Judge blocks council bid to evict Romani family from car park site

Medway Council's decision to issue a possession order requiring a family of travellers to leave a disused car park represented a "disproportionate interference" with their rights under article 8.2 of the European Convention on Human Rights, a County Court judge has found.

His Honour Judge Parker, who dismissed the possession claim in a decision handed down earlier this month, also found the council had breached the Children Act 2004 in deciding to pursue the possession order.

The parcel of land was formerly a park and ride facility with parking spaces for up to 112 vehicles.

The council put forward a claim for possession after the defendants, a family of Romani Gypsies, failed to leave the site following the expiration of a license, which allowed them to stay there.

At Canterbury County Court, the defendants did not assert any private law right to remain on the land and instead relied on the following public law defences:

1. That granting a possession order would be a disproportionate interference with their rights under article 8 of the European Convention on Human Rights
2. That the Claimant made its decision to seek possession without taking relevant matters into account
3. That the Claimant has failed to discharge its duty under s11 of the Children Act 2004
4. That the Claimant has failed to discharge its duty under s149 of the Equality Act 2010 – the Public Sector Equality Duty.

In considering the defendant's first ground, the judge said the order was "a disproportionate interference with the Defendants' rights under article 8.2 of the European Convention on Human Rights".

Article 8(2) of the convention states: "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The judge said: "This does not mean that the Defendants have a permanent right to stay.

"My decision is based on the parties' present circumstances, which are likely to alter. Future circumstances may shift the balance in favour of eviction.

"It is not possible to evaluate or even list all of the possibilities, but these include that some of the Defendants might leave, there might be changes in the Defendants' health or the position of their children, there might be instances of behaviour causing a nuisance, the Claimant might identify another site to which the Defendants could move, and that the Claimant might develop a plan to use or sell the Land."

The judge said he had considered whether there was scope to adjourn the claim or to make a possession order coming in to force on a deferred date, but said: "I do not believe that there is."

He said the proportionality exercise "depends on balancing a range of factors against each other", adding: "There is no identifiable date to which I can adjourn, and no factor which I can isolate so as to make it a condition on which a possession order is suspended.

"It seems to me therefore that I must dismiss the possession claim."

For completeness he went on to consider the rest of the other lines of defence.

He said: "In my view the decision to issue and continue with the possession claim was flawed in that it was made without taking into account (i) that possession proceedings against gypsies and travellers should not be pursued needlessly (ii) the risk of nuisance consequent on the enforcement of the possession order and (iii) whether the Defendants could be invited to move to other non-operational land of the Claimant's."

Turning to the third ground of defence – which argued the council failed to discharge its duty under s11 of the Children Act 2004 – the judge found that the council "did not have proper regard to the need to safeguard and promote the welfare of the affected children" in reaching its decision to pursue proceedings.

He described a proportionality review conducted by the council that stated that eviction would make it more difficult for them to access education as "no more than a cursory acknowledgement".

He also noted that the council's Deputy Director of Place, who gave evidence to the court, "did not in her Review or in her oral evidence consider the position of any individual child".

The judge also found no evidence that the council considered concerns raised about the education of some of the children expressed both by the defendants and by the head of a local school.

He ultimately found that there had been a breach of s11 Children Act 2004, which he said was "a further basis for refusing to make a possession order".

The judge meanwhile described the final ground of defence, which claimed the council failed to discharge its duty under s149 of the Equality Act 2010 (the Public Sector Equality Duty), as "unfounded".

The council has expressed disappointment over the court's decision, adding that it will consider the judgment before deciding its next steps.

Cllr Louwella Prenter, Portfolio Holder for Housing and Homelessness at Medway Council, said: "This is a lengthy and detailed decision and we will give it due consideration before deciding how best to move forward. Granting use of the site was only ever intended as a temporary three month measure, and the car park is not deemed to be suitable as a long term site for permanent occupation."

Keith Coughtrie, a solicitor at the Public Interest Law Centre who acted for the defendants, said: "The judgment represents a pragmatic and sensible outcome, as the cost to local taxpayers of continuous enforcement on the roadside significantly exceeded the expense of allowing them to remain in the car park."

The defendants have also made an application for a retrospective material change of use of the land to a gypsy traveller site.

However, the application was refused by a planning officer under delegated authority.

The defendants appealed against the refusal in January of this year. The appeal is due to be heard later this month.

Adam Carey