The King (on the application of SO) v Thanet District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Lord Justice Arnold,Lord Justice Underhill |
| Judgment Date | 14 April 2023 |
| Neutral Citation | [2023] EWCA Civ 398 |
| Docket Number | Case No: CA-2022-001378 |
| Court | Court of Appeal (Civil Division) |
and
[2023] EWCA Civ 398
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Arnold
and
Lord Justice Edis
Case No: CA-2022-001378
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Anthony Elleray KC sitting as a judge of the High Court
CO/4149/2021
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tim Baldwin and Ms Lara Simak (instructed by Watkins and Gunn) for the Claimant
Mr Andrew Lane and Mr Jack Barber (instructed by Thanet District Council Legal and Democratic Services) for the Defendant
The Interested Parties did not appear and were not represented
Hearing dates: 28 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The claimant, SO, was an 18 year old Pavee Traveller at the time of the issue of these proceedings, and she has mental health problems. She has been anonymised in these proceedings for her protection. The claim concerns her residence in a vehicle on land at Ramsgate Port (“the Land”) which the Defendant, Thanet District Council, has attempted to bring to an end by giving a direction under section 77(1) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”).
This is a claim for judicial review, permission having been granted by Bean LJ in respect of the two grounds identified at [8] below. He made this order on appeal from Mr. Anthony Elleray KC who had refused permission to seek judicial review after a rolled up hearing in a written reserved decision on 8 July 2022. Bean LJ refused permission on three further grounds and retained the judicial review in the Court of Appeal. He said this about grounds 1 and 2, on which he gave permission:-
Ground 1 raises a point of law – whether a temporary consent to occupation must be withdrawn before service of a s 77 notice – on which the appeal has a real prospect of success. Since the decision under appeal was given at a rolled-up hearing I do not think that any useful purpose would be served by a further hearing in the Administrative Court.
Ground 2 may add little to Ground 1 but I will not prevent the Appellant from raising it in this court.
The reference to “a s77 notice” is a reference to a direction given by Thanet District Council under section 77(1) of the 1994 Act. This provision is the subject matter of these proceedings, and I will set it out now. It provides:-
(1) If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority's area—
(a) on any land forming part of a highway;
(b) on any other unoccupied land; or
(c) on any occupied land without the consent of the occupier,
the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.
Section 77(3) is an offence-creating provision which is to be read alongside the statutory defence provided by section 77(5). These sub-sections are in these terms:-
(3) If a person knowing that a direction under subsection (1) above has been given which applies to him—
(a) fails, as soon as practicable, to leave the land or remove from the land any vehicle or other property which is the subject of the direction, or
(b) having removed any such vehicle or property again enters the land with a vehicle within the period of three months beginning with the day on which the direction was given,
he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(5) In proceedings for an offence under this section it is a defence for the accused to show that his failure to leave or to remove the vehicle or other property as soon as practicable or his re-entry with a vehicle was due to illness, mechanical breakdown or other immediate emergency.
By section 77(6) “occupier” means the person entitled to possession of the land by virtue of an estate or interest held by him.
The rest of section 77 and section 78 provide machinery for enforcement of section 77(1) directions and for a complaint to be made to the magistrates' court for an order requiring the removal of vehicles and persons. Failure to comply with a lawful section 77(1) direction is a criminal offence under section 77(3), and a removal order can be made in consequence of that under section 78(1). Section 79 contains provisions about service of documents and giving notice of documents to affected persons. It is to be noted that the provisions contemplate a direction being “given” at one point in time and then “served” at a later stage.
The result of the decision of Bean LJ is that we are dealing with a claim for judicial review at first instance and not sitting as an appellate court. There has been no decision on the merits of the two grounds before us. It is therefore not necessary for us to review the procedural history or the decision of the judge in the High Court, save to a very limited extent. We are concerned with the merits of the claim, and not with reviewing any first instance decision on it.
The Grounds
The Grounds look like grounds of appeal, because that is how they started life. As a result of Bean LJ's order, they are now the substantive grounds on which SO submits that the section 77(1) direction served on the Land where she lived in a vehicle on 1 December 2021 was invalid and should be quashed. They read as follows:-
Ground 1: The learned judge was wrong to hold that the service of the direction notice pursuant to s 77 Criminal Justice and Public Order Act 1994 on the 1 December 2021 was lawful without the Defendant first giving any notice to those on the Land or those representing them of the withdrawal of consent to occupy the Land at Ramsgate port ahead of the service of the said notice.
Ground 2: The learned judge was wrong to hold that there was no evidence from Karen Constantine challenging the failure of the Defendant to give notice of the withdrawal of consent prior to the service of the s77 directions notice on 1 December 2021 or that the occupancy of the Land was temporary and “up to 5 months”.
Stripped of their appellate appearance, the substance of the complaints has been reformulated by Mr. Baldwin, on behalf of SO, in answer to questions from the court. Reflecting those submissions, they can be set out as follows:-
Ground 1: The service of the direction notice pursuant to s 77(1) of the 1994 Act on the 1 December 2021 was unlawful because the Defendant as occupier of the land had permitted SO to enter on the Land at Ramsgate port and to reside there in a vehicle, and had not given notice of any decision to withdraw consent before giving and serving the section 77(1) direction. In those circumstances, SO was not a person within any of the three positions described in section 77(1)(a)-(c) of the 1994 Act, and no direction in respect of her residence could lawfully be given at the time when Thanet District Council gave this one.
Ground 2: There is evidence which the court should accept from Karen Constantine, a councillor of Kent County Council, challenging:-
a) the failure of Thanet District Council to give notice of the withdrawal of consent prior to the service of the section 77(1) direction on 1 December 2021;
b) and the claim that the occupancy of the Land was temporary and “up to 5 months”.
It will be noted that there is no challenge before us to the decision to terminate the permission which had been given to this group to reside on the Land. That decision is not really addressed in the evidence before the court, but appears to have been made by the Senior Management Team of the Thanet District Council. We do not know when it was taken. The challenge is based on the failure to give notice of that decision before giving the section 77(1) direction.
The statement of Karen Constantine referred to in Ground 2 is dated 20 May 2022, and was not material which Thanet District Council could take into account when issuing the section 77(1) direction in November 2021. While Ground 2 may have had some additional purpose as a ground of appeal against the decision of the judge, it is not a separate ground of challenge to that direction in these judicial review proceedings. The statement is simply part of the evidence which we will have to consider when deciding whether Ground 1 is made out in law or in fact. It is not necessary to say anything more about Ground 2.
The facts
There is a great deal of evidence before us, because the complaints made by SO about Thanet District Council have been wider in scope than the proceedings now are. I will limit my summary strictly to what is necessary for deciding whether the section 77(1) direction should be quashed for the reason given in Ground 1, as reformulated above.
The Land which was the subject of the section 77(1) direction is part of an old car park which was formerly part of the ferry terminal. It is comprised of two parcels, one owned by Thanet District Council and other owned by the Crown Estates but leased to Thanet District Council. Thanet District Council is therefore entitled to possession of all of the Land by virtue of an estate or interest held by it and is, for the purposes of this statutory scheme, the occupier: see section 77(6) at [5] above. The Land is described as “Land behind fence in front of the Ferry Terminal, Western Terminal, Ramsgate Harbour, 21 Military Rd, Ramsgate CT11 9FT” in documents called “Code of Conduct for Traveller Negotiated...
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The King (on the application of SO) v Thanet District Council
...Approved Judgment on Costs Lord Justice Edis 1 On 14 April 2023 the court handed down its judgment on the substantive claim, see [2023] EWCA Civ 398. The parties have not been able to agree the order which should be made consequent upon that decision. In this judgment I will deal with the ......