Court of Appeal quashes council direction requiring travellers to leave site

Thanet District Council failed to give notice to a Pavee Traveller and her family that it had withdrawn consent for them to stay on land at Ramsgate Port in Kent, before issuing a direction demanding they leave, the Court of Appeal has ruled.

The claimant had appealed the decision of Anthony Elleray KC, sitting as a judge of the High Court, to refuse permission to seek judicial review after a rolled up hearing in a written reserved decision on 8 July 2022.

In SO, R (On the Application Of) v Thanet District Council [2023] EWCA Civ 398, the Court of Appeal quashed the council's notice, finding that a notice issued under section 77(1) of the Criminal Justice and Public Order Act 1994 was unlawfully issued.

Section 77(1) provides:

(1) If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority's area—

(a) on any land forming part of a highway;

(b) on any other unoccupied land; or

9c) on any occupied land without the consent of the occupier,

the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.

The claimant and her family had initially come to the attention of the council when it moved on to a different plot of land in Palm Bay, Kent, which the council deemed inappropriate.

It sought their removal using section 77/78 of the 1994 Act, but a Magistrates’ Court refused to make a removal order because of the acute medical needs of some family members in the group, including one woman who was pregnant and whose pregnancy was thought to be very high risk.

As a result of the Magistrates' ruling, the council gave the group consent to move onto the land near the ferry terminal on a temporary basis.

Lord Justice Edis noted that it was clear from the documents the council issued at the time that the occupation of the land was intended to last until the acute medical issues those in the claimant's family were facing had passed. No end date for the occupation was specified or agreed in the documents.

The pregnant woman gave birth in September 2021, but the child did not survive.

Three months on (1 December), the council served a section 77(1) notice on the claimant and her family in an attempt to have them leave "as soon as practicable".

At issue was whether a section 77(1) direction could not lawfully be given to the group, including the claimant, because they were not residing on the land without the consent of the occupier.

It was agreed that they began residing on the land with the consent of the council and that no notice of any decision to revoke that consent had been communicated to them prior to the giving of the section 77(1) direction.

The claimant argued that a section 77(1) direction served on the land where the claimant lived in a vehicle was invalid and should be quashed, advancing two grounds of argument.

The first ground argued that the service of the direction notice pursuant to s 77(1) of the 1994 Act on 1 December 2021 was unlawful because the Defendant, as occupier of the land, had permitted [the claimant] to enter on the Land at Ramsgate port and to reside there in a vehicle, and had not given notice of any decision to withdraw consent before giving and serving the section 77(1) direction. In those circumstances, SO was not a person within any of the three positions described in section 77(1)(a)-(c) of the 1994 Act, and no direction in respect of her residence could lawfully be given at the time when Thanet District Council gave this one.

The second ground was not considered by Lord Justice Edis to be a separate ground of challenge to the council's direction in the proceedings.  

In response to the first ground, the council submitted that all that was required was a decision by the council to bring to an end the period of time when it consented to the residence on the land of the claimant and her family group. The council posited that the 1994 Act does not require that this decision be communicated to them to be effective for the purposes of the giving of a section 77(1) direction, the simple fact that consent has been withdrawn is enough.

It argued alternatively that if notice is required, then the service of the section 77(1) direction itself constitutes such notice. The council submitted that the rights of those residing on the land were sufficiently protected because the requirement was only to leave the land 'as soon as practicable' and this allowed a court to take into account the circumstances (including the absence of any notice) in deciding whether a person has committed the offence of failing to leave the land as soon as practicable.

No removal order under section 78 can be made unless that is established. Therefore, the council argued, there is no breach of any public law duty to act fairly and reasonably by giving no notice of the direction to leave the land as soon as practicable. The procedure adopted allowed consideration (by the court) of all relevant welfare issues.

Lord Justice Edis ultimately concluded that the section 77 provision requires any consent which has existed to be withdrawn to the knowledge of the person to whom the direction will be given by notice before the local authority can lawfully give a direction.

He also refused to accept that the terms of section 77 provide all necessary safeguards to protect the reasonable interests of a person who has been residing on land perfectly lawfully and with the consent of the occupier, as argued by the council.

He said he did not take "such a broad view" of the statutory phrase "as soon as practicable", as was suggested by the council's barrister, Andrew Lane.

Lord Justice Edis later added: "…..Section 77(1)(c) should not be construed so that a person who has resided on land with the consent of the occupier, and who does not know that the consent no longer exists, may be lawfully served with a section 77(1) direction.

"Consent may come to an end because it was only given for a fixed period which has elapsed, or because it was terminable on notice which has been given. In either of these events, the person who had been residing on land with consent will know that this is no longer the case.”

The Court of Appeal judge added: "Where the occupier is a local authority who owes public law duties to the residents in its decision-making the section 77(1) process should not become available in a case where there had been consent 'until further notice' until a decision has been made as to what constitutes reasonable notice of the ending of that consent, and until such notice has actually been given."

The judge granted the claimant judicial review of the section 77(1) direction and quashed it.

Lord Justice Arnold and Lord Justice Underhill agreed with his judgment.

Adam Carey