Smith (On Behalf of the Gypsy Council) v Buckland

This appeal arises from the hearing of a claim for possession brought against a number of gypsies who occupied various pitches at a gypsy caravan site at Caegarw Farm Caravan Park, Pyle, Port Talbot, Wales. The site is owned by Neath Port Talbot County Borough Council (“the Council”), but is managed by the claimant pursuant to an agreement with the Council dated 12 June 2000.

The appellant (who is the fourth defendant to these proceedings) has lived on the site since 1999. She currently occupies pitch 16 pursuant to a licence dated 29 March 2004. This licence was terminated by a notice dated 30 December 2004 which expired on 6 February 2005. The notice relied on clause 7.1 of the licence agreement which provided that: “The Gypsy Council or the Licensee may terminate this licence by giving the other not less than 28 days written notice to expire on a Sunday in any week.” The licences of the other five defendants were also terminated by notices given on 30 December expiring on 6 February 2005. They are all members of the same family.

On 1 June 2006, His Honour Judge Wyn Williams QC, sitting at Swansea County Court, made an order for possession against the first, second, third, fifth and sixth defendants. The claim against the appellant was heard by His Honour Judge Bidder QC. He gave two judgments. In his judgment dated 25 July 2006, he held that it was not seriously arguable (i) that the law on which the claimant relied to claim possession was incompatible with article 8 of the European Convention of Human Rights (“the Convention”) or (ii) that the decision to seek possession was amenable to judicial review so as to afford a public law defence of the kind that was recognised in Wandsworth London Borough Council v Winder [1985] AC 461. It followed that the claimant was entitled to an order for possession. In his judgment dated 28 July 2006, he considered whether and, if so, on what terms to suspend the order for possession. He decided that the order should be suspended until 24 November 2006 on condition that the appellant continued in the meantime to comply with the undertaking given to the court; that her son (who lived with her) leave the site; and that she discharge the arrears of water charges at the rate of £5 per week.

In order to set the two judgments of the judge and the issues that arise on this appeal in their context, it is necessary to refer to the statutory materials and a number of previous authorities. The relevant law is far from straightforward.

Part I of the Caravan Sites Act 1968 (“the 1968 Act”) provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least 4 weeks notice of termination of a licence to occupy a caravan site must be given.

In addition, section 4 of the 1968 Act provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to 12 months at a time. Section 4 provides, in so far as is relevant:

“(1)

If in proceedings by the owner of a protected site the court makes an order for enforcing in relation thereto any such right as is mentioned in paragraph (b) of subsection (1) of section 3 of this Act, the court may (without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section) suspend the enforcement of the order for such period not exceeding twelve months from the date of the order as the court thinks reasonable.

(2)

Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.

(3)

The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than twelve months at a time.

(4)

In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions -

(a)

whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;

(b)

whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;

(c)

whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).”

Prior to its amendment by section 211(1) of the Housing Act 2004 (“the 2004 Act”), section 4(6) of the 1968 Act excluded the court’s power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. The exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed with effect from 18th January 2005 in respect of proceedings begun on or after that date: see sections 211(2) and 270(3) of the 2004 Act. That amendment was a response to the ECtHR’s decision in Connors (2004) 40 EHRR 189.

The Mobile Homes Act 1983 (“the 1983 Act”) applies to any agreement under which a person is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence: see section 1(1). The 1983 Act provides a degree of security of tenure to occupiers of caravan sites by implying into licence agreements falling within the ambit of its provisions various protective terms. The effect of section 2(1) and paragraph 4 of Schedule 1 to the 1983 Act is that the owner of a relevant site is entitled to terminate the licence only if (a) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (b) the court considers it reasonable for the agreement to be terminated.

The protection provided by the 1983 Act does not avail the appellant because section 5(1) excludes from the definition of a “protected site” any land occupied by a local authority as a caravan site providing accommodation for gypsies. The Government has indicated that it proposes to amend the 1983 Act to remove this exclusion. To this end, the House of Commons Second reading of the Housing and Regeneration Bill took place on 27 November 2007.

Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3)(a) of the 1998 Act a “public authority” includes a court or tribunal.

