Hillingdon v Collins & Anor

Although listed before me as a Case Management Conference, this matter, as all the parties urged on me, concerns an important case on the application of the effect of the House of Lords recent decision of 30^th July 2008 in Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57, [2008] 3 WLR 636. Indeed Mr Findlay QC, for the claimant authority, described it as a test case.

I am sorry that this judgement is longer than I would have wished, but it has been prepared since the court rose on Wednesday afternoon, to be given at 10.00 am on Friday, so that no delay was caused to the proceedings by awaiting a written judgement after my return to the Northern Circuit on Monday. Inevitably, the time for editing down of citations from authority has not been available to me.

It is sensible if I start by setting out the way in which I will deal with the issues

The Defendants occupy caravans on plots on a site owned by the Claimant authority (“LBH”). The agreements by which they do so give no security of tenure at common law. The First and Second Defendants have occupied a plot since June 2003, while the Third Defendant has done so since November 2004.

On 13^th October 2006 the First and Second Defendants were served with a notice to quit their plot by 13^th November 2006. An application was made on 12^th October 2006 for a without notice Anti-Social Behaviour Injunction “ASBI”) under sections 153A and 153C of the Housing Act 1996 (as amended) against 7 persons, including these 3 Defendants. The claim sought the exclusion of the Second Defendant from his plot at the site. An injunction was granted against the Defendants on 12^th October 2006, but it did not exclude them from the site, limiting itself to restraining them from causing nuisance or annoyance, or engaging in violence, harassment or threatening behaviour. The application was adjourned on 29^th October 2006, pending the outcome of mediation, but interim injunctions were granted until 12^th April 2007. (The order of 29^th October 2006 was by consent). On 12^th April 2007 they were extended, but an appeal against their extension was allowed on 11^th January 2008. The allegations made in the ASBI proceedings are the same allegations as are made in the schedules attached to the possession claims, as set out below. I note that one of the grounds taken by the Defendants in their successful appeal (although I have not been provided with HH Judge Behar’s reasons for allowing the appeal) was that section 153A of the Housing Act 1996 (as amended) does not apply to caravan sites where what is owned by the authority is the plot and not the dwelling.

Proceedings for possession were issued on 9^th March 2007 (although dated 9^th March 2006 in error) and served on 23^rd March 2007. The Third Defendant was also served with a similar notice, and served with concurrent proceedings (also misdated) which were issued and served on the same dates as those relating to the First and Second Defendants.

In the case of the First and Second Defendants, LBH alleged that they were in arrears with their rent to the extent of £ 1,683, had failed to pay electricity charges of £ 573.67 and that “the defendant’s (sic) have taken part in a particularly vicious attack on a pregnant female on the site, and such behaviour will not be tolerated.” A schedule attached to the Particulars of Claim alleges that, inter alia;

In the case of the Third Defendant the proceedings allege that he is in arrears, but in a sum of just £ 7.16, which is less than half a day’s rent. He is also alleged to owe £ 746.75 for electricity. He is alleged to have engaged in what is described as a campaign of harassment. A schedule attached to the Particulars of Claim alleges that, inter alia;

In both cases the Defendants filed Defences and Counterclaims as follows

On 18^th April 2007, the Defendants applied to have the actions for possession transferred to the High Court. They did so on the basis that they were contending that the claim involved an issue on whether the legislation relating to possession proceedings for sites such as this was incompatible with Article 8 of the ECHR. On 5^th July 2007 District Judge Wicks ordered that

Since then, the Secretary of State has applied successfully to intervene in the litigation. On 16^th October 2007 the proceedings were stayed to await the outcome of the appeal in what is now reported as Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318 which took place on 12^th December 2007. On 2^nd September 2008 the Defendants stated that they would no longer seek a declaration of incompatibility. However it is their case that in the light of the Doherty decision of the House of Lords in July 2008, they are entitled to have the decision of LBH to issue proceedings scrutinised by the court, and to that end seek directions relating to the calling of evidence and disclosure, which is resisted by LBH and the Secretary of State. A hearing is fixed for 27^th and 28^th January 2009 in the Administrative Court.

