[Diggers350] Squatting consultation ends on Wednesday

[Simon Fairlie]



As requested Chapter7's response to the squatting consultation paper,  
attached as a pdf, and pasted in below.




Simon Fairlie
Monkton Wyld Court
Charmouth
Bridport
Dorset
DT6 6DQ
01297 561359
chapter7 at tlio.org.uk

http://www.thelandmagazine.org.uk/


On 1 Oct 2011, at 11:47, Tony Gosling wrote:

> Dear all,
>
> It might be helpful if the TLIO core group and others could  
> circulate their response to this consultation here ahead of next  
> weekend's Monkton Wylde (Dorset) gathering.
> http://www.tlio.org.uk/TLIO-autumngathering2011
> so that others can be inspired?
> Tony
>
> Government consultation on squatting
> http://www.squashcampaign.org/government-consultation/
> The UK government is proposing to criminalise squatting and is  
> currently asking for people to respond to the consultation paper  
> via a questionnaire.
> This is about more than just squatting: this will exacerbate the  
> current housing crisis, erode tenants rights, and remove a  
> fundamental right to protest
> Please respond to the consultation by 5th October and tell the  
> government that squatting is not a problem
> SQUASH is working to make it easy for you to take action
>
> Respond to the consultation now »
> http://www.squashcampaign.org/resources/respond-to-the-consultation/
>

“To  provide access to land for all households . . . through  
environmentally sound  planning.”             Agenda 21,  Chapter  7
CHAPTER 7
     		Monkton Wyld Court
The Planning  
Office                                                    Charmouth,  
Bridport
of                                                                       
                             Dorset DT6 6DQ
Telephone: 01297  561359
THE LAND IS OURS                   chapter7 at tlio.org.uk

Response to the Ministry of Justice Consultation Paper: Options for  
Dealing with Squatting


1. Chapter 7: Who We Are and Who We Represent
  Chapter 7 seeks to represent the planning and housing interests of  
rural low income people. In particular we provide a planning advice  
service for people who have been marginalized through their inability  
to secure appropriate affordable housing in the countryside. These  
people represent a minority but not a tiny one. They are one of the  
“specific groups” whose needs are referred to in Paragraph 13 of  
PPG3 on Housing. We also occasionally deal with gypsies, though there  
are other organizations better equipped to deal with the specific  
needs of this group. Chapter 7 deals with planning enquiries from  
about 500 people every year.

