Landlord and tenant

Human rights – Local government – Caravan sites – Gypsies – Possession claims – Travellers

William Doherty & Ors (appellant) v Birmingham City Council (respondent) & Secretary of State for Communities & Local Government (intervener): HL (Lords Hope of Craighead, Scott of Foscote, Rodger of Earlsferry, Walker of Gestingthorpe, Mance): 30 July 2008

The appellant traveller (D) appealed against the dismissal of his appeal ([ 2006] EWCA Civ 1739) against an order for his eviction from a caravan site, owned by the respondent local authority, on the basis that his removal would violate his right under article 8 of the European Convention on Human Rights.

D had been granted a licence by the local authority to station a caravan on the site, used as a Gypsy and ­travellers’ caravan site, in 1987. When the local authority served notice to quit, D and his family had been ­resident on the site for 17 years. The local authority asserted that it required vacant possession to carry out essential improvement works, and that once the works were completed the site was to be managed as ­temporary accommodation for ­travellers. D maintained that the local authority was only entitled to an order for possession if it was proportionate in all the circumstances of the case, and that the circumstances of the present case did not satisfy that test.

D relied on article 8, and on the local authority’s duty not to act in a way that was incompatible with a convention right under section 6(1) of the Human Rights Act 1998. The ­question was whether a local authority could obtain a summary order for ­possession against an occupier of a site which it owned, and which had been used for many years as a gypsy and travellers’ caravan site.

D submitted that in making a ­possession order in favour of the local authority, the judge had applied the common law and not a statutory ­provision. D argued that the local authority’s decision to seek ­possession, and the judge’s order for possession, were therefore not ­covered by section 6(2) of the act, and were unlawful, since they infringed D’s article 8 rights. D submitted that his case was indistinguishable from Connors v United Kingdom (66746/01) [2005] 40 EHRR 9 ECHR and that it fell within gateway (a) as described in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465.

D submitted alternatively that the court should make a declaration of incompatibility, and the case should be remitted to the county court to enable him to present a defence under ­gateway (b) in Kay.

Held: (1) At common law a landlord was entitled to possession of ­premises if the tenant’s lease, or ­tenancy, or licence had expired or had been validly terminated. The local authority’s common law right was ­surrounded by statutory infrastructure, and the Caravan Sites Act 1968 and the Mobile Homes Act 1983 conferred some protection on those who made their homes in caravans. However, the words of section 5(1) of the 1983 act were a clear indication that Parliament intended that the law should be ­different in respect to Gypsy caravan sites provided by local authorities. In the present case, the composite legal scheme clearly reflected the intention of Parliament and section 6(2) did apply.

(2) The basic rule remained as laid down by the majority in Qazi v Harrow LBC [2003] UKHL 43, [2004] 1 AC 983, and reaffirmed by the majority in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, and county court judges should continue to follow the guidance given in Kay, Qazi and Kay applied. Although in McCann v United Kingdom (19009/04) [2008] BLGR 474 ECHR the European Court of Human Rights endorsed the reasoning of the minority in Kay, and practical ­recognition must be given to the ­principles laid down in judgments from the European Court of Human Rights, that could be done in the present case by applying and developing the ­reasoning of the majority, McCann considered. Until the European Court of Human Rights had developed ­principles on which the English courts could rely for general application, the only safe course was to take the decision in each case as it arose.

The point of automatic possession proceedings was generally to provide a quick and reliable way for a public authority to evict tenants whose lease had been terminated by the operation of law. A procedure which gave a ­discretion to the court by requiring it to consider whether, having regard to article 8, the making of the order would be proportionate would be ­inimical for that purpose.

(3) The modification that was made to Qazi to accommodate the decision in Connors applied to the present case. Special considerations of the needs of Gypsies and their different lifestyles required that D must be able to insist that it be shown that there was a proper justification for the ­decision to seek a possession order. If it could not be shown that the local authority’s decision to evict him was justified by a pressing social need and was proportionate, there was a risk that D’s rights under article 8 would have been violated, Connors applied.

(4) The Court of Appeal was correct to hold that there was no arguable basis for asserting that the ­incompatibility of the local authority’s decision could be dealt with under gateway (a). It was not possible for a solution to the present case to be found in part (i) of gateway (a) by making use of the interpretative obligation in section 3(1) of the 1998 act. The need to make a declaration of incompatibility in relation to section 5(1) was removed by the Housing and Regeneration Act 2008.

(5) The case should be remitted to the judge so that he could examine D’s defence under gateway (b). An ­examination of whether the local authority’s decision was reasonable, having regard to the aim it was ­pursuing and to the length of time D and his family had lived on the site, was appropriate. The test of ­reasonableness should be whether the decision to recover possession was one that no reasonable person would consider justifiable, Kay applied.

Appeal allowed.

Jan Luba QC, Alex Offer (instructed by the Community Law Partnership) for the appellant; Ashley Underwood QC, Douglas Readings (instructed by the in-house solicitor) for the respondent; Philip Sales QC, Daniel Stilitz (instructed by the Treasury Solicitor) for the intervener.