Trespassers in wrongful possession — Possession sought under Order 113 proceedings — Trespassers claiming to be gipsies — Council in breach of statutory duty under Caravan Sites Act 1968 – Whether decision to seek possession outside powers of the council
The appellants are trespassers living in 6 “benders” in the rear gardens of 13-16 Hampton Row, Bath, land belonging to the respondent county council. “Benders” are shelters formed of branches covered with tarpaulins or polythene. The council sought an order for possession under the summary procedure by the Rules of the Supreme Court, Order 113. The appellants contended that the council had no right to come to the court to seek the order for possession.
The appellants accepted that they were trespassers, but argued that as they were “gipsies” as defined by section 16 of the Caravan Sites Act 1968, the council was in breach of its statutory duty under section 6 of the Act to exercise its powers to provide caravan sites so far as may be necessary for gipsies residing in or resorting to the council’s area, and in the circumstances a decision to seek possession was unreasonable (see Associated Provincial Picture Houses v Wednesbury Corpn [1948] 1 KB 223). They sought an adjournment to prove these matters. The order for possession was granted by Stuart-Smith J in October 1986.
Held 1. The decision in West Glamorgan County Council v Rafferty [1987] 1 WLR 457 binds the court to hold that (a) a decision by a local authority to seek to evict squatters can be quashed in proceedings for judicial review, where the decision to take proceedings is unreasonable when the authority is in breach of its obligation to provide caravan sites for gipsies, (b) if the decision to take proceedings is quashed, any eviction proceedings must be abortive, and (c) no pre-condition for the validity of a new decision to seek an eviction order can be laid down. 2. The decision to take proceedings cannot be attacked in the eviction proceedings; separate judicial review proceedings must be instituted. It is an abuse of the process of the court, for a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection, under public law to proceed by way of an ordinary action and by this means evade the provisions of order 53 for the protection of public authorities: O’Reilly v Mackman [1983] 2 AC 237 and Cocks v Thanet District Council [1983] 2 AC 286. The appeal against the order for possession was dismissed.
Waverley Borough Council v Hilden
[1988] 1 WLR 246 approved and followed;
Wandsworth London Borough Council v Winder [1985]
AC 461 distinguished.
David Geey (instructed by Phillips & Co, of Bath) appeared for the appellants; and David Mole (instructed by the solicitor to the council) appeared for the respondents.
