QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of James Casey & Others
|- and -
|Crawley Borough Council
Office of the Deputy Prime Minister
Josephine Henderson (instructed by Crawley Legal Services) for the Defendant
Daniel Stilitz (instructed by the Treasury Solicitor) for the Interested Party
Hearing dates: 2, 3, 16 and 17 February 2006
Crown Copyright ©
MR JUSTICE BURTON:
i) Ms Glemas supplied to him the information supplied to her by Stuart Hendry, another Community Warden, and by John Dale, Community Liaison Officer, who had visited both the site and Bewbush Middle School, in relation to the educational needs of the travellers' children.
ii) An Unauthorised Encampment Assessment of Circumstances form ("UE assessment form") was prepared on 5 September 2005 by Ms Glemas, based upon Traveller Welfare Enquiry forms prepared by Mr Hendry after his visit to the site. Limited information was obtainable by Mr Hendry on his visit, because many of the group were not in when he visited, although the enquiry forms themselves are directed to obtaining information not only about these specific persons interviewed but about any other member of the group of travellers. It was disclosed in Mrs Casey's enquiry form that she had two children attending Bewbush Primary School: Ms Glemas subsequently contacted a Ms Bentley of the Education Office in relation to those children and also telephoned the Childcare Helpdesk, who indicated that they had had no previous connection with the travellers. The UE assessment form completed by Ms Glemas contained a description and assessment of the site, to which I shall return, together with a statement that there had been an unauthorised encampment on the site in the past, which was "not tolerated due to the encampment being close to an access road for residents of nearby flats … The site has not changed since the last encampment was evicted". A record was made that there had been complaints by residents, and that there were eight caravans and four associated vehicles on the site. With regard to the occupiers of the site, it was recorded that there were six children (including the two schoolchildren referred to above): that the travellers were known to the Council, that there had been telephonic and email contact with social services, who had received no contact from the group, that the reasons given for their needing to stay on the site were that they had "nowhere else to go" and that the Casey family was already on the Council housing list. It was recorded that "there are domestic dwellings approximately 10 metres away from the closest caravan". The conclusions on the form were that the site was entirely unsuitable for even a short period of occupation because "where the travellers have set up camp is unsuitable due to their site being situated by a road which is needed to access residential homes for local residents … It is not thought … appropriate to tolerate this group because the travellers are camped very close to a road, which is used as access for the residents of the nearby flats."
iii) Mr Browning stated that he considered the homelessness application made by what he calls the 'Bewbush travellers' (a reference to all the Claimants) made on 16 May 2005, to which I will refer below.
Mr Kirby had also spoken to the Childcare Helpdesk to see if they had any connections with the travellers at Bewbush, and was aware of Mr Dale's contact with the Bewbush Middle School in relation to travellers' children's educational needs. He reminded Mr Browning that the group of travellers had applied to the Council for housing. He too prepared a UE assessment form, on the basis of enquiry forms filled out by Mr Nowosielski of the Security and Investigation Bureau, whom he had instructed to conduct welfare enquiries at Bewbush. As to the enquiry forms, it would appear that, once again, not many of the occupants were present when he attended. Mr Nowosielski obtained information from Mrs Maughan (whom he incorrectly recorded, because of his lack of understanding of the pronunciation, as 'Mahon') that in her family there were four children. The UE assessment form completed by Mr Kirby again contained a description and assessment of the site, to which I shall return. It incorrectly recorded that the group of travellers was not known to the Council (which may have arisen as a result of the mistake above referred to, and was seemingly corrected by Mr Kirby in his discussion with Mr Browning). It recorded that, including Mrs Maughan's four children, to whom reference has been made, there was a total of eight children on the site, and record was made of the absence of comment by social services and of the existence of complaints from local residents. The conclusion was recorded that the site was entirely unsuitable even for a short period of occupation because "the encampment is in a leisure facility car park serving a playing field. Government guidance lists such sites as one where unauthorised camping would be considered unacceptable. … it is not thought appropriate to tolerate this group because the encampment is preventing local people from using the facility".
