Stokes v London Borough of Brent

The Appellant and her four children are Irish Travellers. At the date of the order those children were aged 9, 6, 2 and 6 months. The site in question has been divided by the Respondent into 31 pitches numbered 1 to 32 (there is no number 13) for occupation by traveller families under a standard licence agreement. Pitch 32 itself is somewhat different from the other pitches in that it includes an office and its living space for a family is much smaller than the area on other pitches. It is not in dispute that without any consent or licence from the Respondent, the Appellant and her then 3 children in or about January 2007 moved onto that pitch to reside in a caravan which had been left on the pitch by the Appellant’s sister and husband who had terminated their particular Licence. Prior to that date and for most of her life (other than a period in 1998-9 when she lived with her now estranged husband at his parents house) the Appellant had lived on the Site on her mothers pitch, Pitch 1, with her several brothers and sisters. Various members of the Appellant’s extended family live on other pitches nearby. As at January 2008 the Appellant was on the Respondent’s waiting list for a pitch but the Appellant unilaterally took the opportunity presented by the departure of her relatives to move onto pitch 32 which is positioned opposite that of her mothers. She says she felt compelled to do this because of overcrowding at her mother’s pitch.

Although the initial reaction of the Respondent, as evidenced by a letter of the 18th of April 2007 sent to the Appellant’s solicitors, was that the Appellant’s presence on Pitch 32 would not be tolerated and action would be taken to obtain vacant possession, there was a short period between October 2007 and April 2008 when the Respondent expressly “tolerated” the Appellant’s occupation following the birth of her fourth child on the 23 of October 2007. In her witness statement of the 30^th of April 2008 before the court below, Linda Footer, of the Brent Housing Partnership working as an Area Housing Manager on behalf of the Respondent explained that in October 2007 the Appellant was heavily pregnant with her fourth child and that although the Respondent wanted the Pitch for extended office accommodation, there was no alternative pitch on the site and it would have been harsh to take action to evict the Appellant at this time. Hence a letter was sent to the Appellant on behalf of the Respondent dated the 10^th of October 2007 informing her that that she would be allowed to stay for three months following the birth of her child. That letter expressly referred to the relevant government guidance on managing unauthorised camping, to welfare checks having been carried out, and made clear that if the Appellant was still in occupation 3 months after the birth of her child further welfare checks would be carried out and the decision to ‘tolerate’ or evict would be made. The material part of the letter was as follows:

Such licence however as may have come into existence by reason of such ‘toleration’, undoubtedly was terminated as from the 25^th of April 2008 following the Respondent’s letter dated the 7^th of April 2008 to the Appellant, written by their Travellers Site Manager, served upon the Appellant and acknowledged by her as having been received on the 8^th. That letter expressly stated that the Respondent would not tolerate her occupation beyond the 25^th of April. It informed the Appellant that the pitch had been designed solely for office accommodation and that the council required full possession of the pitch in order to extend its current office accommodation on the pitch which was too small to cater for the number of staff required to manage the site. Its material part was as follows for the purposes of terminating any such licence:

I should add that in November 2007 another pitch had in fact become available on the Site, namely Pitch 24, which by letter dated 8^th of November 2007 was offered by the Respondent to the Appellant, she being on the waiting list, but this was refused by her in a pro forma letter which gave no reasons for the refusal. Ms Footer in her statement refers to this pitch as a perfectly good one. It since emerged in the witness statement of the Appellant lodged for the county court hearing that according to the Appellant, although not accepted by the Respondent, the Site is divided into two groups of families who do not get on, described by the Judge as warring factions, and she decided to refuse the pitch because it was in the wrong part of the Site. Although the letter of the 7th of April 2008 did refer to this refusal, it did not suggest this was the reason the licence was now being terminated and it is no part of the Respondent’s case that this formed part of the decision to require possession of Pitch 32.

Hence it is not in dispute that as from the 25^th of April 2008 the Appellant remained on Pitch 32 without any licence or consent and was a trespasser.

I am also prepared to assume having read the written submissions from the parties submitted since the hearing before me, that as from that date, the 25^th of April 2008, the Appellant was homeless (assuming she had nowhere else to pitch her caravan) for the purposes of the homelessness provisions of the Housing Act 1996 (‘the 1996 Act’) notwithstanding as at that date the Respondent had yet to obtain any warrant for possession.

The only basis upon which it could be said the Appellant was not homeless would be if it could be said that as from the 25^th of April, and pending the obtaining of a warrant, she occupied Pitch 32 as a residence “by virtue of any enactment or rule of law giving (her) the right to remain in occupation or restricting the right of another person to recover possession” within the meaning of section 175(1)(c) of the 1996 Act or that, given such accommodation as she was living in was a moveable structure within the meaning of section 175 (2) (b) of the Act, Pitch 32 was a place where she was “entitled or permitted both to place the structure and to reside in it”, again within the meaning of section 175(2)(b). However I have not been referred to any enactment or rule of law which gave the Appellant the right or permission to remain in occupation after the 25^th of April or which restricted the right of the Respondent to recover possession after that date, even allowing for the established interpretation that “enactment” includes the Rules of Court. The decision in Sacupina (R. v. Newham LBC ex parte Sacupima (2000) 33 HLR 1) cannot assist since that concerned an assured tenancy which by statute (section 5(1) of the Housing Act 1988) could not be brought to an end except by obtaining an order of the court. That provision by its terms does not apply to a licence granted as in the present case to a trespasser by way of toleration. The provisions of section 3 of the Protection from Eviction Act 1977 (the 1977 Act) which renders it unlawful for the owner of premises to enforce against an occupier his right of possession of the premises otherwise than by court proceedings, cannot assist since although the section does by its terms apply in relation to premises occupied as a dwelling under a licence, a licence is not within its provision if it is an “excluded licence” (see section 3(2B) of the 1977 Act as amended) which term embraces amongst others a licence “if it was granted as a temporary expedient to a person who entered the premises as a trespasser”. (section 3A (6) of the 1977 Act as amended) and moreover (under subsection (7) of section 3A) a licence “if granted otherwise than for money or moneys worth”.

