Kanssen v Secretary of State for the Environment, Food and Rural Affairs

A public body deciding whether to evict unauthorised campers must take relevant welfare considerations into account and take reasonable steps to acquaint itself with material information. The extent and intensity of the enquiry depend on the body’s statutory functions, expertise and resources. A public landowner without welfare duties or relevant expertise may reasonably seek assistance from local authorities and need not conduct its own enquiries where that course is reasonable in the circumstances. The decision-maker must keep the position under review and reconsider enforcement if specific relevant welfare information is supplied. The court intervenes only where the decision-making process is Wednesbury unreasonable.

The claimant, a Traveller, occupied Forestry Commission land with other adults and children after a possession order had been made in favour of the Forestry Commission. He challenged the defendant’s decision to enforce possession and evict the encampment.

The claim concerned two issues: whether the Forestry Commission had power to provide temporary or transit sites for Travellers, and whether it had acted unlawfully by failing to undertake welfare enquiries before enforcing possession. The court also considered the effect of government guidance on unauthorised camping and the defendant’s common-law obligation to take relevant welfare considerations into account.

1. Site provision. The Forestry Commissioners’ powers under sections 1(2) and 3(1) of the Forestry Act 1967 could be exercised only in discharge of their forestry functions. Promoting the interests of forestry could not sensibly be construed as including the provision of residential sites for Travellers. Section 23 of the Countryside Act 1968, which expressly conferred powers to provide camping and caravan sites as recreational facilities, supported that conclusion. The defendant therefore had no power to provide residential sites for Travellers on the land.
2. Guidance. The 2004 guidance recognised that local authorities had the relevant statutory duties, expertise and resources to make welfare enquiries. For public bodies such as the Forestry Commission, the extent and detail of appropriate enquiries were less. The guidance advised such bodies to seek local-authority assistance; it did not require the defendant itself to conduct welfare enquiries. The defendant had not failed to follow the policy.
3. Common-law duty and review. The defendant had to take relevant welfare considerations into account and to take reasonable steps to acquaint itself with relevant material. The manner and intensity of the enquiry were for the decision-maker, subject to Wednesbury review. The defendant’s requests to the local authorities were reasonable in light of its lack of welfare expertise and statutory welfare duties. It was not unreasonable to take no further steps when one authority declined to enquire and another did not respond.
4. The defendant was obliged to keep the situation under review and to reconsider enforcement if further relevant information was supplied. The reference to a three-week-old baby and children attending local schools did not, without more, require reconsideration. The decisions to enforce possession were lawful, and the application for judicial review was dismissed.

First-instance judicial review decision. No earlier appellate decision is stated in the judgment.