We’ve heard of a couple of County Court proportionality defence decisions since Pinnock. but none in enough detail to report. One of those is, apparently, headed to appeal, so maybe more then. But we’ve now had sight of a full judgment in a County Court case involving a proportionality defence. And it is interesting, not so much in the outcome, but in the way in which the Court approaches the issue.

Brighton And Hove City Council v Alleyn & Ors [2011] EW Misc 6 (CC)

Brighton brought a possession claim against a number of travellers who had occupied part of a park. Occupation by some travellers had first been noted by Brighton in May 2010. Numbers occupying had increased through June and July. Many of those occupiers were evicted following proceedings by Brighton in August 2010, but the three currently defendants had not been included in that possession claim, as Brighton were aware of personal and health circumstances. In further proceedings brought against the 3 named defendants and unknown others, the others were evicted following a hearing in December 2010. Directions for trial as against the 3 present Defendants were given.

The Council’s title of the land was not disputed. The Defence was on two grounds

(1) the decision to evict the three named defendants – and to press that decision to trial – was unlawful in that it was made in breach of public law principles and, accordingly, the claim for possession must be dismissed; or
(2) there would be an infringement of the Article 8 rights of the three named defendants if the court were to sanction an eviction by making a possession order and, consequently, such order should be refused or at least deferred.

So, a straight Public Law and Proportionality defence.

Of the three named defendants, two had an acknowledged homeless duty by Brighton and the third had an acknowledged duty through a homeless application through a family member. One was under review following a refusal of a three bed house, this defendant has also been offered the option of a possible stay of up to three months on the Council’s transit site. One of the defendants had a serious health condition – “He suffers from a severely contracted and ulcerated bladder for which he receives medication and both GP and hospital treatment. It is a long term condition. At his request the Council provided a flushing toilet facility for him from July 2010 to January 2011 until the mud (caused by unauthorised vehicles entering on the land) became impassable.” This defendant had previously indicated in the August 2010 proceedings that he would leave the site in October 2010 if proceedings were not pursued against him.

Brighton does not have a permanent travellers’ site. There is a transit site for stays of a few weeks or a couple of months.

All of the defendants were known to Brighton’s staff liaising with travellers. Brighton had received a number of complaints concerning the occupation of part of the park and its effect on the use of the park by others.

The public law defence was advanced on two grounds:

(1) in respect of the third defendant (Mr Hansen), the Council had misdirected itself as to his status. Had it properly directed itself, it should have decided that he was a ‘Gypsy’ or ‘Traveller’. If it had so directed itself, it would have taken into account the fact that he was entitled to the indirect benefit of the duty imposed by section 225 Housing Act 2004 which requires the Council to carry out an assessment of the accommodation needs of the gypsies and travellers in its area. Had it properly considered the matter it would have found him to be within the definition of “gypsies and travellers” applied to that section by statutory instrument. Had it done that, it may well have decided not to evict Mr Hansen because it had made no sufficient site provision available for Gypsies or Travellers in its area; and/or
(2) in respect of both the first and second defendants (Ms Alleyn and Mr Smoulkes) the Council had failed to have regard to the fact that it was a housing authority and had failed to take into account the relevant statutory housing provisions by providing them with sufficient accommodation.

Both grounds were dismissed. On the evidence, the third defendant had indeed been treated as a traveller as as having the benefit of the full range of the Council’s relevant responsibilities as set out in the Travellers Strategy. The first and second defendant had received and determined homeless applications and accepted the full duty. The defendants’ submitted that the Council should have inquired into the status of those homeless applications and further that if it had done so it would be clear that the “Council was highly likely to offer only bricks-and-mortar accommodation and that Mr Smoulkes and Ms Alleyn were highly likely to refuse it. So that, if they were evicted, there would be nowhere, and in particular no lawful alternative site, for them to move to”. This was rejected. There was no public law duty on the Council to stay its hand while the homeless applications were determined, and even if there were, there was no further relevant information to be obtained. The Officer was well aware of the situation and no material consideration was overlooked or ignored.

On the proportionality/Article 8 defence, the Council submitted that this was not an article 8 case, as “in order to have the benefit of the right to respect for a home, the individual had to demonstrate that a particular place was their home by establishing sufficient and continuous links to it. At the date when the present proceedings were issued, the defendants had only been in occupation a matter of months. The links with the land had been tenuous from the outset and unlawful throughout. In so far as the relevant “home” was the caravan, the proposed eviction carried with it no threatened retention or disposal of the caravan”.