The letter of the 7^th of April 2008 in fact referred to the site manager and other staff having engaged with the Appellant, explaining housing choices, the homeless application process and private rented accommodation in the borough and informed the Appellant of how she could make a homeless application. As a matter of fact by letter dated the 17^th of April 2008 the Appellant’s solicitors, Community Law Partnership, wrote asking the Respondent to accept their letter as a fresh homeless application from the Appellant and asking that they would agree not to pursue possession proceedings pending suitable accommodation being offered to her in line with their duties under the 1996 Act. As at the date of the hearing before Judge Copely that application had yet to be determined by the Respondent. The copy correspondence between the Respondent and the Appellant in the months since the order under appeal was made, included within the Appellant’s written submissions, demonstrates that this has been an ongoing process under the material statutory provisions.

That letter of the 17 April 2008 letter referred to the application being a fresh homeless application since correspondence from 2007 between the parties shows that the letter of the 18^th of April 2007 to which I have already referred, in which it was said the Appellant’s presence on the Pitch 32 would not be tolerated, was in fact a reply to a letter from the Appellant’s solicitors of the 13 March 2007 to the Respondent’s legal department in which the solicitors had enclosed a copy of their letter making a homeless application under part V11 of the 1996 Act to the Respondent’s homelessness department, and asking whether the Appellant’s presence on the pitch could be tolerated pending the final resolution of her homeless application. Further there is also a Judicial Review pre- action protocol letter of the 20^th of April 2007 from the same solicitors to the Respondent’s legal department in which the Respondent was asked to provide the Appellant with suitable accommodation in accordance with section 188 of the 1996 Act whilst it carried out investigations into her homeless application under section 184. It was said that a decision to tolerate the Appellant’s continued occupation of plot 32 would be accepted as a satisfactory discharge of the duty to provide interim accommodation. There does not seem to have been any further correspondence between the parties until the letter of the 10^th of October 2007 informing the Appellant of the decision to tolerate her occupation for the 3 months following the birth of her child.

No one has submitted to me however that that decision to tolerate should be treated as a purported performance by the Respondent of its obligations under the homelessness legislation consequent upon that original application. Nor has it been submitted for example that the offer of accommodation in November 2007 should be interpreted as having been made in performance of any accepted duty to provide interim accommodation under section 188 of the 1996 Act. Indeed in his written submissions Mr Willers makes clear that it is accepted that the Appellant was not homeless for the purposes of section 175(2)(b) of the Act during the time her occupation of Pitch 32 was tolerated. Mr Willers expressly states that it is not being submitted on behalf of the Appellant that the Respondent has failed to comply with any of its duties owed under the homelessness legislation but rather “that the Respondent’s decision to seek possession of pitch 32 before her homelessness application had been determined was unreasonable in the circumstances of this case”.

The relevance of this submission to the defence lodged in these proceedings will become obvious below. However in so far as the decision to seek possession was made, as appears, by the date of the letter of the 7^th of April 2008, my view is that as at that date the Appellant was not homeless. The potential consequence of the decision were however that she would be or might well become homeless by the 25^th of April.

The letter of the 7th of April 2008 gave notice that if the Appellant failed to leave Pitch 32 by the 25^th of April 2008 court proceedings would be issued to claim full possession. The Appellant did not leave and accordingly these proceedings were issued on the 1^st of May 2008 and possession sought on the straightforward basis that she was a trespasser who had no defence to the claim. The order under appeal was made at a hearing some two weeks later under the procedure for possession claims provided for in CPR Part 55. That hearing date had been provided for under rule 55.5 when the claim form was issued. The court at that hearing had under rule 55.8 a discretion whether to decide the claim there and then or to give case management directions, in particular directions under 55.8(2) “where the claim is genuinely disputed on grounds which appear to be substantial”. In the event the Judge refused to make any directions, did decide the case, and granted a summary order for possession. He did so in effect on the basis that the Appellant had no defence to the claim which was seriously arguable. The essential issue raised on this appeal is whether he was wrong to do so and whether contrary to the findings of the Judge, the Appellant had apparently substantial grounds upon which to defend the claim within 55.8(2) and hence directions should have been given to progress the matter to a full trial.

As a matter of the substantive law relating to the recovery of possession of land, the Appellant indeed had no defence. This was conceded both before the Judge and before me.

However this was not the end of the matter since by the time the proceedings came before the Judge, counsel on behalf of the Appellant, Mr Willers, had drafted a form of defence, which been duly signed, filed and served on the 13^th of May, which he sought to pursue on her behalf alleging a public law defence. This was directed at “the Claimant’s decision to seek possession of the land and to evict the Defendant and her family”, in other words at the decision of the Claimant/Respondent local authority to terminate the informal licence and to instigate possession proceedings to obtain possession against a person conceded to be a trespasser. In other words at the decision which led to the letter of the 7^th of April 2008.

On the face of the pleading this defence was put in two ways.

Under paragraph 20 it was alleged that “given the circumstances of the case” the Claimant’s decision “to seek possession of the land and to evict the Defendant and her family was “Wednesbury unreasonable and unlawful”. Particulars were given of this averment in subparagraphs (a) to (i)

These particulars fell into two distinct categories.

