Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent), (2008)
HOUSE OF LORDS
 UKHL 57
on appeal from: EWCA Civ 1739
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents)
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Jan Luba QC
(Instructed by Community Law Partnership)
Ashley Underwood QC
(Instructed by Birmingham City Council)
Intervener (Secretary of State for Communities and Local Government)
Philip Sales QC
(Instructed by Treasury Solicitors)
12 MARCH 2008
WEDNESDAY 30 JULY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents)
 UKHL 57
LORD HOPE OF CRAIGHEAD
The question in this case is whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers caravan site. His licence to occupy the site has come to an end. He has no enforceable right to remain there under English property law. But he claims that his removal would violate his rights under article 8 of the European Convention on Human Rights.
The local authority, the respondent, is the freeholder of the site which is known as the Travellers Site, Tameside Drive, Castle Vale, Birmingham. The site comprises 16 concrete stands for caravans and four ablution blocks. The appellant was granted a licence by the respondent to station a caravan on plot 12 in September 1987. His licence was extended to include plot 14 in November 1998. He and his family had been resident on the site for about 17 years when on 4 March 2004 the respondent served a notice to quit. Section 2 of the Caravan Sites Act 1968 provides that such a notice shall be of no effect unless it was given not less than four weeks before the date on which it is to take effect. The period of notice that was given expired on 10 May 2004.
The respondent commenced these proceedings in the Birmingham County Court on 27 May 2004. On the same day the European Court of Human Rights gave judgment in Connors v United Kingdom (2005) 40 EHRR 9. It held that the eviction of a family of gipsies from a gipsy site by a local authority was a violation of their rights under article 8 of the Convention. As in this case, the local authority had served a notice to quit which had brought to an end the familys licence to occupy. The family no longer had an enforceable right to remain on the site under English property law. But the court found that, while a legitimate aim was being pursued by the local authority, the eviction of the applicant and his family could not be regarded as necessary in pursuit of that aim as it was not attended by procedural safeguards that would enable the applicant to challenge the factual basis on which the local authority decided to serve the notice. They had been evicted on the ground that they were troublemakers, and it was asserted that they had breached the licence agreement. The applicant disputed these allegations, but he was not given the opportunity to challenge them in court.
The respondent in this case asserted in its particulars of claim that it required vacant possession of the site to carry out essential improvement works. Once the works were complete the site was to be managed as temporary accommodation for travellers. Genuine travellers, it was said, were currently deterred from going on the site because of the presence there of the appellant and his family. As a result the site was underutilised. This had led to unauthorised encampments elsewhere in the area. It should be noted that the claim was not based on any allegation of misconduct on the part of the appellant or any members of his family, nor was it alleged that the licence agreement had been breached. It was based on the respondents judgment as to the appropriate use of the site for travellers. The appellant maintained in his defence that the respondent was only entitled to an order for possession if it was proportionate in all the circumstances of the case, and that in the circumstances of his case this test was not satisfied. He relied, among other Convention rights, on his right to respect for his home under article 8 and on the respondents duty not to act in a way which is incompatible with a Convention right under section 6(1) of the Human Rights Act 1998.
By the time the case came before HHJ McKenna on 21 October 2004 it had been transferred to the Birmingham District Registry of the High Court. He was asked to consider to what extent, if at all, it was open to a defendant to rely on article 8 in answer to an otherwise unchallengeable claim to possession by a local authority landowner. This was not a novel question. The judge was referred to the decision of this House in Harrow London Borough Council v Qazi  UKHL 43,  1 AC 983. In that judgment, which was given on 31 July 2003, it was held by the majority that the contractual and proprietary rights to possession of a public authority landowner could not be defeated by a defence based on article 8: see para 84. The judge noted the respondents argument that its decision to take proceedings to recover possession was an administrative one which could be challenged by judicial review, and that a positive obligation to facilitate the gipsy way of life might be relevant to a review of the reasonableness of that decision.
Applying that decision, the judge gave summary judgment in favour of the respondent on 20 December 2004. He did not form any view about the merits of the justification that the respondent had given for seeking possession. He held that the appellant could not rely on the provisions of the Human Rights Act 1998 or on article 8 of the Convention. But he did not think that there were factual disputes between the parties such as to make judicial review inappropriate. So he granted a stay of execution of the order for possession for 14 days to enable the appellant to apply to the administrative court for judicial review, although he was already out of time by about five months. The appellant did not avail himself of that opportunity, no doubt because his counsel advised him that the decision of the Strasbourg court in Connors had raised questions about the soundness of the decision in Qazi. The judge later gave permission to appeal, certified the case as suitable for an appeal direct to the House of Lords and suspended execution of his judgment until the conclusion of the appeal proceedings.
In the meantime, having regard to the opinions which were issued by the Court of Appeal in Kay v Lambeth London Borough Council  EWCA Civ 926,  QB 352 and Leeds City Council v Price  EWCA Civ 289,  1 WLR 1825, your Lordships decided that the decision in Qazi should be reconsidered in the light of the Strasbourg courts judgment in Connors. On 22 June 2005 an Appeal Committee held that there was no need for the appellants case to come to this House as well, as it was thought that the issue that it raised would be decided in the cases of Kay and Price. It was thought that the Court of Appeal would be able to give effect to that decision without difficulty in due course. The Committees confidence in this outcome appears to have been misplaced, however. The appellant submits that, despite its best efforts, the Court of Appeal in dismissing his appeal failed to appreciate the guidance that was offered in Kay and Price and how that guidance should be applied in this case.
Qazi as modified by Kay
In Kay and others v Lambeth London Borough Council  UKHL 10,  2 AC 465 (which I shall refer to from now on as Kay) it was held by the majority, affirming Qazi, that the county courts, when faced with a defence to a claim to possession by a public authority landlord which is based on article 8, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupiers Convention rights. But it was recognised that there might be cases of a special and unusual kind, of which Connors was an example, where it would be incompatible with article 8 for the occupier not to be permitted to challenge the factual allegations that were made against him which were the basis for the claim for a possession order. If the legal framework denied him that opportunity it would fall to be regarded as incompatible with the Convention right: see paras 108, 168 and 184-185.
In Kay, para 110, I said that where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession of the public authority landlord is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:
(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as...
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