SO, R (on the application of) v Thanet District Council

Under section 77(1)(c) of the Criminal Justice and Public Order Act 1994, a local authority cannot direct a person to leave occupied land while that person remains there with the occupier’s consent. Previously given consent must have ended, and the resident must know that it has ended, before the direction is given. Where consent was granted until further notice, the authority must decide what reasonable notice is required and give that notice before invoking the section 77 process. The phrase “as soon as practicable” does not provide a broad substitute for prior notice where non-compliance may attract criminal liability.

SO, an 18-year-old Pavee Traveller with mental health problems, occupied a vehicle on land at Ramsgate Port with Thanet District Council’s consent. Documents described the arrangement as a permitted or tolerated negotiated stopping site, subject to review until further notice.

The Council later gave and served a direction under section 77(1) of the Criminal Justice and Public Order Act 1994, requiring the occupants to leave. The High Court refused permission after a rolled-up hearing. Bean LJ granted permission on two grounds and retained the claim in the Court of Appeal, which treated it as a judicial review at first instance. The central issue was whether the direction was lawful without prior notice that consent to occupy had been withdrawn.

Judicial review granted; section 77(1) direction quashed. Edis LJ gave the judgment, with which Arnold and Underhill LJJ agreed.

1. Section 77(1) must be construed by reference to the circumstances existing when the local authority decides to give the direction. Under section 77(1)(c) of the Criminal Justice and Public Order Act 1994, the person must then be residing on occupied land without the consent of the occupier. A direction cannot lawfully create the state of affairs required to justify it.
2. Where a person has been residing on occupied land with consent, that consent must have ended to the person’s knowledge before the direction is given. Consent may end because a fixed period has expired or because notice has been given under a terminable arrangement.
3. The enforcement provisions did not provide an adequate substitute safeguard. The phrase “as soon as practicable” was not to be given the broad meaning contended for by the Council. Section 77(5), with its limited defence of illness, mechanical breakdown or other immediate emergency, supported a narrower construction.
4. In any event, the Council’s public law duties required reasonable notice. Its documents described the occupation as permitted or tolerated, called the land a negotiated stopping site, contemplated review until further notice and referred to a decision about the site’s future. A local authority using that language should inform affected residents of the withdrawal decision and allow reasonable time to leave before criminal sanctions apply.
5. The court did not decide whether the issue could be litigated in the magistrates’ court under section 77(3) or section 78(1), and declined to refuse relief on the basis of an alternative remedy.

1. Court of Appeal (Civil Division) — [2023] EWCA Civ 398: treated the matter as a judicial review at first instance, granted the claim and quashed the section 77(1) direction.
2. High Court — Anthony Elleray KC, sitting as a judge of the High Court, refused permission after a rolled-up hearing in a reserved decision dated 8 July 2022.
3. Court of Appeal permission stage — Bean LJ granted permission on two grounds and retained the judicial review in the Court of Appeal.