The Defendants seek leave (without opposition) to amend the defence and counterclaim to allege a breach of Article 1 of the First Protocol, and to allege that, given the race equality duty imposed on LBH, the procedure used was unfair as it differed from that applying to other long term caravan dwellers. They have also been permitted to file voluntary further and better particulars of the defence and counterclaim which contend that

However Mr Cottle is not seeking a declaration of incompatibility. Given the decision in Doherty that is realistic.

The Defendants seek

The Claimant LBH and the Secretary of State seek

At common law, LBH have the right to determine the possession of the plots. The law provides no defence to an action for possession, although 4 weeks notice is required of termination of a licence to occupy – see section 2 of the Caravan Sites Act 1968. Although section 4(1) of that Act enables a court to suspend an order for possession for up to 12 months, a court had no power until 18^th January 2005to suspend an order for possession if the site was owned by a local authority and it was seeking possession. On that date sections 211 and 270(3) of the Housing Act 2004 amended the legislation to remove that excluding provision. It did so after the ECHR decision in Connors [2004] 40 EHRR 189.

As Dyson LJ pointed out in Smith v Buckland at paragraphs 8 and 9:

These Appellants also fall outwith that protection. The legislation to remedy the deficiency in the law (as the House of Lords has found it to be in Doherty) has been enacted by section 318 of the Housing and Regeneration Act 2008, although the relevant provision is not yet in force.

It is necessary also to consider the grounds on which an order for possession may be suspended under section 4 of the Caravan Sites Act 1968 (as amended). Section 4 reads

“4 Provision for suspension of eviction orders

(1)

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

(2)

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

(3)

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

(4)

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

(a)

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

(b)

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

(c)

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

(5)

Where the court makes such an order as is mentioned in subsection (1) of this section but suspends the enforcement of that order by virtue of this section, the court shall make no order for costs unless it appears to the court, having regard to the conduct of the owner or of the occupier, that there are special reasons for making such an order.

(6)

The court shall not suspend the enforcement of an order by virtue of this section if—

(a)

no site licence under Part 1 of the Caravan Sites and Control of Development Act 1960 (c 62) is in force in respect of the site; and

(b)

paragraph 11 of Schedule 1 to that Act does not apply;

and where a site licence in respect of the site is expressed to expire at the end of a specified period, the period for which enforcement may be suspended by virtue of this section shall not extend beyond the expiration of the licence.”

It is thus plain that in these proceedings, if the possession order is made there will come a point where the judge then seised of the matter must himself consider whether it is reasonable to evict the Defendants. If s/he did not do so, the court would be failing to apply section 4(4) of the 1968 Act. In making a decision s/he must balance the case for eviction against the case for suspension, and will have to make his/her own judgement of the proportionality of a decision not to suspend the order for possession. As I note below, it is hard to imagine a conscientious and careful judge not wanting to consider why it was that LBH sought possession and why the Defendants resist it.

The law in this area, and its interrelationship with issues of public law and the effect of the European Convention on Human Rights, have on any view kept the courts occupied for some little time. In Wandsworth LBC v Winder [1985] 1AC 461 the House of Lords held that a defendant to a claim for possession by a local authority could argue in his defence to the action that the decision to take proceedings was unreasonable in a Assoc Provincial Picture House Ltd v Wednesbury Corpn [1948] 1 KB 223 sense. The effect of the Wandsworth decision is that a defence may be made on the grounds that a decision by an authority to seek the recovery of possession from a tenant (or licensee of a plot such as this) is unlawful on public law grounds.

The effect of the Human Rights Act 1998 has of course been to make the European Convention and the relevant Protocols part of domestic law. It follows that any consideration of whether a local or other public authority’s decision is lawful must encompass consideration of whether the ECHR has been applied. The question of how it is to be applied in the context of possession proceedings of this kind has caused the courts considerable difficulty.

I start with sections 3 and 6 of the Human Rights Act 1998

“3.

