R (on the application of Patrick Mahoney and Frances Jones) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 09 March 2015 |
| Neutral Citation | [2015] EWHC 589 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2015 |
| Docket Number | Case No. CO/10732/2013 CO/12150/2013 |
[2015] EWHC 589 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No. CO/10732/2013 CO/12150/2013
Mr Alex Offer (instructed by Community Law Partnership) for the Claimants
Mr Benjamin Lask (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 20 November 2014
Introduction
In these two claims for judicial review the court must decide whether section 33(2) of the Land Compensation Act 1973, which precludes the making of a home loss payment to a caravan dweller unless no suitable alternative site is available to him on reasonable terms, is incompatible with article 14 of the European Convention on Human Rights, read together with article 8 and article 1 of the First Protocol.
The claimants, Patrick Mahoney and Frances Jones (in claim no. CO/10732/2013) and Rachel Cleary (in claim no. CO/12150/2013), are Irish travellers, and thus belong to a recognized ethnic group within the scope of the prohibition of discrimination in article 14. Each of them lives in a caravan on a site in Eleanor Street, London E.3, where there are 19 pitches. The site is owned, and provided for occupation by travellers, by the London Borough of Tower Hamlets Council. It is required by Crossrail Limited for the construction of a tunnel intervention and ventilation shaft in an underground section of the new railway it is building. The project is known as Crossrail. Crossrail Limited is a fully owned subsidiary of Transport for London.
Under section 6(1) of the Crossrail Act 2008 Crossrail Limited have the power to acquire land compulsorily. It has compulsorily acquired the land needed for the pitches that will replace those lost on the Eleanor Street site. It also intends to acquire the Eleanor Street site from Tower Hamlets London Borough Council by agreement, but if this turns out to be impossible it will use its compulsory purchase powers to acquire the land. The claimants are willing to co-operate in the removal of their caravans from the Eleanor Street site to suitable pitches on other land nearby. They do not dispute that a suitable alternative site is being made available to them on reasonable terms, or that the effect of section 33(2) of the 1973 Act is therefore to prevent home loss payments being made to them. They contend, however, that section 33(2) discriminates unlawfully between caravan dwellers and those who live in dwelling-houses, and is thus incompatible with article 14 of the Convention, read in conjunction with article 8 or article 1 of the First Protocol, or both. The only remedy they now seek is a declaration of incompatibility under section 4 of the Human Rights Act 1998. They had initially sought permission to pursue a ground alleging indirect discrimination, as defined by section 19 of the Equality Act 2010.
The defendant is the Secretary of State for Communities and Local Government. He resists the claim, on three main grounds: first, that the circumstances of the claimants' case do not fall within the ambit of either article 8 or article 1 of the First Protocol; secondly, in any event, that the claimants are not in an analogous position to those with whom they choose to compare themselves, namely those who live in dwelling-houses; and thirdly, again in any event, that any difference in treatment arising from section 33(2) is objectively and reasonably justified. Therefore, says the Secretary of State, the court should hold that section 33(2) is not incompatible with article 14, and both claims should be dismissed.
Permission to apply for judicial review was initially refused on the papers by Jay J. on 4 October 2013, but was granted on the claimants' renewed applications by Mitting J. at a hearing on 27 February 2014. Mitting J. permitted the claims to proceed only on the ground alleging incompatibility with article 14.
Home loss payments
Part III of the 1973 Act contains various provisions for the benefit of a person displaced from his dwelling as a result of the compulsory acquisition of an interest in that dwelling or the acquisition of that interest by agreement by an authority with compulsory purchase powers. Sections 29 to 33 provide for "Home loss payments".
The parties agree that the purpose of a home loss payment is to recognize a person's distress at being compelled to move out of his home when land is compulsorily acquired. In R. v Corby District Council, ex p. McLean [1975] 1 W.L.R. 735 Lord Widgery C.J. said (at p.736H) that "[no] doubt the purpose of [the provision in section 29(1)] is to make some compensation to a man for the loss of any interest he might have in the particular dwelling he formerly occupied". That understanding of the purpose of a home loss payment is reflected now in the Department for Communities and Local Government's guidance "Compulsory Purchase and Compensation: Compensation to Residential Owners and Occupiers", which says (in paragraph 2.64) that "[the] home-loss payment is an additional sum to reflect and recognise the distress and discomfort of being compelled to move out of your home".
The legislative history of home loss payments is described on behalf of the Secretary of State by Ms Susan Lovelock, the Deputy Director of the Planning – Development Management Division in the Department for Communities and Local Government, in her witness statement of 14 May 2014 (in paragraphs 27 to 42). Ms Lovelock says that home loss payments were introduced by the 1973 Act "because the Government considered that individuals should be entitled to payment for the personal grief or frustration of being forcibly displaced from their homes". She refers to the report of the Urban Motorways Committee to the Secretary of State for the Environment dated 11 July 1972, which recommended (in paragraph 12.19) that the legislation should include an additional payment for the occupiers of dwellings "in recognition of the real personal disturbance that is inflicted on them when they are required to move". The Government of the day accepted the committee's recommendation. Paragraph 36 of the White Paper of October 1972, "Development and Compensation – Putting People First", acknowledged that "[when] people's homes are acquired for public developments the occupiers who are obliged to uproot themselves suffer personal upset, discomfort and inconvenience", that "the loss of a home" was "something distinct from the value of the land and the bricks and mortar", and that "the principle of a lump sum payment …, quite independent of the payment for the interest acquired [was] right". It "therefore decided that where an authority wishes to acquire houses, whether for roads or for other public works, through compulsory purchase or with the backing of compulsory purchase powers, a home loss payment … should be paid to the occupier whether he happens to be the owner or a tenant …".
Provision for home loss payments was included in the Land Compensation Bill presented to the House of Commons in November 1972. In January 1973, during the committee stage of the passage of the Bill through the House of Commons, the minister responsible for it said that a home loss payment "should be a payment for exceptional personal grief or frustration of the residential occupier forcibly displaced from his home" (Hansard, 23 January 1973, first column, p.267). An undertaking was given to the committee that "the Government would wish to provide that those who lose their permanent home, whether mobile or otherwise, should receive the benefit of the home loss payment" (Hansard, 8 February 1973, first column, p.513). The amendment which ultimately became section 33(2) of the 1973 Act was brought forward at the committee stage in the House of Lords (Hansard, 3 April 1973, second column, p.240). The reason for the difference in treatment between those who live in dwelling-houses and those who live in caravans was explained by the minister, Lord Sandford, in this way (Hansard, 3 April 1973, first column, p.241):
"The conditions of eligibility for caravan occupiers are the same as for occupiers of traditionally built dwellings, modified only where necessary to take account of the mobile nature of caravans. … The main difference between a caravanner whose site is acquired and, say, the occupant of a house is that if an alternative site is available the caravanner can take his home with him on displacement. He does not therefore lose his home as such, and for this reason the new clause specifically excludes him from an entitlement to a home loss payment if a suitable alternative site is available on reasonable terms."
Proposed amendments to the Bill which would have extended the entitlement to home loss payments to caravan dwellers on the same basis as occupiers of dwelling-houses were rejected by the Government. The new clause tabled by the Government in the House of Lords, which duly became section 33(2), provided that a home loss payment would be paid to caravan dwellers when no suitable alternative site was available to them on reasonable terms.
Ms Lovelock says (in paragraph 43 of her witness statement) that "[the] Government considers that the different provision made in the [1973 Act] between house dwellers and occupiers of caravans for...
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