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||Neutral Citation Number:  EWCA Civ 774
||Case No: B5/2009/2151/2152/2148/2236
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
8W101943 & 8W101944
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE JACOB
THE RT HON LORD JUSTICE LLOYD
THE RT HON LORD JUSTICE WILSON
|| The Mayor and Burgesses of the London Borough of Brent
||- and -
||Margaret Corcoran and Ann O'Donnell
Miss Kerry Bretherton (instructed by London Borough of Brent) for the Appellant/Respondent
Stephen Cottle (instructed by The Community Law Partnership) for the Respondents/Appellants
Hearing date: 21 May 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Jacob:
- These two appeals and cross-appeals came before us in the form of applications for permission to appeal with appeals to follow if permission to appeal was granted. We heard full argument on all points and decided that permission to appeal and permission to cross appeal should be granted in both cases.
- In February 1997 Brent (as I shall call the Council appellants) granted to each of the individual cross appellants, Mrs O'Donnell and Mrs Corcoran, who are sisters, a licence to occupy a pitch on the Linton Close travellers' site in Wembley. Mrs O'Donnell's licence was for pitch 11 and Mrs Corcoran's was for pitch 1. Other members of the extended family lived on plots 3, 4, 5, 6, 7 and 32.
- On 27 February 2006 Brent issued a revised licence agreement. Each licence prohibited:
i) fixing any vehicle or structure to the ground (Clause 1(a));
ii) parking more than 1 vehicle and 1 caravan on the pitch (Clause 4 (c));
iii) relatives and guests bringing caravans onto the site without written permission from the Council (Clause 4(e)); and
iv) using the pitch for taking, selling or supplying drugs and receiving, storing or selling stolen goods, or harassing or causing distress/ inconvenience to others, including the Council's staff, by themselves or anyone living with or visiting them (Clause 4(p)).
- On 14 March 2008, the police carried out an early morning raid on the site. Pitch 1 had a large mobile home and a small white caravan occupied by Eddie Corcoran (Mrs Corcoran's son) on it. Pitch 11 had a large mobile home, a cream caravan and a small white caravan. The Police found:
i) Pitch 1 (Corcoran):
a) Small white caravan/adjoining wall: 37 wraps of cocaine, an air rifle and a knuckle duster;
b) Main caravan: financial correspondence
ii) Pitch 11 (O'Donnell):
Small white caravan: 28g cocaine, scales, other drug paraphernalia, 3 lumps believed to be crack cocaine, weapons including a replica MP5 machine gun, knuckle duster, knives and machetes and 15 national insurance cards, fifty death and birth certificates, various documents in the names of individuals unconnected with the pitch, 3 satellite navigation systems (one of which was reported stolen) and in excess of £1000 cash.
- Eddie Corcoran was arrested and convicted of possession with intent to supply. Patrick O'Donnell (Mrs O'Donnell's nephew) was arrested but not charged.
- On 31 March 2008, Brent served termination notices on each of the licensees. These notices expired on 28 April 2008. On 1 May 2008 Brent issued separate proceedings against each of the licensees seeking possession outright.
- On I think 16th May HHJ Copley made orders for possession of both pitches but adjourned determination of whether enforcement of them should be suspended. In the case of Mrs O'Donnell no order seems to have been properly drawn up at the time. There is an order dated 28th January 2010 ordering possession in her case. It is clearly incorrectly dated and was only drawn up when the Court of Appeal Office asked where the order under appeal was. Time for appealing was also extended.
- The absence of a proper written order being drawn up at the time is a matter of concern. If no-one can be sure what was ordered and when, chaos can ensue. There is no substitute for the practice of counsel agreeing the order in writing immediately following the hearing and the Judge requesting that they do so, so that any disagreement can be sorted out immediately.
- Fortunately in these cases it is agreed that on 16 May there were orders made which provided for the date of possession to be determined at a subsequent hearing and that the effect of the orders was to include the question of whether the orders for possession should be suspended.
- Regrettably no firm case management directions were made at the time. They should have been. And a hearing date should have been set then. If that was not possible (the hearing on 16th May finished after 6 p.m.) the Judge should have ordered the parties back before him within a few days for such directions to be given. The failure to take an early grip on the case undoubtedly led to the quite unacceptable delays to which I refer more below.
