Possession proceedings – Caravan site for travellers – Trespass – Appellant occupying pitch on site without licence of respondent council – Respondents permitting temporary occupation following birth of appellant’s child – Alternative pitch offered – Offer refused – Advice given on homelessness application – Whether respondents acting unreasonably in seeking possession of pitch – Whether affording public law defence to possession claim – Appeal dismissed
The respondent council operated a caravan site on which it provided pitches for occupation by travellers pursuant to a standard licence agreement. One of the pitches differed from the others in that it comprised a smaller living area but included office space. In 2007, the appellant moved onto that pitch with her three children, without the consent or licence of the respondents. She had previously occupied her mother’s pitch on the same site, where she had lived with her siblings, and was on the respondents’ waiting list for a pitch of her own. At the time of the move she was pregnant with her fourth child. The respondents informed her that they required the pitch for extended office accommodation and had not authorised her presence there. However, they indicated that they would allow her to occupy the pitch for a period of three months following the birth of her child, after which further welfare checks would be made and a decision taken on whether to evict. In November 2007, the respondents offered her another pitch, but she refused it.
In April 2008, the respondents informed the appellant that her occupation of the pitch would not be tolerated beyond a specified date later in the month, on the ground that the pitch had been designed solely for office accommodation and that this was to be extended to meet the needs of the site management staff. They explained the procedure for applying to be housed as a homeless person under the Housing Act 1996, following which the appellant made such an application. She did not vacate the pitch but remained as a trespasser. The respondents brought possession proceedings against her. In her defence, the appellant contended that the respondents had acted unreasonably in seeking possession before they had determined her homelessness application, thereby contravening her rights under Article 8 of the European Convention on Human Rights. The county court rejected that argument and granted summary possession. The appellant appealed.
Held: The appeal was dismissed.
The appellant occupied the pitch as a trespasser and had no defence to the possession claim under the substantive law relating to the recovery of possession of land. The court was unable to consider a free-standing challenge to the decision to seek possession on the grounds that, in the light of her personal circumstances, it was a disproportionate response and a violation of her Article 8 rights. Her defence therefore depended on establishing a seriously arguable case in public law that the respondents had acted unreasonably in seeking possession (a “gateway (b) defence”): Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 WLR 570 applied. Where a county court was faced with a public law challenge of a decision to seek possession, the standard approach to a judicial review remained intact, although the considerations that could be taken into account might be wider than a strict adherence to the Wednesbury grounds would allow. The personal circumstances might also be relevant in that regard: Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636 and Doran v Liverpool City Council [2009] EWCA Civ 146; [2009] WLR (D) 83 applied. The appellant had to show that the decision to recover possession was one that no reasonable person would consider justifiable, in the light of the factors that were, or should have been, known to the respondents at the time they made their decision. That was a strong conclusion to have to reach. Ordinarily, a landowner, even a statutory one, would not have to justify or give any reasons for its decision to seek possession in the exercise of its property rights. It was only in exceptional cases that a defendant would succeed in raising a seriously arguable case, sufficient for the equivalent of judicial review of the decision to be undertaken.
In the instant case, the county court judge had been entitled to conclude that the appellant had not crossed that threshold and had failed to raise a seriously arguable case. The respondents’ decision to seek possession was not unreasonable given that: (i) the pitch had never been the appellant’s lawful home; (ii) her occupation was short-lived; (iii) she had been offered another pitch and had refused it without providing any reason; and (iv) the respondents had properly advised her that a homelessness application could be made. As to the reason given by the respondents for seeking possession, it was not, without more perverse to evict an unauthorised occupant from a traveller site unless it was to be used for occupation by another family. Further, many of the appellant’s submissions were premature, and were more fitting to a challenge to a homelessness decision, which the respondents had not yet made.
Marc Willers (instructed by Davies Gore Lomax, of Leeds) appeared for the appellant; Kerry Bretherton (instructed by the legal department of Brent London Borough Council) appeared for the respondents.
Sally Dobson, barrister