Interpretation of legislation.

(1)

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)

This section—

(a)

applies to primary legislation and subordinate legislation whenever enacted;

(b)

does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)

does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

“6.

Acts of public authorities.

(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)

Subsection (1) does not apply to an act if—

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)

in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3)

In this section “public authority” includes—

(a)

a court or tribunal, and

(b)

any person certain of whose functions are functions of a public nature,…..

(4)…………………………………...

(5)

In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6)

“An act” includes a failure to act but does not include a failure to—

(a)

introduce in, or lay before, Parliament a proposal for legislation; or

(b)

makeany primary legislation or remedial order.

Article 8 reads

“Right to respect for private and family life

1.

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

2.

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

Article 1 of the First Protocol reads

“Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary”

These proceedings relate to LBH taking possession of the plots where the Defendants live, and it was not argued before me that Article 8 rights are not engaged. Article 1 was barely referred to before me, but I can see that there is an argument that the right to occupy the plot with a mobile home (as the each of the occupiers on this site have pursuant to a contractual licence) is a proprietary interest engaged by Article 1.

I must turn now to the series of decisions in this area of the law. I adopt the account of the authorities given by Dyson LJ in Smith v Buckland at paragraphs 12-21, which take one up to the point at which that judgement was given

“ The three principal authorities

12.

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

13.

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

14.

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

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

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

15.

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

"85.

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

86.

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

16.

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

"92.

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

94.

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

95.

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

17.

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

18.

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

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

19.

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

20.

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

I must now turn to the decision itself in Smith v Buckland, and then consider it in the light of the subsequent decision in Doherty. In Smith v Buckland proceedings were taken against 5 gypsy Defendants occupying plots on a site, including the Defendant. The site was managed by the Borough Council concerned. The County Court Judge, following the approach in Kay, first considered on paper whether there was a seriously arguable case that the law on which the claimant relied to seek possession was incompatible with Article 8 of the ECHR, or whether it was seriously arguable that the decision to seek possession was amenable to judicial review in accordance with Wandsworth BC v Winder. He held that it was not, so that the claimant was entitled to an order for possession. He then gave a further judgement in which he considered whether or not to suspend the order. He concluded that he should do so until 24^th November 2006 on the basis of certain undertakings. It is however worth noting how the County Court judge expressed himself in his judgment, which is set out at paragraphs 21-4 of Dyson LJ’s judgement.

It follows that the approach of the Judge under the Wandsworth v Winder head had been to address the question of whether the length of her occupation had been such as to make the decision unreasonable.

Dyson LJ, with whom the other members of the Court agreed (Wall LJ gave a short additional judgement as well) endorsed the approach of the judge below. He expressed himself as being bound by Kay and by Doherty in the Court of Appeal (paragraph 27). When he came to consider the availability of the public law grounds defence, he said this

Thus, Dyson LJ held that once the ground for possession had been shown, the authority was entitled to possession, and it was only in the rarest cases that a public law defence could succeed. I shall return to some observations I must make on that passage after setting out other features of the judgement. The Defendant in that case was arguing an incompatibility point. At paragraphs 52 to 66 Dyson LJ sets out his conclusions on that ground, and thereby sets out his approach to the relevance of Article 8 in this context:

“ The amendment ground

52.

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

53.

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

54.

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

55.

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

56.

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

57.

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

58.

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

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

59.

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

60.

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

61.

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

62.

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

63.

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

64.

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

65.

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

66.

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

Wall LJ said:

Thusthe Court of Appeal approach is to say that it is the act of eviction which deprives a man of his home, and the power to suspend possession is what provides the protection of rights under Article 8. On that basis, the court hearing these proceedings should not consider whether LBH addressed the Defendants’ position under Article 8, nor whether it considered that LBH’s decision to take proceedings was proportionate. It is fair to say that there are passages in Dyson LJ’s judgement at paragraphs 42, 45 and 46 where he appears to say (a) that the claimant, by making a claim submits its reasons for seeking possession open to judicial scrutiny in the proceedings and (b) that the judge’s findings about the conduct of the Defendant occupiers, as found by the judge in his second judgement after hearing oral evidence, were relevant to his conclusion that the public law grounds defence was not arguable. Mr Findlay QC and Mr Stilitz urged on me that those passages do not detract from the broader thrust of the judgement.