OBSERVATIONS ON THE ORIENTATION OF THE CONSULTATION PAPER
Chapter 7 was dismayed by the orientation of this consultation  
document, as evident in the Foreword and the Introduction, and echoed  
elsewhere.
(i) Views of Squatters not Solicited
Firstly  there is no explicit attempt to solicit the views of the  
people who will be most affected by a criminalization of squatting,  
namely the squatters themselves. Paragraph 7 does say that “the  
consultation is aimed at anyone who might be affected by these  
proposals” — which of course includes squatters. But it then  
proceeds to give a list of specific groups and individuals who come  
under this heading, without extending the invitation to squatters  
themselves, and the organizations that represent them. We hope that  
this does not mean that the views of squatters, and their  
organizations will not be given due weight when the responses are  
assessed.
This apparent bias is expressed in even more overt fashion in  
paragraph 2 which states:
“The Government recently published new guidance on the Direct -Gov  
and DCLG websites for people seeking to evict squatters from their  
properties. but it recognizes that more may be done to reassure the  
public that the law is on their side.”
The unambiguous implication of this statement is that the term “the  
public” embraces people who seek to evict squatters, but not  
squatters themselves, which in turn suggests that the former are  
regarded as citizens of this country whose voice is to be heard,  
while the latter are not. We question how any fair assessment of the  
issue can be arrived at by an administration that displays such  bias.
(ii) Confused Analysis Used to Support Contentious Assertions
Although the paper acknowledges that there is a distinction between  
squatting an  unoccupied property, and squatting  occupied property  
— and notes that whereas the former is a civil matter the latter, in  
respect of residential is a criminal offence — at other times it  
confuses the two , and uses the confusion to support a contentious  
assertion.
For example, Paragraph 3 of the Foreword states:
”The Government does not accept the claim that is sometimes made  
that squatting is a reasonable recourse of the homeless resulting  
from social deprivation . . . No matter how compelling or difficult  
the squatter’s own circumstances, it is wrong  that legitimate  
occupants should be deprived of the use of their property.”
Most squatters agree that “it is wrong that legitimate occupants  
should be deprived of the use of their property”.  The vast majority  
of squats do not deprive legitimate occupants of the use of their  
property because the vast majority of squats occur in unoccupied  
property — in which case, until such time as a possession order is  
given to the owner, the squatters are the occupiers of the property.  
There is no advantage in squatting property that is already occupied  
because the prospects of staying there for any length of time are  
negligible, and anyway it is already a criminal offence.
(iii) Unsupported Assumptions and Pre-Emptive Conclusions
Paragraph 3 of the Foreword also illustrates our  third area of  
concern:  that the paper occasionally makes  assumptions and draws  
conclusions without providing any supporting evidence.
The government is no doubt entitled to refuse to “accept the claim  
that is sometimes made that squatting is a reasonable recourse of the  
homeless resulting from social deprivation”. But such a sweeping  
conclusion requires rather more in its support than the next sentence  
which states only that there are other “avenues open to those who  
are genuinely destitute and who need shelter which do not involve  
occupying somebody else’s property”. There are nearly always  
alternatives to a given course of action and the fact that these  
alternatives exist cannot in itself negate the reasonableness of that  
course of action — otherwise all the alternatives would be  
unreasonable.
One of the main objects of an enquiry into the possible   
criminalization of squatting must surely be to assess if and when  
squatting is a reasonable activity. The fact that it has remained a  
non-criminal activity for so long, suggests that there are some  
aspects or kinds of squatting that are reasonable enough to  regarded  
as worthy of legal protection. If this protection is to be overturned  
on the grounds that squatting is not a reasonable recourse, then that  
decision needs to be evidence-based; and if the Government is minded  
to criminalize squatting it should seek out the evidence and weigh it  
up. Yet the consultation paper acknowledges, in paragraph 11,  that
“there is no data held by central government about the number of  
people who squat or their reasons for doing so.”
We wonder how the government can come to any valid conclusion about  
the reasonableness of squatting without knowing what the reasons for  
squatting are.
The paper also makes some unsubstantiated assumptions about public  
opinion, for example in paragraph 19 :
“Most people would agree that the act of occupying somebody else’s  
property without permission is wrong, particularly where the  
occupation causes the property owner to become homeless or impacts  
negatively on the owner's business.”
While we agree, from our own experience, that most people (including  
most squatters) would consider it wrong  to cause a property owner   
to become homeless, we are by no means certain that the rest of the  
above sentence can be supported by evidence. In our experience public  
attitudes to squatting cannot be generalized and are site-specific.  
That is to say that if the squat occurs in a property which has been  
unoccupied and neglected for some time, then the balance of public  
opinion is often in favour of the squat, particularly when squatters  
are improving  public amenity by attending to the neglect.

