Trespassers and proportionality

A High Court judge recently considered whether one local authority's bid to evict a trespasser was proportionate in circumstances where another council had accepted a duty to the man as a homeless person. Emily Orme analyses the outcome.

In R. (Plant) v (1) Somerset County Council (2) Taunton Deane BC [2016] EWHC 1245 (Admin), June 01, 2016 Cheema-Grub J the High Court has held that, where a trespasser sought to challenge one local authority’s decision to evict him as a trespasser, relying on his rights under Art.8, European Convention on Human Rights, the fact that another local authority had accepted a duty to the trespasser as a homeless person under Pt 7, Housing Act 1996, was a fundamental factor when considering the proportionality of the decision to evict.

The claimant in Plant had a number of interlinked medical difficulties which meant he required isolated and quiet accommodation away from any urban settlement. For about 20 years, he lived in a converted motor-home. In 2009, he applied to Somerset County Council for homeless assistance. Somerset accepted that they owed him the full housing duty under s.193, Housing Act 1996. They made him a final offer of accommodation which he refused and they notified him that their duty to him had come to an end. He did not seek a review of that decision.

In December 2012, without permission, he moved onto land designated as a site for gypsies and travellers, owned by Somerset. He remained there as a trespasser. In January 2013, Somerset County Council required him to leave and issued possession proceedings in July 2013.

At the beginning of August 2013, the claimant applied as homeless to Taunton Deane BC and was offered interim accommodation which he declined. In October 2013, Taunton Deane accepted that they owed him a duty under s.193 and started to try find suitable accommodation for him.

In January 2014, the claimant issued judicial review proceedings against both authorities. Against Somerset, he sought a declaration that the possession proceedings were a disproportionate interference with his right to respect for his home. He also sought a mandatory injunction requiring Taunton Deane to comply with their duty s.193. The possession proceedings in the county court were stayed pending the judicial review claim.

Taunton Deane did not respond to the claim, other than to indicate that they were not going to oppose it and subsequently a mandatory injunction was granted without a trial in March 2015. In April 2015, Taunton Deane made a final offer of accommodation to the claimant. His review of the suitably of that accommodation remains outstanding.

Somerset County Council defended the claim on the grounds, inter alia, that : (a) that the High Court was the wrong venue when there were already county court proceedings afoot in which the proportionality argument could be deployed; and, (b) that, in any event, the possession proceedings were proportionate.

In March 2016, a month before the full hearing, Taunton Deane re-evaluated their position and applied for relief from sanctions so that they could defend the claim for a mandatory injunction. They also applied to revoke the mandatory injunction.

In relation to the Taunton Deane’s application, the High Court held that there was no good reason for the failure to comply with the court rules, there was no good explanation for the delay in responding to the proceedings and the circumstances of the case did not require that relief be granted.

The High Court dismissed the claim against Somerset. In relation to the proportionality argument, it was held that the effect of Taunton Deane accepting a duty and then making an offer of accommodation made a fundamental difference. The assertion that the decision to issue and pursue possession proceedings was irrational was also dismissed and the High Court held that the proper place for the determination of the possession proceedings was the county court.

Emily Orme is a barrister at Arden Chambers and represented the second defendant. She can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..