The media response, carefully directed by spin, has been to focus on squatting and, all too predictably, on ‘protecting homeowners’ from squatters. That this response is wholly and perhaps wilfully inaccurate about the current law is something we’ve addressed before. Of course, squatting is threatened by the proposals, but the ramifications run deeper and wider.

The law of trespass to land has a long and deeply political history, too long to be examined here. But it has always been at the stress points of social history that it has come to the fore, where access to land and a place to live have been at stake. The Diggers of 1649 might stand as the beginning of organised squatting, but it is the Acts of Enclosure between 1750 and 1850, seeing some 14 million acres of common and small holding land passed into private ownership, that inevitably brought presence on land and ownership of the land into frequent conflict.

The 20th century saw both political and self-help trespass. As a direct challenge to ownership as exclusivity, there was the mass trespass of Kinder Scout in 1932, where thousands of ramblers trespassed on private moorland in the Peak District. There were violent scuffles with gamekeepers and 6 ramblers arrested, but arguably national parks and rights of way resulted many years later. Then there is the occupation of military camps, empty homes and hotels in bombed out London by some 50,000 demobbed soldiers and their families in 1946, commended by the Daily Mail as “robust common sense”, praising their ability “to take matters quietly but firmly into their own hands [...] a refreshing example of what ordinary people can do when they put their minds to it”.

In the 1960s and 1970s, in the face of another housing crisis, there were organised occupations of abandoned properties, many of them local authority owned. Long term occupations were ‘legitimised’ by licence arrangements for so-called short life properties. These ‘short life’ arrangements endured for over 30 years and are still being unwound. One legacy of these arrangements was Kay v Lambeth and Kay v UK, cases which have defined the application of human rights law to people losing their homes.

But beneath all this recorded and wikipedia’d history, and largely unremarked, save for the occasional tabloid headline, is another story, that of Gypsies and travellers. I’ll come back to this.

From this history, it should not be surprising that by and large the current law classifies trespass to land as a civil matter. It is a tort, so damages follow from the actual loss or injury to the landowner. The simple presence of someone on land owned by someone else, without more, is not a cause of loss.

Before I turn to the Government’s proposals, it is sadly necessary to recap the current law in England and Wales. Much of the public rationale for changing the law as it has appeared in the Daily and Sunday Telegraph, the Mail and on television has been based upon calls to protect homeowners from squatters. As I’ve previously discussed, this is simply wrong. Whether the error arises from lazy ignorance or a deliberate obfuscation is another matter.

It is a criminal offence under section 7 of the Criminal Law Act 1977 to occupy a property where there is a ‘displaced residential occupier’ (where the property is someone’s home) or a ‘Protected Intended Occupier’ (someone about to move in to live there). In neither case is a possession order required. The displaced/protected occupier can use force to enter the property and reasonable force to remove the trespassers. The police can arrest anyone remaining in the property after the trespasser has been informed that there is a displaced/protected occupier.

Where there is no displaced or protected intended occupier, where the property is not someone’s home, the person/body with the right to the land does have the right to use ‘reasonable force’ to regain possession. This is rarely used in practice, as exceeding a ‘reasonable’ level of force lays the property owner open to potential claims. In addition, forcing entry to a dwelling without a possession order runs the risk of being a criminal offence.

More usually, the person with the right to the property will need to make a civil claim for possession. In order to speed up the process, an application for an Interim Possession Order can be made and the IPO obtained in a few days. Once served, the trespassers have 24 hours to vacate or face arrest. Stories about it taking many weeks to evict trespassers are in large part down to the failure of property owners to take the correct steps, although the pressure on the courts and court bailiffs can delay matters.

If the trespasser has caused any damage to the property, or has used the utility supplies, these are criminal offences and the trespasser can be arrested for them.

Where the trespasser is on public land (owned by a local authority or other state body), the body has to bring possession proceedings, but can also seek an injunction banning the trespassers from the land, under threat of arrest and committal for contempt of court. The body can seek a pre-emptive injunction, banning the trespassers from other areas of land owned by the body to which it appears the trespassers are likely to move.

So, the interests of homeowners are currently keenly protected and there is a range of remedies available for other property owners. What then is the purpose of the Government’s proposals?

The proposal to remove legal aid from trespassers gives some clues. Squatters of houses don’t get legal aid now, or only very rarely. Legal aid is only available where there is an arguable defence and in possession proceedings against squatters there is no such defence, apart from the occasions where the property owner fails to fulfil the technicalities. Even that only buys time. All I have heard of is the very occasional instance of assistance through a court duty scheme, at a cost to the legal aid fund of £80 a time. So there are no costs savings to be made by removing legal aid from squatters and the removal of legal aid will frankly make little or no difference in virtually all proceedings against squatters.

However, one group will be significantly affected by the removal of legal aid from trespassers: gypsies and travellers on unauthorised sites or parked up on public land, usually in situations where no authorised sites are available. Some 25% of the Gypsy and traveller population who live in caravans do not live on authorised sites. This is a population which in large part has no option but to trespass.

In many cases, defences under article 8 of the European Convention on Human Rights have been raised to possession claims. The Community Law Partnership, who run a specialist Gypsy and traveller unit, estimate that some 75% of the cases that they currently advise on would have legal aid removed under this proposal. In this context, it is notable that the Ministry of Justice equality impact assessment makes no mention of Gypsies or Irish Travellers at all.

That it is this group that is the primary target of the proposed reforms would seem clear when one recalls that before the last election, the Conservatives proposed criminalisation of intentional trespass as an adjunct to the removal of the regional development plans, which imposed requirements on Local Authorities to identify and provide new sites. At that time, it wasn’t surrounded by all the briefed brouhaha about squatters, but was clearly aimed at travellers.

