England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(Administrative Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 May 2005

THE HONOURABLE MR JUSTICE OWEN :

1. The claimant is a Traveller. Since Easter 2004 he has been camping on Forestry Commission land in Rendlesham Forest, near Woodbridge, Suffolk. According to his witness statement of 10 November 2004, he shares his encampment with 4 others, Alice Futter and her 3 children aged 13, 10 and 2½. On 18 March 2004 the defendant obtained a possession order in respect of the whole of Rendlesham Forest, and now seeks to enforce the order against the claimant and those living in his encampment. The claimant seeks to challenge the defendant's decision to enforce the possession order.
2. THE FACTUAL BACKGROUND

On 18 March 2004 His Honour Judge Thompson sitting in the Ipswich County Court ordered that the defendants, Persons Unknown, give the Forestry Commission possession of land at Rendlesham Forest and Tunstall Forest, forthwith, possession was recovered on 426 March 2004.

3. The claimant accepts that he was present on the site when the possession order was obtained. He then moved off, but returned to the site as one of a larger group of 6 adults and 7 children in April 2004. On 24 June 2004, Mr Richard Davies, who is employed by the defendant, visited the site. There was one person present to whom he read the following notice:

"This is Forestry Commission land and you have no right to be on it. You are in breach of the Forestry Commission Byelaws. I am requesting you on behalf of the Forestry Commission to leave forthwith. If you do not do so the Forestry Commission will take legal action to regain possession."

4. As a result of Mr Davies' visit to the site, the defendant wrote letters to the Suffolk Coastal District Council and the Suffolk County Council on 5 August 2004 in identical terms. The letters contained the following paragraphs:

"Our instructions are that there are, at present, a number of vehicles and an unknown number of people on the site. Our clients have visited the site and given notice to the occupants to leave. Our clients representatives have no training or facilities to determine whether the occupants include any to whom one or other of the humanitarian obligations referred to in DoE Circular 18/94 (as amended) might be relevant.

Our clients intend to apply to the court for a possession as soon as reasonably practical because the occupants of the encampment may be causing a nuisance, and in any event are there in breach of Forestry Commission Byelaws and therefore of the criminal law.

…

In addition to their overall obligation to act in a humane manner to the occupants and generally to follow the advice given in the circular, our clients are also a public authority for the purposes of the Human Rights Act. As such they are bound to take account of the occupant's qualified rights under Article 8 of the European Convention.

As noted above, our clients have no expertise in being able to assess the occupants' needs and conditions nor have they the facilities for discharging any of the duties referred to in Circular 18/94. However in the new ODPM "Guidance on Managing Unauthorised Camping", paragraph 5.10 states:

"Because local authorities have appropriate skills and resources to enable them to make (or to co-ordinate) welfare enquiries, it is considered good practice for local authorities to respond positively to requests for assistance in making enquiries from the police or other public bodies."

We are, therefore, writing to ask you urgently to visit the site to carry out an assessment so that you can fulfil your statutory obligations, if you have any in this particular instance. You will be afforded all reasonable co-operation in visiting the site to carry out your assessment but we must stress the need for you to undertake any visits as soon as possible. ….

If as the result of your assessment you are of the view that there is anyone on the site to whom you may owe a duty, please notify us. Please specify what the need may be and what action you think our client should take to enable you to discharge your obligations. Please also advise us of any other matters you think may be relevant to our clients' consideration of the question of Article 8 issues."

…

As you may be aware, the occupants of encampments of the type with which this letter is concerned often come and go. It may therefore be that, even if any initial visit by you reveals no-one to whom you might appear to owe a humanitarian duty or to whom the enactments refer to in paragraphs 10 – 13 of Circular 18/94 might apply, people coming on to the site after that visit might be owed such an obligation. Doubtless you will bear this in mind as part of your assessment review and reporting process.

Please acknowledge receipt of this letter as soon as possible and in your reply tell us when you propose to visit. Alternatively, if you do not intend to undertake any visit or assessment, please tell us why.

Finally, please note that although our clients are anxious to make the appropriate application to the court without delay, they will defer doing so for 7 days from the date of this letter, that is until 12 August 2004 to enable you to respond to this letter."

5. On 19 August 2004 Mr Charles Ashley, who is employed by the defendant as a Land Agent, and who is responsible for the management of Rendlesham Forest, filed a witness statement in the possession action seeking permission to issue a Warrant of Restitution in relation to all of the land covered by the original possession order.
6. On 3 September 2004 the claimant and others received notice from the Ipswich County Court of the execution of a warrant of eviction on 10 September 2004. On the same day solicitors instructed on behalf of the claimant wrote to the defendant asking for information about the case.
7. The defendant's solicitors replied on 6 September 2004 in the following terms:

"This is a possession by way of restitution. We attach a copy of Mr Ashley's statement made in support of the application. You will see that this refers to the usual welfare enquiries having been raised of the local authorities. We confirm that those were done and that no needs were identified. You will be aware, therefore, that the course adopted by our clients is the one that they routinely use under the circumstances which has of course been approved by the courts over time."

8. The claimant's solicitors responded on the same day saying that "… no welfare enquiries have been carried out in connection with our clients' occupancy of this site." They also sought an assurance that their clients would not be evicted from the site. The letter did not identify any specific welfare considerations to be taken into account by the defendant in deciding whether to proceed with the eviction.
9. On 7 September 2004 the defendant's solicitors wrote inter-alia in the following terms:

"As to welfare enquiries, Mr Ashley's statement is clear. The authorities were notified. The only one to have responded has been the Suffolk County Council who have indicated that as the land is not theirs they are not going to make any welfare enquiries. Any complaints your clients may have in that regard, therefore, should be addressed to the County Council and not to our clients. In the state of the law as it is, our clients have discharged the obligation on them so far as it may exist.

If any of those who you are representing has any particular welfare need it should be made known to us promptly. You will be more than aware of our clients' unvarying practice to try to accommodate genuine welfare needs when dealing with an eviction that practice holds good in this instance. Indeed we believe that our client's representative Mr Davies is already in discussions with the Bailiff on just this point."

10. On 8 September 2004 the claimant's solicitors wrote addressing the issue of welfare enquiries. Its author stated that he did not accept that the defendant's practice of writing to the relevant local authorities, and relying upon them to respond or not as the case may be, was sufficient bearing in mind the government Guidance on Managing Unauthorised Camping issued in February 2004. The letter continued:

"It seems clear to me that some pro-active approach must be taken by the Forestry Commission, especially where the local authority or authorities concerned effectively do not respond and do not take any pro-active stance themselves. In terms of this encampment there is a 3 week old baby and there are 6 children at local schools. There are clearly therefore humanitarian considerations that must be taken into account."

The remainder of the letter was framed so as to comply with the pre-action protocol.

11. On the following day, 8 September, the defendant's solicitor wrote again repeating that "… if individuals have welfare needs which may justify those people not being evicted now my clients will sympathetically consider their position." Later that day there was an exchange of e-mails in which the defendant's solicitors again invited the claimant's solicitors to identify any particular welfare needs that their clients might have, and stating that they would be considered on a case by case basis. The claimant's solicitors response was to file the application for permission to apply for judicial review on the following day, 9 September 2004.
12. On 5 November 2004 the claimant was given permission to apply for judicial review and the eviction stayed pending determination of the application.
13. THE ISSUES

The claimant contends that the defendant acted unlawfully in proceeding with the eviction of those occupying the site. There are two limbs to the challenge, namely the 'welfare enquiries' issue, and secondly the 'site provision' issue. It is convenient first to address the second, as it provides the legal context within which to consider the first.

14. THE SITE PROVISION ISSUE

The first and critical issue between the parties is whether the defendant has the legal power to provide temporary or transit sites for travellers. The claimant contends that it does, and that accordingly it has erred in law in failing to consider including provision for travellers in woodland planning and strategy in the erroneous belief that it has no power to do so. The defendant's case is quite simply that on a proper analysis of the relevant statutory provisions, it has no power to do so.

15. THE STATUTORY FRAMEWORK

The Forestry Commission was constituted under the Forestry Acts 1919 – 1945, and continues in existence by virtue of the Forestry Act 1967. A number of the provisions of the 1967 Act are of relevance.

"Section 1

1(2) The Commissioners shall be charged with the general duty of promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products … and in that behalf shall have the powers and duties conferred or imposed on them by this Act.

(3A) In discharging their functions under the Forestry Acts 1967 – 1979 the Commissioners shall, so far as may be consistent with the proper discharge of those functions, endeavour to achieve a reasonable balance between:

(a) the development of afforestation, the management of forests and the production and supply of timber, and

(b) the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interests.

Section (3) Management of Forestry land:

(1) The Commissioners may manage, plant and otherwise use for the purpose of the exercise of their functions under this Act, any land … and

(a) the power of the Commissioners under this sub-section to manage and use any land, shall without prejudice to the generality of that power, include power to erect buildings or execute works on the land …"

16. Sections 23 and 24 of the Countryside Act 1968 made further provision for the Forestry Commissioners:

23. Provisions of facilities by Forestry Commissioners

(1) The Forestry Commissioners … shall have the powers confirmed on them by this section.

(2) The Commissioners may on any land placed at their disposal … provide, or arrange for or assist in the provision of, tourists, recreational or sporting facilities and any equipment, facilities or works ancillary thereto, including without prejudice to that generality –

(a) accommodation for visitors,

(b) camping sites and caravan sites,

(c) places for meals and refreshments,

(d) picnic places, places for enjoying views, parking spaces, routes for nature studies and footpaths

(e) information and display centres

(f) shops in connection with the aforesaid facilities

(g) public conveniences

24. Amendments of Forestry Act 1967

(1) Without prejudice to the provisions of section 11 of this Act the said Commissioners may, on any land placed at their disposal by the Minister … plant, care for and manage trees in the interest of amenity and in section 3(1) of the Forestry Act 1967 (Management of Forestry Land) the reference to the Commissioners' functions under that Act shall include a reference to their functions under this sub section. "

17. Mr Knafler submits on behalf of the claimant that the power to manage land placed at the defendant's disposal under section 3 of the Forestry Act is wide-ranging, and enables it to use land for a variety of purposes, in particular social purposes, provided that such purposes are not incompatible with the overall interests of forestry. He submits that the phrase 'promoting the interests of forestry' within section 1(2) includes taking account of the legitimate needs of all sections of the community provided they are not incompatible with other forestry objectives.
18. In my judgment the argument is misconceived. The powers of management under section 3 may only be exercised in discharge of the defendant's functions under section 1(2), namely "the general duty of promoting the interest of forestry, the development of afforestation and the production and supply of timber and other forest products." The general duty of promotion of the interests of forestry cannot sensibly be construed as embracing the provision of residential sites for travellers. That is borne out by section 23 of the Countryside Act 1968 which conferred additional powers on the defendant to 'provide or arrange for or assist in the provision of tourist, recreational or sporting facilities …' If sections 1 and 3 of the 1967 Act were to be construed in the manner for which the claimant contends, section 23 of the Countryside Act would have been unnecessary. Mr Knafler sought to meet that argument by submitting that section 23 was a provision inserted for the avoidance of doubt. That argument is unsustainable given that section 23(1) expressly provides that "the forestry commissioners … shall have the powers conferred on them by this section."
19. It follows that in my judgment the defendant has no power to provide residential sites for travellers on land placed at its disposal, and the claimant must fail on the 'site provision' issue.
20. THE WELFARE ENQUIRIES ISSUE

The first point to be made is that Mr Knafler acknowledged on behalf of the claimant that I am bound by the decision of the Court of Appeal in Price & Others v Leeds City Council Neutral Citation [2005] EWCA Civ 389, in which the court held that where a public authority demonstrates that it has an absolute right to possession of land, a defendant cannot raise by way of defence to an action for an order for possession of that land a plea that the obtaining of possession will infringe his rights under Article 8 of the ECHR. He simply reserved his position should the decision be reversed on appeal to the House of Lords.

