West Glamorgan County Council v Rafferty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,SIR JOHN MEGAW,LORD JUSTICE SLADE |
| Judgment Date | 22 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0522-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0500 (2) No 621/86 |
| Date | 22 May 1986 |
[1986] EWCA Civ J0522-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(1) (MR JUSTICE PETER PAIN)
(2) (MR JUSTICE KENNEDY)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Ralph Gibson
and
Sir John Megaw
86/0500
(1) 1985 W No. 125
(2) No 621/86
1985 W No 125 (1)
In The Matter of Land At Briton Ferry, Neath
No 621/86
and
MR MICHAEL BARNES, QC and MR PHILIP PRICE (instructed by Messrs. Sherwood & Co., Solicitors, London SW1H 9LG, Agents for the County Clerk, West Glamorgan County Council, County Hall, Swansea, Glamorgan SA1 3SN) appeared on behalf of the West Glamorgan County Council in both appeals.
MR D. MARSHALL EVANS QC and MR D.S. GEEY (instructed by Messrs. Parkers, Solicitors, St. Helens, Lancashire WAlO 1SX) appeared on behalf of the gipsies in both appeals.
West Glamorgan County Council resolved on 16th September 1985 to commence proceedings in order to evict from the Briton Ferry site at Neath a number of travelling folk or gipsies who were camped there. The gipsies were trespassers. They had gone on to the site without permission and they knew that they had no right to be there. On 2nd October 1985 Mr. Justice Tudor Price made an order in summary proceedings under 0.113 for the County Council to recover possession of the Briton Ferry site. The defendants were Mr. Edmund Rafferty, Mr. James Rafferty, Mr. Fury, Mr. Gaskin and "persons unknown", who included a number of families—the husbands wives and children—living in about 25 caravans. (That was the figure at 30th December 1985: see the affidavit of Mr. Burgess: Vol III, p.35). A writ of possession was issued on 1st November 1985 but it was not executed. The County Council held their hand at the request of a solicitor acting for the gipsies. On 19th December 1985 Mr. Justice Peter Pain set aside the order for possession, and directed that the claim of the County Council for possession of the site proceed by way of trial in the High Court, on the ground that the breach by the County Council of its statutory duty to provide adequate accommodation for gipsies in the area of the County deprived the Council of any right to summary judgment. From that order of Mr. Justice Peter Pain the County Council appeals to this court and asks that the order for possession be restored. That is the first appeal.
The gipsies at Briton Ferry site were assisted by the National Gypsy Council and its President Mr. Hughie Smith. Solicitors had been instructed with reference to the plight of gipsies in West Glamorgan before the decision was made to seek possession of this site. It was thought—and rightly in my view for reasons to be mentioned later in this judgment—that there would be no effective defence to the claim for possession of the site if the proceedings in which possession was claimed had been validly instituted in the first place by the County Council. Accordingly, on 13th March 1986 application was made by Mr. Gilhaney, one of the gipsies camped at Briton Ferry, for judicial review in respect of the decision of 16th September 1985 by the County Council to take proceedings for possession of the site, and for an order quashing it. The application asked for other relief as well, to which reference will be made later. The main ground of the application was that on which Mr. Justice Peter Pain had relied in setting aside the order for possession, namely the failure since 1974 by the County Council to carry out its statutory duty under s.6 of the Caravan Sites Act 1968 for the provision of adequate accommodation in their area for gipsies. It was contended that having regard to that breach of duty the decision in September 1985 to evict the gipsy families from this site was in all the circumstances a decision that no reasonable authority could make. An early hearing was obtained and on 28th April 1986 Mr. Justice Kennedv upheld that contention and quashed the decision by the County Council to start the proceedings for eviction. From that decision also the County Council appeals to this court. That is the second appeal.
It has been common ground that if in the second appeal the order of Mr. Justice Kennedy is upheld by this court then the proceedings for possession are aborted and no separate issues arise in the first appeal save as to costs. It is also common ground that if the order of Mr. Justice Kennedy is set aside then the first appeal must be allowed and the original order for possession restored.
The decision to evict the gipsies from Briton Ferry was made by the Chairman of the County Council Committee and by the Chairman of the Policy and Resources Committee upon a recommendation put to them by Mr. Rush, the County Clerk, at the request of Mr. Burgess, a solicitor in the County Clerk's Department who has had responsibility for the Council's functions under the Caravan Sites Act 1968. This decision upon that recommendation was made under the County Council's Standing Order No. 35, a procedure known as "Chairman's Action" whereby the Council delegated powers of decision to the Chairman, acting' in consultation as required by the order, if the matter required immediate attention and did not justify the holding of a special meeting of the committee. The document submitted to the Chairman of the Policy and Resources Committee which contained the recommendation for recovery of possession of the Council's land at Briton Ferry explained the subject thus:
"Briton Ferry Industrial Estate: tenders are due to be received shortly for the next stage of reclamation works. Part of the land affected by these works is at present unlawfully occupied by gipsy caravans".