Sub paragraphs (a) to (h) rehearsed particular circumstances of the case said to demonstrate in themselves that the decision under challenge was Wednesbury unreasonable and hence unlawful. They read as follows:

the defendant and her children have lived on the Lynton Close Site; virtually all their lives and have extremely close family connections with and rely for support upon ,other residents on the Site.

The effect of these particulars are summarised by Mr Willers in his skeleton argument as relating to

The second set out of particulars set out in paragraph 20 subparagraph (i) and further sub particularised in (i) to (x), sought to plead in effect that the decision was vitiated and rendered unlawful by a failure to take account of relevant considerations, including material Government Guidance, in particular those relevant to the position of gypsies/travellers as a vulnerable minority with their traditional nomadic life style and cultural aversion to bricks and mortar accommodation, which it was asserted required the Respondent to take all reasonable steps to search for alternative caravan sites for the Appellant, which they had failed to do. They also pleaded a failure by the Respondent to comply with or to take account of express statutory duties in particular under the Race Relations Act 1976; the Disability Discrimination Act 1995 and the Children Act 1989. These particulars read as follows:

“ i) Moreover, before deciding to seek possession of the land the Claimant

to take all reasonable steps to search for a suitable alternative site

to take all reasonable steps to explore with other public authorities

to take account of the fact the national and local need for additional

to comply with the advice in paragraphs 6 – 9 of Circular 18/94

to comply with the 2004 Guidance and the 2006 Guidance and the

to comply with its general race equality duty that it owed under

to comply with the duty owed under section 49A of the

to take account of its general duty under section 17 CA 1989

to consider complying with its general duty under section 17

to consider using its power to provide additional caravan sites

Secondly under paragraph 21 it was contended that “the Claimant’s decision to seek possession of the land amounted to a disproportionate response which constituted a violation of her rights protected by Article 8 and 14 of the Convention”.

In Harrow London Borough Council v. Qazi [2003] UKHL 43, [2004] 1 AC 983 the House of Lords had held that the contractual and proprietary rights to possession of a public authority landowner could not be defeated by a defence based on Article 8 of the Convention.

However, it is not in dispute that following the decision of the House of Lords in Kay v. Lambeth London Borough Council; Leeds City Council v. Price[2006] UKHL 10; [2006] 2 AC 406 it is now open to a defendant to county court possession proceedings to raise a public law defence of the kind pleaded in paragraph 20 and that he should be permitted to do so provided (to cite the words of Lord Hope at paragraph 110 in Kay) “the point is seriously arguable”.

Lord Hope in paragraph 110 characterised this defence – otherwise known traditionally as raising “Wednesbury unreasonableness” (following the well known decision in Associated Picture Houses Ltd v.Wednesbury Corporation [1948] 1 KB 223) as one which “challenge(s) 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”. The underlining in these passages is the emphasis of this court. By reference to the contents of paragraph 110 this has become known as the “gateway (b)” defence.

However, it is equally not in dispute that so long as the decision in Kay stands it is still not open to a defendant to such proceedings, – as this Appellant sought to do in paragraph 21 of her defence - to raise as a free standing ground of defence a violation of Article 8 of the European Convention on Human Rights (the right to respect for private and family life) by reference to her personal circumstances and the principles of proportionality as developed in Convention law - as distinct from a plea of incompatibility between the law under which possession is sought and Article 8, which is however not an issue in this appeal.

The parameters of the public law defences open to a defendant to a possession action, according to the majority of their lordships in Kay were set out by Lord Hope in paragraph 110 in the following terms. (Again, the emphasis by way of underlining is that of this court).

Paragraph 23 of the Appellant’s defence did however alert the court to the decision of the European Court of Human Rights in McCann v.United Kingdom (application No 19009/04) delivered on the 13 of May 2008 and that the House of Lords judgments in Doherty v. Birmingham City Council were awaited, being a case involving an Appellant gypsy/traveller who in 2004 had been given notice to quit a plot on the respondent local authority’s Travellers’ Site in respect of which he had been in occupation as a licensee for some 17 years. The local authority in Doherty had purportedly decided to give that notice for reasons - to carry out essential improvement works - which the Appellant was contending were disproportionate. In McCann the European Court held that Article 8 did require that an independent tribunal examine whether a person’s loss of his home was proportionate within the terms of article 8. As counsel flagged up in the pleaded defence, their Lordships in Doherty were being asked to reconsider the judgments in Kay and Price in the light of that ruling.

The judgments have now been handed down in Doherty [2008]UKHL 57.

It is clear from those judgments that the House of Lords did not overrule its decision in Kay with regard to an article 8 defence. I reject any submission, implicit in the final ground of appeal in this case, that this court could extend the county courts’ powers of public law review of an administrative decision on the part of a local authority to seek possession, so as to embrace the principles enunciated by the European Court in McCann, that is to say by entertaining a free standing challenge to the decision on the grounds it was a violation of Article 8, being a disproportionate response having regard to the defendant’s personal circumstances. In other words the averment pleaded in paragraph 21 of the Defence in this case remains, on the binding authority of Kay, one which gives rise to no grounds, substantial or otherwise, upon which to resist the claim.

Mr Willers has nonetheless sought to persuade me that the scope of a judicial review by the county court of a decision to evict travellers from land on which they have no lawful entitlement to camp, has been extended as a consequence of the judgments of the House of Lords in Doherty so as to require the court to subject such decisions to “anxious” or “heightened scrutiny” which it is said the Judge below failed to do.

In my judgment however all that one can draw from those judgments, in so far as they in any way modify the approach to be adopted by a county court faced with a public law challenge to the decision of a claimant to seek possession, is that although the basic approach to a judicial review of that decision as explained by Lord Hope in Kay in paragraph 110 remains intact (Lord Hope at para 56 of Doherty: ‘County Court Judges should continue to follow the guidance that was given in Kay, para 110 ….’) the considerations which can be taken into account on a review may be wider than allowed for by a strict adherence to traditional Wednesbury grounds and the personal circumstances of the defendant may have a role to play in this regard.