The Claimants' Position
The Defendant's Position
"The Guidance plainly suggests that, provided the Council has carried out the necessary balancing act, it can evict. But where eviction renders the Claimants homeless and there is no alternative caravan site, does that create a duty and/or negate the right to evict? Is there a national policy to provide for those travellers who are being constantly evicted? In practice is it in fact expected that Councils will not evict without finding /providing alternative sites (and what if, as in the present case, there are none such, and what of local public opposition?)? Is it expected that travellers will modify their cultural attitudes so as at least on a temporary basis to accept accommodation in bricks and mortar as satisfaction of an evicting authority's duty to offer accommodation?"
Law and Guidance
- "to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular.
- to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3-5 years."
"The Council acknowledges that, as a member of the Travelling Community, it is likely that you will not be happy with temporary accommodation which is anything other than a serviced site which will allow you and your travelling companions to remain together.
However, the Council is unable to provide you with a site of that type. The Council is only able to offer you temporary accommodation of the type offered to most homeless applicants, that is accommodation in a 'bed and breakfast' hotel. The Council does acknowledge that case law has indicated that 'bricks and mortar' accommodation is not generally to be seen as suitable for members of the travelling community. The Council is also aware, however, of its obligation to all homeless applicants, and is required to balance the interests of all those to whom it owes a duty. The Council has done all it can to provide you with temporary accommodation of the type you would prefer. In the course of looking for potential sites, the Council has considered the open spaces within its ownership, but has had to conclude that none are appropriate for use as pitches for your caravans. The Council's Traveller Officer Working Group has been established for some time, and has for several months been engaged in a search for a piece of land which can be established as a site for Travellers. Despite this exercise, no such site has yet been confirmed as appropriate, and although funds or grants for the purchase of land and the installation of services are available from Central Government, none have yet been allocated, and planning permission has not been sought or granted. "
"Following our client's meeting with Mr Redwood, the Director of Housing and Planning of your instructing authority, and following our telephone conversation of this morning we write to confirm the agreement reached between the parties.
Provided that your instructing authority takes the agreed steps set out below our clients have agreed to:
1. Move from their existing pitch, and
2. [Refrain] from issuing judicial review proceedings
The steps your client has agreed to take are
1. To improve and enlarge the surface of the alternative temporary site in Tilgate Park (marked on the map attached to your letter of the 26th February 2004) by putting down hardcore and gravel, so as to make the site ready for our clients to pitch on, by this Wednesday the 3rd March 2004.
2. To allow our clients to remain on this alternative temporary site, in Tilgate Park, until the proposed, longer term, tolerated site is made available to them. We understand that this is likely to be in about four weeks time.
3. To allow our client to remain on this longer term tolerated site until the official site is available.
We would be grateful if you would periodically update us of progress made in respect of preparation of the longer term tolerated and the official sites."
"As you will be aware, your clients moved from the Golf Centre car park on 4 March 2004, into another, slightly less inappropriate, car park elsewhere in Tilgate Park. Your clients' occupation of that site was tolerated by the Council on the basis that it was short term, and intended only as a "stop-gap" until a location more suitable for longer term toleration was identified.
Langley Green playing field was eventually identified as that "longer term" toleration site, and Mr Casey and his family moved to the playing field on 7 April 2004. The Council has agreed to tolerate your clients' occupation of that defined part of the playing field for a reasonable period, but subject to compliance with site occupation conditions. A copy of the schedule of the current conditions is attached for your information. Conditions 12 and 13 were added recently following allegations about the behaviour of your clients' animals made by neighbours of the site.
