Smith (on the behalf of the Gipsy Council) v Buckland

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Lord Justice Wall,Lord Justice Mummery
Judgment Date12 December 2007
Neutral Citation[2007] EWCA Civ 1318
Docket NumberCase No: B5/2006/2434
CourtCourt of Appeal (Civil Division)
Date12 December 2007

[2007] EWCA Civ 1318

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SWANSEA COUNTY COURT

HHJ Bidder QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Mummery

Lord Justice Dyson and

Lord Justice Wall

Case No: B5/2006/2434

Between
Hughie Smith (On Behalf of the Gypsy Council)
Respondent/Claimant
and
Maria Buckland
Appellant/Defendant

Andrew Keyser QC (instructed by Messrs Hutchinson Thomas) for the Respondent/Claimant

Jan Luba QC and Philip Thompson (instructed by The Community Law Partnership) for the Appellant/Defendant

Daniel Stilitz (instructed by Treasury Solicitor) for The Secretary of State for Communities and Local Government

Hearing date: Wednesday 28 November 2007

Lord Justice Dyson
1

This appeal arises from the hearing of a claim for possession brought against a number of gypsies who occupied various pitches at a gypsy caravan site at Caegarw Farm Caravan Park, Pyle, Port Talbot, Wales. The site is owned by Neath Port Talbot County Borough Council (“the Council”), but is managed by the claimant pursuant to an agreement with the Council dated 12 June 2000.

2

The appellant (who is the fourth defendant to these proceedings) has lived on the site since 1999. She currently occupies pitch 16 pursuant to a licence dated 29 March 2004. This licence was terminated by a notice dated 30 December 2004 which expired on 6 February 2005. The notice relied on clause 7.1 of the licence agreement which provided that: “The Gypsy Council or the Licensee may terminate this licence by giving the other not less than 28 days written notice to expire on a Sunday in any week.” The licences of the other five defendants were also terminated by notices given on 30 December expiring on 6 February 2005. They are all members of the same family.

3

On 1 June 2006, His Honour Judge Wyn Williams QC, sitting at Swansea County Court, made an order for possession against the first, second, third, fifth and sixth defendants. The claim against the appellant was heard by His Honour Judge Bidder QC. He gave two judgments. In his judgment dated 25 July 2006, he held that it was not seriously arguable (i) that the law on which the claimant relied to claim possession was incompatible with article 8 of the European Convention of Human Rights (“the Convention”) or (ii) that the decision to seek possession was amenable to judicial review so as to afford a public law defence of the kind that was recognised in Wandsworth London Borough Council v Winder [1985] AC 461. It followed that the claimant was entitled to an order for possession. In his judgment dated 28 July 2006, he considered whether and, if so, on what terms to suspend the order for possession. He decided that the order should be suspended until 24 November 2006 on condition that the appellant continued in the meantime to comply with the undertaking given to the court; that her son (who lived with her) leave the site; and that she discharge the arrears of water charges at the rate of £5 per week.

4

In order to set the two judgments of the judge and the issues that arise on this appeal in their context, it is necessary to refer to the statutory materials and a number of previous authorities. The relevant law is far from straightforward.

The relevant statutory background

5

Part I of the Caravan Sites Act 1968 (“the 1968 Act”) provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least 4 weeks notice of termination of a licence to occupy a caravan site must be given.

6

In addition, section 4 of the 1968 Act provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to 12 months at a time. Section 4 provides, in so far as is relevant:

“(1) If in proceedings by the owner of a protected site the court makes an order for enforcing in relation thereto any such right as is mentioned in paragraph (b) of subsection (1) of section 3 of this Act, the court may (without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section) suspend the enforcement of the order for such period not exceeding twelve months from the date of the order as the court thinks reasonable.

(2) Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.

(3) The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than twelve months at a time.

(4) In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions —

(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;

(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;

(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).”

7

Prior to its amendment by section 211(1) of the Housing Act 2004 (“the 2004 Act”), section 4(6) of the 1968 Act excluded the court's power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. The exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed with effect from 18th January 2005 in respect of proceedings begun on or after that date: see sections 211(2) and 270(3) of the 2004 Act. That amendment was a response to the ECtHR's decision in Connors (2004) 40 EHRR 189.

8

The Mobile Homes Act 1983 (“the 1983 Act”) applies to any agreement under which a person is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence: see section 1(1). The 1983 Act provides a degree of security of tenure to occupiers of caravan sites by implying into licence agreements falling within the ambit of its provisions various protective terms. The effect of section 2(1) and paragraph 4 of Schedule 1 to the 1983 Act is that the owner of a relevant site is entitled to terminate the licence only if (a) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (b) the court considers it reasonable for the agreement to be terminated.

9

The protection provided by the 1983 Act does not avail the appellant because section 5(1) excludes from the definition of a “protected site” any land occupied by a local authority as a caravan site providing accommodation for gypsies. The Government has indicated that it proposes to amend the 1983 Act to remove this exclusion. To this end, the House of Commons Second reading of the Housing and Regeneration Bill took place on 27 November 2007.

10

Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3)(a) of the 1998 Act a “public authority” includes a court or tribunal.

11

Article 8 of the Convention provides:

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The three principal authorities

12

I start with Connors, a decision of the ECtHR. The applicant in Connors was a gypsy. He had lived with his wife and children pursuant to a licence on a gypsy site run by the local authority for approximately 15 years. The local authority served a notice to quit, on the basis that the family had been causing a nuisance and were accordingly in breach of their licence conditions. When the family failed to leave, it commenced possession proceedings. The local authority subsequently withdrew the allegations of breach of licence and asserted a right to summary possession on the simple basis that, upon the expiry of the notice to quit, the family became trespassers. The county court granted a possession order on that basis.

13

Before the ECtHR, the parties were in agreement that article 8 was applicable and that the eviction of the applicant constituted an interference with his right to respect for his private life, family life and home (para 68). It was also agreed that the interference was “in accordance with the law” and pursued a legitimate aim, namely the...

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