Gypsies — Duty of county council to provide adequate gypsy caravan sites — District council seeking summary order for possession of land occupied by persons claiming to be gypsies — No authorised site to which occupants could go — County court judge adjourning proceedings on defendants’ undertaking to apply for judicial review of district council’s decision to institute proceedings — Appeal against judge’s decision — Whether relevant that district council owed no relevant duty to occupants — Caravan Sites Act 1968, sections 6(1) and 7(1)
In October 1991
the appellant district council found that six coaches, equipped and occupied
for residential purposes, had been parked on land owned by them at Steamer
Quay, Totnes, without their consent. On the occupants’ refusal to leave, the
council applied to the county court for a summary order for possession against
the named defendant, S, and persons unknown. At the hearing, one of the
occupants, G, claimed to be a gypsy within the meaning of section 16 of the
Caravan Sites Act 1968 and asked for an adjournment to enable him to apply for
judicial review of the council’s decision to institute and pursue the
proceedings against him. The district judge adjourned the proceedings against G
but made an immediate order for possession against the other occupants. Six of
them, including S, appealed. In an affidavit in support of the appeal one of
the six, H, also claimed to be a gypsy and asked for the proceedings to be
adjourned pending the determination of G’s application for judicial review. On
November 19 1991 Judge Willcock QC, having ascertained as a result of inquiries
of the county council that there was no authorised site in Devon to which the
defendants could go, allowed the appeal and granted the adjournment sought on
G’s undertaking to issue proceedings for judicial review at once. He considered
that, although the appellants were not in default of their duty under the 1968
Act, when looking at the larger principle of Wednesbury
unreasonableness, the district council must be assumed to know of the county
council’s shortage of adequate sites and arguably be affected by the county
council’s knowledge that there was nowhere else for the defendants to go.
The district
council appealed against the judge’s order on the ground that since they owed
no relevant duty to the occupants under sections 6(1) and 7(1) of the 1968 Act,
they owned no duty to them which could found an application for judicial
review. On January 17 1992, before the hearing of the appeal, Brooke J granted
G leave to apply for judicial review against both the appellants and Devon
County Council.
The judge had
adopted a correct approach. A district council had to administer their land in
accordance with statute and, where there was no requirement to the contrary, in
the best interests of the inhabitants of their area. Generally, a council would
best serve the interests of the inhabitants as a whole by seeking to recover
possession against a trespasser on their land, but there might be a case where
statute imposed on them a duty to the trespasser not to evict him, which duty
was higher than that owed to other inhabitants. It was arguable that such a
duty could arise under the 1968 Act and did arise in the circumstances of the
case: that was sufficient to vindicate the judge’s decision to grant the
adjournment: see p 107A-C.
Per Staughton LJ: It was deplorable that an appeal from an order of a
county court judge adjourning proceedings should take 11 months to become
before the court: see p 107E.
Decision of
Judge Willcock QC affirmed.
to in the judgments
Avon
County Council v Buscott [1988] QB 656;
[1988] 2 WLR 788; [1988] 1 All ER 841; (1988) 86 LGR 569; 20 HLR 385, CA
R v Waveney District Council, ex parte Keeble [1990] COD 84
West
Glamorgan County Council v Rafferty [1987] 1
WLR 457; [1987] 1 All ER 1005; (1986) 85 LGR 793; 18 HLR 375; [1988] JPL 169,
CA
Appeal against
decision of Judge Willcock QC
This was an
appeal by South Hams District Council against the decision of Judge Willcock QC
sitting at Torquay County Court on November 19 1991 whereby he allowed an
appeal by the defendants against the district judge’s refusal to adjourn
summary proceedings for possession of land at Steamer Quay, Totnes, Devon,
pending determination of an application for judicial review of the council’s
decision to institute and pursue the possession proceedings.
Straker (instructed by Sharpe Pritchard, agents for D J Incoll) appeared for
the appellants, South Hams District Council.
(instructed by Cartridges, of Exeter) appeared for the respondent defendants.
following judgments were delivered.
NOURSE LJ: The question for decision on this appeal is whether the judge below
was right to grant an adjournment of summary proceedings for possession brought
by a district council against persons claiming to be gypsies for the purposes
of the Caravan Sites Act 1968. On the face of it that is not a question of any
great significance. But underlying it is a question of general importance in relation
to the duty, if any, of a district council not to evict gypsies for whom the
county council have not provided sites pursuant to their duty to do so under
sections 6(1) and 7(1) of the 1968 Act.
