Tag Archive for 'public law defence'

Continued incompatibility

Published
by
NL
on 11/02/2010
in Housing law - All, Licences and occupiers and Possession
. 15 Comments

Readers with a long memory (relative to the general standards of the 21st century) will recall that there was a finding in Connors v UK (2004) that the law that meant that travellers on Local Authority sites could be evicted without the court overseeing procedural safeguards was declared to be in breach of the European Convention on Human Rights.

Such readers will no doubt also recall that the reason Mr Doherty in Doherty v Birmingham CC (July 2008) was refused a declaration of incompatibility (gateway A) by the House of Lords was solely because the objectionable legislation was to be replaced through the Housing and Regeneration bill, as it then was. And lo, the Housing And Regeneration Act 2008 was passed, and there was a great waiting for a statutory instrument to bring local authority sites under the provisions of the Mobile Homes Act 1983 as s.318 Housing and Regeneration Act 2008 allowed.

We have now been informed that a simple statutory instrument apparently can’t be found parliamentary time before the election, which is to be in May or June 2010 at the latest. And so, and here I quote a DCLG person, “The work that has been done [on implementing s.318 HRA 2008] will be put aside pending decisions by ministers following the election, whenever that takes place”.

So, the UK remains in breach, as found in Connors v UK, and it looks like their Lordships in Doherty were perhaps a little too trusting in the timescale for implementation of the HRA. Meanwhile, travellers in local authority sites remain without any procedural safeguards on possession actions. One can be fairly sure that implementing s.318 will not be too high on the agenda of our new, or indeed our second (fourth?) hand, overlords after the election. Echoes of Morris?

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Lord Neuberger on housing law

Published
by
NL
on 01/12/2009
in Housing law - All, Licences and occupiers, Possession and assured-tenancy
. 6 Comments

The UKSC – an excellent blog (albeit technically and practically horrible to use) which is dedicated to the doings and ins and outs of the Supreme Court – has a interesting post on Lord Neuberger’s keynote to the SHLA conference. I wonder how the SHLA audience reacted to his observations that Weaver “leaves us with the position that RSLs are likely to be open to HRA challenges when they terminate tenancies.”

Also of note, Lord Neuberger observes:

that the decision of the Court of Human Rights in Cosic v Croatia appears to be inconsistent with the most recent House of Lords authority, Doherty v Birmingham City Council [2008] UKHL 57 and seems to have put the onus back on the English courts to ensure that Article 8 is properly taken into account in possession proceedings.  In this regard, he refers to the recent interesting article on the subject by HHJ (Nic) Madge – “Article 8 – la lutta continua”

Lord Neuberger would seem to be suggesting that the Art 8 and proportionality issue will be heard in the Supreme Court, despite the recent refusal of permission in Central Bedfordshire. While someof us may think this is inevitable sooner or later, this acknowledgment of the issue is very interesting indeed.

Mind you, on reading, and with all due respect to both HHJ Madge and Lord Neuberger, and naturally all due modesty, it may be that our most recent post on the Quarter pounder or Royale question by Dave is a tad more up to date. I’ve also just seen that there is also an overview, although lacking detail, in the 1 December 2009 Solicitors Journal here (currently available without subscription, I think).

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Central Beds v Taylor – Supreme Court permission refused

Published
by
NL
on 09/11/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 2 Comments

Central Bedfordshire Council v Taylor & Ors

We’ve just heard that permission to appeal to the Supreme Court in Central Beds v Taylor has been refused. Our note of the Court of Appeal case is here. This was surely a chance for the Supreme Court to revisit Kay and Doherty in the light of the Connors and after ECtHR decisions, aka the great quarter pounder v Royale with cheese issue. Lords Walker, Mance and Collins held that:

“the application did not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time.”

One now wonders how the application for permission in Manchester CC v Pinnock will fare? (our note on Pinnock here) Particularly as a host of Court of Appeal (and possibly County Court) cases are stayed pending Pinnock.

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Of Car Parks, Caravans and Councillor's commitments

Published
by
NL
on 13/09/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

The City & Council of Swansea v Christine Joyce (and others) Cardiff District Registry, Chancery Division 31 March 2009 7CF30099

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.

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Not seriously arguable

Published
by
NL
on 13/07/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

Another case on post-Doherty public law defences was handed down on Friday. Stokes v London Borough of Brent [2009] EWHC 1426 (QB) concerned an appeal summary possession order made against a traveller in unlicenced occupation of a plot on a Brent traveller’s site.

Ms Stokes had lived at her mother’s plot on the site and had been on the waiting list. She moved onto a plot which contained a site office on part of it, but was not used as a caravan site, in about January 2007. In April 2007 Brent wrote to say that her trespass would not be tolerated. However, in October 2007, Brent wrote to say that she was trespassing, but in view of the birth of her fourth child, her occupation would be tolerated for 3 months. In April 2008, Brent wrote that her occupation was no longer tolerated and possession would be required in 3 weeks. A couple of weeks later in May 2008 possession proceedings were issued. Ms Stokes filed a public law defence, and an Article 8 defence. The court below found there was no defence with a seriously arguable prospect of success and made a summary possession order.

