In April this year, the Court of Appeal found in favour of a young traveller fighting eviction. This is the most important traveller case for some years and finds the courts restraining the potentially draconian powers of local authorities.
The case involved a group of Irish travellers facing eviction from their temporary stopping site in Ramsgate, Kent, following Thanet District Council’s decision to direct their removal from Ramsgate port, and commence enforcement proceedings to secure such removal.
The availability of suitable stopping sites for travellers has been a growing concern in recent times. Local authorities have legal duties to ensure that the needs of travellers are met, and have significant powers to direct travellers to leave council-owned land under certain circumstances. The case of SO v Thanet District Council & Others [2023] EWCA Civ 398 is a significant judgment concerning how a local authority must conduct itself when exercising its powers under s77 Criminal Justice and Public Order Act 1994 (the 1994 Act).
This case is important for both those traveller communities affected and also for local authorities. It highlights the need for effective and proper notice prior to commencing removal proceedings against travellers occupying council-owned land with consent. It provides a warning to local authorities who fail in this regard and a potential valuable remedy for travellers. It is a case that all who practise in this area of law need to familiarise themselves with.
The claimant was allowed anonymity and was known in the proceedings as SO. The claimant is part of a family of Irish or Pavee travellers who were occupying an area of land (the land) behind the Ferry Terminal in the Port of Ramsgate. SO and her family came to reside here due to Thanet District Council (TDC) consenting to allow them to occupy the land. The family had been moving around various pieces of land in the area in the preceding years, and ultimately came to reside at Ramsgate port. The land comprised of two segments, one of which was owned by TDC, and the other owned by the Crown Estate (an interested party), albeit TDC was the occupier of the land for the purposes of these proceedings.
The power under s77 (1) of the 1994 Act allows local authorities to direct unauthorised campers to leave land where they are located on a highway, or on unoccupied land, or, as was material and crucial in this case, on occupied land without consent (s77 (1)(c)). TDC sought to remove the claimant and, by effect, her family, from the land by serving a notice under s77 (1) of the 1994 Act, which directed her to leave the land as soon as reasonably practicable. The key question in this case though rested upon whether the power to serve such a direction was available to the local authority.
On 14 April, the Court of Appeal, sitting at first instance in the matter of a claim for judicial review, handed down judgment in the case of The King (on the application of SO) v Thanet District Council & Ors [2023] EWCA Civ 398. The Court of Appeal determined that the s77(1) direction notice in question was unlawful and held that reasonable notice of the withdrawal of temporary consent to occupy land is required prior to giving such a direction. It had not been given in this case, and the judgment, in turn, resulted in the local authority being unable to enforce the removal of the claimant from the land through this notice.
Proceedings in the Court of Appeal
This case had a long procedural history leading to an appeal, following the refusal of permission to apply for judicial review on the papers and then at an oral renewal hearing in the High Court. Upon further appeal, Bean LJ granted permission to apply for judicial review, and retained the case in the Court of Appeal. Edis LJ elaborated the judgment of the court, with Underhill LJ and Arnold LJ in agreement.
The claimant’s case was that without any prior notice informing her of the withdrawal of the consent that she holds to occupy the land, she could not be a person who was residing on the land without consent (as is required for the local authority to exercise its removal powers). Crucially, without being informed of when any consent to occupy was withdrawn, she would have been unaware of any need to leave the land and was unable to take any necessary action to leave. It was also submitted that the timing of the notification of withdrawal must be reasonable, in line with public law principles.
TDC’s case was that s77 of the 1994 Act did not require the local authority to inform the claimant of the withdrawal of consent (provided that a decision was made to bring the consent to occupy to an end). In the alternative, TDC submitted that, if notice was required, then the s77 (1) direction itself serves that purpose. In support of this, TDC emphasised the wording of the direction, that being that it required a person to leave the land ‘as soon as reasonably practicable’, which safeguards the rights of the residents due to it considering a person’s circumstances. In other words, it does not prescribe that they must leave the land immediately.
