Codona v Mid-Bedfordshire District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Thomas,Mr Justice Holman |
| Judgment Date | 15 July 2004 |
| Neutral Citation | [2004] EWCA Civ 925 |
| Docket Number | Case No: B2/2003/2591(Z) |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2004 |
[2004] EWCA Civ 925
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
HIS HONOUR JUDGE FARNWORTH
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Auld
The Right Honourable Lord Justice Thomas and
The Honourable Mr Justice Holman
Case No: B2/2003/2591(Z)
B2/2003/2591
Mr David Watkinson (instructed by The Community Law Partnership) for the Appellant
Mr Joseph Harper QC and Mr Edmund Robb (instructed by Mills & Reeve) for the Respondent
This is an appeal by Mrs Leanne Codona from an order of His Honour Judge Farnworth, sitting at the Luton County Court, on 21 st November 2003 upholding a decision of the respondent, the Mid-Bedfordshire District Council ("the Council"), of 8 th May 2003 on a review under section 202 of the Housing Act 1996 that an offer to her and her family of conventional "bricks and mortar" accommodation would discharge its duty to secure accommodation for them under sections 193, 176 and 206 of the Act.
The central issue in the appeal, which is contained within three grounds of appeal on which Chadwick LJ gave permission to appeal, is whether a local housing authority discharges its duty under the 1996 Act to secure suitable accommodation for a homeless gypsy caravan dweller, with an aversion to conventional "bricks and mortar accommodation", by offering her such accommodation in the form of temporary bed and breakfast accommodation.
There are two further grounds, in respect of which Chadwick LJ refused permission, but gave Mrs Codona permission to renew before the full Court, which, to the extent that they are arguable, add nothing of substance to the main issue.
The facts
Mrs Codona, her two and half year old son and other members of her extended family, who are of traditional Romany gypsy stock live in caravans on what has become known as Plot 7 Woodside Caravan Park at Hatch, Near Sandy in Bedfordshire. Mrs Codona and her family were part of a group of gypsies who moved onto the site with their caravans in breach of planning control in mid 1997. Over a period of time the site was divided into 27 plots.
The Council first learned in early August 1997 that the gypsies were occupying the site. In April of the following year, one of the gypsies, Fred Smith applied to the Council for outline planning permission to build four dwellings, each with a garage, access and use of land as a paddock on the site, an application that he withdrew shortly afterwards. In October 1998 the Council served enforcement and stop notices on the occupiers of the site, which they appealed.
In May 1999 an inspector held a local public inquiry into the appeals under section 174 of the Town and Country Planning Act [1990] On 29 th June 1999 he issued a decision letter dismissing the appeals, but also giving them 12 months within which to comply so as to enable them to apply for planning permission in respect of smaller areas. They seemingly took no steps to comply with the enforcement or stop notices, and the Council, in the course of late 1999 and early 2000, resolved to take enforcement action, either by way of injunction or prosecution. At about the same time the occupiers, styling themselves "the owners of Woodside Caravan Park", made a further planning application in respect of the site, essentially to continue its use as a caravan park, but with more landscaping than previously proposed.
The Council continued with its intention to take enforcement proceedings, subject to the outcome of the new planning application, and in April, and again in May 2000, wrote to the occupiers' agent enquiring as to their "needs", each time without reply. In July 2000, shortly after the expiry of the 12 months period of grace allowed by the inspector for complying with the enforcement notices, the Council refused permission. The occupiers appealed that refusal. In late 2000 an inspector held an inquiry to consider that appeal, and in January 2001, dismissed it.
The Council then, over the course of a number of meetings in the first half of 2001, resolved to issue proceedings for an injunction requiring the occupiers to leave the site and, if necessary, to enforce it by self-help pursuant to section 178 of [1990] Act. Early in 2001, before the Council could issue the proceedings, the occupiers, including Mrs Codona, made 19 planning applications in respect of individual plots on the site, one of which was for four plots on the front part of the site to accommodate 12 caravans for four families and improved access.
In the summer of 2001 the Council refused all those applications, save that for the four plots on the front of the site, in which Mrs Codona has no interest and which remains undetermined. 11 occupiers of the site, including Mrs Codona, appealed the refusals.
In the meantime, in August 2001, the Council issued proceedings for injunctions against named and un-named occupiers of the site by alternative methods of service, to which the latter responded in September 2001 by seeking and obtaining permission to claim judicial review.
In late 2001 and early 2002 an inspector held an inquiry into the 11 individual appeals from the Council's refusals of planning permission in the summer of 2001, and, in June 2002, dismissed them. The Council then immediately sought and obtained, after a three day hearing, before Mr J. Goudie QC, sitting as a Deputy High Court Judge, in which Mrs Codona's parents-in-law gave evidence, an injunction against her and all the other occupiers of the site to remove themselves, their caravans, all hard standings and associated materials from the land by 1 st November 2002.
As before, Mrs Codona responded by making a further planning application, this time in relation to three plots on the site. The Council, pursuant to its powers under section 70 of the 1990 Act, refused to determine the application because of its close similarity to the previous application. Mrs Codona sought, without success on paper, permission to claim judicial review in respect of that decision. And at about the same time she and other occupiers applied to the High Court to vary the order of Mr. Goudie QC as to the date when they should leave the site, and also to the Council for accommodation as homeless persons under the 1996 Act.
In early November 2002, a few days after the date set by Mr. Goudie QC's order for the occupiers to leave the site. Jackson J rejected their application for variation of the order and refused them permission to appeal. Within a few days thereafter, the Council, exercising its powers under section 178 of the 1990 Act, cleared all the occupiers from the site, except for those on the four front plots and Mrs Codona and her family occupying, with some six or seven caravans, Plot 7 in the rear field.
In late December 2002 the Court of Appeal upheld Jackson J's refusal of permission to appeal his refusal to vary Mr Goudie QC's order. That still left Mrs Codona's application for judicial review, which she had indicated an intention of renewing orally, and her and her family's homelessness application. Mrs Codona did not in the event persevere with the renewal application, on the Council agreeing not to enforce the injunction without first giving her and her family seven days notice of its intention to do so and to consider and determine their homelessness application of 30 th and 31 st October 2002.
I should now return to that application, which was in effect that the Council should provide Mrs Codona and her extended family with a pitch on which they could site some six or seven caravans. In the application she explained that she had an aversion to conventional "bricks and mortar" accommodation and that she:
"… [did] not wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs Codona wishes to live in a caravan and have the support of her extended family around her."
I should interpolate at this point that the weight to be given by a local housing authority when deciding what property to offer a person with such an aversion should, it seems to me, turn on the degree of its intensity and of its potential effect on that person if not heeded, rather than any claimed "cultural" basis for it. Here, although there was evidence that Mrs Codona would find it "unbearable" and claustrophobic to live in a house, there was no evidence that it would cause her or her son or any of her extended family psychiatric harm, as distinct from an assertion from a counselling psychologist that housing the Codona family in "bricks and mortar" accommodation "would undoubtedly result in psychological harm".
On 4th March 2003 the Council, acting through Aragaon Housing Association to which it had delegated its housing functions, accepted, by letter to Mrs. Codona, its duty under the 1996 Act to provide her and her family with suitable accommodation, but concluded that it could only offer them "bricks and mortar" accommodation in a "bed and breakfast establishment" until it could make a final offer of accommodation acceptable to them. Because it is part of Mrs Codona's case, and the subject of her proposed fourth ground of appeal, that the Council, in reaching that decision, had no regard to her and her extended family's human rights, I had better set out the terms of the letter material to that suggestion:
"The Association … have a duty to secure suitable accommodation is available for your occupation and, in doing so, shall have regard to all the...
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