Although Lord Walker at paragraph 123 stated that “if the defence is focussed not on the legislation but the housing authority’s decision making process the judge will in effect be hearing an application on “traditional review grounds”, (my emphasis) Lord Hope expressed his conclusion thus (at para 55)

“Ithink that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent's decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the Appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable. The further point to which Lord Brown referred will have a part to play in that assessment”.

Similarly, Lord Scott at paragraph 70 in discussing how narrow were the differences between the minority and majority positions in Kay, referred to the minority position as expressed by Lord Bingham at para 39 as attributing to “the occupier’s personal circumstances a central importance that the majority opinions did not accept” but then continued:

So too, Lord Mance at paragraph 136, having acknowledged that the only question was whether the public authority’s decision could be challenged on “domestic judicial review grounds”, spoke of those grounds as including not only “as having been based on material misconceptions or improper considerations” but as having been unreasonable, either in the Wednesbury sense or in a more relaxed sense which takes full account of the basic interest which any occupant has in his or her home” - albeit he did conclude this passage with the continuing limitation that “in other words, in circumstances such as those in Kay, a full Convention review is not, at least nominally, possible”.

Nonetheless it is still the case that the test of reasonableness by which the decision of the local authority is to be tested in the county court is whether the decision to recover possession was one which no reasonable person would consider justifiable. This is a strong conclusion to have to reach. As Lord Hope made clear, the requisite scrutiny does not involve the judge substituting his own judgment for that of the authority. Moreover, this issue concerns consideration of the factors which were known or should have been then known to the authority at the time it made the decision it did. The court is concerned solely with the lawfulness of the decision at the time it was made, and not with the reasonableness or otherwise of the decision with the benefit of hindsightof facts not available to the authority when it decided to seek possession.

It remains the exceptional case in my judgment, as acknowledged in Kay and Price - where on the facts of those two cases the House of Lords declined to remit either case to the county court for further consideration - which will fall even to be considered as raising a seriously arguable case sufficient for the equivalent of a judicial review of the decision to be undertaken.

In Doherty the case was remitted but it is to be noted that Lord Hope at paragraphs 36 and 37 highlighted the particularly exceptional features of that case compared with the facts of Kay and Price, and which he regarded as much closer to the facts of the defendant in Connors. This was a reference to Connors v. United Kingdom (2005) 40 EHRR 9 where the eviction of a family of gypsies from a gypsy site by a local authority had been held by the European Court to be a violation of their article 8 rights. In Connors the appellant and his family had previously been in occupation of the travellers site under a licence granted by the local authority for some 16 years before the authority decided to terminate that licence because they regarded them as trouble makers, allegations of fact which the family disputed but which they were unable to challenge under the domestic law which gave the landowner unqualified right to possession once the licence was so terminated. In Kay at para 210, as Lord Hope pointed out in Doherty at para 44, Lord Brown had suggested that in Connors an argument could perhaps have been mounted “that having regard to the length of time the family had been on the site it was unreasonable, indeed grossly unfair for the local authority to claim possession on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action” (again the emphasis is that of this court). It is clear to me that what undoubtedly swayed Lord Hope in Doherty to remit the case, was the similar length of time (17 years) that Mr Doherty had previously been in occupation under a licence which had given him a right of occupation until terminated. This was to be contrasted with the facts of Kay and Price where (to quote Lord Hope at paragraph 36) in the one (Kay) “the Appellants never had had any rights of occupation granted to them by the occupier” and in the other (Price) the Appellants though gypsies “had only been present on the recreation ground for two days when proceedings were taken against them”. In the words of Lord Hope, their 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”. “Unlike the applicant and the family in Connors they never had any right of any kind to make their home there. They were trespassers.” (Lord Hope in Kay at paragraph 612).

It remains the law in my judgment that ordinarily, absent any statutory obligation to do so, a landowner, even if a local authority, does not have to justify his decision to seek possession in exercise of his property rights and does not have to give any reason for seeking possession, let alone make good such reason.

Hence, just as importantly for present purposes as the test of lawfulness to be applied if the decision under challenge is in fact put under the requisite scrutiny of the equivalent of a judicial review, sight must not be lost of the principle established in Kay that the county court Judge will not reach the stage of a trial of the issue raised by the pleading of a “gateway (b) defence” unless he has first decided that the defendant has a seriously arguable case to be tried. In many ways Judge Copely when considering how to proceed under CPR 55.8 was in a similar position of the single Judge in the Administrative Court in having to decide whether permission should be granted to apply for judicial review, save the test is whether the ground is seriously arguable, not for example merely capable of argument.

The guidance given by Lord Bingham in Kay at para 39 on how this preliminary question is to be approached, is pertinent: (again the emphasis is mine):

Thus to revert to the position faced by Judge Copely in these proceedings at the hearing on the 13 of May, just two weeks after the claim had been issued, the question the court had to pose itself when considering whether there were any apparently substantial grounds put forward for disputing the claim (within the meaning of CPR 55) by reference to a pleaded defence to possession based on the public law defence recognised in Kay and Doherty, was whether on the material before the court it was seriously arguable that, on the basis of the matters and factors known or ought to have been known by it at the time, the Claimant had improperly exercised its powers at common law so as to come to a decision to which no reasonable local authority could have come, or which no reasonable person would consider justifiable.