Edis LJ took the view that the answer as to whether any prior notice of the withdrawal of consent is required can be derived from the wording of s77 itself. The construction of s77 is worded in the present tense, utilising the terms ‘appears’ and ‘for the time being’ [34]. The statute therefore does not allow for any pre-emptory action by the local authority with the aim of achieving the required state of affairs following the giving of a direction. Those subject to the direction must fall under one of the categories in s77 (1) at the time the direction is given. As explained by the CA:
To be lawful, the necessary state of affairs described in section 77(1)(c) must exist at the start of the process and not be the result of the process. On its true construction, this provision therefore requires any consent which has existed to be withdrawn to the knowledge of the person to whom the direction will be given by notice before the local authority can lawfully give a direction.
The CA emphasises the bilateral nature of consent: regardless of the form of such consent, whether it be terminable upon notice, or terminable following the expiration of a specific period, the need for the parties to know that the consent has come to an end is paramount. Without this joint knowledge, the power contained within s77(1)(c) is not available to the local authority [38]. In the circumstances, where the consent to occupy is ‘until further notice’, “the section 77(1) process should not become available… until a decision has been made as to what constitutes reasonable notice of the ending of that consent, and until such notice has actually been given.”
The court analysed a code of conduct document that was provided to the claimant by TDC early in the story of the case. This outlined the expectations of the travellers on the land. The court drew upon the language used within this document that indicated that permission was given; for example, the use of the words ‘permit’ and ‘tolerated’ in respect of the claimant’s occupation. In light of the travellers being granted permission to occupy, the CA took the view that “this case clearly required that Thanet District Council to give reasonable notice to SO and her family (the group affected by the November direction) of the ending of the consent to reside on the land and their consequent obligation to vacate it.”
Such notice is important – the CA said – precisely because the power under s77 (1) is a draconian one and is given to local authorities on the basis that they will exercise it in line with public law principles. Edis LJ emphasised that such power is only provided by parliament to local authorities, rather than to private landowners. Local authorities must act reasonably and fairly, and must consult with individuals that are affected by its decision-making. Upon the conclusion of such consultation, those individuals should be able to reasonably expect to be informed of the local authority’s decision and, in these circumstances, be allowed sufficient time to vacate the land before being made subject to criminal sanctions from enforcement proceedings.
The question of what amount of time would be sufficient for unauthorised campers to leave the land was not required to be decided in this case. However, this is a question which needs to be carefully considered by a local authority when exercising this power. The Court of Appeal has made clear that it is to be based upon an interpretation of the authority’s public law duties, and not derived from any contractual relationship between the individuals residing and the authority. There is an array of factors that would need to be considered, which would all be subjective but could well include the health and social needs of the families involved, the availability of alternative land, and the suitability of a different area. A key consideration where children are involved may well be their education, and the detriment that re-location may cause.
The claimant was successful in her claim for judicial review, and the Court of Appeal quashed the s77 (1) direction notice made on 30 November 2021. As a result, the enforcement of such notice could not be continued.
This case provides an important analysis of s77 of the 1994 Act, and specifically its application to those present on council land with consent. It provides important guidance to local authorities when exercising this power. Importantly, the judgment is a reminder to local authorities that the consideration of the authority’s public law duties should be at the forefront of its considerations when determining what period of reasonable notice is sufficient when withdrawing consent to occupy. The emphasis being that, as detailed within the statute, the camper(s) concerned must satisfy a condition specified under s77(1) prior to serving a direction for them to leave the relevant land. The case highlights the reason why – in the light of the stark consequences of eviction from the serving of such a notice – proper notice should be given to those people affected. It emphasises the need for the withdrawal of consent to be based on evidence, clearly recorded, and unambiguous.
Michael Imperato is director and Jack Felvus is a paralegal at Watkins and Gunn Solicitors. Watkins and Gunn Solicitors acted for the claimant in these proceedings and instructed counsel Mr Timothy Baldwin (Garden Court Chambers) and Mrs Lara Simak (12 Old Square).
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