FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 66746/01
by James CONNORS
against the United Kingdom
The European Court of Human Rights (First Section), sitting on 14 November 2002 as a Chamber composed of
MrsF. Tulkens, President,
SirNicolas Bratza,
MrG. Bonello,
MrP. Lorenzen,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 29 January 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr James Connors, is a United Kingdom national, who was born in 1955 and lives in or about Lancashire. He was represented before the Court by Mr K. Lomax, a lawyer practising in Leeds.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his family are gypsies. They led a traditional travelling lifestyle until they suffered so much from being moved on with ever increasing frequency and harassment that they settled on the gypsy site run by the local authority at Cottingley Springs. They lived there permanently for about thirteen years, until February 1997 when they moved off. They state that they moved off the site at that time as they had suffered from unsocial behaviour by others living on the site and others who came onto the site, e.g. vehicles being driven round the site at night, violence and disturbances such that they could not sleep at night or the children play safely during the day. They moved into a rented house but were unable to adapt to these conditions. They gave up their tenancy when offered two plots for the family at Cottingley Springs.
The applicant returned to the site with his family in October 1998.
By a licence agreement dated 22 October 1998, Leeds City Council (“the Council”) granted the applicant and his wife a contractual licence to occupy plot no. 35 at Cottingley Springs caravan site in Leeds. The licence in Clause 12 required the applicant as occupier to comply with the Site Regulations, while Clause 18 stated:
“No nuisance is to be caused by the occupier, his guests, nor any member of his family to any other person, including employees of the Council, the occupiers of any other plots on the Site, or occupiers of any land or buildings in the vicinity of the Site.”
On 29 March 1999, the applicant’s adult daughter Margaret Connors was granted a licence to occupy the adjacent plot, Plot 36, where she lived with Michael Maloney who later became her husband. She also cared for the applicant’s mother-in-law, Margaret Kelby until she went into a residential nursing home in the area. The applicant’s adult sons, James Junior and Joseph, did not reside with the applicant but were frequent visitors both to his plot and their sister next door.
During 1999, the applicant and his family were in dispute with the Council due to its alleged failure to undertake repairs on Plot 36 (there was no electricity supply or other facilities for some time), their objection to paying electricity charges which they considered to be overcharging and concerning the Council’s refusal to accept payment by instalment for the site deposit. Their complaints were referred to the Local Authority Ombudsman to investigate.
The Government state that the applicant’s children (including his adult sons James Junior and Joseph) and Michael Maloney misbehaved and caused considerable nuisance at the site. The Council’s Travellers Services Manager, based at the site, was aware of many incidents of nuisance caused by the applicant’s children and visitors. The Manager visited the applicant and Margaret Connors on a number of occasions to report the misbehaviour and nuisance. On 16 December 1998, the Council gave the applicant written warning that further incidents of anti-social behaviour by his children could jeopardise his occupation of the plot. Nevertheless, both the applicant’s children and his visitor Michael Maloney continued to cause nuisance at the caravan site.
In January 2000, when it became known that Margaret Connors was going to marry Michael Maloney, the applicant alleges that the Council manager of the site stated, “The minute you marry Michael Maloney you’ll be out that gate”. Michael Maloney was a member of a family against whom proceedings had previously been brought for eviction from the site on allegations that they were “a magnet for trouble”. In February 1997, the Maloney family had moved from the site. They remained in the Leeds area until the summer of 1999 when they went to Nottingham.
On 31 January 2000, notice to quit was served on the family requiring them to vacate both plots. No written or detailed reasons were given by the Council, though the issue of “magnet for troublemakers” had been raised.
On 12 February 2000, Margaret Connors married Michael Maloney and they continued to live on Plot 36.
On 20 March 2000, the Council issued two sets of proceedings for summary possession pursuant to Order 24 of the County Court Rules, one concerning the applicant and his wife and family on Plot 35 and the other against Margaret Connors and “persons unknown” on Plot 36. On 24 March 2000, the applicant was served with various documents. The grounds for possession stated that the defendants were in occupation without licence or consent. In the witness statement dated 17 March 2000, the site manager referred to Clause 18 of the licence agreement and asserted that the defendants had breached the licence agreement and that he had given them notice to quit. No particulars of breach were given. He also asserted that the necessary investigation into the needs of the defendants had been made in accordance with the guidelines at the Department of the Environment Circular 18/94.