Ms Stokes appealed, arguing that:
The Judge had failed to take into account personal circumstances:

  • That she had lived on the site almost all her life;
  • She had nowhere else to station the caravan lawfully and were homeless for the purposes of Housing Act 1996;
  • Brent had not offered suitable alternative accommodation;
  • An offer of another pitch was unsuitable due to dispute between two groups of residents (although Brent had not been informed of this reason for refusal prior to beginning proceedings);
  • Ms Stokes’ children had disabilities which had not been addressed by Brent;
  • The occupation had not caused a nuisance to others;
  • The decision to seek possession was solely on Brent’s desire to expand the office space, rather than accommodate others, but no good reason had been made for expanding the office space.

Also, Brent had failed to

  • Take all reasonable steps to search for an alternative site;
  • Search for other temporary sites;
  • Have regard to the guidance in Circular 18/94.

The judge below had failed to give adequate reasons for dismissing the defence.

In addition, Ms Stokes argued Article 8.

The appeal was made before the House of Lords judgment in Doherty was handed down and was amended as a result. After hearing but before judgment, Doran v Liverpool was handed down by the Court of Appeal. So the judgment was in some ways a moving target.

Mr Justice King held:

1. The decision that must be considered is the decision of the authority to seek possession on the basis of the facts available to it at that time, not that have subsequently emerged.

2. This is a public law issue. Doherty makes no difference to Kay or Qazi on the availability of a human rights defence (unless ‘gateway A’ incompatibility).

3.The issue is whether a public law defence is ’seriously arguable’, not just arguable.

4. Even taking the expanded sense of what can be raised in a public law defence, via Doherty (and Doran), this was not a (Kay) exceptional case. Unlike Connors or Kay, Ms Stokes had not lawfully lived on the pitch for a number of years. Eviction was sought after another pitch had been offered but refused, with no reason given at the time. It would be bad law to decide that the eviction would only be erited if it ws to accommodate another family.

5. The duty to offer suitable alternative accommodation was aHousing Act 1996 Part VII issue and not relevant to the present proceedings. Submissions on this issue sounded in part like a premature challenge to a homeless decision. R(McCarthy) v Basildon DC [2008] EWHC 987 (Admin) distinguished on the basis of factual differences. There was nothing to suggest that Brent was not fully aware when it wrote the letter ending the ‘tolerated’ occupation that a homeless application might be made. The letter advised on making such an application. [In any event, R(McCarthy) was overturned on appeal.]

6. While the judgment below was cursory in parts, the judge had correctly addressed himself as to the ’seriously arguable’ point and clearly had in mind all the pleaded circumstances in finding that there was no evidence to suggest a prima facie case that the Authority had failed in its duties. Additionally, the appellant had failed to establish that the court below was wrong on the seriously arguable point.

7. The argument that the Authority had failed to fulfill its statutory duty by taking into account relevant considerations fell in the same way. There had to be some evidence that the Authority had not complied with the duties, or relevant considerations ignored. Otherwise, it was simply an attempt to reverse the burden of proof onto the Claimant. A seriously arguable case cannot be made out simply by assertion of potentially material failures.

8. The appellant’s related point on procedural unfairness by failing to give directions on disclosure – where disclosure would have been ordered in a judicial review – did not stand. This was not, unlike the subject of a judicial review, a decision for which the decision maker was obliged to give reasons. The Judicial Review Protocol is not supposed to be method of pre-action fact finding or obligatory disclosure. There is no requirement to give reasons in a possession claim, and, even in a judicial review, it would be for the applicant to demonstrate the improper exercise of powers by the authority. There may be exceptional cases where the failure to give reasons may give rise to the inference of the improper use of powers, e.g. where the circumstances are such that the decision appears to be one that no reasonable person would consider justifiable. This was not such a case.

Appeal dismissed.

Comment

As well as the view on Doherty, which is broadly in line with the limiting decisions in Doran, Central Bedfordshire v Taylor and McGlynn v Hatfield, and also follows the suggestion that period of occupation is the key ‘personal circumstance’, there is an important issue here on evidence of failure to take into account relevant considerations. At such an early stage in possession proceedings, this can, of course, be very hard to evidence. Often, all there is a lack of any indication that the matters have been considered. What this judgment suggests is that this may well not be enough. But the Court asking for positive evidence of the failure, while restricting or denying any access to disclosure orders, puts the Defendant in a very difficult position indeed. (That is unless she or he has been lucky enough to receive a letter from the authority stating ‘we have wilfully and without good reason failed to consider X’, which is, on the whole, rare).

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Kay re-stated

Published
by
NL
on 23/06/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 1 Comment

And the question of what Doherty actually means rumbles on.

Central Bedfordshire Council v Taylor & Ors [2009] EWCA Civ 613 was the Court of Appeal hearing of an appeal from a Circuit Judge’s decision to make an outright possession order and, in particular, to refuse to make findings of fact as a basis for an appeal based on Article 6. The appeal had a complicated history, the original decision was made before Doherty in the Lords was handed down and the grounds for appeal prepared in anticipation of the Lords decision, then revised afterwards from being based in the minority decision in Kay to argue a Doherty gateway B public law basis.