In the present case the material before the Judge consisted of the pleadings, and witness statements provided on behalf of both the Appellant and the Respondent, in particular exhibiting the correspondence passing between the parties both before, at the time of and since the termination of the toleration. I agree with the submission of the Respondent that this case in reality raised no matters of great complexity. There is no issue here but that the Judge recognised the threshold test he had to apply if he was to find substantial grounds for disputing the claim in the context of the particular defence raised, that is to say it had to be “seriously arguable”. The essential question raised on this appeal is whether he was entitled without more to conclude that the threshold had not been crossed.

Since preparing my above analysis of what in my judgment is the effect of Doherty on the decision in Kay, I have had my attention drawn to the recent decision of the Court of Appeal in Margaret Doran v. Liverpool City Council [2009] EWCA Civ 146 in which this issue was directly before the court albeit in the slightly different context of a decision by a local authority to issue a notice to quit and to seek possession of a site in respect of which the occupier Irish Traveller had previously been granted a licence under a written licence agreement. The case involved consideration in part of amended statutory provisions giving the court granting a local authority an order for possession of a protected site within the meaning of the Caravans Site Act 1968, the power to suspend the execution of any order. These do not bear directly on the present case. However Lord Justice Toulson in the course of a judgment with which the other members of the court expressed agreement, did state his views on the effect of Doherty in a way which does not lead me to conclude that I should revise my own analysis. The relevant passages are at paragraphs 48 to 52:

“48.

As I see it, the effect of Doherty is two fold.

49.

First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council’s decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Such factors are not automatically irrelevant simply because they may include the licensee’s personal circumstances, such as length of time of occupation. In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.

50.

Secondly, the question whether the council’s decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.

51.

There is no conflict between these two propositions, which should be capable of being applied without additional complexity. As Baroness Hale observed in Kay at para 190, in a passage cited by Lord Walker in Doherty at para 108:

“It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council [2006] EWHC 301 (Admin).”

52.

Having said that the question whether the council’s decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment. (See the judgment of Lord Walker in Doherty at para 109).”

Doran also confirmed that the reasonableness of the local authority’s decision, for the purposes of considering the public law defence, has to be judged by reference to the material known or which ought to have been known to the council at the time of so deciding. The court expressly rejected a submission that the public law defence under gateway (b) enabled the court retrospectively to find the decision unlawful on the facts found by it, even if the decision was not unreasonable on the material available to the council at the time. The court rejected this submission both as unsound both in principle and authority. On principle Toulson LJ said this at paragraph 58:

In my judgment the argument is unsound in principle and on authority. As a matter of principle, if the decision to issue a notice to quit was not unlawful at the time of the service of the notice, the notice was valid. I cannot see a principled basis on which a notice valid at the time of service could be retrospectively invalidated by reason of later developments.”

On authority, he said this in relation to Doherty at para 60:

“60.

Mr Berkley sought to argue that this approach was implicitly inconsistent with the approach of the House of Lords in Doherty. He had to argue that the supposed inconsistency was implicit, because there is nothing explicit in Doherty to support Mr Berkley’s argument. Nor can I see anything in Doherty which provides implicit support for it. The purpose of the remission ordered in Doherty was so that the court could probe the facts on the basis of which the council had made its decision, relating to the council’s plans for the future use of the site. Lord Hope stated at para 55 that the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. It cannot therefore have been envisaged that the court would make a judgment of the reasonableness of the council’s decision otherwise than on the facts as they reasonably appeared, or should have appeared, to the council at the time of making its decision.”

With the above exposition of principle in mind, I turn now to the grounds raised on this appeal.

One of the principal grounds is that there were in themselves sufficient facts and circumstances material to the Appellant’s position asserted in particulars (a) to (h) (the circumstances particulars) of the pleaded public law defence, to raise a seriously arguable case that the decision to evict was Wednesbury unreasonable in the sense explained in Kay, and that the judge ought either to have given case management directions for the trial of the claim in accordance with 55.8 so as to give the Appellant the proper opportunity to present evidence in support of this defence and for the court then to conduct the review contemplated in Kay and Docherty, or at the very least the Judge ought to have tried the issue there and then by giving the Appellant the opportunity before him to present the defence and to call evidence and by permitting her to test the evidence presented by the Respondent.

I reject this ground of appeal. Even accepting all the assertions of fact asserted in these particulars to be true, I do not consider there would be any prospect of a court finding that the decision to seek possession in the circumstances of this case revealed in the material before the court, to be within that exceptional class identified in Kay namely one which no reasonable person would consider justifiable, bearing in mind as already indicated, that any assessment of the reasonableness of the decision involves a consideration of the factors of which the Respondent knew or ought to have known at the time the decision to seek possession was made, i.e. the 7^th of April 2008.

Unlike the cases of Connors and Kay, this was not a case involving the eviction of a traveller and her family from a Pitch upon she had lawfully lived as her home for many years. This was a case of short time occupation beginning in January 2007 for the most part as a trespasser. It was only as long as it was because of a three month toleration of her occupation by the Respondent following welfare checks into her circumstances, taking into account relevant directives and guidance, and I agree this should not be a factor which can be adverse to the Respondent. As a matter of fact (although this is said not to have influenced the decision to evict) the Appellant was offered a permanent licence on another pitch and gave no reason at the time it was refused, although she now says she was genuinely concerned for the safety of herself and her children because of warring factions. As the Respondent submits, eviction was only sought after another pitch was offered and refused and proper advice given that a homelessness application could be made. I agree that any reason the Respondent gave for wanting possession, namely for extended office accommodation to manage the site which had been the pitch’s original purpose, would have to be assessed against that background.

