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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/03/2015

Mrs Justice McGowan :

1. This is an application for permission to appeal a decision of His Honour Judge Denyer QC sitting in the County Court in Bristol. The parties were ordered by Dingemans J to prepare for the appeal even though permission was not granted. This hearing has proceeded, as an effective appeal, on that basis.
2. On 22 September 2014 His Honour Judge Denyer QC gave judgment striking out paragraphs 10-12 of the Appellant's defence which purported to raise an Article 8 argument.

The Facts

3. The Appellant, Matthew Jones, owns and lives on a boat called "The Mrs T". The boat is currently moored on the Kennet and Avon Canal, ("the canal").
4. The Respondent is the Canal and River Trust, ("the trust"). The trust is the navigational authority for the canal. It manages the internal waterways, under a statutory duty. It is a public authority and the successor of the British Waterways Board. The trust is not a housing authority.
5. As part of its management responsibility the trust grants licences to those who wish to use boats on the waterways. One form of licence is a "Home Mooring", which allows a boat to be kept on a fixed mooring. Another form of licence is a "Continuous Navigation Licence". This, as the name suggests, requires the holder to move his boat through a certain distance over a certain period of time. The Appellant only held a continuous navigation licence. Amongst the factual disputes in this case will be how far and how often the appellant moved his boat.
6. The trust contends that it has lawfully terminated the Defendant's continuous navigation licence. It has brought proceedings for declaratory and injunctive relief. It submits that it is entitled to remove the boat from the waterway and to prevent its return.

The Appeal

7. The Appellant sought to add to his defence the argument that the Trust did not properly, or at all, consider his housing needs in reaching the decision to terminate his licence. The learned Judge was asked to consider, as a preliminary issue, whether the Article 8 argument should be struck out as it was bound to fail. Article 8 sets out the right to respect for private and family life, in particular in relation to the provision of social housing,

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

8. This appeal raises one principal and two subsidiary issues,

i) Did the learned judge err in adopting the same approach as that adopted in cases where a breach of Article 8 was alleged in cases of social housing against public authority landlords,

ii) Did he err in deciding that to require the trust to substantiate the proportionality of their decision to terminate the appellant's licence would impose too great a burden on the trust and

iii) Even if that approach was correct did the judge err in finding that the Article 8 point was not seriously arguable, given its potential relevance to any relief sought.

The Decision

9. As a public body which is not a housing authority, the trust cannot owe any duty to the Appellant in relation to his housing needs under Article 8. Accordingly any test to be applied to a local authority housing department would not apply and no proportionality argument, however it is to be determined, can arise.
10. Nonetheless the learned Judge went on to consider whether the Article 8 point might raise a triable issue. In an ex tempore judgment the learned Judge determined that the trust could not be expected to investigate or deal with the Appellant's Article 8 rights as the burden imposed would be too great. In argument, in the original hearing and in this court the series of authorities distilled in the decision of the Supreme Court in Pinnock [2010] UKSC 45 were cited.
11. I have considered those authorities and it will not assist the parties for them to be recited here. Of greatest guidance to local authority landlords in Article 8 cases is the series of seven principles laid down by Etherton LJ, as he then was, in Thurrock Borough Council v West [2012] EWCA Civ 1435.
12. The reasoning of the Judge in the County Court in considering whether there was a need for a more structured approach cannot be faulted, even if it is based on a generously wide view. In concluding that the point could not be sustained he applied a correct interpretation of the authorities and principles. It may be that he encouraged false hope by suggesting that the competing arguments were "finely balanced". They are not. The appeal is dismissed.