Since then, the Court of Appeal has decided on Doran v Liverpool CC [2009] EWCA Civ 146 (our report) and McGlynn v Welwyn Hatfield BC [2009] EWCA Civ 285 (our report), further shaping the landscape.

The facts in the case were not dissimilar to Kay. In 1993, Bedfordshire CC (as was) had leased land and dwellings to Luton for 3 years with a sublease to a housing association for assured shorthold tenancies. Lengthy negotiations over a new lease fell through and in 2007 Bedfrdshire commenced possession proceedings. Some occupants of the properties defended on the basis interference with Article 8 rights such that it was a breach of Art 6 to bring possession proceedings. The dismissal of this defence was what was appealed.

The issue before the Court of Appeal was given as how should County Court judges approach situations similar to Kay, post Doherty. Has the position changed such as to afford a possible defence to such a situation. Is it arguable that circumstances were such as to impose on the Council a duty to consider the personal circumstances of the appellants? And is the test something like Wednesbury rationality or something wider?

In the main judgment, Waller LJ considers Doran and McGlynn, in particular in view of their holding that a public law consideration wider than the Wednesbury rationality test was appropriate and, in McGlynn, an arguable defence based on the Council’s failure to carry out reasonable further investigations. But these cases concerned termination of a lease or licence (McGlynn), or statutory duties (Doran, Doherty). In this case, as in Kay, the occupants are trespassers and the Council has an undoubted right to possession.

The question is therefore has the decision in Doherty impacted on Kay. Waller LJ adopts Toulson LJ’s analysis of the decisions in Doherty set out at paras 15-22 and 48-52 of Doran, to the effect that the public law defence is not to be confined to traditional Wednesbury grounds – ‘there is no formulaic or formalistic restriction of the factors which may be relied on’ and personal circumstances are not necessarily irrelevant. However, this does not address the situation where the facts are so close to Kay.

The Council submitted that Doherty did not suggest that the decision in Kay, on the facts, would have been any different. In regard to trespassers, an authority with immediate right to decision had no obligation to consider the personal circumstances of the occupants. Even on the view of the minority in Kay, it was unarguable that a council acting reasonably would have done otherwise than seek possession.

The Secretary of State, intervening, suggested that the matter should be remitted to the County Court so that the appellants’ arguments could be fully considered and the appropriate facts found. However, it would be wrong to remit if it would serve no purpose or, if there was to be a remittance, without guidance.

For Waller LJ, Lord Hope’s ‘further explanation’ in Doherty of his statement of gateway b in Kay is noted, but his endorsement of the Qazi principle that ‘a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances should be struck out’ at para 42 of Doherty is to be taken as saying that Kay would still be decided the same way. Lord Hope’s qualification of that principle must be seen in the context of the facts and law of Doherty.

While the re-interpretation of para 110 does have general application in its loosening of the restrictions on the factors able to be considered in review, Doran itself concerned similar facts to Doherty. Where Waller LJ differs from the view of Toulson LJ in Doran is on Toulson’ holding that the facts at issue were those at the point of the original decision and indeed that the decision to seek possession is the relevant decision to challenge. Waller LJ instead holds that a council may make a series of decisions as facts become known to it, up to the point of the hearing itself. If any of those decisions was shown to be ‘unreasonable’ it could be attacked.

But in the present case, this makes little difference. Where the facts are similar to Kay, a court, post-Doherty, will actually be in much the same position as it was even before the convention became law [para 42].

Waller LJ accepts that whether the decision of a local authority is ‘reasonable’ post-Doherty goes beyond the question of what is rational. A local authority should take account of the personal circumstances of an occupier known to it. But it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to Kay, where, as here, the occupants are not initially known to the authority or have any relation with it. The law allows for a period of time to bring the possession order into effect and this is sufficient.

Even where the local authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession [para 45] as the authority has an absolute right to possession. Personal circumstances are only relevant to postponing execution. There was therefore no reason to remit the case to the County Court. Appeal dismissed.

Lloyd LJ concurs. The proper decision for review in this case was the decision to pres for trial of the possession claim, once the circumstances of the occupiers had become known to authority. Accepting for the moment the appellants’ account of the facts and their circumstances, it would still make no difference. Following Lord Bingham at para 47 of Kay (and Lord Bingham was in the minority) where the pleaded facts give no special claim to remain, there is no duty to accommodate and the authority has an unqualified right to possession, possession orders would necessarily be made. There was no need to remit in this case and appeal dismissed.

Richards LJ concurred.

So there we are, for the moment at least. Post-Doherty defences do not apply to a Kay situation, where the local authority (or public body, including RSLs, post Weaver) does not have any relation to the occupiers, the occupiers are trespassers and the authority has an unqualified right to possession. Unlike termination of a lease or licence, or where a statutory duty is involved, the defence cannot succeed, with the possible exception, pace Lord Bingham, of where the facts give rise to a special claim to remain.

Now, what would this mean for ‘failed successor’ cases? McCann involved termination of a tenancy and a case like that would clearly potentially have a public law defence in Doherty form, but a failed successor? Or ’successor’ to a tolerated trespasser (prior to 20 May 2009)? We’ll have to see, but the argument is surely that Kay would apply, absent some particularly egregious behaviour by the authority.

