Casey & Ors, R (on the application of) v Crawley Borough Council & Anor

There were ten Claimants, now eight, in this action. All are Irish travellers, who follow their cultural practice of travelling around the country, by caravans and ancillary vehicles, with their families and their belongings. If possible they prefer to travel, or at any rate to encamp, in extended family groups, and these 10, now 8, together with their children, form one such. The proceedings arise out of the fact that, shortly before 5 September 2005, they encamped in two unauthorised places in the Crawley area. One encampment (“Dalewood”) is on the grass verge and pavement adjoining a narrow road (Dalewood Gardens) leading to a substantial housing estate, terminating approximately 10 metres from the entrance to that estate: this is the more important site for the purposes of these proceedings, because it is where the Claimants, and others, still remain pending these proceedings, as a result of interim injunctive relief granted to restrain the continuation of possession proceedings against them in the Horsham County Court, which the Defendant Council brought on 6 September 2005. The other encampment (“Bewbush”) is also on a grass verge at, and on the concreted access way to, a car park for the Bewbush West playing fields: this is of less relevance because the only Claimants who were at Bewbush left the site subsequent to the issue of these proceedings, two of them joining the other Claimants at Dalewood, so that the injunctive relief also granted in this action in respect of the Bewbush possession proceedings, issued by the Defendant in the same County Court on 8 September 2005, was discharged.

I have a description and photographs of the two encampments, which have been kept as tidy as possible; but the photographs show that, as must naturally be the case, there are on the site not only the caravans but also the accompanying vehicles, and an inevitable amount of belongings and other paraphernalia adjacent to the caravans and, since there are a number of children residing in the caravans, those who are not of school age are bound to mill or play around the caravans. As to Dalewood, the road is just wide enough for two-way traffic, but not when there are parked vehicles on the road, as there are bound to be when the grass verge has become more sodden. There is inevitable nuisance to the nearby residents, since the encampment occupies the grass verges on the approach to the housing estate, stopping just short of its entrance.

The Bewbush encampment was at the entrance to the playing fields. Although it was, save again when the conditions became more damp, largely on the grass verge, it was on or at the access way to the car parks; and the Council placed bollards in that entrance, in order to prevent access to the car park. The impact was that the car park could not be used (since the departure of the caravans, the Defendant’s Counsel informed the Court that the bollards, which appear from the photographs to be removable, have been removed as and when the car park has needed to be used), access to the changing rooms for the playing fields was inhibited, and, according to the Defendant, the use of the playing fields by the Crawley and District Football League was prevented.

The Defendant Borough Council, Crawley, is responsible for a relatively small, and largely built-up, area, which includes Gatwick Airport, in the north of Sussex. It had at the material time no responsibility for education or social services, but is of course responsible for planning and development in the area, and owns the grass verges, pavements and access ways at Dalewood and Bewbush. The evidence of Mr Peter Browning, Head of Amenity Services, is that both Dalewood and Bewbush were well known to him. He was aware that Dalewood Gardens was the only road leading to a housing area, and that the playing fields at Bewbush were regularly used. On 5 September he discussed Dalewood with his Senior Community Warden, Ms Nicola Glemas, and after considering the information that she supplied and the documentation she provided, he made the decision to issue the proceedings for possession, to which I have referred. Bewbush was considered on 6 and 7 September 2005. In relation to Bewbush, discussions were with Steve Kirby, Community Warden and Security Manager, and, again on the basis of the information supplied to him and the documents he saw, Mr Browning made the decision, referred to above, to issue those proceedings.

With regard to both Dalewood and Bewbush, his evidence is that he had well in mind the Government guidance (to which I shall refer further) on managing unauthorised encampments. In addition he had the following information before him.

Dalewood

Bewbush

The two sets of possession proceedings were adjourned when they came on for hearing on 12 September, in the first instance until 20 September to allow the issue of judicial review proceedings in the Administrative Court, and thereafter until the outcome of this action. It is, as I have described, only those proceedings in respect of Dalewood which remain relevant. On 22 September 2005 Mr Browning reconsidered the position in relation to the continuation of proceedings with regard to both sites. By 16 September the Neighbourhood Housing Manager Ms Bradford had recorded a number of express further complaints from local residents in relation to Dalewood; Mr Browning did not consider the validity of those complaints. Mr Kirby had on 21 September instructed Mr Nowosielski to make further visits to both sites, and he completed a further document in respect of each site, called a “Travellers’ Audit”. So far as Dalewood is concerned, this disclosed that (unknown to Mr Hendry on his previous visit) Mrs McCarthy, the wife of one of the Claimants, was expecting her first child on 30 September 2005. The presence of 20 adults and 29 children in fifteen caravans was recorded (plainly not just including these Claimants). Four of the “McCarthy Family Group” are recorded as attending Bewbush Primary School. As to housing issues there is recorded: “various members of the McCarthy and the Casey family have made applications regarding homelessness and seek a permanent plot on a traveller site in the Crawley area when one becomes available.” Mr Michael McCarthy was recorded as “the spokesperson representing family group”.

The similar form that Mr Nowosielski completed in respect of Bewbush is unfortunately missing one of its pages, as exhibited in the court papers. There were now nine caravans, with thirteen adults and, on the relation of Mr John Ross “spokesperson representing family groups” fifteen children, of which eleven were between six and sixteen. Once again it is apparent that the numbers had expanded beyond the six caravans present on the first visit two weeks before.

Mr Kirby discussed these Reports with Mr Nowosielski on 21 September, and prepared further UE assessment forms, which have not been exhibited, which he supplied for Mr Browning’s consideration. He also contacted the Traveller Education Support Team for West Sussex, and Ms Bentley.

Mr Browning reconsidered his original decision in relation to the two sites and, as he put it, remained “convinced that my original decision was correct, having taken into account all relevant facts”.

The issue was thus joined between the Claimants and the Defendant Council, both very ably represented, the Claimants by Ms Charlotte Kilroy and the Defendant by Ms Josephine Henderson. There is little dispute of fact and the two positions are in inevitably stark conflict, as can be shortly summarised.

They have been moved on some 30 to 40 times per year. There is a distinct shortage of authorised sites nationally, and so they are driven to encamp in unauthorised sites, from which sooner or later they are moved on, to the considerable disruption of their children’s education. Members of the extended family have been coming to Crawley since 1992/3, and they have thus acquired over the years substantial links with the Crawley area. There are no authorised sites in the Crawley area. Although it is accepted that the grass verge at Dalewood, where all the remaining Claimants are now gathered, is not acceptable, they prefer to stay there than to leave and find themselves back in the spiral of constantly being moved on. They know of no plots vacant on authorised sites in the West Sussex area, and will inevitably be driven, wherever they go, to unauthorised camping. They do not assert any entitlement or desire to stay on where they are at present, but resist being moved on until an alternative site is found. They effectively rely on the unavailability of any authorised sites as founding their case that they should not be moved on until one is found. Although they have applied, pursuant to the homelessness legislation, to the Defendant Council, and, because of their links with the area, have been accepted on the list, they will not accept an offer of ‘bricks and mortar’ accommodation, even on a temporary basis, because of their cultural aversion to it.

The Dalewood site is wholly unacceptable for camping and the Claimants are trespassers and the local residents are justifiably unhappy. There are no authorised sites in the area: they have been under no duty to provide them, but they continue to consider the possibilities of identifying, obtaining planning permission for and constructing authorised sites in the longer term, and their investigations, which they describe, are ongoing. Nor is there any site in their relatively built-up area which could be used, even allowing for the lack of planning permission, as a temporary tolerable alternative site. The Claimants must therefore move on, or accept an offer from the Defendant Council, which has accepted its duty under the homelessness legislation, and indeed placed the Claimants into Band A, with an entitlement to temporary accommodation and an expectation within six months or so of a further offer. However, although they will continue to consider the possibility of identifying caravan sites, it is extremely unlikely that that will emerge in the short term, such that the only available offer of temporary accommodation would be ‘bricks and mortar’ accommodation (together with an offer to store the Claimants’ caravans free of charge and on the basis that the Council will provide insurance cover).

There is plainly a total stand-off. The Defendant has an absolute legal entitlement to the land and the Claimants have no legal entitlement to occupation. The Defendant Council is under no duty to supply caravan sites and in any event has no such sites, temporary or permanent. The Claimants do not assert that the Defendant Council has any obligation to supply a site, but rely on defences (i) by way of challenge to the decisions to issue possession proceedings on conventional administrative law grounds (ii) by way of reliance upon Article 8 of the European Convention on Human Rights (“Article 8”): the proposed eviction of them from this site, without offering, on a temporary and eventually permanent basis, an alternative ‘non-bricks and mortar’ solution is an interference with each Claimant’s “right to respect for his private and family life [and] his home.” A third defence is put forward by reference to legitimate expectation, which for the reasons I will set out, and as became clear during the course of argument, is, in my judgment, unsustainable.

