Dale Farm Eviction (U.K.): Why Human Rights Needs to Infiltrate the Planning Process

Abstract

The impending eviction of travellers flora Dale Farto, Essex, delayed following a series of injunctions but, at the time of writing, scheduled for 23-24 September 2011, (1) raises the question of whether Basildon Council's actions will be a violation of the European Convention on Human Rights, as directly applied in the U.K. Human Rights Act 1998. There have been a number of cases involving Travellers (2) and Roma before the European Court of Human Rights in Strasbourg, but while the Roma have been relatively successful in defending their rights, the Travellers have won only one case. The Roma have won a series of decisions against a range of Council of Europe states, including Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, France, Greece, Hungary, Moldova, Slovakia, Spain and Turkey. The case lave has included issues such as the failure to carry out an effective investigation into attacks on a Roma settlement (Koky et al. vs. Romania), (3) segregation of Roma in schools (Orsus et al. vs. Croatia), (4) and racially biased police investigations (Nachova et al. vs. Bulgaria). (5) These are examples of the court acting decisively in tackling what it perceives to be racial discrimination against the Roma, with one commentator noting that in relation to the schools segregation question, the court was behind 'a legal revolution of sorts'. (6) The facts can be extreme, as illustrated in Moldovan et al. vs. Romania, (7) which involved police collusion in the burning down of a Roma village, with three deaths. The cases involving Travellers have all been tried in the U.K. and have all involved evictions. In contrast with the Roma, Travellers have won only one case before the ECHR: the 2004 decision in Connors vs. U.K. (8) They have lost in Bucldey vs. U.K., (9) Chapman vs. U.K., Coster vs. U.K., Beard vs. U.K., Lee vs. U.K. and Jane Smith vs. U.K., (10) although the latter five of these cases were decided together. Buckley provides the benchmark for the ECHR approach as 'the first gypsy case that ever got to Strasbourg', (11) decided on the basis of an Article 8 right to private and family life. It involved a refusal by local authorities to allow the applicant to live in her own caravan on her own land, through a refusal of planning permission. Although the commission ruled in her favour, the court ruled against, noting that in planning matters, the state enjoys a wide margin of appreciation. (12) In Chapman vs. U.K., the court adopted a more compromising stance than was seen in Buckley, referencing the minority status of the applicant, noting that 'the applicant's occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle'; and 'the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle'. However it was held that there was no violation of Article 8, the interference--refusal of planning permission to station caravans on her land and enforcement measures to remove her as a result--having pursued the legitimate aim of protecting the 'rights of others' through preservation of the environment. In Connors vs. U.K., the only case in which a violation of Article 8 was found, the situation is similar to Dale Farm, as outlined in the judgment: 'The seriousness of what was at stake for the applicant is not in doubt. The applicant and his family were evicted from the site where they had lived, with a short absence, for some fourteen to fifteen years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children's education. The family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entails.' (13) The powers used by Leeds City Council in Connors vs. …