BOROUGH OF POOLE

ENVIRONMENTAL OVERVIEW AND SCRUTINY COMMITTEE

6 SEPTEMBER 2012

PROTOCOL FOR MANAGING UNAUTHORISED ENCAMPMENTS

1.0PURPOSE OF REPORT

1.1To advise Members of the legislation and national policy framework that has influenced current practice within Poole on addressing unauthorised encampments.

1.2To advise Members of the Council’s obligations towards Gypsies and Travellers, as a recognised minority group.

1.3To seek views on the future development of the Dorset-wide Protocol for Unauthorised Encampments.

2.0DECISION REQUIRED

2.1To enter into negotiations with Dorset Police, Bournemouth Borough Council, and possibly Dorset County Council in developing a new protocol for Unauthorised Encampments.

3.0BACKGROUND

Unauthorised Encampments and Gypsies & Travellers

3.1An unauthorised Encampment is defined as ‘an encampment of caravans and/or other vehicles on land without the landowner or occupier’s consent and constituting trespass.’‘Gypsies and Travellers’, who comprise a group of people frequently associated with unauthorised encampments, is a generic term to denote the whole population of those groups, families and individuals who subscribe to Gypsy/Traveller culture and/or lifestyle. The term encompasses ethnic Gypsies and Travellers, and those who fall within the legal definition of a 'Gypsy' (s24 of the Caravan Sites and Control of Development Act 1960 as amended by s80 of the Criminal Justice and Public order Act 1994).

(From the Department for Communities and Local Government(DCLG)Guidance on Managing Unauthorised Camping)

3.2Nationally there are more Gypsy/Traveller caravans than there are “authorised” legal places for them to stop. Government research estimates that at any one time thereare approximately 4,000 caravans on unauthorised encampments in England.Appendix 1 gives details of unauthorised encampments within Poole since 2006.

3.3Itis difficult to predict just where and when an unauthorised encampment will occur. Many unauthorised encampments are trouble-free and not contentious to the local settled community. In some locations however, there is considerable concern expressed by the local community particularly relating to anti-social behaviour and environmental damage. The settled community can also be responsible for anti-social behaviour towards Gypsies and Travellers, and incidents of such behaviour and/or racial hate crime need to be dealt with in accordance with the relevant legislation and related policies.

3.4It is important to draw a distinction between encampments on public and private land. Ifthere is unauthorised camping on private land, any action to deal with it will generally be the responsibility of the landowner. All landowners can use their common law right to recoverland. This allows the person in possession of land to evict an individual from their land, seek damages for their trespass on their land, and/or seek an injunction to prevent the trespass from occurring again.

Managing, removing and preventingunauthorised encampments

3.5Entering and occupying publicly accessible land is not in itself a criminal offence, and it is for the landowner or Council to seek a Court Order for eviction. Damaging property whilst entering land, driving vehicles in a dangerous manner, and causing public nuisance may be construed as criminal acts. It would however be a matter for the Police to act in accordance with any evidence obtained, albeit evidence of such breaches is very rarely obtained. Nevertheless, legal action for criminal acts would not result in eviction from the site, althoughit can be relevant when seeking a Court Order for eviction.

3.6Where unauthorised encampments occur within Poole, Officers from Environmental and Consumer Protection Services (E&CPS) conduct investigatory visits, often daily, to ascertain the likely affects upon the local community and environment. At an early stage they will liaise with the Gypsies and Travellers in order to encourage them to use refuse sacs and waste receptacles provided by the Council, and will attempt to negotiate a departure date by agreement. Arrangements are also made for health and welfare assessments to be carried out. Where the encampment is having little effect upon the local community or environment, the incursion will be tolerated for as long as possible in order to reduce the possibility that they may just move to a less suitable location. Where the incursion is clearly causing detriment, Officers will collate the necessary evidence in order to build a case for remedy through the Courts.

3.7Local Authorities can use section 77 of the Criminal Justice and Public Order Act 1994, to direct unauthorised campers to leave. If unauthorised campers fail to comply with a section 77 direction local authorities can use section 78 of the Criminal Justice and Public Order Act 1994, to go to court and get an order which allows the removal of campers. Councils must however have due regard to Government Guidance, which includes a degree of toleration as well as assessing educational and healthcare needs.

3.8The Council has no power to seek an immediate eviction unless the location and behaviour is so detrimental to the local community that it would be essential to maintain key services e.g. keeping school open or unacceptable levels of anti-social behaviour etc.

3.9The Police have a power to direct trespassers to leave land under s61 of the Criminal Justice and Public Order Act 1994, but only in exceptional circumstances; in Poole this power had been used just once in the last few years. The Police have a further power to direct trespassers to leave land under s62 A-E of the Criminal Justice and Public Order Act 1994; where there is a suitable transit site available within the Local Authority area. The Police have no power to obstruct an unauthorised encampment whilst in progress, albeit they can take action over criminal damage if witnessed.

3.10Target Hardening of sites includes physical measures such as locked gates, fences, heavy boulders, metal hoops, embankments, width/height barriers, narrow access etc. Such measures however must allow for normal use by visitors, access for our own vehicles, and access for emergency vehicles. Whilst sites are secured following incursions, campers who are determined to occupy sites are often able to move large obstacles and cut through barriers, leading to further expense. Whilst such actions may be a criminal offence, they are difficult for Police to evidence. Continual guarding of sites would be very expensive and time-consuming, and whilst checksare made of locks and gates etc Council staff and the Police cannot protect every site day and night.

Balancing the needs of residents and Gypsies & Travellers

3.11Decisions about what action to take in connection with an unauthorised encampment must be made in the light of information gathered. Decisions must always be:

‘Lawful’ - that is in line with local policy and procedures, taking into account relevant considerations and not taking into account the irrelevant.