Because of this stand-off, the fact that its inevitable genesis was the inadequacy of the provision of authorised sites nationally, and the existence of Government guidance emanating from that office both in 2004 and as recently as 2 February 2006, i.e. the very day upon which this hearing commenced, I concluded that it would be most helpful for the court and the parties if the First Secretary of State, being for this purpose the Office of the Deputy Prime Minister (“ODPM”) was invited to intervene and make submissions. I identified by a short direction, recorded in a transcript of 3 February to which I refer, the questions on which assistance would be welcomed, and which ended as follows, by reference to the 2004 Guidance, which remains relevant, albeit supplemented by the February 2006 publications, which at that stage I had not had any opportunity to consider:

“The Guidance plainly suggests that, provided the Council has carried out the necessary balancing act, it can evict. But where eviction renders the Claimants homeless and there is no alternative caravan site, does that create a duty and/or negate the right to evict? Is there a national policy to provide for those travellers who are being constantly evicted? In practice is it in fact expected that Councils will not evict without finding /providing alternative sites (and what if, as in the present case, there are none such, and what of local public opposition?)? Is it expected that travellers will modify their cultural attitudes so as at least on a temporary basis to accept accommodation in bricks and mortar as satisfaction of an evicting authority’s duty to offer accommodation?”

The ODPM generously responded, and instructed Daniel Stilitz of Counsel to attend, and indeed to apply to be joined as an interested party, an application which, unresisted by either of the two existing parties, I granted. In those circumstances I have had the benefit of Mr Stilitz’s written and oral submissions: not of course by reference to the particular facts of this case.

There are numerous authorities relating to gypsies and travellers, of which I have been referred to 20 law reports or CA transcripts. Three of those are decisions of the European Court of Human Rights (Buckley v UK [1997] 23 EHRR 101, Chapman v UK [2001] 33 EHRR 399 and Connors v UK [2005] 40 EHRR 9), one of the House of Lords (South Bucks DC v Porter [2003] 2AC 558) and seven of the Court of Appeal (West Glamorgan DC v Rafferty [1986] 18 HLR 375, Avon CC v Buscott & Others [1988] QB 656, R (Clarke) v Secretary of State for Transport etc [2002] JPL 1365, Codona v Mid Beds DC [2005] HLR 1, First Secretary of State v Chichester DC[2005] 1 WLR 279, Leeds City Council v Price (“Price”) [2005] 1 WLR 1825 and First Secretary of State v Simmons [2005] EWCA Civ 1295). In addition there is imminently expected a further decision from the House of Lords, in respect of the appeal to the House in Price.

Some of these authorities relate to the different scenario, in which gypsies or travellers have acquired or own their own land, and have made planning applications, or are acting without planning permission or in breach of planning rules, in respect of the use of their own land as a caravan site. Others relate to the similar situation to that being dealt with here, namely where the travellers are trespassers on someone else’s land. The law has changed over the period, most materially in 1994 when the previous duty upon certain local authorities (not however even then upon district councils such as the Defendant) under Part II of the Caravan Sites Act 1968 to provide caravan sites was repealed: instead, by virtue of the Criminal Justice and Public Order Act 1984 the removal powers of local authorities in respect of unauthorised encampments were expanded.

Alongside that 1994 Act however, and subsequently, there has been a continuation, and most recently a plethora, of issued guidance by Government. The first such guidance was in the Circular 18/94 (Gypsy Sites Policy and Unauthorised Camping). There was then further guidance in 1998 “Managing Unauthorised Camping: A Good Practice Guide” issued by the then DETR and the Home Office. After various amendments in July 2000, a fresh document was issued by the ODPM and the Home Office, called “Guidance on Managing Unauthorised Camping” [“the 2004 Guidance”]. This has, as described above, been supplemented in the last few weeks by a series of documents including a new ODPM Circular 01/2006, “Planning for Gypsy and Traveller Caravan Sites”. This forms part of the new initiative by the ODPM which is, as Mr Stilitz explained, based upon two broad aims, which can be extracted from paragraph 12 of the 2006 Circular:

The new circulars and guidances (the other three being “Guide to Effective Use of Enforcement Powers Part I Unauthorised Encampments” (“the 2006 Guidance”), “Local Authorities and Gypsies and Travellers; Guide to Responsibilities and Powers” and “Gypsy and Traveller Accommodation Assessments: Draft Practice Guidance”) are of course entirely forward-looking. They are mainly dedicated towards setting out the new planning and other arrangements which the ODPM is introducing, by reference to the provisions of the Planning and Compulsory Purchase Act 2004 (“the 2004 Planning Act”), which are not yet fully in force, and which will, inter alia, encourage co-operation between local and regional authorities with regard to the planning and provision of caravan sites on a largely regional basis. Nor is the content of the February Guidances relevant to consider the approach or conduct of the parties in this case, save insofar as I might need to consider what would happen if there were now to be a fresh decision taken by this Council in relation to these Claimants, for example in the context of considering the exercise of the Court’s discretion in the event that there is some flaw in the present decision. However it has seemed to me to be important and valuable, from the point of view of both parties, travellers struggling with inadequate sites and local authorities unable to provide immediate answers, to know that there are plans in the pipeline.

So far as concerns the guidance which was in existence at the time, primarily being the 2004 Guidance, it of course created no legally enforceable duty to comply with it. Paragraph 1.5 says that it is “advisory”, but local authorities are “strongly advised to bear it in mind” and “reminded that the courts may consider it as a material consideration in eviction or other enforcement decisions”. Carnwath J in R v Hillingdon LBC ex p. McDonagh [1999] EHLR 169 at 182 described the correct approach as being that “the [1994] Circular is not directly applicable in law, but is an indication of matters which may be material for the purpose of the Wednesbury test.”He continued that “that language is very much echoed by Sedley J in [R v Lincolnshire CC ex p. Atkinson [1997] JPL 65]”. Thus a failure to take account of the Guidance would be very relevant in a Wednesbury test, as would be a failure to take into account considerations of common humanity (R v Brighton and Hove Council ex p. Marmont [1998] 30 HLR 1046 at 1049.

I turn then to the issue of legitimate expectation, and the history upon which the Claimants rely to seek to establish it. On 15 September 2003, an application was made to the Defendant Council by Mr McCarthy under the homelessness legislation (Part VII of the Housing Act 1996), and by letter of 26 September the Defendant accepted that he and his group were homeless, eligible for assistance, with a priority need for accommodation and not homeless intentionally, by reference to s184 of the 1996 Act. The letter made an offer of temporary accommodation in the following terms:

“The Council acknowledges that, as a member of the Travelling Community, it is likely that you will not be happy with temporary accommodation which is anything other than a serviced site which will allow you and your travelling companions to remain together.

However, the Council is unable to provide you with a site of that type. The Council is only able to offer you temporary accommodation of the type offered to most homeless applicants, that is accommodation in a ‘bed and breakfast’ hotel. The Council does acknowledge that case law has indicated that ‘bricks and mortar’ accommodation is not generally to be seen as suitable for members of the travelling community. The Council is also aware, however, of its obligation to all homeless applicants, and is required to balance the interests of all those to whom it owes a duty. The Council has done all it can to provide you with temporary accommodation of the type you would prefer. In the course of looking for potential sites, the Council has considered the open spaces within its ownership, but has had to conclude that none are appropriate for use as pitches for your caravans. The Council’s Traveller Officer Working Group has been established for some time, and has for several months been engaged in a search for a piece of land which can be established as a site for Travellers. Despite this exercise, no such site has yet been confirmed as appropriate, and although funds or grants for the purchase of land and the installation of services are available from Central Government, none have yet been allocated, and planning permission has not been sought or granted. ”

While the application was being considered, the Claimants were permitted to remain on an unauthorised position in Grattons Park. The temporary accommodation offered was, as explained in that letter, of ‘bricks and mortar’, and was refused. The Claimants were moved on from Grattons Park. They sought a statutory review of the suitability of the offer, which was refused by letter of 1 December 2003, when the panel, while recognising the Claimants’ cultural aversion to ‘bricks and mortar’ accommodation, confirmed the offer, on the basis that there was no site available in the borough, and the offer of ‘bricks and mortar’ temporary accommodation was the most suitable available at the time. The matter was further considered on an extra-statutory review, but once again only ‘bricks and mortar’ was offered by way of temporary accommodation in February 2004.