Article 8 of the Convention provides:

“(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

I start with Connors, a decision of the ECtHR. The applicant in Connors was a gypsy. He had lived with his wife and children pursuant to a licence on a gypsy site run by the local authority for approximately 15 years. The local authority served a notice to quit, on the basis that the family had been causing a nuisance and were accordingly in breach of their licence conditions. When the family failed to leave, it commenced possession proceedings. The local authority subsequently withdrew the allegations of breach of licence and asserted a right to summary possession on the simple basis that, upon the expiry of the notice to quit, the family became trespassers. The county court granted a possession order on that basis.

Before the ECtHR, the parties were in agreement that article 8 was applicable and that the eviction of the applicant constituted an interference with his right to respect for his private life, family life and home (para 68). It was also agreed that the interference was “in accordance with the law” and pursued a legitimate aim, namely the protection of the rights of other occupiers of the site and the local authority as owner and manager of the site (para 69). The central focus of the case was therefore whether the interference was “necessary in a democratic society” i.e. whether it was proportionate to the aim pursued.

In considering the general principles to be applied to the case, the ECtHR said:

“The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation....

The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (para 84).”

In applying those principles to the particular case, the ECtHR held:

“85.

… While it was variously alleged by Council officers that the applicant’s licence conditions had been breached due to the unruly conduct of persons on his pitch and contended by the applicant that any problems arose from adult visitors from off the site over whom he had no control, the respective merits of the arguments were not examined in the County Court proceedings, which were only concerned with the fulfilment of the formal conditions for the eviction. The central issue in this case is therefore whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights.

86.

… The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons.”

Having considered various policy reasons put forward by the United Kingdom Government for the lack of security accorded to gypsies living on local authority sites, the ECtHR set out its conclusions on the article 8 issues in these terms:

“92.

The existence of other procedural safeguards is however a crucial consideration in this Court’s assessment of the proportionality of the interference … a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court’s attention to the Court of Appeal’s decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law. …

94.

However, even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to ‘flexibility’ and ‘administrative burden’ have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid …

95.

In conclusion, the Court finds that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a ‘pressing social need’ or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention.”

Subsequent to the decision in Connors, the House of Lords heard the conjoined appeals in Kay v Lambeth London Borough Council and Price v Leeds City Council [2006] UKHL 10 [2006] 2 AC 465. The appellants in both cases contended that, in the light of the decision in Connors, they should be permitted, at least in principle, to raise a defence to the possession proceedings brought against them pursuant to article 8 of the Convention. The House of Lords rejected their appeals.

Lord Hope of Craighead said at para 110, in a passage specifically approved by Lord Scott at para 174, Baroness Hale at para 192 and Lord Brown at para 212:

“Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown [1973] Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with Article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461. The common law as explained in that case is, of course, compatible with Article 8. It provides an additional safeguard.”

The third principal authority is Doherty v Birmingham City Council [2006] EWCA Civ 1739 [2007] LGR 165 in which this court considered what approach should be taken (in the light of the decisions in Connors and Kay) to possession cases commenced prior to the amendment of the 1968 Act. Doherty involved the eviction of a family of gypsies from a local authority caravan site, in circumstances where there were allegations of nuisance, but against the background of the local authority landlord having plans to redevelop the site.

This court decided that, in a case not distinguishable from Connors, the county court would have no choice but to grant possession, because the Kay “exceptions” (identified by Lord Hope at para 110) allowed challenge only to the relevant statutory regime or challenge on public law grounds, and did not permit any modification of the common law. However, the court went on to hold that the case before them was distinguishable from Connors because the decision to seek possession was based on an administrative judgment about the appropriate use of land in the public interest (see Carnwath LJ at para 61). In those circumstances, there was no breach of article 8.

The claim for possession against the appellant was based on (i) her remaining in occupation of pitch 16 without the claimant’s consent following the expiry of the notice of termination of the licence and (ii) allegations that she had been guilty of conduct amounting to nuisance. It is important to bear in mind that the proceedings in this case (unlike those in Doherty) were started after the amendment to section 4 of the 1968 Act had come into force. On 25 July 2006, the judge considered whether he should make an order for possession in the light of the submissions made by the appellant that (i) a possession order would be incompatible with her article 8 rights and/or (ii) the decision to bring these proceedings was unreasonable and unlawful on conventional public law grounds.