This was not therefore a case of a local authority attempting to evict a traveller family from their longstanding lawful home simply to build an office, and would not in my judgment begin to be the sort of case identified by Lord Brown where the local authority would need “to make good and justify any underlying reason for taking such precipitate action”. I reject the suggestion that it must without more be perverse to evict an unauthorised occupant from a traveller site unless it is to be used for occupation by another family (one interpretation of the factor pleaded at (h)). At first blush the factors identified in particulars (c) (d) appeared to be predicated upon the proposition that as a matter of law there was an obligation upon the respondent local authority landowner, not exercising its function under the homelessness legislation, to offer suitable alternative accommodation before it could seek possession as against an unauthorised occupant. This would be patently bad law. Mr Willers however made clear he sought only to rely upon these matters as assertions of fact which when taken with the other pleaded factors ought to give rise to a seriously arguable case of Wednesbury unreasonabless. In my judgment however in the circumstances of this case they just do not. This case is far removed from the facts of Doherty. On the facts of Doherty, as Lord Justice Toulson himself observed in the passage already cited, where the family had been in occupation for a substantial time without causing trouble and the council wanted to use the site in a different way, it was arguably relevant whether the council had taken steps to offer the family or help them acquire alternative accommodation, and I accept that a positive obligation to facilitate the gypsy way of life might in this context be relevant to any review of the reasonableness of the decision to evict. However in this case, as I have already stated, the Pitch 32 had never been the Appellant’s lawful home in any true sense, the occupation for the most part as a trespasser was short lived, the Respondent had made the offer of a permanent licence on a pitch elsewhere which had been refused without any reason given, and had purportedly offered advice on available housing choices elsewhere.

Of course the duty to provide or offer alternative suitable accommodation can arise under the obligations of the Respondent local authority imposed upon it under the homelessness provisions but it is not these duties which are under consideration in the instant case and indeed as already indicated, Mr Willers has conceded that it is no part of his case on this appeal that the Respondent has failed to comply with any of its duties owed under the homelessness legislation. But even if this were his case, this could not be a consideration relevant to the present proceedings in my judgment but would be relevant to any challenge, if one be brought, to that which the Respondent may or may not have determined as a result of the homeless application which has since been made. Indeed I have to say that many of the submissions made to me on behalf of the Appellant appeared premature and more apposite to a challenge to a homelessness decision of the Respondent, which as at the date of the hearing before Judge Copely had yet to be made, wearing a hat different from that worn in the present proceedings.

I of course appreciate that it is a plank of the claim to Wednesbury unreasonabless in this case that it was unreasonable to that degree for the Respondent to seek possession of Pitch 32 on the basis of a determined licence of toleration, before the Appellant’s homelessness application submitted by the letter of the 17^th of April 2008, had been determined. However, I can see no sensible basis for such a claim in the circumstances of this case, even accepting as I have, contrary to the Respondent’s submission, that as from the 25^th of April, the Appellant may well have qualified as homeless.

The decision of Collins J. in R (McCarthy and Others) v Basildon District Council [2008] EWHC 987 (Admin) has been cited to me in support of the proposition that a decision to take direct action under section 178 of the Town and Country Planning Act 1990 to evict a large number of travellers from land which they had occupied without planning permission was amenable to judicial review on the basis that the authority had failed properly to consider the ramifications of its decision in terms of its obligations under the homelessness legislation, and that as a matter of principle, a Respondent such as the present ought to take account of the likely consequences which would flow from a decision to seek possession – in this case it being said (to quote the post hearing written submissions of Mr Willers) that it ought to have taken into account the fact the Appellant and her family were homeless, her homeless application remained resolved, and that eviction could force the Appellant’s family onto roadside encampments (reflecting pleaded particulars (b)(e)(f)).

However the circumstances of the present case are very different from those prevailing in McCarthy. Leaving aside that as at the 7^th of April there appears to have been no suggestion made to the Respondent’s officers about the lack of pitches elsewhere and as at that date no homeless application had been made to the Respondent, there is absolutely nothing in the material which was before the court below to suggest that in this case the Respondent was not fully aware when it wrote the letter of the 7^th of April that a homelessness application might thereafter be made and indeed that letter advised the Appellant that a homeless application could be made to itself and explained how. And of course once the homelessness legislation has been triggered, assuming the Appellant be correct in asserting homelessness for the purposes of the duties which can arise under the 1996 legislation, including the obligation under section 188 (if those provisions be satisfied) to provide interim suitable accommodation, any duty owed under Part V11 on the part of the Respondent, if it arose, could only be lawfully discharged by the provision of suitable accommodation, and a failure to do so would be amenable to a court challenge. The issues under factor (f) in these circumstances would not arise.

For these reasons I can see no basis for the saying that there was here based upon the factors listed at particulars (a) - (h) a seriously arguable case that the decision of the Respondent in this case to seek possession was (to use Lord Scott’s words) so unreasonable and disproportionate as to be unlawful or one (to use those of Lord Hope) ‘which no reasonable person would consider justifiable’.

But then complaint is made that in his judgment, HH Judge Copely, “failed to give any adequate or intelligible reasons for his conclusion that the Appellant’s ‘Wednesbury defence’ (a reference to the factors listed at particulars (a) to (h)) did not raise substantial grounds for disputing the claim”, and hence “there must be a very real doubt whether the Judge gave this aspect of the defence proper consideration”.

There is however nothing in this complaint in my judgment.

It is true that the judgment for the most part concentrates upon that part of the public law defence which pleads failures to take account of relevant considerations and the failure to comply with specified duties (i.e. that set out in particulars (i) to (x) of paragraph 20) rather than the circumstances pleaded at (a) to (h); and that at paragraph 10 the Judge poses the question as being for Mr Willers’ “to satisfy the court that the point is seriously arguable, that is that he can demonstrate that the Claimants have failed to deal with all those matters which he refers to in paragraph 5 and paragraphs (i) to (x) of paragraph 20 of his defence,”; and in granting the order he did so on the basis that “there is simply no evidence to suggest even a prima facie case that the local authority has failed to do that which it was obliged to do”. However in paragraph 7 of the judgment there is express reference to the Appellant’s contention that “given the circumstances” of the case the decision to seek possession was “Wednesbury unreasonable and unlawful”. This has to be a reference to all the circumstances set out in paragraph 20 and there is no real basis for this court considering that the court below did not have the entirety of the pleaded Wednesbury defence in mind when concluding it was not seriously arguable.