Many others would be likely to be caught by criminalising trespass. We have not yet seen details, but it seems likely to follow the earlier proposal to create an offence of ‘intentional trespass’, committed when trespassers are asked but fail to leave. This would encompass virtually any presence on land without permission, save for former tenants or possibly licencees. Trespass would become a criminal offence regardless of any damage or lack of it caused to the property owner.

It is hard to imagine any form of drafting that would not criminalise any contemporary form of the Kinder Scout trespass, or direct action protest occupations.

There is also the question of the impact on the current law of adverse possession. As that requires occupation while knowing that one has no right to occupy and against the rights of the property owner, can it survive the criminalisation of the occupation?

Beneath the headlines about Guy Ritchie being inconvenienced by squatters and about distressed (but wholly illusory) homeowners are proposals which will have a damaging effect on a vulnerable and disadvantaged community and a chilling impact on protests by occupation. All this for the ostensible purpose of saving land owners a couple of weeks in time and the limited cost of court proceedings.

This was the s.204 Housing Act 1996 appeal of a decision by Mendip DC that its offer of a two bedroom bungalow was an offer of suitable accommodation under s.206 of the Act and, therefore, it was right to discharge duty under s.193 of the Act.

Ms Thompson had been a traveller for 20 years. In February 2008, she moved her caravan onto land in Glastonbury owned by Mendip. She was served with a removal order in June 2008, but after negotiations, was allowed to stay. Ms T applied as homeless, and was initially turned down as not in priority need. After a report by a consultant psychiatrist, and consideration of a second medical opinion, Mendip revised that decision and in April 2009 accepted that it owed the full duty. Ms T was found to be suffering from anxiety and long-term depression, which was ameliorated by a rural living environment, and that conventional accommodation, certainly in a built up area, would make her ‘very anxious and worsen her depression as well as conflicting with her cultural values’. (This opinion was not challenged at any point by Mendip).

In December 2009, Mendip offered the two bedroom bungalow. Ms T refused and asked for a s.202 review of its suitability. The review letter contained a stated that “As Ms Thompson is a member of the gypsy community, there is a requirement for the Council, when considering the suitability of any offer of accommodation to her, to give special consideration to securing accommodation which will facilitate her traditional way of life”. The review then cites R (Price) v Carmarthenshire CC [2003] EWCA 42 Admin and the relevant passage of the Code of Guidance . Nonetheless, the review concludes that the offer of accommodation was suitable as “it was the only type of accommodation which could be offered at this time due to there currently being no suitable alternative to facilitate Ms Thompson’s cultural lifestyle”.

On appeal, Ms Thompson argued:

The decision was wrong because it failed to consider relevant facts, namely the existence of other sites. The Gypsy and Travelling Strategy document contained a list of potential sites. There had been no consideration of this and thus potnetial provision of accommodation for Ms T.

The decision was wrong because the decision-maker had misapplied the principles in Cadona v Mid-Bedfordshire Borough Council [2004] EWCA Civ 925. and Lee v Rhondda County Borough Council [2008] EWCA Civ 1013 . Cadona concerned urgent circumstances where all the Council could offer was B&B accommodation. This decision was upheld by the Court of Appeal.

Para 59 of Auld LJ’s judgment in Cadona was quoted, to the effect that this was short term accommodation as a short term measure taken as a last resort. It was not the case that there was such urgency in this case.

In Lee, there was no evidence as to psychiatric harm being caused by bricks and mortar accommodation, and, it was submitted, the law in Cadona was not altered by the Court of Appeal in Lee.

The review decision was unreasonable because of the evidence as to the effect of conventional accommodation on Ms T’s mental health. The offer of accommodation made fell below the minimum line.

In response, the Council argued that:

This was temporary accommodation and the situation could be reviewed.

There was no positive obligation on the Council to create a travellers’ site

Enquiries had been made as to the availability of a site via engaging an ‘expert’, Mr Swift. These enquiries did not have to be ‘of a CID standard’ and those made showed no sites.

On the medical evidence, the Council argued there was little it could do. Ms T had chosen an unconventional lifestyle and could do more to help herself.

Held:
In view of the medical evidence, the review decision was unreasonable and must be quashed. ‘Suitable must be given a broad meaning’ and the accommodation offered did fall below the minimum standard when considering Ms T’s circumstances which included her mental health.

This was enough for the appeal to succeed. However, the other grounds would also have succeeded. The decision maker failed to carry out adequate enquiries, failed to have regard to the information that found its way into the strategy document and either did not know of, or ignored, the existence of sites with the potential to accommodate Ms T whether in the ownership of the Council or not.

Further, the decision maker had failed to have regard to the principles in Cadona and Lee. The application of Cadona is limited to circumstances of urgency.

Decision quashed.

Comment
While this is only a County Court appeal, the interpretation of Cadona, on when bricks and mortar accommodation may be considered suitable for travellers, is clear in its direction. Further, on the evidence of the Council’s own strategy document, there were potential sites not considered in the review, strengthening the argument against the ‘this is all that is available’ decision. But it is the medical evidence – unchallenged – that was clearly most persuasive here. It could not be reasonable, or suitable, to place the appellant in accommodation which would exacerbate her depression.

To some extent, that key finding on the medical evidence side steps the issue, raised in a rather unsubtle and unappealing way by the Council, of a distinction between new travellers – a choice of lifestyle – as opposed to gypsies or travellers as an ethnic or cultural group. As we saw, this distinction was raised – without conclusion – by the ECtHR in Horie v UK [our report], with the question being posed whether a ‘personal choice’ of lifestyle would attract the same ‘positive obligation to facilitate a way of life’ as that owed to an ethnic or cultural group. I suspect this a question that will be revisited here in the future.

