Caravan site — Site provided for gipsies under Caravan Sites Act 1968 — Right to occupy terminated — Mobile Homes Act 1983 — Whether site a protected site — Whether site occupied as a caravan site providing accommodation for gipsies — Meaning of ‘gipsy’ — Whether site providing accommodation for gipsies excluded from definition of protected site
The appellants,
a London borough council, are the owners of a caravan site, acquired in 1967,
and opened between October 1972 and December 1973 as a site to provide
accommodation for gipsies in discharge of the appellants’ duty under section 6
of the Caravan Sites Act 1968. The respondents were among the first to come on
the site after it was opened and have occupied a pad since that time. The
respondents were gipsies by race and did seasonal work fruit-picking away from
the site for four to five months a year. In other respects they had their
permanent residence on site. In October 1986 the appellants gave the
respondents notice to quit, and in November 1986 instituted proceedings for
possession. The respondents contended that the caravan site was a ‘protected
site’ as defined by section 5(1) of the Mobile Homes Act 1983, and accordingly
their rights to occupy their pad could be terminated only as provided by the
1983 Act.
The Court of
Appeal (February 23 1988), in reversing the decision of Judge James in the
Woolwich County Court (November 3 1987), decided that the site was a ‘protected
site’. Greenwich London Borough Council, as owners of the site, appealed that
decision.
Section 5(1)
of the Mobile Homes Act 1983 defines a ‘protected site’ as not including ‘any
land occupied by a local authority as a caravan site providing accommodation
for gipsies’. The site was acquired by the appellants to provide accommodation
for gipsies in discharge of their duty under section 6 of the Caravan Sites Act
1968. The evidence, accepted by the judge, permitted the inference that the
occupiers of the site were largely seasonal workers, like the respondents, who
went on their travels for substantial periods of the year. The Court of Appeal,
in deciding that the status of the site was determined by the character of
those presently occupying the site, and that none were persons of a nomadic
habit of life and therefore gipsies, was wrong. The distinction between local
authority sites ‘providing accommodation for gipsies’ and other local authority
sites became crucial when the Mobile Homes Act 1983 was enacted. The policy
regarding the performance by local authorities of their duty to provide
accommodation for gipsies under section 6 of the Caravan Sites Act 1968, while
technically inadmissible as an aid to construction, is fully cognisable as a
powerful pointer to the intention of the legislature in excluding local
authority sites ‘providing accommodation for gipsies’ from the definition of a
‘protected site’ in the Mobile Homes Act 1983: see p 114.
Even if there
is an ambiguity in the definition of ‘gipsies’ in section 16 of the Caravan
Sites Act 1968, the intention of the legislature in the Mobile Homes Act 1983
was clearly to exclude from the definition of ‘protected site’ sites such as
the subject site provided by local authorities in the discharge of their duty
under section 6 of the Caravan Sites Act 1968 to accommodate those
whom they bona fide believe to be gipsies because they are nomadic for
part of the year, not withstanding that they may establish a permanent
residence on the site by returning from year to year. Such a site will not
become a ‘protected site’ even if some of the occupiers give up their nomadic
way of life entirely: see pp 114H-115.
to in the opinions
Mills v Cooper [1967] 2 QB 459; [1967] 2 WLR 1343; [1967] 2 All ER
100; (1967) 65 LGR 275, DC
West
Glamorgan County Council v Rafferty [1987] 1
WLR 457; [1987] 1 All ER 1005, CA
Appeal against
a decision of the Court of Appeal
This was an
appeal against a decision of the Court of Appeal (Purchas LJ and Heilbron J)
(February 23 1988) allowing an appeal against the decision of Judge James at
the Woolwich County Court (November 3 1987), who had decided that a caravan
site was not a ‘protected site’ in granting an order for possession.
Macdonald QC and Colin Braham (instructed by the solicitor to the Greenwich
London Borough Council) appeared for the appellants.
Pascoe QC and David Wade (instructed by Thomas Boyde Whyte) appeared for the
respondents.
following opinions were delivered.