You are aware, I believe, that Dualit Limited, a neighbour of the Langley Green playing field, has issued an application for leave to apply for a judicial review. I have advised DMH Solicitors, acting for Dualit, that your clients should be considered as interested parties and I understand that you have been served with a copy of the application. The Council is acting in good faith in tolerating your clients' unauthorised occupation of the Langley Green playing field, but is clearly in the hands of the court in respect of the judicial review application."
i) The 'alternative temporary site in Tilgate Park' (step number 2 in the letter) was provided, and the Claimants moved to it.
ii) The Defendants then made available (expending £65,000 in doing so) the "proposed, longer term, tolerated site" referred to in steps numbered 2 and 3 in that letter – Langley Green, to which the Claimants moved, and where they could have remained.
iii) The Claimants left Langley Green in June 2004. I am satisfied, on the evidence before me, insofar as such is argued, which it hardly has been, that no legitimate expectation arose out of any words spoken by Mr Redwood, which even on Mr Casey's version were of the most general variety, and after most of the Claimants had in any event already left: and were not said to amount to any promissory estoppel in the County Court proceedings. In any event, no alleged legitimate expectation has been sought to be spelt out of whatever words were spoken, and they, like the original 27 February arrangement, are past history. The Claimants each left Langley Green and moved on, as it happens not even, at that time, retaining the same grouping, without at that stage any assertion of entitlement or expectation, or even any request to the Defendant Council for some other site. Some of the Claimants subsequently entered into the Tilgate Park agreement of February 2005, with its agreed departure date of 18 March, and duly left Tilgate Park.
"3. JR [Mr Redwood] advised that there was currently no land available for the creation of a permanent site, although two possible transit sites had been identified. In reply to a question from the travellers, they were advised that Crawley Borough Council would be unable to find a site specifically for their group, as land on any public site would have to be allocated fairly.
4. John Ross asked why the meeting had been called, if no permanent site had been found. He stated that provision of a transit site would lead to more "hassle" and that a permanent site was needed for their group. Councillor Redmayne stated that the meeting had been called to find out what the travellers were looking for and what they were trying to achieve.
6. JR re-emphasised that at present, CBC could not provide a permanent site. If, however, the travellers, through a Planning Consultant/Solicitor, were able to find a suitable private site, then CBC could consider it. JR said that he had spoken to Michael Cox, a Planning Consultant two years ago about finding an appropriate site but had heard nothing since.
7. Councillor Redmayne advised that currently, local residents were becoming intolerant, and it is therefore necessary to find a solution. He confirmed the Council had been trying to find sites, and stated that some of the travellers' actions did not endear them to the local community. It was important to find a way of working together to find a way forward.
8. If, following the needs assessment, the Council were to decide to provide a permanent residential site, it would mean looking outside the Borough, which would take a long time, e.g. three years or more, and this would be uncertain. If the travellers find their own site, it might be possible to provide for themselves within a year. However, in the meantime, there was nothing further that the Council could do.
10. JR emphasised the importance of consulting with local people on the two possible transit sites: at Rowley Farm and at the old gasholder site. Currently owned by English Partnerships, these sites are 'blighted' with regard to development as they are affected by aircraft noise. It was acknowledged that 'ground' work would be required to avoid opposition, and that residents and neighbouring businesses would need to be persuaded that this would work. It would also be necessary to persuade English Partnerships that the Council could be trusted to manage the site.
11. In reply to a question about what would happen in the meantime, the travellers were advised that they would be asked to leave if they broke into sites and occupied them unlawfully as a Trespasser. There were rules and laws which would have to be complied with.
12. JR advised that a Consultant had been paid a large sum of money to look at all the options. From a total of 28 sites, only the two potential transit sites … were found to be suitable. Councillor Smith expressed a willingness to commit some time to go through the Consultant's report, to explain why the Consultants had felt that the remaining sites were unsuitable. She also advised that CBC had to follow guidelines set down the by the Office of the Deputy Prime Minister, although she understood that this may not be important to travellers. It was stated that these were good sites, apart from the aircraft noise, and that there are no residential developments in the area due to the proximity of the flight path. If the Council decided to accept either of these transit sites, the earliest they would be available is July 2006.
15. Councillor Redmayne reiterated that things had to change. It was impossible to have travellers moving around the town in this way. John Ross advised that although they would be going to Court, they did not want more sites with concrete blocks and barriers, because it caused too many arguments. He stated that the solution would be that his group find themselves a piece of land."
"84. 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 gypsies' way of life"
and that Article 8 was applicable to the occupants, when possession was sought against them. The issue in Connors was in essence as to the whole system whereby in the United Kingdom there was no security of tenure for those in local authority gypsy sites. Nevertheless it was concluded by the Court of Appeal in Price that the finding in Connors that Article 8 applied, even where the local authority had an undisputed immediate right to possession of the land, was inconsistent with Qazi.