21. The claimant contends that the defendant acted unlawfully in deciding to enforce the possession order in that it failed to enquire into the welfare of the travellers occupying the site in question.
22. The contention is based upon the following propositions:

a) The defendant had a discretion as to whether to seek to recover possession of the land or to defer eviction.

b) As a public body the defendant was under a common law duty to act with common humanity towards trespassers.

c) The welfare of the travellers was a consideration material to the decision to seek to recover possession by evicting them from the land, and therefore a consideration that the defendant was obliged to take into account in arriving at its decision.

d) Discharge of the duties at (b) and (c) above required the defendant to enquire into the welfare of travellers before evicting them as trespassers.

e) Compliance with the government policy set out in Guidance on Managing Unauthorised Camping February 2004, required the defendant to enquire into the welfare of travellers before evicting them as trespassers.

23. The first 3 propositions are not in issue. Propositions (d) and (e) are. It is convenient first to consider (e), the effect of the 2004 guidance, not least because it purports to give general guidance as to the effect of decisions by the courts as to the welfare enquiries to be taken by public authorities when making decisions to take action against unauthorised encampments.
24. GUIDANCE ON MANAGING UNAUTHORISED CAMPING

The guidance was issued by the office of the Deputy Prime Minister in February 2004; and it is accepted on behalf of the defendant that the policy that it contains was a material consideration when making the decision under challenge. The issue between the parties is whether compliance with the guidance required the defendant to take positive steps to enquire into the welfare of the travellers before taking steps leading to their eviction.

25. The overall objective of the guidance is "… to assist local authorities, police and others to tackle unauthorised camping to minimise the disruption it can cause." (para 1.4)
26. Paragraph 1.5 provides that:

"1.5 The Guidance is primarily aimed at local authorities and police who share responsibility for managing unauthorised camping, but will also be relevant to all bodies likely to be involved in partnership approaches. While the Guidance is advisory, local authorities and police are strongly advised to bear it in mind when devising and implementing their approaches, and are reminded that the courts may consider it as a material consideration in eviction or other enforcement decisions."

27. The guidance as to welfare enquiries is contained in paragraphs 5.7 – 5.10:

"5.7. Local authorities may have obligations towards unauthorised campers under the legislation (mainly regarding children, homelessness and education). Authorities should liaise with other local authorities; health and welfare services who might have responsibilities towards the families of unauthorised campers. Some form of effective welfare enquiry is necessary to identify whether needs exist which might trigger these duties or necessitate the involvement of other sectors, including the voluntary sector, to help resolve issues. The police and other public bodies who might be involved in dealing with unauthorised encampments do not have comparable duties but must still, as public servants, show common humanity to those they meet.

5.8. The Human Rights Act (HRA) applies to all public authorities including local authorities (including town and parish councils), police, public bodies and the courts. With regard to eviction, the issue that must be determined is whether the interference with Gypsy/Traveller family life and home is justified and proportionate. Any particular welfare needs experienced by unauthorised campers are material in reaching a balanced and proportionate decision. The Human Rights of members of the settled community are also material if an authority fails to act to curb nuisance from an encampment.

5.9. Case law is still developing with regard to the sorts of welfare enquiries, which the courts consider necessary to properly taken decisions in relation to actions against unauthorised encampments. Cases are testing the requirements under different powers, and the requirements placed on different agencies (authorities, police, and other public landowners). Very generally, court decisions to date suggest:

All public authorities need to be able to demonstrate that they have taken into consideration any welfare needs of unauthorised campers prior to making a decision to evict.

