Gypsy camp — Trespass on unauthorised site — Judicial review of decision to bring possession proceedings — Applicability of Article 8 of European Convention on Human Rights — Claim dismissed
The claimants were gypsies who habitually travelled around the country, setting up camp, where possible, in extended family groups. They established a camped in the defendant council’s area in two unauthorised locations, both of which were on grass verges by the side of roads, and one of which was situated at the entrance to a residential estate. The defendants had no authorised gypsy sites within their area, and there was a history of the claimants being constantly moved on wherever they camped. Although they had made a homelessness application to the defendants, they were averse to being housed in bricks-and-mortar accommodation, which was all that the defendants had available.
The defendants brought possession proceedings to evict the claimants from the sites, whereupon the claimants brought a judicial review claim to challenge the decision to issue proceedings. They accepted that their present campsites were unsuitable, but resisted being moved on until an alternative site was found. They relied upon perversity and a failure to take material considerations into account, by virtue of an automatic policy of the defendants to evict unless an overriding welfare need could be proven. They also sought to rely upon Article 8 of the European Convention on Human Rights, citing unlawful interference with their home, or, should that claim fail, with their private and family life.
Held: The claim was dismissed.
(1) The evidence did not disclose the existence of an unlawful policy of automatic eviction on the part of the defendants. They had considered all material considerations, including the 2004 government policy guidance on managing unauthorised camping, the unsuitability of the sites, schooling and welfare issues, and the inevitable nuisance caused by the claimants’ camps. They had not acted perversely. The absence of an alternative site, either permanent or temporary, did not bar a local authority from obtaining possession against a trespasser where their decision to do so was otherwise reasonable. Nor did the defendants’ knowledge of the homelessness application reasonably make any difference to their conclusions; that merely begged the question of the outcome of such an application.
(2) The issue of whether there could be an Article 8 defence to possession proceedings against trespassers, where there was no sufficient and continuing link between the trespassers and the land of which possession was being sought, remained open for consideration: issue pending for a decision by the House of Lords in Leeds City Council v Price (Court of Appeal decision: [2005] EWCA Civ 289; [2005] 1 WLR 1825); Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109 and Connors v United Kingdom 66746/01 [2004] 4 PLR 16 distinguished; Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 tending against the existence of the defence. Interference with Article 8 rights, if any, would be at the lower end of the spectrum, given the powerful case for the entitlement of a local planning authority landowner to enforce their ownership rights and planning duties. If any obligation were to arise under Article 8, it would not be breached by reasonable decisions of the defendants in respect of the sites under consideration, and would make no difference to the outcome in the instant case.
Charlotte Kilroy (instructed by Christian Khan) appeared for the first to fifth, seventh, ninth and tenth claimants; Josephine Henderson (instructed by the legal department of Crawley Borough Council) appeared for the defendants; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the Office of the Deputy Prime Minister, as an interested party; the remaining claimants did not take part in the hearing.
Sally Dobson, barrister