The applicant disputed that they were in breach of Clause 18, that any possible alternative approaches had been taken to any problems and also that any appropriate enquiries had been made into their welfare.
At this stage, the applicant’s family consisted of his children Charles aged 14, Michael aged 13, Daniel aged 10 and Thomas aged 4 months. Thomas had been suffering from serious illness, with kidney problems and rashes of unknown origin, while the applicant’s wife, who was asthmatic, had suffered several attacks requiring visits to hospital. The applicant himself had been having chest pains and was awaiting a hospital appointment. Daniel had settled well into full-time education at the nearby primary school, and the others were receiving assistance, including teaching at home.
The Council served further witness statements containing particulars of the allegations of nuisance. These were disputed by the applicant. They related largely to Margaret and Michael Maloney on Plot 36.
On 14 April 2000, the summary possession proceedings were adjourned pending the determination of the applicant’s application for permission to apply for judicial review of the Council’s decision to determine the licence of his plot which had been lodged on 10 April 2000. During the hearing, Margaret and Michael Maloney indicated an intention to leave the site. As the bulk of the complaints were against them, the applicant states that the Council were requested to review its decision to terminate the licence of the applicant and his family.
On 12 May 2000, the High Court refused permission to apply for judicial review. The judge rejected as unarguable that the applicant had neither been given prior warning of the threat of eviction nor a proper opportunity to answer the allegations of misbehaviour and nuisance made against his children and visitor.
On 16 May 2000, the applicant applied to the Director General of Fair Trading for a ruling that the terms of the licence agreement were unfair, in particular that Clause 18 was unfair in holding him responsible for the actions of visitors whom it was not reasonable to expect him to be able to control.
The Council took the decision to proceed with the eviction. It dropped the allegations of breach of licence and asserted a right to summary possession on the basis that the family were trespassers as permission to occupy the land had been withdrawn. On 19 June 2000, the County Court granted a possession order. The Council undertook not to execute a warrant for possession until 14 July 2000 on condition that the applicant and his family were of good behaviour and kept the peace.
Further representations were made by the applicant to the Council without success.
On 13 July 2000, as the applicant had not given up possession, the Council obtained a warrant for possession of the plot. The Government state that the applicant and his family barricaded themselves in the plot and refused to leave when the County Court bailiffs attended to execute the warrant. The Council applied to the High Court for enforcement of the order for possession. On 24 July, the High Court ordered the Sheriff to execute the warrant for possession. The Sheriff’s officer, the bailiffs and the West Yorkshire police carried out a planning and risk assessment. The Sheriff’s officer attended the site and requested the applicant to vacate the plot. He refused.
On 1 August 2000, early in the morning, the Council commenced enforcement of the eviction, in an operation involving Council officers, the Sheriff’s officers and numerous police. The applicant stated that there was in addition to dozens of police officers, a police helicopter, police dogs, control centre, numerous police vehicles and detention vans. The operation lasted five hours.
The Government state that the police arrested the applicant and his son Daniel for obstruction under section 10 of the Criminal Law Act 1977. The applicant stated that he was attempting to carry out items of property to a trailer when he was stopped by bailiffs and arrested. He was handcuffed and held in a police van for an hour and subsequently at the police station, though he was complaining of chest pains. At about midday, he was taken to hospital for emergency admission.
According to the applicant, his thirteen-year-old son Michael was also seized and held in a van by the police for five hours during the eviction. The applicant’s wife was left to cope alone, the baby Thomas being ill.
