Gypsies – Local authority caravan site – Notice to quit – Defendant gypsies occupying plots under licence – Claimant local authority seeking possession – Whether claimant’s action contravening defendants’ right to respect for home under European Convention on Human Rights – Whether House of Lords extending test for legality of decision by public bodies – Whether appropriate case for remitting to county court – Application granted
The defendant gypsies occupied caravans on land owned by the claimant local authority. They had no security of tenure at common law and were served with a notice to quit on the ground that they were in arrears with their rent. They had also been served with an anti-social behaviour injunction (ASBI), under sections 153A and 153C of the Housing Act 1996.
The claimants brought an action for possession in the county court. The defendants applied to have the proceedings transferred to the High Court on the basis that the claim involved an issue as to whether the legislation relating to possession proceedings such as those in the instant case was incompatible with Article 8 of the European Convention on Human Rights (ECHR). The claims were transferred to the Administrative Court, pursuant to section 42 of the County Courts Act 1984 and r 30.3(2)(g) of the CPR, for consideration of a declaration of incompatibility under section 4 of the Human Rights Act 1998 and to consider whether the Caravan Sites Act 1968, as amended by the Housing Act 2004, was incompatible with the defendants’ rights under the ECHR. The secretary of state for communities and local government intervened as an interested party.
Following the decision of the Court of Appeal in Smith (on behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318; [2008] 1 WLR 661; [2007] PLSCS 262, the defendants stated that they would no longer seek a declaration of incompatibility. However, they argued that, in the light of the House of Lords decision in Doherty v Birmingham City Council [2008] UKHL 57; [2008] 31 EG 89 (CS), they were entitled to have the claimants’ decision to issue proceedings scrutinised by the court.
The defendants sought a hearing to consider, inter alia, whether: (i) the claimants’ decision to issue possession proceedings was lawful, which included the question of whether it was compliant with the ECHR; and (ii) the action should be transferred back to the county court.
Held: The application was granted.
At common law, the claimants had the right to determine the possession of their land. The law provided no defence to an action for possession, although four weeks’ notice was required of the termination of a licence to occupy under section 2 of the Caravan Sites Act 1968. Although section 4(1) of the 1968 Act enabled a court to suspend an order for possession for up to 12 months, that did not apply if the site was owned by a local authority seeking possession until 2005, when the legislation was amended to remove that excluding provision.
The defendants no longer had the protection afforded by the Mobile Homes Act 1983 since section 5(1) excluded from the definition of a “protected site” “any land occupied by a local authority as a caravan site providing accommodation for gypsies…”. The legislation to remedy the deficiency in the law identified in Doherty had been enacted by section 318 of the Housing and Regeneration Act 2008 but was not then in force. The existing statutory framework before section 4 of the 1968 Act was amended had been held to be incompatible with Article 8 of the ECHR in the lack of protection given under section 5(1) of the 1983 Act: Doherty and Smith applied; Connors v United Kingdom (66746/01) [2004] 4 PLR 16 and Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 considered.
The law established in Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109, that an occupier’s personal interests must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by statute or common law, was compatible with Article 8 unless allegations were made of anti-social behaviour or of misconduct on the part of an occupier or members of his family that he was not permitted to challenge.
The effect of Doherty was to widen the scope of the inquiry that might be made into decision making by a public authority. The test was no longer whether the claim on public law grounds was arguable but whether the decision was reasonable.
The fact that Article 8 could operate at the stage of considering whether to evict still gave it effect within the domestic law framework when taken as a whole. However, in the light of Doherty, the observations in Smith regarding the circumstances in which such a defence could be made out as being wholly exceptional had been overtaken by subsequent authority.
The matter would be remitted to the county court as the most convenient forum to determine the issues. There was no better tribunal for dealing with disputes of this kind than a county court circuit judge with experience of possession disputes.
James Findlay QC and Johanna Boyd (instructed by the legal department of Hillingdon London Borough Council) appeared for the claimants; Stephen Cottle (instructed by the Community Law Partnership, of Birmingham) appeared for the defendants; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the interested party.
Eileen O’Grady, barrister
