Tag Archive for 'travellers'

Delays, Public Law Defences and Suspended Orders

Published
by
NL
on 11/07/2010
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 3 Comments

London Borough of Brent v Corcoran & Anor [2010] EWCA Civ 774

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.

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Housing policy dribbles

Published
by
NL
on 08/06/2010
in Housing law - All, Regulation and planning and Various (non-housing)
. 7 Comments

Or the good, the bad and the ugly from the Housing minister and the Communities and Local Government secretary.

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.

Eric Pickles at Trauma TowersAnd 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.

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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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Thoroughly premature planning injunction…

Published
by
NL
on 23/10/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 4 Comments

Brentwood Borough Council v Ball & Ors [2009] EWHC 2433 (QB)

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.

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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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Peverse incentive

Published
by
J
on 02/08/2009
in FLW case note, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

We don’t usually cover gypsy & traveller planning permission cases, since they tend to turn on their own facts, but Rafferty and another v Secretary of State for Communities and Local Government and another [2009] EWCA Civ 809 has one point of wider importance.

The appellants owned a site (comprised of two separate plots) at Reeves Ground. They did not move onto the site but applied for planning permission. That was refused, both by the local planning authority (North Somerset Council) and by the planning inspector.

Part of the reasoning of the inspector was that, because the appellants did not live on the land, any dismissal of their application would not amount to a violation of their rights under Art. 8, European Convention on Human Rights. There was no loss of their home and, hence, no interference.

The case came before the Court of Appeal on a number of points, but this was the most significant one. The Court of Appeal was troubled by the logic. It was clear that a person who moved onto land (unlawfully) and then applied for planning permission could rely on Art. 8. Why should a person who had applied for permission without first going (unlawfully) onto the site be in a worse position? That was a perverse incentive and one which encouraged persons to break the law, in order to acquire the benefit of an Art. 8 argument.

The inspector was, therefore, wrong. It was “as much a lack of respect not to allow [the appellants] to move onto the site… as to make them move off it. The effect in either instance [was] to deny them a stable base” (at [28]).

However, it was inconceivable that the inspector would have granted planning permission even if he had not fallen into the error described above. Appeal dismissed.

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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
. 5 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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Proposed separation of fact and law…

Published
by
NL
on 04/06/2009
in Housing law - All, Licences and occupiers and Possession
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The DCLG have issued a consultation paper on ‘dispute resolution’ under the (to be) amended Mobile Homes Act 1983 (which will also have effect for Travellers) The consultation paper can be downloaded from us [PDF]. How to respond is at the back of the document, but responses are required by 9 June 2009 (!)

Amongst the suggestions is the frankly bizarre suggestion that “fact finding role” in possession proceedings be dealt with by Residential Property Tribunals (RPTs) while the “legal role” will be dealt with by the County Court. The DCLG suggests this as a means of addressing residents’ concerns that landlords bring proceedings as a threat or bullying tactic

we have heard from residents that site owners sometimes use termination proceedings as a bullying tactic and as a means of securing their own way. If that is so, we believe this is an abuse of the court’s system and that no cases should come before a court unless the facts relating to it have been established and verified. The Government, therefore, proposes to introduce a filter mechanism in respect of termination cases.

On a charitable view, it might just be that this hasn’t really been thought through. For example, the division would see no legal aid available to residents for the ‘fact finding’ tribunal. And how on earth does one manage a clear cut divide between factual and legal issues in a possession case, without the facts effectively being re-heard in legal argument, so further delay, duplication of effort and expense.

The Travellers Advice Team at Community Legal Partnership have put in what might be described as a robust response, downloadable here [.doc]. Others are welcome to respond – but quickly, 9 June…

Given that this is coming from the DCLG, there also the worrying prospect that this represents broader thinking on housing disputes and the tribunalisation of possession or disrepair proceedings.

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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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The Basildon Endgame

Published
by
NL
on 26/01/2009
in FLW case note, Homeless, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

As people may well have noticed from the news on TV and in the press, the last Court of Appeal hearing in the drawn out saga of the (unlawful) Essex traveller sites resulted in a defeat for the travellers. Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 was the Court of Appeal hearing of Basildon DC’s appeal against a High Court decision that, in effect, evictions could not proceed against individual households until individual consideration of their circumstances had been carried out. Some 63 caravan pitches were at issue.

Previous litigation over planning permission had been exhausted and, for the occupants, it was admitted that they occupied the land unlawfully.

What was at issue in this case was the lawfulness of the Local Authority pursuing evictions under s.178(1) of the Town & Country Planning Act 1990, which were proposed to be en-mass for the unlawful pitches.

