In O’Brien v Bristol CC [2014] EWHC 2423 (Admin) [heard at the RCJ instead of in the Bristol admin court?  Not on Bailii yet but we have seen a transcript], a range of issues arose out of the council’s decision to seek and obtain a possession order of an unauthorised encampment below the M5 at Avonmouth.  The real aim of this judicial review, though, was not the possession order, but the council’s decision not to allow the O’Brien’s and their four caravans to return to the temporary transit site, which had available pitches.  The O’Briens had stayed at that temporary site for the allowable period (13 weeks) and had been entitled to overstay on the ground of exceptional circumstances for a period.  They then moved off and ended up at the M5 site.  The O’Briens had also made a  homelessness application and been offered interim bricks and mortar accommodation.  The council’s officer had considered whether to allow the O’Briens back on to the transit site but decided against it for what would have been an indefinite period and which would have set a precedent for allowing extended stays in breach of planning controls.  The O’Briens’ were unsuccessful on the merits although Burnett J did give permission to bring the judicial review

There are a couple of interesting points of law amongst the quite hazy facts (and I can’t let it pass that the council officer doesn’t seem to have taken contemporaneous notes of his decisions).  The first point of interest is that this case extends Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925 to a situation where the council did, in fact, have other authorised sites, albeit temporary, available to it.  The second point is that, in Codona (which, of course predates Pinnock), Auld LJ had elided Wednesbury and Article 8.  I’m not sure that this elision is really sustainable and it kind of permeates O’Brien too, despite Burnett J’s acceptance that they are analytically distinct questions.  The problems of proportionality are, of course, legion and for recent interesting academic discussions, Julian Rivers’ pieces in the Modern Law Review and Cambridge Law Journal are well worth a read.  In O’Brien, though, Burnett J. found that whichever test was advanced, the O’Brien’s were unsuccessful.  The haziness on the facts can’t have helped them.  The Article 8 defence to the possession claim of the M5 site seemed bound to fail, in essence because they had not stayed there long enough for it to be their “home” for Article 8 purposes and, in any event, as Burnett J. put it, “As the authorities demonstrate, in these circumstances a trespasser has a difficult task to demonstrate disproportionality” ([60]).

The other interesting point comes right at the end of the judgment about interim relief pending an application for permission to appeal to the Court of Appeal.  It was submitted, perhaps boldly, that the O’Briens be entitled to return to the transit site pending consideration of such an appeal for up to 14 or 21 days.  That application was refused because it would in effect have given the O’Briens the relief they sought albeit for a limited period.  In any event, the application to enforce the possession order would take a few days to sort out at least.  Nice try by the barrister for the O’Briens, Joseph Markus.

One last point – this claim could have been resolved in the county court through the grounds being presented as usual defences to possession proceedings but, of course, legal aid is no longer available to defend that kind of claim (although the O’Briens did have the benefit of being represented, it seems, at the county Court by the inestimable Will Stone of the law centre – at least that law centre hasn’t shut its doors yet).