RESPONSES TO THE QUESTIONNAIRE
   Our confidence in the consultation process has been considerably  
undermined by these shortcomings. Nonetheless we welcome the  
government’s intention to find out more about squatting and  
squatters, and will answer the some of questions in a manner which we  
hope will enhance the government’s understanding of the issues.
(1) Is squatting a particular problem in your area and where does it  
occur the most, eg in residential or non-residential property?
(2) Please provide any evidence you have gathered on the number of  
squats and the nature of squatting in your area
Chapter 7 is based in a rural area, and nearly all of our work  
focuses on housing deprivation in the countryside. There is, as is  
well known, a severe housing crisis in many rural areas, but few  
people resort  to squatting compared to the numbers who do so in  
urban areas. Most rural squatting involves the occupation of  
neglected and unregistered land, which is not within the remit of  
this consultation. The most common resort of those who cannot find  
affordable accommodation and are not eligible for social housing is  
to occupy a caravan, an agricultural outbuilding or a yurt, nearly  
always with the consent of the landowner. As such, the main  
difficulty experienced is not with legal matters of tenure and  
possession, but with the planning system, and it is that which  
occupies most of Chapter 7’s resources.
There are  occasionally squats carried out for  campaigning purposes.  
For instance, in the mid-1990s a house at Morecombelake, Dorset,  
belonging to the Highways Authority was occupied for several months  
by people protesting against the construction of the A35  
Morecombelake bypass. The squatters were  incoming road protesters,  
but had the support of most of the villagers. In 2006, local  
protesters occupied Balham Hill Farm, Chiselborough, Somerset, a  
County Farm that was being sold off by the County Council, and re- 
opened the farm shop. This action, which lasted a month, again had  
the support of a large number of villagers, including the parish  
council. Though this is not a widespread phenomenon, we hear of   
similar instances occurring from time to time in other parts of the  
country. Normally, environmental protesters will only undertake such  
occupations when there is a groundswell of public support. We also  
know of two instances (one last year, one several years ago) where  
squatters have taken over empty farms, not for specific environmental  
reasons, but to highlight the fact that there is a demand for  
affordable farmland with buildings which is not being met either by  
the market or by the County Farms system.
(3) Do you have any data or other information on the demographic  
profile of people who squat . . .  Do they live alone or with others?
A considerable number of the people Chapter 7 assists have squatted  
at some time or another in their lives, as have three of the people  
who currently work at Chapter 7 and the Land magazine. Squatting is a  
normal means of housing for people at both the low income and the  
bohemian ends of two social spectrums, and has been for centuries. As  
we have noted it is mainly an urban phenomenon, and in our experience  
a considerable number of people currently seeking affordable low  
impact accommodation and opportunities in rural areas are people who  
have squatted in cites at some time or another and have moved out to  
the countryside in an attempt to find something more secure than  
squatting, and more rewarding than a low income urban lifestyle.
It is important to understand the reason why people squat. The need  
for affordable accommodation is clearly a primary reason, but it may  
not be the only reason. The “alternative avenues” available to the  
destitute, are often simply not open to them (eg they can’t get on  
the housing list, haven’t the deposit for a flat etc) — but when  
they are available they are so unattractive that they are not taken  
up. Living in a cramped bedsit paid for by a housing benefit which  
acts as a poverty trap is not a very appealing proposition for the  
truly destitute, and even less so for  an individual who can make a  
modest living, but not sufficient money to pay exorbitant housing  
costs. Nobody with any spirit would willingly choose this “avenue”  
if there were more inspiring  options.
What the authors of the consultation paper may not fully appreciate  
is that squatting, as well as being a solution the homeless can  
resort to, is a creative act.  There are, it is true,  some squats  
which frankly are tips — they tend to enter a spiral of decay  
attracting drug addicts and social casualties. But there are many  
more which are the focus of activity. Taking on an abandoned or  
neglected house and garden, clearing the rubbish out, painting it,  
plumbing it, rewiring it, making it livable again is far more  
rewarding than surviving in the sort of cramped rented accommodation  
where you can’t move a wardrobe for fear of scuffing the paint and  
losing your deposit.
Very often the creativity is not merely domestic. Empty houses often  
occur in rows, or blocks, and when they are squatted a community  
emerges. Social centres are started, shops opened up, and small  
enterprises established. We who now work at Chapter 7 experienced  
this fertile environment ourselves, some 30 years ago, in  squats at   
Queens Terrace Hebden Bridge, Butt Road Colchester and Prince of  
Wales Crescent, Camden —  the last of  which housed some 280 people,  
a Community Supplies food coop, the  Institute of Art and Technology,  
the London Filmmakers' Coop, the Guild of African drummers and many  
similar organizations. Many of the Camden squats  were eventually  
licensed, and some still continue in the form of housing coops, such  
as the Islington Community Housing Co-op. Similar communities occur  
today , and are notable for  the numerous social centres that have   
emerged in recent years from squats, such as the RampART centre in  
