Tag Archive for 'travellers'

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
. 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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Proposed separation of fact and law…

Published
by
NL
on 04/06/2009
in Housing law - All, Licences and occupiers and Possession
. 0 Comments

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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Alternative sites – the burden of proof

Published
by
NL
on 10/09/2008
in FLW case note, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

South Cambridgeshire District Council v Secretary of State for Communities and Local Government & Ors [2008] EWCA Civ 1010 was an appeal of a High Court decision on Judicial Review of the decision of an Inspector in the appeal of a planning decision not to allow residential caravan siting for a family on a property in South Cambridgeshire.

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

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

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

Lord Justice Scott Baker at para 36, states

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

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

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Pre-emptive possession orders

Published
by
NL
on 26/08/2008
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 5 Comments

Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 was a case concerning travellers encamped on Forestry Commission land. Some of the travellers had previously camped on a nearby patch of Forestry Commission land until a possession order was obtained. The Forestry Commission (or rather the Sec of State, the owner of the land) applied for:

  1. A possession order in respect of the patch of land occupied.
  2. A possession order for other nearby areas of Forestry Commission land that the travellers might move to.
  3. An injunction preventing the travellers from entering upon the land they currently occupied and the other nearby areas.

At the County Court, possession order 1 was granted. But the ‘prospective’ possession order and injunction were refused, on the grounds that the recorder had discretion and exercised it against the orders because a prospective possession order and injunction clashed with the recommendations made to local authorities and others, including, inter alia, the Forestry Commission in the then ODPM’s Guidance on Managing Unauthorised Camping, 2004, which suggests that, while there are insufficient authorised sites, and there would be locations where encampment would not be acceptable under any circumstances, each location has to be considered on its merits against criteria such as health and safety and serious environmental damage and land use (para 11-12). A prospective possession order, which would subject anyone who entered on the parcels of land to eviction, was, the recorder found, not in accordance with the guidance, and was for that reason, Wednesbury unreasonable.

The Secretary of State appealed on basis that:

the recorder had no discretion to refuse the order and injunction once he had concluded that the Drury criterion was fulfilled. Alternatively, he erred in the exercise of his discretion by declining to grant the order and injunction. In the further alternative, he was wrong to hold that the Secretary of State was perverse in seeking the order and injunction. Finally, the recorder was wrong to conclude that the grant of the injunction was disproportionate.

Drury v the Secretary of State[2004] 1 WLR 1906 set out the criterion for prospective possession orders where further acts of trespass are threatened. A prospective order would be granted:

if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area. [Drury 20]

and where there

is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted. [Drury 20]

The test for a quia timet injunction, as set out in Snell’s Equity is:

Although the claimant must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the claimant must establish a strong case; “no one can obtain a quia timet order by merely saying ‘timeo.’ He must prove that there is an imminent danger of very substantial damage…

The Drury criterion itself is taken from Wilson J at para 21:

Although it would be foolish to be prescriptive about the nature of the necessary evidence, it seems safe to say that it will usually take the form either of an expression of intention to decamp to the other area or of a history of movement between the two areas, from which a real danger of repetition can be inferred or, as in the MAFF case itself, of such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to the other.

In Drury, there was no injunction application, on the basis that, as it could only be made and enforced against named individuals, it would not have been of much practical use.

In the appeal, the Sec of State argued that once the Drury criterion had been met, then there was no discretion on the making of a prospective possession order. The considerations of the Guidance should take place at the enforcement stage, not at the point of considering the claim. As the hurdle for the prospective possession order and an injunction were effectively the same, the recorder should also have granted the quia timet injunction, the practicality of enforcement being an issue for the Sec of State, not the court. In any case, the finding of unreasonableness should be set aside because the Forestry Commission were not going to enforce the possession order granted until the end of the school term.

The Respondents argued that

it would have been inconsistent with the government guidance set out above for a possession order in the wider form to be made. That guidance enjoins public authorities to consider whether eviction is really necessary. It requires public authorities to consider the specific characteristics of the site and of the incursion before they make a decision to evict. [...] the Forestry Commission should look at the site occupied, and on the basis of the guidance they should accept that, in view of the shortage of suitable accommodation for travellers, the presence of the respondents should be tolerated. [...] if the Forestry Commission wants a possession order in the wider form it should have to identify the areas where it accepts that the respondents could encamp.

On the injunction, the Respondents argued that the point of Drury was the creation of a practical remedy, and that the prospective possession order incorporated elements of an injunction to that end. or that reason an injunction in addition was inappropriate. In any case, grant of injunction was discretionary. As the recorder was plainly exercising his discretion within its proper bounds and he was entitled to reach his conclusions, the Court of Appeal had no basis to review the decision.

Lady Justice Arden, in the lead judgment, held that while the making of a prospective possession order was discretionary, once the Drury criterion were made out, it would only be in ‘exceptional circumstances’ that the order would be refused. Exceptional circumstances would include a failure to carry out a public law obligation.

However, the highest the obligation imposed by the Guidance could be said to be was ‘to consider the acceptability of an encampment once the encampment has occurred’, and it did not concern possible future sites. The Recorder was therefore wrong to apply it to future encampments. Consideration of the Guidance should occur at the time of enforcement. Moreover, while:

Mr Hobson [for the Respondent] urged on us the point that those factors did not need to be considered at all if the occupiers had previously been found on the land of the same landowner and a Drury order had been made. That order would identify the land to which it related. I do not consider that the court can fetter itself in relation to some future application to enforce a possession order. The occupation had not yet taken place. There will inevitably be an interval of time between the occupation and the order for eviction. In that time, the defendants may assert that there are matters which the Secretary of State ought to have considered but did not do so. There may be some people affected who are within the order yet unnamed. They may not know about the order for eviction from Hethfelton Wood. But, in so far as the occupiers were served with an order for possession of Hethfelton Wood, I would expect the court to be less willing to give them further time. If there is any such matter which the court needs to consider, it can be considered at the stage of enforcement.

On the injunction, there is enough distinction between an injunction served on individuals and a prospective possession order against any and all (putative) occupiers to mean that an injunction is also available as a complementary remedy. And there is no reason it can’t be granted on the same facts. The grant of an injunction is discretionary, but the Recorder erred in exercising his for the same reason his discretion on the prospective order was wrongly exercised. Nothing in the Guidance prevents the Sec of State obtaining an injunction. While actually exercising the injunction, on the facts of this case, might seem heavy handed, there was nothing to suggest that the Sec of State would not exercise his discretion in whether to enforce the injunction in accordance with public law obligations.

Lord Justice Pill agreed.

Lord Justice Wilson agreed on the possession order, but suggests that where there are two potential discretionary remedies available, the presumption should be that only one is granted, the most practically effective. he therefore disagrees on the grant of the injunction and approves the part of the recorder’s judgment that finds that “the quasi-criminal sanction of committal for contempt added nothing of value for the Secretary of State to his ability to secure clearance of the land pursuant to the extended order”. [paras 72-76]

This judgment clearly has significant repercussions for travellers on unauthorised sites and threatens to make prospective orders and injunctions considerably more likely where the Drury criterion are met. While local authorities have more extensive roles under the Guidance than the Forestry Commission, to be sure, this combination of prospective possession order and injunction could well be used against roadside or verge encampments, with the local authority seeking a prospective order covering great swathes of land. That the Guidance only requires consideration at the point of enforcement, while leaving injunction enforcement hanging over the heads of the travellers, makes for a very difficult situation, both for the travellers and their advisors.

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