Back at the end of 2009 we reported the Supreme Court case of Secretary of State for Environment, Food and Rural Affairs v Meier and another, which upheld the use of a quia timet injunction – a prospective possession order – against a group of new travellers, preventing them from occupying any land owned by the Forestry Commission in the area.

Sharon Horie, one of the new travellers, applied to the European Court of Human Rights. This is the decision on the admissibility of the application.

The application was on the basis that:

20. The applicant complained that the decision to grant the injunction violated her rights under Article 8 of the Convention as it impacted on her ability to pursue her way of life as a New Traveller. She argued that Article 8 imposed on the State a positive obligation to facilitate the gypsy way of life (Chapman v. the United Kingdom [GC], no. 27238/95, BAILII: [2001] ECHR 43, ECHR 2001 I and Connors v. the United Kingdom, no. 66746/01, BAILII: [2004] ECHR 223, 27 May 2004) and in granting such a wide-ranging injunction the authorities were acting in violation of this obligation.

21. The applicant further complained that the domestic courts failed to consider the issue of proportionality before granting the injunction. In particular, she submitted that the House of Lords upheld the Court of Appeal’s decision in relation to the grant of an injunction without express consideration of proportionality.

The ECtHR decided otherwise and found the application inadmissible.

On the breach of Article 8:

The applicant had no right under domestic law to camp on any of the land covered by the injunction. The only change in her position effected by the injunction was the risk of imprisonment, which the domestic courts had expressed to be low.

The applicant had no right under Article 8 to establish a camp on the land. Article 8 did not require contracting states to make suitable sites available to gypsies (Chapman v UK). Even if new travellers were analogous to gypsies (on which more below), “Article 8 cannot be interpreted so as to require the Contracting States to tolerate unauthorised camping on land vested in the State.”

Finally, the Court is not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life. Although it covered thirteen sites in Dorset, this would only have accounted for a small proportion of land in the county. Consequently, the Court does not accept that following the grant of the injunction, the applicant’s only option was to move to bricks and mortar accommodation. In particular, the Court notes that notwithstanding the shortfall of local authority sites available in the United Kingdom, many gypsies and other travellers still live an itinerant life without recourse to official sites and the possibility that vacancies on these sites might arise periodically could not be excluded.

In any event, if the applicant were to camp on Forestry Commission land not covered by the injunction, the Forestry Commission would be obliged to comply with its procedural code based on the 2004 Guidance before seeking eviction and failure to do so could vitiate its right to possession.

Application dismissed. However, in what would be called obiter remarks if the ECtHR has such a thing, the Court noted that “Unlike Romani gypsies, who are widely recognised as an ethnic group, and Irish Travellers, who are a traditionally nomadic people with their own culture and language, New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group”. While no submissions were sought on this issue and, in view of its findings, there was no need to decide on it, it appears that a distinction between ‘personal choice’ and ‘ethnic and cultural group’ is something that the ECtHR may in the future consider in relation to the ‘positive obligation to facilitate the gypsy way of life’.

Comment
That obiter remark may set down a marker for future cases, and it is an issue that we will revisit in our forthcoming report of the s.204 appeal hearing in Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010.

But otherwise the only particular significance in this case is the clear line drawn between the ‘positive obligation to facilitate the gypsy way of life’ and a requirement to make suitable sites available to gypsies under Article 8, where the 2001 case of Chapman is relied upon.

Alas for Mr Pickles, this has turned out to be unlawful because:
a) the decision involved using that power for an improper purpose by “undermining the policy of the LDEDCA 2009 that there should – ordinarily at least – be Regional Strategies in place for each region”, contrary to the principle in Padfield v Minister of Agriculture, Fisheries and Foods [1968] AC 997 that a “discretionary power conferred by a statute is impliedly limited in some respect by reference to the policy and objects of that statute”, depending on construction.
And b) due to  the failure to carry out a detailed environmental assessment prior to reaching the decision, contrary to the requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 (“the 2004 Regulations”), which give effect in domestic law to Directive 2001/42/EC.

Mr Pickles will now have to consider primary legislation to accomplish his stated end.

In other news..

Brightlingsea Haven v Morris (our last report) – on whether a seasonal caravan site was protected under Mobile Homes Act 1983 – was due in the Court of Appeal today. We are reliably informed that the case had settled before being heard, leaving the question undetermined by the Court of Appeal.

Quadrant Brownswood Tenant Cooperative Limited v White (HC 09 C 03494) – an Art 8 challenge to a housing co-op possession claim – was due to be heard on 9 November 2010, but has been adjourned to some date after 4 January 2011. We understand the tenant was in person on 9 November, so, given the issues involved, this may not be as much of a case to watch as we thought.

But, while on Co-ops, and potentially a very important case for co-op tenants, we’ve learnt that Ms Berrisford in Berrisford v Mexfield has been given permission to appeal to the Supreme Court. Our report on the Court of Appeal hearing is here.

And the Court of Appeal judgements in Universal Estates v Tiensia and Honeysuckle Properties v Fletcher – the tenancy deposit cases we have all been waiting (and waiting) for are apparently to be handed down tomorrow (or today if you are reading this on 11 November). We’re on it.

Item 1. The Government is to bring s.318 Housing and Regeneration Act 2008 into force, finally according travellers on authorised sites the same security as those who come under the Mobile Homes Act. Hurrah.

Item 2. Planning circulars regarding construction of authorised travellers sites are being scrapped. Apparently because Councils complained about being forced to build on countryside and undertake compulsory purchase. Actual examples of either are welcome if anyone has come across them – we’d be interested.

