Querying an Injunction needs more than a Reference to ECHR Article 8

Article

21 July, 2009

Issues relating to the removal of gypsies from land are arguably some of the most problematic areas of housing law that a landlord or local authority may have to deal with. One of the main points of contention may be that by removing the gypsies from the land in question, their right to a private and family life is unfairly interfered with. In situations such as these, it can be difficult to be sure of the correct legal procedure to follow and what will be taken into consideration by a court.

The recent case of South Somerset District Council v Hughes and Others, which was heard by the Court of Appeal on 15 June 2009, considered the reasonableness of a judge granting an injunction which required a group of gypsies to vacate land owned by the Council. This decision has provided greater clarity as to what a judge in future cases is required to take into consideration when dealing with such injunction applications and consequently, what landlords and local authorities will have to include in the evidence they put forward.

The Facts

A group of gypsies (H) appealed against the decision of the trial judge to find in favour of the Council (C) and grant an injunction which required H to cease occupying land owned by C. H had owned an area of land for a number of years and had, on numerous occasions, applied for planning permission for mobile homes to be erected there. Permission was refused on each of these occasions and each appeal was also dismissed.

H then moved onto the land in question and stationed mobile homes and caravans upon it. C served two enforcement notices on the group but H remained on the land. At the injunction hearing, H submitted that if the injunction was to be granted, it would be a breach of Article 8 of the European Convention on Human Rights, which relates to the right to, and respect of, a private and family life, as C had failed to provide sufficient sites for gypsy communities in the area.

The judge held that it was not necessary for him to determine whether C had breached its duty to provide gypsy sites and granted the injunction.

In the appeal, H contended that the judge had failed to give any weight to C's failure to provide land for gypsy sites in accordance with published government circulars and had also erred by expecting H to live in conventional housing.

The Court of Appeal's Decision

In dismissing H's appeal, the Court of Appeal held that the judge was not obliged to determine whether C was at fault for failing to comply with government circulars about providing gypsy sites. There was nothing in the applicable case law to suggest that the degree of a local authority's culpability had to be taken into account in the balancing exercise. The judge was instead required to take into account the availability of alternative sites when completing the balancing exercise between the parties' wishes.

The fact that gypsies had a 'cultural aversion' to conventional accommodation had been taken into account by the judge. It was held that the references made to H's legitimate wish to reside in the open showed that the judge had taken the Article 8 rights of H into account when the decision to grant the injunction was made.

Summary

This case has shown the importance of a local authority or landlord in this situation being able to indicate to a judge the number of alternative sites that are available to gypsies. Doing so may mean that the argument forwarded by H (that there had been a failure to provide such sites and therefore breached their Article 8 rights) would not be available. As with all cases taken before a court, preparation is key and all possible opposing arguments should be considered and countered in the evidence presented to the judge.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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