It will be recalled that section 5(1) of the Mobile Homes Act 1983, which does give some security of tenure, did not protect the Defendant in Smith v Buckland . It follows that the protection afforded as a result of the Court of Appeal decision was less than granted by section 5(1), and was limited to allowing for suspension.

However since Smith v Buckland we now have the decision of the House of Lords in Doherty. While Doherty relates to a statutory context which predates the 2005 amendment, the breadth of the discussion gives it great significance. The headnote at [2008] 3 WLR 636 summarises the facts;

The House of Lords held (per Lord Hope. Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe) that (in the words of the headnote) the definition of "protected site" in section 5(1) of the Mobile Homes Act 1983, in excluding gipsies from the statutory protection provided by the Act, was incompatible with the defendant's right under article 8 of the Convention to respect for his home; that section 5(1) of the 1983 Act could not be interpreted under section 3(1) of the 1998 Act in a way which was compatible with that right but in view of the passing of the Housing and Regeneration Act 2008 which remedied the defect a declaration of incompatibility was unnecessary. They concluded that the incompatible primary legislation remained fully effective until repealed or modified by Parliament, and under section 6(2)(b) of the 1998 Act the right of the local authority to exercise its unqualified right to possession of the defendant's site had to be enforced unless its decision to seek possession could be said to be one which no reasonable person would consider justifiable, that being an issue which could be raised in the proceedings for possession. They applied Kay v Lambeth London Borough Council [2006] 2 AC 465, HL(E) and Connors v United Kingdom (2004) 40 EHRR 189, and allowed the appeal, remitting the case to a High Court judge to determine the reasonableness of the local authority's decision to serve the notice to quit, taking into account the reasons given by the local authority for its decision and the length of time for which the defendant and his family had resided on the site. The majority held that the guidance in Kay on the approach to be adopted should continue to be followed, but in modified form.

It will be noted that the exercise remitted to the High Court Judge was one of “determining the reasonableness of the local authority's decision to serve the notice to quit, taking into account the reasons given by the local authority for its decision and the length of time for which the defendant and his family had resided on the site.” (My italics) Of course that second matter is one which Dyson LJ appears to exclude from consideration in the passage cited above at paragraph 41 of his judgement, and impliedly does so at paragraph 60-62 and by Wall LJ in paragraph 70. Does, as Mr Cottle submits, Doherty widen the opportunity for the public law grounds defence to be argued than it was held to be in Smith v Buckland or in Kay, and do so to the point at which its decision should be considered against the ECHR? In other words, in a case such as this does one still only apply Article 8 and any other engaged Articles at the stage of considering whether to evict – i.e. at the section 4 Caravan Sites Act 1968 (as amended) stage, or at the earlier stage also of the decision to seek possession ?

I bear in mind of course that Doherty is a case about the law before it was amended in 2005 to bring the amended section 4 into play, but if Doherty requires that the earlier stage under gateway (b) involves a wider remit than was held in Kay then that may have a significant effect on the degree of reliance one can place on Smith v Buckland.

As all counsel agreed, there are passages in Doherty which can be taken as supporting the arguments of both the Defendants in this action, and those of the Claimant LBH.

In my judgement, the starting point of applying Doherty must be that the existing statutory framework before section 4 was amended in 2005 has now been held definitively to be incompatible with Article 8 in the lack of the protection given under section 5(1) of the 1983 Act. The conclusion of the Court of Appeal in Smith v Buckland was that the amended section 4 of the 1968 Act had now introduced safeguards which were missing before, and in particular whether the occupier had the opportunity to challenge the allegations made against him- see Dyson LJ at paragraph 36.