In relation to (i), the judge referred to the fact that the amendment to the 1968 Act was introduced by the 2004 Act in response to the decision in Connors. As I have said, he held (para 59) that it was impossible to say that a seriously arguable point had been raised that the law which enabled the court to make a possession order merely on the grounds that the licence to occupy had been terminated was incompatible with article 8. The amendment cured any incompatibility. In any event he had to give effect to the domestic law which obliged him to make an order for possession in this case. As for (ii), he said at para 58 of his judgment:

“That the decision of the claimant to commence possession proceedings was unreasonable is open to the defendants following Wandsworth London Borough Council v Winder, but given that the fourth defendant has only occupied the premises since 2004 his situation is drastically different from Mr Connors. I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable, having regard to the judgment of Lord Brown in paragraph 209.”

The reference to Lord Brown is a reference to his speech in Kay to which I refer at para 39 below.

On 28 July, the judge went on to deal with the applications made by the appellant and some of the other defendants to suspend the enforcement of the possession orders under section 4 of the 1968 Act. He heard both evidence and argument. He found that the appellant’s son had been guilty of misconduct. But he rejected the allegations of misconduct that had been made against her and suspended the order for possession on terms that her son leave the site, that she pay the arrears of water charges at a rate of £5 per week and that she continue the undertaking she had given to the court.

The grounds of appeal that were argued before this court were that the judge was wrong to hold that:

It should be noted that there is no appeal against the terms on which the judge suspended the possession order. The appeal is against the possession order itself. It is conceded by Mr Jan Luba QC that the only ground which could lead this court to allow the appeal against the possession order is the public law defence ground. That is because the effect of the decisions in Kay and Doherty is that the court is obliged under our domestic law to apply the statutory scheme under which the claimant is entitled to a possession order if it proves that it terminated the appellant’s licence to occupy by a notice which had expired before the issue of proceedings. It is common ground that the claimant is to be regarded as the Council for the purposes of these proceedings. The significance of this is that its decisions are in principle amenable to judicial review and it is a public authority for the purposes of the 1998 Act.

Mr Luba wishes to challenge the correctness of Kay and Doherty in the House of Lords. He submits that the judge was wrong to hold that he was constrained by the decision in Kay to give effect to domestic law by granting an order for possession notwithstanding the appellant’s pleaded reliance on article 8. He submits that the judge was wrong to consider himself as so constrained in a case where the claim to possession was founded on the claimant’s common law property rights rather than on statute. Mr Luba accepts, however, that this court in Doherty has held (para 53) that the Kay constraints on the availability of article 8 to a defendant are applicable where otherwise applicable statutory protections have not been made available by Parliament, thereby enabling a claimant to have possession by simple assertion of superior title. This court must follow Doherty and reject this ground of appeal. Leave to appeal to the House of Lords has been given by their Lordships in Doherty. Mr Luba submits that we should give leave to appeal on this point so that it can be considered in the light of the facts of this case as well as those in Doherty itself.

Before I come to the grounds of appeal that were argued before us, I need to set out my understanding of the basis of the decision of the ECtHR in Connors. This is of particular importance when determining whether the amendment to section 4 of the 1968 Act has cured the violation of article 8 which was found by the ECtHR in that case.

Lord Hope, who gave the leading majority speech in Kay, explained the finding of breach by the ECtHR in Connors by reference to the absence of sufficient procedural safeguards. He said at para 67:

“ … Connors is the only case where the Strasbourg court has held that the making of a possession order against an occupier in favour of a public authority in accordance with the requirements of domestic property law has failed to meet the third requirement of article 8(2) [i.e. proportionality]. It failed to do so in that case because the making of the order was not attended by the procedural safeguards that were required to establish that there was a proper justification for the interference with the applicant’s right to respect for his private and family life and his home … The point of that case, however, was that the law enabled the public authority to evict the applicant from the site which he had been given a licence to occupy without giving reasons which could be examined on their merits by an independent tribunal.”

