Irish travellers – Caravan site – Respondent council serving notice to quit on appellant traveller – Respondents obtaining possession order – Whether respondents reasonably serving notice to quit – Appeal dismissed
For several years until 2005, the appellant Irish traveller and her family had camped, without a licence, in various sites around Liverpool, including the appeal site. In March 2005, after a period of closure for refurbishment, the site was reopened and the appellant was granted a licence by written agreement to occupy a pitch. The respondent council ran the site under the Caravan Sites Act 1968.
Despite repeated warnings and in breach of licence, the appellant failed to comply with the rules for living on the site. The respondents received numerous allegations of anti-social and aggressive behaviour and evidence that unauthorised and dangerous electrical work had been carried out. Following a final written warning that stated that the appellant could be evicted if she breached her licence again, a further incident took place and the appellant was served with notice to quit.
The appellant denied the alleged breaches of her licence. However, the respondents issued possession proceedings and the judge granted summary judgment, ordering the appellant to deliver up vacant possession to the respondents.
The appellant appealed, arguing that the respondents’ decision to issue the notice to quit and to seek possession of the site was unlawful as a matter of public law and that she therefore had a public law defence to the claim for possession. She further argued that no reasonable authority would have served her with a notice to quit. Accordingly, the summary judgment should be set aside and the matter remitted to the county court for the judge to hear oral evidence to enable him to determine the validity of her public law defence. It was also necessary to resolve any disputed matters of fact since the decision to issue the notice to quit had been prompted by criticisms of her behaviour, which she denied and which ought to be given the opportunity to refute.
The judge stayed the execution of the possession order pending the appeal. It was agreed that if the appeal failed, the matter would be remitted to the county court to decide whether the possession order should be suspended under section 4 of the 1968 Act.
Held: The appeal was dismissed.
If a licensee wanted to advance public law grounds for not making a possession order, it was for the licensee to raise the point and establish an arguable case that the decision to recover possession was one that no reasonable person would have regarded as justifiable: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 applied.
There was no formulaic or formalistic restriction of the factors that might the licensee might rely upon in support of an argument that the respondents’ decision to serve a notice to quit and to seek a possession order was unreasonable. Such factors were not automatically irrelevant merely because they might include the licensee’s personal circumstances, such as the length of occupation. The question as to whether the respondents’ decision was one which no reasonable person would have made was to be decided by applying public law principles as they had been developed at common law and not by reference to the European Convention on Human Rights. Moreover, the court’s power of suspension, under section 4 of the 1968 Act, was an important factor in judging whether a local authority had acted as no reasonable person would have done: Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636 applied
On the facts of the instant case, the submission that no reasonable council would have served a notice to quit on the appellant was unarguable. The respondents had evidence of repeated breaches of the licence and if anti-social behaviour on the part of the appellant or her family. As a matter of principle, if the decision to issue a notice to quit was not unlawful at the time of the service of the notice, the notice would be valid. There was no principled basis upon which a notice that was valid at the time of service could be retrospectively invalidated by reason of subsequent developments: Smith v Buckland [2008] EWCA Civ 1318; [2008] 1 WLR 661 considered.
David Berkley QC and Kashif Ali (instructed by James Murray Solicitors, of Liverpool) appeared for the appellant; Edward Bartley Jones QC and Andrew Vinson (instructed by the legal department of Liverpool City Council) appeared for the respondents; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government, as intervener.
Eileen O’Grady, barrister