The courts recognise that the police and other public bodies have different resources and welfare duties from local authorities. Generally the extent and detail of appropriate enquiries is less for police and non-local authority 'public authorities'.

In the case of local authorities, the onus of making welfare enquiries appears to be greater when using Criminal Justice and Public Order Act 1994 s.77, where the use of the section can result in criminal sanctions, then when using landowners' civil powers against trespass. Local authorities should however, make thorough welfare enquiries whatever powers they intend to use.

5.10. Because local authorities have appropriate skills and resources to enable them to make (or to co-ordinate) welfare enquiries, it is considered good practice for local authorities to respond positively to requests for assistance in making enquiries from the police or other public bodies."

28. The Guidance contains express reference to the defendant at paragraph 6.14:

"6.14. Several government bodies are major landowners and their land may be subject to unauthorised encampment – examples include the Forestry Commission and the Highways Agency. Public bodies should ask local authorities to assist with welfare enquiries and local authority should be prepared to help with these."

29. Finally Annexe E identifies the defendant as a major landowner in some areas which may be affected by unauthorised camping, and as one of the parties to be involved in the development of a strategy for unauthorised camping; but it is the local authority that should lead the development of such strategy. It is common ground that no such strategy has yet been developed by the local authorities involved in this case.
30. There are a number of points to be made about the Guidance. First it is directed principally at local authorities which have statutory powers and duties with regard to housing, and the welfare and education of children. Secondly the guidance acknowledges that, in contrast to public bodies that do not have such statutory powers and duties, local authorities have the appropriate skills and resources to make enquiries into welfare needs. In consequence "the extent and detail of appropriate enquiries" is less for bodies such as the defendant than for local authorities. Thirdly public bodies such as the defendant are advised to seek assistance in making enquiries from local authorities; and the guidance states that it is good practice for local authorities to respond positively to such requests.
31. The defendant is concerned with forestry. It has no statutory duties with regard to welfare, nor does it have the expertise or resources to make an assessment of welfare needs. In those circumstances compliance with the Guidance did not require the defendant itself to undertake welfare enquiries. The claimant has not demonstrated that the defendant failed to follow the policy contained in the Guidelines.
32. I therefore turn to proposition (d). The issue between the parties can be simply stated. The claimant contends that the defendant was under a duty to make enquiries into the welfare of the travellers before deciding to evict them. The defendant submits that the defendant was obliged to take account of welfare considerations before making such a decision, but that it was not under a positive duty to carry out such enquiries, nor to take steps to ensure that they were carried out by others on its behalf.
33. The claimant submits that the defendant cannot take any or any proper account of welfare considerations unless it either carries out enquiries into the circumstances of the travellers, or satisfies itself that such enquiries have been carried out by others, who have relayed any relevant information. He seeks to place reliance on the decision of Sedley J, as he then was, in R v Lincolnshire County Council & Wealden District Council ex parte Atkinson & Others (1996) 8 Admin LR 529. The respondent local authorities had purported to give removal directions under the Criminal Justice and Public Order Act 1994 to the applicants, who were unlawfully camped on land in their localities, and had obtained removal orders from magistrates against those remaining. Enquiries about the circumstances of those encamped on the land had only occurred after removal directions were issued in one set of cases, and after the removal orders had been made by magistrates in the other. Sedley J held that the local authorities were under a duty to take reasonable steps to acquaint themselves with the relevant information, namely the situation and possible needs of the persons to be covered by the removal direction, before deciding to make the decisions in issue. At 543C he found:

"By the date when it gave a removal direction under s.77(1) Lincolnshire County Council had undertaken no meaningful enquiries whatever into the situation and possible needs of the persons to whom the intended direction would apply. At that stage, therefore, it had failed in its elementary duty to 'reasonable steps to acquaint [itself] with the relevant information' (per Lord Diplock Secretary of State for Education v Tameside MBC [1977] AC 1014, 1065). "