The Public Law Defences
- In making the orders for possession on 16th May HHJ Copley tersely rejected arguments by Mr Cottle on behalf of the licensees by way of public law defences seeking to impugn Brent's decision to serve the notices to quit, to bring and to press on with possession proceedings. Permission to appeal was later refused by the Judge and Mr Cottle sought permission from us. As I have said, we granted permission. However, having done so and having heard argument on the licensees' appeal, we announced that we would dismiss their appeal, before we proceeded to hear argument on Brent's appeal.
- The only reason we granted permission is that we considered it important to make it absolutely clear that public law attacks of the technical and over-theoretical sort advanced here have no merit whatsoever in this sort of case. One would have thought that the decision of this Court in Doran v Liverpool City Council  EWCA Civ 146 had already made this clear. After all Toulson LJ summarised the position thus at :
where notice to quit has been served, but the occupier asserts that the decision to serve it and seek possession was unlawful, it is for the licensee to make good such a defence. To do so, it must be shown that the council's decision to serve the notice and seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision. This is a high test and rarely likely to be satisfied where the decision was made in good faith ..
As Doran made clear, the real battle, once a notice of termination is (apart from any question of public law) valid, comes when the question of suspension of an order of possession comes to be considered. All factors (including but not limited to all Convention considerations) can come into play then.
- Turning back to this case, the question is therefore whether Brent's decisions were such that no reasonable council could have arrived at them.
- I start with the decisions to serve notices to terminate the licences. Brent's reasons to serve these were clear and obvious. Both licensees were in severe and multiple breach of the terms of their licences. Mr Cottle argued that Brent had failed to take into account its duties arising under s.71 of the Race Relations Act 1976 as amended and s.49A of the Disability Discrimination Act 1995 as amended.
- The s.71 duty is "in carrying out its duties to have due regard to the need to eliminate unlawful racial discrimination" and the s.49A duty is a requirement that in carrying out its functions a public authority shall "have due regard to the need to eliminate discrimination [against disabled persons]".
- Now it is true that Brent did not consider its s.71 duties expressly when serving the notices to terminate. Ms Linda Footer, the relevant Council Officer, said this:
It is now being said that I should have carried out some form of race equality assessment. My understanding is that there is no need to carry out such an assessment in these circumstances. Having worked in housing in London for the past 23 years I am very well aware of issues of racial discrimination and equality of opportunity. I am extremely sensitive to the need to promote good relations between people of different racial groups.
- The Judge thought that made no difference that the duties had not been considered if they had the result would have been the same. In the latter conclusion I am sure he was right. But that does not quite answer Mr Cottle's contention that an assessment should nonetheless have been carried out, and that Ms Footer's understanding was wrong in law.
- I disagree with that contention. s. 71 required that Brent should have "due regard" to the need to eliminate unlawful racial discrimination." The section does not mean that whenever a relevant statutory body such as Brent takes any decision whatever it must give advance consideration to issues of race discrimination. There are decisions which clearly have nothing to do with race, still less racial discrimination. In such circumstances the s.71 duty does not arise. As Ouseley J said in R (Smith) v S. Norfolk  EWHC 2772:
But [s.71] does so through the requirement that a process of consideration, a thought process, be undertaken when decisions which could have an impact on racial grounds or on race relations, to put it broadly, are being undertaken.
- Faced with severe breaches of the licences breaches which included criminality and which had nothing whatever to do with race or a particular racial group - it is entirely far-fetched to suppose that a local authority should think that racial discrimination considerations could come into play. Indeed if anything quite the opposite. If Brent had decided not to serve a notice to terminate the licence on the ground of race it would most likely have been exercising unlawful positive racial discrimination treating a particular ethnic minority more favourably than other ethnic groups.
- That conclusion applies also to Brent's decision to institute and press on with the proceedings seeking outright possession orders.
- The s.49A duty is only said to have been breached in the case of Mrs O'Donnell and only by Brent's decision to press on with the proceedings after it had been asserted in a draft defence and signed witness statement that Mrs O'Donnell's aged and terminally ill mother was on the site. Again the Judge thought nothing of this defence and rightly so. It is by no means obvious that the consequences of clear and serious breaches of the terms of a licence can be escaped by reason of the presence of such a person on the site. I can see how the problem would need to be considered, as simple matter of humanity irrespective of any Convention or statutory duty, when considering whether execution of an order for possession should be suspended, and what should be done for someone in the position of Mrs O'Donnell's mother on enforcement of the order, but that would come later.
- Moreover in the present case at the time when the Judge made the possession order in respect of pitch 11 it is particularly absurd to say that Brent should have held back all it had was the witness statement and draft defence reserving the right to argue the point subject to medical evidence and some other matters.
