Land – Compulsory purchase – Home loss payments – Claimant travellers being moved to new caravan site following acquisition of original site for development – Claimants applying for declaration that provision in Land Compensation Act 1973 for home loss payments incompatible with rights under European Convention on Human Rights – Whether home loss payment provisions discriminating unlawfully between caravan dwellers and those who lived in dwelling-houses – Applications dismissed
The claimants were Irish travellers belonging to a recognised ethnic group within the scope of the prohibition of discrimination in article 14 of the European Convention on Human Rights. Each of them lived in a caravan on a site in Eleanor Street, London E3, where there were 19 pitches. The site was owned by Tower Hamlets London Borough Council and provided for occupation by travellers. It was required by Crossrail Ltd, a fully owned subsidiary of Transport for London, for the construction of a tunnel intervention and ventilation shaft in an underground section of its new railway (Crossrail).
Under section 6(1) of the Crossrail Act 2008, Crossrail Ltd had the power to acquire land compulsorily and had compulsorily acquired land needed for pitches to replace those lost on the Eleanor Street site. The claimants were willing to co-operate in the removal of their caravans to suitable pitches on other land nearby. They did not dispute that a suitable alternative site was being made available to them on reasonable terms, or that the effect of section 33(2) of the Land Compensation Act 1973 Act was to prevent home loss payments being made to them.
However, the claimant applied for judicial review, contending that section 33(2) of the 1973 Act discriminated unlawfully between caravan dwellers and those who lived in dwelling-houses, and was thus incompatible with article 14 of the European Convention (prohibition of discrimination), read in conjunction with article 8 (right to respect for private and family life) or article 1 of the First Protocol (protection of property), or both. The only remedy they sought was a declaration of incompatibility under section 4 of the Human Rights Act 1998.
The defendant secretary of state resisted the claim, on three main grounds: (i) the circumstances of the claimants’ case did not fall within the ambit of article 8 or article 1 of the First Protocol; (ii) in any event, the claimants were not in an analogous position to those with whom they chose to compare themselves, namely people living in dwelling-houses; and (iii) any difference in treatment arising from section 33(2) was objectively and reasonably justified.
Held: The applications were dismissed.
(1) The claimants being denied home loss payments and discretionary payments under section 33(2) of the 1973 Act did not impinge upon their rights under either article 8 of the European Convention or article 1 of the First Protocol. The effect of section 33(2) was to prevent a home loss payment being made to them, and other in their position, because a suitable alternative site for the stationing of their caravans was available on reasonable terms. That was not tantamount to an expropriation of property. The effect of section 33(2) was merely to deny the claimants a payment of money which would have been made to them if another suitable site had not been available.
(2) There was a real and obvious dissimilarity between the claimants’ situation and the situation of those with whom they sought to compare themselves. The situations of somebody who lived in a caravan and somebody who lived in a dwelling house were not analogous. When a caravan dweller was compelled to move from a site where he had stationed his caravan, he was able to take the caravan with him as it was mobile. By contrast, when a person living in dwelling house was displaced, he left not only the location where he had made his home but also the house in which he had lived as it was immoveable. That was a practical and significant difference which went to the heart of the present case. The difference between the two situations was not negated by the duties in sections 39 and 40 of the 1973 Act to rehouse residential occupiers and caravan dwellers respectively. An issue of discrimination under article 14 of the European Convention did not arise in the present case. The analogy which the claimants sought to drawn between their situation and that of persons resident in bricks and mortar accommodation was false.
(3) In the light of European and domestic jurisprudence, it could not be said that the restriction on the availability of home loss payments to caravan dwellers in section 33(2) was outside Parliament’s margin of appreciation in the relevant context, or disproportionate. Home loss payments represented an additional cost to the general public of schemes for development or infrastructure which required compulsory acquisition of land and interests in land in the public interest. As an extra component of the framework for compensation under the 1973 Act, they clearly belonged to a statutory regime which implemented that aspect of economic and social policy. In that area, Parliament had traditionally been accorded a wide area of discretion. Section 33(2) could not be regarded as a measure which was aimed at, or bore specifically upon, an unusually vulnerable group. The test to be applied by the court was whether the measure under challenge was manifestly without reasonable foundation. It could not be said that, in this case, Parliament had failed that stringent test: R (on the application of Wilson) v Wychavon District Council [2007] EWCA Civ 52; [2007] PLSCS 27 considered.
Alex Offer (instructed by Community Law Partnership) appeared for the claimants; Benjamin Lask (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