Item 3. The regional strategies have already gone.

Item 4. ‘Plans for further powers for councils to combat unauthorised development’. Awaited…

Item 5. ‘New Homes Bonus Scheme’ to be extended to travellers’ sites, so councils get financial benefits for building authorised sites ‘where they are needed’. But what happened to the frozen Gypsy and Traveller site grant budget (or what was left of it)? That form of direct payment to Councils to develop sites has vanished.

Localism – it’s been tried before and didn’t work in this context. I’m not holding my breath for the sudden appearance of much needed authorised sites.

Meanwhile, Birmingham is worried about the Pope and trespassing Travellers. Don’t go near Birmingham without a ‘Pilgrim Pass’ on 19 September, apparently.

There is an argument, although not one vocally espoused by NL, that visiting Birmingham on that or indeed any other date would be penance enough to both qualify one as a pilgrim and to have 5 or 6 venial sins and possibly a mortal one wiped off the slate. But right now all I really want to do is pop Richard Dawkins into a two bed towable and head up the M6…

While we wait for the Supreme Court decision in Pinnock, which was heard last week, it seems that the Court of Appeal is determined to set practical limits on the operation of the public law defence. In this case, Corcoran and O’Donnell – the Appellants, were granted permission to appeal, but:

The only reason we granted permission is that we considered it important to make it absolutely clear that public law attacks of the technical and over-theoretical sort advanced here have no merit whatsoever in this sort of case.

The case also raises issues about the Court’s discretion to suspend a possession order under s.4 of the Caravan Sites Act 1968 and the effect of delays in the Court process.

Brief Facts
Mrs Corcoran and Mrs O’Donnell were each the licencee of a plot on a travellers’ site in Wembley. The licences contained conditions that prohibited:

• parking more than 1 vehicle and 1 caravan on the pitch
• relatives and guests bringing caravans onto the site without written permission from the Council
• using the pitch for taking, selling or supplying drugs and receiving, storing or selling stolen goods, or harassing or causing distress/ inconvenience to others, including the Council’s staff, by themselves or anyone living with or visiting them.

On 14 March 2008, the police carried out a raid on the site. Mrs Corcoran’s pitch had a large mobile home and a small white caravan occupied by Eddie Corcoran (Mrs Corcoran’s son) on it. Mrs O’Donnell’s pitch had a large mobile home, a cream caravan and a small white caravan. The Police found:
i) Pitch 1 (Corcoran):
Small white caravan/adjoining wall: 37 wraps of cocaine, an air rifle and a knuckle duster;
ii) Pitch 11 (O’Donnell):
Small white caravan: 28g cocaine, scales, other drug paraphernalia, 3 lumps believed to be crack cocaine, weapons including a replica MP5 machine gun, knuckle duster, knives and machetes and 15 national insurance cards, fifty death and birth certificates, various documents in the names of individuals unconnected with the pitch, 3 satellite navigation systems (one of which was reported stolen) and in excess of £1000 cash.
Eddie Corcoran was arrested and convicted of possession with intent to supply. Patrick O’Donnell (Mrs O’Donnell’s nephew) was arrested but not charged.

On 31 March 2008, Brent served notice terminating the licences and on 1 May 2008, Brent brought possession proceedings. At hearing on 16 May 2008, HHJ Copley made orders for possession but adjourned hearing on the issue of whether the possession orders should be suspended. The Defendants’ argument that there were public law defences to a possession order were rejected. No written order was drawn up at the hearing and no case management directions given. In the event, no determination was made on the suspension or otherwise of the possession orders until September 2009, 15 months later. In the meantime, in November 2008, there was an incident in which two of Brent’s officers on the site were shouted at and told to leave the site by a group of residents. Mrs C and O’D denied taking part, but the Judge later found that they had, albeit not playing a major part.

At the hearing in September 2009, HHJ Copley suspended both possession orders for a year on the basis of undertakings not to permit Eddie Corcoran or Patrick O’Donnell on the pitches and not to interfere with or harass Brent’s officers in exercising site management functions.

Mrs C & O’D appealed on the dismissal of their defences. Brent cross-appealed on the Judge’s decision to suspend the orders.

Held: (Jacob LJ)
On the public law defences.
The question was whether Brent’s decisions were such that no reasonable council could have arrived at them. The Appellants argued that Brent had failed to take into account its duties arising under s.71 of the Race Relations Act 1976 as amended and s.49A of the Disability Discrimination Act 1995 as amended. It was true that Brent did not consider its s.71 duties when deciding to terminate the licences, but this was not a circumstance in which the s.71 duty arose.

The section does not mean that whenever a relevant statutory body such as Brent takes any decision whatever it must give advance consideration to issues of race discrimination. There are decisions which clearly have nothing to do with race, still less racial discrimination.

Here there were severe breaches of the licences, involving criminality, which had nothing to do with race or a particular racial group:

it is entirely far-fetched to suppose that a local authority should think that racial discrimination considerations could come into play. Indeed if anything quite the opposite. If Brent had decided not to serve a notice to terminate the licence on the ground of race it would most likely have been exercising unlawful positive racial discrimination – treating a particular ethnic minority more favourably than other ethnic groups.

This conclusion also applies to the decision to continue and seek outright possession orders.

The s.49 DDA duty was only argued in respect of Mrs O’D, on the basis that a draft witness statement set out that her aged and terminally ill mother was living on the ptich.

Again the Judge thought nothing of this defence and rightly so. It is by no means obvious that the consequences of clear and serious breaches of the terms of a licence can be escaped by reason of the presence of such a person on the site. I can see how the problem would need to be considered, as simple matter of humanity irrespective of any Convention or statutory duty, when considering whether execution of an order for possession should be suspended, and what should be done for someone in the position of Mrs O’Donnell’s mother on enforcement of the order, but that would come later.

