Land – Licence to occupy – Withdrawal of consent – Claimant and family occupying land with consent of defendant local authority – Defendant serving notice under section 77 of Criminal Justice and Public Order Act 1994 requiring them to leave land – Claimant applying for judicial review – Whether temporary consent to occupy to be withdrawn before service of section 77 notice – Application granted
The claimant was an 18 year-old traveller with mental health problems. She lived in a vehicle, with the permission of the defendant local authority, on land owned and leased, in part, from the Crown Estate at a disused Ferry Port in Ramsgate, Kent. They had been permitted to occupy the land under a temporary agreement as a result of the welfare needs of some of the extended traveller family.
On 1 December 2021, the defendant served a notice pursuant to section 77 of the Criminal Justice and Public Order Act 1994, requiring the claimant and the travellers to leave the land, and commenced enforcement proceedings under section 78 of the Criminal Justice and Public Order Act 1996.
A claim for judicial review was issued and enforcement of the notice was stayed until after the hearing. An issue arose whether it was unlawful to use such a notice without first giving the travellers occupying the land reasonable notice that consent had been withdrawn, before service of the section 77 notice. The judge refused permission for judicial review: [2022] EWHC 1731 (Admin).
On appeal, Bean LJ granted permission to apply for judicial review as the case raised a point of law that had a real prospect of success. Since the decision under appeal was given at a rolled-up hearing, no useful purpose would be served by a further hearing in the Administrative Court. Therefore, the Court of Appeal determined the claim for judicial review.
Held: The application was granted.
(1) It was necessary to construe section 77(1), which enabled a local authority to take a decision to give a direction if it “appears” to it that “persons are for the time being residing” “on any unoccupied land without the consent of the occupier”. That meant that the necessary state of affairs had to exist when the decision was taken to give the direction. The local authority had to decide whether it “appears” to be the case that the person “is for the time being residing” without its consent (where, as here, it was the occupier of the land).
The local authority was not empowered to give a direction if the person was currently residing on the land with consent but would no longer be doing so after the direction was “given” and then “served” in accordance with section 79 of the 1994 Act. To be lawful, the situation described in section 77(1)(c) had to exist at the start of the process and not be the result of the process. On its true construction, section 77(1)(c) required any consent to be withdrawn to the knowledge of the person to whom the direction would be given by notice before the local authority could lawfully give that direction.
(2) Section 77 did not provide all the necessary safeguards to protect the reasonable interests of a person who had been residing lawfully on land with the consent of the occupier. The terms of section 77(5) suggested strongly that, in its context, it meant “forthwith”; the statutory defence there provided only became available once the prosecutor had proved that a person had failed to vacate the land as soon as practicable. That might be proved even where that failure was “due to illness, mechanical breakdown or other immediate emergency”. The effect of the statutory defence was to allow those three factors to be relied upon by the recipient of a section 77(1) direction to avoid criminal liability. The narrow list of such factors militated against less potent considerations being considered at the prior stage of determining whether it was proved that the recipient failed to leave the land “as soon as practicable” after receiving the section 77(1) direction.
The 1994 Act did not deal with the way in which consent of an occupier might be ended. It was a criminal statute and principle required that criminal offences should not be created except by clear law.
(3) Section 77(1)(c) should not be construed so that a person who had resided on land with the consent of the occupier, and who did not know that the consent no longer existed, might be lawfully served with a section 77(1) direction. Consent might come to an end because it was only given for a fixed period which had elapsed, or because it was terminable on notice which had been given. In either of those events, the person who had been residing on land with consent would know that that was no longer the case. Where the occupier was a local authority which owed public law duties to residents in its decision-making, the section 77(1) process should not become available, where there had been consent “until further notice”, until a decision had been made as to what constituted reasonable notice of the ending of that consent, and until such notice had been given.
The circumstances of this case clearly required the respondent to give reasonable notice to the appellant and her family of the ending of the consent to reside on the land and their consequent obligation to vacate it. It was expressly incorporated in the permission to reside on the land that termination of their residence would require a “decision about the future of the stopping site”.
(4) That language used was by a local authority with public law duties. Those duties were important to the outcome of this case. Parliament had chosen to make the power to give section 77(1) directions only available to local authorities, who had to exercise it in accordance with those duties. A local authority acting reasonably and fairly having used such language would consult before making the decision to withdraw consent. The failure to do that was not something which was criticised in the present proceedings. However, such a local authority would also then inform those affected of what the decision was and allow them a reasonable time to vacate the land before being made subject to criminal sanctions for failing to do so “as soon as practicable”.
Tim Baldwin and Lara Simak (instructed by Watkins and Gunn, of Cardiff) appeared for the appellant; Andrew Lane and Jack Barber (instructed by Thanet District Council Legal and Democratic Services) appeared for the respondent; The interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of SO) v Thanet District Council