Atkinson, Wealden DC ex p Wales & Stratford (1996) 8 Admin LR 529, The Times September 22nd 1995.
2. In fact the DoE no longer exists and responsibility for Traveller and Gypsy matters lays with the Office of the Deputy Prime Minister. The equivalent in Wales is the identical Welsh Office Circular 76/94.
3. DoE Circular 18/94, para. 6.
4. The Good Practice Guide was amended in October 2000, when the whole of Chapter 5 was re-written.
5. The Guidance came into effect on 27th February 2004.
6. DoE Circular 18/94 specifically referred to the 1994 Act powers.
7. Now contained in Civil Procedure Rules (CPR) Part 55. Note that action should only be taken in the high court in exceptional circumstances.
8. R v Kerrier DC ex p. Uzell Blythe (1996) JPL 837; R v Brighton & Hove Council ex p. Marmont (1998) 30 HLR 1046; R v Hillingdon LBC ex p. McDonagh (1998) 30 HLR 531; R v Leeds City Council ex p. Maloney (1999) 31 HLR 552.
9. Confirmed in the case of R (Martin Ward) v London Borough of Hillingdon, CO/4139/2000, 15th February 2001, Stanley Burnton J.
10. In Box 18 at p.31 of the Guidance.
11. Previously in the title of Chapter 5 of the GPG.
By Chris Johnson, Angus Murdoch and Marc Willers, July ‘04
Chris Johnson and Angus Murdoch are practising solicitors and members of the Travellers Advice Team based at Community Law Partnership solicitors in Birmingham. Marc Willers is a barrister practising in Chambers at 2 Garden Court, Temple, London
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