The Court did not accept this:

this is a case in which Article 8 is applicable. The defendants have been residing on the land for over nine months. It is not suggested they have anything amounting to a “home” elsewhere. Although the fact that the home was unlawfully established may in some cases be relevant, it is not in my judgment determinative when one is dealing with travellers who have no authorised site on which to lawfully establish a home. This is not a case like Price in which the occupiers had only been on site for a matter of days but nor is it a Connors case of occupation in excess of a decade. It lies between those extremes. I am satisfied that the links established with the land in this case are sufficient to bring Article 8 into play in the ‘home’ dimension. If I am wrong about that. I am in any event satisfied that the prospective impact on the private and family lives of these particular defendants is just about sufficient to bring it within the other relevant dimensions of Article 8(1).

Then turning to Article 8(2) the matter had gone beyond the stage where a summary assessment was appropriate so a full hearing would be undertaken.

The possession claim was in accordance with the law. The Council’s aim was legitimate. While this was not a housing case involving the presumption of legitimate management of housing stock, the Council was “primarily motivated by the need to protect the ‘rights and freedoms’ of others in the sense of their right to unfettered and unimpeded access to recreation on open council land otherwise normally available to them for that purpose”.

The next issue was therefore whether the eviction was proportionate.

The Defendants submitted this was a matter of weighing the interests of the local residents against the interests of the occupiers. The Council argued it would take rare, unusual or exceptional factors to produce any result other than a possession order.

The Court held that:

the right course for a judge of this court to follow, once this stage of the analysis is reached, is to find the relevant facts and then to determine whether there is something in or about the circumstances of the particular defendants sufficient to deny the ordinary result of a public authority properly seeking to uphold its entitlement to control and regulate the use of its own land for the common good i.e. the making of an order for possession. That assessment can conveniently include consideration of whether, if a forthwith possession order would not be proportionate, some form of delayed or deferred order would be proportionate

On the facts of this case, the Council was clearly pursuing a legitimate aim, without even reaching any finding on allegations of noise nuisance, roaming dogs, etc.

The circumstances of the occupiers had been considered. The availability of the transit site, on which the occupiers had been offered (temporary) pitches was a significant factor. The occupiers were not ethnic gypsies (on the evidence presented) so the positive duty to facilitate the gypsy way of life did not apply.

The health of the second defendant was raised, but there was no medical evidence as to the impact on him if he was required to move on without an alternative site provisions. The second defendant had chosen to maintain a travelling life style and there was no evidence that he would suffer more if required to move than if he were to voluntarily take to the road again later on. He had previously requested to be allowed to stay only to October 2010.

The education of the children:

I readily accept that a nomadic lifestyle such as that which Mr Hansen, a man with a number of children, has adopted is likely to be potentially disruptive to the education of children. But beyond that I have no evidence relating to the particular education of these children and I have none from their schools. Mr Cottle suggested that it was axiomatic that a child’s education would be least disrupted if they moved schools over a school vacation between two academic years. I accept that as far as it goes. But taken alone it would result in every traveller with a school-aged child being able to resist eviction from an unauthorised encampment for up to a whole academic year. In this particular case there is no evidence that the children would not be able to reach their current school from: (a) any conventional housing the Council may be willing to provide; (b) the transit site; or (c) any other site in the Council’s area that the defendants may seek to occupy if they reject (a) and (b). It must be recorded that the first and third defendants brought their children onto this land before the last Summer school vacation well knowing they had no right to occupy it. I can legitimately infer that they also knew well that they would have to move-on again. By reason of the tragic bereavements the children in Mr Hansen’s household have suffered, he has been given an extended period of indulgence by the Council. I cannot see in the issue of ‘education’ any material of weight telling against the recovery of possession in this case.

Similarly, homelessness as a factor, if taken and successful alone would mean that it would become virtually impossible to displace any unauthorised encampment. While it was more difficult for travellers to find authorised sites that others to find fixed accommodation, the Council had accepted a homeless duty and also offered places on the transit site.

Held: No feature of this case, or any combination of them, warranted the making of any order except the forthwith order to which the Council would normally be entitled. Order granted and permission to appeal denied as the decision turned wholly on the assessment of the factual matters.

Comment
There are some intriguing suggestions in this judgment – for instance that respect for family and private life could perhaps bring a possession claim into Pinnock territory where the occupier’s links to the land alone couldn’t. But mostly, the case is interesting not so much for the outcome, but for the application of Pinnock and Powell and the step by step analysis in the judgment. In that, although not binding, it is precisely because it is a county court case that it offers a clear example of a procedural approach to a proportionality case.

Oh and the Judge? Mr Recorder Luba QC.