South Hams
District Council are the owners of land at Steamer Quay, Totnes, Devon. In
October 1991 they found that six coaches which
on that land without their consent. Despite being told by South Hams’ estates
surveyor and valuer that legal action would be taken if the coaches were not
removed, several occupants informed him that they did not intend to go. The
only occupant to disclose her name to him was Tracey Denise Shough.
On October 31
South Hams applied to Torquay County Court under Ord 24 of the County Court
Rules 1981 for a summary order for possession of the land against Tracey Shough
and persons unknown. The application was supported by an affidavit of the
estates surveyor and valuer. An affidavit in opposition was put in by one of
the occupants, Mr J M Gibb. He claimed to be a gypsy for the purposes of the
1968 Act and asked for an adjournment of the proceedings to enable him to apply
for judicial review of South Hams’ decisions to institute and pursue them
against him. Thus Mr Gibb recognised, as is the case, that the occupants have
no defence to proceedings for possession which have been properly instituted
and are being properly pursued. The only way in which they can resist eviction
is by successfully impugning South Hams’ decisions by way of judicial review.
The
application came before the district judge on November 15, when only Mr Gibb
among the occupants was represented. As against him the proceedings were
adjourned generally with liberty to restore. However, an immediate order for
possession was made against the other occupants. On November 18 six of them,
including Tracey Shough, appealed against the order of the district judge. On
the same day one of them, Mr S J Harwood, swore an affidavit, in which he, too,
claimed to be a gypsy for the purposes of the 1968 Act. He said that if Mr Gibb
obtained leave to apply for judicial review, he would effectively be applying
on behalf of all the occupants for a review of the decision to evict them. He
asked that the order for possession should be set aside and the proceedings
adjourned pending the determination of Mr Gibb’s application for judicial
review.
On November 19
1991 the appeal came before Judge Willcock QC, who seems to have dealt with it
quite admirably in every respect. He did not, as he might have done, criticise
the order for possession on the ground that no distinction ought to have been
made between Mr Gibb and the other occupants, and that if an adjournment was to
be granted to one it ought to have been granted to all. He started by causing
enquiries to be made of Devon County Council, as a result of which he felt
himself bound to proceed on the basis that there was no authorised site in
Devon to which the occupants could go. He observed that they might or might not
be gypsies, although Mr Gibb and Mr Harwood appeared at first blush to fall
within the definition contained in the 1968 Act. Having fully considered the
application on its merits, the judge allowed the appeal and granted the
adjournment sought on the undertaking of Mr Gibb to issue proceedings for
judicial review at once.
On December 12
1991 South Hams entered a notice of appeal against Judge Willcock’s decision to
grant the other occupants an adjournment. On January 17 1992 Brooke J granted
Mr Gibb leave to apply for judicial review against South Hams and Devon County
Council, the inter
that application relates include the decisions of South Hams to institute and
pursue these proceedings. The grounds on which relief is sought include an
allegation that South Hams, in seeking to obtain a possession order against Mr
Gibb, failed:
(i) to consider that there is no authorised site
in their District or a place available in the whole County to which the
applicant could move;
(ii) to consider that almost any alternative
unauthorised site would cause more nuisance and distress;
(iii) to consider the effect on the applicant and
others, particularly young children;
(iv) to consider its statutory duty and powers and
circular advice concerning the exercise of those duties and powers in
co-operation with the County Council.
Then it is alleged
that the decision of South Hams in seeking an order to evict Mr Gibb was ‘Wednesbury
unreasonable’. No application was made for an expedited hearing of this appeal
nor of the application for judicial review, which is unlikely to be heard
before April 1993 at the earliest.
In order to
judge the effect of the 1968 Act, it is necessary to start with section 24 of
the Caravan Sites and Control of Development Act 1960 which, so far as
material, provides:
24.– (1) A local authority
shall have power within their area to provide sites where caravans may be
brought, whether for holidays or other temporary purposes or for use as
permanent residences, and to manage the sites or lease them to some other
person.
(2) Subject to the provisions of this section, a
local authority shall have power to do anything appearing to them desirable in
connection with the provision of such sites, and in particular —
(a) to acquire land which is in use as a
caravan site, or which has been laid out as a caravan site, or
(b) to provide for the use of those occupying
caravan sites any services or facilities for their health or convenience; . . .
The material
provisions of the 1968 Act are the following: Section 6(1) provides:
6.– (1) Subject to the
provisions of this and the next following section, it shall be the duty of
every local authority being the council of a county, metropolitan district or
London borough to exercise their powers under section 24 of the [1960 Act]
(provision of caravan sites) so far as may be necessary to provide adequate
accommodation for gipsies residing in or resorting to their area.