Finally, the Appellants argued that Brent had failed to put in place any or sufficient procedural safeguards having regard to the fact that termination of the licence would end the licensees’ contractual rights and that this amounted to a breach of Art 1, protocol 1. This was held to be:

[...] entirely fanciful. In reality what matters is whether there is going to be an eviction. Moreover I do not see what Mr Cottle means by procedural safeguards. He suggested that Brent should have made inquiries of the licensees and other before serving the notices, that in effect there should have been a complete inquiry about all aspects of the potential effect of a notice to terminate the licence. I do not see why, given the clear breaches of the licence conditions.

Moreover the notices to terminate the licences specified the breaches of the licence terms. No order for possession could or would be made without the opportunity of a hearing. All factual matters will come into play before a licensee is evicted. Procedural safeguards are built into the system.

The public law defences were hopeless from the outset. “Such defences should only be raised when they have real and obvious substance: it is not appropriate to construct intellectual edifices of public law without any proper foundations in reality.”

The Appellants’ appeal dismissed.

On the cross appeal of the suspending of the orders.
The judgment of HHJ Copley did not make clear findings in certain key regards. Brent appealed on the basis that the judge had made errors of principle and that his decision was one no judge could reasonably have reached.

Brent argued that the Judge had wrongly shifted the onus of proving whether Mrs C & O’D were aware of the presence of drugs and other items in the small caravans on their pitches to Brent, where instead Brent had the possession orders and it was for the occupants to show evidence of ‘all the circumstances’ justifying suspension. It was not clear from the judgment whether the judge had so shifted the onus and it should have been clear on this point. However, while it was correct that it was not for Brent to prove that the licencees knew of the presence of the items, given the lack of a clear finding on the Judge’s part that it was for them to do so, the appeal on this point could not succeed.

Brent further argued that the judge “failed to take into account, either at all or properly, in exercising his power of suspension, the very fact of the serious nature of the breaches”.

The Judge appeared to say that he had considered the presence of drugs and firearms sufficiently serious to make the possession orders in the first place and that he had therefore already taken them into account. This was an error.

The Judge there speaks as if the making of the order for possession was justified on the grounds of breaches of the licence terms, and that accordingly he had already had regard to the serious breaches. However, once a valid notice to terminate the licence has been given (which does not depend on there having been breaches of the licence terms) Brent is entitled to an order for possession. The judge was therefore wrong to suppose that he had already taken account of the serious breaches in any respect. In the exercise of his discretion under s 4(4) he erred by disregarding, or at least downgrading, the serious breaches on the erroneous supposition that they had come into account already on the question of making an order for possession. It therefore seems to me plain that in exercising his s.4(4) discretion he failed to take into account a highly material factor. So I think he made an error of principle there.

The error appears to have been suggested by analogy with the reasonableness requirement of Housing Act 1985 in making a possession order.

Further, the Judge had made an error of principle in failing to recognise the seriousness of the November 2008 incident, which took place after the possession orders had been made, but before the hearings on whether they should be suspended, when one would expect the occupants to be considering their behaviour.

The Judge had simply said that while this was regrettable behaviour, it was not of such seriousness as to justify an outright order. Again, it was not for Brent to justify an outright order, which appeared to have been his approach.

Further I think the Judge failed to look at the collective effect of all the matters. He had three: the serious breaches of the licence terms relating to criminality operating from the sites, the blatant breach of conditions by bringing extra caravans on the sites and the incident of 17th November. The Council’s management of the site would be likely to pass beyond control if the orders were merely suspended.

In view of this, the Judge’s exercise of the discretion to suspend the order was flawed. Following Beldam LJ in City Council of Bristol v Mousah (1998) 30 HLR 32:

The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an order for possession will be made. The order will assist the housing authority, who, under section 21 of the Act, have the duty to manage the housing stock and have the obligation to manage, regulate and control allocation of their houses, for the benefit of the public. In my view the public interest would best be served by the appellant being able in a case such as this to relet the premises to someone who will not use them for peddling crack cocaine.

While in Mousah it was the tenant who had committed the crime, here the licencees were, at the least, in knowing and deliberate breach of the licence terms through the extra caravans and the harassment, and had lost the benefit of the licence. Outright possession orders made.

There was no requirement for the Court of Appeal to conduct a fresh assessment of the circumstances up to the date of the appeal hearing. The decision should be made on the facts as they were at the time of the first instance decision, contra the Appellant’s submissions that this would be in breach of Convention rights (LLoyd LJ)

Lord Justice Wilson dissented only on ‘a matter of emphasis’, that it was putting it too high to say that it was a decision that no Judge could reasonably reach. However, the Judge has failed to address the significance of the November 2008 incident when considering whether there was a basis for a sound hope that the previous conduct would cease.

On s.4(4)(c) Caravans Act – whether the licencees had made reasonable efforts to find other accommodation, the Judge did not make a clear finding, although this was something he should have had regard to under the Act. This was a disputed issue, but

Perhaps the evidence justifies no more than the view that it may or may not prove easy for the respondents to find other, suitable accommodation. We have to weigh also the length of time, namely 13 years, for which the respondents have lived on the site; the unacceptable length of time, namely two years, since the orders for possession were made, although in my view such is a point which cuts both ways; and in particular (whether falling to be weighed under Article 8 of the ECHR or otherwise) the presence on the site of other members of the respondents’ close-knit families. But the egregious misuse of their pitches revealed on 14 March 2008, together with the likely nature of their future conduct demonstrated by the incident on 17 November 2008, yields a conclusion of the balancing exercise in favour of a refusal to suspend enforcement of the orders.

The Court of Appeal also made clear its view that the delays in the process of the claim were completely unacceptable. 15 months had elapsed between possession orders and the hearing on suspension, when the longest that the order could be suspended was itself 12 months at a time. “Courts must make every endeavour to hold early hearings in cases such as these, if necessary transferring them to a nearby centre which can hear the case more quickly.”

Comment
The Court of Appeal expressly cites with approval Toulson LJ in Doran v Liverpool City Council [2009] EWCA Civ 146 to the effect that the test is that the decison to seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision; and that

This is a high test and rarely likely to be satisfied where the decision was made in good faith.

The Court adds

As Doran made clear, the real battle, once a notice of termination is (apart from any question of public law) valid, comes when the question of suspension of an order of possession comes to be considered. All factors (including but not limited to all Convention considerations) can come into play then.

This would seem to restrict a public law defence, in cases where there Court can exercise some discretion over suspending or postponing an order, to challenging the decision to serve notice to quit.

As a decision, this must surely be distinguishable from summary or mandatory possession claims where the principle in Barber v Croydon LBC[2010] EWCA Civ 51 was that what was at issue is a series of decisions, from deciding to serve notice through to enforcement of a warrant.

Grant Shapps, housing minister has been setting out some plans, or perhaps aspirations. Mostly, these seem to involve encouraging people to buy houses. And encouraging mortgage lenders to lend more to people to buy houses. Via an unspecified “structural change” in how supply meets demand. Sounds like a plan, and one we haven’t seen before…

On rented accommodation, Mr Shapps confirmed that the national landlord register mooted under the last government will be scrapped. The rest of the Rugg review recommendations and being considered – more to come shortly, but apparently they plan to ‘penalise rogue landlords but not by penalising everybody’. It is a fair bet that the mumsnet for tenants is out the window.

Government support for shared ownership schemes has ‘run out of cash’ and will end.

Meanwhile, on the plus side, the consultation on the Housing Revenue Account system continues, with Mr Shapps describing the current position as ‘unfair’ and looking at devolved powers to councils with greater financial freedom on their housing funding. We shall see.

And for the ugly, we turn to Eric Pickles at the DCLG and the emerging policy on gypsies and travellers. Not content with scrapping the Housing and Communities Agency funding that was in place for developing new sites and refurbishing old ones (and some really, really need refurbishment) and persisting with the Conservative plan to criminalise trespass, Eric Pickles has announced that he intends to “scrap new rules giving Gypsies and Travellers a “level playing field” in planning disputes with local authorities”. And then the regional planning schemes, which encouraged/required local authorities to find or build permanent sites are also to be scrapped. These are going to be difficult times for gypsies and travellers, with apparently not a peep from the Lib-Dems.

This was the hearing of an application for an injunction by Brentwood BC. The defendants were six gypsies who had together purchased a plot of land, called Plot 3, in 2009. This was designated agricultural land in Brentwood’s area.

At the time of purchase, the plot was subject to two enforcement notices from 2001, one of which required the removal of all touring caravans from the site, the permanent cessation of the use of the site for residential purposes and reinstatement of the site to a condition suitable for agriculture. That notice had not been enforced by Brentwood in the time since 2001.

Before buying the land, the purchasers had consulted a planning consultant, who had advised them that, if planning permission for use as a residential caravan site was applied for, the most likely outcome was long term temporary permission.

After purchase and over a bank holiday weekend in April 2009, the Defendants and their families moved onto plot 3:

bringing some fourteen caravans and some 30-50 lorry loads of road planings and earth moving equipment which was used to create an encampment with a new continuous roadway laid down the middle of the site with six pitches, three on either side. Earth works were carried out to create an artificial bund or screening mound along parts of the northern and southern boundaries of the site and to level parts of the site. Timber panel and concrete fencing was erected both along the boundaries of the site and within the site dividing it into the six pitches.

It was common ground that this was in breach of the 2001 enforcement notice and without planning permission. After the holiday, Brentwood served enforcement notices and then issued the application for an injunction. On the same day an application for retrospective planning permission was made. This was refused in June 2009 and an appeal lodged by the Defendants, adjourned pending these proceedings.

The Defendants argued that:
i) there had been caravans on the site for many years without the Council seeking to enforce the notices.
ii) They had liaised with the Council in seeking a plot and had sought advice on potential planning permission
iii) They were seeking a long term site for family reasons and some had previously been forced to live in highly dangerous conditions
iv) there is a likelihood, and certainly no less than a real prospect, of their planning appeal being successful.

The Court summarised the guidance in South Bucks District Council v Porter [2003] 2AC 558 on the discretion under Section 187 B of the Town and Country Planning Act 1990 as follows:

(1) The principal purpose of the jurisdiction to grant an injunction under section 187 B is to promote compliance with planning law. The power exists above all to permit abuses to be curbed and urgent solutions provided where they are called for. There is an important public interest in securing compliance with and if necessary enforcement of planning law.

(2) An injunction is the most draconian measure available to promote that end. In the ordinary case, absent particular factors pointing to the need for immediate injunctive relief, it is available as a last resort when the other remedies of enforcement notice and prosecution have been tried and found wanting, or at least where there is good reason to believe that if deployed they will be of no effect. The granting of an injunction is more likely to be proportionate where that is the case than where it is not.

(3) The greater the adverse environmental impact of the breach or anticipated breach of planning law sought to be restrained, the greater will be the case for granting an injunction. The planning history of the site is likely to be a relevant factor.