Delegation by the Council of the power to make decisions to one member, as contrasted with delegation to a committee or sub-committee or to an officer, was considered by Mr. Justice Woolf (as he then was) in R. v. Secretary of State for the Environment, ex parte Hillingdon London Borough Council, [1986] 1 Weekly Law Reports 192, and held to be invalid as not within the power to delegate given by s.101 of the Local Government Act 1972. His decision was upheld by this court on 17th April 1986. The County Council, having regard to the decision of Mr. Justice Woolf, resolved, first by committee and later by vote of the whole council, to ratify the Chairman's decision of 16th September 1985. Having regard to that ratification it has not been argued before this court that the original decision was invalid because made under an unlawful delegation of power. The position therefore is that the decision of 16th September 1985 which was quahsed by the order of Mr. Justice Kennedy, was a decision taken by an elected body under lawful procedure and must receive the careful respect which such a decision always receives in a court of law. The decision was moreover one in which factors of social policy—some for and some against eviction of the gipsies—had to be considered. It follows that the facts of this case must be both exceptional and extreme for Mr. Justice Kennedy to have been driven to find that the decision by the County Council was void in law in the sense that it was such that no reasonable council could make. In my judgment, on this main point in the case, Mr. Justice Kennedy was right and I would, subject to deletion of the declaration from the order which he made, dismiss both the appeals by the County Council. Explanation of the reasons for proposing that course requires examination of the difficulties encountered by the County Council over many years and of their efforts to deal with the provision of permanent sites for gipsies in their area.
Before setting out that history, the approach of this court, as I understand it should be, must in courtesy to the County Council be explained. If my view of the law is right it is necessary to describe the conduct and attitude of the County Council as long continued breach of duty and an apparent inattention both to that breach of duty and to the powers of the Council by which it might be remedied. The good faith of the Council in this affair has never, of course, been questioned. No one could fail to have some sympathy with the Council and its officers in their efforts to deal with the tasks placed upon the Council by the law enacted by Parliament. Nothing that I say in this judgment is intended to criticise the Council, or its members at any date, for lack of any concern for any of the people of their area. What has gone wrong in my view is attributable to a misapprehension of the nature and extent of the duty placed upon the Council by s.6 of the Act of 1968.
The Statutory Duties
By s.24 of the Caravan Sites and Control of Development Act 1960 local authorities were given power to provide sites for caravans within their area, both to acquire land for that purpose and to provide services and facilities for those occupying the sites. The power to acquire sites includes the power to acquire them compulsorily.
Part II of the Caravan Sites Act 1968 contained provisions dealing with gipsy encampments. S.6 provided that it shall be the duty of certain local authorities including the council of a county
"to exercise their powers under s.24 of the….. Act of 1960….. so far as may be necessary to provide adequate accommodation for gipsies residing in or...
To continue reading
Request your trial
-
Dun Laoghaire Rathdown County Council v Westwood Club Ltd
...confined to those ‘seeking to raise a true defence.’ However, a less stringent application is evident in West Glanmorgan CC v Rafferty [1987] 1 WLR 457. In Bunney v Burns Anderson plc [2007] 4 All ER 246, Lewison J held at paragraph 47 that: the original procedural reasons which led to th......
-
Avon County Council v Buscott
...to seek the court's assistance if undue delay appears to be occurring or to be in prospect. 7The decision of this court in West Glamorgan City Council v. Rafferty [1987] 1 W.L.R. 457 binds us to hold that (a) a decision by a local authority to seek to evict squatters can be quashed in judi......
-
R (Heather) v Leonard Cheshire Foundation
...to redevelop from the decisions which were held amenable to judicial review in Wandsworth BC v Winder [1985] AC 461; c.f. West Glamorgan County Council v. Rafferty [1987] 1 WLR 457 and Waverley Borough Council v. Hilden [1988] 1 WLR 246. The decision to redevelop, involving changing the s......
-
R (Casey and Others) v Crawley Borough Council and Office of the Deputy Prime Minister
...v UK [2005] 40 EHRR 9), one of the House of Lords ( South Bucks DC v Porter [2003] 2AC 558) and seven of the Court of Appeal ( West Glamorgan DC v Rafferty [1986] 18 HLR 375, Avon CC v Buscott & Others [1988] QB 656, R (Clarke) v Secretary of State for Transport etc [2002] JPL 1365, Codona......
-
The Survival of Reasonableness Review: Confirming the Boundaries
...JA). 7 There are few instances where decisions have been found to be so illogical: see, eg, West Glamorgan County Council v Rafferty [1987] 1 WLR 457 (Court of Appeal) (council had decided to evict gypsies from land after years of being in breach of its own statutory duty to provide adequat......