Gypsy caravan sites — Security of tenure — Whether absence of security of tenure on local authority gypsy sites incompatible with human rights legislation — Part I of Caravan Sites Act 1968 — Articles 8 and 14 of European Convention on Human Rights — Claim dismissed
The claimant was a gypsy who lived with his wife and four children in a mobile home on a site owned and operated by the defendant council. He brought proceedings to challenge the lawfulness of an attempt by the council to evict him. In the course of those proceedings, he sought a declaration that the provisions of Part I of the Caravan Sites Act 1968 were incompatible with the right to respect for private life and to freedom from discrimination under Articles 8 and 14 of the European Convention on Human Rights.
Under the 1968 Act, tenants or licensees of pitches on gypsy sites provided by local authorities did not enjoy security of tenure, in contrast with tenants in conventional council housing, or caravan dwellers on private sites. Local authorities had the power to evict them, under section 2, upon giving not less than four weeks’ notice.
Although the claimant’s case was later compromised so far as it related to the council’s decision to evict, it continued on the sole issue of incompatibility with the Convention, with the Secretary of State defending the claim as an interested party. The claimant accepted that, in the past, the lack of security of tenure of gypsy occupiers of council sites had been justified (as held in Somerset County Council v Isaacs [2002] EWHC 1014 (Admin); [2002] 25 EG 151 (CS)). However, he contended that that was no longer the case in the light of, inter alia, a government report of October 2002, which showed that: (i) many gypsies did not travel extensively; (ii) a distinction was made, in relation to local authority sites, between “residential” and “transit” sites and pitches; and (iii) residential sites had a very low turnover, and were, in the main, stable.
Held: The claim was dismissed.
Although the relevant government policy had previously been found to be justified, the onus remained upon the defendants to prove that there was objective justification for the interference with the right to private and family life that the absence of security of tenure represented. They had succeeded in doing so. At a macro level, as a matter of general policy, the previous justification for the absence of security of tenure had been that gypsy culture was concerned with nomadism, which gave rise to a need for a substantial availability of gypsy sites, and that such sites should not be clogged up with persons who did not travel, effectively removing them from the stock of available sites. The new report, showing that a majority of gypsies were no longer nomadic, indicated that a rethink was called for. However, before any change could be made in the legislation, a crucial, and difficult, question would need to be answered as to how to define gypsies to whom security of tenure was to be given. The government’s argument, that it was trying to make provision for gypsies with a nomadic way of life, and that there were alternative forms of accommodation available for those with a settled way of life, was also persuasive. Accordingly, the present position was still appropriate and justified: R v Secretary of State for Employment, ex parte Seymour-Smith (No 2) [2000] 1 All ER 857 (HL) and Hooper v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin); [2002] UKHRR 785 considered. It was not necessary to consider justification at the micro level in the present case, since the claimant’s own individual position had been resolved.
As to Article 14, applying the four-stage test identified in Michaelek v Wandsworth London Borough Council [2002] EWCA Civ 277; [2002] HLR 39: (i) the facts fell within the ambit of one or more Convention provisions; (ii) the claimant and other persons put forward for comparison received different treatment in respect of that right; (iii) the chosen comparators, namely conventional council tenants, were in an analogous situation; but (iv) there was justification for the difference in treatment, in that it pursued a legitimate aim and was proportionate to that aim.
Jan Luba QC and Valerie Easty (instructed by The Community Law Partnership, of Birmingham) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the interested party.
Sally Dobson, barrister