LORD BRIDGE
OF HARWICH: My Lords, The appellants are the local
authority for the London Borough of Greenwich. I shall refer to them as ‘the
council’. The respondents are Mr and Mrs Powell. I shall refer to them as ‘the
Powells’. The council own a caravan site known as the Thistlebrook Caravan Site
at Abbey Wood, SE2. The Powells occupy part of the site known as pad J1, on
which they are permitted to station two caravans pursuant to the terms of an
agreement with the council. In October 1986 the council gave the Powells four
weeks’ notice to quit and in November 1986 they instituted proceedings for
possession. The Powells pleaded in defence that the Thistlebrook site was a
‘protected site’ as defined by section 5(1) of the Mobile Homes Act 1983. An
agreement under which a person is entitled to station a caravan on a protected
site and to occupy it as his only or main residence may be terminated only as
provided by Schedule 1 to the Act of 1983. The Powells’ agreement has never
been so terminated and there is no dispute that they occupy the caravans as
their only or main residence. Hence the only issue in the case is whether the
Thistlebrook site is a ‘protected site’ as defined by section 5(1). On November
3 1987 Judge James at the Woolwich County Court held that it was not and made
an order for possession. On February 23 1988 the Court of Appeal (Purchas LJ and
Heilbron J) held that it was and allowed the Powells’ appeal. The council now
appeal by leave of your Lordships’ House.
The issue
raised is one of great importance for local authorities. It can be understood
only in the context of the historical development of the legislation governing
caravan sites.
In the 1950s
the mushrooming of residential caravan sites to alleviate the acute shortage of
conventional housing presented many problems to local planning authorities
which their powers under the Town and Country Planning Acts were inadequate to
resolve. The first direct statutory control over caravan sites as such was
imposed by the Caravan Sites and Control of Development Act 1960. This
established a system of licensing of caravan sites by local authorities which
gave effective control over both the establishment of new sites and the
conditions under which sites were required to be operated. Section 24 of the
Act gave power to local authorities themselves to provide
compulsorily for the purpose. Sites provided by local authorities, since they
were themselves the licensing authorities, were not required to be licensed:
para 11 of Schedule 1.
Part I of the
Caravan Sites Act 1968 introduced for the first time a very limited form of
statutory security of tenure for the occupier of a residential caravan on a
‘protected site’ as defined by section 1(2), either as licensee of a pitch on
which to station his own caravan or as occupier of a caravan belonging to the
site owner. In each case his contractual right could be determined only by four
weeks’ notice and he could be evicted only by court order. The court was given
power to suspend enforcement of an eviction order ‘for such period not exceeding
12 months from the date of the order as the court thinks reasonable’ and from
time to time to extend the period of suspension for not more than 12 months at
a time: section 4. This limited protection I shall refer to as ‘the 1968
security of tenure’. A ‘protected site’ is defined by section 1(2), which
provides:
For the
purposes of this Part of this Act a protected site is any land in respect of
which a site licence is required under Part I of the Caravan Sites and Control
of Development Act 1960 or would be so required if paragraph 11 of Schedule 1
to that Act (exemption of land occupied by local authorities) were omitted, not
being land in respect of which the relevant planning permission or site licence
—
(a) is expressed to be granted for holiday use
only; or
(b) is otherwise so expressed or subject to
such conditions that there are times of the year when no caravan may be
stationed on the land for human habitation.
The effect of
this definition is that the 1968 security of tenure is available to all
occupiers of residential caravans on local authority sites as well as on
privately owned sites.
Part II of the
Act of 1968, which came into force on April 1 1970, attempted to resolve the
problem of providing orderly caravan sites to accommodate the gipsy community
and of controlling unauthorised gipsy encampments. By definition in section 16:
‘gipsies’
means persons of nomadic habit of life, whatever their race or origin, but does
not include members of an organised group of travelling showmen, or of persons
engaged in travelling circuses, travelling together as such.
Section 6
imposes a duty on local authorities
. . . to
exercise their powers under section 24 of the Caravan Sites and Control of
Development Act 1960 (provision of caravan sites) so far as may be necessary to
provide adequate accommodation for gipsies residing in or resorting to their
area.
Sections 10 to
12 impose a system of control of the unauthorised stationing of gipsies’
caravans in the area of any local authority which is dependent on the
designation of that area by the minister under section 12 as an area to which
section 10 applies. The condition that justifies designation under section 12
is that it must appear to the minister (section 12(2)):
. . . either
that adequate provision is made [in the area] for the accommodation of gipsies
residing in or resorting to the area, or that in all the circumstances it is
not necessary or expedient to make any such provision.
Within a
designated area it is an offence under section 10 for a gipsy to station a
caravan on land within the boundaries of a highway, on other unoccupied land or
on occupied land without the consent of the occupier.
magistrates’ court of unauthorised gipsy caravans stationed in a designated
area.
The policy
underlying Part II of the Act of 1968 is, if I may say so, admirably described
by Ralph Gibson LJ in West Glamorgan County Council v Rafferty
[1987] 1 WLR 457 at p 463D:
First,
adequate accommodation is to be provided for gipsies in the area of the local
authority in the interest of the gipsies themselves — giving them sites to
which they can lawfully go and which will be supplied with facilities and
supervised so that the sites will be maintained in decent order. Given some
security of accommodation their children are more likely to get effective
instruction in school. Any gipsies not complying with the regulations of the
site may be ejected. Such sites will be better both for the travelling people
who use them and for those who live near the sites. The second purpose of the
legislation is plain from sections 10 and 12 of the Act of 1968.
Ralph Gibson
LJ then summarises the effect of sections 10 to 12 and continues (p 463H):
The rest of
the community is thus to an extent protected from visitation by gipsies
trespassing on land, and camping on unregulated sites so as to cause nuisance,
and sometimes damage, to those areas in which they trespass and the people
living there.
The Mobile
Homes Act 1975 gave greatly enhanced security of tenure to a person stationing
his own caravan on a licensed caravan site for occupation as his only or main
residence. The detailed provisions were elaborate and have now been superseded.
It is sufficient, therefore, to say that, in substance, they gave the occupier
statutory security of tenure for five years, renewable for a further three
years. This I will call ‘the 1975 security of tenure’. The Act of 1975,
however, by its own definition of ‘protected site’, which I need not set out,
deliberately excluded from the benefit of the 1975 security of tenure occupiers
of caravans on all local authority sites.
The Mobile
Homes Act 1983 replaced the main provisions of the Act of 1975 and still further
enhanced the security of tenure enjoyed by a person stationing his own caravan
on an authorised site for occupation as his only or main residence. Subject to
exceptions which are immaterial for present purposes, this security (‘the 1983
security of tenure’) in substance continues indefinitely and is transmissible
by sale or gift of the caravan. The occupier cannot be evicted except by court
order which may be made only on the grounds, put shortly: (1) that the occupier
is in breach of agreement and that it is reasonable for the agreement to be
terminated; (2) that the occupier is not occupying the caravan as his only or
main residence; (3) that the condition of the caravan is detrimental to the
amenity of the site (Schedule 1, Part I, paras 4-6). For present purposes, the
all-important change effected by the Act of 1983, as compared with the Act of
1975, is to extend the 1983 security of tenure to caravans stationed on all
local authority sites except gipsy sites. This change is effected by the definition
in section 5(1) of the Act of 1983, which reads:
‘protected
site’ does not include any land occupied by a local authority as a caravan site
providing accommodation for gipsies . . . but, subject to that, has the same
meaning as in Part I of the Caravan Sites Act 1968.
The question on
which this case turns is whether the Thistlebrook site is occupied by the
council ‘as a caravan site providing accommodation for gipsies’. It is common
ground that the question must be answered by reference to the site as a whole,
not by reference to individual pads or pitches.
