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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jones v Canal & River Trust [2017] EWCA Civ 135 (07 March 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/135.html Cite as: [2017] WLR(D) 161, [2017] 3 WLR 516, [2017] EWCA Civ 135, [2017] LLR 353, [2017] HLR 25, [2018] QB 305, [2017] 2 P &CR 10 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
QB/2014/0640
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McCOMBE
and
LORD JUSTICE SALES
____________________
MATTHEW JONES |
Appellant |
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- and - |
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CANAL & RIVER TRUST |
Respondent |
____________________
Christopher Stoner QC (instructed by Shoosmiths LLP) for the Respondent
Hearing date: 14 February 2017
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Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
(B) Background Facts
(C) The Proceedings
"10. The Claimants have failed to consider the Article 8 rights of the Defendant adequately or at all, they have failed to consider:
a. the Defendant has a disability which impedes his progress around the Kennet and Avon;
b. the Defendant's physical difficulties;
c. whether the Defendant would be able to comply with the continuous cruising requirement within a reasonable period;
e. [sic: d] the Defendant would be rendered homeless;
e. the interests of waterways users who rejected the Claimants consultation for a distance to be specified during continuous cruising in London (and it is averred this is applicable nationally);
f. whether the Defendant should be entitled to apply for a residential mooring where he currently resides;
g. whether the Defendant has used his best endeavours to find a residential mooring, but has been unable to find one;
h. that there is national shortage of available residential moorings suitable for the Defendant.
In the premises it is submitted that the Claimants' decision to seek an injunction and deprive the Defendant of his home is disproportionate and amounts to a breach of his Article 8 rights in breach of Schedule 2 of theHuman Rights Act 1998.
11. Further, it is submitted that the Claimants have failed to consider the Defendant's Article 8 rights when taking proceedings against the Defendant and failed to consider whether their process accorded due deference to the Defendant's Article 8 rights.
12. In the premises the Claimants at no time appear to have considered the defendant's Article 8 rights, and /or his personal circumstances and/or the hardship which he would suffer if required to move from his mooring. It is submitted that the hardship to the Defendant would be profound. There are no alternative moorings. It is submitted that it would not be proportionate to require the Defendant to be evicted. In the premises it is submitted that an injunction should not be granted at this stage and/or that the declaration should be refused."
"…if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained…" (per Lord Neuberger of Abbotsbury, giving the judgment of the court, at [61])
"19. In my view, I am doubtful whether it is reasonable to impose that burden on the trust, either in this case but, more to the point, in every case where they seek to enforce their rights in connection with alleged non-compliance with the terms of the licence. Particularly in the context of this case, I do not believe that that is being unfair to the defendant because the substantive issue which the trial court will have to grapple with, and to which the evidence will have to be devoted, is whether or not at the material time, or material times, prior to January 2013 he had been involved in continuous navigation or continuous cruising, as he says, or whether the claimants can establish (and clearly the burden would be on them) that he has not; that effectively he has been occupying this section of the Kennet and Avon Canal as a home mooring
20. I do not, therefore, regard it as either irrational or disproportionate to take the view that (a) it is appropriate to deal with the matter summarily in this way as I have done; or (b) that the matters raised in the defence – the paragraphs to which I have referred – raise such a compelling argument that clearly the matter is not capable of disposal in this summary way but would require, and does require, a hearing on the substantive merits of that which is set out. Accordingly, I am prepared to make the order that the claimant seeks; namely, paragraphs (10) to (12) of the defence proposing to raise the Article 8 defence can be struck out."
"21. For the avoidance of doubt, and I am expressing no view here really either way, save that, on the face of it, this ruling of mine (assuming it stands) does not necessarily mean that, assuming the claimants succeed at trial on what I will call the main issue, there could be no question of the court, in considering what the appropriate and proportionate remedy would be, in casting Article 8 from its mind at that stage simply because I have made the ruling which I have at this stage, if that is clear."