Mr Casey instructed Shelter Legal Services, who prepared a draft copy of a proposed judicial review application: there was also a statutory appeal under s204 of the 1996 Act, which was in the event not pursued. At this stage the Claimants were on an unauthorised site in Tilgate Park. The draft proceedings sought to prevent the Defendants from removing the Claimants from Tilgate Park, and to obtain a declaration that the offer of ‘bricks and mortar’ accommodation was unsuitable. Settlement negotiations were commenced by the Defendant by the sending of a letter dated 26 February 2004. Shelter’s response was as follows, by letter dated 27 February:

“Following our client’s meeting with Mr Redwood, the Director of Housing and Planning of your instructing authority, and following our telephone conversation of this morning we write to confirm the agreement reached between the parties.

Provided that your instructing authority takes the agreed steps set out below our clients have agreed to:

1.

Move from their existing pitch, and

2.

[Refrain] from issuing judicial review proceedings

The steps your client has agreed to take are

1.

To improve and enlarge the surface of the alternative temporary site in Tilgate Park (marked on the map attached to your letter of the 26^th February 2004) by putting down hardcore and gravel, so as to make the site ready for our clients to pitch on, by this Wednesday the 3^rd March 2004.

2.

To allow our clients to remain on this alternative temporary site, in Tilgate Park, until the proposed, longer term, tolerated site is made available to them. We understand that this is likely to be in about four weeks time.

3.

To allow our client to remain on this longer term tolerated site until the official site is available.

We would be grateful if you would periodically update us of progress made in respect of preparation of the longer term tolerated and the official sites.”

There was no reply to this letter: however the judicial review proceedings were not issued, the Claimants removed on 4 March 2004 to another position in Tilgate Park, the Defendants spent some £65,000 in laying a hard standing on a playing field in Langley Green, and the Claimants moved there on 7 April 2004. The position was set out in the Defendant’s letter of 5 May 2004:

“As you will be aware, your clients moved from the Golf Centre car park on 4 March 2004, into another, slightly less inappropriate, car park elsewhere in Tilgate Park. Your clients’ occupation of that site was tolerated by the Council on the basis that it was short term, and intended only as a “stop-gap” until a location more suitable for longer term toleration was identified.

Langley Green playing field was eventually identified as that “longer term” toleration site, and Mr Casey and his family moved to the playing field on 7 April 2004. The Council has agreed to tolerate your clients’ occupation of that defined part of the playing field for a reasonable period, but subject to compliance with site occupation conditions. A copy of the schedule of the current conditions is attached for your information. Conditions 12 and 13 were added recently following allegations about the behaviour of your clients’ animals made by neighbours of the site.

You are aware, I believe, that Dualit Limited, a neighbour of the Langley Green playing field, has issued an application for leave to apply for a judicial review. I have advised DMH Solicitors, acting for Dualit, that your clients should be considered as interested parties and I understand that you have been served with a copy of the application. The Council is acting in good faith in tolerating your clients’ unauthorised occupation of the Langley Green playing field, but is clearly in the hands of the court in respect of the judicial review application.”

The position at Langley Green playing field site did not work out well for the Claimants. Word got out to other travellers, and others moved in with whom the Claimants did not get on, and most of the Claimants’ group started to leave; in a short time there were only Mr Casey and two others left, and they too then decided to go ‘back on the road’. There is a dispute about precisely what was said between Mr Casey and Mr Redwood, the Defendant’s Director of Environment Housing, when they left. There is no doubt that they spoke. According to Mr Casey, Mr Redwood said that if they left the site in order to be rid of the other rough travellers, they would be allowed a site in the borough at a later stage. Mr Redwood says that in June 2004 he learned that several of the Claimants’ group had left voluntarily, and was told by Mr Casey that he too intended to leave, because several other families had entered into the land and were causing trouble: he did not in any way promise that if they returned to Crawley, the Defendant Council would find a site for them, or tolerate any encampment they might set up, but he did say that if they should subsequently find a site in Crawley which they considered suitable, the Council would be positive in considering whether such a site might be suitable for long term use, in which case planning permission would be necessary, or, if it were land owned by the Council, then whether short term toleration could be accepted. In any event, the disputed conversation with Mr Redwood is not what was relied upon by the Claimants in the subsequent Horsham County Court proceedings, to which I shall refer, nor relied upon in these proceedings. What is and was relied upon is the letter of 27 February 2004. On the departure of the Claimants, the Langley Green hard standing was removed, and it was, and remains, returned to active use as a playing field.

In February 2005, a group of the Claimants was again at Tilgate Park, and an agreement was reached, in a letter from the Defendant of 17 February, with accompanying conditions signed by Mr Michael Maughan, by which a short stay at that site was to be tolerated, but only until 10.00am on 18 March 2005, when the Claimants agreed to leave, which, then or soon thereafter, they did. On 2 May 2005, they occupied another unauthorised site at Rathlin Road, and it was this which led to the Horsham County Court proceedings, which were heard on 20 June 2005. The defence to the claim for possession was based upon an alleged promissory estoppel arising out of the letter of 27 February 2004. District Judge Taylor, in an impressively full extempore judgement commenced at 5.20pm, dismissed that defence, on the primary basis that he was satisfied that it had been overtaken by subsequent events, particularly the express agreement in February 2005, and he made a possession order.

Ms Kilroy, on behalf of the Claimants, submits that, notwithstanding the rejection of the promissory estoppel defence, she can rely upon the same matter by way of legitimate expectation in these public law proceedings. She submits that the 27 February letter founds a substantive legitimate expectation that the Defendants would provide a permanent site and/or would tolerate the Claimants on a site in its borough until an official site could be provided, and that the agreement set out in that letter did not relate to any particular site. I am entirely satisfied that no such legitimate expectation can be established or now relied upon:

The position moved on further. There was a meeting of 23 May 2005 between representatives of the Defendant Council, led by Mr Redwood, and five members of the Claimants’ group, described in the minutes, the accuracy of which have not been in issue, as “travellers’ representatives”, including Mr Casey. The minutes record that Mr Redwood explained that the purpose of the meeting was “to discuss relevant issues, to update on the current situation and to ascertain from the travellers their hopes and expectations”. They began by “stating their wish for a permanent site for their group, 14 or 15 families, around 19 caravans. They had vacated the [Langley Green] site the previous year voluntarily [sic]”. The following further paragraphs are material:

“3.

JR [Mr Redwood] advised that there was currently no land available for the creation of a permanent site, although two possible transit sites had been identified. In reply to a question from the travellers, they were advised that Crawley Borough Council would be unable to find a site specifically for their group, as land on any public site would have to be allocated fairly.

4.

John Ross asked why the meeting had been called, if no permanent site had been found. He stated that provision of a transit site would lead to more “hassle” and that a permanent site was needed for their group. Councillor Redmayne stated that the meeting had been called to find out what the travellers were looking for and what they were trying to achieve.

…

6.

JR re-emphasised that at present, CBC could not provide a permanent site. If, however, the travellers, through a Planning Consultant/Solicitor, were able to find a suitable private site, then CBC could consider it. JR said that he had spoken to Michael Cox, a Planning Consultant two years ago about finding an appropriate site but had heard nothing since.

7.

Councillor Redmayne advised that currently, local residents were becoming intolerant, and it is therefore necessary to find a solution. He confirmed the Council had been trying to find sites, and stated that some of the travellers’ actions did not endear them to the local community. It was important to find a way of working together to find a way forward.

8.

If, following the needs assessment, the Council were to decide to provide a permanent residential site, it would mean looking outside the Borough, which would take a long time, e.g. three years or more, and this would be uncertain. If the travellers find their own site, it might be possible to provide for themselves within a year. However, in the meantime, there was nothing further that the Council could do.

…

10.

JR emphasised the importance of consulting with local people on the two possible transit sites: at Rowley Farm and at the old gasholder site. Currently owned by English Partnerships, these sites are ‘blighted’ with regard to development as they are affected by aircraft noise. It was acknowledged that ‘ground’ work would be required to avoid opposition, and that residents and neighbouring businesses would need to be persuaded that this would work. It would also be necessary to persuade English Partnerships that the Council could be trusted to manage the site.

11.

In reply to a question about what would happen in the meantime, the travellers were advised that they would be asked to leave if they broke into sites and occupied them unlawfully as a Trespasser. There were rules and laws which would have to be complied with.

12.