The family’s two caravans were removed (they owned one and the other was rented). The applicant states that it was not until late afternoon that their own caravan was returned to them. However many of their possessions were still held by the Council, including medicine needed for Thomas. During 3 August 2000, the Council returned their possessions, including a washing machine, drier, microwave, gas bottles, kettle and clothing. This was dumped on the roadside some distance away from the applicant’s caravan. The Government state that on 1 August 2000 the Council removed from the plot to safe storage goods and personal property that the applicant and his family had failed to take with them. At the request of the applicant, the Council returned these goods and personal property to the family who had meanwhile taken up occupation on land nearby at Cottingley Drive owned by the Council, where the presence of gypsies was sometimes tolerated for short periods. As they claimed it was not possible to get into the field to deliver the goods directly, the Council unloaded the goods at the edge of the field, informed the applicant and kept watch until they were collected.
A group of gypsies was at that time on the land at Cottingley Drive for the purpose of attending a wedding. This group did not however leave by 1 August as previously agreed, staying on to attend the funeral of a baby which had died on 31 July 2000. The Council prepared eviction proceedings and included the applicants as “persons unknown”. The applicant alleges that no assistance or advice was given to them as to where they could go, save for an offer of accommodation at Bridlington (on the east coast) which failed to take into account the local community ties of the family who had lived on Cottingley Springs site for most of 13 years and in the Leeds area for some 20 to 30 years.
An application for adjournment of the possession proceedings was rejected by the County Court on 14 August 2000. The applicant and his family moved from the land and are now without fixed address, moving around in the Leeds area stopping for a few days at a time.
The Government state that the applicant and his family have returned to the caravan site three times since as trespassers. The Council has made a claim for an injunction to ban the applicant and his family from entering the site. This claim is still pending.
B. Relevant domestic law and practice
(1) Provision for gypsy sites
Prior to 1994, the Caravan Sites Act 1968 provided in section 6 that it should be the duty of local authorities “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). In addition, approximately 100 million pounds sterling (GBP) was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites.
Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. The change in policy underlying the repeal was explained by the Parliamentary Under-Secretary of State:
“In the past 13 years the number of gypsy caravans stationed on unauthorised sites has remained broadly the same... The shortfall in provision has been largely due to natural growth in the gypsy population. Plainly site provision is barely keeping pace with the growth in demand and is not reducing the shortfall...
We recognise that council site provision has contributed to alleviating the difficulties experienced by the gypsy community. Indeed the predicament of gypsies in England and Wales is now far different from in 1968. At that time, probably fewer than 10 per cent of gypsy caravans in England and Wales were stationed on authorised sites, whereas the figure is now about 46 per cent. A further 24 per cent are on authorised private sites, and many more are stationed on tolerated sites where they are allowed to stay with reasonable security from eviction. ...
We believe that public provision of sites has now reached an acceptable level. Public accommodation has been provided for 46 per cent of the total number of gypsy caravans in England and Wales. We do not believe that it is in the public interest to continue to maintain what has become an open-ended commitment to provide sites for all gypsies seeking accommodation at the public’s expense. It is our view that the right approach now is to encourage more gypsies to establish their own sites through the planning system. We know that many gypsy families would prefer to establish their own sites rather than reside on council sites. The National Gypsy Council has for a long time supported the case for private provision. Private site provision has increased by more than 135 per cent since 1981. Our intention is to encourage that trend.”
Local authorities remain empowered to provide gypsy sites under section 24 of the 1960 Act and such sites remain the largest single component of the overall supply. Under current policy guidance, the Government have emphasised the importance that local authorities maintain their existing sites and consider if it is appropriate to provide further sites (Circular 18/94, paragraphs 21-22). In 2000, the Government announced that they were making available GBP 17 million over the period 2001-4 to help local authorities to maintain their sites.
(2) Unauthorised stationing of caravans
Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as
“a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”.
Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).
Guidance issued by the Secretary of State dated 23 November 1994 (Circular 18/94) concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”:
“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ...
8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.
9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”
Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales, and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.
(3) Security of tenure on caravan sites
Occupiers of gypsy caravan sites run by a local authority receive limited security of tenure pursuant to Part 1 of the 1968 Act. An occupier’s contractual right can only be determined by four-week’s notice and he may only be evicted by court order. Local authorities are in addition required to have regard to the guidance on best practice in managing gypsy sites, e.g. Circular 18/94 concerning statutory duties to support children, to house the homeless and make appropriate educational provision for school-age children. A local authority failing to have regard to that guidance might be subject to challenge by way of judicial review.