Similarly, at para 75 Lord Hope said:

“The absence of any statutory protection in these cases is the result of a deliberate decision by Parliament that the owner’s right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier. That was the position in Connors under the legislation that was then in force.”

Again, at para 82:

“In Connors the European Court of Human Rights held that the eviction of the applicant and his family, who were gypsies, from a local authority gipsy site which they were licensed to occupy so long as they did not cause a nuisance was a violation of article 8 because it had not been attended by the requisite procedural safeguards.”

At para 97, Lord Hope observed that in Connors the ECtHR “had noted at para 85 that the respective arguments as to whether there had been a breach of the licence conditions were not examined in the county court proceedings”. He continued at para 99:

“As the court said in Connors at the end of para 85, the central issue was whether, in the circumstances, the legal framework applicable to the occupation of pitches on local authority gipsy sites provided the applicant with sufficient procedural protection of his rights.”

Similarly, at para 100 he said:

“There was also criticism in Connors of the procedure that was adopted in the county court, on the ground that it was concerned only with the fulfilment of the formal requirements for the eviction.”

In a similar vein, Lord Scott of Foscote (at para 168) characterized Connors as “a type of case … where the procedural means available to the home occupier for challenging the decision by the owner of the property to evict him are inadequate. Connors was thought by the Strasbourg court to be such a case.”

Mr Luba submits that an important element of the reasoning of the court was that it was unjustified discrimination to deny to gypsies who occupy local authority caravan sites the security of tenure which is extended to gypsies who occupy privately owned caravan sites. I shall refer to this as “the discrimination point”. Mr Luba refers to paras 86, 89 and 109 of the judgment. He also refers to paras 157-161 of the speech of Lord Scott in Kay which identifies the three “features of Connors that contributed to the court’s conclusion” that the eviction of the family constituted a breach of their article 8 right to respect for their home. The three features were: (i) the discrimination point; (ii) the fact that the Strasbourg jurisprudence in relation to article 8 and gypsies has established that contracting states have a positive obligation to facilitate the gypsy way of life; and (iii) the importance placed by the court on “procedural safeguards”. The discrimination point was also emphasised by Baroness Hale of Richmond at para 184 of her speech in Kay.

I recognise that the three features identified by Lord Scott are present in the reasoning of the court in Connors. But it seems clear to me that the lack of procedural safeguards is the predominant reason for the decision. The real problem with our domestic law identified by the ECtHR was not so much that it discriminated against gypsies who were licensees of local authority sites as compared with gypsies who were licensees of other mobile home sites. The real problem was the absence of procedural safeguards. The essential complaint of the applicant was that his eviction interfered with his rights under article 8 as being unnecessary and disproportionate “in particular as he was not given the opportunity to challenge in a court the allegations made against him and his family” (para 71) and had no means of “requiring the Council to substantiate its allegations against him and thereby resisting the revocation of his licence or preventing the eviction” (para 72). The court said that the procedural safeguards were “particularly important in deciding whether a State, in fixing the regulatory framework, has remained within its margin of appreciation” (para 83). At para 85, the “central issue” was said to be whether the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with “sufficient procedural protection of his rights”. The whole emphasis in the court’s conclusions at paras 92-95 is on whether the statutory scheme affords sufficient procedural safeguards. That was also the view of this court in Doherty at paras 42 and 43.

It is now established law that a defendant has the right to contend in his defence that the decision of a public authority to recover possession was one which no reasonable person could consider justifiable: see, for example, per Lord Hope in Kay (para 86) following Wandsworth Borough Council v Winder [1985] AC 461 and Doherty (paras 33-36). In the present case, the judge decided that the defence was not seriously arguable without hearing any evidence. Mr Luba submits that he was wrong to do so. He emphasises the following points. The appellant was living on the site with her two teenage children. It was their only home. She had been a licensee in her own right since 2004 and had been living there since 1999. When the judge decided that the public law defence was not seriously arguable, he knew that allegations of misconduct had been made, but he had heard no evidence and had made no findings in relation to them. Mr Luba submits that the claimant’s decision to terminate the licence and issue proceedings was one which no reasonable authority could have made. It was taken without warning and without giving the appellant an opportunity to answer the allegations of misconduct. If the problem of concern to the claimant was the behaviour of the appellant’s teenage son, this could and should have been addressed by seeking an ASBO or injunction.