JR advised that a Consultant had been paid a large sum of money to look at all the options. From a total of 28 sites, only the two potential transit sites … were found to be suitable. Councillor Smith expressed a willingness to commit some time to go through the Consultant’s report, to explain why the Consultants had felt that the remaining sites were unsuitable. She also advised that CBC had to follow guidelines set down the by the Office of the Deputy Prime Minister, although she understood that this may not be important to travellers. It was stated that these were good sites, apart from the aircraft noise, and that there are no residential developments in the area due to the proximity of the flight path. If the Council decided to accept either of these transit sites, the earliest they would be available is July 2006.

…

15.

Councillor Redmayne reiterated that things had to change. It was impossible to have travellers moving around the town in this way. John Ross advised that although they would be going to Court, they did not want more sites with concrete blocks and barriers, because it caused too many arguments. He stated that the solution would be that his group find themselves a piece of land.”

So far as concerns the Claimants, Mr McCarthy made on 16 May 2005 what he called a “joint updated Homeless Application for a camp site, not bricks and mortar”. This referred to Langley Green only as part of the history and in this way: “Then the Council asked us to move to Langley Green, but the lack of a height barrier at Langley Green in 2004 … meant that uninvited rough travellers moved in and the Council evicted everyone, but it would be unjust to blame us for what they did.” The Defendant responded, by letter dated 20 May 2005 confirming that the original homeless application of 15 September 2003 had been “reinstated and updated to include the list of applicants as set out in your letter of 16 May 2005 … from the original registration date of 15 September 2003”. The offer of bricks and mortar accommodation was repeated, together with the offer to arrange storage for the caravans if so advised: and it was confirmed by letter dated 23 August 2005 to Mr Casey that this bricks and mortar offer would involve bed and breakfast accommodation for a maximum of six weeks after which “the Council would arrange alternative temporary accommodation which would be in the form of bricks and mortar as this authority does not possess any alternatives at the present time.”

The efforts by the Council to find possible permanent caravan sites for gypsies and travellers have continued. Some of the story has been set out in the evidence, although it is not directly relevant to the decision in this case. I have seen two detailed reports to the Defendant’s Executive, dated 13 July and 14 December 2005, headed up respectively “Travellers Needs Assessment” and “Traveller Site Provision”, and I have also been shown the very detailed report by Chartered Town Planners of September 2004 into the 28 possible sites referred to at the meeting of 23 May 2005 (paragraph 12); but the only two possible sites identified were eventually rejected after a meeting of the full Council on 11 January and of the Executive on 18 January 2006, inter alia in the light of opposition from the English Partnerships. Mr Redwood has confirmed that the Defendant Council remains committed to a programme to bring forward the Local Development Framework, which would make proper provision for travellers, which is now fortified by the new legislation (s225 of the Housing Act 2004), not yet in force but due to be brought into force later this year, and the new Guidance from the ODPM which will accompany it; by which efforts to establish proper provision for travellers and gypsies will be co-ordinated and provided at a regional level within the new Regional Spatial Strategy, and under the aegis of the new Regional Planning Body, as part of the new local development schemes under the 2004 Planning Act, which came into force on 28 September 2004.

I am entirely satisfied that the Claimants cannot establish a legitimate expectation to be provided a site by the Defendant Council or to be allowed to remain on a site which they have occupied as trespassers. The facts here are totally different from the case relied on by Ms Kilroy of R v Brent LBC ex p. McDonagh [1989] 21 HLR 494, where the Council had promised that “no action would be taken to evict you from Fryent County Park” (p499), but it was.

In this case the agreement or arrangement of February 2004 was limited to Langley Green, which was occupied and then consensually vacated and is no longer available, and any expectation is, in any event, long overtaken by subsequent events. I am satisfied it can have no application to allowing the Claimants to remain where they are at present at Dalewood. At best it could show that the Defendant has in the past been willing to consider the possibility of other sites at which short-term toleration could be permitted. There are, on the evidence, now no such sites. Mr Redwood has confirmed, as did Mr Browning in relation to his decision with regard to the County Court proceedings now the subject of challenge, and the various bodies involved in considering the Claimants’ homelessness applications, that no acceptable sites for tolerating even short-term encampments exist at present within the borough. Notwithstanding the invitation by the Defendant to the Claimants to make suggestions as to possible temporary sites within the Defendant’s ownership, only one has been identified by Mr Casey, being the site of a demolished school, the unsuitability of which has been explained by Mr Redwood, who states that there has been an exhaustive search of sites. On the evidence I am satisfied that no site is available. In any event, as I have indicated, I am satisfied that no legitimate expectation giving any basis for challenge by these Claimants in these proceedings to the decision to seek and enforce possession with regard to these sites has been established.

The issue as to whether Article 8 of the European Commission on Human Rights applies must be addressed, although a definitive conclusion cannot be reached until after the decision, reserved after a hearing in December, of the House of Lords in Price. For reasons that I shall explain, it has not been thought appropriate or necessary by any of the parties, or by me, for my judgment to await that decision. What the House of Lords is being invited to do in Price, although the facts, as will be seen, are quite different, is to overrule or not follow its own decision in Harrow LBC v Qazi [2004] 1 AC 983, which the Court of Appeal in Price, albeit following the House of Lords decision in Qazi on the grounds of stare decisis, concluded to be incompatible with the European Court of Human Rights decision in Connors.

In the light of the judgment of the Court of Appeal given by Lord Phillips in Price in that regard, it is suggested to be likely that the House of Lords may decide not to follow its previous decision, in the light of the subsequent decision in Connors. That is the approach which the House of Lords was urged to adopt, as I am informed by Mr Stilitz, Counsel for the OPDM, not only by Counsel for the Defendants in Price (who were gypsies, trespassing on an unauthorised site on recreational land) but also by the ODPM, which intervened at the House of Lords stage. District Judge Taylor, in the County Court proceedings to which I have referred in June 2005, was persuaded and prepared to assume the availability of an Article 8 argument, notwithstanding Qazi and the Court of Appeal decision in Price, in the light of Connors.

The facts in Qazi had nothing to do with gypsies or travellers. Qazi concerned the termination by the Harrow Council of a secure tenancy of a house in accordance with contractual and domestic statutory law, which the Defendant had lived in as a joint tenant with his wife (who had subsequently moved out), since 1992. The House of Lords found by a majority that Article 8 could not be relied upon to defeat proprietary or contractual rights to possession, and that domestic law gave the housing authority an unqualified right to immediate possession once service of the notice to quit terminated a tenancy. Connors however was a case in which gypsies had a tenancy of a plot on an authorised caravan site, which tenancy was terminated, in accordance with its terms, by the relevant council, which then sought possession, after the gypsies had occupyed a plot on the site for some 15 years (with a break of 18 months in 1997-8). The European Court of Human Rights concluded that

“84.

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 gypsies’ way of life”

and that Article 8 was applicable to the occupants, when possession was sought against them. The issue in Connors was in essence as to the whole system whereby in the United Kingdom there was no security of tenure for those in local authority gypsy sites. Nevertheless it was concluded by the Court of Appeal in Price that the finding in Connors that Article 8 applied, even where the local authority had an undisputed immediate right to possession of the land, was inconsistent with Qazi.

However, as both the Defendant Council and the ODPM firmly pointed out before me, the facts in both Qazi and Connors are quite different from those in Price or in this case. In both the former cases, the occupants had been in occupation for many years, and plainly had what Lord Bingham, in his dissenting speech in Qazi, referred to (at paragraph 10) as “sufficient continuing links”, such as to make the place their home (by reference to a test formulated in Gillow v UK [1986] 11 EHRR 335), a definition also referred to by Lord Hope (paragraph 68) and Lord Millett (paragraph 98), among the majority. In Price and in this case, however, the occupants are trespassers with no sufficient or continuing links, indeed no connection, with the land the possession of which the landowner is and was seeking: indeed in this case the Claimants had only been on the relevant land for a day or two.

In allowing for the possibility that Article 8 could apply in the case of trespassers, Lord Phillips MR raised the following questions in his judgment in Price:

“34.

Had we accepted [Counsel’s] invitation to depart from … Qazi … we would have had to consider some difficult questions. Where gypsies trespass on the land of a local authority without leave or licence, can seeking their removal ever constitute an interference with their Article 8 rights that is not justified under Article 8(2)? If so, can their Article 8 rights be raised as a defence to the proprietary claim for possession rather than for proceedings for judicial review?”

There is therefore firmly for consideration by the House of Lords whether an Article 8 defence to possession proceedings can arise at all where there is no sufficient or continuing link between a trespasser and the land whose possession is sought by the landowner, particularly where, as here, the trespasser has only just come to the land. Lord Phillips’ words suggest that such may be the case, but the contrary can be deduced from the judgment of the European Court of Human Rights in Chapman, a case in which the Applicant was a gypsy who lived with her family in a caravan on her own land, whose applications for planning permission were refused such that enforcement notices were issued, with which she refused to comply:

“98.

The court does not … accept the argument that because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the Applicant gypsy family to occupy land where they wish in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The court is not convinced, despite the undoubted evolution that has taken place in both international law … and domestic legislations in regard to protection on minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy on States.

99.

It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many person who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.”

If, however, an Article 8 defence were to be available, the ODPM and the Defendants submit that it would only be in the most exceptional case that the landowner recovering its own land against a very recent trespasser would be unable to justify any interference under Article 8(2), whereby:

“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.”

The way that the case is put by Ms Kilroy on the Claimants’ behalf is by reference to what she calls the “other limbs” of Article 8. Article 8(1) reads as follows:

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

She submits that the Defendants, by virtue of their having sufficient links to the locality to have had their homelessness applications accepted by the Council, and in the light of the previous history of continuous evictions, many of them in the Defendant Council’s area, can claim, as vulnerable travellers, that further eviction would be an interference with their “private and family life”, even if not with their home. She would put that on the basis that, albeit that there is no breaking up of the family by virtue of an eviction, nevertheless, together with the inevitable disruption to the children’s education, it would amount, as she submits in paragraph 66 of her skeleton argument, to an intervention in the Claimants’ private or family life, and such that their search for a home is being impeded. She refers to the judgment of the Court in Chapman in paragraphs 73-4 (although it must be said that this was said in relation to an applicant who, for reasons described above, was in a very different situation from these Claimants, being in occupation of her own land):

“73.

The Court considers that the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the Applicants’ stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition.

74.

The Court finds therefore that the applicant’s right to respect for her private life, family life and home are an issue in the present case.”

She also refers to paragraph 68 of the Court’s judgment in Connors, although that simply records in very general terms an agreement or concession of the parties in that case and does not appear to me to assist: and, by analogy, to the judgment of the Court in Niemietz v Germany 16 EHRR 97, a case relating to a lawyer whose officers were searched by the German Police, and asserted a right to respect for his home and correspondence as guaranteed by Article 8. The facts and circumstances are therefore very different, but in relation to a discussion of the confidential relationship existing between lawyer and client the Court said at paragraph 29:

“Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings”

- a very general proposition from which Ms Kilroy seeks to draw some assistance.

However I note that in another traveller case, R v Hillingdon LBC ex p. Ward, a case involving trespass by a traveller onto an authorised travellers’ encampment, Stanley Burnton J appears to have accepted (it is not clear whether the matter was fully argued) the argument now being put forward by Ms Kilroy when he said, at paragraph 29:

“So far as Article 8 is concerned, I do not think that Plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be ‘his home’, but his private and family life are affected by the Council’s decision. It is therefore necessary to consider whether the Council’s decision satisfy the requirements of Article 8.2.”

For the purposes of this judgment I will assume that there is at least some interference with Article 8 rights, but it is plain that, as the OPDM submitted, if there is such interference it is very much at the lower end of the spectrum, given the powerful case for the entitlement of a local authority landowner to enforce its ownership rights and its planning duties. Mr Stilitz persuasively set out the ODPM’s submissions, on the assumption of the existence of Article 8 rights, in his skeleton argument:

“54.3

In nearly all cases, the domestic law of property and contract will provide a complete answer to a defence based on Article 8(1). Parliament has chosen to recognise (or grant) property rights and to provide for security of tenure for individuals in a wide range of circumstances. None of those circumstances obtain in a case, such as the present, where an individual has entered onto local authority land without licence or consent. The scheme of property rights and protection of tenure as established by Parliament in particular areas represents the general balance which Parliament considers should be struck between the usual competing interests in those areas. Where: (i) many competing interests may be involved which the legislature is best placed to assess and evaluate (e.g. weighing the general needs of persons in the area of a local authority); (ii) the operation of a legal regime is part of national strategy in relation to economic and social issues (which is typically the case in relation to the protection of the environment – see Chapman v UK at [92]); and (iii) it is important in the interests of legal certainty (a value of particular importance in the context of property rights) and to avoid arbitrary differences in approach as between similar cases in different parts of the country, that a single coherent set of rules be promulgated and applied in a fashion which is reasonably clear and predictable, the legislature is to be accorded a wide margin of appreciation/discretionary area of judgment in setting the applicable rules which strike the relevant balance for the purposes of Article 8(2). Accordingly, there should be a strong presumption that the balance as struck by the general law as endorsed or laid down by the legislature should be respected and applied by the Courts, and only in an exceptional case where there is shown to be a particularly compelling claim for an individual’s interests under Article 8 to trump the general interest of the community reflected in the standard legal rules should the Courts decline to enforce the general law.

54.4

Further, local authorities have wide-ranging duties and responsibilities connected to their use of publicly-owned land, be it for housing or for their other functions, including the provision of facilities for education and recreation, promoting health and protecting the environment. In deciding how their land should be used, local authorities must balance the competing rights and interests of all those who live or are present in their area, against the background of their wide-ranging duties. In Buckley … the ECtHR held (at [75]) that national authorities should in principle enjoy a wide margin of appreciation “in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies”. By analogy, it is submitted that the Court should generally respect the choice made by a local authority which decides to exercise its legal rights to seek possession of land which it owns which is occupied by trespassers, since in so acting the local authority will be acting after itself taking into account the range of local factors which it, rather than the Court, is best placed to assess and which it, rather than the Court, has the constitutional responsibility for assessing and acting upon;

54.5

Given that the consequence of refusing possession to a local authority would be to defeat the authority’s otherwise unqualified property rights, and hence to fetter the use of publicly-owned land, only in the most extreme and sympathetic circumstances should a Court determine that, on the specific facts of the individual case, the local authority’s property rights should be outweighed by the Article 8 rights of a trespasser in occupation of its land.

55.

As already noted, the ECtHR in Connors commented that the vulnerable position of the applicant as a gypsy required special consideration to be given to his needs, and imposed positive obligations on Contracting States by virtue of Article 8: see also Chapman v UK, supra, at [96]. Nonetheless, it is submitted that it does not follow from the fact that such a limited positive obligation may exist that a gypsy will automatically or even usually have an Article 8 defence to possession proceedings brought by a public landowner. In particular, it is submitted that general considerations as to the position of gypsies should not ordinarily provide a defence to possession proceedings brought against individuals who have occupied local authority land without licence or consent. Article 8 does not confer a right to be provided with a home, either generally, or in a particular location: see Chapman v UK at [99].

56.

To hold that the particular position of gypsies provided a defence to possession proceedings would be, in effect, to give gypsies a right to occupy any piece of local authority land as they saw fit, wherever they might seek to justify their action by reference to general failures on the part of the local authority in question (or the State more generally) to provide adequate sites for gypsies in the locality. Such a de facto right of occupation would apply irrespective of the nature, location and use of the land in question. The consequences would be to undermine the control which local authorities should exercise over their land, in the public interest. For example, a local authority would have no recourse if a group of gypsies or travellers set up camp in a school playground, or in an area of outstanding natural beauty within the Green Belt. It is submitted that the right to respect for the home under Article 8 of the ECHR cannot give rise to a general right on the part of any particular group or groups in society to occupy public land in this way. By analogy, the Court of Appeal has held that an absence of alternative gypsy sites in a Green Belt area does not entail that a policy of refusing planning permission for gypsy caravan sites in the Green Belt should be overridden in circumstances where a gypsy had been subject to an enforcement notice after having used his land as a caravan site without planning permission: see … Simmons … per Carnwath LJ at [30] and [32], and Chapman v UK, supra, at [98]. The proper (and Convention compatible) answer to the problems which gypsies face in finding caravan sites in some parts of the country (including the Defendant’s area) is that being implemented by the Government through the Housing Act 2004, the [2004 Planning Act] and the 2006 Circular, namely a strategy of locating appropriate places for such sites through the regional and local planning process, which will make appropriate provision of land for gypsies and travellers in a manner and at locations which best reconcile their special interests with the myriad of other competing interests which the planning process is effective to identify and take into account.

57.

By contrast, it would be wholly contrary to the proper allocation and use of land within a local authority’s area for the authority to be prevented from evicting gypsies from unauthorised sites. Far from curing the real problem of inadequate suitable sites being available, this would entail that local authority land would be being used inappropriately and in a manner prejudicial to the rights of other people within the area. Moreover, the persistence of unauthorised sites may have a detrimental impact on all within the community by engendered tension and hostility towards gypsies and travellers.

58.

The unavailability of alternative sites would be likely to be a relevant consideration in the Court’s consideration of whether an Article 8 defence to the possession proceedings should succeed. However, given the numerous factors set out above telling against abrogating the property rights of the local authority, it is submitted that the lack of such alternative sites ought not generally to lead to possession being refused.”