In any event this aspect of the appeal must be to nothing unless the Appellant can establish that the court below was wrong not to find that this aspect of pleaded defence was seriously arguable, irrespective of whether adequate reasons were given for not so doing. For the reasons already given by this court however, the argument that it was seriously arguable was in my judgment just not sustainable. Hence this ground of appeal fails.

The other principal ground of this appeal relates to the Judge’s approach to this other aspect of the pleaded public law defence. The material ground (ground (v)) reads:

In his judgment, the Judge stated that for this aspect of the public law defence to be seriously arguable it was for the Appellant to demonstrate that the Respondent had failed to deal with the matters referred to in paragraphs (i) to (x) of paragraph 20 of the defence, but as “there was nothing on any of the papers, witness statements, or anywhere else to indicate that the local authority has failed to take into account any of the matters” “so fully pleaded by Mr Willers”, the Appellant simply did not “get off the ground” “with that assertion”. He accepted the submission on behalf of the Respondent that this was no more than a “fishing expedition” to try and get the local authority to prove his case for him which would be to reverse the burden of proof which was upon him to establish his defence, “and is not the way in which the Court should proceed”.

The Judge summarised his conclusions in these terms in paragraph 11 of his judgment:

For present purposes I shall assume that all the matters pleaded in (i) to (x) of paragraph 20(i) were relevant statutory duties / considerations which if they were not complied with or taken into account had the potential for vitiating the decision of the local authority to seek possession on conventional public law grounds as contemplated in Kay and as explained in Doherty. In so far as the Judge (which I am far from convinced he was) was in the passages to which I have referred holding that for the defence that there was here an improper exercise of power by the local authority by reason of such pleaded failures to be seriously arguable, the defendant had at this stage to prove by evidence that these failures, had in fact occurred, I would accept he would not have been approaching this preliminary issue in a proper way. Again, as Lord Bingham said in Kay:

On the other hand for a case to begin to be seriously (my emphasis) arguable there has to be some compelling material before the court to suggest that the relevant duties were not complied with or the relevant considerations ignored or not properly regarded. Absent, as is conceded to be the position here, any evidence directly suggesting this to be the case, there has to be something in my judgment identifiable in the known circumstances of the decision to terminate the licence and to seek possession which appears to be incompatible with the relevant duties and or factors The defendant cannot in my judgment make out substantial grounds for disputing the claim on public law grounds, by simply without more pleading matters which accurately ought to have been taken into account or duties which ought to have been complied with by the Respondent local authority. I agree with the judge that the burden is on the defendant to demonstrate a seriously arguable case, and a seriously arguable case cannot be made out simply by assertion of potentially material failures.

The fact is that the Appellant could point to nothing in the known circumstances of this case to suggest that the Respondent had in fact failed with regard to the matters pleaded in (i) - (x). In these circumstances on the basis of the material then before him, the Judge was bound in my judgment to reach the conclusion he did, namely the defence raised had not been shown to be seriously arguable.

I thus reject the first submission made under this ground of appeal that absent any evidence that ‘the important matters listed in pars (i) to (x) of para 20(i) of the defence had been taken into consideration, the Appellant’s defence “clearly” passed the substantial grounds test.’ To uphold such submission would as the Respondent submits, be an impermissible shift in the burden of proof. I agree with Miss Bretherton that this amounts to “asserting a shift in the burden of proof in cases where a public law defence is raised in possession proceedings as opposed to where it is raised in a conventional application for judicial review and no authority has been cited to support of this novel proposition”.

However Mr Willers now seeks to take a further and different point, namely that it was procedurally unfair for the county court Judge to have determined the preliminary question relating to the existence of substantial grounds to dispute the claim simply on the material then before the court and he should, before deciding this question, at least have ordered further disclosure by the Respondent on the reasons lying behind its decision to seek possession and relating to the matters they took into account, or alternatively at least given the Appellant the opportunity to cross examine the Respondent’s witnesses on these matters.

This point is said by Mr Willers to raise an important question on how the county court faced with a claim for possession under CPR 55 should approach its task of determining the preliminary issue of whether there are apparently substantial grounds for disputing the claim when the defence sought to be raised is based on public law grounds. His overall submission is that a defendant who seeks to challenge on public law grounds a local or other public authority landowner’s decision to seek possession against him, should not be disadvantaged by the fact he is now, following the decisions of the House of Lords, expected to raise these grounds as a defence to the substantive claim in the possession proceedings issued by the local authority in the county court, rather than by him as claimant issuing separate proceedings in the Administrative Court for judicial review of that decision under the procedures set out in CPR 54. In other words it is said that the change of forum should not prejudice the defendant’s ability to raise a public law defence to such a decision.

Mr Willers frankly conceded that in the absence of any disclosure by the Respondent, the Appellant had been unable to discover whether it took into account all relevant considerations before reaching its decision to seek possession of Pitch 32 and hence the Appellant had only been able to point in her defence to matters which ought to have been considered. He highlighted that the only explanation for the Respondent’s decision to seek possession had been that given in the letter of 7^th of April and that although the Appellant’s solicitors had by their letter of the 17^th of April sought further information from the Respondents relating to the relevant considerations taken into account, including copies of relevant minutes, and the nature and extent of any welfare enquiries, the reply provided by the Respondent by their letter of the 21 April had not been forthcoming, stating bluntly that “the position at law is that your client was a tolerated trespasser whose permission to stay on the premises has now been ended by the freeholder. The freeholder does not have to justify the decision or give reasons for it”.