My guess is that this will be headed to the Supreme Court, but for the moment, public law defences would seem limited to those who have or had some contractural or statutory relation to the authority in their accommodation.

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O(L)ivers Army

Published
by
J
on 06/05/2009
in FLW case note, Housing law - All and Possession
. 2 Comments

Defence Estates v L and another, High Court (Administrative Court, Collins J, 5.5.09) [2009] All ER (D) 20 (May) is – potentially – quite an important case on the ongoing Qazi/Kay/Doherty/Connors/McCann/Cosic debate about the role of Article 8 in possession proceedings.

The only report of the judgement is from the All ER note, which isn’t a particularly well written document. Anyone involved in the case (Stephen Cottle – I’m looking at you) who wants to correct / add to what I’ve written here is more than welcome to contact the NL team.

L was married to an army officer. In 1999 L’s husband resigned from the army and, as an act of compassion, the army arranged for temporary accommodation for L, her two daughters and grandson (I’m unsure as to whether or not L was accommodated by the army prior to 1999).

In due course, Defence Estates (a company responsible for managing the MoD housing stock) informed L that it intended to seek possession. L appears to have approached the relevant local authority, made a Part 7 Housing Act 1996 application, but declined the property which was subsequently offered by the LA. A notice to quit was served and possession proceedings were issued. A possession order was (apparently) made, but the court refused to issue a warrant.

A further NTQ was served in November 2005. L argued that any possession order would violate her rights under Art 8. The claim was transfered into the Administrative Court where it was heard by Collins J (the lead Judge of the Administrative Court).

Mr Justice Collins granted a possession order. There was no obligation on the claimant to make enquiries as to the personal circumstances of L. It was clear that L was not entitled to remain in occupation forever. The claimant was obliged to assist in finding alternative accommodation and the LA had to carry out a lawful process under Part 7, Housing Act 1996. The needs of the MoD outweighed any rights that L might have under Art 8.

Apparently, his Lordship considered Qazi, Doherty and Doran. His reasoning will be worth looking at once it becomes available. Once that happens, we’ll do a more detailed post.

[Edit - 12.5.09 - the Garden Court Bulletin has a short, but slightly different, case report, availabe here]

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Public Law Defence – an arguable case

Published
by
NL
on 01/04/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ 285 was an appeal of a summary possession that had been stayed pending Doherty in the Lords.

Mr McGlynn was granted a non-secure tenancy by Welwyn in 2000, in pursuance of homelessness obligations under Part VII HA 1996. The tenancy was therefore terminable by Notice to Quit and Welwyn served NTQ in 2004 and possession proceedings in April 2005. Summary possession followed in December 2005, set aside on appeal to CJ in August 2006 on the basis that it was seriously arguable that the LA had exercised its powers improperly. At renewed hearing before a DJ, the Defendant argued that the Council had improperly exercised its powers in seeking the possession order (not in serving the NTQ, which was not challenged). The DJ found there was not a seriously arguable defence and made the possession order. The appeal was then to the Court of Appeal.

The appeal was thus primarily on the issue of whether Mr McGlynn had a seriously arguable defence on public law grounds.

Some brief factual context. There had been allegations of nuisance against the Defendant, from a sole source. This was the basis of the NTQ. Shortly after the NTQ, the Council wrote to Mr McGlynn’s drug caseworker, who had objected to the allegations, as follows:

We have received a number of complaints regarding visitors to Mr McGlynn’s property and also about his own behaviour. The complainant is aware that their evidence will be needed in court and they are willing to assist the council and have agreed to give evidence in court if needed. Should the council be required to apply for a Possession Hearing Mr McGlynn will have the opportunity to offer a defence, either personally or via a Solicitor, to the Court.

The Local Authority does not take action against a person’s tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality. The Local Authority also liaises closely with the Police in relation to complaints received and they have confirmed that they have received a number of calls regarding the anti-social behaviour caused by either Mr McGlynn and/or visitors to his property.

Mr McGlynn has a non-secure tenancy that can be brought to an end by serving a Notice to Quit. As a Notice to Quit was served on 28 April 2004, Mr McGlynn no longer holds a current tenancy with Welwyn Hatfield Council. However, we would need to apply to the Court for vacant possession of the property.

If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft…

If you require any further information, please do not hesitate to contact me on the above number. I am, of course, willing to discuss any matter directly with Mr McGlynn.

The Council’s initial claim was expressly on the grounds of the original alleged nuisance and further complaints (also from the same sole source). Mr McGlynn had initially defended on the basis that the allegations weren’t true. After an adjourned hearing, the Council proceeded solely on the basis that an NTQ had been served and on this ground the initial possession order given. The appeal to the CJ, which was heard shortly after Kay v Lambeth in the Lords, was allowed on the basis that, given the Council’s letter, quoted above, it was seriously arguable that the Council had acted in a way no reasonable person would consider justifiable. The directions for re-hearing included one for the Council to serve further evidence to show why the Council was satisfied that the nuisance continued and to show how they had given the appellant an opportunity to make representations prior to the issue of the claim. No evidence on these points was forthcoming. Despite this the DJ made a PO at the rehearing of the claim, and refused to consider that Mr McGlynn had an arguable defence.

So to the Court of Appeal.

Jan Luba QC for Mr McGlynn requested that the grounds be amended to include a challenge to the lawfulness of the NTQ. This was refused as the point had not been raised at all below, where the lawfulness of the NTQ was admitted. He further requested an amendment to include argument that the procedure adopted by the Council failed to provide the necessary procedural safeguards of Mr McGlynn’s Art 8 rights – the McCann/Cosic line – albeit that this could only be argued if or when the case reached the Lords.

Aside from these requests, Mr McGlynn’s main argument was that this was a ‘gateway b’ challenge, not confined to wednesbury unreasonableness. The legislative schema was comparable to that in Kay and in Doherty, but distinct from that in Doran, as there was no possibility of suspending execution of the possession order, as in the latter.

The DJ in the rehearing had erred in law by failing to consider the Council’s letter (above) as a whole, which amounted to a statement of policy not to take possession action unless satisfied of breach of tenancy causing nuisance to others and stating that Mr McGlynn would have the opportunity to challenge such a conclusion. The Council may have answers to these points, but it had failed to produce them, despite the CJ’s direction. The appellant therefore did have a seriously arguable public law defence and the DJ was wrong to conclude otherwise.

The Council argued that a reasonable council was not required to conduct an investigation into the truth of allegations of nuisance before deciding that it was appropriate to bring proceedings. This would extend to non-secure tenants a security of tenure Parliament had chosen to exclude. The DJ was right was right in his decision. The Council had ample ground to believe that there were further breaches and the Defendant’s initial defence gave no grounds for seriously believing otherwise.

The Court of Appeal, in a sole judgment, held:

This was an unusual case. The Council’s letter contained a statement of policy that the Council did not take possession action unless satisfied of significant breach. Given the time between NTQ and issue of claim (about a year), it was arguable that a reasonable council would not have issued proceedings without being satisfied that there had been some further significant breach.

To be so satisfied did not require a quasi judicial investigation to be conducted, but the question before the Court was whether it was seriously arguable that the Council did not do enough to satisfy itself of significant further breach.

The further evidence presented by the Council after the appeal to the CJ, somewhat surprisingly, did not provide the information to support its assertion that it had done enough. There was no evidence of the minutes of any panel considering the decision to issue proceedings. there was no evidence of consideration of the further complaints – did they all come from a single person and had they ceased when that person was rehoused, as asserted by the Defendant? There was no evidence as to whether it was assumed by the Council that the possession proceedings would give Mr McGlynn the chance to answer the allegations (as they had issued on grounds of nuisance, not of summary possession based on NTQ).

On the basis of the paucity of evidence provided by the Council about the decisonmaking process, the DJ had clearly taken too narrow a view and was wrong to decide that the public law defence was not seriously arguable.

Appeal allowed. On that basis, there was no need for either of the amendments sought by Jan Luba QC.

Now this is indeed useful. Granted the Council’s letter is the ‘unusual’ element in this case – particularly as it is taken as setting out a policy that the Council failed to provide evidence that it had followed, but this also involves a bog-standard non-secure tenancy, NTQ and summary possession procedure.

The Council’s ’statement of policy’ and an apparent failure to follow it (or arguable failure) is taken by the Court of Appeal as an unproblematic gateway b matter, with a clearly arguable public law defence. The Court is untroubled by the Council’s argument that it is not required to conduct a quasi judicial inquiry, ‘consideration’ such that a reasonable council would be satisfied of a further breach is not taken to be the same level of inquiry and not an additional level of securoty of tenure above that given in statute. Useful material there.

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The difference in Doherty?

Published
by
NL
on 04/03/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 7 Comments

A Court of Appeal judgment expressly dealing with a post Doherty public law defence to termination of licence by Notice to Quit was handed down today. Doran v Liverpool City Council [2009] EWCA Civ 146 concerned a possession claim for a plot on a local authority travellers’ site.

Liverpool served Notice to Quit on the basis of alleged breach of licence conditions by ASB abd other breaches. The claim was defended on the basis that the allegations were denied or contested and that there was a public law defence to the decision to issue Notice to Quit. At County Court, summary judgment was granted, abeit that the judgment isn’t entirely clear on why the defence was rejected. Execution was stayed pending appeal.

At the Court of Appeal, the issue was whether the previous court of appeal judgment in Smith v Evans [2007] EWCA Civ 1318 (actually Smith v Buckland, but continually cited here as Evans) could be considered as still standing after the decisions in Doherty v Birmingham City Council [2008] UKHL 57 (our post on Doherty here).

Unlike Kay v Lambeth and Connors, both Smith v Evans and the present case involved proceedings brought after s.211 of the Housing Act 2004 came into effect, amending s.4 Caravan Sites Act 1968 to remove the exemption of local authorities from the court’s power to suspend execution of a possession order,. So although possession remained summary, execution could be suspended on terms and the terms later varied. It was common ground that Kay Gateway A – the incompatibility argument – was not engaged. The issue therefore was the extent and nature of the public law defence post-Doherty.