The facts may
not have been investigated at the trial as fully as they might have been if the
issues canvassed in the Court of Appeal and before your
I think, in dispute. The Thistlebrook site was acquired by the council by
compulsory purchase in 1967 under section 24 of the Act of 1960. Before
acquisition the site was occupied by a number of caravan dwellers who may or
may not have been persons of nomadic habit of life. The trial judge gave an
interesting account of the historical background leading to the compulsory
purchase, but treated it, as I think rightly, as irrelevant to the issues. In
the Court of Appeal there was produced for the first time the report of the
inspector who held an inquiry into objections to the council’s compulsory
purchase order and this report was admitted without objection as additional
evidence. The Court of Appeal seem to have attached some importance to it, but
there are two reasons why I find it difficult to draw any relevant inferences
from the case made for the council in support of the compulsory purchase order
as reported by the inspector. First, the acquisition was effected long before
the council had any statutory duty to provide accommodation for gipsies.
Second, the evidence is silent as to what happened to the site between 1967 and
1972. The most the inspector’s report proved of possible relevance was that a
few of the caravan dwellers now resident on the site had been there before 1967
and objected to the compulsory purchase order.
The evidence
of the principal witness for the council, which the judge accepted, was that
the site was opened in three stages between October 1972 and December 1973 as a
site to provide accommodation for gipsies in discharge of the council’s duty
under section 6 of the Act of 1968. The Powells were among the first to come on
the site after it was opened. The site had 54 pads, of which some, like that
occupied by the Powells, accommodated more than one caravan. In May 1974 the
Secretary of State for the Environment made the Gipsy Encampments (Designation
of the London Borough of Greenwich) Order 1974 (SI 1974 No 920). The order
recites that it appears to the Secretary of State that adequate provision is
made in the London Borough of Greenwich for the accommodation of gipsies
residing in or resorting to that area and designates it as an area to which
section 10 of the Act of 1968 applies. The order must necessarily be read as
referring to the Thistlebrook site as this was the only caravan site provided
for by the council and hence the only site in the borough purporting to provide
accommodation for gipsies.
The Powells
both gave evidence which the judge accepted. Mr Powell said that he was a gipsy
by race and proud of it. Their evidence was that they did seasonal work
fruit-picking away from the Thistlebrook site which had usually been for four
to five months a year. In 1987 they had been absent for three months. They had
one residential caravan (presumably left permanently at Thistlebrook) and one
mobile caravan (presumably used on their travels). Their pattern of life was
typical of many others resident on the Thistlebrook site. They and all the
other occupants of the site had their permanent residence there and many
others, like the Powells, had been there for many years.
The council’s
principal witness produced in evidence a helpful schedule, again accepted by
the judge, showing absences from the site in 1986 and 1987. A substantial
number of occupants of pads on the site had been absent from the site for
periods up to five months in each year and for longer than could reasonably be
accounted for as holiday absences. The clear inference from this evidence taken
together with the Powells’ evidence was that these occupiers were seasonal
workers like the Powells who went on their travels in their caravans for
substantial periods of the year, moving from place to place to find work. It is
not without significance that the site rules, which were incorporated in
occupiers’ agreements with the council, allowed occupiers to be absent from the
site for up to 20 weeks in any one year (or for longer if
for the weeks of absence half the fixed weekly payments provided for in their
agreements. This appears to have been designed to make provision for persons
following just such a pattern of life as the Powells.
The judge held
that the character of the site was determined by the purpose of the council to
occupy it as a site providing accommodation for gipsies and that this was
affirmed by the order made by the Secretary of State for the Environment in
1974 under section 12 of the Act of 1968 designating the London Borough of
Greenwich as an area to which section 10 applies. He had no material to
indicate any subsequent change in the council’s purpose. On this view he did
not find it necessary to decide whether those presently occupying the site were
persons of nomadic habit of life. On the evidence, in particular the schedule
of absences in 1986 and 1987, he indicated that ‘it would if applicable have
been my conclusion that none of those now occupying Thistlebrook are at the
present time of nomadic habit of life’. The Court of Appeal held that the
status of the site was determined by the character of those presently occupying
the site and that none were persons of nomadic habit of life. Hence the site
was a ‘protected site’ as defined by section 5(1) of the Act of 1983 and the
Powells’ agreement giving them the right to occupy had never been determined.
