Outer House allows Scottish ministers’ petition for removal of Irish travellers from Edinburgh development site

Seeking to develop a plot of land occupied unlawfully by the Irish traveller respondent, his family, and various others, the Scottish Ministers brought a petition for eviction and interdict before the Outer House of the Court of Session.

The petition was heard by Lady Tait, with James Mure KC appearing for the petitioners and Richard Pugh KC for the respondent.

Lack of culturally appropriate accommodation

The Scottish ministers own a plot of land of around 3.8 hectares at Granton, Edinburgh, and obtained planning permission in 2023 to develop the site into a project known as The Art Works. The project will comprise buildings designed to house works of art currently held at the neighbouring Granton Art Centre, which stores some 12 million artworks not on display at venues managed by the National Museum of Scotland, as well as a community studio and education rooms.

Since 2024, however, the respondent and his family – all Irish travellers – and a group of itinerant workers have occupied the plot without entitlement. The respondent, his partner and their 11 children live between three caravans stationed on the site, with their occupation having been maintained despite the absence of basic domestic utilities at the site. The family is registered with local medical practices and several of their children attend or are due to attend schools in the local area.

With planning permission for the site due to lapse unless development begins by November 2026, the Scottish ministers sought an order under section 46 of the Court of Session Act 1988 enjoining the occupants to restore to them vacant possession of the site and interdicting the occupants from re-entering it.

The respondents submitted, however, that if no culturally appropriate accommodation were made available to them, the eviction would constitute an unlawful interference with their rights under Articles 8 and 14 of the European Convention on Human Rights (ECHR), and with those of their children under the United Nations Convention on the Rights of the Child (UNCRC); and would be vitiated by the Scottish ministers’ failure to comply with the public sector equality duty (PSED) contained in section 149 of the Equality Act 2010.

Situation ‘intolerable’

Beginning by assessing the compatibility of the proposed orders with Article 8 ECHR, Lady Tait framed the issue at hand: “It is not disputed that the redevelopment project is capable of constituting a legitimate aim and that vacant possession of the site is rationally connected to that objective. Is there then a less intrusive measure than eviction which could be pursued without unacceptably compromising the achievement of the petitioners’ legitimate aims? Further, balancing the severity of the effect of eviction on the family against the importance of the objective pursued by the petitioners (to the extent eviction will contribute to the achievement of that objective), does the former outweigh the latter?”

On that question, she reasoned: “Standing that planning permission will lapse on 8 November 2026 and that enabling works require to be undertaken in advance, any delay in granting the orders sought is not without significant consequence. Any delay is likely to result in planning permission lapsing; a further application being required; additional costs estimated at £1.5 to 2 million per calendar quarter; and the potential loss of allocated public and lottery funding … Either (i) to allow additional time for appropriate alternative accommodation to be found; or (ii) to allow the family to remain during development works is not a less intrusive measure which could be pursued without unacceptably compromising the achievement of the petitioners’ legitimate aims.”

As to the family’s interests, however, she added: “Unarguably, the orders sought will remove the family from the site which has been their home since 2024 and from which base … education, health and community links have been established. Alternative accommodation which would allow the family to live as Irish Travellers is not currently available … Eviction will result in disruption to the family’s perceived settled status, in uncertainty and may destabilise the supports recently established. The evidence of Dr Bell [an independent psychologist instructed by the respondent] is that the family will be significantly impacted psychologically, in particular the respondent’s mental health … However, it cannot be ignored that the family is presently homeless, occupying the site on a temporary and unauthorised basis and with no services. The site is inappropriate for the family … On eviction, [City of Edinburgh Council] will be obliged to offer homelessness support and accommodation in terms of the [Housing (Scotland) Act 1987].”

Concluding that the orders sought were proportionate and thus lawful in terms of the ECHR, Lady Tait turned to the questions raised under the UNCRC: “Ultimately, I cannot conclude that remaining at the site is consistent with the children’s best interests. The independent social worker describes the situation as intolerable. It is in the children’s best interests to live in accommodation with suitable facilities and which is appropriate for the family’s status as Irish Travellers … [T]he current absence of such accommodation does not elevate the present site into one which is appropriate for the family and which serves the children’s best interests … Having then regard to the children’s rights under the UNCRC, I conclude that there is no less intrusive measure than eviction and that the importance and urgency of the petitioners’ objectives outweigh the severity of the effect of the eviction.”

Likewise dismissing the respondent’s arguments in respect of the PSED, Lady Tait concluded: “The PSED does not import a duty to achieve a result but only a duty to have regard to the need to achieve the identified goals. The court simply has to be satisfied that there has been a rigorous consideration of the duty. The petitioners completed an [Equality Impact Asssessment] for the decision to seek orders for the eviction. They had regard to the family’s status as Irish Travellers and through the [Child Rights and Wellbeing Impact Assessment] considered the needs and interests of the children. The EQIA also identified relevant countervailing factors, including the promotion of public health, safety and community cohesion, and the positive public benefits to be delivered through The Art Works project. In these circumstances, I am not persuaded that the petitioners failed to have due regard to the need to achieve the goals identified in section 149 of the 2010 Act.”

The petition was accordingly allowed.