Section 7(1)
provides:
7.– (1) The duty imposed by section 6(1) of this Act
on the council of a county shall extend only to determining what sites are to
be provided and acquiring or appropriating the necessary land; and it shall be
the duty of the council of the district in which any such site is located to
exercise all other powers under section 24 of the [1960 Act] in relation to the
site.
By section 16
the expression ‘gipsies’ is defined to mean:
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.
In summary,
the effect of sections 6(1) and 7(1) of the 1968 Act is, first, to make it the duty
of a local authority to exercise its powers under section 24 of the 1960
Act so as to provide adequate accommodation for gypsies in their areas and,
second, to divide those duties between county councils and district councils,
the former being charged with the duty of providing sites and the latter with
the duty of exercising all the other powers, in particular, no doubt, the power
to provide services and facilities. It is therefore correct to say, as South
Hams have throughout maintained, that a district council are under no duty to
provide sites for the accommodation of gypsies, either by acquiring land from
others or by appropriating land of their own.
In Avon
County Council v Buscott [1988] QB 656 at pp 663 and 664, both Lord
Donaldson of Lymington MR and Parker LJ said that if a judge hearing a summary
application for possession to which there is no defence is satisfied that there
is a real possibility that the defendants will be granted leave to apply for
judicial review, he ought to adjourn the application. In that case, as in West
Glamorgan County Council v Rafferty [1987] 1 WLR 457, the county
council were seeking possession of their own land. So the question there was
simply whether there was a real possibility that the county council were in
breach of their duty to the occupants under sections 6(1) and 7(1) of the 1968
Act.
In the present
case South Hams, through Mr Straker, have argued that since they owed no
relevant duty to the occupants under sections 6(1) and 7(1), they owed no duty
to them which can be made the foundation of an application for judicial review.
Mr Straker relied on the judgment of Popplewell J in R v Waveney
District Council, ex parte Keeble [1990] COD 84, of which we have seen a
full transcript. For present purposes it is unnecessary to consider whether
that decision was, on the facts of the case, correct. Assuming that it was, I
cannot treat it as authority for a general proposition that the decisions of a
district council in a case of this kind are not amenable to the remedy of
judicial review.
The primary
submission of Mr Lloyd, for the occupants, is that since Brooke J has now
granted them leave to apply for judicial review, the test in Avon County
Council v Buscott is shown to have been satisfied and the judge’s
decision to grant an adjournment proved to have been correct. While accepting
that that is very probably a decisive answer to the appeal, I nevertheless
think it appropriate to consider whether the judge’s decision was correct at
the time he gave it, the essence of it having been expressed thus:
I acknowledge
the distinction between the district council and the county council. It may be
said that the county council have not fulfilled their duty. It cannot be said
that the district council are in any way in default — they have not been called
on to do anything. Having said that, looking at the
the district council must be assumed to know of the county council’s shortage
of adequate sites and arguably be affected by the county council’s knowledge
that there was nowhere else for these people to go.
I think that
the judge adopted a correct approach. A district council, like any other local
authority, must administer their land in accordance with the general or
particular requirements of statute and, where there is no requirement to the
contrary, in the best interests of the inhabitants of their area. Speaking
generally, a district council will best serve the interests of the inhabitants
as a whole by seeking to recover possession against a trespasser on their land.
But there may be a case where statute imposes on them a duty to the trespasser
not to evict him, a duty higher than that which is owed to the other
inhabitants.
In my opinion,
it is arguable both that such a duty can arise under the 1968 Act and that one
did arise in the circumstances of this case as briefly described by Judge
Willcock. That is enough to vindicate his decision to grant an adjournment of
the possession proceedings and, since the questions as to the propriety of
South Hams’ decisions to institute and pursue them must be determined in the
proceedings for judicial review, it is neither necessary nor desirable to go
further at this stage.
I would
dismiss this appeal.
STAUGHTON
LJ: I agree. It is deplorable that an appeal from
an order of a judge in the county court adjourning the proceedings should take
11 months to come before this court. But in the event that has done no harm, as
the proceedings will remain adjourned until after the application for judicial
review has been heard. That in turn is not expected to happen until 15 months
after leave to apply was granted.
If the
district council felt that there was plainly no case for judicial review, they
might have applied to set aside the leave granted by Brooke J, although it is
said that such applications are discouraged. They did not do so. In any event,
they would have had to show clearly that this could not be a case for judicial
review. I doubt whether they could have done that, despite the decision in R
v Waveney District Council, ex parte Keeble.
Appeal
dismissed with costs; legal aid taxation of respondents’ costs.