"The Decision
9. As a public body which is not a housing authority, the trust cannot owe any duty to the Appellant in relation to his housing needs under Article 8. Accordingly any test to be applied to a local authority housing department would not apply and no proportionality argument, however it is to be determined, can arise.
10. Nonetheless the learned Judge went on to consider whether the Article 8 point might raise a triable issue. In an ex tempore judgment the learned Judge determined that the trust could not be expected to investigate or deal with the Appellant's Article 8 rights as the burden imposed would be too great. In argument, in the original hearing and in this court the series of authorities distilled in the decision of the Supreme Court in Pinnock [2010] UKSC 45 were cited.
11. I have considered those authorities and it will not assist the parties for them to be recited here. Of greatest guidance to local authority landlords in Article 8 cases is the series of seven principles laid down by Etherton LJ, as he then was, in Thurrock Borough Council v West [2012] EWCA Civ 1435.
12. The reasoning of the Judge in the County Court in considering whether there was a need for a more structured approach cannot be faulted, even if it is based on a generously wide view. In concluding that the point could not be sustained he applied a correct interpretation of the authorities and principles. It may be that he encouraged false hope by suggesting that the competing arguments were "finely balanced". They are not. The appeal is dismissed."
(D) The Appeal
"1.The appeal raises an important point: viz whether the Canal and River Trust is to be treated in the same way as a local housing authority for the purposes of art 8 of the ECHR.
2. The judge's reasoning is very sparse and in itself provides a compelling reason for a second appeal. "
i) The judges below were wrong to apply the "exception" given to housing authorities and other social housing landlords from the requirement of a "structured approach" to the proportionality question under Article 8, derived from Pinnock and related cases. (Ground 2)
ii) It was wrong to apply the exception derived from Pinnock on the basis of the "burden" otherwise imposed upon the Respondent in discharging its functions. (Ground 3)
iii) Even if the Pinnock exception might otherwise apply, the county court judge erred in not allowing the Appellant's case under Article 8 to proceed to trial. (Ground 4)
"17. – (1) In this section –
"houseboat certificate" means a houseboat certificate issued under the Act of 1971;
"insurance policy" means an insurance policy complying with Part I of Schedule 2 to this Act;
"licence" means a licence issued by the Board in respect of any vessel allowing the use of the vessel on any inland waterways;
"pleasure boat certificate" means a pleasure boat certificate issued under the Act of 1971;
"relevant consent" means a houseboat certificate, a licence or a pleasure boat certificate; and
"standards" means standards for the construction and equipment of vessels prescribed under this section and Part II of the said Schedule 2.
…
(3) Notwithstanding anything in any enactment but subject to subsection (7) below, the Board [now, the Respondent] may refuse a relevant consent in respect of any vessel unless –
(a) the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;
(b) an insurance policy is in force in respect to the vessel and a copy of the policy, or evidence that it exists and is in force, has been produced to the Board; and
(c) either –
(i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or
(ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in one place for more than 14 days or such longer period as is reasonable in the circumstances.
…"
"8. – (1) In this section –
"owner" in relation to any relevant craft means the owner of the relevant craft at the time of sinking, stranding or abandonment and includes a person letting a vessel for hire, whether or not that person owns the vessel;
"relevant craft" means any vessel which is sunk, stranded or abandoned in any inland waterway or in any reservoir owned or managed by the Board or which is left or moored therein without lawful authority and includes any part of such vessel.
(2) The Board may remove any relevant craft after giving not less than 28 days' notice to the owner of the relevant craft, stating the effect of this section."
Having removed a vessel in this way the Respondent is entitled to recover consequential costs from the owner under s.8(3).
