Doherty v Birmingham City Council & Anor

In possession proceedings brought by a public authority, Article 8 does not ordinarily give an occupier a freestanding right to remain based only on personal circumstances where domestic law gives an unqualified right to possession. The narrow gateways are a seriously arguable challenge to the compatibility of the law itself, or a seriously arguable challenge on conventional judicial-review grounds to the authority’s decision. A public landowner’s property right ordinarily supplies the Article 8(2) justification. The exceptional reasoning in Connors concerned inadequate procedural protection for factual allegations of nuisance or misconduct. It does not require a county court to decide the proportionality of every administrative decision about public land use.

William Doherty and his family had occupied a council-licensed traveller site as their home since 1987. Birmingham City Council terminated the licence and sought summary possession, stating that it needed the site for improvements and temporary traveller accommodation. The defence relied on Article 8 and argued that possession was neither reasonable nor proportionate.

On 20 December 2004, HH Judge McKenna gave the council summary judgment and made an order for possession. He considered judicial review to be the appropriate route rather than a defence to the possession claim. Following the House of Lords’ decision in Kay and Price, the Court of Appeal considered the proper Article 8 gateways and whether the reasoning in Connors required a different result. The central issue was whether the council’s decision disclosed an arguable Convention or conventional public-law challenge.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. The order for possession was consistent with domestic and Convention law, so no declaration of incompatibility arose.
2. Article 8 framework. The Court followed the majority reasoning in Kay and Price [2006] UKHL 10. The principle in Harrow London Borough Council v Qazi [2003] UKHL 43 required modification in the light of Connors, but the exception was narrow. Personal circumstances alone could not defeat an unqualified domestic-law right to possession. There were two gateways: a seriously arguable challenge to the compatibility of the law under which possession was sought, or a seriously arguable conventional judicial-review challenge to the authority’s decision. The ordinary presumption was that a public landowner’s property right supplied the Article 8(2) justification.
3. Gateway (a). The statutory scheme gave the appellants limited protection under the Caravan Sites Act 1968, excluded local-authority gypsy sites from the Mobile Homes Act 1983, and confined the Housing Act 1985 security-of-tenure provisions to dwelling houses. Parliament could express its policy by excluding an occupier from statutory protection. Where incompatibility lay in inflexible primary legislation, the county court could interpret it compatibly under section 3 of the Human Rights Act 1998; otherwise the issue required the High Court’s consideration, while the legislation remained enforceable.
4. Gateway (b). A conventional public-law challenge could be raised as a defence in the county court, following Wandsworth London Borough Council v Winder [1985] AC 461. The challenge was concerned with whether no reasonable public authority could properly seek possession, not with the county court making its own proportionality assessment. Connors v United Kingdom (2005) 40 EHRR 9 was exceptional because factual allegations of nuisance or misconduct had not been judicially tested and procedural safeguards were inadequate.
5. Application. The council’s decision depended on an administrative judgment about the public-interest use of its land. The issue of whether the family’s presence deterred other travellers was one factor in that assessment, not an allegation of breach of a licence condition. It therefore fell within the margin allowed for administrative discretion. Although the judge was wrong to conclude that a conventional judicial-review defence could not be raised in the county court, there was no arguable basis on the pleadings for a successful challenge and no purpose in remitting the matter.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1739, the appeal was dismissed and the possession order upheld.
2. QBD, Birmingham District Registry: On 20 December 2004, HH Judge McKenna gave summary judgment for Birmingham City Council and made an order for possession. The Court of Appeal corrected his procedural view about raising conventional judicial-review grounds in the county court but upheld the result.