‘Reasonable’ in the legal sense of not being perverse or irrational in the light of the evidence available.

‘Balanced’ in that they take account of the rights and needs of both the settled community and Gypsies and Travellers.

‘Proportionate’ - what is proportionate will vary according to the precise circumstances of each encampment, including the nature of the location and the behaviour and needs of the unauthorised campers.

(From the Department for Communities and Local Government(DCLG) Guidance on Managing Unauthorised Camping)

3.12Whilst it is of concern to many residents when Gypsies and Travellers establish an encampment in a public open space, it must be recognised that Gypsies and Travellers have been afforded various rights to a nomadic lifestyle which often conflicts with contemporary society. The Council is under a duty to respect their lifestyle and to balance their needs against those of the settled community. Furthermore, there is an obligationto consider their health, welfare and educational needs prior to serving a Direction Order. The Court can refuse to grant a subsequent Eviction Order if such considerations have not been met, an outcome whichwould resultin a total loss of ability to influence and manage the situation. It is therefore important that good evidence is gathered prior to seeking a Court Order.

3.13The Council recently sought eviction of a large group of travellers on six occasions within the space of two months. On each occasion they simply moved to a new site in the Borough with consequent and predictable responses from local residents. This is an example of where evicting an unauthorised encampment too quickly just moves the issue to another location. This disrupts more communities and costs more money.

Policy development

3.14The Council is seeking to identify an official transit site, which would afford the Police furtherpowers to order an unauthorised encampment to move on. This may provide some assistance with future encampments, albeit the official site must be vacant at the time, and of suitable size to accommodate the encampment. Selecting a suitable location for a transit site is a significant challenge, as there is often opposition from local residents. It is not currently permissible for local authorities to share transit sites across boundaries, albeit Grant Shapps, the Housing Minister, has indicated he will look to review this position.

3.15There is no specific legislative duty placed on local authorities to deal with unauthorised encampments by Gypsies and Travellers. It is however good practice, promoted by the Department for Communities and Local Government, to have a procedure or strategy in place so that the response can be better coordinated, the needs of both the travelling and settled community are considered, decision making is more clear and consistent, and all parties are better informed.

3.16A stakeholders meeting was held on 26th July between Borough of Poole, Bournemouth Borough Council, Dorset County Council, and Dorset Police. Attendance included the Leaders of Poole and Bournemouth, the relevant Portfolio Holders from the three Councils, Tobias Ellwood MP, the Chief Executive of Bournemouth, an Assistant Chief Constable of Dorset Police, together with other Senior Officers and Members. Much of the discussion revolved around clarification of the respective roles and working practices of the respective organisations, with one of the outcomes being to form a working group to develop common procedural and communication protocols.

3.17The current Dorset-Wide Protocol was agreed in 2008, but is in need of significant revision (see Appendix 3). Environmental and Consumer Protection Services (E&CPS) has already instigated some revisions to the communications element of the protocol, through posting daily web-based information on current encampments rather than daily emails, in an attempt to better inform local residents and reduce ambiguity. The web-site has also been amended to include a Q&A format. Attendees at the Stakeholders meeting felt this would be good practice for all, and will be one of the revisions to the Protocol. Nevertheless, the working group will be looking at all elements of the Protocol in order to ensure that a coordinated approach across all three Councils, together with Dorset Police, can be adopted. Consideration needs to be given to whether a protocol between Borough of Poole, Bournemouth Borough Council and Dorset Police would be preferable to one including a wider Dorset.

4.0FINANCIAL IMPLICATIONS

4.1Appendix 2 provides approximate costs associated with addressing issues around unauthorised encampments. These costs need to be balanced against the costs associated with target hardening and other security measures of open spaces across the Borough, which would run into tens of thousands of pounds.

5.0LEGAL & EQUALITY IMPLICATIONS

5.1The Human Rights Act (HRA) 1998, Article 8: Right to respect for private and family life: Case law has established that, while neither eviction action against trespassers nor planning enforcement is incompatible with HRA, either could potentially breach Article 8 rights if not properly used. Authorities, and other public bodies covered by the HRA, must be able todemonstrate that alleviction and enforcement decisions are 'proportionate' in weighing individual harm (in the loss of'home' for the Gypsy-Traveller) against the wider public interest. Potential challenge under the HRA means that all decision-making must be fully recorded and evidenced to withstand scrutiny.

5.2Equality Act 2010 – Public Sector duty: Local Authorities are under a duty to eliminate unlawful discrimination, advance equality of opportunity, and foster good relations. Gypsy and Travellershave been recognised in case law as a distinct ethnic group. Members and Officers must be resilient in the face of demands for the Council to behave in a manner that might prejudice our legal obligations, whilst recognising the responsibility to respond to the legitimate concerns of local residents. In particular Members and Officers should challenge and refuse to accept any remarks that promote intolerance, exhibit prejudice, or incite hatred.

6.0CONCLUSION

6.1There is a clear need for various partners to act in a coordinated way, both in terms of actions to address unauthorised encampments and in communications with local residents. The Council should look to revise the current Dorset-wide Protocol in order to ensure better consistency amongst partners and improved ways of communicating with residents and stakeholders.

Shaun Robson Head of Environmental and Consumer Protection Services

Contact OfficerPeter Haikin

Tel01202 261736

Appendix 1: Unauthorised Encampments within Poole

Appendix 2:Approximate costs in 2012 of addressing unauthorised encampments

Appendix 3: 2008 Dorset-wide Protocol on dealing with Unauthorised Encampments

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