Smith (On Behalf of the Gypsy Council) v Buckland

A local authority’s decision to recover possession may be challenged on conventional public law grounds, but the defence will be seriously arguable only in a truly exceptional case. Following the amendment of section 4 of the Caravan Sites Act 1968, a court may examine all the circumstances and suspend enforcement of a possession order. This replaced summary eviction with judicial scrutiny and provided sufficient procedural protection for occupiers of local authority gypsy sites under article 8.

The relevant interference with respect for the home is eviction rather than the mere making of a possession order. The amended scheme therefore fell within the United Kingdom’s margin of appreciation, although Parliament could have provided greater security of tenure.

The claimant managed a local authority gypsy caravan site. It terminated the appellant’s licence and sought possession following allegations of nuisance involving the appellant and members of her family. The county court made a possession order, but suspended its enforcement on conditions after rejecting allegations of personal misconduct against the appellant and finding misconduct by her son.

The appellant challenged the possession order. She contended that the decision to seek possession was arguably unlawful on public law grounds and that the amendment extending section 4 of the Caravan Sites Act 1968 to local authority sites had not remedied the incompatibility with article 8 identified in Connors. She also challenged the judge’s factual distinction between her circumstances and those in Connors. The suspension terms were not appealed.

1. Appeal dismissed. The county court correctly held that the conventional public law defence was not seriously arguable. A defendant may contend that a public authority’s decision to recover possession was so unreasonable that no reasonable authority could consider it justifiable, or was unlawful for another public law reason. The test is stringent and, after the amendment of section 4 of the Caravan Sites Act 1968, will be seriously arguable only in a truly exceptional case.
2. The amendment materially changed the legislative framework. A public authority could still obtain a possession order after validly terminating a licence, but it could no longer secure summary eviction where the occupier applied for suspension. The court could investigate all the circumstances, including the authority’s complaints, the occupier’s conduct and personal circumstances, and could suspend enforcement on appropriate conditions. As a public authority, the court was required by section 6(1) of the Human Rights Act 1998 to exercise that discretion compatibly with Convention rights.
3. The amended scheme supplied sufficient procedural safeguards to satisfy article 8. The principal defect identified in Connors was the absence of an independent examination of the justification for eviction. Section 4 replaced a mechanistic process with judicial examination. The relevant interference with respect for the home was eviction, not the mere making of a possession order. Parliament could have provided fuller security of tenure, but the safeguards selected fell within the United Kingdom’s margin of appreciation.
4. The claimant reasonably relied on its site manager’s evidence when terminating the licence and commencing proceedings. The subsequent rejection of some allegations did not show that the original decision fell outside the bounds of reasonableness. The appellant was also responsible under her licence for her son’s misconduct, and the proceedings formed part of an attempt to address wider disruption on the site.
5. The county court had been wrong to regard the difference in the respective periods of occupation as a material distinction from Connors. That error did not affect the appeal. The decisive distinction for the public law issue was the amended statutory framework, under which enforcement could be suspended following judicial scrutiny.
6. Wall LJ added that a Winder defence should be pleaded so that the judge can determine whether further evidence, oral testimony or cross-examination is required. Improper or personal motivation for proceedings might provide an example of the exceptional circumstances in which the defence could be available. Mummery and Wall LJJ agreed with Dyson LJ that the appeal should be dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2007] EWCA Civ 1318. The possession order remained in force. The terms suspending its enforcement were not under appeal.
2. Swansea County Court: HHJ Bidder QC held that neither the article 8 incompatibility argument nor the conventional public law defence was seriously arguable and made a possession order. In a later judgment he suspended enforcement on conditions concerning the appellant’s son, water-charge arrears and an undertaking.