Report to the ‘Associations' and their members on present legal issues
relating to the Gypsy and Traveller Consultation Document
and Response.
The Associations who have given instructions to us are those identified in Schedule 1.
The Instructions given are consequent to the Meeting held on 6th December 2008 chaired by Eleanor Laing M.P.
Those instructions were:
- (a) To take Counsel's Advice upon matters of law relating to the issue of the ‘Direction' served by the Government Office for the East of England (‘Go East') on Epping Forest District Council (‘EFDC') on 17th September 2007 and matters consequent thereupon.
- (b) To give advice following Counsel's involvement, on the most appropriate and effective means of responding to the Consultation Document then required to be delivered to EFDC by 6th February 2009.
Immediately following the receipt of the instructions we put in hand the preparation and delivery of extensive and comprehensive instructions to specialist Counsel - Robert Lewis.
Robert Lewis was selected because of his extensive experience not only as a planning barrister but particularly because of his acknowledged expertise in dealing with gypsy and traveller issues both for local authorities and private individuals. He also has specific experience in dealing with the issues in hand, namely the planning policy framework now being undertaken by EFDC as a result of the Direction.
We had a long Conference with Robert Lewis at his Chambers in London on the 14th January 2009 when the relevant documents were all reviewed and discussed in order to see that he was fully and properly acquainted with all of the issues and able to give Advice.
Robert Lewis attended the next meeting of the Associations held at Loughton on Saturday 17th January and which was again chaired by Eleanor Laing. He made a very full and comprehensive presentation to the Associations, in dealing with all matters of law, and practice relating to the Direction and the way in which this was required to be dealt with ‘from beginning to end'.
A summary of this and related aspects are attached at Schedule 2.
He also dealt specifically with the importance of completion and return of the Consultation Responses to the EFDC within the time allowed so as to ensure that all issues were comprehensively raised with them.
In dealing with the issue of the Consultation Responses he clarified and explained a number of the ‘limitations' imposed by EFDC within these documents and in particular
- (i) The inability to challenge the fundamental ‘policy' being applied, namely that the Direction had been imposed upon EFDC by the Secretary of State via Go East and which was decided Government policy.
- (ii) The legal issues relating to ‘race relations' already decided by the Courts and how these have limited criticism of the Gypsy and Traveller Community.
- (iii) The issues relating to obvious assertions as to land values and other consequences of the establishment of Gypsy and Traveller Communities.
It must be understood that the above limitations are limitations in the legal process - we have constantly made clear that there are other avenues for expression of dissatisfaction of these issues by political protest and lawful demonstration. We do however believe that all of these points will need to be reviewed and considered, and where appropriate supported with proper evidence, at the forthcoming Examination In Public to which we refer below.
As a consequence of this presentation, and in particular with regard to the preparation of the most effective responses to the consultation process, it was agreed that a further meeting with representatives of the Associations and Counsel be held to review drafting and this meeting was held on Monday 26th January 2009 at Epping.
Again we believe this meeting was very helpful as it enabled individual Associations to raise and discuss their own points on the Consultation Responses and also enabled more unified and cohesive responses to be formulated.
Robert Lewis has continued to give advice on specific issues relevant to the process and the wider issues involved.
The present position is that the Associations delivered their individual responses on the 6th February to EFDC although the consultation does not close until 20th February 2009.
Our present understanding of the immediate timetable is that EFDC anticipate a draft ‘submission document' will be put before the Council for decision in June/July this year, following the consideration by officers/consultants of all the Consultation Responses. This may seek to carry forward as few as 6 or 7 sites to meet the ‘required' numbers for Gypsy and Traveller provision. Following the Council approving such submission document it will be published and a period for ‘representations' allowed, following which it will be submitted to the Secretary of State as a draft Development Plan Document. EFDC do not now apparently anticipate any further period of consultation, only the period for representation as above. Thereafter the Secretary of State will arrange for an Examination In Public and to be held by an Examiner. The decision as to final selection of sites and policy will then be taken by the Examiner and as to the final form of the Development Plan Document and whilst that will be the final form of the document it will remain a matter for EFDC then to take a decision to formally adopt the document as part of their planning policy.
We do not intend within this note to make any further comment as to the issues arising following the completion of the Consultation exercise but would propose another meeting with the Associations to review the way forward and in particular as to the concurrent issues relating to:
- (i) the finalisation of the Regional Planning Policies relating to Gypsy and Traveller provision and the requisite number of pitches
- (ii) the preparation for and representation at the Examination In Public and with regard to the sites identified and the policy generally
all of which remain extremely relevant and important.
SCHEDULE 1
THE ASSOCIATIONS :-
- Theydon Bois Action Group
- Thornwood Action Group
- Epping Green Village Association
- Epping Residents Group
- Abridge Action Group
- Waltham Abbey Residents Association
- North Weald Residents Association
SCHEDULE 2
(i) The background by which Go East decided to make a Direction against EFDC as a consequence of EFDC's failure/delay in formulating so far as the Secretary of State was concerned an acceptable policy for Gypsies and Travellers.
(ii) The Direction required EFDC to prepare and submit to Go East a ‘Development Plan Document' for specific Gypsy/Traveller provision within the Epping Forest District. The steps which EFDC then took by seeking on its own account Counsel's Advice in respect of the Go East action and his, Robert Lewis', agreement with that Advice that was given to the Council, namely that a judicial challenge against the Direction was inappropriate and highly unlikely to be successful.
(iii) The procedural steps by which the Government's said Direction required a Development Plan Document to be formulated for specific identification and provision of Gypsy and Traveller pitches in the Epping Forest district and that policy to be put in place as part of the statutory planning framework with particularly the completion and submission to the Government of the draft policy by September 2009, following which the Government would then fix an Examination In Public for review of that policy by an Examiner. The present consultation exercise was an integral part of the required formulation of that policy and in turn was not properly capable of a judicial challenge.
(iv) The issues which the Examiner would properly consider at the Examination In Public included:-
- The appropriateness of inclusion of specific sites
- The omission of ‘better sites' for selection although the Examiner could only include new sites if they have been the subject of a sustainability appraisal. Those proposing alternative sites would therefore be required to carry out that exercise unless EFDC adopts them and carries out the exercise itself.
- General deficiencies in the draft policy and the Consultation documentation as put forward by EFDC.
(v) The ongoing stages within the overall process where there are statutory rights to seek ‘judicial review' in the Administrative Court and in particular:
- a. The finalisation of the Government's East of England Plan Gypsy Policy - there is a six week time period from the publication of this Policy and in which any challenge must be made. It is too soon to know whether grounds may exist here.
- b. The Examiner's Report following adoption/approval following the Examination In Public - again there is a six week period in which any such challenge must be made. If substantiated objections are raised at the Examination (depending upon whether the Examiner is able to correct them) this may delay its finalisation. Thereafter if challenged in the Court and if, as a consequence, the DPD is quashed, then the whole process would have to start afresh.
(It is important to note though that these ‘challenges' are not simply appeals by dissatisfied parties as to ‘factual issues' - they have to be challenges which are based on matters of law only and it is too early to know presently whether any such challenges exist.)
(vi) In particular there should be continuing monitoring of the Essex GTAA (Gypsy and Traveller Accommodation Assessment) and the results thereof which may have a bearing on the Secretary of State's final decision on the Government's East of England Plan.
FOSKETT MARR GADSBY & HEAD LLP, Solicitors
181 High Street, Epping, Essex, CM16 4BQ
18 February 2009