"34. Had we accepted [Counsel's] invitation to depart from … Qazi … we would have had to consider some difficult questions. Where gypsies trespass on the land of a local authority without leave or licence, can seeking their removal ever constitute an interference with their Article 8 rights that is not justified under Article 8(2)? If so, can their Article 8 rights be raised as a defence to the proprietary claim for possession rather than for proceedings for judicial review?"
"98. The court does not … accept the argument that because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the Applicant gypsy family to occupy land where they wish in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The court is not convinced, despite the undoubted evolution that has taken place in both international law … and domestic legislations in regard to protection on minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy on States.
99. It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many person who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision."
"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."
"Everyone has the right to respect for his private and family life, his home and his correspondence."
"73. The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the Applicants' stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition.
74. The Court finds therefore that the applicant's right to respect for her private life, family life and home are an issue in the present case."
"Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings"
- a very general proposition from which Ms Kilroy seeks to draw some assistance.
"So far as Article 8 is concerned, I do not think that Plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be 'his home', but his private and family life are affected by the Council's decision. It is therefore necessary to consider whether the Council's decision satisfy the requirements of Article 8.2."
"54.3 In nearly all cases, the domestic law of property and contract will provide a complete answer to a defence based on Article 8(1). Parliament has chosen to recognise (or grant) property rights and to provide for security of tenure for individuals in a wide range of circumstances. None of those circumstances obtain in a case, such as the present, where an individual has entered onto local authority land without licence or consent. The scheme of property rights and protection of tenure as established by Parliament in particular areas represents the general balance which Parliament considers should be struck between the usual competing interests in those areas. Where: (i) many competing interests may be involved which the legislature is best placed to assess and evaluate (e.g. weighing the general needs of persons in the area of a local authority); (ii) the operation of a legal regime is part of national strategy in relation to economic and social issues (which is typically the case in relation to the protection of the environment – see Chapman v UK at ); and (iii) it is important in the interests of legal certainty (a value of particular importance in the context of property rights) and to avoid arbitrary differences in approach as between similar cases in different parts of the country, that a single coherent set of rules be promulgated and applied in a fashion which is reasonably clear and predictable, the legislature is to be accorded a wide margin of appreciation/discretionary area of judgment in setting the applicable rules which strike the relevant balance for the purposes of Article 8(2). Accordingly, there should be a strong presumption that the balance as struck by the general law as endorsed or laid down by the legislature should be respected and applied by the Courts, and only in an exceptional case where there is shown to be a particularly compelling claim for an individual's interests under Article 8 to trump the general interest of the community reflected in the standard legal rules should the Courts decline to enforce the general law.
54.4 Further, local authorities have wide-ranging duties and responsibilities connected to their use of publicly-owned land, be it for housing or for their other functions, including the provision of facilities for education and recreation, promoting health and protecting the environment. In deciding how their land should be used, local authorities must balance the competing rights and interests of all those who live or are present in their area, against the background of their wide-ranging duties. In Buckley … the ECtHR held (at ) that national authorities should in principle enjoy a wide margin of appreciation "in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies". By analogy, it is submitted that the Court should generally respect the choice made by a local authority which decides to exercise its legal rights to seek possession of land which it owns which is occupied by trespassers, since in so acting the local authority will be acting after itself taking into account the range of local factors which it, rather than the Court, is best placed to assess and which it, rather than the Court, has the constitutional responsibility for assessing and acting upon;
54.5 Given that the consequence of refusing possession to a local authority would be to defeat the authority's otherwise unqualified property rights, and hence to fetter the use of publicly-owned land, only in the most extreme and sympathetic circumstances should a Court determine that, on the specific facts of the individual case, the local authority's property rights should be outweighed by the Article 8 rights of a trespasser in occupation of its land.
