Hillingdon v Collins & Anor

In possession proceedings concerning local-authority caravan sites, the public-law defence is not confined to cases where it is seriously arguable that the authority acted irrationally. Following Doherty v Birmingham City Council, the court must examine whether the decision to seek possession was one which no reasonable person would consider justifiable, having regard to the authority’s reasons and the length of occupation. The judge must not substitute his own decision for that of the authority, but may resolve factual disputes relevant to the decision. Article 8 considerations remain particularly important when deciding whether to suspend enforcement under section 4 of the Caravan Sites Act 1968. Such cases should ordinarily be heard in the County Court, with appropriate evidence and disclosure.

The local authority sought possession of plots occupied by the defendants, who lived in caravans on a local-authority site. The defendants disputed allegations of violence, harassment and nuisance and relied on public-law and Convention arguments, including article 8 and article 1 of the First Protocol.

The proceedings had been transferred to the Administrative Court after the defendants raised an incompatibility issue. They subsequently abandoned their proposed declaration of incompatibility, but maintained that the authority’s decision to bring possession proceedings required scrutiny. The central questions were the scope of the public-law defence after Doherty v Birmingham City Council, the relevance of the amended section 4 procedure, and the appropriate forum and directions for resolving disputed facts.

1. The public-law defence was available where the authority’s decision to seek possession was alleged to be an improper exercise of its powers. The applicable question was whether recovery of possession was a decision which no reasonable person would consider justifiable. The court should consider the reasons given by the authority and the length of the defendants’ occupation.

2. The court was not restricted to deciding the gateway question solely on the papers. It could resolve factual disputes where necessary to assess the basis on which the authority acted. It remained impermissible for the court simply to substitute its own judgment for that of the authority.

3. The observations in Smith v Buckland that success of the public-law defence would be wholly exceptional, and that the issue was limited to whether the defence was seriously arguable, had been overtaken by the broader approach required by Doherty v Birmingham City Council. The 2005 amendment to section 4 of the Caravan Sites Act 1968 did not remove the relevance of that approach.

4. Article 8, and where applicable article 1 of the First Protocol, had to be addressed when the court considered whether enforcement of a possession order should be suspended. Under section 4(4), the court had to consider all the circumstances and balance the case for eviction against the case for suspension. The weight to be given to the authority’s right to possession depended on the circumstances, including rent arrears and the seriousness and frequency of alleged misconduct.

5. The proceedings should be remitted to the Uxbridge County Court, which was the more suitable forum for disputed possession facts. The County Court was directed to apply paragraphs 45–55 of Lord Hope’s speech in Doherty as interpreted in this judgment. Witness evidence was directed, disclosure was to proceed under CPR 31.5, and costs were costs in the cause.

The judgment itself records that the proceedings had been transferred from the County Court to the Administrative Court under section 42 of the County Courts Act 1984 and CPR 30.3(2)(g). The defendants later abandoned their proposed declaration of incompatibility.

High Court (Administrative Court): both matters remitted to the Uxbridge County Court, with directions concerning evidence, disclosure and application of the gateway (b) approach.