The Mobile Homes Act 1983 (the 1983 Act) confers further protection upon a person who lives in a caravan or mobile home as his only or main residence. Such a person may not be evicted save by court order and on the site owner having established one of the stated grounds, inter alia, that the court is satisfied that the occupier is in breach of the licence agreement and has failed to remedy that breach within a reasonable time and that it is reasonable for the agreement to be terminated. This protection was conferred on occupiers of caravans on privately owned residential sites and also the occupiers of local authority sites. However, section 5(1) excluded land run by the local authority as a caravan site for gypsies. The effect of this exclusion was analysed by the House of Lords in Greenwich London Borough Council v. Powell (1989) 21 HLR 218:
“... the intention of the legislature in the Act of 1983 was clearly to exclude from the definition of ‘protected site’ sites such as that at Thistlebrook provided by local authorities in discharge of their duty under section 6 of the Act of 1968 to accommodate those whom they bona fide believe to be gypsies because they are nomadic for part of the year, notwithstanding that they may establish a permanent residence on the site by returning from year to year; such a site will not become a ‘protected site’ even if some of the erstwhile nomads, as well they may, give up their nomadic way of life entirely. It would be different if the local authority adopted a policy of offering vacancies on the site to static residents with fixed full time employment...”
Secure tenants of conventional flats or houses provided or managed by local authorities under the Housing Act 1985 enjoy a similar regime of security of tenure to that conferred upon occupiers of a residential caravan site by the 1983 Act.
In a recent case Somerset County Council v. Frederick Isaacs [2002] EWHC 1014, a gypsy, whose licence to occupy a local authority site had been revoked for alleged misbehaviour, claimed in the proceedings brought for possession of the plot, that the eviction would be in breach of Articles 8 and 14 of the Convention and sought a declaration of incompatibility.
In rejecting the gypsy’s claims and ordering possession, the High Court judge found that the eviction of the applicant would interfere with his rights under Article 8 § 1 but that the statutory framework, as a matter of general principle and policy, satisfied the requirements of Article 8 § 2. He noted two general points:
“33. ... First, statutory regulation of housing and the consequences of such regulation are matters of some complexity. For example, while security of tenure may be to the advantage of existing tenants or licensees, it may be to the disadvantage of tenants and licensees generally. In the 1960’s, security of tenure for residential tenants and control of rents were reimposed under the Rent Acts. Doubtless those measures were in the short term interests of residential tenants. However, in the long term they led to a reduction in the supply of privately-rented accommodation, which, on one view, was disadvantageous to residential tenants and potential tenants generally. There is no simple equation between security of tenure and the public interest.
34. The second general consideration is related to the first. Housing is very much ‘the area of policy where the court should defer to the decision of Parliament’... The need for, and the consequences of, legislation in this area are matters for Parliament, not the court...
‘... We do not lose sight of the fact that courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide margin of appreciation in such matters... our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny’. Sheffield City Council v. Smart [2002] EWCA Civ. 04 per Laws LJ
35. The policy behind the exempting provisions was clearly stated by Lord Bridge in his speech in the House of Lords in Powell at 1012 ...:
‘Any other construction of ‘protected site’ in section 5(1) of the Act of 1983 would, it seems to me, cause great difficulties both for local authorities and for most of the gypsy community and would undo much of the good work which has been done in this difficult field. Those already established on sites like Thistlebrook would, of course, enjoy full 1983 security of tenure. But local authorities in the position of the council would need to start de novo to discharge their duty under section 6 of the Act of 1968. Many existing designations under section 12 would have to be revoked or would perhaps be automatically invalidated... For the future, local authorities establishing new sites providing accommodation for gypsies would have to be vigilant to prevent their residence acquiring any degree of permanency. This, I think, they could in practice only do by applying a short rule-of-thumb limit of stay, which would be quite contrary to the interests of the gypsy community.’
