London Borough of Brent v Corcoran & Anor

A public law challenge to termination of a caravan-site licence faces a high threshold. It must show that no reasonable council could have taken the decision on the information available. Equality duties do not require a race assessment for every decision; where serious breaches, including criminality, have no connection with race, the duty is not engaged. Humanitarian and Convention matters principally arise when enforcement is considered.

Under section 4 of the Caravan Sites Act 1968, the court must consider all circumstances, particularly breaches of licence conditions. It must not treat those breaches as already considered merely because a valid termination notice entitled the authority to possession. Where the lower court misdirects itself, an appellate court may substitute its own decision on the evidence before the lower court.

Brent granted each respondent a licence to occupy a pitch on a local-authority travellers’ site. Following a police raid, drugs, weapons, stolen property and documents connected with criminal activity were found in additional caravans on the pitches. Brent served termination notices and began possession proceedings.

The Willesden County Court made possession orders in May 2008 but later suspended enforcement for 12 months, subject to undertakings. The respondents challenged Brent’s decisions on public law grounds, including alleged duties under the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Convention. Brent appealed against suspension, while the respondents appealed against rejection of their public law defences. The central issues were whether Brent’s decisions were unlawful and how the statutory discretion to suspend enforcement should be exercised.

Public law defences. The respondents’ appeals were dismissed. Applying Doran v Liverpool City Council [2009] EWCA Civ 146, Jacob LJ held that a public law challenge to a decision to terminate a licence and seek possession could succeed only if no reasonable council could have taken the decision on the circumstances known, or which ought to have been known, at the time. That was a high threshold and was not met.

The duty under section 71 of the Race Relations Act 1976 required a process of consideration where a decision could affect racial grounds or race relations. It did not require advance consideration of race issues for every decision. Serious breaches involving criminality, with no connection to race or a racial group, did not engage the duty. The alleged disability issue concerning Mrs O’Donnell’s mother did not make it unlawful to continue the possession proceedings; it could be considered later when deciding suspension and enforcement.

The court also rejected the asserted need for a complete pre-termination inquiry. The notices identified the breaches, and a possession hearing supplied procedural safeguards. The relevant interference with Article 8 rights occurred on eviction rather than merely on making a possession order. The Article 1 Protocol 1 argument was likewise rejected.

Suspension of enforcement. Section 4 of the Caravan Sites Act 1968 required the court to consider all circumstances, particularly breaches of the licence conditions. The licensees, who sought suspension, had to provide the circumstances justifying it. The judge erred by treating the serious breaches as already accounted for when making the possession orders, although valid termination notices entitled Brent to possession without proof of breach. He also failed to give proper weight to the intimidating incident involving site-management staff and to the cumulative effect of the criminality-related use, extra caravans and harassment.

Wilson LJ agreed with the result but placed emphasis on the timing and nature of the intimidation, which occurred after the possession orders and during the period in which future compliance was being assessed. Lloyd LJ stressed that an appellate court may substitute its own discretion on the facts as they stood at the original hearing. Remittal was unnecessary because the case was sufficiently clear and further delay would undermine finality.

Brent’s appeal was allowed. The suspension provisions were deleted, making the possession orders immediately effective.

• Court of Appeal (Civil Division): [2010] EWCA Civ 774. The respondents’ appeals against the public law rulings were dismissed, Brent’s appeal was allowed, and the suspension provisions were deleted.
• Willesden County Court: HHJ Copley made possession orders in May 2008 and later suspended enforcement for 12 months subject to undertakings.