- Finally, by way of a public law defence (for Mr Cottle was not short on points to be taken) it was asserted that Brent had failed to put in place any or sufficient procedural safeguards having regard to the fact that termination of the licence would end the licensees' contractual rights. Mr Cottle accepted that he could not also assert that the licensees' Art. 8 rights were affected at the stage of service of the notice to terminate the licence, see Smith v Evans  1 WLR 661 at : "It is the act of eviction, rather than the act of making a possession order, which interferes with a person's right to respect for his home" (per Dyson LJ). So instead he appealed to Art. 1 of Protocol 1 of the ECHR saying that came into play at the stage when the licences were terminated.
- The point is entirely fanciful. In reality what matters is whether there is going to be an eviction. Moreover I do not see what Mr Cottle means by procedural safeguards. He suggested that Brent should have made inquiries of the licensees and other before serving the notices, that in effect there should have been a complete inquiry about all aspects of the potential effect of a notice to terminate the licence. I do not see why, given the clear breaches of the licence conditions.
- Moreover the notices to terminate the licences specified the breaches of the licence terms. No order for possession could or would be made without the opportunity of a hearing. All factual matters will come into play before a licensee is evicted. Procedural safeguards are built into the system.
- The upshot is that there is nothing in Mr Cottle's public law defences. They were hopeless from the outset. Such defences should only be raised when they have real and obvious substance: it is not appropriate to construct intellectual edifices of public law without any proper foundations in reality.
Suspension of the orders for possession?
- The orders for possession were made in mid-May 2008. But it was not until 15th September 2009 that judgment was given on the questions of when the orders should take effect and whether they should be suspended. To say that this was most unsatisfactory is an understatement. Brent had already established its entitlement to possession. As will be seen from s.4, quoted below, execution of a possession order may not be suspended for more than 12 months at a time. The effect of the delay was to suspend the effect of the order for at least 15 months in any event. There was evidence of significant criminality on the site. Whether or not the respondents were complicit was in question. And in any event Brent's control of the site needed to be established one way or the other. A final decision was crying out to be made. A local authority cannot properly conduct its management functions of this sort of site if access to the courts can be delayed so much. Courts must make every endeavour to hold early hearings in cases such as these, if necessary transferring them to a nearby centre which can hear the case more quickly.
- I do not find it necessary to go into the fine detail of all the causes of delay. And it is fair to say that some allowance has to be made for the fact that one hearing date was lost through a bereavement. However I should comment on some of the reasons for delay. We were told that at some point Judge Copley had reserved the case to himself (though that nowhere appears in any of the orders and one positively says that the case could be transferred to another court). Whilst that might have made sense initially it should not have remained the position if he was not going to be free to hear the case for such a long time. And it would have been much better if a tight timetable for written evidence and a firm hearing date had been set in May immediately following the decision that the licences has been validly terminated. Another factor which contributed to delay was that the Judge reserved judgment from 23rd May to 15th September, a matter which I find inexplicable given that, when transcribed, it is only 28 paragraphs long.
- In the event the Judge decided to suspend the orders for possession for 12 months on the basis that certain undertakings were given. His actual order was embodied (we were told, at his insistence) on a form headed "General Form of Undertaking" even though, besides including undertakings, it contained the substantive possession order.
- In the case of Mrs O'Donnell the undertakings read:
(1) Not to permit Patrick O'Donnell on Pitch 11
(2) Not to interfere with the claimant's servants or agents exercise of site management functions including not to abuse or intimidate such servants or agents.
The substantive order read:
1. A possession order is made in respect of Pitch 11 .. but that the order is suspended until 15th September 2010 on condition that defendants comply with the terms of the undertakings set out above and do comply with the terms of the form licence agreement attached hereto.
The order in the case of Mrs Corcoran was the same save that it referred to pitch 1 and the first undertaking was not to permit Eddie Corcoran onto that pitch. The Judge refused permission to appeal to both sides.
- Part of the evidence before the Judge concerned a most unacceptable (the Judge described it as "ugly") incident in which the two licensees had taken part. It was after the first hearing in May 2008, so at a time when the defendants knew that the question of suspension of the possession order was coming back before the court. The Judge's findings about this read (with the spelling of names corrected):
 The fourth matter is the incident, on 17 November 2008, when Chantal Thomas (who worked for the site manager called Azadeh Community Network) was on her first day of work on the site. She was in the site office at Linton Close working with Akosua Fordwor (the site officer) at about 10.15am when a loud noise was heard coming from about 10 to 15 people who had gathered opposite the site office outside pitch 1. These included the two defendants and a number of children of the residents. They went outside and it appears that Brigit Corcoran of pitch 14 was the main mouthpiece, telling them to leave the site. Akosua Fordwor says in her witness statement that Ann O'Donnell came forward and accused her of lying in her witness statement and the crowd starting shouting, "Out, out, out".