His basic premise however is that if the Appellant had been able to challenge the Respondent’s decision by judicial review then she would at a pre action stage have been able to request a fuller explanation for the reasons for the decision pursuant to the judicial review Pre-Action Protocol with which, under the material court practice, both parties would be expected to comply. Under that protocol there should ordinarily be a letter before claim in a standard format which amongst other things provides for requests for further information which the claimant considers relevant, and may include “a request for a fuller explanation of the reasons for the decision being challenged” (see Annex A to the Protocol at paragraph 9). The protocol contemplates a reply from the defendant, which in this case would have been the local authority, within 14 days. According to Mr Willers, if the proposed claim was defended then “the defendant would be expected to give reasons for so doing”. He further points out the procedure in judicial review proceedings, once a claim has been issued, under which a defendant who wishes to take part in the proceedings must file an acknowledgment of service and provide a summary of the grounds on which the claim is contested, and further that the court would not normally determine the preliminary question of permission prior to receipt of such summary grounds. He highlighted the expectation in judicial review proceedings that the parties would make full and frank disclosure to the court.

Hence, and given that the determination by the county court of the preliminary question of whether the public law defence is seriously arguable may be thought to be the equivalent of the determination of permission in judicial review, he argues that a county court judge when faced in possession proceedings with a public law defence, should adopt an approach which accords with the practice in judicial review proceedings or at the very least should modify the approach he might otherwise take in a case not disputed on public law grounds, to ensure that his decision on this preliminary question is “fair and proportionate”. Hence Mr Willers submission that “fairness and justice” required the Judge in the present case to order the Respondent to disclose what factors it took into account in deciding to seek possession or at the very least required the Judge to permit the Appellant to cross examine the Respondent’s witnesses on the point, before proceeding to decide whether the pleaded defence passed the “substantial grounds” test.

In oral submission Mr Willers expanded on the different types of order a county court judge in the position of Judge Copely ought to have considered making, namely that there be disclosure within a given time of all material which the Respondent took into account in deciding to seek possession and/or of all the reasons and/ all factors which led it to conclude an order for possession should be sought; that both parties have permission to file further evidence within x days; that the case be relisted for further consideration of the question under CPR 55 of whether there are substantial grounds for disputing the claim.

All these submissions are based on the contention that fairness demands that at the stage the question of whether there are substantial grounds to dispute the claim, is being considered by the court, the defendant should be in no worse position than she would have been in, in equivalent judicial review proceedings; that accordingly, prior to the determination of this question she should not be kept in the dark as to the reasons for the decision taken and the factors taken into account, and should be given an opportunity to test the evidence in support of these matters.

Underlying it is a basic complaint that the Respondent has not given a properly reasoned decision and it is premised on the assumption that had these been judicial review proceedings the Appellant before permission was determined, would have necessarily been further appraised of the reasons and factors taken into account than the Appellant currently is. This premise in my view is misconceived. This case does not involve a challenge to a decision for which by law the decision maker was obliged to give reasons to enable an applicant to see if the decision were amenable to judicial review, and which can be vitiated in judicial review proceedings on that ground alone, as for example one under Part V11 of the Housing Act 1996 or decisions taken under the Town and Country Planning Act 1990 (see South Buckinghamshire DC v SSTLGR and Porter (No 2) 1 WLR 1953 at paragraph 36). In the context of this particular decision, the reliance upon the Judicial Review Pre Action Protocol does not take the matter of the giving of reasons any further. The Protocol is not in principle designed as a method of pre – action fact finding or obligatory disclosure. The Protocol is in fact simply a sensible device to avoid unnecessary court process. It could not be used in the present context to oblige a local authority to give further disclosure or to justify its challenged decision although of course it might in any response choose to do so. According to Mr Willers, if a proposed claim for judicial review is to be defended then the defendant in any response to the letter before claim would be expected “to give reasons for so doing”.However this is not the same as giving reasons or further reasons for the decision under challenge. The Protocol states merely that the response may provide a fuller explanation for the decision if considered appropriate to do so and where it is not proposed to disclose any information that has been requested’ to explain the reason for this. (see Annex B paragraphs 4 and 5)

Of course I accept that there may be exceptional situations where the failure to give reasons for a decision of the present kind may give rise to an inference that, absent a satisfactory explanation, there has been an improper exercise of powers on the part of a local authority landowner in seeking to exercise its property rights even where there is no legal obligation to give such reasons. However, this would be in an exceptional case where the circumstances are such that without more it appears seriously arguable that the decision was one which no reasonable person would regard as justifiable and which calls for the court to subject the decision to the equivalent of a full judicial review requiring the local authority to explain and make good its underlying reasons for such decision. Such arguably were the circumstances prevailing in Connors. But for the reasons already given however this present case cannot be so characterised.

Thus I have no hesitation in rejecting this further ground of appeal based on procedural unfairness. If the court were to have made the sort of pre - determination order suggested by the Appellant, it would be tantamount to putting the burden upon the local authority to demonstrate that it had exercised its powers properly. I agree that this is an impermissible reversal of the burden of proof. It would moreover in my judgment run wholly counter to the guidance given by Lord Bingham in Kay that the question whether the defendant has a seriously arguable case should be decided summarily. There is certainly no suggestion in Kay or Doherty that the House of Lords was contemplating a wholesale transfer or even a modified transfer of judicial review procedures to the county court.

For all these reasons, this appeal is dismissed.