55. As already noted, the ECtHR in Connors commented that the vulnerable position of the applicant as a gypsy required special consideration to be given to his needs, and imposed positive obligations on Contracting States by virtue of Article 8: see also Chapman v UK, supra, at . Nonetheless, it is submitted that it does not follow from the fact that such a limited positive obligation may exist that a gypsy will automatically or even usually have an Article 8 defence to possession proceedings brought by a public landowner. In particular, it is submitted that general considerations as to the position of gypsies should not ordinarily provide a defence to possession proceedings brought against individuals who have occupied local authority land without licence or consent. Article 8 does not confer a right to be provided with a home, either generally, or in a particular location: see Chapman v UK at .
56. To hold that the particular position of gypsies provided a defence to possession proceedings would be, in effect, to give gypsies a right to occupy any piece of local authority land as they saw fit, wherever they might seek to justify their action by reference to general failures on the part of the local authority in question (or the State more generally) to provide adequate sites for gypsies in the locality. Such a de facto right of occupation would apply irrespective of the nature, location and use of the land in question. The consequences would be to undermine the control which local authorities should exercise over their land, in the public interest. For example, a local authority would have no recourse if a group of gypsies or travellers set up camp in a school playground, or in an area of outstanding natural beauty within the Green Belt. It is submitted that the right to respect for the home under Article 8 of the ECHR cannot give rise to a general right on the part of any particular group or groups in society to occupy public land in this way. By analogy, the Court of Appeal has held that an absence of alternative gypsy sites in a Green Belt area does not entail that a policy of refusing planning permission for gypsy caravan sites in the Green Belt should be overridden in circumstances where a gypsy had been subject to an enforcement notice after having used his land as a caravan site without planning permission: see … Simmons … per Carnwath LJ at  and , and Chapman v UK, supra, at . The proper (and Convention compatible) answer to the problems which gypsies face in finding caravan sites in some parts of the country (including the Defendant's area) is that being implemented by the Government through the Housing Act 2004, the [2004 Planning Act] and the 2006 Circular, namely a strategy of locating appropriate places for such sites through the regional and local planning process, which will make appropriate provision of land for gypsies and travellers in a manner and at locations which best reconcile their special interests with the myriad of other competing interests which the planning process is effective to identify and take into account.
57. By contrast, it would be wholly contrary to the proper allocation and use of land within a local authority's area for the authority to be prevented from evicting gypsies from unauthorised sites. Far from curing the real problem of inadequate suitable sites being available, this would entail that local authority land would be being used inappropriately and in a manner prejudicial to the rights of other people within the area. Moreover, the persistence of unauthorised sites may have a detrimental impact on all within the community by engendered tension and hostility towards gypsies and travellers.
58. The unavailability of alternative sites would be likely to be a relevant consideration in the Court's consideration of whether an Article 8 defence to the possession proceedings should succeed. However, given the numerous factors set out above telling against abrogating the property rights of the local authority, it is submitted that the lack of such alternative sites ought not generally to lead to possession being refused."
"59.1. A local authority should not be prevented from seeking or obtaining possession of its land from gypsies or travellers who are trespassing in circumstances where there are no alternative sites available in its area. Local authorities should not be prevented from using and managing their own land, save in wholly exceptional circumstances where their property rights and the rights of others are outweighed by the Article 8(1) rights of the gypsies or travellers in question."
i) Seek and obtain possession of the sites [Option 1].
ii) Tolerate the Claimants, if only for a short time, until an alternative could be found [Option 2].
iii) Find an alternative site, if only on a temporary basis, and offer the Defendants a move to it [Option 3].
i) Mr Kirby, in paragraph 9 of his witness statement dated 20 September 2005, does give the wrong title for the document, and ascribes it to the authorship of the Home Office and the DETR (who were the joint authors of the 1998 Guidance); but the quotation which he then makes, of paragraph 5.11, is of that paragraph in the correct, 2004, Guidance, and there is no such paragraph in the 1998 document.
ii) Ms Kilroy points out that, for example, Ms Glemas, in her witness statement in the County Court proceedings of 5 September 2005, said that she prepared the UE assessment form in accordance with a title which in terms appears to be that of the 1998 Guidance. However the actual standard form UE assessment form which she used, and which she exhibits to that very statement, refers to the "ODPM/Home Office/DETR Guide and Circular 18/94". As discussed, DETR was not the co-author of the 2004 Guidance, but then the ODPM was not an author of the 1998 Guidance. Any doubt is however resolved by the fact that the form is plainly prepared on the basis of the 2004 Guidance, which is expressly referred to in the body of the form (e.g. in paragraph 1), and from which it is quite clear that the wording, especially of that paragraph, is derived.
i) The Claimants had been very frequently evicted in the past. Ms Kilroy does not suggest that this always occurred in the Defendant Council's area. Her chronology within her skeleton reads: "Claimants are evicted from sites in the Crawley area and elsewhere 30-40 times every year". However it is quite clear that they were frequently evicted over the years from sites in Crawley, when they came to Crawley, as they frequently did. They were offered 'toleration' it seems on only three occasions: once on a car park in Grattons Park in September 2003, pending the statutory review: once in Tilgate Park and then Langley Green, pursuant to the compromise of the threatened judicial review proceedings in February to June 2004: and once, as a result of the Tilgate Park agreement, in February 2005.
ii) The Defendant has no proper records of their evictions so far as concerns identification on every occasion of which travellers are evicted, which makes it impossible for them to monitor how often the Claimants and others have been evicted.
iii) The Defendant Council had, according to Ms Kilroy, made up its mind already, prior to the decisions to evict the subject of this action, that there were no alternative sites. She derives this from Mr Redwood's statement (paragraph 14 of his witness statement of 23 September 2005) that "the Council's decision not to locate and tolerate the Claimants on an 'acceptable' site is reasonable, because, following an exhaustive search of sites, no sites have been found. The Claimants have been invited to identify sites but have not done so."
iv) The policy, which is set out in the Executive policy review of 13 December 2000 ("the December 2000 Review") at paragraph 3.3, was, and remained, its policy, namely to evict unless it is determined that there is "overriding welfare need".
i) The Defendant answers that the policy referred to in paragraph 3.3 of the 13 December 2000 document was the policy which had existed prior to that date. That this is the case is clear from the very terms of the December 2000 Review, at paragraph 5.13 and the following paragraphs. Those paragraphs make clear that the previous "current" approach to enforcement is "no longer tenable", and replaces it with a new approach: which will depend first upon the nature of the site on which the unauthorised encampment has occurred (paragraph 5.14), followed by the application of the criteria set out in paragraph 5.15: "the nature, suitability and obtrusiveness of the encampment, the size of the group, their behaviour and the level of nuisance, the number, validity and seriousness of any complaints, the health, welfare and educational interests of the travellers". The nature of the continuing policy is made further clear from consideration of the Report to the Executive of 16 July 2003 on the West Sussex County Council Strategy on Gypsies and Travellers in West Sussex, which Strategy provides for the consideration of Options 2 and 3 in appropriate circumstances, and is "welcomed and broadly agreed with" by the Defendant's report: and, further, the Report of the Area Issues Scrutiny Committee of 18 February 2004 on Travellers and Unauthorised Encampments ("the 2004 Scrutiny Report"), when a policy was again approved in which Options 2 and 3 were plainly included. There is no evidence at all that all this was a sham, and that the pre-2000 policy continued.
ii) I have already stated above that I am satisfied that there were no sites in September 2005 which could be considered for toleration. I do not read the evidence of the Defendant as stating, nor do I find, that they made a once-and-for-all investigation so as to rule out Option 3 in any circumstances. They were clearly engaged in looking for permanent sites, as referred to in paragraph 32 above, even though (i) as the law stood at the material time they had no duty to provide sites [see Chapman at paragraph 98 etc] (ii) they did not have such a duty even prior to 1994 when there was a duty upon county councils (iii) they will, under the presently proposed strategy, only have an obligation to co-operate in the provision of sites on a regional basis. However, they have not made a pro-active search for possible temporary 'toleration sites', in anticipation of the possibility of a future operation of Option 3. Neither any authority in the courts nor the ODPM require this of them. Mr Stilitz, on behalf of the ODPM, expressly made clear in his submissions that the ODPM would expect consistent examination of possibilities for permanent sites, but does not expect, indeed deprecates, pro-active searches for temporary 'toleration sites'. If, in a given situation, reactively the Council can find for travellers on an unauthorised site another temporary toleration site where lawfully and, notwithstanding the absence of planning permission, they can be temporarily sited, that would be a suitable administrative decision and exercise of Option 3: but there is no need for them to have a pro-actively identified pool ready, even if that were feasible. I agree, and conclude that the absence of any pro-active effort by this Council to identify temporary toleration sites is not to be construed as, nor is any indication whatever of, a closed mind or an objectionable practice.
iii) If the Defendant has on very many occasions evicted the Claimants, that has, since 2000, been in accordance with their post-2000 policy, and they have on occasion tolerated a site, in the circumstances discussed. Such evictions are inevitable where there are no authorised or acceptable sites, and constant movement of travellers, not just the Claimants. The records the Defendant keeps do not identify the names of those evicted, not least because they very often do not know them. Although more effort should plainly be made to keep further records, to comply with the 2004 Guidance at paragraph 5.25, their inadequacy does not, in my judgment, support or suggest, in the light of the evidence I have seen, that the Defendant is not keeping an open mind about Options 2 or 3. In any event, as will be discussed below, the constant evictability of travellers is not, any more than is the mirror image of national insufficiency of sites, a factor in the equation for consideration of eviction decisions, unless it leads to particular welfare needs apparent at the time of consideration of an eviction.
i) The Council was required to take into account all material matters known, or reasonably available, to it at the time of its decision. Absent a clear failure to take a material matter into account, proof of perversity is necessary, and in R v Avon County Council ex p. Rexworthy  21 HLR 544, a case relating to a decision to evict trespassing gypsies, Rose J (at 544-5) referred to, and relied upon, the words of Lord Brightman in R v Hillingdon Borough Council ex p. Puhlhofer  AC 484 at 518, with which the other members of the House of Lords agreed, whereby "it is not sufficient … to take the view that the County Council's decision was wrong. There must be shown to be: "unreasonableness verging on an absurdity"."
ii) In this case, a decision was taken by Mr Browning to issue proceedings, and then a subsequent reconsideration by him as to whether to continue with those proceedings on 22 September. It is not disputed by Ms Kilroy, by reference to the authority of Waverley BC v Hilden  1 WLR 246, that the Defendant can rely if necessary on any additional facts or considerations which it then took into account.
iii) Insofar as Article 8 is assumed to apply, as referred to in paragraph 46 above, the court needs to exercise a more intensive review of that balancing act (R (Daly) v SSHD  2 AC 532: South Bucks).
"The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the Court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because planning inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the Court to weigh the arguments."
See also Marmont, where Tucker J, at 1049, accepted that there is a wide margin of appreciation where a local authority is considering whether to issue proceedings against trespassers on its own land.
"Unacceptable Encampment Locations
5.4 Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampment will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risks, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses. The list in Box 15 of sites where an unauthorised encampment would not normally be acceptable is illustrative only and it is not intended to be exhaustive."
"It is not thought appropriate to tolerate this group because the encampment is preventing local people from using the facility."
"The encampment cannot be tolerated. Users of the car park are being deterred from using it as they would customarily because of the travellers' occupation."
Schooling and Welfare
"The court has no role to impose what it perceives as ideal solutions under cover of the Wednesbury principles application. And the Council is entitled – I would incline to say obliged – to adopt procedures which balance the interests of the individual applicant, who has no relevant rights but what the statute gives him, with the general interest in the scheme's efficient administration, which should so far as possible be economic and expeditious."
"65. Local authority officers should conduct thorough welfare enquiries when a new encampment of Gypsies and Travellers arrives in the area. Where pressing needs for particular services are identified as part of the local authority's enquiries, relevant departments or external agencies should be contacted in order to meet these needs as appropriate (health services, social services, housing departments and so on).
