Town and Country Planning (Temporary Stop Notice) (England) (Revocation) Regulations 2013

Lord Beecham Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Beecham]

My Lords, I begin by congratulating the noble Lord, Lord Avebury, on tabling this Motion, and my noble friend Lady Whitaker. They are two Members of the House who have devoted considerable time and energy to the problems of this particularly vulnerable community, and it is appropriate that we should hear from them tonight.

This is another indication of the penchant of the Secretary of State for selective indignation. For example, council tax rises are not permissible even if they are around 2%—less than the rate of inflation. However, council house rent increases can be twice the rate of inflation. Indeed, that is something that the Government do not just acquiesce in but insist on. When it comes to caravans, which can be unsightly and cause potential problems, the Government will produce regulations of this kind to facilitate their removal. On the other hand, when private houses stand empty, councils cannot acquire them or take any steps in relation to them unless they have been empty for two years, despite a very severe housing shortage.

Different standards appear to be applied to different issues, according to what would appear to attract more popular support. However, I am pleased to note that at least the junior Minister has a sense of irony. Mr Lewis has been quoted by the noble Lord, Lord Avebury, as saying that government action to force councils to do what they ought to be doing in providing places would be a top-down approach, contrary to the Government’s policy. There will be mirth in every town hall in the country at the suggestion that this Government’s policy on local government is not one that can be described as being top down. When the Secretary of State tells councils that they ought to be collecting refuse weekly rather than fortnightly, not to mention pronouncing a range of other instructions and wishes which are then backed by the Government’s financial distribution, it is a little much for the Government to rely on their so-called localism as a defence for orders of this kind.

Looking at the consultation documentation, I was struck by some of the phraseology used. In the summary they provide, the Government refer to:

“The availability of appropriate alternative sites for caravans used as main residences will be a factor”—

a factor—

“in determining whether it would be appropriate to use Temporary Stop Notices to stop such unauthorised development”.

What are the other factors that would be involved in determining whether it would be appropriate? Factors for and factors against are not indicated at all in the consultation. The document goes on:

“Revoking Statutory Instrument 2005/206 to give councils greater freedom to determine whether to use Temporary Stop Notices may therefore encourage councils to identify land for sites to meet their traveller needs”.

That is a complete non-sequitur, in any event, but “may” is hardly a strong word to use in this context, given the implications for individuals and families—and, in particular, the impact on children.

In addition, the policy context—which the Government quote—refers, as the noble Lord has done, to the fact that,

“councils should set targets for traveller site provision based on robust evidence, including identification of sites for five years and forecasting ahead where possible to 15 years … provision”.

It goes on:

“If a council cannot demonstrate an up-to-date five year supply from 27 March 2013, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission”.

As the noble Lord has pointed out, a five-year supply of land is not the same as a supply of serviced sites. Indeed it is very unlikely that simply indicating at this stage that there is a five-year supply will carry any implication that there are service sites available. In any event, councils do not seem to be providing indications that there is a five-year supply of land, let alone of particular developments which would facilitate the use of such sites by Travellers.

The consultation also refers to the penalty for non-compliance with a temporary stop notice. This has not yet been referred to tonight, but it is interesting that there is,

“a fine of up to £20,000 on a summary conviction, or an unlimited fine on indictment”,

and that:

“There is no right of appeal against the service of a Temporary Stop Notice”,

although, as the noble Lord and my noble friend have pointed out, this,

“may be subject to judicial review”.

The question again arises—I am the third person to mention it, so perhaps the Minister would be kind enough to clarify the situation—as to whether legal aid for judicial review will be available or not. It seems unlikely that it would be available. In that case, my noble friend and the noble Lord are right to question whether the reference to judicial review offers any route at all for people faced with this notice to have access to justice and to have their case heard.

The consultation, which was fairly brief, has given results to which both previous speakers have referred. The Government’s document confirming the changes repeats that,

“where authorities cannot demonstrate that they have identified a five-year supply of suitable sites then this will be a significant material consideration in the determination of temporary planning permission”.

What other considerations would be material in the determination of a temporary planning permission? Will it not be the authority serving the notice which will determine whether planning permission is to be granted or not? If that is the case, surely the odds are significantly stacked against the people who receive the notice.

Statutory instrument 2005/206 restricted the use of notices by preventing them being issued where the caravan was a main residence,

“unless there is a risk of harm to a compelling public interest that is so serious as to outweigh any benefit to the occupier of the caravan”.

That seems a sensible and balanced approach to this issue. It is one that the Government are clearly cavalierly discarding. Of course, the Government genuflect briefly in the direction of the European Convention on Human Rights, saying:

“It will still be for local authorities to balance the impacts of using their enforcement powers against individuals … against wider impacts on the local area”.

That, again, is not much consolation on the significant issue which the noble Lord has raised.

The document goes on to state:

“The government’s aim … is to secure more authorised traveller sites in appropriate locations, to address historic under provision and meet future supply needs”.

That is a fine statement, but where is the evidence that anything is actually happening to fulfil that objective, which was announced in March 2012? What progress has been made? What steps have the Government taken to see that progress is being made, or are they simply relying on their policy without making any effort to see that it is being implemented? What financial assistance, if any, is available to local authorities to meet that obligation?

The noble Lord asked about the guidance which the Government say will be produced in line with their guidance review process. I do not understand that phrase, but perhaps the Minister will explain it. I am not aware—this may be my fault—of any government guidance review process. Is that a general process or is it specific to this particular case? The document states that the guidance is supposed to support local councils to assess the various matters referred to, including,

“the impact on equalities and human rights”.

However, we are at the point when the statutory instrument will become effective. Where is the guidance, when will it be issued and what will it say?

The Government are using this statutory instrument to deal with what is not a huge problem in terms of the total numbers. The numbers of unauthorised caravan sites have declined, as the consultation document shows. They draw an interesting comparison in relation to the suggestion that there is unequal treatment of different kinds of development by saying that,

“regulations prevent local authorities from using Temporary Stop Notices against unauthorised development of buildings which are being used as a dwellinghouse”.

That, of course, will remain the case. Councils cannot use a temporary stop notice for that, but can in relation to a caravan. They ignore the distinction that while a caravan is immediately a home once occupied, a house under construction is not a home until it has been completed and subsequently occupied. That is sophistry. It is a significant breach of planning law to build something which cannot be stopped in the way that the temporary use of a site by a caravan occupier would be.

This policy could bear very hard on a relatively small but vulnerable group of people, where there is no real evidence that it is necessary. Where is the evidence that there is a significant problem here? The justification for the measure is, to put it mildly, thin and little thought is given to the consequences for those people who will be moved on—to where, no one can say in the absence of alternative serviced sites. The question also arises of the potential costs of the measure. If people are evicted from a site, it may well be the case, particularly if they have children, that a cost will fall on other areas of a local authority—for example, on children’s services departments, which may have to take children into care if they are not capable of being suitably housed. That does not seem to have entered into the equation at all.

This is a Motion to express regret. I do not imagine that the noble Lord will seek a vote on it, but it is right that we should discuss it and that the Government should look again at the implications of what they are doing. It is particularly right that they should listen to the advice of two such distinguished Members of this House as the noble Lord and my noble friend, and take action to assist local councils in meeting the need for properly serviced accommodation, suitable for occupation by this quite small group, without recourse to the draconian measures which they are now implementing in this statutory instrument.