Travellers — Local authority — Licence agreement — Local authority serving notice to quit on travellers — Authority wishing to use land for public purposes — Whether travellers protected by right to respect for home under European Convention on Human Rights — Appeal dismissed
Since 1987, the appellant travellers had occupied a site as their home under a licence agreement with the respondent local authority, which owned the land. In 2004, the respondents served a notice to quit and, when it expired, commenced proceedings for possession.
The respondents argued, inter alia, that: (i) the family’s occupation was not protected under the human rights legislation; (ii) possession was required to carry out essential improvements; and (iii) the site would then be managed as temporary accommodation for travellers to the city, as recommended by the government. They argued that the appellants’ presence deterred other travellers from going onto the site, which was consequently severely underused, leading to unauthorised encampment elsewhere in the city.
The appellants asserted that: (i) the respondents’ action was unlawful under the Human Rights Act 1998 (HRA) and contrary to their right to respect for home under Article 8 of the European Convention on Human Rights (ECHR); and (ii) the grant of summary possession would be neither reasonable nor proportionate. In particular, they contended that either the works could be done while they remained on the site or they should be given temporary accommodation during the course of the works.
When the proceedings were launched, it appeared to have been established that a defendant without an extant proprietary or contractual right had no human rights defence to a claim for possession by the owner. However, that was thrown into doubt following a decision of the European Court of Human Rights (ECtHR) and a preliminary determination was therefore ordered under CPR 24. The case was transferred to the High Court, which gave summary judgment for the respondents and made a possession order. The appellants appealed.
Held: The appeal was dismissed.
The judge had been right to make an order for possession that was consistent with both domestic and European Convention law.
The principle that the enforcement of a right to possession in accordance with the domestic law of property could never be incompatible with Article 8 of the ECHR required modification in the light of the decision of the ECtHR in Connors v United Kingdom 66746/01 [2004] 4 PLR 16, but that exception had to be narrowly defined.
The ordinary presumption was that the property right of a public landowner satisfied the justification required by Article 8(2) of the ECHR. In an ordinary case, there was no need for a local authority to plead or prove individual justification: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Leeds City Council v Price [2005] EWCA Civ 289; [2005] 1 WLR 1825 considered.
There were only two possible gateways for a successful defence to summary judgment in such case, namely a serious arguable challenge: (i) under Article 8 to the law under which the possession order was made, but only where it was possible, with the interpretative aids of the HRA, to adapt the domestic law to make it more compliant; and (ii) on conventional judicial review grounds, rather than under the HRA, to the authority’s decision to recover possession: Connors distinguished.
In the present case, the respondents’ decision depended, not upon a factual allegation of nuisance or misconduct, or the bald ground that the appellants were trespassers, but upon an administrative judgment about the appropriate use of its land in the public interest. Although there was an issue as to whether the appellants’ presence “deterred” others, that was not in the context of an allegation of breach of a licence condition (analogous to a private law action), but merely part of its overall assessment. That was well within the margin of appreciation allowed by the ECtHR in the exercise of an administrative discretion. Under gateway (ii), the respondents’ action was open to challenge on conventional judicial review grounds, not on the basis that it was contrary to Article 8.
Jan Luba QC and Alex Offer (instructed by The Community Law Partnership) appeared for the appellants; Ashley Underwood QC and Douglas Readings (instructed by the solicitor for Birmingham City Council) appeared for the respondents; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the First Secretary of State, as an interested party.
Eileen O’Grady, barrister