36. [Counsel for the defendant gypsy] submitted that this statement was no longer applicable as a result of the abolition of the duty of the local authority to provide sites for gypsies. I do not accept this submission. The statement of Lord Bridge is equally applicable to the sites which local authorities continue to provide, although they are under no duty to do so. Furthermore, as has been seen, central government guidance is that it is important for those sites to be maintained.”
The judge quoted at length the evidence of the Secretary of State’s department on the aims of the two statutory frameworks, one applying to all local authority gypsy caravan sites and the other to all other residential caravan sites run by local authorities and private owners:
“25. With Part I of the 1968 Act, and with the 1975 and 1983 Acts, Parliament sought to address specific problems of commercial exploitation experienced by occupiers of private sites. There has never been any evidence to suggest that such problems extend to local authority Gypsy sites, and accordingly those legislative provisions that are directed at those problems have not been extended to such sites. The problems faced by Gypsies were wholly different, relating primarily to the acute shortage of sites available to meet their particular accommodation needs. The said problems were addressed by Part II of the 1968 Act, and supplemented by the departmental guidance circulars issued to local authorities. By 1994, the scheme of part II of the 1968 Act was found to have served its purpose as far as it could reasonably be expected to do. There was now a substantial and valuable supply of Gypsy caravan sites provided and operated by local authorities. The emphasis of Government policy has now changed to one of encouraging Gypsies themselves to add to that existing supply. Nevertheless existing local authority supply remains an essential component of the Government’s strategy of securing an adequate level of accommodation for Gypsies. The policy of the 1994 Act is to maintain and safeguard that distinct source of supply.
26. Thus, I draw particular attention to the fact that the statutory protection afforded by Part 1 of the 1968 Act and the 1975 and 1983 Acts has been and still is available to Gypsies if they choose to reside at sites other than those provided by local authorities specifically for Gypsies. In general, the key difference between such sites has been the greater flexibility, which is usually available on local authority Gypsy sites, in order to accommodate the nomadic lifestyle of occupiers. This may allow Gypsies to remain on a site on a short-term basis, or to retain a site for 12 months of the year, while paying a reduced rent as a retainer during the few months of while they may be travelling in search of seasonal work. Other local authority sites and private sites, in general, are aimed at longer-term residential occupiers, without the need for such flexibility because they are not pursuing a nomadic lifestyle.
27. Nevertheless, there are of course a number of Gypsies who occupy sites on a long-term basis, and other mobile home residents who do not consider themselves to be Gypsies, but who prefer to occupy private sites on a more short-term basis. The aim of the separate statutory frameworks is to ensure diversity of provision to meet the varying needs of different individuals and families; it is not to classify or categorise individuals or families. Accordingly, Gypsies seeking to settle on a more permanent site may occupy private or local authority (non-Gypsy) sites and benefit from the scheme put in place by Part I of the 1968 Act and the 1983 Act. This diversity of public and private site provision reflects that which is available in housing generally.
28. The separate statutory framework allows for flexibility in meeting the accommodation needs of Gypsies. It appears that the Defendant is effectively arguing in these proceedings in favour of a single statutory framework applicable to all caravan sites, including local authority Gypsy sites. In my view, such a single statutory framework would be detrimental to the interests of Gypsies throughout the country. If the security of tenure provisions of that framework applied equally to local authority Gypsy sites, it would undermine the flexibility that such sites provide in catering for the varied lifestyles of Gypsies. Some may move from site to site on a regular basis, while others may be more permanently based on a site, possibly travelling for a few months each year to take on seasonal work. If each Gypsy were able to rely on security of tenure then every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. Furthermore, if there were no longer a distinction in the statutory framework allowing flexibility for the provision of Gypsy sites, then there would be nothing to prevent any person residing in a mobile home seeking to occupy a Gypsy site, whether or not they pursue a nomadic lifestyle. Inevitably, fewer sites, if any, could be made available specifically for Gypsies pursing a nomadic lifestyle.
...