Rampart Street, Whitechapel, Sheffield’s Matilda Centre, the  
Deptford Social Centre, etc. Unfortunately the lifespan of many of  
these squats seems to be shorter than those of the 1970s, because  
they are evicted more readily, although some, such as the Kebele  
Centre in Bristol, manage to secure a community purchase of the  
property.
It would foolish to over-idealize these squatting communities. They  
harbour their share of freeloaders, psychological casualties and  
other difficult people, just like any community, perhaps more so. But  
it does not help to hide their benefits either. Many people nowadays,  
particularly young people,  are rootless, for example  because they  
cannot get on with their parents, they left home to find work, or  
they never had any roots in the first place. Since the 1970s  
innumerable youngsters (some now celebrities) have discovered a sense  
of community, a purpose and an identity through co-operative  
squatting that they would have been  unlikely to find through the  
“alternative avenues” currently offered to the homeless.
4 Do you think the current law adequately deals with squatting?
The  forms of squatting outlined in our answer to the previous  
question appear to represent precisely the kind of community action  
that the  government is trying to initiate in its call for  
initiatives  which will (to quote the Cabinet Office’s Big Society  
Overview) “empower people in areas with high levels of deprivation  
and enable them to take more responsibility for their  
communities”, “catalyse social action”  and “encourage and  
enable people to play a more active role in society”. The rhetoric  
of the Big Society, with its emphasis on lessening  
“micromanagement” by government agencies and its encouragement of  
community empowerment and access to resources is one that would be  
shared by many squatters.
This leads to the obvious question: why is the government proposing  
to criminalize an activity which shares its own objectives?
The answer to this question, in our view, is a  failure on the part  
of  ideologues influential in the Conservative Party (and  
increasingly in the Labour and Lib Dem parties)  to appreciate the  
complexities of the relationship between owners and occupiers. The  
history of land law in the UK is a history of conflict and balance  
between the interests of landowners and the interests of occupiers.  
For centuries, until the Enclosure Acts of the 18th and 19th  
centuries, occupiers of land benefited from usufructory rights that  
mitigated the right of landowners to act as they pleased on their  
land, and some of these are still extant in the form of common  
rights, sporting rights, rights of access etc. Towards the end of the  
19th and beginning of the 20th century many of these customary and  
legal limitations on landowners rights disappeared, but another set  
of limitations on absolute property rights  was introduced through   
the Town and Country Planning Acts, which transferred development  
rights to the State. A further raft of modern environmental  
legislation prevents landowners carrying out activities which are  
deemed to be detrimental to public amenity or the health of land.  
And, most relevant to the current discussion, absolute property  
rights are still mediated through the laws on adverse possession, and  
the modicum of protection afforded to squatters and trespassers.
All this considerable body of law reflects the fact that it is not in  
the interests of society as a whole  to let landowners do whatever  
they want on their land, or to leave productive land unused and  
buildings unoccupied. Some rights — notably those relating to  
development and environmental protection — have been delegated to  
the state. But others, rooted in custom, but now upheld by statutory  
and case law, are held by the public at large, and these include  
rights of public access, adverse possession and the protection still  
afforded to trespassers and squatters.
There are, of course, good reasons why these customary rights have  
persisted and been upheld, at least to some extent, by the current  
legal system — the most obvious of these reasons, in respect of  
squatting law, being that everybody has to be somewhere. Even with  
the best will in the world, governments find it difficult to house  
everybody  (for the very reasons that are pinpointed by the leaders  
of the Conservative Party in their critique of state interference and  
micromanagement). As long as this state of affairs continues it will  
be unjust, divisive, impractical and expensive to criminalize people  
who occupy otherwise unoccupied buildings or land.
We applaud the fact that the Coalition Government has several  
imaginative proposals for giving low income  people better access to  
land, community resources and  housing, including the Community Right  
to Buy, the Community Right to Build, and the Empty Homes Strategy.  
But it remains to be seen how effective these will be, and even if  
they are successful, we would be surprised if they were 100 per cent  
effective. Successive UK government’s have been drawing up Empty  
Home Strategies and establishing  Empty Homes Agencies for some  
years, without any notable success. Until the current Government’s  
projects have proved successful it would be a great folly to  
criminalize squatters; and if they do prove to be successful, the  
level of squatting will in all probability diminish to insignificant  
proportions (because squatting involves hard work and is insecure)  
and therefore there would be no need to criminalize squatters.
The leeway traditionally allowed to squatters in UK law serves at  
least a dual purpose. It prevents the pointless criminalization of  
people who (provided they are occupying unoccupied property and  
causing no criminal damage) are causing no harm; and it exerts a  
necessary  pressure on landowners and the state to ensure that  
property is not left unoccupied for speculative reasons or because of  
