Gresty & Anor, R (on the application of) v Knowsley Metropolitan Borough Council

Article 8 may require a local authority to take positive steps concerning defects in a family home, but no general duty arises whenever a public authority has contributed to the defects. The court must examine the legal and statutory framework, available remedies, resource allocation, culpability, the seriousness of the consequences and the causal connection. Continuing breach of a statutory obligation with knowledge of its effects is more significant than isolated carelessness. A positive obligation may arise where the home cannot be occupied, or where a statutory welfare duty protects a particularly vulnerable person. On the facts, negligent building-control failures over a limited period did not make the Article 8 claim arguable.

Mr and Mrs Gresty sought judicial review of Knowsley Metropolitan Borough Council’s refusal to accept responsibility for structural defects in their privately owned home and to fund or undertake remedial works. Their case relied solely on Article 8 of the European Convention on Human Rights and alleged that the Council’s building-control failures had caused prolonged, serious interference with family and private life.

Permission was refused on paper by Judge Pelling QC. On renewal, the Administrative Court considered whether the claim was arguable by reference to the authorities on positive obligations under Article 8, and whether it was brought promptly under the applicable procedural time limit.

1. Permission refused. The claim was held to be unarguable and the renewed application for judicial review was dismissed.
2. Article 8 can, in an appropriate case, impose a positive obligation on a local authority to take steps concerning defects in a house occupied as a family home. Whether such an obligation arises depends on a close examination of the circumstances and the legal and statutory framework, including duties, powers, available remedies, resource allocation and the state’s margin of appreciation.
3. Culpability is highly significant. Continuing failure to perform a statutory obligation, with knowledge of the breach and its serious consequences, is more capable of grounding a positive obligation than isolated carelessness. The severity of the consequences and the strength of the causal link between the authority’s failure and those consequences are also important.
4. The claimants had no private-law or public-law entitlement requiring the Council to repair or fund defects in their privately owned dwelling. Their case concerned, at most, negligent approval and inspection during construction over a limited period. That was close to the isolated carelessness identified in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406.
5. The house remained capable of occupation as a family home. The availability of basic amenities, the use of acrow props to address the principal structural risk and the absence of evidence that the remaining defects prevented occupation meant that the interference was not comparable with the conditions in R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin). The inability or reluctance to entertain guests was not, by itself, a serious or substantial interference with private family life.
6. The court expressed no final view on the alternative delay arguments. The order required the claimants to pay £1,050, not subject to VAT, for the defendant’s costs of preparing and filing the acknowledgment of service; otherwise there was no order as to costs.

Permission was refused on paper by Judge Pelling QC on 4 October 2011. The renewed application was dismissed by the High Court (Administrative Court) on 19 January 2012. The costs order was varied so that £1,050 was payable without VAT; otherwise there was no order as to costs.