Plant, R (On the Application Of) v Somerset County Council & Anor

The claimant sought judicial review of Somerset County Council's decision to pursue possession of land he occupied and a mandatory order requiring Taunton Deane Borough Council to provide suitable housing under Part VII of the Housing Act 1996. The court applied the Civil Procedure Rules (in particular CPR Pt 39.3 and CPR Pt 54) and the Denton v TH White Ltd tripartite test for relief from sanctions to TDBC's belated attempt to contest the claim. The judge found that TDBC had failed to make a prompt application to set aside Hayden J's mandatory order, could not show a good explanation for its delay and had negligible prospects of success; relief from sanction and the application to set aside the order were refused. On the substantive judicial review, the court held that once TDBC had made and maintained an offer which it regarded as discharging its statutory housing duty under s.193/s.195 Housing Act 1996 the claimant's challenge to SCC's possession proceedings had become academic. Applying the Article 8 proportionality principles (notably Pinnock), the court concluded SCC's pursuit of possession was proportionate; the claim was dismissed.

Background and parties: The claimant, a 72 year-old man with multiple disabilities including Asperger's syndrome, hyperacusis and other medical conditions, occupied a motor home and vehicles on land owned by Somerset County Council (SCC). He applied for homelessness assistance from Taunton Deane Borough Council (TDBC), which accepted a housing duty. SCC issued possession proceedings; the claimant sought judicial review to prevent eviction until TDBC provided suitable accommodation.

Relief sought and procedural posture: The claimant sought (i) a quashing order in respect of SCC's decision to seek possession, (ii) a declaration that SCC could not obtain or enforce possession until TDBC had provided suitable accommodation under Part VII Housing Act 1996, and/or (iii) a mandatory order requiring TDBC to provide suitable accommodation. By order of Hayden J (4 March 2015) the court directed TDBC to discharge its duty by a specified date. TDBC initially indicated it would not contest the claim but later sought permission, more than a year after judgment, to set aside Hayden J's order and to rely on evidence out of time.

Issues framed: (i) Whether TDBC should be permitted to contest the claim out of time and to set aside the earlier mandatory order (issues of relief from sanctions, CPR Pt 39.3 and Denton v TH White Ltd); and (ii) whether SCC's pursuit of possession amounted to a disproportionate or unlawful interference with the claimant's Article 8 rights.

Court's reasoning and conclusions: On TDBC's applications the court applied CPR Pt 39.3 and the Denton tripartite test: the breach was significant, TDBC gave no adequate explanation for its delay and it failed the predicate requirements of promptness and a good reason to set aside. Although stage 3 required consideration of all circumstances, the court concluded justice did not require relief; TDBC's challenge was effectively academic because it had made and pressed an offer (the Ladyacre property) amounting to discharge of its housing duty, subject to review. On the substantive claim against SCC the court proceeded to consider Article 8 proportionality (citing Pinnock). Given that TDBC had discharged its housing duty and that SCC, as landowner, was entitled to seek possession to achieve a legitimate aim (sale and reuse of the land), the eviction proceedings were held to be a proportionate means of achieving that aim. The court also considered and rejected arguments under the Equality Act 2010 and irrationality, and noted the claimant's suicidal ideation but held that such a threat did not compel a particular legal outcome. The judicial review claim was dismissed.

Practical observations: The judge emphasised that judicial review is a last resort, noted the undesirability of concurrent proceedings, and that the court would not generally permit a public body to resile from a clear concession and belatedly reopen proceedings absent a good reason.

First instance: The claimant's judicial review claim is dismissed. The court refused TDBC's applications for relief from sanctions and to set aside the mandatory order made by Hayden J because TDBC did not make a prompt application, offered no adequate explanation for its delay and had negligible prospects of success; further, TDBC had by that stage made an offer which it regarded as discharging its housing duty. On the substantive claim against SCC, the court found SCC's pursuit of possession to be proportionate under Article 8 ECHR and not irrational; the claim is therefore dismissed.