Doherty and Others v Birmingham City Council

JurisdictionEngland & Wales
JudgeLord Justice Carnwath
Judgment Date21 December 2006
Neutral Citation[2006] EWCA Civ 1739
Docket NumberCase No: C1/2005/1440 Case No: 4BM74579
CourtCourt of Appeal (Civil Division)
Date21 December 2006

[2006] EWCA Civ 1739




His Hon. Judge McKenna

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Tuckey

Lord Justice Carnwath and

Lord Justice Neuberger

Case No: C1/2005/1440 Case No: 4BM74579

William Doherty
Birmingham City Council
Secretary of State for Communities and Local Government
Interested Party

Jan Luba QC & Alex Offer (instructed by The Community Law Partnership) for the Appellants

Ashley Underwood QC & Douglas Readings (instructed by Legal Services, Birmingham City Council) for the Respondent

Daniel Stilitz (instructed by The Treasury Solicitor) for the Interested Party

Lord Justice Carnwath

This is the judgment of the Court



The question in this appeal is whether the local authority can obtain a summary order for possession of a site which it owns and wishes to use for public purposes, in this case to provide temporary accommodation for travellers. The defendant is himself a traveller, who has been living on the site with his family for many years. He has no enforceable right to remain under English property law, but relies on the protection of Article 8 of the Human Rights Convention (right to respect for his home).


This apparently mundane area of the law has been the subject of intense scrutiny at the highest level in recent years. It was considered by the House of Lords in Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983, then by the Strasbourg court in Connors v United Kingdom (2005) 40 EHRR 9 189, and most recently by a seven-member House of Lords in the conjoined cases of Kay and Others v Lambeth London Borough Council and Leeds City Council v Price and Others [2006] UKHL 10; [2006] 2 AC 465.


We are called upon to distil the essence from the six fully reasoned speeches in the last case (running to some 60 pages of the Law Reports), and apply it to the facts of this case. We have been much helped by the submissions of three of the advocates who appeared in the House of Lords. Without their assistance, we would have found the task almost impossible. We will return to this issue at the end of this judgment.

The factual context


We will start by summarising the facts of the present case, and comparing them to those of the other principal authorities.



Since 1987 Mr Doherty and his family have occupied the site as their home under a licence agreement with Birmingham City Council. On 4 March 2004 the council served notice to quit, which expired on 10 May 2004. On 27 May 2004 the council commenced proceedings for possession in the Birmingham County Court.


In the particulars of claim the council asserted that the family's occupation was not protected under the relevant legislation; that possession was required to carry out essential improvements; and that the site would then be managed as temporary accommodation for travellers coming to the city as recommended by central government. It was said that the family's presence on the site "deterred" other travellers from going there, that it was "severely under-utilised", and that this caused unauthorised encampments elsewhere in the city. The defence asserted that the council's action was unlawful under the Human Rights Act 1998, and that the grant of summary possession would not be reasonable or proportionate. In particular, it was claimed that the works could be done with the family on site, or they should be given temporary accommodation while the work was carried out; and it was denied that their presence deterred others, or that they had been guilty of anti-social behaviour.


At the time the proceedings were launched, the law appeared to have been established by the House of Lords in Qazi (decided in July 2003), to the effect that a defendant without any extant proprietary or contractual right had no human rights defence to a claim for possession by the owner. However, in May 2004 that proposition was thrown into some doubt by the Strasbourg court's decision in Connors. Accordingly, in the present case it was ordered that there should be a preliminary determination under CPR Part 24. The case was transferred to the High Court, apparently to allow for the possibility of an appeal from there direct to the House of Lords under the Administration of Justice Act 1969 (sections 12–15). On 20th December 2004 HH Judge McKenna gave summary judgment for the council, and made an order for possession. In the course of his judgment he indicated that the appropriate route to challenge the council's decision to seek possession would have been by way of an application for judicial review, rather than defence to the possession proceedings. Initially, he stayed the order for fourteen days to allow for the possibility of such an application being made out of time. Subsequently he gave permission for the present appeal, certified the case as suitable for an appeal direct to the House of Lords, and suspended execution of the judgment until the conclusion of the appeal proceedings.

9. However, in the meantime this case was overtaken by the appeals in Kay and Price. On 20 th June 2005, the House (Lords Nicholls, Hope and Scott) refused leave to appeal under the Administration of Justice Act 1969 (sections 12–15), on the grounds that –

"the point of law raised by this petition will be decided by the House of Lords in the cases of [ Kay and Price]. There is thus no need for this case to come to the House of Lords. The Court of Appeal will be able to give effect to the decision of the House of Lords in due course…"


The appeals in Kay and Price were heard in December 2005, and judgment was given on 8 th March 2006. In the meantime the family has remained in occupation of the site, and the council's plans have had to remain on hold.



Mr and Mrs Qazi were joint tenants of a council house. As joint tenants, either could terminate the lease by serving the council with notice. Under the tenancy agreement four weeks' notice was required. Mr and Mrs Qazi's marriage broke down, and Mrs Qazi served a valid notice terminating the lease. Mr Qazi applied for a tenancy in his sole name, but the council refused on the ground that a single person should not have family-sized accommodation. Before the commencement of proceedings, he had married again, and he continued to live in the house with his new wife and her five year-old son. The council then brought proceedings for possession of the house. The defence relied on Article 8.


On 31 st July 2003 the House of Lords held, by a majority of three to two (Lord Bingham and Lord Steyn dissenting), that Article 8 could not be relied upon to defeat proprietary or contractual rights to possession, and that the council were entitled to a possession order. On 24 th March 2004, a committee of three judges (none of them involved in Connors) of the Strasbourg court dismissed a challenge to this decision as inadmissible, on the grounds that it "did not disclose any appearance of a violation".



Like the present case, Connors involved a gipsy family. Mr Connors and his family had lived on a local authority gipsy site for some 16 years under a licence, which prohibited them from causing a nuisance to other occupiers. In December 1998 the council gave Mr Connors a written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Shortly after, the council served notice to quit on the family, but without giving any reasons. They then issued proceedings for summary possession. These proceedings were adjourned pending an application for judicial review. The judicial review application failed and a possession order was granted.


On 27 th May 2004 the Strasbourg court gave judgment upholding the claim for breach of Article 8, but rejecting a claim under Article 13. It awarded €14,000 in respect of non-pecuniary damages. It made no comment on Qazi. We will return to the reasoning in more detail below.

Kay v Lambeth CC and Price v Leeds CC


In Kay the council had an informal arrangement with a housing trust. This allowed the trust to accommodate homeless people, otherwise ineligible for housing, in premises which the council could not afford to make suitable for normal housing use. This informal arrangement was later converted into a formal lease. The housing trust then purported to grant a licence to those that stayed in the accommodation. In another case the House of Lords found that such occupants were secure tenants and not licensees. Accordingly the council terminated its lease to the housing trust and brought possession proceedings against the occupants.


In Price a family of travellers settled on a recreation ground without permission from the council. Two days later the council issued possession proceedings.


In both cases, the House of Lords rejected defences based on Article 8, and upheld orders for possession.



It will be noticed that the facts of the present case are closest to those of Connors. As in that case the Doherty family were travellers and came to the site lawfully, and it has been their home for many years. Price is distinguishable because the family were trespassers from the outset. (Lord Scott thought it a "very bad" test case for this reason ( [2006] 2 AC 465, at paras 129–130). Kay and Qazi did not concern travellers.


In retrospect, perhaps, it is a pity that the present case was not included in those before the House, so that the House could address...

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