He concludes as follows:

“59.1.

A local authority should not be prevented from seeking or obtaining possession of its land from gypsies or travellers who are trespassing in circumstances where there are no alternative sites available in its area. Local authorities should not be prevented from using and managing their own land, save in wholly exceptional circumstances where their property rights and the rights of others are outweighed by the Article 8(1) rights of the gypsies or travellers in question.”

Ms Henderson for the Defendant similarly submitted that only in exceptional circumstances will the courts (i) interfere with a decision of such authority that an encampment is in a place unsuitable for continued occupation (this by reference to the European Court of Human Rights judgments in Buckley at paragraph 75 and Chapman at page 92) and (ii) interfere with a decision not to tolerate short term occupation of such a site.

Ms Kilroy does not accept that a test of exceptional circumstances is appropriate, a concept which appears to be drawn from immigration law, where the Court of Appeal has recently made clear that the Government’s enforcement of a strict immigration policy will amount to an Article 8(2) defence save in “exceptional circumstances” (Huang v Secretary of State for the Home Department [2006] QB 1). She submits that a balancing act must be carried out in each case. I shall be dealing with the balancing act on the facts of this case, and shall return later to my conclusions in respect of an assumed impact of Article 8.

The options available to the Defendant Council were as follows:

In fact, as I have found, there was no other site, so that Option 3 was not available: and Option 2, if adopted, would thus have been likely to have to become long-term.

In the exercise of its balancing act, the Defendant was likely to have acted Wednesbury unreasonably if it did not take account of the 2004 Guidance. I am satisfied it did. Ms Kilroy pointed out, and relied upon, what I am satisfied was a muddle in the Defendant’s witness statements, by way of reference to the Guidance. The phraseology of reference to the Guidance adopted by the Council’s witnesses in their statements made it seem as though reference was being made to the 1998 Guidance. However I am entirely satisfied that, however described, the Defendants were looking at the right, 2004, Guidance:

On the basis that the Defendant did use the 2004 Guidance, the issue to be considered is whether the Defendant has taken into account the matters in the Guidance when it made its decision, not whether it adopted to the letter the procedure discussed or recommended in the Guidance. As discussed in paragraph 22 above, the procedures or processes discussed or recommended in the Guidance are not statutory: they are simply intended to achieve a proper consideration by a relevant Council.

The first issue to be considered is the case put forward by Ms Kilroy that in fact the Defendant Council had a closed mind: that they had a practice of automatic, or almost automatic, eviction of trespassing travellers, and of not considering Options 2 and 3. This submission is based upon the following:

I am satisfied that this case of a closed mind and of a policy of automatic or almost automatic eviction is unsustainable on the evidence, and I do not accept it:

In those circumstances I am satisfied there is no basis upon which to conclude, or therefore declare, that there is an unlawful “policy or practice of continual eviction of the Claimants”, such as is alleged.

A number of factors in the ‘balancing act’ prior to a decision to recover possession of the sites has been canvassed. They are not all the factors which might arise, as can be seen from the list referred to in paragraph 55(i) above, as set out in paragraph 5.15 of the December 2000 Review: for example, the size of the group did not arise as an issue in this case, at least when the consideration of possession proceedings was first given. I shall consider each of the factors in issue. The relevance of the consideration that has to be given is as follows:

The Council decided that the two sites were not suitable, even for temporary occupation. It is clear from authority that the Council had a wide margin of appreciation in this regard. The European Court of Human Rights pointed out in Chapman at paragraph 92 that:

“The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the Court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because planning inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the Court to weigh the arguments.”

See also Marmont, where Tucker J, at 1049, accepted that there is a wide margin of appreciation where a local authority is considering whether to issue proceedings against trespassers on its own land.

It is clear however that, in this regard, in addressing the 2004 Guidance (as I am satisfied it did, as discussed in paragraph 52 above), the Council made a poor fist of it. The relevant paragraph of the Guidance is as follows:

“Unacceptable Encampment Locations

5.4

Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampment will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risks, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses. The list in Box 15 of sites where an unauthorised encampment would not normally be acceptable is illustrative only and it is not intended to be exhaustive.”

There then follows Box 15, which is headed up, “Some Examples of Types of Sites where Unauthorised Camping would Normally be Unacceptable”. Ten examples are then listed, of which the third, sixth, ninth and tenth feature in these proceedings. It is very clear that the ten examples are not intended to be exhaustive. Against this background, I turn to what was said of the two sites.

Dalewood

In the standard UE assessment form, the first section relates to the site, and, after space for a description, the following section is headed up “Site Assessment”. The first question, paragraph 1, to which I have referred in paragraph 52(ii) above, is “Is the site on the list of those where “unauthorised camping would normally be considered unacceptable” laid out in the ODPM/Home Office Guidance”? The ten categories in Box 15 are then listed, with an opportunity for Y for yes or N for no. As completed, there is a Y after the tenth “Verges of busy roads where fast traffic is a danger to travellers’ children”. Upon his further consideration, Mr Browning, on 22 September, concluded that the land could be categorised within the ninth example (slightly adapted from Box 15 itself in the standard form) “Greens or other open areas within residential areas”,as being an“other open area within a residential area”. In a subsequent witness statement in this action of 16 January 2006, Mr Browning has described the land as being “in the close proximity of a ‘green or other open area within residential areas’”. He also states “additionally the arrival of the claimants consisting of 17 caravans and their associated vehicles has in itself made a relatively quite residential area hazardous, and could be classified now as ‘verges of busy roads where fast traffic is a danger to travellers’ children’”.

Ms Kilroy, not surprisingly, criticises this shifting position. As to the last statements, she submits, by reference to R v Westminster City Council ex p. Ermakov [1996] 2 AER 302, that the Defendant must be limited to the ‘reasons’ that it gave at the time of the relevant decisions, although she accepts that this is not a ‘giving of reasons’ case.

The elaborate effort to fit the site into Box 15, with its inevitable convolutions, was not very sensible, and may be a product of the standard form which has been used, which, in the relevant paragraph to which I have referred, leaves no scope for any different category, which it plainly ought to do, given that the ten categories were not meant to be exhaustive. By reference to the tenth category, Ms Henderson submits that the site plainly is on the verge of a narrow (but not necessarily busy) road, where there is traffic, which is unlikely to be fast, at least by comparison with a highway, and which could cause a danger to travellers’ children, who numbered 29 in the Travellers’ Audit on 21 September. I am however satisfied that Box 15 is not intended to be exhaustive, and that the important question is as to the nature of the site and the use of it, and the reasonableness of the decision made. I have described the site in paragraph 2 above. In paragraph 6(ii) I set out some quotations from the UE assessment form, leaving aside the standard form paragraph 1, and, in particular, the conclusions of the assessment form. Mr Browning based his decision upon that recommendation by Ms Glemas and his own knowledge of the grass verge and the proximity to the housing area and the only road into it. I do not consider that such a decision that occupation was not tolerable was Wednesbury unreasonable, notwithstanding the miscategorisation of the site as falling within a given category of Box 15.

Bewbush

There are two Box 15 categories signified in paragraph 1 of the UE assessment form, the third, “urban parks” and the sixth, “recreation grounds or public playing fields”. Further reliance is also placed by Mr Browning in his January witness statement on the other open area category as above. The real criticism of the approach to the site in the UE assessment form by Ms Kilroy is by reference to the further statements in that form. First in answer to Question 3 “Does the occupation of the site prevent or unreasonably interfere with legitimate use of the land by others?”, the answer is given: “Yes. Travellers’ caravans and associated vehicles are outside the playing fields car park, which is preventing members of the public and users of the playing fields from using the facility which also has a children’s playground located within it”. There are then the two following statements contained in various places with the Conclusions section:

“It is not thought appropriate to tolerate this group because the encampment is preventing local people from using the facility.”

“The encampment cannot be tolerated. Users of the car park are being deterred from using it as they would customarily because of the travellers’ occupation.”

She points out that it was in fact the Council who prevented the use of the car park by placing the bollards at its entrance, which also prevented the travellers from siting their encampment in the car park rather than at its entrance: it was thus the Council’s own act which prevented the use of the car park. I am entirely satisfied that this is an unjustified criticism. It is correct that the Council had placed the bollards at the entrance to the car park in order to prevent the car park being used for an unauthorised encampment. The bollards are however, from the photographs, plainly removable, and I am satisfied that it was, as Mr Browning concluded, the presence of the Claimants which was inhibiting the proper authorised use of the playing fields and the car park. In relation to Bewbush also, I am satisfied that, whether or not the site falls squarely within one of the categories in Box 15, Mr Browning’s conclusion, that occupation could not be tolerated, cannot be challenged.

The Defendant was not itself the relevant body for the purpose of welfare or education. I have set out, in paragraphs 6 to 8 above, the steps the Defendant took. There does not seem to be specific criticism of those steps per se. What is criticised is that the Defendant did not have, at any rate until the further visits to the two sites on 21 September, sufficient information. Mr Nowosielski states that he was only able to record the information with which he was provided, and, although he endeavoured to ascertain at Bewbush whether any of the children were enrolled at the local schools, he was not so informed. It is also clear that the enquiry forms themselves specifically provide for the giving of information, not only as to the individual spoken to, but by those individuals as to any information about the members of the group of which they form part, which is obviously of importance if, as is likely, not all of the group are present on the visit: and, given the group nature of the encampment, this is not as fruitless an exercise as would be, for example, an attempt to find out information from neighbours in a ‘bricks and mortar’ situation. It is also the case that, as per paragraph 5.11 of the 2004 Guidance ‘speed of response is key to managing unauthorised encampments so as to minimise disruption”: and it is recognised by Laws LJ in R (Khatun) v Newham LBC [2005] QB 37 at 57 where “a more intensive fact-gathering exercise would or might well have picked up the problems” that:

“The court has no role to impose what it perceives as ideal solutions under cover of the Wednesbury principles application. And the Council is entitled – I would incline to say obliged – to adopt procedures which balance the interests of the individual applicant, who has no relevant rights but what the statute gives him, with the general interest in the scheme’s efficient administration, which should so far as possible be economic and expeditious.”

However, the 2004 Guidance does recommend “some form of effective welfare enquiry” (paragraph 5.7) and “thorough welfare enquiries” (paragraph 5.9): though insofar as the Guidance is recommending what should be done “ideally” (paragraph 5.12), that would, in the light of Khatun, not form the basis of legitimate criticism. On the second visit, on 21 September, Traveller’s Audit forms were completed: and their contents are far more satisfactory in terms of information obtained and recorded with regard to the personal details of the travellers. No explanation is given as to why they were not used or completed on the first, but only on the second visit, and without such explanation I cannot see why they should not have been.

The fact is however, that by the 22 September, if not by the time of issue of the proceedings, all the information was in, and, in any event, even prior to the proceedings, welfare enquiries had been carried out upon the basis of the information then available, and, in particular, enquiries at the relevant school, education office and child care help desk. The significant point once again, is not as to the exact process, but as to the reasonableness of the steps taken and, in particular, the reasonableness of the consideration. Nothing was disclosed on the first visit which raised a “particular welfare need” (see paragraph 5.8 of the Guidance) in respect of any member of the group and, as it happens, even when the further visit was carried out, that remained the case, save for the disclosure of the expectant motherhood of one of the travellers. The approach now is enshrined in the new 2006 Guidance under the heading “Do the unauthorised campers present welfare issues?” which reads as follows:

“65.

Local authority officers should conduct thorough welfare enquiries when a new encampment of Gypsies and Travellers arrives in the area. Where pressing needs for particular services are identified as part of the local authority’s enquiries, relevant departments or external agencies should be contacted in order to meet these needs as appropriate (health services, social services, housing departments and so on).

66.

If necessary, removal of the encampment could be delayed while urgent welfare needs are addressed (unless, as above, the site on which the unauthorised campers are using is particularly sensitive or hazardous, in which case the unauthorised campers should be asked to relocate to a more appropriate location in the vicinity). Further, it may be possible to negotiate a date for the encampment to leave it, for instance, the Gypsies and Travellers have camped in the vicinity for a specific purpose; in order to attend an outpatient’s appointment at the local hospital for example.”

This was not in force at the time, but it seems to me that the same principles would form the basis of the consideration. Children of school age are required to attend school, but that would not enable trespassers to remain on a site per se – unless, for example, it were the case that a child was, at that time, sitting a particularly important examination at the local school. The disruption in education is caused by the continual moving on and being moved on, and the shortage of sites, not (absent particular circumstances) by eviction from one particular site.

The obligation of the Defendant Council to address urgent needs, which might be prejudiced by immediate eviction, is obvious, and can be addressed as part of “common humanity”. I accept the submission of Mr Stilitz for the ODPM that the purpose of the welfare checks is to identify and address any urgent needs which might (as appropriate) qualify as ‘exceptional circumstances’ for the purpose of Article 8.

The procedure and the paperwork here was far from perfect, but I am satisfied that, at the first, and certainly at the second, decision stage, Mr Browning did have before him all material facts known or reasonably available at the Council, and did take account of them. It was not then necessary for him to take account of any obligations pursuant to ss10 and 11 of the Children Act 2004. Ms Kilroy alleged, in her claim form in this action (and pursued right through to her Skeleton Argument), that the Defendant Council had obligations, which it was obliged to take into account, under the Children Act 1989. Mr Browning said by way of response that he had made his decision in accordance with that Act. It is now, however, common ground, that in fact the 1989 Act did not apply to the Defendant. However, I am satisfied that Mr Browning did, so far as the facts, as opposed to the law, are concerned, take into account any issues raised by the existence of the children on the unauthorised encampment. I have already mentioned such enquiries as were made with regard to the children, and the absence of any special circumstances relating to their education. But, in any event, it would appear to me reasonable to have concluded that the Dalewood grass verge site was, on any basis, not an appropriate place in which what, by 22 September, were 29 children should remain.

It is plain that if complaints were to be relied upon by the Defendant, both the Defendant’s own policy (see paragraph 5.15 of the December 2000 Review, as quoted in paragraph 55(i) above) and paragraph 5.25 of the 2004 Guidance would require the validity of such complaints to be examined. There was plainly no time to do so, or to have done so, in the circumstances. What Mr Browning relied upon is clear from his evidence and the UE assessment form, as Ms Henderson submits, namely the existence of inevitable nuisance (see the same paragraph 5.15) caused to others by the presence, in the one case (Dalewood), of the caravans on the grass verge leading up to and ten metres from the entrance of the housing estate and, in the other (Bewbush), the inhibition of the use of the playing fields. That was, in my judgment, a reasonable consideration.

This is recorded in the Dalewood UE assessment form. In fact there were two limbs to this argument which were before me:

Eviction History and Evictability

Ms Kilroy submits that it was a material consideration, which the Defendant ought and failed to take into account, that the Claimants had continuously been evicted, including, on very many occasions since 1993, by the Defendant Council, and that the Defendant’s ability to take that into account was hampered by the absence of sufficient records of such evictions.

Ms Henderson submits that that is not, or not in a normal case, a material consideration. Plainly it would be relevant if any prior event or events had given rise to a legitimate expectation of occupation, either of a particular plot or site, or of toleration on any site, but I have already found that that was not the case.

I am entirely satisfied that the fact that the Claimants had been evicted in the past and are liable to be evicted from elsewhere in the future gives rise to no entitlement to occupation: that the same applies to planning considerations is clear from Simmons at paragraphs 29 to 31 per Carnwath LJ. What it does is emphasise:

As there is no duty upon the Defendant to provide a site, including an alternative site, there can be no breach of any such duty. What it is reasonable for it to do, in accordance with the Guidance, is to give reasonable consideration to the Options. They must reasonably consider whether the Claimants can stay, even on a temporary basis (Option 2): in this case, as there was no alternative site, there was not a question of a very short-term stay. As to the consideration of an alternative site on a ‘temporary’ basis (which, given the absence of any permanent sites, would itself not have been very temporary) (Option 3), that option could not be taken up, as there was no such site.

I accept the submissions of Mr Stilitz that the absence of an alternative site, either permanent or temporary, does not bar a local authority from obtaining possession against a trespasser on an unauthorised site where its decision to do so is otherwise reasonable.

The Homelessness Application

It is not clear quite what the relevance of this is said to be. Ms Kilroy understandably points out, as set out in paragraph 7 above, that, according to the Bewbush UE assessment form, the group of travellers was not known to the Council, such that their homelessness application must also have been unknown. It was, however, known, so far as the bulk of the travellers who are now Claimants is concerned, i.e. those at Dalewood, and both Messrs Kirby and Browning, in any event, say that the latter was reminded of the application of 16 May 2005. But what is the significance of the homelessness application? It could, in other circumstances, be suggested that knowledge of housing applications by those whom it was proposed to evict should lead either to (i) proceeding with the eviction with the less concern, because it was known that temporary accommodation would thus be immediately available to those evicted or (ii) consideration of some temporary extension of occupation, until such time as they could be accommodated on the housing list. But that cannot be here suggested, as the Claimants had at all times made quite clear to the Defendant Council, as appears from the history set out in paragraphs 23 to 31 above, that they would not accept bricks and mortar. If it is merely suggested that the existence of the application and the acceptance of the Defendant’s housing duty shows that the Claimants had links with the locality, that would not be sufficient of itself to impose a duty to find a caravan site or allow the Claimants to remain on an unauthorised site, for the reasons I have already set out above: as Ms Henderson submitted, such might be relevant in giving priority to the Claimants if a site were available, but could be of no further relevance.