32. Experience suggests that local authorities would face difficulties in managing sites if eviction were subject to broad discretionary powers of the courts to suspend or attach conditions to orders. There is a balance to be struck between the latter and the merits of flexibility (already mentioned) that such sites offer in catering for the varying accommodation needs of Gypsies. To this (and in favour of the existing position) must be added the fact that in reaching decisions about evictions local authorities, as responsible bodies, need to take into account the range of obligations and considerations outlined in paragraph 29 above. These amount to significant safeguards against unscrupulous or unjustified evictions. Furthermore local authority decisions in relation to eviction are open to challenge by way of judicial review.”
The judge concluded:
“38. While I am not over-impressed by the vagueness of the statement in paragraph 32 that ‘experience suggests’, applying the guidance given by Laws LJ in Smart, this evidence satisfies me that the exempting provisions are ‘necessary in a democratic society’, and a proportionate response to a social need, and do not amount to an infringement of Article 8. It is true that occupiers of exempted sites do not have the benefit of the safeguards applicable to introductory tenants. In practice, however, they are able to bring judicial review proceedings where the circumstances justify them, and I do not think that the absence of those safeguards substantially prejudices persons such as the Defendant. Moreover, any such safeguards would detract from the flexibility that Parliament has decided is appropriate for exempted sites. ...
39. I can deal with Article 14 quite shortly. The exemption in section 4(6) of the CSA is justified by the special position of local authorities and the policy considerations referred to above. The exemption is section 5 of the MHA depends on the status of the site owner as a local authority, and not on any personal quality of the licensee or tenant. It therefore raises no question of discrimination contrary to Article 14.
Conclusion
...
41. This conclusion is consistent with that of the Commission in P v. UK (App. No. 14751/89) which rejected as inadmissible the complaint by gypsies that their eviction from an exempted site infringed their rights under Articles 8 and 14. Mr Watkinson submitted that this decision was no longer applicable by reason of the abolition of the duty of local authorities to provide sites for gypsies. As I stated above, I do not regard this as a valid distinction between the present position and that before 1994. There are still sites provided by local authorities for gypsies, and indeed if there were none there would be no scope for section 5 of MHA.”
COMPLAINTS
The applicant complains under Article 8 of the Convention that actions taken by the Council in evicting them from the Cottingley Springs site was wholly disproportionate and failed to give proper consideration to the family’s welfare. This caused the family, and continues to cause them, distress and anxiety. The allegations of nuisance which were not tested in court proceedings did not justify eviction of the applicant and his family, in particular since they related to two adult children who did not live with the family or on the site. The applicant’s family had the support of the other site residents and there had been other less draconian steps that the Council could have taken in response to any alleged problems.
The applicant complains under Article 14 that the Council treats gypsies as a group differently from other tenants. Gypsies are denied tenancy status for plots on the site and therefore the protections attaching to that status. A tenant would have been able to challenge allegations by the Council as to the grounds justifying eviction and the courts would have ruled on the “reasonableness” of the making of a possession order, with consequent rights of appeal to higher instances.
The applicant complains under Article 6 that he was unable in the summary possession proceedings to challenge the Council’s allegations of nuisance whether by giving evidence himself or calling witnesses. The applicant was at a substantial disadvantage given the terms of the licence, in respect of which he had not been in a free bargaining position. There was no equality of arms and he was denied any remedy against the very serious interference with his home and family.
The applicant complains under Article 1 of Protocol No. 1 that the Council interfered with the applicant’s personal possessions by removing essential property, including their caravan and by removing and retaining various items of property. They failed to return the property promptly and when they did, they dumped it on the roadside.
THE LAW
The applicant complains of the eviction of himself and his family from the local authority site at Cottingley Springs. The following provisions are relevant:
Article 8 of the Convention:
“1. Everyone has the right to respect for his private and family life, his home ...
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 14 of the Convention:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 6 of the Convention:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 13 of the Convention:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1:
“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. ...”
1. The parties’ submissions
(a) Article 8 of the Convention
The Government accept that the licence agreement conferred a right on the applicant and his family to station a caravan on the plot at the caravan site and that Article 8 is engaged. They also accept that the actions of the Council to determine the licence and secure vacant possession of the plot interfered with the applicant’s right to respect for his family life and home under Article 8 § 1. They submit however that such interference was justified under the second paragraph as being in accordance with the law, in the pursuance of legitimate aims, namely to protect the rights of the Council as owner of the property and manager of the site and the rights of other occupiers of the sites and Council employees affected by the applicant’s breach of licence and being necessary in a democratic society and proportionate to its objectives.