"45 … [T]he following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being disposed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v United Kingdom 47 EHRR 913, para 50; Cosic v Crotia 52 EHRR 1098, para 22; Zehentner v Austria 52 EHRR 739, para 59; Paulic v Croatia given 22 October 2009, para 43; and Kay v United Kingdom [2011] HLR 13, paras 73-74. (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v United Kingdom 40 EHRR 189, para 92; McCann v United Kingdom 47 EHRR 913, para 53; Kay v United Kingdom [2011] HLR 13, paras 72-73. (c) Where the measure includes proceedings involving more than once stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria 52 EHRR 739, para 54. (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain: McCann v United Kingdom 47 EHRR 913, para 54; Kay v United Kingdom, para 73."
Mr Stoner for the Respondent relied heavily on the last sentence of this passage.
"51. It is necessary to address the proposition that it will only be in "very highly exceptional cases" that it will be appropriate for the court to consider a proportionality argument…
52. … The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.
53. In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority's aim in wanting possession should be a "given", which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers' personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham's comment in Kay v Lambeth London Borough Council [2006] 2 AC 465, 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession…
54. Unencumbered property rights, even where they are enjoyed by a public body such as local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi [2004] 1 AC 983, 997, para 25:
"the administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."
Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way."
"57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person's home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court's obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the county court."
"35. Mr Luba accepted that the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. I think that he was right to do so: see also Pinnock [2011] 2 AC 104, para 54. Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities. Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interest of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.
36. If the threshold is crossed, the next question is what legitimate aims within the scope of article 8.2 may the claimant authority rely on for the purposes of the determination of proportionality and what types of factual issues will be relevant to its determination. The aims were identified in Pinnock, para 52. The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority's ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses- the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the needs and the need to move vulnerable people into sheltered or warden-assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para. 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the state itself. But, taken together, the twin aims will satisfy the legitimate aim requirement."
"Their effect can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them."
"43. The authorities show that a trespasser will only be able to trump the rights of an owner or property by invoking article 8 in an exceptional case: see Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 6, and London Borough of Hounslow v Powell [2011] UKSC 8, [2011] 2 AC 186 and summary by Etherton LJ, as he then was, in Thurrock BC v West [2012] EWCA Civ 1435 at [22] – [31]. This is particularly so where the owner is a public authority which holds the land for the general public such as the respondent in this case. It follows that in my judgment an interference with article 8 rights such as that by the byelaws restricting the mooring of boats in certain places was not, in the circumstances of this case, disproportionate where the boats subject to the restriction were homes. There was no evidence that the effect of the byelaw would preclude the appellant from living on a boat in the borough. The judge found (case stated at [12(b)] that other permanent moorings were available in the borough and on the river. Moreover, in the present case the article 8 defence cannot be said to have been pleaded in a sufficiently particularised way to meet the high threshold required to make it seriously arguable: London Borough of Hounslow v Powell at [33] and [34] per Lord Hope. Accordingly, while it may be possible to envisage a situation in which byelaws concerning waterways are so restrictive that it becomes impossible to live on a houseboat in the local authority's area, that is not the position in the circumstances of these byelaws and this local authority."
The appeal was dismissed and the convictions were upheld.
(E) Further Discussion
"Thus, the protection afforded by section 35(1)(b) is an extra, and a more specific, stronger, right afforded to disabled occupiers over and above the article 8 right. It is also worth mentoring that this conclusion ties in with what was said in the in the Pinnock case [2011] 2 AC 104, para 64, namely that as suggested by
"the Equality and Human Rights Commission … Proportionality is more likely to be a relevant issue 'in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty', and that 'the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases' ".
In other words, where the occupier is disabled, it is significantly less unlikely than in the normal run of cases that an article 8 defence might succeed."
(See also the judgment of Baroness Hale of Richmond in the same case at [21]).
(F) The Grounds of Appeal
"The learned judge did not give detailed reasons as to why he did not regard the Defendant's pleaded case on Article 8 as not [sic?] being seriously arguable. In any event, his findings cannot stand as in this case he was in no position to carry out the assessment of whether the proportionality defence was arguable without the Claimant having set out why it was proportionate to its legitimate aims to remove the Defendant and his boat from the canal."
(G) Result
Lord Justice Sales:
Lord Justice Jackson: