Gypsy caravan site – Human rights – Right to respect for private and family life – Article 8 of the European Convention on Human Rights – Applicant facing eviction from caravan site – County court making suspended possession order – Applicant seeking damages for violation of human rights – Whether applicant’s rights violated by inability to challenge claim for possession on basis of personal circumstances – Application granted
In December 2004, the gypsy council gave the applicant five weeks’ notice terminating her licence to occupy a pitch at a gypsy caravan site that it managed pursuant to an agreement with the local borough council. The council subsequently brought an action to recover possession of the pitch, relying upon the termination of the licence and upon alleged misconduct amounting to nuisance. The applicant contended that the relevant legal provisions were incompatible with the right to respect for home and family life under Article 8 of the European Convention on Human Rights. It was common ground that the council was to be treated in the same way as the borough council, such that it was to be regarded as a public authority owing a duty to refrain from acting incompatibly with Convention rights, and that the applicant could rely upon the public law defence that the council’s decision to recover possession was unreasonable.
Granting the possession order, the judge held that incompatibility with the Convention was not seriously arguable in the light of the amendment to the Caravan Sites Act 1968, which had been introduced following the decision of European Court of Human Rights in Connors v United Kingdom 66746/07 [2004] 4 PLR 16. This had conferred a power on the court in cases concerning caravan sites to suspend the enforcement of any possession order for up to 12 months. He rejected the public law defence without hearing evidence on the basis that it was not seriously arguable that the council’s decision to recover possession had been an improper exercise of its powers. He suspended the possession order for four months on terms, including a requirement that the applicant’s teenage son, who he found to be guilty of misconduct, was to leave the site.
When the Court of Appeal dismissed the applicant’s appeal against that decision, she complained to the European Court of Human Rights alleging that the decision to uphold the judgment making a possession order constituted an unjustified breach of her rights under Article 8. She contended, inter alia, that the relevant statutory provisions had prevented her from challenging the possession claim in domestic proceedings.
Held: The application was granted.
Article 8 provided that there should be no interference by a public authority with the exercise of the individual’s rights except such as was in accordance with the law and necessary in a democratic society. It was not disputed in the present case that the interference was “in accordance with the law” and pursued a legitimate aim. The requirement that the interference be “necessary in a democratic society” raised a question of procedure as well as one of substance. The procedural safeguards available to the individual would be especially material in determining whether the respondent State had, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the court had to examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8. The loss of one’s home was the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of that magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8, notwithstanding that, under domestic law, his right to occupation had come to an end: Chapman v United Kingdom (2001) 33 EHRR 18; Connors v United Kingdom [2004] 4 PLR 16; McCann v United Kingdom [2008] 2 EGLR 45; [2008] 28 EG 114; Kay v United Kingdom [2010] PLSCS 246; and Connors considered.
In the present case, the applicant sought to challenge the making of the possession order in her case, and not merely to suspend its effect. The judge considered himself bound by the judgment in Kay v Lambeth London Borough Council; Leeds City Council v Price [2006] PLSCS 62; [2006] 11 EG 194 (CS) and concluded that the only possible challenges to the making of the possession order were to the law itself or on conventional judicial review grounds. The applicant was therefore unable to challenge the making of a possession order based on her personal circumstances. Unlike in Connors, the applicant in the present case was able to argue for a suspension of the possession order for up to twelve months. Moreover, before the expiry of any suspension period granted she could seek a further extension. In deciding whether to grant a suspension, the judge was required to take into account the applicant’s personal circumstances. However, the fact remained that the applicant was not able to argue that no possession order ought to have been made at all. The possibility of suspension for up to twelve months of the possession order was inadequate, by itself, to provide the necessary procedural guarantees under Article 8. The fact that an individual might effectively be able to remain in her home in the long-term by making repeated applications to extend suspension of a possession order did not remove any incompatibility of the procedure with Article 8. The applicant’s attempt to contest the making of a possession order had failed because it was not possible at that time to challenge the decision to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference had not been observed. As a result, the applicant was dispossessed of her home without any possibility to have the proportionality of her eviction determined by an independent tribunal. It followed that there has been a violation of Article 8.
Eileen O’Grady, barrister