The public law defence was not pleaded, but it seems that the claimant did not object to it being advanced by the appellant. In deciding that it was not seriously arguable that the decision of the claimant to recover possession was an improper exercise of its powers at common law, the judge was (rightly) following the approach summarised by Lord Hope at para 110 of Kay.

In Kay, Lord Brown of Eaton-under Heywood considered the availability of the public law defence in this class of case. He said:

“208.

I should perhaps just add this. These appeals were brought on the basis that it is for the trial judge, pursuant to his section 6 duty, to consider for himself the issue of justification under article 8 (2) in any contested possession action. There is, however, a quite different basis upon which an occupier could challenge a public authority's claim for possession, namely on the conventional public law ground that the decision to bring the claim was itself so unreasonable as to be unlawful. Such a defence can clearly be advanced in the county court—see the decision of the House of Lords in Wandsworth London Borough Council v Winder [1985] AC 461.

209.

The difficulty with such a defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court, as the appellants assert, under a primary duty to reach its own judgment on the justifiability of making a possession order.

210.

For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That was not, be it noted, the basis of the actual judicial review application for which permission in that case was sought and refused. Indeed the council's decision there to drop the allegations of breach of licence and to assert instead a right to summary possession on the bald ground that the family were trespassers (see para 25) followed rather than preceded the failed judicial review challenge.

211.

It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself. Manifestly it could not have succeeded in either of the present cases which doubtless explains why defences of this particular character were not advanced.”

This defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it or that it was unlawful for some other public law reason: see Kay at paras 110,118-190 and 207-212 and Doherty at paras 22(iii)(b), 37-40 and 61.

Mr Andrew Keyser QC rightly accepts that the length of a person’s occupation of the site and his or her behaviour as an occupant are capable of being relevant to a consideration of this defence. I accept his submission, however, that the legislative and procedural framework is fundamental to any consideration of whether the authority was acting in a manner in which no reasonable authority could have acted. Connors involved a misuse of position in that the authority used its power to evict summarily by unilateral decision, bypassing any procedures for scrutinising the factual basis on which it had made its decision. Since the amendment to section 4 of the 1968 Act, that is no longer possible, at any rate if the occupier applies to the court for a suspension of the possession order. A local authority can obtain a possession order, but cannot recover possession if an application is made to suspend enforcement unless the court considers that it is not appropriate to exercise its discretion to suspend enforcement having regard to all the circumstances, including in particular those set out in section 4(4)(a) to (c) of the 1968 Act. The amendment introduced by the 2004 Act has changed the legislative landscape. Whether the change is sufficient to meet the requirements of article 8 is the issue raised by the amendment ground of appeal. But for the purposes of deciding whether in a particular case the public law defence is seriously arguable, let alone that it is made out on the facts, it is highly material that section 4 has been amended in this way.

The significance of the amendment is that a claimant’s decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant’s complaints about the defendant’s behaviour.

The appellant can draw no comfort from the observations of Lord Brown in Kay to which I have referred. It may be that, for the reasons given by Lord Brown, a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence “without the need to make good any underlying reason for taking such precipitate action”. The real difference between the present case and Connors is not that the appellant had been in occupation for a shorter period than was the family in Connors. The judge mistakenly thought that she had been in occupation since 2004, when she had in fact been in occupation since 1999. On any view, the site was her home and had been for a substantial period of time. The fact that she had not been in occupation for as long as the family in Connors is not, in my judgment, of much significance. The real difference between the two cases is that in Connors, once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended by the court.

Since the amendment to the 1968 Act, I find it difficult to conceive of a case in which a public law defence would succeed. Lord Brown referred to an “infinitely rare case such as Connors itself”. It will only be in a truly exceptional case that it will even be seriously arguable that such a defence will succeed.

