COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
HHJ Bidder QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE WALL
| Hughie Smith (On Behalf of the Gypsy Council)
|- and -
Jan Luba QC and Philip Thompson (instructed by The Community Law Partnership) for the Appellant/Defendant
Daniel Stilitz (instructed by Treasury Solicitor) for The Secretary of State for Communities and Local Government
Hearing date: Wednesday 28 November 2007
Crown Copyright ©
Lord Justice Dyson :
The relevant statutory background
"(1) If in proceedings by the owner of a protected site the court makes an order for enforcing in relation thereto any such right as is mentioned in paragraph (b) of subsection (1) of section 3 of this Act, the court may (without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section) suspend the enforcement of the order for such period not exceeding twelve months from the date of the order as the court thinks reasonable.
(2) Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.
(3) The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than twelve months at a time.
(4) In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions -
(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it)."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The three principal authorities
"The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation....
The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (para 84)."
"85. While it was variously alleged by Council officers that the applicant's licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights.
86. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons."
"92. The existence of other procedural safeguards is however a crucial consideration in this Court's assessment of the proportionality of the interference a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court's attention to the Court of Appeal's decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law.
94. However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to 'flexibility' and 'administrative burden' have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid
95. In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a 'pressing social need' or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention."
"Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier's personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown  Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with Article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder  AC 461. The common law as explained in that case is, of course, compatible with Article 8. It provides an additional safeguard."
The two decisions of Judge Bidder
"That the decision of the claimant to commence possession proceedings was unreasonable is open to the defendants following Wandsworth London Borough Council v Winder, but given that the fourth defendant has only occupied the premises since 2004 his situation is drastically different from Mr Connors. I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable, having regard to the judgment of Lord Brown in paragraph 209."
The grounds of appeal
(i) it was not seriously arguable that the claimant had acted unreasonably in seeking a possession order ("the public law defence ground");
(ii) the factual situation of the appellant was distinguishable from that in Connors ("the factual distinction ground"); and
(iii) it was not seriously arguable that the amendment to section 4 of the 1968 Act does not cure the incompatibility of domestic law with article 8 of the Convention ("the amendment ground").
The basis of the decision in Connors
" Connors is the only case where the Strasbourg court has held that the making of a possession order against an occupier in favour of a public authority in accordance with the requirements of domestic property law has failed to meet the third requirement of article 8(2) [i.e. proportionality]. It failed to do so in that case because the making of the order was not attended by the procedural safeguards that were required to establish that there was a proper justification for the interference with the applicant's right to respect for his private and family life and his home The point of that case, however, was that the law enabled the public authority to evict the applicant from the site which he had been given a licence to occupy without giving reasons which could be examined on their merits by an independent tribunal."
"The absence of any statutory protection in these cases is the result of a deliberate decision by Parliament that the owner's right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier. That was the position in Connors under the legislation that was then in force."
"In Connors the European Court of Human Rights held that the eviction of the applicant and his family, who were gypsies, from a local authority gipsy site which they were licensed to occupy so long as they did not cause a nuisance was a violation of article 8 because it had not been attended by the requisite procedural safeguards."
"As the court said in Connors at the end of para 85, the central issue was whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gipsy sites provided the applicant with sufficient procedural protection of his rights."
"There was also criticism in Connors of the procedure that was adopted in the county court, on the ground that it was concerned only with the fulfilment of the formal requirements for the eviction."
The public law defence ground
"208. I should perhaps just add this. These appeals were brought on the basis that it is for the trial judge, pursuant to his section 6 duty, to consider for himself the issue of justification under article 8 (2) in any contested possession action. There is, however, a quite different basis upon which an occupier could challenge a public authority's claim for possession, namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful. Such a defence can clearly be advanced in the county courtsee the decision of the House of Lords in Wandsworth London Borough Council v Winder  AC 461.
209. The difficulty with such a defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court, as the appellants assert, under a primary duty to reach its own judgment on the justifiability of making a possession order.
210. For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That was not, be it noted, the basis of the actual judicial review application for which permission in that case was sought and refused. Indeed the council's decision there to drop the allegations of breach of licence and to assert instead a right to summary possession on the bald ground that the family were trespassers (see para 25) followed rather than preceded the failed judicial review challenge.
211. It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself. Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced."
"The Licensee or his/her resident family or visitors must not create a nuisance on the sites or to neighbouring properties. The Licensee shall be held responsible if any visitor/person living with him/her contravenes any of these Site Rules or Conditions."
The factual distinction ground
The amendment ground
"The serious interference with the applicant's rights under Art.8 requires, in the Court's opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case, in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land with the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family."
Lord Justice Wall:
Lord Justice Mummery: