England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		24th September 2007

MR JUSTICE FLAUX:

1. This is an appeal from His Honour Judge Cliffe at Leeds County Court, the judgment of 16th August of this year. The appellant, Mrs Ada Gill, appeals with the leave of Teare J. against a possession order made in favour of Leeds City Council against Mrs Gill. She is a lady of gypsy background, although she has lived in a house in Holbeck, an area of Leeds, for some 25 years until April of this year when unfortunately she had to leave her then house because the landlord put up the rent to such an extent that she could no longer afford to live there.
2. On 20th April this year she applied to the Council for the Council to house her on the basis that she was homeless. There seems to have been some delay before the Council considered that application and in the meantime she has lived together with her two children in two caravans on a number of unauthorised sites. She seems to have been living on Holbeck Moor until June of this year when on 19th June she moved the caravans on to a piece of land at Shafton(sic) Lane in Holbeck. That seems to be partly on a public road and partly on land owned by the Council.
3. Soon thereafter a lady called Orla Humphries, who is described as the travellers service officer employed by Leeds City Council, attended at the site at Shafton Lane and she prepared a document described as "a traveller's needs assessment" dated 21st June of 2007, which explains the background to the circumstances in which Mrs Gill and her family had pitched her caravans on this piece of land, having previously been moved on from Holbeck Moor. Mrs Humphries indicates that Mrs Gill and her family do not wish to live on the permanent travellers site at Cottingly Springs, but did want to live in what is described by travellers as "bricks and mortar accommodation". In other words, she wanted to continue living in a house if at all possible.
4. I should add at this point that the travellers needs assessment document is completed by the Council employees in accordance with the guidelines from the then Department of the Environment in a circular number 18 of 1994 headed "Gypsy sites policy and unauthorised camping" to which I will return later in this judgment.
5. Mrs Humphries reported her findings to Mr Tom Wiltshire, the group manager housing needs for Leeds City Council, who was the relevant Council officer authorised to consider whether or not the Council would tolerate the continued presence of Mrs Gill and her family on the site. He had forwarded to him the needs assessment document, together with another document described as "paper for decision" which sets out a number of aspects of the matter, including where Mrs Gill and her family were encamped on what had formerly been a small industrial unit prior to its demolition, which was currently unused space. It made the point that there were no sanitation facilities on the site, but that the family were using facilities belonging to a house on the corner where members of their family resided; and it also made the point that there had been no complaints from the local residents, and the site was tidy and well kept.
6. Mr Wiltshire considered those materials which he had been sent, and he says in his witness statement, which was before the learned judge. At para.5, having set out those matters, he says this:

"I was informed that the family had approached Housing Advice and made an application as homeless. They have been assessed as homeless and in priority need so the local authority has a duty to offer temporary accommodation to them. I understand they were offered temporary accommodation and advice regarding the availability of private rented accommodation. They refused both. I was informed that the family are on the housing register. Mrs Gill had awarded priority extra status and had been bidding on houses. The family did not want a site at the authorised travellers site at Cottingly Springs. They wanted traditional housing. I was informed that Mrs Gill had suffered a stroke but this was a few years ago and she was not attending hospital or taking medication. Taking into account the above information, the fact that the local authority has a duty to provide temporary accommodation to Mrs Gill and the fact that Mrs Gill wants traditional housing and does not want a pitch on the authorised travellers site, I decided that the local authority could not tolerate the trespass on Council land and instructed the Council's legal department to seek possession of the land."

7. Shortly after that decision by Mr Wiltshire, the family were in fact served with a direction to leave that part of the land which was a public road on 13th July 2007. I think on 17th July 2007 they moved their caravans about two meters so they were now exclusively on the land owned by Leeds City Council. Immediately prior to that slight move the Council had offered Mrs Gill permanent accommodation in an area of Leeds called Drighlington. She had refused and originally the Council served a discharge of duty letter on the basis that because of her refusal they had discharged any duty they were under to find her accommodation as a homeless person.
8. On 23rd July she objected in writing to the Council's offer of the property in Drighlington explaining why she regarded Drighlington as an unsuitable area for her and her family to live. The Council considered that matter and in fact reinstated their duty to her and reinstated her priority. That was a matter which they did following the intervention of the Gypsy And Travellers Exchange, a charitable body known by the acronym GATE, which obviously cares for and looks after the interests of gypsies and other travellers such as Mrs Gill. At all events, on 2nd August the council informed Mrs Gill that it had reinstated her priority status in terms of finding her permanent accommodation.
9. On the same day (2nd August) Mr Wiltshire reviewed his decision against these developments and the background, and he concluded that the possession proceedings should continue.
10. On 10th August the defence of Mrs Gill was served. It is not necessary to read all of that for the purposes of this appeal, but I should draw attention to the fact that in para.23 to 26 of the defence, the defendant relies upon Circular 18/94 that I have already referred to, together with some guidance published by the Home Office in 1998 and some guidance in February 2006 originally from the offices of the Deputy Prime Minister but now under the auspices of the Secretary of State for Communities and Local Government. Those particular matters, so far as relevant to the present application, are that in para.6 of the circular, it provides as follows:

"Secretaries of State recognise that in some circumstances it may be in the public interest to evict an unauthorised gypsy encampment and accept that this must remain a matter for local discretion. The Secretaries of State consider that it would usually be legitimate for a local authority to exercise the new eviction powers when gypsies camped unlawfully in their area refuse to move on to an authorised local authority site. Where gypsies are camped unlawfully on Council land, and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area, which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies' presence on the land for short periods and could examine ways of minimising the level of the nuisance on such tolerated sites, for example by providing basic services for gypsies, e.g. toilets, a refuse skip and a supply of drinking water."

Paragraph 9 goes on:

"The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly; they should use the powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land."