 Chantal Thomas in her witness statement says that Ann O'Donnell said that Aposour and the Housing Association were killing her mother who was sick with cancer because of them, and then she walked back into the crowd. The two housing officers then went back into the office and about 20 minutes later began to walk around the site when the same women with about 10 of their children began to follow them, again shouting for them to get out. This incident culminated in the children throwing bottles and cans at Ms Thomas' car while she was sitting inside it, and she drove off. Neither witness attended court to give evidence.
 Mrs Corcoran said that Brigit Corcoran was married to her husband's cousin. She (Mrs Corcoran) was in her caravan, heard the noise and came to her gate. She said that she did not hear what was being said by Brigit. She said that she went back inside and did not go outside the office or get involved in the shouting. Ann O'Donnell said that she did not get involved in the shouting which the children were doing. She said that she had to pick up the grandchildren.
 Notwithstanding the absence of direct as opposed to hearsay evidence relating to this incident, it is not in issue that this ugly incident occurred. I did not find either defendant to be a particularly convincing witness and I am satisfied that they were both involved to the extent that the claimant's witnesses have said. That said, it is clear that neither was the ringleader
- As to the use of the pitches as a base for criminal activities by the two young men, it is not clear whether or not the Judge found that the licensees had knowledge of this. What he said was:
 Each has said that they did not know of the presence of the drugs and other items in the caravans on their respective pitches, and there is no evidence that they did. Had the drugs and other items been found in the caravans or mobile homes occupied by each or either of the defendants, I should have been in much greater difficulty in accepting their evidence that they knew nothing about the presence of these items and less difficulty in drawing the inference that they must have known. It was not until DCI Wallis gave evidence (on the second of the three days of evidence in May of this year) that it became clear that in relation to plot 11 of Mrs O'Donnell that this was found in the small caravan, which helped to clarify the position. Neither defendant in this case was prosecuted and, indeed, DCI Wallis said, obviously from a police point of view, "There is no danger to the public in both these ladies remaining on their plots".
- The first sentence suggests that the Judge thought the onus lay on Brent to prove the "guilty" knowledge and that it had failed to satisfy that onus. But it was not for Brent to prove anything. It had established its right to possession. The only question was whether the licensees could provide evidence of "all the circumstances" justifying suspension of the order (see s.4 of the Caravan Sites Act 1968 quoted below).
- On the other hand the next sentence can be read as saying that he accepted the licensees' evidence ("I should have been in much greater difficulty in accepting their evidence"). Yet he had earlier found that their evidence was "not particularly convincing."
- The upshot is that there is no clear finding on the point. The Judge ought to have made a clear finding one way or the other. He should have approached the question on the basis that since it was the licensees who were seeking suspension of the possession order, the onus lay on them to show they had no knowledge of, or grounds to suspect, the serious breaches of their licence agreements. It was not for Brent to prove that the licensees knew.
- However, given the Judge's opacity on this point, I have concluded that it would not be right to consider this appeal on the basis of a finding of knowledge by these licensees of these breaches of the licence. Clearly the licensees had knowledge of other breaches (particularly the unpermitted extra caravans on the sites).
- The applicable provision to the question of suspension is s. 4 of the Caravan Sites Act 1968. This reads:
4 Provision for suspension of eviction orders.
(1) If in proceedings by the owner of a protected site the court makes an order for enforcing in relation thereto any such right as is mentioned in paragraph (b) of subsection (1) of section 3 of this Act, the court may (without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section) suspend the enforcement of the order for such period not exceeding twelve months from the date of the order as the court thinks reasonable.
(2) Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.
(3) The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than twelve months at a time.
(4) In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions
(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).
- It was common ground that Brent's appeal can only succeed if the Judge made an error of principle or was perverse in the sense that his decision was one which no judge could reasonably have reached It is not for the Court of Appeal to exercise its own discretion unless either prerequisite is satisfied.
- Two possible errors of principle were canvassed in argument. The first was that the Judge had wrongly assumed that the burden of proof as regards the knowledge of the licensees lay upon Brent. He may have done, but as I have already said, his finding could be read as deciding as a matter of fact that the licensees did not know. Perhaps charitably I am prepared to accept that.
- The second error was that the judge simply failed to take into account, either at all or properly, in exercising his power of suspension, the very fact of the serious nature of the breaches. s.4(4)(a) makes it very clear that that is relevant in considering the question of suspension. What the Judge said was:
.. What the case really turns on, it seems to me, is where it started with the finding of the drugs on the two pitches in the raid on 14 March. It is this that caused the claimant to serve their notices and to seek possession. Whilst I accept Ms Bretherton's submissions that it is the provisions of the Caravan Sites Act 1968 (section 4, as extended) that are relevant, rather than the provisions of the Housing Act 1985 and the cases decided there under, it does seem to me that they are of assistance as to the way in which the court can "Have regard to all the circumstances". I have already found that the use of the premises for the storage of Class A drugs, and other items, is a sufficiently serious matter to entitle the claimant to an order for possession. That of course does not mean that there can never be circumstances in which such an order cannot be suspended.
- The sentence beginning "I have already found" reveals a misconception. The Judge there speaks as if the making of the order for possession was justified on the grounds of breaches of the licence terms, and that accordingly he had already had regard to the serious breaches. However, once a valid notice to terminate the licence has been given (which does not depend on there having been breaches of the licence terms) Brent is entitled to an order for possession. The judge was therefore wrong to suppose that he had already taken account of the serious breaches in any respect. In the exercise of his discretion under s 4(4) he erred by disregarding, or at least downgrading, the serious breaches on the erroneous supposition that they had come into account already on the question of making an order for possession. It therefore seems to me plain that in exercising his s.4(4) discretion he failed to take into account a highly material factor. So I think he made an error of principle there.
- I also think he made an error of principle in failing to recognise the serious nature of the incident of 17th November. To take part in a small mob which was abusing, and no doubt somewhat frightening to, the officials, was quite unacceptable in itself. Not being ringleaders cannot make any difference. Council officials or those working for a Council concerned with this sort of site or indeed with housing more generally must be free to carry out their work free of fear.
- All the Judge said about the incident was this:
 It does not seem to me that their conduct on this occasion (regrettable as it was) is such on its own to justify an outright order.
Not only does that seem to me to be a conclusion which no Judge could reasonably reach, but it also shows that the Judge was approaching the case on the basis that it was for Brent to justify an outright order rather than for the licensees to show him that the order should be suspended. To say that taking part in an intimidatory crowd abusing and threatening people who were merely trying to perform their duties of site management was merely "regrettable" seems to me to put a wrong perspective on the incident.
- Further I think the Judge failed to look at the collective effect of all the matters. He had three: the serious breaches of the licence terms relating to criminality operating from the sites, the blatant breach of conditions by bringing extra caravans on the sites and the incident of 17th November. The Council's management of the site would be likely to pass beyond control if the orders were merely suspended.
- I should perhaps add a word about the extra caravans. Mr Cottle suggested they were not important because Brent had not complained about them earlier. Though there had not been prior complaints, they were clearly symptomatic. In deliberate breach of the licence conditions the extra caravans were brought on the sites. That cast an onus on Brent to complain to start a confrontation with the licensees. That Brent did not start a confrontation then is not evidence that the breach was not significant. Brent should never have been put in that position.
- There is another point about the extra caravans, one linking them to the criminality. As Miss Bretherton shrewdly pointed out, if the caravans had not been on site then there would have been no or hardly any opportunity for the drugs and other material to be concealed. The caravan breaches made the other breaches possible (assuming as I do for this purpose that the licensees did not actually know of the concealed items).
- The Judge thought suspension was appropriate because the undertakings given precluded the two young men from returning. He said:
In this case it seems to me there is cogent evidence for that hope [i.e. the previous conduct would cease]. The cause of the trouble in each case has been removed. Eddie Corcoran (his mother said she had not seen him for a long time) is now married and living with his in-laws apparently in North London. Mrs O'Donnell said that her nephew, Patrick (in whose caravan the drugs were found on her pitch) is living with his girlfriend in Ealing. She said she had told him to go and not come back.
- But that entirely overlooks the harassment incident. The Judge thought that suspending the order will:
Let everybody know that these two defendants are very much at risk of having the order enforced should there be any future conduct such as that prohibited not only by the tenancy or licence terms and conditions but also by the undertakings that they give to the court.
.. I am quite certain that that message will, as I say, very quickly spread throughout this site (these pitches) and I am sure it will have a salutary effect.
- I do not see how he could say that. The harassment incident took place after the order for possession had been made in principle. Everyone knew the case was coming back to court. Yet these two licensees were prepared to take part in the harassment.
- The upshot is that the Judge's exercise of discretion was flawed. That leads to two options, either to remit the matter (possibly to another judge and indeed court) for the question of suspension to be reconsidered, or for us to exercise the discretion ourselves. I have no doubt that we should adopt the latter course for two reasons: first there would be the yet further delay involved and second because in my view the case is plain.
- How then should the discretion be exercised? Some guidance is to be found in the words of Beldam LJ in City Council of Bristol v Mousah (1998) 30 HCR 32:
The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an order for possession will be made. The order will assist the housing authority, who, under section 21 of the Act, have the duty to manage the housing stock and have the obligation to manage, regulate and control allocation of their houses, for the benefit of the public. In my view the public interest would best be served by the appellant being able in a case such as this to relet the premises to someone who will not use them for peddling crack cocaine.
- Now it is true that in Mousah it was the tenant himself who had committed the crime whereas here the licensees had committed no crime and, given the opacity of the findings about knowledge it is to be assumed they did not have knowledge of them. But on the other hand they were in knowing and deliberate breach of their licences with the extra caravans and took part in the harassment. I think they lost the advantage of the benefits of the licence.
- Such licences are extremely hard to come by. It is well-known that licences of this type are nearly as rare as hen's teeth. Regrettably there is inadequate provision for them. Those who have the benefit of them cannot expect to keep them if they conduct themselves as these licensees did. That is so even though the sites had been their homes since 1997.
- Accordingly I would allow Brent's appeal and vary the Judge's orders to by deleting the provisions about suspension. If the final form of our orders in the two cases cannot be agreed the parties must make their submissions in writing within four days of receiving our judgments in draft.
Lord Justice Lloyd:
- I agree with Jacob LJ as to the reasons for which the licensees' appeal should be dismissed, as we stated during the hearing, and I agree that Brent's appeal should be allowed, for the reasons he gives. Moreover, I agree with the judgment of Wilson LJ to the same effect. To the extent that they differ (as Wilson LJ says, on a matter of emphasis see his paragraph 69 below) I do not find it necessary to decide between them, because Wilson LJ's analysis is plainly sufficient to justify the conclusion that the judge misdirected himself as to the significance of the incident in November 2008 for the exercise of his discretion.
- The history of these proceedings shows some of the difficulties faced by all parties and by the court in coping with issues of the kind that can arise. On the one hand, a council needs to be able to manage properly the sites which it owns and runs (or attempts to run). From a licensee's point of view, to have a lawful caravan site which he or she can use is a major advantage, given the unfortunate rarity of such sites, and the large excess of demand over supply, and therefore to lose it is very serious. For the court, these proceedings are difficult to manage, and the legislation does not make the position any easier.
- As was held in Smith v Evans  EWCA Civ 1318,  1 WLR 661 the application of section 4 of the 1968 Act to local authority sites rendered the legislation compliant with the UK's obligations under the ECHR, which had been held to have been infringed in Connors v UK (2004) 40 EHRR 189 for lack of procedural safeguards. As Dyson LJ said at paragraph 61 of Smith v Evans:
"Sub-section (4) requires the court to have regard to "all the circumstances" in deciding whether to exercise its power to suspend. The court is, therefore, required to conduct an examination of all the circumstances of the case. Moreover, as a public authority, the court is bound by section 6(1) of the 1998 Act to act in a manner which is compatible with occupiers' Convention rights. This means that it must exercise the discretion given by section 4 of the 1968 Act in that way."
- It follows that the scope of matters to be considered by the court when considering whether execution of a possession order should be suspended, or further suspended, under section 4 is potentially wide. On the other hand, a hearing needs to be conducted without unnecessary delay. The Act provides for suspension of orders for no more than 12 months at a time. There may be cases in which either an initial suspension, or (perhaps more likely) a continuation of the suspension, can be dealt with by agreement, on appropriate terms, in which the case the court need do no more than make an order as agreed. Often, however, a hearing will have to be held at which a variety of issues will have to be considered and decided. There is obviously a risk that such hearings can become very protracted. Given the constraints on availability of time in the county court, listing such hearings may be difficult, and managing them so that they do not take up too much of the court's time is all the more important. It is necessary that hearings be held, and the outcome decided, in time before any current period of suspension expires. The delay of 15 months between the hearing in the present case, at which the judge rejected the public law issues and held that there should be an order for possession, and his deciding that the order should be suspended, was far too long.