Smith v Evans (or Smith v Buckland) had found that ‘the public law defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it’ (Dyson LJ at para 40). Th Court in Smith also found that the amendment to s.4 Caravan Sites Act was significant as it meant no eviction without judicial scrutiny.

Here Mrs Doran, via Mr Berkley QC, argued that:

Gateway (b) had been widened in Doherty such that the personal circumstances and history of occupation of Mrs Doran were factors that should be considered both the the Council in deciding to issue an NTQ and by the Court in considering whether the Council’s decision was one that a reasonable person would consider justified. On the facts of Mrs Doran’s circumstances there was an arguable public law defence and the matter should be remitted to the County Court to hear the defence once the summary judgment was set aside. He also argued that there would be breaches of articles 6, 8 and/or 14 if the matter were not remitted.

For Liverpool, Mr Bartley Jones QC submitted that Doherty made no difference to the law in a case under the amended Caravans Act, as held in Smith v Evans. He also argued that the facts in Mrs Doran’s case did not give rise to an arguable defence.

The intervening Secretary of State for Communities and Local Government, by Mr Stilitz, supported the position of the council.

So the Court considered Doherty and the gateway (b) defence.

When the discussion was of the Caravan Sites Act prior to the Housing Act 2004 amendment (here called phase 1), Counsel for Liverpool, Mrs Doran and the intervening Secretary of State all agreed that Doherty had widened gateway (b), in a way that dismayed the court. In fact Counsel for Liverpool appeared to take the widest view: [para 46 Toulson LJ]

Mr Bartley Jones submitted that it gave rise to a new form of judicial review of uncertain dimensions, wider than judicial review as ordinarily understood but at the same time not extending to a full application of the Convention. Mr Stilitz for the Secretary of State submitted that the effect of the clarification and modification in Doherty was far more limited. It was a modest development in the elucidation of domestic public law principles. Mr Berkley took an intermediate position, submitting that the effect was less dramatic than was suggested by Mr Bartley Jones but more significant than was suggested by Mr Stilitz. Counsel were united in the view that the decision had created a new battleground area (to follow the analogy used by Lord Mance in Doherty at para 125) and predicted that there would inevitably be much argument about the scope of the modification of gateway (b) in future cases in the county court and on appeal. That is a bleak prospect. The last thing that will help councils or caravan dwellers is further complexity or uncertainty.

The Court of Appeal, in Toulson LJ’s sole judgment, finds a twofold effect in Doherty.

1. There is no formulaic restriction on the factors that may be relied upon in support of a gateway (b) public law defence. Factors are not automatically irrelevant because they include personal circumstances, like length of occupation, or any steps to provide an alternative taken by the Council. [para 49]

2. The question whether the Council’s decision was one that no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law and not through the lens of the Convention (ECHR). [para 50]

These two principles are not in conflict and should be applied without further complexity.

But, common law principles are not frozen [para 52]:

Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment.

When it came to the amended Act (‘phase 2′), the parties’ positions differed further, with Liverpool and the SoS arguing that the matters to be taken into account in a gateway (b) challenge under phase 2 should be more restricted, on the basis that Doherty did not overrule Smith v Evans (or Buckland) and in any case Doherty only dealt with phase 1, leaving Kay as authority for phase 2. Toulson LJ gave that short shrift. All that was clarified and to some degree modified in Doherty was the range of factors to be taken into account in ‘conventional judicial review’, so no change to the principle in Kay. Besides, there was no justification for having a narrower range of factors for consideration in case after the amendment than before. It would just make things more complex.

However, the existence of the Court’s powers of suspension under s.4(A) would be a factor in considering whether the Council had acted in a manner no reasonable person would have done. The Court finds a parallel with introductory tenancies (also lasting a year) under Part V HA 1996 – this is a probationary period. So, a) the Council might seek possession on the basis that it will be suspended and b) the court has its own responsibility to decide on suspension or not. Any decision to serve an NTQ will be taken against that backdrop and with it scrutiny of the circumstances, making it less likely that the Council would lack any ground for deciding to serve the NTQ.

On the facts in the present case, there was no sustainable public law defence to the claim. it was unarguable that the council had acted in a manner that no reasonable Council would in serving an NTQ. The Council could not be expected to conduct a quasi judicial enquiry into exactly where the truth lay between allegation and counter allegation [para 56].

Mr Berkley’s argument that even if the decision was not unreasonable on the material known to the Council at the time, it could become retrospectively unreasonable for the court after full consideration of the evidence was also unsustainable in principle and on authority – Smith v Evans. There was nothing implicit in Doherty to suggest otherwise.

No convention arguments arose in the case. Gateway (a) was not argued and the observations in Doherty that a declaration of incompatibility for s.5 Mobile Homes Act 1983 would have been made save for the Housing & Regeneration Act didn’t lead anywhere in this case.

Appeal Dismissed. LJs Aiken and Jacobs concurred.

Toulson LJ gives practical guidance – this is mostly specific to possession claims under S.4 Caravan Sites Act as amended by Housing Act 2004 (‘phase 2′). The public law defence is characterised as facing ‘a high test rarely likely to be satisfied’ in these cases. The guidance is quoted below, but it is worth noting that this is specific to the situation where a one year (renewable) suspended possession order may be made.

