Kenneth Albert Winch and Another v Mid Bedfordshire District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Astill |
| Judgment Date | 22 July 2002 |
| Judgment citation (vLex) | [2002] EWHC J0722-2 |
| Docket Number | Case No: HQ01X03628 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2002 |
[2002] EWHC J0722-2
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Honourable Mr Justice Astill
Case No: HQ01X03628
MR J LUBA QC and MR O CAMPBELL (instructed by Leeds Day for the Claimants)
MR M KENT QC and MR C WESTON (instructed by Barlow Lyell & Gilbert for the Defendant).
Hearing dates: 21 st-30 th May 2002
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Astill
Potton is a small market town in Bedfordshire. On the edge of the town is the Potton Travellers' Site. It was constructed in 1978. In 1981 the Bedfordshire County Council granted to the defendant an annual lease of land for the specific purpose of providing a gypsy site. It is managed by the defendant through a hierarchy of officers from the Gypsy Services Officer to the Chief Executive. Each resident is granted a licence to occupy a part of the site which is conditional upon compliance with Site Regulations. At the present time the site is divided into fourteen plots. Each has a permanent structure called the day room and space to park the licensee's caravan.
The claimants, Mr and Mrs Winch, purchased their dwellinghouse at 9 Myers Road, Potton in 1976. It is within 200 metres or so of the site and the nearest house. Their claim is in Nuisance and Negligence and a breach of Section 6 of the Human Rights Act 1998. The claim was issued on 26th March 2001 and liability falls to be determined for the 6 years before that date and the additional time to the date of trial. The Human Rights Act claim can only begin on 2nd October 2000.
The claimants' case is that the anti-social activities of some of the site occupants and their invitees has so diminished their entitlement to live in and enjoy their home that it amounts to the tort of Nuisance. The activities complained of are the dumping of rubbish; abandoning vehicles; fires and smoke; racing of motor cars; noise and police response to criminal activity. Some of these activities were on-site and some off-site.
The claimants seek damages for distress and inconvenience caused by these activities; for a reduction in the value of their house and for the cost of renting a garage necessary to keep safe their motor car. In addition an injunction compelling the defendant to employ a Resident Gypsy Services Officer. It is agreed that for the purpose of liability, Nuisance and Negligence do not require separate consideration.
Licences were first granted in 1981. In about November 1992 new site licences and regulations were introduced following refurbishment works carried out in 1992/93. They introduced deposits and service charges retained to meet expenses. In 1995 because of complaints about an assault on police officers on the site by a resident the defendant was urged to improve the terms of the site licences in order to regulate more effectively the conduct of licence holders. There was a subsequent attack on a contractors' vehicle which went on to the site to recover stolen vehicles. In October 1995 the defendant introduced revised site licences and regulations. The most significant change provided the defendant with powers to act upon breach of the new condition 4. In 1995 the speed limit on the site was reduced because of the manner in which vehicles were driven. In September 1999 draft revised licence conditions were produced for consultation by the defendant's Chief Environmental Health Officer. In December 2000 new licence conditions were approved but not all site licensees have yet signed. The new conditions contain express provisions relating to nuisance and annoyance to neighbours.
In 1986 Mr Lew Heathcote was the Site Warden employed by the defendant. He died in December 1997. He kept no written records of activities on the site generally or in relation to each site resident. In March 1998 Mrs Ann Bailey was appointed to the position now entitled Gypsy Services Officer.
Complaints about activities on and off the site began in 1990. The evidence shows that from that year there have consistently been many complaints of the activities now relied on to constitute Nuisance. The Potton Town Council, Sir Nicholas Lyell QC, the constituency MP and other persons and bodies were the authors of the complaints. The Potton Community Liaison Group was set up so that local residents and site residents could meet to discuss difficulties. The defendant's officers ceased to attend those meetings in November 2000 and withdrew in April 2001. No explanation for that has been given. Mrs Bailey did not consider the meetings to be of assistance.
The evidence demonstrates that the claimants, whose house is nearest to the site entrance have suffered more than most. Although their complaints have been required to be proved they are not essentially in dispute. Mrs Winch, at the suggestion of Sir Nicholas Lyell, kept a diary. It shows that in the year 2000, for example, the claimants suffered from the racing of motor cars on 32 occasions and from police and fire services' activity on 37 occasions. In 2001 the figures for those two activities are 28 occasions each.
The defendant managed the site through its Environmental Health and Leisure Department. Mr Steven Horsler acted as Manager of Private Sector Housing between May 2001 and March 2002. Mr Mike Daniel was in that position before that from 1986. The Manager was responsible for the site and was reported to by the Gypsy Services Officer, Mrs Ann Bailey.
All three gave evidence. None knew of the level of the complaints. Each acknowledged the lack of communication within the defendant. Mrs Bailey spends between 60 and 80% of her time working with this site and visits it on average each day. She is never there in the evenings or at night. She said that she "trod a narrow line" because it was essential to keep the confidence of the residents yet she acknowledged that it was her duty to reprimand where necessary and to take action. She saw her role as pastoral rather than as enforcement. She has never instigated a formal written warning to any site member despite the structure set up by the site licence of an oral warning, followed by a written warning, followed by eviction proceedings. When things went wrong she did not write to the individual resident who was responsible but to all residents. That averted the chance of arousing the anger of the individual resident. It could not constitute a written warning for the purposes of the licence agreement. She acknowledged that it was her responsibility to regulate behaviour on the site but found difficulty in identifying culprits. She dealt with problems as they arose on an individual basis but not against the background of the many complaints. That meant that she remedied the last complaint as best she could but took no preventative steps. She complained that she had not been given the requisite information. Had she known the true position, she acknowledges that it might have been necessary to enforce the Site Regulations. She preferred pastoral care to rigorous investigation feeling that she would be repaid by the residents' trust. She knew nothing about car racing and had never seen the tyre marks that are obvious from the photograph of the road outside the claimants' house. If she had known the full extent of the problem she thinks that she would have been firmer in her approach. When a bollard was knocked down outside the claimants' house she alerted the County Engineer to replace it but did nothing about the cause.
An employee of the defendant, Mr Boulter, visited the site in her absence, substituting for her. He recorded a 12 year old boy named Frank Smith, a resident on the site, driving a motor vehicle around it. He sent a written warning to the boy's mother. Mrs Bailey acknowledged this activity was a serious breach of the licence conditions. She was never told about it. A resident named Kathleen Lee was evicted but simply moved onto land immediately adjacent to the site. She did nothing to stop that and when Mrs Lee was allowed back, subject to stringent conditions, it was the cause of much concern. The stringent conditions were contained in a document which Mrs Bailey thinks that she must have had but did not have the time to read. She has taken no steps to prevent racing of motor vehicles on and off the site because she has no knowledge of the activity nor has she heard of complaints about loud music or street lights in Myers Road being damaged. She said that she disagreed about the eviction of Kathleen Lee, "I wouldn't have done this to my dog to be honest". She was clearly in conflict with Mr Daniel, her superior. Local residents complained strongly when Kathleen Lee was allowed back onto the site and the Chief Executive of the defendant felt it necessary to apologise to the Town Council assuring them at a meeting that the site conditions would be more rigorously enforced. Mrs Bailey knew nothing of this. She gave examples of complaints received by Mr Daniel but never communicated to her.
She said police activities were heavy handed and believed her own more caring approach had led to improvements in the site. She acknowledged that her job description gave her responsibility for enforcement of Site Regulations but she had never been given a copy of the regulations. She said—
"the focus of my work as I saw it was to advise the gypsies and to provide a link between them and the District Council with an emphasis on a pastoral role".
Mr Daniel, the Manager between 1986 and...
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...Limited v. The Borough Council of Epsom and Ewell CA transcript of 9 th July 1981, and Mr Justice Astill's decision in Winch v. Mid Bedfordshire District Council transcript dated 22 nd July 2002. The fact that Mrs Waring had to terminate her daughter's licence by a 28-day notice before she ......