66. If necessary, removal of the encampment could be delayed while urgent welfare needs are addressed (unless, as above, the site on which the unauthorised campers are using is particularly sensitive or hazardous, in which case the unauthorised campers should be asked to relocate to a more appropriate location in the vicinity). Further, it may be possible to negotiate a date for the encampment to leave it, for instance, the Gypsies and Travellers have camped in the vicinity for a specific purpose; in order to attend an outpatient's appointment at the local hospital for example."
Nowhere else to go
i) Eviction history and evictability.
ii) Homelessness application and links with the locality.
i) Eviction History and Evictability
i) the vulnerable role of travellers, and their needs, which are now being addressed by the ODPM and, in due course, by regional and local authorities;
ii) that in relation to these Claimants and all other travellers, the very act of travelling, where there is an insufficiency of sites, puts them, so long as they remain on the road, into a permanent state of evictability, and the past history only reflects what would, in any event, be foreseeable as to the future: and it is not eviction from this particular unauthorised site which causes that problem.
(ii) The Homelessness Application
i) So far as the Defendant is concerned, they were unable to find a temporary site for the Claimants, either as vulnerable trespassing travellers or as applicants under the Housing Act Part VII.
ii) The words of Carnwath J in R v Hillingdon LBC ex p. McDonagh at 183, would appear apposite, even though dealing with the reverse situation:
"It is not clear to me why Mr McDonagh has not exercised his right to apply under the Homeless Persons legislation for assistance. If he had done that, and given that he is clearly threatened with homelessness, the authority would be under a positive duty top inquire. [Counsel] had no real answer save to say there was a reluctance to use the Homelessness Legislation, where it might result in an offer of housing accommodation rather than a caravan site, which is what his clients would prefer. That may be a limitation in the protection afforded by the Homelessness Legislation, but it cannot have the effect of imposing a higher duty on the local authority outside the Act than they would have under it."
iii) In a homelessness application or appeal, it is wholly unclear that the claimants will be entitled to reject as unsuitable a temporary or permanent offer of bricks and mortar accommodation if no site is available, as, so far as temporary or permanent sites, it is not now, and with regard to permanent sites will not be, in the Defendant's area, for months if not years, and then possibly only within the region of which the Defendant forms part. It was made clear by Buxton LJ in Clarke, at paragraphs 11-12, approving what I said at paragraphs 34-35 in my judgment below, that "the fact that a refusal of conventional housing does not conclude the matter against the applicant does not of course mean that in such a case planning permission must be granted". So too in Codona, a homelessness appeal by a gypsy whose cultural aversion to bricks and mortar was accepted, it is clear that the provision, if a caravan could not be found, of temporary or even permanent bricks and mortar accommodation was not ruled out (see paragraphs 49 and 59-60). The defendants plainly understood that following Option 1 would mean the claimants either moving on or accepting temporary accommodation in bricks and mortar. That did not mean it was required to adopt, or was unreasonable in not adopting, Option 2 or Option 3.
Race Relations Act
"(1) Every body or other person specified … shall, in carrying out its functions, have due regard to the need –
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups."
The Balancing Act
"54.5 Given that the consequence of refusing possession to a local authority would be to defeat the authority's otherwise unqualified property rights, and hence to fetter the use of publicly-owned land, only in the most extreme and sympathetic circumstances should a Court determine that, on the specific facts of the individual case, the local authority's property rights should be outweighed by the Article 8's rights of a trespasser in occupation of its land."
I also accept his submissions on behalf of the ODPM set out in paragraphs 46 and 47 above.
Section 184 of the Housing Act 1996
"This is not a formal offer of temporary accommodation in discharge of a duty to provide suitable accommodation, and we will consider any representations from you before deciding that any offer of temporary or other accommodation is suitable and in discharge of the Council's duty to you.
This accommodation is intended to be made available to you until an offer of longer term accommodation can be made from the Housing Register. It is anticipated that with your Housing Register application being in banding "A" and a registration date of 15th September 2003 in 7-8 months you will [be] at the top of your banding and will be invited into the Property Store to view available accommodation.
In the meantime the Council will continue to work with [its] partners in West Sussex to identify a site for your occupation.
I would be grateful if you could let me know within 7 days from the date of this letter whether or not you wish to take up the temporary accommodation offered above."