In Mills
v Cooper [1967] 2 QB 459 the Divisional Court had to consider the
meaning of the word ‘gipsy’ in section 127 of the Highways Act 1959 without the
aid of any statutory definition. The section provides:
If, without
lawful authority or excuse . . . (c) . . . a gipsy pitches a booth,
stall or stand, or encamps, on a highway, he shall be guilty of an offence . .
.
Lord Parker CJ
said, at p 467:
I think that
in this context ‘gipsy’ means no more than a person leading a nomadic life with
no, or no fixed, employment and with no fixed abode.
Diplock LJ, at
p 468, indicated his view that ‘gipsy’ in the section bore
its popular
meaning, which I would define as a person without fixed abode who leads a
nomadic life, dwelling in tents or other shelters, or in caravans or other
vehicles.
Both Lord
Parker CJ and Diplock LJ rejected the argument that ‘gipsy’ in the context
referred only to a person of Romany race.
It is
difficult to think that the draftsman of the Act of 1968 did not have these
passages in mind when he provided the definition of ‘gipsies’ in section 16. He
could have defined them as ‘persons of nomadic habit of life and of no fixed
abode’, but he did not. Moreover, the duty imposed by section 6(1) is to
provide accommodation ‘for gipsies residing in or resorting to their
area’. I am inclined to conclude from these indications alone that a person may
be within the definition if he leads a nomadic life only seasonally and
notwithstanding that he regularly returns for part of the year to the same
place where he may be said to have a fixed abode or permanent residence.
But we are
concerned only with the definition of ‘gipsies’ in section 16 of the Act of
1968, so to speak, at one remove. What we have directly to construe is the
definition of ‘protected site’ in the Act of 1983. It was for this reason that
I thought it necessary to trace the legislative history in some detail. This
made it clear that from 1968 to 1983 the only security of tenure enjoyed by a
caravan resident on any local authority site was the 1968 security of tenure.
Meanwhile, from 1970 to 1983 local authorities up and down the country, and in
particular London boroughs, were doing their best to discharge their duty under
section 6 of the Act of 1968 to provide sites for gipsies in accordance with
policy guidance issued to them by the Department of the Environment.
Likewise, local authority areas were being designated under section 12 of the
Act of 1968, in order to make available the important powers of control over
unauthorised gipsy caravans under sections 10 and 11, in accordance with the
view then taken as to what could amount to ‘adequate provision . . . for the
accommodation of gipsies residing in or resorting to’ the local authority area.
It was only
when the Act of 1983 came into force that it became important to distinguish
between local authority sites, ‘providing accommodation for gipsies’ and other
local authority sites, because it was then, for the first time, that the
crucial distinction between the security of tenure enjoyed by caravan residents
on the two classes of site was introduced. The Bill which became the Act of
1983 was a Government Bill and it would be quite unrealistic not to recognise
that the distinction between the two classes of site made in the statute must
have been made with full knowledge of the policy which had been followed since
1970 with regard to the performance by local authorities of their duty under
section 6 of the Act of 1968. That policy, while technically inadmissible as an
aid to the construction of the definition of ‘gipsies’ in section 16 of the Act
of 1968, is, in my opinion, fully cognisable as a powerful pointer to the
intention of the legislature in excluding local authority sites ‘providing
accommodation for gipsies’ from the definition of ‘protected site’ in the Act
of 1983.
The available
indications of the relevant policy are twofold. First, your Lordships have had
the advantage of seeing a circular (Circular 28/77) issued by the Department of
Environment to local authorities in England on March 25 1977. The appendix to
that circular is headed ‘Gipsy Caravan Sites. Notes for the Guidance of Local
Authorities in the Implementation of Part II of the Caravan Sites Act
1968.’ Para 5 of the notes observes
perspicaciously:
The criterion
‘nomadic habit of life’ leads to a certain ambiguity, especially in relation to
gipsies who settle for lengthy periods on authorised sites.