In the present case, the judge was right to hold that the defence was not seriously arguable. Although he rejected the allegations of personal misconduct on the part of the appellant, his finding of misconduct on the site by her son involved a finding that she was in breach of a condition of her licence, since she was responsible as the licence-holder for the conduct of those on the site with her permission: see condition A(n) of the licence. This provides:

“The Licensee or his/her resident family or visitors must not create a nuisance on the sites or to neighbouring properties. The Licensee shall be held responsible if any visitor/person living with him/her contravenes any of these Site Rules or Conditions.”

Further, as Mr Keyser says, the claimant was entitled to bring proceedings on the basis of the evidence that it had from its site manager, Tina Farrow, that the appellant was personally guilty of conduct amounting to a nuisance on the site. The decision to terminate the licence and bring proceedings was informed by that evidence. It is true that the judge rejected certain of the allegations made by Ms Farrow. But it does not follow that the claimant was acting outside the bounds of reasonableness in bringing proceedings on the basis of those allegations. Although the judge generally found the appellant to be a good witness, he considered that she glossed over the conduct of some of the members of her family (para 7) and he made her son’s absence from the site a condition of the suspension. Moreover, as Mr Keyser submits, the decision to institute these proceedings must be viewed in the context of an attempt to address the problems caused by a generally disruptive family, in which a culture of disrespect affecting the first and second defendants and the appellant’s son presented a risk of disturbance and violence: see paras 30 and 31 of the second judgment.

But the most significant factor which justifies the judge’s conclusion that the public law defence was not seriously arguable is the amendment to section 4 of the 1968 Act itself. It is true that the decision to serve the notice to terminate the licence was taken before the amendment came into force. But the amendment had been enacted before the notice was served and it came into force before the notice expired and before the proceedings were issued on 2 August 2005. In other words, the proceedings were started at a time when it was no longer possible for a public authority to evict a person such as the appellant merely on the basis of a valid notice to quit.

In these circumstances, it was reasonable for the claimant to issue these proceedings. In my judgment, Mr Luba has come nowhere near showing that this is one of those wholly exceptional cases where it is seriously arguable that the public law defence was available to the appellant.

As I understand it, Mr Luba accepts that the question whether and to what extent this case is distinguishable from Connors is not of itself relevant to the appeal to this court. I have already explained how the amendment to the 1968 Act since the decision in Connors is relevant to the public law defence ground of appeal. There is the further point that in Connors it seems that in the end the local authority did not base its claim for possession on any alleged misconduct of the occupant or any members of his family.

The only point of distinction between the two cases identified by the judge was that the appellant had been in occupation of her pitch for a shorter period than Mr Connors had been of his. I accept the submission of Mr Luba that the judge was wrong in two respects. First, the appellant had been in occupation for considerably longer than the judge thought. Secondly, the judge was wrong to hold that the length of time for which the appellant and Mr Connors had respectively been in occupation was any real ground for distinguishing their cases. The factual situation in the two cases was not materially different in that in both cases, the defendant had occupied a site as a home for a number of years. Further, in both cases the claimant had validly and properly terminated the defendant’s licence to occupy, so that the defendant had become a trespasser; the claimant was entitled to an order for possession by virtue of the title of the freeholder of the land; and no further justification was required to seek an order for possession (as opposed to a suspension of the order).

It follows that I agree that the judge was wrong to regard the difference in the length of occupation in the two cases as being of itself a material difference. Mr Luba submits that this error (of no materiality to the appeal to this court) may be significant for other cases. He says that it will be significant if leave to appeal to the House of Lords is given to the appellant in this case. If leave is given, Mr Luba will seek to persuade their Lordships to depart from Kay and in the context of such an appeal, he submits, it will be material to decide whether the facts of the present case are distinguishable from those in Connors. I am not persuaded that it is necessary to determine whether the facts of the two cases are distinguishable for this purpose. If, however, the appellant is given leave to appeal and if it becomes necessary to decide whether the facts are distinguishable, that is a matter which their Lordships can decide as easily as this court.

Mr Luba submits that the amendment to section 4 of the 1968 Act did not remedy the incompatibility of the statute with article 8. The question whether the amendment made good the deficiencies in domestic law exposed by the ECtHR in Connors was left open in Doherty (para 21).