perverse incentives. We appreciate that this muddy contamination of  
property rights conflicts with the ideology of those who  wish  
matters to be clean and absolute. But we submit that such concessions  
are necessary within the body of law to reflect the complexity of  
social dynamics.
Indeed our view is that it would be socially beneficial  if the  
current legal position were  adjusted to give slightly more advantage  
to squatters. In 1973, a possession order was granted against the  
Butt Road Colchester squat mentioned above,  but the judge, following  
a judgment made two weeks earlier in another court, suspended the  
execution of the possession order until the owners, Colchester  
Borough Council, demonstrated that they needed the buildings, which  
had lain empty for some years. However the original judgment went to  
the Court of Appeal where Lord Denning ruled that the courts did not  
have the discretion to suspend possession orders, once granted  
(McPhail v Persons Unknown and Bristol Corporation v Ross 1973).  It  
is Chapter Seven’s view that Lord Denning’s judgment (however  
legally correct) is socially unhelpful, and should be altered by  
statute: a more equitable and constructive balance between the rights  
of occupiers and the rights of property owners would allow the courts  
to suspend the execution of possession orders until the owners could  
demonstrate that the building was needed — for example in cases  
where a number of properties are being vacated over time prior to  
demolition or redevelopment. This would cause no prejudice to  
property owners, and would serve to protect and improve buildings  
that were not eventually demolished, or were held vacant for purely  
speculative reasons.
A similar law, allowing squatters to occupy buildings that had lain  
empty for 12 months if the owner had no pressing reason to use it,   
existed in the Netherlands from the 1970s until 2010, when squatting  
was criminalized. It was customary for squatters, after moving in, to  
invite the police to the squat to inspect whether everything was in  
order. (http://en.wikipedia.org/wiki/Squatting) Prior to the ban,  
representatives of the four largest cities in the Netherlands,  
Amsterdam, Rotterdam, The Hague and Utrecht, wrote a letter to the  
housing minster stating that it would not be in their interest to  
criminalize squatting, but the law was passed in October 2010,  
resulting in riots in Amsterdam and Nijmegen. A month later, the  
Supreme Court of the Netherlands prohibited the eviction of various  
squats in Amsterdam, The Hague and Leeuwarden because eviction would  
have  violated the European Convention on Human Rights.http:// 
news.squat.net/content/netherlands-court-prohibits-eviction-squatters
The recommendations we have made here apply only to squatters  
occupying otherwise unoccupied buildings, and do not apply to  
squatters who displace existing occupiers. As the consultation paper  
points out, this is already a criminal offence, and it should remain  
so. If the law in respect of this offence needs to be reinforced,  
then care should be taken to ensure that it does not affect the  
rights of squatters who occupy previously unoccupied buildings.
21 If any of the proposals in this document were to be adopted, what  
impact would this have on you, your organization or those whose  
welfare you promote?
  In the year that has followed the Dutch ban,  Amsterdam and other  
cities have seen waves of evictions, riots and the opening up of new  
squats. The primary effect of the ban has been to exacerbate social  
tensions. In Berlin, where there has also been a ban on squatting,  
there has been less conflict because the municipality has licenced  
some squats as low-rent temporary housing, in  much the manner that  
some of the London squats of the 1970s became licenced housing coops.
If squatting is criminalized in the UK without licensing or some  
other alternative provision, we suspect this will also lead to social  
unrest, though not necessarily of the same kind as in Amsterdam.   
There may well be riots, but squatters will also seek other options.  
Since the squatting of land is not covered by the proposed ban, we  
suspect that there will be a rise in the number of people squatting  
land in vans, caravans or tents. There have already been two tent  
village occupations in London, of a site near Kew Bridge in  
2009-2010, and on Clapham Common in September 2011. A ban on  
squatting would undoubtedly result in an increase in this kind of  
settlement.
We also suspect that there would be a rise in the number of people  
seeking a residence in the countryside, in vans, caravans and tents  
such as yurts and benders. As we have noted, there are already large  
numbers of people living in this manner in rural areas,most of whom  
are not squatting but occupying land with the permission of the owner  
(though not necessarily with planning permission). If squatting were  
criminalized we would expect an influx of such people to find it more  
difficult to locate friendly landowners, and to resort to squatting.  
This would be  insecure and would require a vehicle, so in effect we  
would be likely to see an increase in the number of itinerant  
travellers in rural areas. In cases where people did find sympathetic  
landowners, the  burden upon the rural planning system would  be  
increased.
Of course, in the face of such a trend, a vindictive government might  
move to make squatting land an offence beyond the measures currently  
in place in Section 61 of the Criminal Justice Act 1994 (a move which  
would criminalize large numbers of existing travellers). If it did,  
the people affected would no doubt resort to some other quasi-legal  
means of housing themselves, because everybody has to be somewhere. A  
wise government recognizes this truism, and makes property law  
sensitive enough to accommodate it.


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