Doran v Liverpool City Council & Ors

A caravan-site licensee may resist a local authority’s possession claim on the public-law ground that no reasonable authority could have decided to serve notice and seek possession. This remains a common-law judicial-review inquiry. It is not a free-standing proportionality review under article 8.

Personal circumstances, including the length of occupation, are not automatically irrelevant. The decision must, however, be assessed by reference to the circumstances known, or which ought to have been known, when it was made. A later factual inquiry cannot retrospectively invalidate a notice that was lawful when served.

Where the court has a statutory power to suspend possession, that protection is an important part of the legislative scheme. It makes a successful public-law defence likely to be rare, while leaving the court to conduct a wider and independent assessment when deciding suspension.

The appellant, an Irish traveller, occupied a council-run caravan pitch under a licence. The council served a notice to quit after allegations of repeated breaches of the licence and antisocial conduct by the appellant or members of her family.

HHJ Trigger in Liverpool County Court gave summary judgment for possession without determining whether the appellant had a seriously arguable public-law defence. The appellant denied the allegations and relied on her personal, family and health circumstances.

On appeal, the central issue was whether the appellant had an arguable defence under gateway (b), following Smith v Evans [2007] EWCA Civ 1318 and Doherty v Birmingham City Council [2008] UKHL 57, and whether the case should be remitted for factual findings.

1. Appeal dismissed. Toulson LJ, with whom Aikens and Jacob LJJ agreed, held that the appellant’s proposed public-law defence was hopelessly unarguable. The council had evidence giving it cause to believe that there had been repeated licence breaches and serious disruption. It was not required to conduct the equivalent of a judicial fact-finding exercise before serving notice and seeking possession.

2. Under gateway (b), the question is whether the decision was one that no reasonable council could have taken on the circumstances known, or which ought to have been known, at the time. Following the clarification in Doherty v Birmingham City Council [2008] UKHL 57, personal circumstances may form part of the relevant considerations. The inquiry nevertheless remains one of common-law public law, rather than a Convention proportionality inquiry.

3. The same approach applies to the phase 2 statutory scheme. There was no principled or practical basis for adopting a narrower range of potentially relevant factors after the amendment to Caravan Sites Act 1968. However, the court’s power under section 4 to suspend enforcement of a possession order substantially changes the scheme. It provides a flexible, probationary form of protection and makes a successful gateway (b) defence rare.

4. A notice valid when served cannot be retrospectively invalidated by later developments or by findings made after a full evidential hearing. The court reviews the reasonableness of the authority’s decision, not whether it would itself have reached the same decision on facts later found.

5. The county court must still consider whether enforcement should be suspended under section 4. That is a wider and independent assessment of what is just. It requires attention to the statutory factors and to article 8, balanced against matters such as public order, other residents’ interests, and safe site administration. Article 8 does not confer security of tenure.

In practical guidance, the court stated that where a public-law defence and an application for suspension depend on substantially the same evidence, the county court should ordinarily hear the evidence once and then determine both issues.

• Court of Appeal (Civil Division). Appeal dismissed. The appellant had no seriously arguable public-law defence to the possession claim.
• Liverpool County Court. HHJ Trigger gave summary judgment for possession on 30 May 2007 after a notice to quit had determined the appellant’s licence.