In his speech at paragraph 22 ff Lord Hope states what he calls the “ basic law”

“22 So I must make it clear at the outset that nothing that I may say in this opinion is to be understood as detracting in any way from the basic law as laid down by the majority in  Qazi  and reaffirmed by the majority in Kay  . The effect of those decisions was summarised by Baroness Hale of Richmond in  Belfast City Council v Miss Behavin' Ltd  [2007] 1 WLR 1420, para 36:

"there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in  Kay v Lambeth London Borough Council  [2006] 2 AC 465."

The basic rule is that such interference with the right to respect for the home as may flow from the application of the law which enables a public authority to exercise its unqualified right to possession does not violate the essence of the Convention right. Unless the legislation itself can be attacked, this is a conclusion which can be applied to all cases of this type generally. It is not open to the court, once it has decided in any individual case that the effect of the legislation is that the public authority's right to possession is unqualified, to hold that the exercise of that right should be denied because of the occupier's personal circumstances.

23 As I pointed out in Qazi  , at paras 37-38, the background to the issue which the House was asked to consider in that case was set out in the Law Commission's Consultation Paper on Renting Homes 1: Status and Security (2002) (Consultation Paper No 162), Part V, The Impact of Human Rights Law. As the author explained in para 5.76 of the Consultation Paper, the implication of a conclusion that article 8(1) was always engaged by an eviction was that a procedure which enabled the court to consider the issue of proportionality would become a necessity in respect of any use by a public authority landlord of a procedure under which, by the operation of law, it would previously have been entitled to recover possession automatically. If so, this result would affect housing associations and other registered social landlords as well as local housing authorities. The point of automatic possession proceedings is generally to provide a quick and reliable way of evicting tenants whose lease has by the operation of law been terminated. A procedure which gave a discretion to the court by requiring it to consider whether having regard to article 8(2) the making of the order would be proportionate would be inimical to that purpose. Lord Bingham of Cornhill was careful to point out in Qazi  , at para 23, and again in Kay  , at para 28, that nothing in his opinions in those cases was to be understood as applying to any landowner or owner who was not a public authority. But, as I said in Kay  , para 64, the effect of such a procedure on private landlords cannot be left out of account. I described the conundrum that, as I saw it, the minority view in  Kay  gave rise to and which the majority in  Qazi  were seeking to solve in para 65 of my opinion in that case.

24 Therein lies the importance of the decision in  Qazi  in domestic law. But it was soon to become apparent that it was in need of some modification if it was to be compatible with the reasoning of the European Court in Strasbourg in three cases which were decided after the decision of this House in  Qazi: Connors v United Kingdom  40 EHRR 189;  Blecic v Croatia  (2004) 41 EHRR 185 and Stanková v Slovakia  (Application No 7205/02) (unreported) given 9 October 2007. The decision in McCann  fits in to this pattern. The applicant in that case had been entitled under the statutory scheme to the protection of an independent determination by the court of the reasonableness of a claim for possession: see ground 2A in Schedule 2 to the Housing Act 1985 (as inserted by section 145 of the Housing Act 1996 and amended by paragraph 33(b) of Schedule 8 to the Civil Partnership Act 2004). The local authority deprived him of that protection by inviting his wife to sign a notice to quit. This was something that it was enabled to do by the common law as, in the absence of any term in the tenancy agreement to the contrary, the tenancy was terminable by a notice to quit given by one joint tenant without the concurrence of the other:  Hammersmith and Fulham London Borough Council v Monk  [1992] 1 AC 478. As in Connors  , he was evicted from his home without the proportionality of the local authority's decision to recover possession being determined by an independent tribunal.

Lord Hope then turned to the position of gypsies. After describing the statutory framework, he concluded at paragraph 32-3

“ 32 The Strasbourg court said in Connors , at para 94, that it was not persuaded that the necessity for a "statutory scheme" which permitted the summary eviction of the applicant and his family had been sufficiently demonstrated. The same scheme applies to the first defendant's case, as the council commenced proceedings against him before the coming into effect of the changes that have been and are about to be made to it. In para 92 the court set out its conclusions on the point that it had made in para 84 that some special consideration should be given to the needs of gipsies and their different lifestyle in reaching decisions in particular cases. The Government had relied on the possibility of applying for judicial review to obtain scrutiny of the lawfulness and reasonableness of decisions taken by the local authority. But the court did not consider that this could be regarded as assisting gipsies in circumstances where the local authority terminates licences in accordance with the applicable law. It summarised its conclusions as to the effect of the legal framework in para 95:

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

33 The procedural safeguard that was lacking in  Connors  was an ability to challenge in court, by way of a defence, the allegations of misconduct that were the basis for the authority's decision to seek the possession order against the applicant. Applied to this case, special consideration to the needs of gipsies and their different lifestyle requires that the first defendant must be able to insist, by way of a defence to the claim, that it be shown there is a proper justification for the decision to seek a possession order. It must be shown that the claimant's decision to evict him and his family from the site was justified by a pressing social need and was proportionate. If that cannot be done, there is a risk that the first defendant's rights under article 8 will have been violated.”

He then referred to the decisions in Qazi and Kay, and said at paragraph 36:

“36 The decision of the majority, as summarised in para 110 of my speech, went as far as it was necessary to go to provide answers to the two cases that were before the House in Kay. But the facts in those two cases were very different from those in the present case and from those in McCann. The appellants in Kay v Lambeth London Borough Council never had any rights of occupation granted to them by the landowner. The appellants in Leeds City Council v Price were gipsies, but they had been present on the recreation ground for only two days when proceedings were taken against them for the making of a possession order. In both cases it was held the appellants' interests were sufficiently protected by requiring proof by the local authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. Neither of them was close on its facts, as this case is, to Connors. For reasons that I shall seek to show, I believe that the answer to the article 8 issue in this case can be found in the formula that is set out in para 110. But I would be the first to acknowledge that the way that the formula works in a case of this kind requires further explanation. To some extent too it needs to be modified.”

At paragraph 39, having addressed the fact that on the Doherty case the parties had been in occupation for about 17 years (cf the 16 years in Connors ) he referred to the effects of section 6 of the Human Rights Act 1998, and identified three categories of case, the third one being the one material to this issue:

Lord Hope continued:

So one may extract the following principles

One sees then that in the speech of Lord Hope, a case where alleged misconduct is involved may involve a breach of Article 8, whether or not the procedural safeguards are provided to protect gypsies.

Lord Hope then addressed what has become known as gateway (b). He described it thus at paragraph 44

It will be noted that there he is addressing considering of the reasonableness of the authority’s decision as a discrete topic from Article 8. At paragraph 52 he went on to say

“ Gateway (b)

In my judgement it is quite clear from Lord Hope’s speech that he was not seeking to permit a broadening of Kay to the extent that analysis of the decision of the authority against ECHR rights should be undertaken. His approach is predicated on the assumption that the law relating to gypsies is incompatible with the ECHR, and in my judgement it is thus illogical to read or apply it as if it allowed the Kay gateway (b) to introduce one. But, as he said at paragraph 36, the Kay approach required modification. Paragraph 57 of the speech introduces an additional element , namely “It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant's licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable.”

I regard the reference to “ resolving any dispute that he needs to about the facts” as potentially significant in a case such as this. It is to be noted also that Lord Hope is there addressing whether or not to make an order for possession. In a case where the authority’s claim for possession rests upon hotly disputed cross- allegations of criminal and anti-social behaviour involving two families on a site, it is hard to imagine that such disputes would not include disputes about (a) what happened, and (b) whether it was reasonable of LBH to prefer one version to the other. I refer also to the reference by Lord Hope in paragraph 55 to Lord Brown’s opinion at paragraph 210 of Kay.

Lord Rodger agreed with Lord Hope and Lord Walker. When addressing gateway (b) Lord Walker expressed unease about the decision in Kay on a topic which may be important. His speech reads in part:

I have cited Lord Walker’s speech at some length for three reasons

I consider that the effect of the speeches in Doherty is to widen the scope of the enquiry that may be made into decision making by an authority. I do not consider that the effect of the amendment of section 4 in 2005 undercuts the points of principle which are established in Doherty but I do consider that , as per Smith v Buckland, the fact that Article 8 can operate at the stage of considering whether or not to evict, still gives it effect within the domestic law framework when taken as a whole, as per Smith v Buckland. However I also consider that in the light of Doherty the observations in Smith v Buckland that the circumstances where such a defence can be made out as wholly exceptional have been overtaken by subsequent authority. They were justified on the basis of the previous Kay test, but not on the wider one which now encompasses a broader consideration of reasonableness.

I also consider that the test is no longer whether the claim on public law grounds is “ seriously arguable.” It is now , as per Doherty at paragraph 55, whether the decision was reasonable, in the sense of whether no reasonable person would think that recovering possession was justifiable.

I also consider in the light of Lord Hope’s speech that a judge, while he must eschew simply substituting his own judgement for that of the local authority, must grapple with whether it had material before it, and whether the decision was reasonable. He is not bound to consider the matter on paper, but has a discretion as to how he should conduct the hearing, within the limits set by Lord Hope’s speech. I draw attention also to paragraph 54 of Lord Hope’s speech, and the importance of the claimant authority justifying its decision to seek possession, and to his reference to Lord Brown’s concerns..

That approach has other practical effects:

Given the fact that the protection of Article 8 rights (and Article 1 of the First Protocol) is only achievable at the stage when suspension is considered, but must be considered then, I regard it as inevitable that this action will at some stage involve disputes on fact. That being so, witnesses will inevitably be required, certainly for the defendants, and for the claimant LBH.

In my judgement the most convenient forum for the determination of all the disputes which are before the court is the County Court, now that the incompatibility argument has been abandoned. I appreciate that the hearing may not be in Uxbridge, but I regard the County Court as the preferable forum. That accords with the approach in Wandsworth BC v Winder and with that of Lord Walker in Doherty.

I therefore order that the matter be remitted to the Uxbridge County Court. At that hearing I direct that the Court should approach the issue of the challenged decision by LBH in accordance with paragraphs 45-55 of Lord Hope’s speech in Doherty as interpreted in this judgement.

The Defendants shall, by 18^th December 2008, file and serve any witness evidence upon which they intend to rely. The Claimant LBH and , if so advised, the Interested Party Secretary of State shall, by 16^th January 2009, serve any detailed ground of resistance and any witness evidence upon which they intend to rely.

I consider that , as the action will inevitably involve disputes of fact, disclosure should take place as per CPR 31.5. Once the witness evidence has been exchanged, it will then be appropriate for any disputed areas of discovery to be resolved by the District Judge.

It is a matter for the County Court Judge, when s/he has read the documents, and importantly, read the witness evidence, to determine whether s/he holds one hearing or more than one when dealing with the claim, provided that is that s/he follows the guidance in Kay as amplified in Doherty on the scope of the gateway (b) issue. It may be that convenience to witnesses and the avoidance of delay makes it sensible to have one hearing: or s/he may conclude that a split hearing approach is more sensible.

Both matters remitted to the Uxbridge County Court.

Hearing date of 27^th and 28^th January 2009 vacated

Direction that the County Court should approach the issue of the challenged decision by the Claimant in accordance with paragraphs 45-55 of Lord Hope’s speech in Doherty as interpreted in this judgement.

The Defendants shall, by 18^th December 2008, file and serve any witness evidence upon which they intend to rely. The Claimant and , if so advised, the Interested Party Secretary of State shall, by 16^th January 2009, serve any detailed ground of resistance and any witness evidence upon which they intend to rely.

Disclosure should take place as per CPR 31.5. Once the witness evidence has been exchanged, any disputed areas of discovery to be resolved by the District Judge.

Costs in the cause.

If permission is required, the parties have permission to appeal to the Court of Appeal, the time for appealing being extended to 12^th January 2009