Gill v Leeds City Council

A local authority’s decision to recover possession from an unauthorised gypsy or traveller encampment may be challenged on conventional public law grounds, but the threshold is exceptionally demanding where domestic property law gives the authority an unqualified right to possession. Government guidance should be considered, but it is not a set of statutory conditions precedent. Failure to address one aspect of the guidance will not necessarily make the decision unlawful if the guidance was considered overall and the decision was not one which no reasonable authority could reach. Article 8 does not provide a defence based only on personal circumstances where the underlying law authorising possession is not challenged.

Mrs Ada Gill appealed against a possession order made by His Honour Judge Cliffe in the Leeds County Court on 16 August 2007. Leeds City Council sought possession of council land occupied by Mrs Gill and her two children in caravans after she had become homeless. She relied on government guidance concerning unauthorised gypsy encampments, her family circumstances, and public law and human-rights arguments.

The central issues were whether the Council’s decision was unlawful because it failed to consider the risk of greater nuisance elsewhere, whether proportionality applied outside the human-rights context, and whether the County Court’s reasons were adequate.

1. Appeal dismissed. The possession order was upheld.
2. The human-rights defence was not arguable. Under the approach in Kay & Ors v London Borough of Lambeth & Ors and Leeds City Council v Price & Ors [2006] 2 A.C, 465, a defence based only on personal circumstances could not be maintained where the compatibility of the law authorising possession with article 8 had not been challenged.
3. The relevant public law challenge was the conventional Wednesbury ground recognised in Wandsworth London Borough Council v Winder [1985] AC 461. The question was whether no reasonable local authority could have decided to seek possession.
4. Circular 18/94 and related guidance were advisory. They were material considerations, not statutory criteria or conditions precedent. The Council had considered the guidance. Even if the risk of greater nuisance elsewhere had not been separately addressed, that omission did not make the decision unlawful. The Council was providing, or willing to provide, temporary accommodation and was pursuing permanent accommodation.
5. The guidance was principally directed to nomadic travellers living in caravans. The Council was entitled to give less weight to that aspect where the occupier had lived mainly in settled housing and wanted to return to a house.
6. Proportionality in the human-rights sense did not apply independently. Reliance on R v Huang [2007] UKHL 11 was misplaced because that case concerned a statutory immigration framework expressly engaging human-rights and proportionality considerations. Proportionality could nevertheless be considered as an aspect of public law reasonableness.
7. The County Court’s reasons, though brief, made the basis of its decision sufficiently clear.

• High Court (Queen’s Bench Division) [2007] EWHC 2693 (QB): Mr Justice Flaux dismissed the appeal.
• Leeds County Court: His Honour Judge Cliffe made the possession order on 16 August 2007.