34. But the position of the defendant cannot be equated with that of the local authorities in Atkinson. As the defendant's solicitors pointed out in their letters to the local authorities, the defendant has no statutory duties with regard to welfare, and no expertise in assessing welfare needs, whereas a local authority has statutory duties with regard to housing, and the education and welfare of children, and has the expertise necessary for the proper exercise of discharge of such duties. As Turner J. observed in R v Minister of Agriculture Fisheries & Food, ex p. Callaghan 32 HLR8 at 11:

"It is, of course, elementary in the nature of the considerations in play in the present case that there is an obvious distinction between local authorities, on the one hand, who have powers and duties conferred upon them by acts of Parliament in the fields of education, housing, and children and welfare. I do not intend that to be an exhaustive list but merely to highlight the statutory position of local authorities when contrasted with that of a private owner of land, albeit who may be a government department, who has no such statutory powers let alone statutory duties."

35. It is well established that, as the author of Judicial Review Handbook 4^th ed puts it 51.1 "A public body has a basic duty to take reasonable steps to acquaint itself with relevant material." Secondly, and as Laws LJ held in R (Khatun) v London Borough of Newham [2004] EWCA Civ 55, [2004] 3 WLR 417, "it is for the decision-maker and not the court, subject…to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such". Laws LJ derived support for that proposition from the judgment of Schiemann LJ in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, a housing case in which he said at 309 –

"In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient."

Laws LJ found further authoritative support for that approach in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani (1990) 22 HLR 406, another housing case in which Neill LJ said at p 415 -

"The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made."

36. Each of the above decisions concerned housing authorities, but the principle applies equally to the defendant. This court should only intervene if the course adopted by the defendant before taking the decision to enforce the order for possession was in all the circumstances 'Wednesbury' unreasonable.
37. Secondly I agree with Sedley J as he then was in Atkinson (see p549 D-E) that having taken the decision the defendant was obliged to keep the situation of those affected by its decision under review. If further relevant information was brought to its attention, it was obliged to take such information into account in deciding whether to continue with the enforcement action.
38. The defendant's letters to the local authorities by which it sought their assistance were admirably clear and comprehensive. Such requests for assistance were the obvious and appropriate means by which the defendant could acquaint itself of any material welfare considerations. They also served to alert the local authorities to the fact that eviction of the travellers might give rise to duties on their part. The steps taken by the defendant to acquaint itself with the relevant material were reasonable.
39. But the question that then arises is whether a reasonable public body in the position of the defendant ought to have taken any further steps in the light of the failure on the part of Suffolk Coastal District Council to respond to the letter, and the negative response from the Suffolk County Council.
40. As has already been observed, the defendant had neither the expertise nor the resources to carry out welfare enquiries. It had alerted the appropriate authorities to the possibility that there might be those to whom they owed statutory duties. There was no reason to doubt that if any such statutory duties to the travellers arose on their eviction from the site, they would be discharged by the relevant authority. In those circumstances I am not persuaded that the defendant acted 'Wednesbury' unreasonably in not embarking upon further enquiries of its own, or in instructing others to make such enquiries on its behalf.
41. Finally I am satisfied that in discharge of its obligation to keep the situation under review, and as is clear from the correspondence with the claimant's solicitors, the defendant would have given fresh consideration to the enforcement of the order for possession, had those acting for the claimant brought any specific welfare considerations to their attention. I do not consider that the reference to there being a 3 week old baby and 6 children at local schools in the letter dated 8 September 2004 was of itself sufficient to give rise to a duty to reconsider the position.
42. It follows that in my judgment the defendant's decision of 24 June 2004, and their continuing decision to take possession of Rendlesham Forest was not unlawful. The application therefore fails.