- This is also part of the context for the question what order should be made on Brent's appeal being allowed. Mr Cottle argued that, given the relevance of Convention rights to the question of suspension, the court could not properly decide whether or not to make the order immediately effective without evidence of the current position. He therefore submitted that, if Brent's appeal were allowed, the case should be remitted to the county court to be decided in the light of the correct view of the law as laid down by this court, as applied to an up to date view of the facts. Otherwise, he said, the court risked making an order inconsistent with the licensee's rights under the Human Rights Act 1998, through lack of enquiry.
- As a general proposition, if an appellate court finds that a judge has gone wrong in the exercise of a discretion, it is likely to substitute its own exercise of the same discretion, on the material known to it. Usually the circumstances relevant to the exercise of the discretion will not have changed significantly, and the court can revisit the matter as it stood when the case was before the judge. In principle a case should be decided by reference to the facts as they were at the time of the hearing before the judge. If the judge's conclusion is mistaken as regards the law, then the court should substitute the result which it considers to be correct on the basis of the facts as they were at the time of the hearing, and of the law as correctly understood. There may be cases in which the case has to be referred back to the lower court, because the information available to the appellate court is inadequate. To take such a course in the present case would be likely to postpone substantially the date on which Brent could achieve an effective determination of its rights. Finality is an important principle in the administration of justice.
- Mr Cottle submitted that the court could not decide properly, and in conformity with Convention rights, whether a possession order should be suspended except by reference to up to date evidence as to all relevant circumstances. I cannot accept that. It would lead to a potentially perpetual postponement of the enforcement of Brent's rights. If the trial judge decided in favour of suspension, but on the basis of an error of law, then even if the appellate court considered that he ought, on the evidence before him, to have made an absolute order, it would have to refer the case back, where the process could be repeated. Finality could never be achieved in the appellate court unless the trial judge was right.
- I would therefore reject Mr Cottle's argument on principle, and I agree with Jacob LJ that in the present case it is sufficiently clear what order the judge should have made on the facts of this case, namely an immediate possession order, not subject to suspension. That is the order that should be substituted for that made by the judge in relation to each licensee.
Lord Justice Wilson:
- Subject to a matter of emphasis to which I will refer at  below, I agree with both judgments. In proceeding ourselves to refuse to suspend enforcement of the orders for possession, we are taking a strong line. After careful thought, I am convinced that we are right to do so.
- In stating that he had already found that the use of the Respondents' pitches for storage of drugs and other items was sufficiently serious to entitle Brent to an order for possession, the judge showed that, at any rate at that crucial stage of his reasoning, he had become muddled. Perhaps his recollection was that the orders for possession in May 2008 had been made only because, analogously to the requirement in relation to secure tenancies in s.84(2) of the Housing Act 1985, he had considered it reasonable to make them. In truth, however, he had made them only because the notices to quit had determined the respondents' licences. I cannot accept Mr Cottle's suggested construction of the judge's statement, namely that the nature of the items found on the Respondent's premises would prima facie justify a refusal to suspend enforcement of the orders under s.4(1) of the Caravan Sites Act 1968 ("the Act"). In my view he should have said so. But, at least in that statement, he did not say so; and the fact that he erroneously believed that already, at an earlier stage of the enquiry, he had taken the results of the police raid on 14 March 2008 into account makes it important for us to discern whether he took them adequately into account when exercising his discretion under s.4(1).
- The terms of clause 4 of Brent's Licence Agreement with each respondent included the following:
"(c) You cannot park more than 1 vehicle (plus one caravan) on the pitch
Your relatives and guests must not bring caravans to stay on the site overnight
(p) You must not, and you must make sure that anyone who lives with you or visits you
does not, do any of the following
Do anything that is likely to (or does) harass
any person (including our staff, contractors and agents
Use your home for any immoral or illegal purpose (including taking, selling or supplying drugs
and receiving, storing or selling stolen goods)."
- So, on the part of each respondent, there was a clear and knowing breach of clause 4(c). There was also a clear breach of clause 4(p), although in the end the judge accepted that the respondents were unaware of the drugs and weapons, and in the case of Mrs O'Donnell the paraphernalia for selling drugs and for creating false identities, found in (or thrown out of) the second caravans on their pitches. There was no finding whether the respondents should have been aware of them.