In support of his submission, Mr Luba makes the following points. First, the court still does not have the power to control the circumstances in which and the basis on which a gypsy’s right to occupy a local authority site may be terminated by the court. An occupier can be reduced to the status of trespasser without any judicial scrutiny of the overall merits of the owner’s entitlement to evict. The only control available is in relation to the owner’s enforcement of the owner’s right to possession.

Secondly, the vulnerable position of gypsies as a minority means that special consideration should be given to their lifestyle both in the relevant regulatory framework and in reaching decisions in individual cases: see Connors para 84. The amendment does not do this. One of its consequences is that the burden is placed on the occupant to show why the order for possession should not be enforced. The position under the Convention is that, if an order for possession would interfere with the occupant’s rights under article 8(1), the burden is on the public authority to justify the interference under article 8(2).

Thirdly, one of the factors to which the court is required to have regard in deciding whether or how to exercise its powers to suspend enforcement is “whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it)” (section 4(4)(c)). This factor assumes that an occupant may be evicted from his home whether or not there are substantive grounds for requiring him to leave.

Fourthly, enforcement may be suspended for no more than 12 months at a time. Frequent recourse to the court is not compatible with the special treatment accorded by the Strasbourg jurisprudence to gypsies. Although section 4(5) of the 1968 Act provides that, where the court makes an order for possession but suspends its enforcement, the court is required to make no order for costs unless there are special reasons for making such an order, there are costs implications for the occupant in having to make frequent applications to the court to extend the suspension of the order. Each time, he has to pay the court fee and the cost of his legal representation.

Finally, Mr Luba submits that, even if the amendment sufficiently makes good the absence of procedural safeguards identified in Connors, it does not meet the discrimination point.

In my view, the starting point for a consideration of these submissions should be to decide the extent of the margin of appreciation accorded to the contracting states by the Strasbourg jurisprudence in this area. The general position is that in the field of socio-economic matters such as housing, the margin of appreciation available to the domestic authorities is a wide one: see, for example, Blecic v Croatia (2005) EHRR 13 para 65 and Stankova v Slovakia (merits and admissibility decision of 9 October 2007) para 59. Both of these were claims for possession by local authorities of rented housing accommodation and in both cases the tenant invoked article 8. But it has also been said that “where general social and economic policy considerations have arisen in the context of Art 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant”: para 82 of the judgment in Connors. The vulnerable position of gypsies as a minority means that “some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases” (Connors para 83). Para 86 in Connors is the critical passage of the judgment for present purposes:

“The serious interference with the applicant’s rights under Art.8 requires, in the Court’s opinion, particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed. The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case, in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land with the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family.”

The main reason given by the court for its conclusion in this passage that the margin of appreciation is “correspondingly narrowed” is that the complete absence of any procedural safeguards was a serious interference with the applicant’s article 8 rights which called for particularly weighty reasons of public interest in justification. The court is saying that, because of their vulnerable position, gypsies are entitled to procedural safeguards. The precise scope of these safeguards is a matter for the national authorities to determine. Provided that a reasonable degree of protection is afforded by the domestic law, the ECtHR will not interfere, even if a greater degree of protection could have been afforded.

I would reject Mr Luba’s submissions largely for the reasons given by Mr Stilitz and Mr Keyser. The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession, but to order the eviction of an occupant such as the appellant provided that the 4 weeks’ notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant’s eviction. The local authority’s reasons were irrelevant as were the occupant’s personal circumstances. Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article 8(2). In short, there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier’s rights under article 8(1) was justified on an application of article 8(2). Provided that the relevant formal requirements had been satisfied, the role of the court was purely mechanistic.

The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site. Summary eviction has been replaced by judicial examination. Section 4(1) now provides that the enforcement of a possession order may be suspended for such period up to 12 months “as the court thinks reasonable”. The court has a wide discretion under subsection (2) to impose conditions when making an order for suspension. By subsection (3), the court may extend the suspension of the possession order for up to 12 months at a time. Subsection (4) requires the court to have regard to “all the circumstances” in deciding whether to exercise its power to suspend. The court is, therefore, required to conduct an examination of all the circumstances of the case. Moreover, as a public authority, the court is bound by section 6(1) of the 1998 Act to act in a manner which is compatible with occupiers’ Convention rights. This means that it must exercise the discretion given by section 4 of the 1968 Act in that way.

Parliament could have gone further than it did to make good the deficiencies identified in Connors. It could have given security of tenure such as is afforded by the 1983 Act which the Government has announced that it will do. The question is whether the amendment goes far enough. In my view, for the reasons given by Mr Stilitz and Mr Keyser, it can no longer be said that the domestic law does not afford gypsies who occupy local authority sites procedural safeguards against eviction. It is true that such gypsies still do not enjoy procedural safeguards against the making of possession orders. But it is the act of eviction, rather than the act of making a possession order, which interferes with a person’s right to respect for his home. Throughout the judgment in Connors, the emphasis is on the eviction, rather than on the possession order: see, for example, paras 68, 85, 89, 92, 94 and 95.

In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors.

I turn to the particular points made by Mr Luba (paras 54 to 58 above). In view of the conclusion that I have reached for the reasons given in paras 61 to 64 above, I shall express my views on these points briefly. I have already dealt with the first one. As regards Mr Luba’s second point, it is true that there is a difference in the burden of proof. I doubt, however, whether in practice this is likely to make any real difference, especially since the court is obliged to exercise its discretion under section 4 in accordance with the Convention. But if it does, the difference falls within the margin of appreciation. The third point is of little weight. Whether alternative accommodation is available is a factor which would be taken into account under article 8: see para 85 of Connors. There is obvious force in the fourth point. A court should not repeatedly suspend the enforcement of a possession order for short periods unless there are good reasons for doing so. It must take account of the occupant’s article 8 rights when exercising its discretion under section 4 of the 1968 Act.

Finally, I come to Mr Luba’s argument that the discrimination point has not been met by the amendment. I have already said that, although the discrimination point was one of the features of the court’s reasoning in Connors, it was not the main reason for the decision: see para 36 above. But even if that is wrong, the answer to Mr Luba’s argument is that, by addressing the lack of procedural safeguards for gypsies of local authority sites, the amendment has also gone a long way to meeting the discrimination point. It is true that discrimination persists: it will not be cured completely until the 1983 Act is amended. But the discrimination has been much mitigated. In my judgment, the discrimination point adds nothing to Mr Luba’s main submission that the amendment does not make good the lack of procedural safeguards identified in Connors. In my view, to the extent that the discrimination persists, the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting states.

I note that the appellant does not seek a declaration of incompatibility in relation to the amendment because of the likely amendment to the 1983 Act.

For the reasons that I have given, I would dismiss this appeal.

I have had the advantage of reading Dyson LJ’s judgment in draft. I respectfully agree with it, and would dismiss this appeal for the reasons he gives.

I wish to add only two very short points. The first is to pay tribute to the manner in which this case was argued at the bar. Mr Luba’s submissions, in particular, although they have not succeeded in this court, were extremely cogent and advanced with both realism and considerable skill.

Secondly, it is, I think, plain from the speech of Lord Brown of Eaton-under-Heywood in Kay that, as Dyson LJ states in paragraph 44 of his judgment, it will only be in a truly exceptional case that it will even be seriously arguable that what can be described in shorthand as the Winder defence will succeed. In my judgment, however, if such a defence is to be raised, it should be pleaded, so that the circuit judge having the conduct of the application can decide whether or not an adjournment is required for further evidence to be filed and whether or not oral evidence and cross-examination are necessary. I note that in paragraph 210 of his speech in Kay Lord Brown expressed the opinion that such a defence could have been successfully mounted in Connors, and it would seem to me equally that the defence might be available where, for example, the action of the claimant in instituting proceedings against a particular defendant was motivated by improper or personal considerations.

I respectfully agree with Dyson LJ, however, that quite apart from the absence of any pleading, the facts of the instant case come nowhere near the threshold required, and that the judge was right summarily to reject the defence.

I agree that this appeal should be dismissed for the reasons given by Dyson LJ.