Unauthorised occupation of site by gypsies — Decision to bring possession proceedings — Whether decision unreasonable — Continuing breach of duty — Nature of duty to consult — Whether continuing breach precluding council from seeking possession — Application for judicial review refused
The applicants requested an order for judicial review to quash the decisions of Avon County Council’s Resources (Travellers) Subcommittee. The decision related to the applicants’ unauthorised occupation of a site at Old Station Yard, Chiltern, which the respondent county council owned. The first decision by the subcommittee on July 1 1994 was to bring possession proceedings; the second decision in September was to approve the first. The applicants had occupied the site since 1993 and, following increased complaints regarding the occupation, the respondents’ officer visited the site on 12 occasions prior to the July subcommittee meeting. He described the site as rather untidy and reported on the numerous complaints, including loud music, etc. He stated that there were no children present on the site except on weekends.
The subcommittee considered the matter with respect to the policy for the control of unauthorised encampments and stated that the decision to remove an encampment must be necessary in the light of significant facts including: intolerable nuisance to local residents; danger to public health; unreasonably large encampment for the locations; and undue impact on the environment. Where it was necessary to remove encampments, the council should seek alternative sites and regard should be had to disturbance to gypsy family life and children’s schooling. In cases of unauthorised encampments, to whom the council had not accepted any duty under the Caravan Sites Act 1968, the council were not bound to follow the policies, but should consider the circumstances of each case to decide what action should be taken. The meeting was informed of their duty under the Caravan Sites Act 1968 to provide for sufficient sites for gypsies and the had been and continued to be in breach of that duty for five years. Following the decision to bring possession proceedings children began to appear on the site. That new information was put before the subcommittee at their September meeting: the July decision was approved.
Held The application was refused.
1. The decision was not Wednesbury unreasonable; on the evidence, it was clear that the respondents had been aware and taken account of the duty to provide sufficient sites for gypsies under the 1968 Act. The fact that they continued to be in breach of their statutory duty did not preclude their right to decide to recover possession of the site, provided that they had considered their duty. They had also made their decision in accordance with the policy regarding unauthorised encampments, but taking account of the significant factors.
2. In determining whether to evict, the council had to balance their competing statutory duties and were entitled to decide how much weight to attach to their competing statutory duties.
3. There was no evidence of children in need prior to the July decision. Consequently, the respondents were not in breach of their statutory duty under the Children’s Act 1989.
4. There was no duty on the respondents to consult the applicants by virtue of their statutory duty to provide sufficient sites for gypsies. The evidence showed that the council had consulted the applicants on the generality of the complaints, but did not need to specify them in detail. There was no evidence that the applicants had responded to the generality of the complaints.
Philip Engelman (instructed by Bobbets Mackan, of Bristol) appeared for the applicants; Paul Brown (instructed by the solicitor to Avon County Council) appeared for the local authority.
