R v South Hams District Council, ex parte Gibb ; R v Gloucestershire County Council, ex parte Davies ; R v Warwickshire County Council, ex parte Walker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE LEGGATT,LORD JUSTICE MILLETT |
| Judgment Date | 27 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0527-7 |
| Docket Number | QBCOF 94/0137/D QBCOF 93/1728/D |
| Court | Court of Appeal (Civil Division) |
| Date | 27 May 1994 |
[1994] EWCA Civ J0527-7
IN THE HIGH COURT OF JUSTICE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Laws and Mr Justice Harrison)
Before: Lord Justice Neill Lord Justice Leggatt Lord Justice Millett
QBCOF 94/0137/D
QBCOF 93/1670/D
QBCOF 93/1728/D
MR D WATKINSON (Instructed by Bobbetts Mackan and Cartridges) appeared for the appellants.
MR T STRAKER [ MR STOKER—27.5.94] (Instructed Sharpe Pritchard, London WV1V 6HG London agents for Mr D Jenkins, County Solicitor, Dorset County Council, Mr P Jenkinson, County Hall, Exeter, Solicitor for Devon County Council and Mr D J Incoll, Totnes, Devon, Solicitor for South Hams District Council: Mr R I Wotherspoon, Shire Hall, Gloucester) appeared on behalf of the Respondents.
Friday 27 May 1994
In these three appeals the appellants seek judicial review to quash the decisions of the respondent Local Authorities to issue proceedings against them claiming possession of the pieces of land occupied respectively by the appellants.
In the first appeal the appellant is Mr. John Michael Gibb who has been an occupant of a site at Steamer Quay, Totnes in Devon. The proceedings for possession were brought by South Hams District Council on 31 October 1991. The District Council are the owners of the land at Steamer Quay. Devon County Council are also parties to the proceedings.
In the second appeal the appellant is Mr. Steven Davies. The proceedings for possession were brought against Mr. Davies on 14 July 1992 in relation to his occupation of land at Old Gore Wood, Hollow Fosse, in Gloucestershire. The land is owned by the Gloucestershire County Council, as highway authority, the land being a redundant part of the old A429 road.
In these two appeals the appeals are brought against the order of Harrison J. dated 3 November 1993 dismissing the applications for Judicial Review.
In the third appeal the appellants are Mr. Ian Rolls and Christian Nicole. The proceedings for possession were brought by the Dorset County Council in respect of the occupation by the appellants of land at Blackdown, Hardy's Monument, near Dorchester in Dorset. This appeal is brought against the order of Laws J. dated 27 January 1994 dismissing the appellants' application for Judicial Review.
In each of these appeals the following issues arise for consideration:
(1) The meaning of the word "gipsy" in section 16 of the Caravan Sites Act 1968 (the 1968 Act).
(2) Whether the court has to decide on the available evidence as a precedent fact whether the individual appellants are gipsies within the meaning of section 16 of the 1968 Act, or whether the court is confined to reviewing on the ordinary Wednesbury principles the decisions reached by the three local authorities on the facts.
(3) Whether a District Council, when deciding whether or not to bring proceedings for possession, is under a duty to take into account the fact that the relevant county council is in breach of its statutory duty to provide adequate accommodation for gipsies in accordance with section 6 of the 1968 Act.
I can turn at once to the first issue.
The Meaning of the Word "Gipsy" in Section 16 of the 1968 Act.
In order to consider this issue it is necessary to set out the relevant statutory provisions.
I should refer first to the Caravan Sites and Control of Development Act 1960 (the 1960 Act). Section 24 of the 1960 Act provides:
"(1) A local authority shall have power within their area to provide sites where caravans may be brought, whether for holidays or other temporary purposes or for use as permanent residences, and to manage the sites or lease them to some other person.
(2) Subject to the provisions of this section, a local authority shall have power to do everything appearing to them desirable in connection with the provision of such sites and in particular -
(a) to acquire land which is in use as a caravan site, or which has been laid out as a caravan site, or
(b) to provide for the use of those occupying caravan sites any services or facilities for their health or convenience;
and in exercising their powers under this section the local authority shall have regard to any standards which may have been specified by the Minister under sub section (6) of section 5 of this Act."
Section 24 of the 1960 Act has to be read in conjunction with section 23(2). Section 23(2) has been slightly amended by later primary and secondary legislation, but as originally enacted was in these terms:
"The council of a rural district may make with respect to any land in their area to which this section applies an order prohibiting, either absolutely or except in such circumstances as may be specified in the order, the stationing of caravans on the land for the purposes of human habitation."
It seems clear that a number of local authorities made use of their powers under section 23(2) of the 1960 Act. One of the consequences of the use of these powers was that gipsies found it increasingly difficult to make use of common land as stopping places on their journeys. In order to deal with this and other problems the Caravan Sites Act 1968 (the 1968 Act) was enacted. I should set out the relevant provisions of the 1968 Act.
Counsel for the appellants drew our attention to the long title of the 1968 Act and in particular to the following words:
"An Act … to secure the establishment of [caravan] sites by local authorities for the use of gipsies and other persons of nomadic habit, and control in certain areas the unauthorised occupation of land by such persons…"
Part II of the 1968 Act is headed "Gipsy Encampments". Section 6 of the 1968 Act (as amended by the Local Government Act 1985) is, so far as is material, in these terms:
"(1) Subject to the provisions of this and the next following section, it shall be the duty of every local authority being the council of a county, metropolitan district or London Borough to exercise their powers under section 24 of the [1960 Act] (provision of caravan sites) so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area.
……………….
(4) The powers of a local authority under the said section 24 shall include power to provide, in or in connection with sites for the accommodation of gipsies, working space and facilities for the carrying on of such activities as are normally carried on by them; but sub section (1) of this section shall not apply to the powers conferred by this section."
Section 7 of the 1968 Act contains provisions relating to the functions of district councils. It is sufficient to refer to section 7(1) which provides:
"The duty imposed by section 6(1) of this Act on the council of a county shall extend only to determine what sites are to be provided and acquiring or appropriating the necessary land; and it shall be the duty of a council of the district in which any such site is located to exercise all other powers under section 24 of the [1960 Act] in relation to the site."
I should refer next to section 9 of the 1968 Act as substituted by the Local Government, Planning and Land Act 1980. As substituted section 9 provides:
"The Secretary of State may, if at any time it appears to him to be necessary so to do, give directions to any local authority to which sub-section (1) of section 6 of this act applies requiring them to provide, pursuant to that section, such sites or additional sites, for the accommodation of such numbers of caravans, as may be specified in the directions; and any such directions shall be enforceable, on the application of the Secretary of State, by mandamus."
Sections 10 to 12 of the 1968 Act contain provisions for the control of unauthorised encampments. It is not necessary to refer to these provisions in detail, but it is to be noted that powers are given under section 12 for areas to be designated in which it is an offence for any person being a gipsy to station a caravan, for the purpose of residing for any period, on any land as specified in section 10(1). Section 11 of the 1968 Act empowers magistrates to make orders for the removal of unlawfully parked caravans and their occupants.
Finally I should refer to section 16, which is the interpretation section in the 1968 Act. By virtue of this section:
(a) "caravan" has the same meaning as in Part I of the 1960 Act and means "any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted, but does not include -
(a) any railway rolling stock which is for the time being on rails forming part of a railway system, or
(b) any tent."
(b) "Gipsies" means "persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such."
It seems probable that the statutory definition of "gipsies" can be traced to the decision of the Divisional Court in Mills v. Cooper [1967] 2 QB 459. In that case an information had been preferred against the defendant of an offence contrary to section 127 of the Highways Act 1959. So far as is material that section provided:
"If, without lawful authority or excuse, -
……………..
(c) a hawker or other itinerant trader or a gipsy pitches a booth, stall or stand, or...
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