Gypsy caravan site – Termination of licences – Section 4 of Caravan Sites Act 1968 – Article 8 of European Convention on Human Rights – Whether amendment to section 4 rendering legislation compatible with Article 8 – Whether decision to recover possession from appellant unreasonable – Appeal dismissed
In December 2004, the respondent council gave five weeks’ notice to the appellant and a number of others terminating licences to occupy various pitches at a gypsy caravan site that it managed pursuant to an agreement with the local borough council. The respondent subsequently brought an action to recover possession of the pitches. In respect of the appellant, the respondent relied upon the termination of the licence and upon alleged misconduct amounting to nuisance. The appellant 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 respondent was to be treated, for the purpose of the proceedings, 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 appellant could rely upon the public law defence that the respondent’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 site to suspend the enforcement of any possession order for up to 12 months. He rejected the public law defence without hearing evidence, finding that it was not seriously arguable that the respondent’s decision to recover possession had been an improper exercise of its powers. He proceeded to suspend the possession order for four months on terms, including a requirement that the appellant’s teenage son, who he found to be guilty of misconduct, was to leave the site. The appellant appealed.
Held: The appeal was dismissed.
The decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation afforded to states in socio-economic matters. Although more generous safeguards could have been introduced, the amendment went far enough to address the real thrust of the criticisms in Connors. The amendment had replaced summary eviction with judicial examination and a discretion to suspend, in the exercise of which the court was required to have regard to all the circumstances and to act compatibly with Convention rights.
The legislative and procedural framework was fundamental to any consideration of whether a public authority was acting in a manner in which no reasonable authority could have acted. The amendment to the 1968 Act since Connors was highly material, since it meant that the respondent’s decision to seek possession did not involve summary eviction without judicial scrutiny of the claim to possession: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 considered. Since the amendment, a public law defence would be seriously arguable only in a truly exceptional case. The judge had correctly found that this was not seriously arguable in the instant case. The amendment to the 1968 Act was the most significant factor in that conclusion; it was also relevant that, although the judge had rejected allegations of misconduct by the appellant personally, his finding of misconduct by her son involved a finding that she was in breach of a condition of her licence, since she was responsible, as licence holder, for the conduct of those who were present on the site with her permission. It followed that it had been reasonable for the respondent to bring the possession proceedings.
Jan Luba QC and Philip Thompson (instructed by Community Law Partnership, of Birmingham) appeared for the appellant; Andrew Keyser QC (instructed by Hutchinson Thomas, of Neath) appeared for the respondent; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government.
Sally Dobson, barrister
