Enforcement notices under scrutiny as Dale Farm legal battle rumbles on

A High Court judge has extended an injunction preventing Basildon Council from carrying out site clearance and evictions at Dale Farm in Essex, amid warnings from the authority’s counsel that further delays could cost hundreds of thousands – if not millions – of pounds.

The injunction will last until a hearing at 4.30pm on Thursday 29 September at least, after Mr Justice Edwards-Stuart ruled that there were triable issues “in relation to almost every plot as to whether or not the steps that the council proposes to take under section 178 of the Town and Country Planning Act 1990 are within the terms of the enforcement notices”.

Thursday’s hearing will also see the judge consider an application from the resident Travellers for a judicial review of Basildon’s decision to implement the enforcement procedure.

The Travellers lodged an application on this issue on 22 September. They will argue that a Court of Appeal ruling in favour of Basildon in 2009 on a similar application should not be decisive because the circumstances – both factual and in relation to the development of the jurisprudence in relation to the position of minority groups – had changed in the intervening period.

In a judgment handed down yesterday, Mr Justice Edwards-Stuart revealed that there was no dispute that the local authority’s enforcement notices were valid and that all remedies that may have been available to the residents by way of planning control had been exhausted.

When making the application the resident Travellers had told the judge that they feared Basildon planned to move onto the site and demolish and/or remove all the hard standings (apart from six plots and a section of road) as well as all the buildings, walls, fences and gates whether or not such measures were justified by the terms of the enforcement notices.

The Travellers had also argued that Basildon had refused to explain on a plot-by-plot basis exactly what it proposed to do. They claimed this had fuelled their fears that the council was planning action beyond the steps it was entitled to take.

The local authority had responded that these objections were misconceived and that it was entitled to carry out a wholesale clearance of nearly all of the plots on the site, save for six excepted plots and an associated section of road.

Mr Justice Edwards-Stuart ordered Basildon last Monday, when imposing the injunction, to identify what it proposed to do on each plot and for the residents to be given an opportunity to respond. Any real differences could then be adjudicated by the court, if necessary, he said.

Counsel for Basildon had argued against any delay warning that even a few days would cost millions, or at least hundreds of thousands of pounds.

Mr Justice Edwards-Stuart accepted that any delay of more than a few days would have “serious financial consequences”, but he said this did not justify a wholesale rejection of the residents’ concerns if there was a possibility of real differences giving rise to triable issues that might be capable of being resolved within a very short time frame – "that is a time frame measured in days, rather than weeks".

He therefore ordered Basildon to serve a schedule showing its work on a plot by plot basis, and for the residents to serve a counter-schedule within 48 hours. A hearing was then held on Friday (23 September), with Mr Justice Edwards-Stuart informing the parties that he would issue a ruling after the weekend.

In a ruling handed down yesterday, the judge concluded that there were triable issues “in relation to almost every plot as to whether or not the steps that the council proposes to take under section 178 of the Town and Country Planning Act 1990 are within the terms of the enforcement notices”.

This meant there would have to be a further hearing to determine the relevant facts, he said. The hearing will be principally concerned with the date of construction of each structure that the council proposes to remove or demolish.

“This result has come about mainly because the terms of the enforcement notices issued between 2002 and 2004 may not have been sufficiently precisely drawn, although the extent to which this may prove to be the case has yet to be finally determined,” the judge said.

Mr Justice Edwards-Stuart ruled in particular that there were triable issues:

• In respect of two plots (numbers 8 and 33), as to (a) whether the buildings that Basildon was seeking to remove were constructed in breach of planning control prior to the issue of the relevant enforcement notice; and (b) whether those buildings were structurally fixed to the land or hard standing. The judge concluded that the council could not, when exercising its powers under s. 178, demolish buildings or structures that had been erected unlawfully before the issue of the enforcement notice, which could have been but were not the subject of or mentioned in an enforcement notice
• In respect of all plots (save for plots 1, 3 and 28), as to (a) whether the walls, fences, or gates that the council is seeking to remove were constructed in breach of planning control prior to the issue of the relevant enforcement notice; and (b) whether those walls, fences or gates were structurally fixed to the land or hard standing. The judge concluded that walls, fences and gates that were unlawfully present on the site at the time of the enforcement notice in breach of planning control, but which were not the subject of or mentioned in the notice, could not be the subject of the steps to be taken pursuant to the current enforcement notices under the guise of enabling works
• In respect of plots 42, 48, 53 and 54 (and possibly 29), as to whether the ‘chalets’ on those plots had at least one dimension that exceeded those set out in section 13 of the Caravan Sites Act 1968. The residents argued that the particular structures were not ‘caravans’ within the meaning of the enforcement notices.

The judge pointed out that the onus of proof would lie on the residents for all these issues. If they provide proof, the council may be forced to issue fresh enforcement notices.

Mr Justice Edwards-Stuart also said that in respect of four plots (28, 45, 50 and 51), it had always been accepted that the council could not enter and remove the caravans because there was no relevant requirement in any enforcement notice.

As to the issue of Basildon’s decision to implement the enforcement procedure and the status of the 2009 Court of Appeal ruling, Mr Justice Edwards-Stuart said he would not be able to determine the case on paper on a without notice basis.

In his capacity as a designated judge of the Administrative Court, he therefore gave directions for an expedited oral hearing to be heard at the same time as the hearing on whether the actions Basildon planned to take were within the terms of the enforcement notices.

“Unfortunately, this may result in a further delay of a few days before the council knows whether and to what extent its enforcement action can go ahead, but in the circumstances I can see no realistic alternative,” he said.

The next hearing will take place on 29 September Thursday at 4.30 pm. However, the issues regarding the removal of gates and fence posts will be dealt with at a subsequent hearing on Monday, 3 October.

Cllr Tony Ball, Leader of Basildon, said: “Today [26 September] was another day when the wheels of justice continue to grind slowly forward.” He insisted that it had been a good day for the council and its local residents.

“We will be back in court on Thursday after which we fully hope to be in a position to commence removing residential structures from the vast majority of plots,” he said.

Cllr Ball added: “As I began by saying the wheels of justice are grinding slowly forward, the judge made it clear from the outset that such was the importance of this case that justice needed to be seen to be done.

“After ten years, if we have to wait a few more days to follow due process and get things right then that is what we will do.”

Travellers’ representatives meanwhile called on the council to return to the negotiating table.

Katie O’Shea from Dale Farm Solidarity said: “The situation at Dale Farm needs a sensible and common sense approach and we urge all parties to use this pause to find an amicable solution.”

Philip Hoult