Floating rights

Jones v Canal & River Trust [2017] EWCA Civ 135

This was an appeal against an order that Canal and River Trust could remove Mr Jones boat from a canal near Bradford on Avon, under its powers under s.8 of the British Waterways Act 1983 and s.13 of the British Waterways Act 1971. Mr J had advanced a defence of breach of article 8 European Convention on Human Rights.

Mr J had a boat on the Kennet & Avon canal from about 2011. He had a licence:

based upon a declaration by him that the vessel would be used for genuine navigation during the licence period. The Respondent took the view that the Appellant was not using the vessel in the manner permitted and, based on observations made, it considered that the boat had been confined to the same 5 km section of the canal from October 2011 to January 2013. It based its view on guidance that BWB had previously published (as to the correct operation of s.17 of the 1995 Act) in October 2011 and revised in May 2012 to reflect the transfer of functions to itself. The correct application of s.17 to the facts of this case is very much in issue between the parties in the action and it is common ground that the issues arising under the section will have to go to trial.

In his defence to C&RT’s Part 8 claim, Mr J asserted, so far as is relevant to this appeal:

“10. The Claimants have failed to consider the Article 8 rights of the Defendant adequately or at all, they have failed to consider:
a. the Defendant has a disability which impedes his progress around the Kennet and Avon;
b. the Defendant’s physical difficulties;
c. whether the Defendant would be able to comply with the continuous cruising requirement within a reasonable period;
e. [sic: d] the Defendant would be rendered homeless;
e. the interests of waterways users who rejected the Claimants consultation for a distance to be specified during continuous cruising in London (and it is averred this is applicable nationally);
f. whether the Defendant should be entitled to apply for a residential mooring where he currently resides;
g. whether the Defendant has used his best endeavours to find a residential mooring, but has been unable to find one;
h. that there is national shortage of available residential moorings suitable for the Defendant.
In the premises it is submitted that the Claimants’ decision to seek an injunction and deprive the Defendant of his home is disproportionate and amounts to a breach of his Article 8 rights in breach of Schedule 2 of the Human Rights Act 1998.
11. Further, it is submitted that the Claimants have failed to consider the Defendant’s Article 8 rights when taking proceedings against the Defendant and failed to consider whether their process accorded due deference to the Defendant’s Article 8 rights.
12. In the premises the Claimants at no time appear to have considered the defendant’s Article 8 rights, and /or his personal circumstances and/or the hardship which he would suffer if required to move from his mooring. It is submitted that the hardship to the Defendant would be profound. There are no alternative moorings. It is submitted that it would not be proportionate to require the Defendant to be evicted. In the premises it is submitted that an injunction should not be granted at this stage and/or that the declaration should be refused.”

At first instance, on C&RT’s application for summary dismissal of the human rights defence, the court dismissed that part of the defence, finding that an analogy could be made with the position of a social housing landlord in Manchester City Council v Pinnock [2010] UKSC 45:

that while the Respondent is not a housing authority, it has important duties and obligations in respect of the management of the waterways which have to be exercised in the interests of boat-users and of the general public. There would, (the first instance judge) considered, be a significant burden on the Respondent in having to consider Article 8 rights in every case involving alleged breaches of licence conditions.

On first appeal to the High Court, the appeal was dismissed, rather bluntly:

9. As a public body which is not a housing authority, the trust cannot owe any duty to the Appellant in relation to his housing needs under Article 8. Accordingly any test to be applied to a local authority housing department would not apply and no proportionality argument, however it is to be determined, can arise.
10. Nonetheless the learned Judge went on to consider whether the Article 8 point might raise a triable issue. In an ex tempore judgment the learned Judge determined that the trust could not be expected to investigate or deal with the Appellant’s Article 8 rights as the burden imposed would be too great. In argument, in the original hearing and in this court the series of authorities distilled in the decision of the Supreme Court in Pinnock (2010) UKSC 45 were cited.
11. I have considered those authorities and it will not assist the parties for them to be recited here. Of greatest guidance to local authority landlords in Article 8 cases is the series of seven principles laid down by Etherton LJ, as he then was, in Thurrock Borough Council v West (2012) EWCA Civ 1435.
12. The reasoning of the Judge in the County Court in considering whether there was a need for a more structured approach cannot be faulted, even if it is based on a generously wide view. In concluding that the point could not be sustained he applied a correct interpretation of the authorities and principles. It may be that he encouraged false hope by suggesting that the competing arguments were “finely balanced”. They are not. The appeal is dismissed.”

A second appeal to the court of appeal was allowed, on the ground that

The appeal raises an important point: viz whether the Canal and River Trust is to be treated in the same way as a local housing authority for the purposes of art 8 of the ECHR.

Before the court of appeal, Mr J argued:

i) The judges below were wrong to apply the “exception” given to housing authorities and other social housing landlords from the requirement of a “structured approach” to the proportionality question under Article 8, derived from Pinnock and related cases. (Ground 2)

ii) It was wrong to apply the exception derived from Pinnock on the basis of the “burden” otherwise imposed upon the Respondent in discharging its functions. (Ground 3)

iii) Even if the Pinnock exception might otherwise apply, the county court judge erred in not allowing the Appellant’s case under Article 8 to proceed to trial. (Ground 4)

The C&RT argued that its position should be treated by analogy with social housing landlords, such that there was a presumption that its actions in seeking possession were based on sound reasons.

The court of appeal held that:

It was not accurate to describe the social landlord’s position in and after Pinnock as ‘an exception’ from a structured approach to proportionality.”Rather, I think, the position is that in public authority housing cases the Article 8 issues are more amenable to a pre-trial summary assessment and determination in the authority’s favour than in other cases in which such issues of proportionality arise.”

Broadly, in many cases, the C&RT’s position would be analogous to that of social landlords such that “the court will be able similarly to take a robust approach to claims to assert the public interest considerations in the exercise of the Respondent’s powers over rights arising under Article 8.”

However, in the present appeal, the Judge below had apparently disposed of the article 8 issues before coming to any decision on whether the licence conditions had been broken by Mr J and therefore whether C&RT had the right to invoke its property and management rights. The appeal was therefore allowed.

On the first instance Judge’s view that C&RT having to deal with potential article 8 points in any possession action would “impose a quite significant burden”, the court of appeal was less convinced. Noting again, that in most cases, summary judgment on an article 8 defence could be reached without C&RT needing to set out in detail its aim in enforcing licence decisions.

the burden of dealing with an Article 8 defence is one that will from time to time, however, have to be shouldered by the court in assessing a defendant’s personal circumstances and in the balancing exercise in weighing those circumstances against the “given” represented by the Respondent’s aims in the proceedings. I have made suggestions as to areas in which summary disposal of such defences may be possible. However, I do not consider that the judge was correct in identifying the “burden” of dealing with Article 8 defences as a reason for striking them out summarily.

Appeal allowed and the matter remitted to the County Court with the article 8 defence re-instated.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers and tagged , .

One Comment

  1. At last, the return of the ‘structured approach’! A very important decision for the large number of boatdwellers facing injunction action by CRT for alleged breach of licence. also of potential use in other situations such as Travellers being evicted from unauthorised encampments. and those advising intro tenants, demoted tenants etc may want to reconsider the approach to article 8 in the light of para 52 of the judgment.
    Well done to James Stark of Garden Court North and to Mr Jones, of course
    Chris Johnson

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