The Government submit that the applicant had agreed to occupy the plot on the terms that neither he, his family nor guests would cause a nuisance and that he had been warned by the Council that he was in breach. In the circumstances, the Council was entitled to revoke the licence for the continuing breach. Though the licence did not require the Council to give the applicant the opportunity to challenge the allegations of nuisance made against him, the applicant did take the opportunity to challenge the decision in judicial review proceedings where the High Court found no evidence to doubt the reasonableness and procedural fairness of the Council’s decision. The Council had also taken into account the needs of the applicant and his family in the decision-making process.
While they accept that the statutory protection from eviction which the applicant enjoyed in respect of the plot was more limited than that which he would have enjoyed if his caravan had not been on a site provided by a local authority for gypsy accommodation, they argued that the limited degree of protection was justified with regard to the differing aims of the statutory schemes concerned. Regarding the provision for gypsies, it had to be recalled that the 1968 Act had sought to remedy the grave shortage of sites for gypsies who led a nomadic lifestyle by placing a duty on local authorities to provide such sites. By 1994, the Act was found to have served its purpose as far as it could reasonably be expected to, with local authority sites providing the largest contribution to the overall accommodation needs of gypsies. Policy then changed its emphasis to encouraging gypsies to promote their own sites via the planning process. Nevertheless, the existing local authority supply of sites remained an essential component of the Government’s strategy of ensuring an adequate level of gypsies and the policy of the legislation is to maintain and safeguard that distinct supply. Thus the special regime of tenure applicable to local authority gypsy sites reflects the need to ensure that local authorities are able to operate and manage their gypsy sites in a way that meets the special accommodation needs of gypsies consistent with their nomadic lifestyle. The repeal of the statutory duty to provide gypsy sites did not affect that position.
The Government explain that the policy and object of the mobile homes legislation was to remedy a different problem, namely, the inequality of bargaining power between the mobile home owner and the site owner, in which area there was a deficiency of supply over demand that the private sites, run as businesses, were in a position to exploit, by for example compelling a resident to buy his mobile home from the site owner and then evicting him and forcing him to sell the home back at a significant undervalue. The 1983 Act was designed specifically to remedy such abuses by giving residents of such sites stronger security of tenure and there was no evidence that such problems had arisen on local authority gypsy sites.
The Government emphasise that in any event local authorities were required to operate gypsy caravan sites in accordance with the law and as public authorities they had to act reasonably, fairly and proportionately. In addition to the remedy of judicial review, occupiers had a right of action under the Human Rights Act 1998. The approach of the Council, court officers and police to the eviction of the applicant and his family was in proportion with the circumstances, given the applicant’s refusal to obey the order of the court and his obstruction to execution.
The applicant submits that the license agreement which he was required to sign was unfair, pointing out that since events in this application the Office for Fair Trading has obtained undertakings from the Council to re-write the licence agreement. He denies that he or members of his family living on the plot had in any event breached any of the terms of the licence as alleged by Council officers and stated that he had no control over the conduct of visitors to the site, such as his adult sons or Michael Maloney. There was significant support for his family from other occupiers of the site which contradicted the situation as described by the Council. The applicant disputes that it was reasonable or proportionate to evict him and his family for reasons relating to other adults. The Council failed to use other methods of controlling the alleged misbehaviour, such as by injunctions and committal proceedings against those adults who were committing the damage or nuisance and appeared to make no distinction concerning the occupation of the two plots, 35 and 36. Nor when the applicant made undertakings in court on 14 April 2000 did the Council make any application to enforce by way of breach of those undertakings.
Contrary to the Government’s assertions, the applicant submits that he had no means of requiring the Council to substantiate its allegations against him and thereby resisting the revocation of his licence or preventing the eviction. There was extensive dispute as to the facts and allegations which could not be tested in the summary proceedings or in the judicial review proceedings. No opportunity was given for the submission of evidence, hearing or cross-examination of witnesses on these matters. As a result, there was no meaningful assessment as to whether the measures were proportionate or justified in pursuit of any legitimate aim.
