Avon County Council v Buscott
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE TAYLOR |
| Judgment Date | 02 March 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0302-4 |
| Date | 02 March 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0181 |
[1988] EWCA Civ J0302-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE STUART-SMITH
Royal Courts of Justice
The Master of The Rolls
(Lord Donaldson)
Lord Justice Parker
Lord Justice Taylor
88/0181
MR DAVID GEEY, instructed by Messrs Phillips & Co. (Bath), appeared for the Appellants (Defendants).
MR DAVID MOLE, instructed by B.D. Smith Esq. (Bristol), appeared for the Respondents (Plaintiffs).
In August 1986 an officer of the Council discovered Sarah Buscott and the other appellants living in 6 "benders" in the rear gardens of Nos. 13–16 Hampton Row, Bathwick, Bath. "Benders" are shelters formed of branches covered with tarpaulins or polythene and are closely analogous to tents. The land upon which the "benders" had been constructed belongs to the Avon County Council and the appellants were trespassers. The officer required them to leave, but they did not do so and the Council sought an order for possession under the summary procedure provided by R.S.C. Order 113.
The application was heard by Stuart-Smith J. (as he then was) on 3rd October 1986. The appellants did not contend that they were other than trespassers or that the Avon Council was not the owner of the land. Nor did they contest the Council's right to an order for possession if—and this was the vital qualification—the Council was entitled to come to the court to seek such an order. The appellants contended that the Council was not so entitled and they sought an adjournment to prove it.
In brief what the appellants wished to assert and support by evidence was that:
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(a) They were all "gipsies" as defined by section 16 of the Caravan Sites Act 1968.
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(b) The County Council was in breach of its statutory duty under section 6 of the Act to exercise their powers under section 24 of the Caravan Sites and Control of Development Act 1960 to provide caravan sites so far as might be necessary "to provide adequate accommodation for gipsies residing in or resorting to the Council's area".
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(c) In all the circumstances a decision to seek orders for possession of the land was "Wednesbury unreasonable" and so beyond the powers of the Council.
The Council admitted, solely for the purposes of the application, that the appellants were all gipsies. It also admitted, subject to a similar qualification, that it was in breach of this statutory duty. However it resisted any adjournment upon the grounds that the Council's decision to seek a possession order could not be questioned in proceedings under Order 113. If it was to be questioned at all, in the Council's submission this had to be in proceedings for judicial review.
The appellants, for reasons which may well have been sound but are not directly material, refrained from seeking any adjournment upon the alternative ground that they wished to apply for judicial review. Stuart-Smith J. was thus faced with the straightforward, but very important, issue of whether the appellants were entitled in Order 113 proceedings to attack the right of the Council to bring those proceedings. He decided that they were not and made a possession order which he stayed pending any appeal.
It is wholly deplorable that a period of over 16 months should have elapsed between the making of the possession order and the hearing of the appeal. Two months would have been more appropriate. This delay has been the subject of a separate investigation and it would be inappropriate in this judgment to seek to apportion blame. Suffice it to say that, whilst the court will always seek to detect and to prevent delays such as have occurred in this case, and, in the light of this case, has sought to improve its detection machinery, this is a safety net, the primary responsibility resting upon the parties, and particularly the respondent, to seek the court's assistance if undue delay appears to be occurring or to be in prospect.
The decision of this court in West Glamorgan City Council v. Rafferty [1987] 1 W.L.R. 457 binds us to hold that (a) a decision by a local authority to seek to evict squatters can be quashed in judicial review proceedings upon the grounds that it is Wednesbury unreasonable to apply for a possession order when the Council is in continuing breach of its obligation to provide caravan sites for gipsies, (b) if the decision is quashed in such proceedings, any eviction proceedings based upon the decision would be abortive, and (c) no pre-conditions for the validity of a new decision to seek an eviction order could be laid down. What the West Glamorgan case does not decide is whether the decision of the local authority can be attacked on the eviction proceedings themselves, as contrasted with separate judicial review proceedings. That issue was decided by Scott J. in Waverley Borough Council v. Hilden [1988] 1 W.L.R. 246 upon a consideration of the Glamorgan case and Wandsworth Borough Council v. Winder [1985] A.C. 461. His conclusion was that the decision falls to be challenged by judicial review and not otherwise. I agree with that conclusion, but as his decision is not binding upon this court, I should now give my reasons.
Since the decisions of the Hosue of Lords in O'Reilly v. Mackman [1983] 2 A.C. 237 and Cocks v. Thanet District Council [1983] 2 A.C. 286, the general rule has been that it is "an abuse of the process of the court for a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities" (per Lord Diplock at page 285). However Lord Diplock recognised that there might have to be exceptions, and such an exception was made in the case of Wandsworth L.B.C. v. Winder (supra).
In Winder's case the Council were seeking (a) payment of arrears of rent and (b) an order for possession based upon those arrears. The tenant's defence was simple. There were no arrears. Such a defence might have been based upon an allegation that the Council had miscalculated or failed to give credit for rent payments in fact made by the tenant and, if such had been the case, he could without doubt have raised it in the eviction proceedings. In fact he was alleging that two decisions to increase his rent were " Wednesbury unreaonable", a public law issue. The only reasoned judgment was given by Lord Fraser of Tullybelton, who upheld the tenant's right to advance this defence in the eviction proceedings.
He said, at page 507B:
"There are two important differences between the facts in O'Reilly and those in the present case. First, the plaintiffs in O'Reilly had not suffered any infringement of their rights in private law; their complaint was that they had been ordered to forfeit part of their remission of sentence but they had no right in private law to such a remission, which was granted only as a matter of indulgence. Consequently, even if the board of visitors had acted contrary to the rules of natural justice when making the award, the members of the board would not have been liable in damages to the prisoners. In the present case what the respondent...
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