11. The defence also relies upon matters in the 1998 guidance in particular, which it is not necessary for me to read out for present purposes, since those seem to me to go primarily to issues of human rights which, for reasons I will come on to later in this judgment, do not arise in the present context. It is fair to say that although Mr Cottle, who appeared on behalf of the appellant, cited extensively from the 2006 guidance, a great deal of what he referred me to has to be viewed somewhat cautiously in the light of the fact that it is guidance that was actually produced prior to the decisions of the House of Lords in Kay & Ors v London Borough of Lambeth & Ors and Leeds City Council v Price & Ors [2006] 2 A.C, 465 (heard together) and they are cases in which judgment was handed down on 8th March 2006.
12. However, the guidance does refer to a number of matters which would still be relevant, and I am looking particularly at para.1.4 where it says that the guidance "... aims to help strike an appropriate balance between the needs and the legitimate expectations of members of the settled community, local businesses and other land owners and gypsies and travellers to set out recommended courses of action which all local authorities and police forces should follow to provide an effective response to unauthorised camping in their areas; to encourage a more consistent approach across the country, building on current good practice and shared experience; to be practical yet creative in the face of a difficult reality; to show how to engage the settled and gypsy traveller communities in order to achieve buy-in(?) to the strategy which is likely to ensure effective delivery." The guidance goes on to say that while it is advisory, local authorities and the police are strongly advised to bear it in mind when devising and implementing their approaches and are reminded that the courts may consider it is of material consideration in eviction or other enforcement decisions.
13. At all events, as I say, those matters were referred to in the defence and Mr Wiltshire, in his witness statement, says at para.10 that he has considered the defence, and the matters raised in it. He goes through a number of those matters specifically, including the health issues. There was an issue about Mrs Gill not being prepared to occupy temporary accommodation because of her traditional culture in that she could not share kitchen and toilet facilities. It appears that there was some confusion at that stage because as Mr Wiltshire makes clear, the council's policy in terms of temporary accommodation would be, so far as possible, to provide accommodation in family hostels which have self-contained cooking and washing facilities - either hostels owned by the Council or hostels leased from the private sector. It would only be in those cases where it would not be possible to obtain such hostel accommodation at short notice on an emergency basis, that a family would have to be put up in bed and breakfast or hotel accommodation where shared facilities would be necessary. But, as Mr Wiltshire says, in most cases, in the case of a family, it would not normally be for more than one night. He then says that if Mrs Gill indicated she wanted temporary accommodation to be provided, then the Council could identify and reserve accommodation for her. He goes on to say that in the light of the information provided in the defence, and by Mr Black (his colleague) in relation to temporary accommodation "I considered that the Council should not tolerate the continued trespass on Council land."
14. I should add in parenthesis that although the matter came before the learned judge on 16th August and on that day the Council offered Mrs Gill further permanent accommodation in an area of Leeds called Beeston, it was not an area where she thought she would be safe. She was friendly with a lady whose son had been murdered in that area in the recent past, and it seems to me she had a legitimate concern about being housed in that area, which the Council themselves appear to have recognised. As I have been told, since the hearing before his Honour Judge Cliffe, the Council have now offered further accommodation - or Mrs Gill bid for and her bid was accepted for permanent accommodation. It is in, as I understand it, an acceptable area from her perspective. It is accommodation where the current tenant either is about to leave or has already left, and the only imponderable is how long it will take the Council to put the property into a fit condition for Mrs Gill and her family. On that basis, it will be necessary for them to provide her with temporary accommodation.
15. In the meantime the Council have said through Miss Greatorex, counsel, that notwithstanding that at the time of the hearing before his Honour Judge Cottle, Mrs Gill was declining the offer of temporary accommodation, the position is that the Council remain willing to provide her with temporary accommodation, although the specific accommodation they had in mind at the time of the hearing a month ago is no longer available. In the nature of these things, it will have been taken by somebody else at short notice.
16. On the material that is currently before me, I am quite satisfied that the Council genuinely is prepared to offer Mrs Gill temporary accommodation which will, so far as possible, address her concerns about not having to share facilities, and that in due course, and one hopes that it will not be more than a matter of at most months, that she will indeed be provided with permanent accommodation.
17. Before considering the judgment and the criticisms that are made of it, I should mention one important aspect of the decision of the House of Lords in Kay & Ors v London Borough of Lambeth & Ors and Leeds City Council v Price & Ors. That is the issue as to the availability of particular defences in cases of this kind. It is not necessary to quote at great length from that case. I will for present purposes simply address, as the learned judge does, para.110 of Lord Hope's speech which was concurred in by Lord Scott, Baroness Hale and Lord Brown - that is to say a majority of the seven-man House of Lords in that case. Lord Hope says this, in relation to Article 8 of the European Convention on Human Rights:

"... 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 [1973] 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 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 [1985] AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard."

18. In this matter, the defendant's defence raised defences both in relation to human rights and in relation to public law. So far as the human rights defences were concerned, the learned judge points out in his judgment that the defendant had not argued that the English law of trespass was incompatible with Article 8 of the European Convention on Human Rights, and that decision not to argue that point strenuously at all might be thought to be an inevitable one in view of what various members of the House of Lords had said in Kay & Ors v London Borough of Lambeth & Ors. I have in mind particularly what Lord Scott of Foscote said in the Leeds City Council v Price & Ors appeal where the appellants there were travellers in caravans who were trespassers on the relevant land. What Lord Scott said is that Leeds Council had "... an unimpeachable right to evict them and restore the site to use as a recreation ground for the benefit of the public generally. No court, domestic or in Strasbourg, has ever suggested that a person who enters and remains on land as a trespasser can assert an Article 8 right to respect for the home he has unlawfully established on the land as a defence to the owner's eviction proceedings." There were similar expressions of view in other of their Lordships' speeches in the majority.
19. So it seems to me the position in relation to the Human Rights Act was one on which the appellant really had no arguable case before the learned judge, and the learned judge quite rightly rejected any defence on that basis. That decision has not been challenged before this court, although Mr Cottle rightly makes a general reservation in relation to human rights, which is both usual and predictable in this sort of case.
20. On the public law defences the defendant, Mrs Gill, relied on the catch-all shorthand of what is described as "Wednesbury unreasonableness". As later cases recognised, that covers a whole range of spectra in which a local authority decision can be said to be one which no reasonable local authority could reach. The learned judge dealt with this aspect of the defence in his judgment (of which I have been provided with a note). He said this:

"Can it be said in all the circumstances that the housing manager, Mr Tom Wiltshire, acted reasonably? Was it necessary? Was it proportionate in all the circumstances? Did he consider the effect on the family? Did he strike a balance? Did he fail to consider the guidance of the DoE? There is a particular part of the guidance of 1994 and 2004 under the heading 'Policy of toleration' where it says..."

- and he then quotes the passage I have already referred to:

"The Secretaries of State recognize that in some circumstances it may be in the public interest to evict an unauthorised gypsy encampment and accept that this must remain a matter for local discretion."

21. The learned judge goes on to consider other passages in the guidance and also the decision in Waldon v Hillingdon Borough Council. He then says:

"In a nutshell, the defendants say that the local authority action was not necessary and not proportionate; that they had no good reason to act; there was no antisocial behaviour, no development or planning issues, whereas in their present location the family has safety and support. Does all this make the local authority decision unreasonable? I conclude that it does not."

He then goes onto say:

"Mr Wiltshire, it is clear to me from his witness statement, considered the relevant criteria. In his statement he recites the fact that Mrs Gill and her children are accepted as homeless and in priority need and the local authority acknowledges a duty to find temporary and permanent accommodation."

He goes on to say that although there was a hiccup regarding priority extra status acknowledged by the local authority, the defendant did not want to move on to the authorised site at Cottingly Springs and wanted traditional housing. He then goes on to refer to what Mr Wiltshire had said about her health problems, and the intervention of GATE. He then says:

"The court cannot say that no reasonable authority would have proceeded in the way it has proceeded to continue to seek a possession order. "

22. Mr Cottle, for the appellant before me, challenges that aspect of the learned judge's decision and says that it is wrong for a number of reasons. Firstly, he says that the judge applied the wrong test for assessing Wednesbury unreasonableness and seems to have confined himself simply to the issue of perversity. I must say for my part I am not convinced that that is right. But even if it were, the question for me is whether his decision that the public law defence failed was wrong when one applies the right test, even if the learned judge was not applying the right test himself.
23. Secondly, Mr Cottle says the decision is wrong because contrary to what the judge said, Mr Wiltshire had not applied the right criteria in reaching his decision. Specifically, says Mr Cottle, Mr Wiltshire did not consider the question of whether, if this applicant were to be evicted from this site, she would simply move to another site causing greater nuisance elsewhere. Mr Cottle reminds me of the passage in the circular 18/94 which makes specific reference to that very point. He says that in failing to consider that matter, the Council was "Wednesbury-unreasonable".
24. Miss Greatorex, on behalf of the Council, submits first of all that Mr Wiltshire did consider all the criteria and secondly even if he did not consider that specific point, the overall decision of the Council to evict was not Wednesbury-unreasonable.
25. It is right to say that this issue was really the central issue in the oral argument before me, and my conclusions on this issue are as follows. Firstly, although Mr Wiltshire does not refer in terms to that question of whether or not if the applicant were to go elsewhere and camp on another site greater nuisance would be caused, it does seem to me to be a fair reading of all the evidence that the Council officers charged with responsibility for this matter had well in mind the guidance from the Government. It may be that this specific point assumed less significance because they thought that this applicant would accept temporary accommodation once the issue of the confusion about whether or not she would have her own cooking and washing facilities had been resolved, and therefore the issue as to whether or not she would move to another site and cause greater nuisance in the real world may not have loomed very large in their considerations.
26. Secondly, even if Mr Wiltshire and his colleagues did not specifically consider that issue, the overall decision, it seems to me, was not Wednesbury-unreasonable where the Council were agreeing to house this applicant permanently and where it had indicated a willingness to provide her with temporary accommodation in the meantime. I consider the risk of what Mr Cottle described as "third party harm" is really pretty remote and I certainly consider that any failure to consider it did not make the decision to evict so unreasonable that no reasonable authority could have reached that decision.
27. Thirdly, as the learned judge himself pointed out, this is only guidance. These are not statutory criteria or conditions precedent which have to be complied with by the authority before they make any decision or exercise any powers, and it does seem to me that there is a world of difference between a situation where the relevant local authority simply do not consider the guidance at all and, as Mr Justice Burton pointed out in The Queen on the Application of James Casey & Ors v Crawley Borough Council & Ors [2006] EWHC 301 (Admin), where a Council simply failed to take any account of the guidance, then it may be that it would be likely to be held to have acted Wednesbury unreasonable. That is not this case. It is quite clear that Mrs Humphries had the guidance well in mind. She refers to it in her witness statement. She exhibits it. She says that she discussed these matters with Mr Wiltshire and I conclude that the Council employees had the guidance well in mind.
28. It is also right to say, as I pointed out during the course of argument, that when one looks at this issue of the risk of third party harm if the relevant travellers move to another unauthorised site, what the guidance seems to me to have primarily in mind is those gypsies and other travellers who lead a nomadic life; in other words, who live in caravans on sites, not people like this appellant, who in truth, although she is of gypsy origin, has spent a substantial proportion of her life living in a house and who actually wants to live in a house rather than live in a caravan. It seems to me that in interpreting the guidance and applying it, the Council would have been entitled to discount that aspect.
29. Fourthly, to the extent that Mr Cottle relies on proportionality, it seems to me proportionality as it arises in the human rights context cannot be applicable here, and to the extent that Mr Cottle relies upon the decision of the House of Lords in R v Huang [2007] UKHL 11, it seems to me that reliance is misplaced because it is quite clear from paras.11 and 13 of the joint speech of their Lordships that the context in which that consideration arose, which was the adjudication procedure under the Immigration Act was a context which specifically referred to human rights and to the Human Rights Act. Therefore the relevant statutory framework required the relevant adjudicator to have regard to issues of proportionality.
30. In a case such as this where the House of Lords have said in Kay & Ors v London Borough of Lambeth & Ors and Leeds City Council v Price & Ors, that other than in very limited circumstances human rights considerations do not arise, it does not seem to me that resort can be had to proportionality in that human rights sense.
31. At the end of the day, I think Mr Cottle limited the scope of his argument on this point by essentially dealing with proportionality as what might be described as one of the aspects of Wednesbury reasonableness. To that extent it seems to me that the approach of this Council was a proportionate one and that it was not Wednesbury-unreasonable in that regard. It has to be remembered that the applicant was a trespasser on the land and that just as a trespasser does not have any human rights to have recognized a home on the land - that is the very point that the House of Lords made in Kay - so it seems to me that the fact she is a trespasser militates against the decision to evict being Wednesbury-unreasonable. In that regard, the learned judge, as I see it, quite rightly referred to and relied on what Lord Brown of Eaton-under-Heywood said in Kay at para.208 and 209.

"208 .... 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 court—see the decision of the House of Lords in Wandsworth London Borough Council v Winder [1985] 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...

Then he goes on to say:

"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."

32. Whilst it is fair to say that Lord Brown did not have specifically in mind the facts of this case, as I have already said, one of those cases before their Lordships was indeed a case of trespassers on Council land, and it seems to me that what Lord Brown says there, as I have already indicated, militates very strongly against a decision by a Council in the circumstances of this sort of case being regarded as Wednesbury-unreasonable.
33. Finally, I would reject any suggestion that the learned judge did not give sufficient reasons for his decision, and although it is fair to say that his decision is fairly short and somewhat curt, it is quite clear what the basis of his decision was. It does not seem to me that that gives rise to any separate grounds of appeal.
34. In all the circumstances I consider that the learned judge's judgment on this point was entirely correct, and that accordingly this appeal is dismissed.
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