For the occupants, Jan Luba QC submitted that:

the duty on the council to look for alternative sites, to meet need, continues. Particularly in the absence of such a search, it was incumbent upon the council to consider the claim of each occupant not to be evicted, one by one and plot by plot. The personal circumstances of each of them should be considered. The council’s aim was for site clearance, which, it is submitted, did not have regard to individual cases and was unlawful. [para 11.]

The occupants relied on Circular 18/94, Gypsy Sites Policy and Unauthorised Camping, in which it was stated at paragraph 10:

The Secretaries of State expect authorities to take careful account of these obligations [Children Act 1989 and Housing Act 1985] when taking decisions about the future maintenance of authorised Gypsy caravan sites and eviction of persons from unauthorised sites.

and on Circular 01/2006, Paragraph 40 of which requires local authorities to have regard to their statutory duties, including those under Part VII of the Housing Act 1996 and the Race Relations Act 1976; and Paragraph 43 provides:

Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTA [...] Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

Basildon’s argument was that it would perform its duties under Part VII, which had been stayed pending the outcome of these proceedings. ‘Need’ was not the same as demand, and ‘need’ had to be shown to be in the district rather than the east of england as a whole. The Council’s detailed examination in its report of December 2007 had considered individual circumstance and demand. In LJ Pill’s lead judgment at para 43

I have set out the contents of the officers’ report and minutes in some detail. Having considered these as a whole, it does not appear to me that the Committee failed to address the correct issues when deciding whether to take action under section 178. Need and the absence of alternative sites in the District was recognised, as it had been in the Secretary of State’s planning decisions. On the other hand, it does not follow from a claimant’s wish to live on a site in Basildon District that he is entitled to have one there. The council was entitled to regard the situation of the sites in the Green Belt as a factor of substantial weight when doing the exercise they acknowledge was required. However, both when considering whether planning permission should be granted and when making an assessment under article 8 of the Convention, such personal circumstances as the proximity of family members may also be a factor. I accept the formulation of Ouseley J in O’Brien v Basildon District Council [2007] 1 P&CR 16. Ouseley J stated, at paragraph 171, that “the question of local connection could be a live issue in the assessment of needs.” He also stated that the Green Belt factor is also “a matter for legitimate debate.

The Council argued that demand for the east of england was clear, but not the allocation to Basildon. As the Sec of State had refused temporary planning permissions and upheld enforcement on consideration of individual cases, there was no reason to uphold a failure under Para 43 of the guidance.

Held – at paras 70-71:

The procedure which has been followed, the refusal of planning permission, consistently supported by the Secretary of State, the taking of enforcement action under section 172 of the 1990 Act, and the flagrant disregard of enforcement orders upheld by the Secretary of State, can legitimately form the basis for a decision to take action under section 178 of the 1990 Act. In taking that decision, the persistent breaches both of planning control and the criminal law are factors which may be taken into account. The council was not required to act as if the decisions on the enforcement notices had not been taken.

Given the planning context, I do not consider that the council has erred in law in failing to give further consideration to alternative sites at the time the decision to take action under section 178 was taken. As appears from Circular 01/2006, sites are to be provided through the development plan process. I have referred to that process and to the Secretary of State’s comment on its current stage. In his planning decisions, the Secretary of State has plainly been mindful of factors in favour of the claimants and has declined to grant planning permission. Temporary permissions, contemplated in paragraphs 45 and 46 of the Circular have been refused by the Secretary of State, mindful of all the factors involved. I agree with the approach to this issue of Keene LJ in O’Brien, including his reference to the planning system being development plan-led and the likely exacerbation of controversy by by-passing the system. Whether an attempt should be made to bring forward DPD allocations (paragraph 43 of Circular 01/2006) may be the subject to debate but failure to do so does not, in my judgment, and in this particular context, render a decision to act under section 178 unlawful.

And, LJ Lloyd on the Part VII HA 1996 issue:

[A]lthough the question of homelessness was embarked upon at an earlier stage, it has, properly, been in abeyance until now, and that if the council’s decision stands, as a result of the appeal, the housing department will engage with those affected, to see which of them wish to apply under section 183 of the 1996 Act, and the council will comply with its duties under the Act in relation to those who do so apply. None of that had to be addressed as a pre-condition of proceeding to enforcement under the 1990 Act. Officers will take the necessary steps to comply with Part VII of the 1996 Act as part of the process of deciding how and when to carry out their delegated functions under the council’s decision.

Appeal allowed. The evictions under s.178 can proceed.

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