- The breaches of the licence agreements evident as a result of the police raid on 14 March 2008, which, with respect to the judge, went far wider than failing to ensure that those who lived with them did not store drugs on their pitches, were central matters for his consideration in deciding whether to suspend enforcement of the orders: indeed they were matters to which, in particular, he had to have regard under s.4(4)(a) of the Act. But they were not the only matters which strongly militated against suspension. For there was the incident on 17 November 2008. There was in my view a substantial flaw in the judge's approach to this incident, in which a posse of 10 to 15 women and children, including both respondents, twice within a period of 20 minutes approached two women working for companies who had contracted with Brent to manage the site and shouted "Out, out, out" at them. Had the licence agreements continued in being on 17 November 2008, their harassment of the two women would have constituted a substantial breach of clause 4(p) of them; and a hypothetical breach of that sort is, by virtue of s.4(4)(a) of the Act, expressly required to be considered.
- It is proper to note that the judge said that the conduct of the respondents on 17 November 2008 had to be taken into account and that he did so. Thereupon, however, he concluded his consideration of he incident by stating only:
"It does not seem to me that their conduct on this occasion (regrettable as it was) is such on its own to justify an outright order."
- The matter of emphasis to which I referred at  above is that in my view Jacob LJ puts it too high when he suggests, at  above, that such was a conclusion which no judge could reasonably reach. My criticism of the judge's statement is different:
(a) It was not Ms Bretherton's case that, on its own, the conduct of the respondents on 17 November 2008 was such as to justify an outright order; in this regard the judge entirely missed the point.
(b) Her case in relation to the incident had two facets: its nature and its date. The judge had duly recited the date. But he did not address the significance of the date, which had been much pressed upon him, albeit three months earlier, by Ms Bretherton, namely that the incident occurred after the judge had made an order for possession and during the year's wait for a hearing in respect of suspension. Had the respondents been motivated to be of good future behaviour and to comply with the terms of their previous agreements, one would expect them to have demonstrated it during that period.
(c) Having cited a comment of Gage LJ in Sandwell MBC v. Hensley  EWCA Civ 1425,  HLR 22, at , that the court should suspend execution of an order for possession under s.85(2) of the Housing Act 1985 only if there is cogent evidence of a sound basis for hope that the previous conduct will cease, the judge concluded that there was such cogent evidence in that the young men living in the second caravans had vacated them. Prior to reaching that conclusion, however, it was incumbent on him to revert to the incident on 17 November 2008: I believe that, by the time when at last he came to undertake the oral delivery of his judgment, the significance of the date had escaped him.
- Section 4(4)(c) of the Act requires that, in its consideration whether to suspend, the court should have regard in particular to the question whether the respondents had failed to make reasonable efforts to obtain other suitable accommodation for their caravans. Although there seems to have been no evidence before the judge on that discrete point, there was substantial, conflicting, evidence on the wider issue of relevance to the discretionary exercise which the judge conducted and which now falls to us to conduct whether there was other accommodation which would be likely to be available for occupation by the respondents in the event of their eviction. In evidence summarised by the judge Brent referred to specific properties which, so it contended, would be available to the respondents and from or in respect of which they had already allegedly claimed state benefits. The respondents denied the contention and the judge made no finding in respect of it. The respondents had also claimed that they had an aversion to bricks and mortar and had persuaded the judge to direct the parties jointly to commission a report from a chartered psychologist into their claim and into allied questions. The psychologist suggested that their accommodation, static since 1997 and effectively fixed on site, was much more akin to conventional housing than to a caravan; and he reported that his interview with them indicated no phobic reaction on their part against conventional housing but, rather, an understandable lifestyle choice. Before the judge Mr Cottle articulated substantial criticism of the report, with which, in my view reasonably, the judge declined to grapple. In particular, however, Mr Cottle invited the judge to find that neither of the respondents had access to other accommodation; and such was a finding that the judge did not make.
- Perhaps the evidence justifies no more than the view that it may or may not prove easy for the respondents to find other, suitable accommodation. We have to weigh also the length of time, namely 13 years, for which the respondents have lived on the site; the unacceptable length of time, namely two years, since the orders for possession were made, although in my view such is a point which cuts both ways; and in particular (whether falling to be weighed under Article 8 of the ECHR or otherwise) the presence on the site of other members of the respondents' close-knit families. But the egregious misuse of their pitches revealed on 14 March 2008, together with the likely nature of their future conduct demonstrated by the incident on 17 November 2008, yields a conclusion of the balancing exercise in favour of a refusal to suspend enforcement of the orders.
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