For most summary possessions following NTQ no such discretion is available, so the observations noted above on ‘the legislative background’ providing something like a guarantor of the Council not being unreasonable don’t apply.

It is also worth noting the confirmation that the key decision for purposes of the public law defence is the decision to serve NTQ. There is no reason to hold that there are subsequent separate decision to issue the claim and to ask for a possession order [para 2].

Guidance by Toulson LJ

65. Where a local authority seeks possession after service of a notice to quit in a case arising under the legislative scheme, phase 2, there is seldom likely to be any dispute about the service of the notice to quit, and instances where the licensee has a genuinely arguable public law defence are also likely to be very rare. But cases where the court is asked to exercise its power of suspension under s4 of the Caravan Sites Act 1968 are likely to be much more common. It would be sensible if the directions given in such cases required the defendant to set out in writing all matters relied upon in support of such a suspension, and for the council, if it intends to oppose the application, to respond by setting out its grounds of opposition. It would also be sensible to order an exchange of witness statements on that issue. In the rare case where the licensee advances a public law defence to the claim, as well as invoking the court’s statutory power of suspension, it is unlikely to be a sensible use of the court’s time to conduct a hearing to decide whether the matters relied on by the licensee give rise to an arguable public law defence, when the same matters are going to have to be investigated in any event on the question of suspension. It will make better sense for the court to hear the evidence and if, at the end of it, there remains a live issue as to the lawfulness of the notice to quit, for the court to give a judgment dealing both with that issue and (if the defence is unsuccessful) with the question of suspension. That was not the course taken in this case. If it had been, there would have been a considerable saving of time and costs.

66. Conscious of the undesirability of judges in the county court having to read through lengthy appellate decisions when dealing with a claim for possession by a local authority of a pitch falling within the Caravan Sites Act 1968, it may help if I seek to summarise the position shortly.

67. In a case arising out of phase 2 of the legislative scheme, where notice to quit has been served, but the occupier asserts that the decision to serve it and seek possession was unlawful, it is for the licensee to make good such a defence. To do so, it must be shown that the council’s decision to serve the notice and 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. This is a high test and rarely likely to be satisfied where the decision was made in good faith (for reasons more fully discussed in Smith v Evans and above).
The exercise of the court’s jurisdiction under s4 to suspend a possession order involves a much wider consideration of what would be just. Here the court is not simply reviewing the decision of the council which began the eviction process, but is forming its own judgment about whether a possession order should be suspended and, if so, for how long and on what conditions. It is required under the terms of the section to take into account the behaviour of the occupier and what attempts he or she has made to obtain alternative accommodation. Those factors are not exclusive. The court must itself be mindful of the occupier’s article 8 rights, which will need to be balanced against any other relevant considerations, such as the need to preserve public order, the interests of other residents and the need for safe and proper administration of such sites. (For example, it cannot reasonably be expected that council staff should have to spend time repeatedly sorting out disputes about disruptive or antisocial behaviour.) Article 8 rights are important but are not the same as security of tenure.

68. When phase 3 of the legislative scheme comes into force, the occupier will have a greater degree of contractual security by virtue of the Mobile Homes Act 1983. Broadly speaking, any right of termination by the owner will be conditional on the court considering it reasonable for the agreement to be terminated. That protection will be separate from the power of the court to suspend a possession order under s4 of the Caravan Sites Act 1968.

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Ask and ye shall receive

Published
by
J
on 27/01/2009
in ASB, FLW case note, Housing law - All, Licences and occupiers, Possession and secure-tenancy
. 14 Comments

Yesterday evening I asked for more information about Dixon v Wandsworth LBC (No 2) [2009] EWHC 27 (Admin) and, by the next morning, two copies of the transcript had made their way to my inbox. My gratitude to The Chief and to William Flack of Flack & Co, who are acting for Mr Dixon. Without wanting to get too carried away, this looks like it could be a significant case and I’m going to deal with it in some detail.

The facts

In April 1993 Mr Dixon (then aged 17) and his sister became the joint secure tenants of Wandsworth at a 2 bed flat in SW11. In October 2005, the sister served a Notice to Quit on the claimant, with the result that the joint tenancy came to an end – see LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

Wandsworth then appeared to have considered re-housing Mr Dixon in his own 1 bed flat. That offer was withdrawn after Mr Dixon was cautioned for possession of cannabis and convicted of possession of cocaine. Possession proceedings were then issued, seeking recovery of the 2 bed flat. Those proceedings were expressly pleaded on the basis of the NTQ served by the sister and a possession order was granted.

The first set of proceedings

After the possession order was made, but before it was executed, Mr Dixon applied for further housing from Wandsworth under Part 6 Housing Act 1996, but was told that, because of inter alia his drug conviction, he was now treated as ineligible for social housing – see s.160A(7), Housing Act 1996. He challenged that decision by way of judicial review but was unsuccessful. See Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin). The Court of Appeal refused permission to appeal, both on the papers and after an oral application.

These proceedings

Mr Dixon then applied to set aside the warrant of possession, contending that, were it to be executed, it would amount to a violation of his rights under Art. 8, ECHR. By consent, the application was transferred from the Wandsworth County Court to the High Court.

The law – according to the High Court

Before dealing in any substance with the arguments of the parties, the High Court set out what it regarded as the law.

The starting point was that a Notice to Quit given by one joint tenant would have the effect of terminating the tenancy, regardless of whether or not the other joint tenant(s) supported that move. This had been settled law since Doe d. Aslin v Summersett (1830) 1 B&AD 135 and had been confirmed in LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

That rule of law had not, however, developed with any consideration of the rights of the parties under Article 8. In Qazi v LB Harrow [2004] 1 AC 983, the House of Lords had directly confronted this point and had concluded that Article 8 could not be used to defeat a private law contractual and proprietary right to possession. There was no infringement of Article 8 in recovering possession pursuant to a Notice to Quit.

That position had been further explained by Kay v LB Lambeth; Price v Leeds CC [2006] UKHL 10. One of the points in that appeal had been whether or not Qazi (and Monk) needed to be reconsidered in light of the decision of the European Court of Human Rights in Connors v UK 40 EHRR 189. Qazi was explained as meaning that, although Article 8 was engaged, domestic law would supply sufficient justification for the purposes of Article 8(2) in most cases.

There were, in effect, two gateways. Gateway A was a challenge to the underlying legislation such that it either had to be reinterpreted so as to comply with the requirements of the Human Rights Act 1998 (or a declaration of incompatibility granted) and Gateway B was a challenge, on judicial review grounds, to the decision to seek possession. Challenges could not be taken on the basis of individual personal circumstances.

In Doherty v Birmingham CC [2008] 3 WLR 636, Kay was revisited but not overruled. An unqualified right to possession could be challenged if the decision to seek possession was one that no reasonable person would consider justifiable.

The ‘new’ factor in the present case was the decision of the European Court of Human Rights in McCann v UK 19009/04. The European Court had found that possession proceedings predicated on an unqualified right to possession were in accordance with the law and pursued legitimate aims. However, they could not be said to be proportionate or necessary in a democratic society. Article 8(2) required an individual assessment of the eviction by a court and could not be met by a blanket presumption that domestic law had struck the correct balance.

That was the critical point of difference between the House of Lords and the European Court. The House had received written submissions on McCann before deciding Doherty and had concluded that it was not open to them to permit individual circumstances to stand as a free-standing defence. Judicial review-style defences were the only ones permissible.

The decision: Gateway A

When considering the compatibility of the rule in Monk with Article 8, McCann was of limited assistance. McCann had involved a local authority improperly procuring a Notice to Quit, whilst, in the present case, the Notice to Quit had been given freely by a private individual. All Wandsworth were doing was exercising their common law rights, as a result of the service of the notice.

It was not open to Mr Dixon to contend that the rule in Monk was incompatible with Article 8. That issue had been decided, against Mr Dixon, in Qazi. It was unclear what sort of modification Mr Dixon would want made to the rule in Monk. Why should an unwilling tenant be forced to remain in a joint tenancy against their will? Would the new rule apply equally to the public and private sector?

McCann was, at best, merely a persuasive authority. It had been doubted in the House of Lords and was factually distinguishable from the present case. There was no basis for contending that the rule in Monk was incompatible with Article 8.

The decision: Gateway B

Any challenge under Gateway B had to be on the basis that no reasonable person would consider the decision to seek possession justifiable. Although some of their Lordships in Doherty had suggested that this might need to be widened, none had actually done so.

The Court was not to substitute its own view of the proportionality of the eviction. Whilst there was no evidence to show that Wandsworth had carried out any proportionality assessment, the totality of the evidence was such that, had the assessment been carried out, Wandsworth could properly have concluded that it should seek possession.

What to make of this

I have some sympathy for the Judge, but this is a decision which side-steps the major issue. It was the ratio of McCann which mattered, not the facts. If, as the European Court held in McCann, a right to possession which does not afford a court the opportunity to examine the proportionality of that eviction is incompatible with Article 8, then surely all mandatory grounds (NTQ, s.21, Housing Act 1988, Ground 8, Housing Act 1988 etc) are incompatible with Article 8.

The House of Lords does not accept this premise and does not agree that an individual examination of the proportionality of the eviction is necessary, but has not yet properly said so. McCann and Connors cannot stand with Qazi, Kay and Doherty and, at some stage, their Lordships are going to have to bite the bullet and decide what to do about this.

I am less sympathetic however to his treatment of the proportionality question under Gateway B. On the one hand we’re told that a court cannot simply come to its own conclusion on proportionality, but on the other, the court decides that, if Wandsworth had ever done such an assessment, they would have been entitled to decide that they should proceed. Surely the landlord should do a proportionality assessment before each and every eviction. Permission to appeal has been sought on this point.

Finally, I’m not entirely convinced that this decision is compatible with Hillingdon v Collins & Another [2008] EWHC 3016 (Admin), discussed by us here. I’ll need some more time to reflect on that though, but, if there is even a slight difference, surely the Court of Appeal should grant permission… is it too much to hope that the Court of Appeal might then explain what Doherty actually means in practice?

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