Tim Baldwin of Garden Court Chambers acted on behalf of the Claimant, SO, leading Lara Simak of 12 Old Square Chambers.
Counsel were instructed by Michael Imperato of Watkins & Gunn Solicitors in a judicial review claim heard in the Court of Appeal on 28 March 2023.
See full judgment here: R (on the application of SO) v Thanet DC and others [2023] EWCA Civ 398
The judgment was handed down on 14 April 2023.
The claim concerned a representative Claimant. SO, a member of a group of Irish Traveller families who were invited by the Defendant local authority onto land owned and leased, in part, from the Crown Estate at a disused Ferry Port in Ramsgate, Kent.
The Travellers were invited onto the land as a result of the welfare needs of some of the extended Traveller family and entered into a temporary agreement to occupy the land with the consent of Thanet District Council in May/June 2021. On 1 December 2021, Thanet District Council served a notice pursuant to s 77 of the Criminal Justice and Public Order Act 1994, requiring the Claimant and the Travellers to leave the land, and subjecting them to enforcement proceedings before the Magistrates Court under s 78 of the Criminal Justice and Public Order Act 1996.
A claim for judicial review was issued with an injunction staying enforcement and this claim was heard in a “rolled up” hearing before the High Court and a reserved judgment of 8 July 2022. The judge refused permission for judicial review (see R(on the application of SO) v Thanet District Council [2022] EWHC 1731 (Admin)). The issue concerned a novel point of public law as to whether it was unlawful to use such a notice without first giving the Travellers occupying the Land reasonable notice that consent had been withdrawn, prior to giving and serving the s 77 notice. On granting permission to appeal and permission for judicial review on 29 December 2022, Lord Justice Bean held under ground 1 of the appeal:
Ground 1 raises a point of law – whether a temporary consent to occupation must be withdrawn before service of a s 77 notice – on which the appeal has a real prospect of success. Since the decision under appeal was given at a rolled-up hearing I do not think that any useful purpose would be served by a further hearing in the Administrative Court...
As a result, the Court of Appeal determined the claim for judicial review...
Lord Justice Edis, for the Court, at paragraphs [40 – 41] of the judgment held:
40. Further, and in any event, in my judgment the circumstances of this case clearly required the 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. The Code of Conduct documents made it clear that the residence on the land was “permitted” or “tolerated” and the occupants were “guests”. They described the Land as a “negotiated stopping site”. That situation would be the subject of reviews every three weeks and would last “until further notice”. It was expressly stated that termination of their residence on the Land would require a “decision about the future of the stopping site”. All of this language was incorporated in the permission (perhaps a licence) to reside on the land. The word “tolerated” may be an attempt to avoid using words such as “permit” because it implies a passive acceptance of an unwelcome situation. In this case, it is not an apt word to describe what happened, because Thanet District Council did actually permit the group including SO to reside on the Land, and did positive acts to supply water and toilets to enable them to do so.
41. This language was not used by a private landowner, but by a local authority with public law duties. I consider that these duties are important to the outcome of this case. Parliament has chosen to make the power to give section 77(1) directions only available to local authorities, who must exercise it in accordance with these duties. A local authority acting reasonably and fairly having used such language would consult before making the decision to withdraw consent, as part of the Code of Conduct documents suggests. The failure to do this is not something which is criticised in these proceedings. However, such a local authority would also then inform those affected of what the decision was, and allow them a reasonable time to vacate the Land before being made subject to criminal sanctions for failing to do so “as soon as practicable”.
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The Court of Appeal ordered that the s 77 notice be quashed.
Tim Baldwin is a member of Garden Court Chambers Romani Gypsy & Traveller, Public Law and Housing Teams.
This case has been widely reported previously in the press, including the BBC, Kent Online and Local Government Lawyer and local news.
A transcript of the Court of Appeal judgment is available here.