(4) Before deciding to apply for an injunction under section 187 B, it is not sufficient for the local planning authority to conclude that it is the only means of preventing an actual or anticipated breach of planning law. It is in addition necessary for it to consider fully whether there are any countervailing issues of hardship for the defendant flowing from the grant of an injunction and whether the merits of an injunction outweigh any such hardship. Where it has done so and concluded that it is nonetheless necessary or expedient to seek relief an injunction is more likely to be granted since the court must accord respect to the balance which the local planning authority, as the democratically accountable body, has struck between public and private interests. Where it has not done so, an injunction is less likely to be granted.

(5) The discretion under section 187 B is a wide one. At its heart, in a case where hardship is alleged, lies what may be a delicate balancing exercise between the public interest in upholding planning law and protecting the environment and the private interests of the defendant in avoiding undue hardship as a result of being forced, under threat of potential imprisonment, to leave his place of residence together with his family.

(6) In weighing this balance the court is not bound by the balance struck by the local authority, assuming that it weighed these two factors in the balance. It is not the function of the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. The court is as well placed as the local planning authority to decide whether the considerations relating to what Lord Hutton called the human factor outweigh purely planning considerations.

(7) An injunction should only be granted if, in the judgment of the court, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and to the personal situation of and any hardship to the defendants and his family, it would be a proportionate remedy. Proportionality requires that an injunction should not impose an excessive burden on the individual whose private interests are at stake, in the case of a gipsy his private life and home and the retention of his ethnic identity.

(8) The following factors may point in favour of granting an injunction: where there has been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendant or evidence that he has played the system by wilfully exploiting every opportunity for prevarication and delay; where conventional enforcement measures have failed over a prolonged period to remedy the breach by the defendant of planning control; where there is some urgency in the situation which is sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public; where there is clear evidence of suitable alternative accommodation for the defendant and his family.

(9) The following factors may point against granting an injunction: where there has not been a history of prolonged breach of planning control, persistent non-compliance or playing of the system by wilfully exploiting every opportunity for prevarication and delay by the defendant; where conventional enforcement measures against the defendant have not been taken and found wanting; where there is no urgency in the situation (for example because of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public) which is sufficient to justify the compulsory removal of the defendant and his family from a site where they are residing; where the local planning authority failed fully or at all to consider or weigh in the balance the personal circumstances of the defendant and his family and any hardship which might flow from the grant of an injunction; where there is a real prospect of a successful appeal against the refusal of planning permission; where the effect of forcing the defendant and his family to leave the site would or might be to cause hardship or danger to the defendant and his family; where there is no or no clear evidence of suitable alternative accommodation for the defendant and his family.

(10) Unless at the time of giving his/her judgment, the judge would be prepared if necessary to contemplate sending the defendant(s) to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. The court would not be prepared to do so without considering all questions of hardship to the defendant and his family including the availability of suitable alternative accommodation if required to move. The House of Lords did not explicitly identify what other factors the court can or should take into account in considering whether it would be prepared to contemplate sending the defendant(s) to prison in the event of a subsequent breach. In my judgment the court can and should take into account all matters which are material in the particular circumstances of the case. These could include the circumstances leading up to and reasons for the actual or anticipated breach of planning law, the defendant(s)’ record of compliance with or defiance of planning law, the extent and gravity of any environmental harm caused or likely to be caused by the breach of planning law sought to be restrained and the prospects of success of any outstanding or proposed application for planning permission or appeal against refusal of planning permission.

(11) In particular the more flagrant and persistent has been the record of ignoring or defying enforcement notices or prosecutions, the greater is likely to be the case for granting an injunction. The less serious and the less persistent such a record has been, the weaker is likely to be the case for granting an injunction.

(12) It is not the function of the Court to second guess or go behind planning decisions already taken by the local planning authority or the Secretary of State on the advice of an inspector.

(13) It is, however, legitimate for the Court when considering whether it is just and convenient to exercise the discretion to grant an injunction and if so when and on what terms to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful.

(14) In such a case the court has the power to decide to adjourn the application for an injunction until after the result of a planning appeal is known. In my judgment it also has the power to suspend any injunction granted until and unless planning permission is refused or an appeal is unsuccessful. Alternatively in an appropriate case in my view the Court can take its conclusion that there is a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction at that time. It may be a factor contributing to a decision that the Court would not currently be prepared to contemplate send the defendant to prison in the event of breach of an injunction; or it may be that the court considers that one of the factors outweighing the detriment to the environment and/or the rule of law inherent in refusing an injunction is the hardship or detriment which might flow from requiring the defendant and his family to leave the site with all the consequent disruption to his family life in circumstances where the outcome of an application for planning permission or an appeal against its refusal might hold him entitled to reside on the site and/or carry on the conduct sought to be restrained.

The Court found that there was a real prospect that the planning appeal would be successful. In addition the Court considered that the personal situation of the occupiers raised real hardship if an injunction was granted. In the Court’s view this was not a ruthless, cynical action. There was a lack of urgency suggested by the previous failure to enforce the notices and the Court found that it would not, on the basis of the evidence, be prepared to send the Defendants to prison on breach of a putative injunction. In view of all of this, the proper course was to exercise the discretion to decline to make an injunction order. An adjournment was considered but rejected as, if the planning appeal was successful there would be no purpose, and if it was not, then:

It may be that circumstances will change in the future, either in relation to issues of hardship or in relation to the availability of suitable alternative accommodation, or in relation to environmental damage or in relation to the planning regime or in some other respect in such a way as to lead the Council to the view that the balance between hardship on the one hand and environmental damage and upholding planning law on the other justifies a further application. In that event the Council would not be prevented by the terms of this judgment or my order from making a renewed application. I do not encourage it to do so. That would be a matter for the Council.

Thanks to Chris Johnson of Community Law Partnership for the nudge.

This is an example of a post Doherty public law defence at first hearing, and one that succeeded where an alternative defence of estoppel didn’t.

Two Traveller families, the Joyces and the McDonaghs, had been camped on the car park at Swansea Enterprise Park, on various parts over the years (about 20). The car park was used as an overflow for events at the nearby Liberty Stadium. The Council had the freehold for the Enterprise Park. In May 2007, the Council sought to get the Joyces and McDonaghs to move from the patch they were occupying as it was likely to be needed for forthcoming events. There was no space at the one authorised site.

Following a meeting in May 2007 with Councillor Hague of Swansea Council, the Joyces moved to another, separate part of the Park. The McDonaghs were to follow. The Council put up fencing, levelled the ground, provided keys for the entrance barrier, arranged for rubbish collection and resurfaced parts of this area.

What was said at the meeting with Councillor Hague and its import was contested, and we’ll come back to this. However, the Council brought possession proceedings in July 2007 for the whole of the retail park area, including the part on which the Joyces and McDonaghs were, and against various named defendants, including these two families, and un-named others.

The Joyces and McDonaghs defended the claim on the grounds that:
1. The defendants have moved to their present location and expended time and money on improving it and otherwise acted to their detriment in reliance on a promise or assurance given in May 2007 by Councillor Hague that they could stay there for some 6-9 months, until a permanent site was available or a planning decision had been reached on whether to grant permission. Councillor Hague also raised the possibility that the present site may become permanent. This gave rise to an estoppel on the Council seeking possession.

2. The same grounds gave rise to a legitimate expectation that they would not be evicted before a suitable site was found, which would likely have succeeded as a JR ground, so can be relied upon as a defence in possession proceedings.

3. In seeking possession, the council was acting as no reasonable authority would do – the irrationality defence.

4. It is was not admitted that the Council had the necessary consent of the leaseholders to bring proceedings on their behalf.

The issue of what was said by Councillor Hague, whether he had actual or apparent authority to make such a promise and what works had been carried out by the Council in May 2007 was determined at a preliminary hearing. At that hearing it was determined that Councillor Hague had said that the families would be there for 6-9 months, that toilet and washing facilities, electricity, fencing and hardcore would be arranged and he would see what he could do about longer term permission. Councillor Hague had the apparent authority of the Council to say this (although not the actual authority). Some of the works had been carried out.

After the preliminary hearing, there was a period for settlement discussions on a consent order. This failed.

At the final hearing HHJ Jarman QC sitting as an additional judge of the Chancey Division held:

i) A meeting of the cabinet of the Council held in June 20077, at which the decision to seek possession had been made, had not been informed of the May agreement and the promises made with the apparent authority of the Council. It did not take these into account in its considerations. This failure was material to the decision to seek possession. No reasonable council could come to such a decision without having regard and giving due weight to each of the terms of the May agreement.

Following Kay v Lambeth LBC [2006] HLR 570, the council’s decision is challengable on grounds that it was a decision which no reasonable person would consider justifiable, as ‘more fully explained’ by Lord Hope in Doherty v Birmingham CC [2008] 3 WLR 636. The focus in this case was on the processes leading to the decision to seek possession. The Council’s right to seek possession was undoubted and the common law must be taken as compatible with the Human Rights Act 1988.

What weight the Council ought to have given to the May agreement in reaching its decision was not for the Court to say, but it ought to have been considered.

ii) On legitimate expectation, while there was detrimental reliance, it must be seen in the context of the limited promises in the May agreement and the different view of other councillors. A legitimate expectation would not make an eviction now, 22 months later, unjust.

iii) The same is true of the estoppel argument, for the same reasons. It would not succeed.

iv) There was evidence of the consent of the lessees.

Various other points from the Defendants on regard to policy and forthcoming guidance didn’t get anywhere.

Possession order refused in respect of the part of the Park covered by the May agreement as against the Joyces and McDonaghs.

With thanks to our friends at the Community Law Partnership/Travellers Advice Team for telling us about the case and for the transcripts.

The family involved had srong personal reasons involving the medical condition of a child for remaining in the area. Planning permission was refused on the basis that it was against the regional development plan. The inspector allowed the appeal with strict conditions on the basis of the exceptional conditions. South Cambs challenged on the basis, amongst others, that the Inspector had failed to seek evidence on the availibility of alternative sites. At JR, South Cambs lost on all counts, but an appeal was eventually allowed on the limited point:

In seeking to determine the availability of alternative sites for residential gypsy use, there is no requirement in planning policy or case law for an applicant to prove that no other sites are available or that particular needs could not be met from another site.

South Cambs relied on a number of Green Belt cases, and then suggested Judge Gilbart QC’s comments in McCarthy v Secretary of State for Communities and Local Government [2006] EWCA (Admin) 3287 set a precedent. The Court of Appeal held otherwise, noting that the passage at issue was if anything, a restatement of the balancing of issues, not a setting of a necessary hurdle. The Green Belt cases involved other priorities so were not on point.

Lord Justice Scott Baker at para 36, states

In my judgment the law is clear. The position is governed by s38(6) of the 2004 Act. The Development Plan is determinative unless material considerations indicate otherwise. There is no burden of proof on anyone. It is a matter for the planning authority, or in this case the inspector, to decide what are the material considerations and, having done so, to give each of them such weight as she considered appropriate. That, so it seems to me, is a matter of planning judgment.

South Cambs sought to broaden the appeal, arguing the Inspector’s reasons for her decision were inadequate. This was dismissed in view of the High Court judgment, which dealt with the point fully.