But later
passages in the notes firmly grasp the nettle of this ambiguity and encourage
local authorities to provide sites to accommodate gipsies in four categories as
follows: (1) emergency stopping-places: paras 55 and 56; (2) transit or
short-stay sites: para 57; (3) residential sites: paras 58-60; (4) permanent
sites for long-term residential use: paras 61-65. The last of these categories
can only have had in contemplation sites such as that at Thistlebrook to which
gipsies return year after year as their permanent residence but from which they
set forth at certain seasons to pursue their traditional nomadic way of life.
Second, there
is ample evidence that the policy, advocated in the circular with regard to
permanent sites for long-term residential use, had been recognised by the
Secretary of State as an appropriate criterion before 1977, for application
under section 12 of the Act of 1968, in deciding whether adequate provision had
been made in a local authority area for the accommodation of gipsies to justify
designation of the area. The undisputed evidence of the council’s principal
witness at the trial, which the judge accepted, was that 17 other London
boroughs besides Greenwich had been designated under section 12 on the basis
that they had made adequate provision for the accommodation of gipsies on sites
which were operated on similar lines to the Thistlebrook site, ie by providing
permanent accommodation for gipsies as a home base from which they pursued
their nomadic habit of life only seasonally. At least eight of these
designation orders were made by statutory instruments dated between 1973 and
1975.
These
considerations confirm me in the opinion that, even if there is an ambiguity in
the definition of ‘gipsies’ in section 16 of the Act of 1968, the intention of
the legislature in the Act of 1983 was clearly to exclude from the
definition of ‘protected site’ sites such as that at Thistlebrook provided by
local authorities in discharge of their duty under section 6 of the Act of 1968
to accommodate those whom they bona fide believe to be gipsies because
they are nomadic for part of the year, notwithstanding that they may establish
a permanent residence on the site by returning from year to year. Such a site
will not become a ‘protected site’ even if some of the erstwhile nomads, as
well they may, give up their nomadic way of life entirely. It would be
different, of course, if the local authority adopted a policy of offering
vacancies on the site to static residents with fixed full-time employment, but
this is hardly ever likely to happen.
Any other
construction of ‘protected site’ in section 5(1) of the Act of 1983 would, it
seems to me, cause great difficulties both for local authorities and for most
of the gipsy community and would undo much of the good work which has been done
in this difficult field. Those already established on sites like Thistlebrook
would, of course, enjoy full 1983 security of tenure. But local authorities in
the position of the council would need to start de novo to discharge
their duty under section 6 of the Act of 1968. Many existing designations under
section 12 would have to be revoked or would perhaps be automatically
invalidated. Your Lordships were told that, on the strength of the Court of
Appeal’s decision, some proceedings had already been instituted seeking
judicial review of existing orders made under section 12. For the future, local
authorities establishing new sites providing accommodation for gipsies would
have to be vigilant to prevent their residence acquiring any degree of permanency.
This, I think, they could in practice do only by applying a short rule-of-thumb
limit of stay, which would be quite contrary to the interests of the gipsy
community.
I would
accordingly allow the appeal, set aside the order of the Court of Appeal and
restore the order of the Woolwich County Court.
LORD
TEMPLEMAN: My Lords, For the reasons given by my
noble and learned friend, Lord Bridge of Harwich, I would allow this appeal.
LORD
GRIFFITHS: My Lords, I agree that this appeal
should be allowed for the reasons given in the speech of my noble and learned
friend, Lord Bridge of Harwich.
LORD
ACKNER: My Lords, I have had the advantage of
reading the speech of my noble and learned friend, Lord Bridge of Harwich, and
I would allow this appeal.
LORD LOWRY:
My Lords, I have had the advantage of reading in
draft the speech of my noble and learned friend, Lord Bridge of Harwich. I
respectfully agree with it and for the reasons given by him I would allow the
appeal.
Appeal
allowed.