The suggestion appears to be that knowledge, and taking into account, of the existence of the homelessness application would put the Defendant Council on notice that it owed a housing duty to the Claimants and that the Claimants would not accept bricks and mortar, so that therefore its duty to accommodate would run to the provision of accommodation on a site. Thus what could not be achieved simply by asserting a duty to tolerate as a result of the Claimants being vulnerable travellers (which I have rejected) could be achieved by reference to the existence of the homelessness application, in which a case was being put forward of an entitlement to reject bricks and mortar and insist on both temporary and permanent caravan site accommodation. This of course begs the question of the outcome of any such application or review or appeal. However:

In my judgment the Defendant knew the facts that no other site was available and that the Group had made a homelessness application: and such knowledge reasonably made no difference to its conclusions.

The last matter which Ms Kilroy alleges is that the Defendant Council was in breach of the duty imposed by s71 of the Race Relations Act 1976, as introduced by s2 of the Race Relations (Amendment) Act 2000, whereby:

“(1)

Every body or other person specified … shall, in carrying out its functions, have due regard to the need –

(a)

to eliminate unlawful racial discrimination; and

(b)

to promote equality of opportunity and good relations between persons of different racial groups.”

Ms Kilroy submits, although not giving specific particulars, that by dint of what has occurred it can be inferred that the Defendant Council did not give such due regard. Mr Browning says that he did take his obligations under the Race Relations Act into account. Ms Kilroy points out that this was simply an unthinking response, since he said the same in relation to the Children Act 1989, which, she submits, was purely responsive to her allegation that he had not taken that Act into account, and when the proper answer, if he had turned his mind to it, would have been that the Defendant was not under any such obligation, as she herself has recently discovered. But leaving aside any assertions now made, there is of course no magic in any express reference to the Act, and I am entitled and obliged to look at the facts on the evidence before me. I have seen no evidence of any breach, or arguable breach, of s71 by reference to the Defendant Council’s treatment of, or approach towards, these Claimants (including, so far as the eventual decisions were concerned, their clear taking into account of the possibility of exacerbation of relationships between local residents and the Claimant travellers). As it happens however, there is a helpful and contemporaneous express reference which indicates that the Defendant Council did have its obligations in mind. This is in its explanation in the 2004 Scrutiny Report referred to in paragraph 55(i) above, as to the background for its enforcement policy which is then set out in paragraphs 8.13 following: the fact that the 2000 amendment had extended the Defendant Council’s responsibility under the Race Relations Act 1976 was expressly referred to as part of the context for that policy, in paragraph 8.10.

I am entirely satisfied that the Defendant took into account all material considerations and did not act perversely, nor Wednesbury unreasonably, in reaching its decisions first to issue and then to continue proceedings for possession.

I return to the issue of Article 8. I am satisfied that the application of such input of Article 8 as I have assumed in paragraphs 46 to 49 above makes no difference to the outcome. Once again, it is not a question of recitation of obligations (although again Mr Browning lists the Human Rights Act 1998 as something which was taken into account) but a question of analysis of what in fact was done and occurred: and the fact that Ms Henderson does not accept that there was any obligation under Article 8 does not prevent a conclusion that, if there was such obligation, it was not breached. Reasonable decisions of the Defendant Council in relation to these sites fell within Article 8(2), and there are no exceptional circumstances relied upon by the Claimants nor, even if Ms Kilroy’s objection to the use of that phraseology be right, any circumstances personal to these Claimants, which, after the intensive analysis carried out in this judgment, cause me to believe that the decisions can be challenged under Article 8. The only factual matter could be the fact that one of the Claimants was due to give birth on 30 September, but, in the absence of any evidence in that regard, I do not consider that that would have amounted to urgent need such as to delay the proceedings, which were in the event adjourned on 12 September. I agree with the proposition of Mr Stilitz that:

“54.5

Given that the consequence of refusing possession to a local authority would be to defeat the authority’s otherwise unqualified property rights, and hence to fetter the use of publicly-owned land, only in the most extreme and sympathetic circumstances should a Court determine that, on the specific facts of the individual case, the local authority’s property rights should be outweighed by the Article 8’s rights of a trespasser in occupation of its land.”

I also accept his submissions on behalf of the ODPM set out in paragraphs 46 and 47 above.

I conclude on the evidence in this case, and after considering all the matters in the balancing act under the spotlight of Article 8, that the Article 8.2 defence would be made out.

I deal briefly with the separate argument of Ms Kilroy relating to Part VII of the 1996 Act, which is very much a technical argument and leads not to support of her main relief but only, if successful, to the separate relief sought of “a mandatory order that the Defendant determine the Claimant’s homelessness application”. I have recited the history of the applications in paragraphs 23-4 and 31 above. When I enquired what the position was now, on the first day of the hearing, Ms Henderson took instructions as to whether any offer of temporary accommodation was now available, and the Defendant wrote a letter of 3 February 2006, which offered two options, subject to the accommodation being confirmed to be available, which it could not be sure to be until it was known whether the Claimants were prepared to accept either of them. Both of them were bricks and mortar. One of them was the exclusive use of a hotel close to the Crawley town centre, where the entire Claimant group could be accommodated together. Suitable secure storage for the caravans together with appropriate insurance cover for them was offered. The letter continued:

“This is not a formal offer of temporary accommodation in discharge of a duty to provide suitable accommodation, and we will consider any representations from you before deciding that any offer of temporary or other accommodation is suitable and in discharge of the Council’s duty to you.

This accommodation is intended to be made available to you until an offer of longer term accommodation can be made from the Housing Register. It is anticipated that with your Housing Register application being in banding “A” and a registration date of 15^th September 2003 in 7-8 months you will [be] at the top of your banding and will be invited into the Property Store to view available accommodation.

In the meantime the Council will continue to work with [its] partners in West Sussex to identify a site for your occupation.

I would be grateful if you could let me know within 7 days from the date of this letter whether or not you wish to take up the temporary accommodation offered above.”

It is plain that the Defendant is, contrary to the Claimants’ assertion, still willing to make offers of temporary accommodation pursuant to its accepted duty to the Claimants: but, as can be seen, only by reference to bricks and mortar accommodation.

Ms Kilroy submits that the Defendant has not satisfied its obligation under s184 and made an unconditional offer which could now be reviewed or appealed. It is plain that that letter is not, and is not intended to be, an unconditional offer, for the reasons explained in the letter and in paragraph 87 above, and in particular since it was given during the course of the hearing. Nevertheless the reality is (i) that the Defendant has accepted its obligation to the Claimants under Part VII of the Housing Act (ii) they are making offers. I see no basis for any relief being granted. What happens in the end, namely whether the Claimants will be able to achieve, through the medium of Part VII of the Housing Act, what they aim for, namely a permanent site, remains in the future.

Ms Henderson requested, unsupported by the others, that I should formulate some draft directions for the assistance of county courts considering claims for possession by local authority landowners against gypsies and travellers. I see no need to do so, both in the light of my findings and conclusions in this case, which can of course be relied upon, as appropriate, and by reference to the authoritative exposition by Mr Stilitz of the ODPM’s position, particularly those passages set out in this judgment, which I have endorsed: in both cases subject to the necessary clarification which will emerge from the House of Lords with regard to the existence, nature and extent of Article 8 rights in such a situation.

In the circumstances, I am satisfied that no relief should be granted to the Claimants relating to the decisions to recover possession of Dalewood and Bewbush (the latter in any event now being academic). If I were wrong in any of my conclusions above, and if my discretion were engaged, I should in any event have refused relief, both on the existing case and in the light of any potential reconsideration in the light of new factors such as the Children Act 2004 and the new February Guidances, which I have in the event fully considered: on the basis that (i) it is plainly inappropriate for the temporary occupation of the grass verge at Dalewood to be any further continued (ii) there is no other site. The Defendant Council has to my mind given full consideration to the Claimants’ position (witness the meeting of 23 May 2005): but there is, until the ODPM’s initiatives kick-start, no answer, at any rate in Crawley, to the Claimants’ needs.

I dismiss this application, with thanks to all three Counsel and their Instructing Solicitors for the very thorough and efficient preparation of the case and the submissions.