Challenge to suitability of ‘bricks and mortar’ interim accommodation

21 July 2014

This case concerned the eviction of the O’Brien family from an unauthorised encampment off West Town Road under the Avonmouth Bridge, which carries the M5 motorway. The claim was issued in the High Court as a judicial review of the Council’s decision to seek possession due to the absence of legal aid for trespassers to defend possession proceedings brought against them.

Interim relief was granted after a possession order had been made against the family in the Bristol County Court restraining the Council from taking any steps to enforce that order.

The challenges (in summary) were that the Council had: (1) failed to make proper welfare inquiries; (2) failed properly to consider the option of moving the Claimants back to the official transit site (where they had lived until fairly recently); (3) acted in breach of the family’s Article 8 ECHR rights by evicting them; and (4) that the offer of ‘bricks and mortar’ accommodation in discharge of its section 188(1) Housing Act 1996 obligation (interim accommodation pending decision) was contrary to Article 8 ECHR and ‘unsuitable’.

Perhaps the central point was that the offer of ‘bricks and mortar’ accommodation was unsuitable. Assuming the decision in Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925 to remain good law the O’Briens’ argument was that their case could be distinguished. Codona says that Article 8 cannot require local authorities to match supply with demand, but it says nothing about the position where the supply outstrips demand (or where it is simply the case that there are pitches available for the applicant in question). The O’Briens argued that where a pitch was available Article 8 could require that it be provided. In those circumstances, the O’Briens argued, the proper standard would not be the Wednesbury test but, instead, a proportionality analysis (fed by the positive duty to facilitate the Gypsy/Traveller way of life: Chapman v the UK (2001) 33 EHRR 399).

In this case, while the evidence was that the transit site was largely empty for much of the time, Burnett J accepted the Council’s position that the possibility of a large influx of Travellers meant that it was necessary to keep the resource as flexible as possible. This was so notwithstanding a Council policy which suggested maintaining a “void level” of six sites (twelve were available at hearing) and a GTAA from December 2013 which suggested the site was extendable to include 20 emergency stopping places

For further commentary, see Nearly Legal’s Trouble out West.

Joseph Markus of Garden Court North Chambers represented the O’Briens, instructed by Community Law Partnership.