Central Bedfordshire Council v Taylor & Ors

A trespasser whose home is on land owned by a public authority may challenge the authority’s decision to seek possession on ordinary public law grounds. The county court may determine that challenge within the possession proceedings, provided it is seriously arguable.

After [2008] UKHL 57, reasonableness extends beyond bare rationality. Relevant personal circumstances known to the authority may be considered, but the court neither substitutes its own decision nor conducts a freestanding proportionality assessment under article 8.

Where the authority has an unqualified right to possession, owes no accommodation duty and the occupier has no special claim to remain, personal circumstances cannot ordinarily make possession proceedings unreasonable. They may affect only the time allowed for enforcement.

The appellants occupied dwellings on land owned by Central Bedfordshire Council under arrangements derived from a former lease to Luton Borough Council. Those arrangements had ended, and the appellants accepted that they were trespassers. The Luton County Court held that they had no continuing legal right to occupy and made an immediate possession order.

The appellants contended that the judge should have examined whether the council’s decision to seek possession was unlawful in public law because it failed to account for their personal circumstances and article 8 rights. The issue arose following Kay v Lambeth City Council [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57.

The central questions were whether the council had to consider the appellants’ personal circumstances, whether review extended beyond strict Wednesbury rationality, and whether the case should be remitted for factual findings.

1. Appeal dismissed. The county court was the proper forum for determining any seriously arguable public law challenge to the council’s decision to recover possession. A separate judicial review claim was unnecessary.

2. Per Waller LJ, with whom Richards LJ agreed and Lloyd LJ agreeing in substance, Doherty v Birmingham City Council [2008] UKHL 57 widened the review beyond bare rationality. The authority could be required to consider relevant personal circumstances known to it. The governing question nevertheless remained whether the decision was one which no reasonable person would consider justifiable. The court could not substitute its view for that of the authority or determine a freestanding article 8 proportionality defence.

3. The decision under review could properly be the council’s continuing decision to press for possession after learning further facts. An authority need not initially investigate the personal circumstances of unidentified occupiers. If relevant matters are later disclosed, its decision to commence or continue proceedings may itself be reviewed.

4. The appellants had no proprietary or contractual right to remain. The council had an unqualified right to possession, owed them no accommodation duty and had a duty to manage its assets. Their length of occupation, disabilities, housing difficulties and work on the premises did not create a special claim to remain. On those assumed facts, it was not arguable that the council’s decision to press for possession was arbitrary, unreasonable or disproportionate.

5. In circumstances materially similar to Kay v Lambeth City Council [2006] 2 AC 465, personal circumstances could affect the short period allowed before a possession order took effect. They could not require the public authority to permit trespassers to remain for an extensive or indefinite period. Remittal would therefore serve no purpose because a possession order would necessarily be made.

6. Article 8 imposes no equivalent public law constraint on a private landowner. Subject to domestic law, a private owner’s reasons for recovering possession from a trespasser are irrelevant.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court held that remittal would serve no purpose because the council’s decision to seek possession was lawful and a possession order was inevitable.
2. Luton County Court: His Honour Judge Everall QC held on 1 July 2008 that the appellants had no continuing right to occupy the dwellings, made an immediate possession order and refused permission to appeal.