The applicant submits that notwithstanding the Government’s explanations about statutory frameworks there was no evidence in West Yorkshire of any encouragement for gypsies to purchase and occupy their own private sites. On the contrary there were many examples of enforcement action being taken against gypsies’ occupation of their own land. Nor were there any temporary stopping places with basic facilities as envisaged in Government circulars such as 18/94. Since the repeal of the 1968 Act, there had been a reduction of 27% in local authority site provision for gypsies in Leeds, e.g. from 56 plots to 41. The applicant denied that he was advocating a single statutory framework for all sites, arguing that a particular need for flexibility in gypsy provision could be reflected in grounds available for possession (e.g. unmaintained caravans, absence from land exceeding a particular period), but not by ignoring the need to prove disputed facts. Different regimes should not necessitate that gypsies on local authority sites should lose the benefit of court protection to test, for example, an alleged breach of licence. As a Council tenant faced with an allegation of anti-social behaviour could argue his/her case in court, he saw no reason why a gypsy facing similar allegations should not be able to do so.
(b) Article 14 of the Convention
The Government submit that the applicant has not established that he is the victim of a violation of any of the rights guaranteed under the Convention such as to bring Article 14 into play. Even if Article 14 was applicable, they argue that the applicant and his family have not suffered any difference in treatment on ground of their status as gypsies since the different rules applying to the occupation of caravans depended on the type of site not the status of the individual caravan dweller (referring to P. v. the United Kingdom, no. 14751/89, decision on admissibility of 12 December 1990, Decisions and Reports 67, p. 264). Further, there was objective and reasonable justification for any difference in treatment between the two types of sites bearing in mind the need to allow for flexibility in meeting the accommodation needs of gypsies some of whom continue to move around on a regular basis. They submit that applying equal mobile homes security of tenure to local authority gypsy sites would undermine gypsy provision as every site, whatever its designation, could potentially become a permanent site with no scope to accommodate short-term occupiers. There would also be nothing to stop any person with a mobile home from seeking to occupy a local authority gypsy site regardless of whether they pursued a nomadic lifestyle and inevitably fewer sites, if any, could be made available specifically for gypsies pursuing a nomadic lifestyle.
The applicant argues that there is no justification for denying gypsies similar protection to that given to occupiers of mobile home sites. Denial of such protection could not be considered as improving or increasing the availability of gypsy site provision since it appeared that provision had in fact decreased in the area over the preceding years. The flexibility necessary to managing gypsy sites was not precluded by affording gypsies the same ability to contest anti-social behaviour allegations that were available to mobile home residents on private sites and to tenants in Council housing.
(c) Articles 6 and 13 of the Convention
The Government do not consider that any issue arises under either provision, in particular that no arguable claim of a violation arises for the purposes of Article 13 of the Convention. In any event, the applicant could challenge the reasonableness of the Council’s actions in judicial review proceedings and require the Council to show in the County Court that they had lawfully determined the licence. The applicant could also have taken action against any individual officer who had acted unlawfully and the law of tort was available to remedy any unlawful interference with his property.
The applicant submits that he had no possibility of obtaining a determination in court of the disputed facts and allegations relied on by the Council in determining his license. Judicial review did not provide an effective method of challenging the Council’s actions as it did not involve testing of the evidence, while in the summary proceedings the judge had no discretion to investigate the matters but was required to order possession under the terms of Order 24.
(d) Article 1 of Protocol No. 1
The Government submit that the Council’s temporary and limited interference with the applicant’s possessions was justified. It was in accordance with the proper order of the court and necessary as part of the authorised eviction of the applicant. The goods were restored to the applicant as soon as practicable.
The applicant submits that he and his family were in the process of removing their belongings when he and his son were detained. In the chaos of the eviction, they could not keep track of their belongings and the Council were aware of their predicament and their need for their possessions. He denied that the Council was unable to enter the field to return their belongings later and maintained his original complaint.
2. The Court’s assessment
Having regard to the applicant’s complaints and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court by a majority
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy