CODONA v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mrs Leanne Codona, is a British national who was born in 1982 and lives near Fenstanton, Cambridgeshire. She is represented before the Court by Christopher Johnson, a lawyer practising in Birmingham. The applicant is a gypsy. She lived with her young son and other members of her extended family in caravans on what has become known as Plot 7 Woodside Caravan Park at Hatch, near Sandy in Bedfordshire (‘the Site’). Mid-Bedfordshire District Council (‘the Council’) was responsible for planning control in relation to the Site and was also the responsible housing authority. The applicant moved with other gypsies onto the Site with their caravans in mid-1997, in breach of planning control. Over time, the Site became divided into 27 plots. The Council first learned in early August 1997 that gypsies were occupying the Site. In October 1998, the Council served enforcement and stop notices on the occupiers of the Site under the provisions of the Town and Country Planning Act 1990. The occupiers appealed. It is not clear from the materials submitted whether the applicant was amongst those who appealed. Following a local public inquiry held in May 1999, a planning inspector dismissed the appeals by decision letter dated 29 June 1999. He gave the occupiers 12 months within which to comply with the enforcement and stop notices, so as to enable them to apply for planning permission in respect of smaller area. It appears that they took no steps to comply with either set of notices. In late 1999 or early 2000 the Council resolved to take enforcement action by way of injunction or prosecution; at about the same time, the occupiers, styling themselves “the owners of Woodside Caravan Park” made a further planning application, essentially to continue its use, albeit with more landscaping. Again, it is not clear from the materials submitted whether the applicant was involved in the making of this application. In July 2000, shortly after the expiry of the 12 month period of grace given by the inspector, the Council refused the application for planning permission. Following inquiry, the inspector dismissed the occupiers’ appeal in January 2001. Early in 2001, before the Council could put into motion steps to evict the occupiers, the latter, including the applicant, made 19 planning applications in respect of individual plots on the site. In the summer of 2001, the Council refused the majority of the applications, including those of the applicant. The applicant and 10 other occupiers each appealed the refusal in their individual case. In the meantime, in August 2001, the Council issued proceedings for injunctions against named and un-named occupiers of the Site. The latter responded in September 2001 by seeking and obtaining permission to apply for judicial review, it appears against the decision to issue these proceedings. In late 2001 and early 2002 an inspector held an inquiry into the 11 individual appeals. In June 2002, the inspector dismissed each of them. The Council then immediately sought and obtained (after a three day hearing, at which evidence was given) an injunction against her and all the other occupiers of the Site to remove themselves, their caravans, all hard standings and associated materials from the Site by 1 November 2002 (‘the injunction’). The applicant responded by making a further planning application, this time in relation to three plots on the land. The Council refused to determine this application because of its close similarity to the previous application. The applicant sought without success on paper to obtain permission to claim judicial review in respect of that decision. At about the same time she and other occupiers applied both to the High Court to vary the terms of the injunction as to the date when they should leave the Site and also to the Council for accommodation as homeless persons under the provisions of Part VII of the Housing Act 1996 (‘the 1996 Act’). In early November 2002, the High Court refused the occupiers’ application for variation of the injunction and refused them permission to appeal. Very shortly thereafter the Council exercised its power under s.178 Town and Country Planning Act 1990 to clear the majority of the occupiers from the Site, but not the applicant, who with her family continued to occupy so-called Plot 7 (with some 6 or 7 caravans). In late December 2002, the Court of Appeal refused the occupiers permission to appeal the decision of the High Court. The applicant did not seek to renew orally her judicial review application in respect of the Council’s refusal to entertain her application for planning permission, on the Council agreeing not to enforce the injunction without giving her and her family seven days notice of its intention to do so and to consider and determine their homeless applications (one made on 30 October 2002 and a revised one made on 31 October 2002, the former ultimately being subsumed into the latter). In that homelessness application, the applicant explained that she had an aversion to conventional “bricks and mortar” and that she: “...[did] not wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs Codona wishes to live in a caravan and have the support of her extended family around her.” On 4 March 2003, the Council, acting through Aragon Housing Association (to which it had delegated its housing function) (‘the Association’), accepted its duty under section 193 of the 1996 Act to provide the applicant and her family with suitable accommodation. The Association concluded that they could only offer them “bricks and mortar” accommodation in a “bed and breakfast establishment” until it could make a final offer of accommodation acceptable to them. The letter read to the applicant read in relevant part as follows: “The Association... have a duty to secure suitable accommodation is available for your occupation and, in doing so, shall have regard to all the relevant circumstances relating to you and those who normally reside with you or might reasonably be expected to reside with you. The Association is aware that there are six/seven caravans on Plot 7, Woodside Caravan Park, Hatch, the occupants of which you have included in your homelessness application. The Association is also aware that you consider the occupants of these other vehicles as part of your immediate household and that you have requested that they be accommodated with you. In your application you have also indicated that you do not wish to live in accommodation made of bricks and mortar and that you would consider the offer of a plot/piece of land. Unfortunately, as you aware from previous meetings, the Association is unable to offer land, and can only secure accommodation from either its own housing stock or, on some occasions, property owned by another Housing Association also operating within the Mid Beds Area. Further, it is also highly unlikely the Association will be able to secure a single property large enough to accommodate all the occupants of Plot 7, Woodside Caravan Park. However, given that each family occupying Plot 7 resided in their own separate unit of accommodation, the Association does not consider it unreasonable to offer an individual property for each family on Plot 7 and will endeavour to ensure the properties offered are in as close proximity to each other as is reasonably possible.” The applicant sought to clarify what accommodation the Association was intending to offer her; they made it clear that they were intending, in the short term, to offer her bed and breakfast accommodation. Through her solicitor, the applicant sought an internal review of this decision pursuant to section 202 of the 1996 Act. On 8 May 2003, the decision was upheld. The Council wrote in the following terms: “In relation to the question about reasonableness [sic] of an offer of Bed & Breakfast or other temporary accommodation I have reached the following conclusions: ... [the 1996 Act and the Homelessness Code of Guidance for Local Authorities (July 2002)] ... provide clarity of what constitutes suitable accommodation. Bed & Breakfast is deemed to be suitable accommodation particularly as... the Council have already confirmed that they will take all reasonable steps to minimise its use. Wherever reasonably practicable the offer of any temporary accommodation would be within Mid Beds and that such accommodation as would be provided would be fit for occupation and would not result in statutory overcrowding [a reference to section 210 of the 1996 Act]. ... I note your concerns regarding a stay in bricks and mortar accommodation and would certainly not underestimate the differences [sic] which you would have to face having always lived in a caravan. I understand that you are concerned about living without the support of your family but again... [the Council] have advised that all practical steps would be taken to accommodate you as a close family unit. Therefore having fully considered the details of your case and your cultural aversion to bricks and mortar as detailed... I find that, while sympathetic to them, I must also take into consideration the general makeup and stock of the housing within the area and also the availability of suitable accommodation and this leaves us with no alternative but to offer bricks and mortar accommodation.” The applicant then applied to the County Court for a statutory review pursuant to section 204 of the 1996 Act. She advanced multiple grounds, but only one of them, the question of whether the accommodation offered was suitable, was considered at length, the others being found to be entirely groundless. The County Court found: (1) that the Council had accepted and continued to accept that it owed a statutory duty to the applicant and her family to secure that suitable accommodation was made available to them; and (2) the applicant had a “cultural” aversion to living in “bricks and mortar” accommodation. However, the court also accepted that the Council did not have any land available for the applicant or members of her family to pitch their caravans, such that it was impossible for it to offer what she wanted. The County Court judge considered the position by reference to domestic decisions which had, in turn, considered the jurisprudence of this Court. The judge considered that he was bound by the decision in R (Price) v Carmathenshire County Council [2003] EWHC 42 (Admin) (in which the case of Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001I had itself been the subject of consideration). The High Court in Price found that, while it was necessary that special consideration be given to the position of gypsies as a minority, it could not be argued that an offer or bricks and mortar accommodation could never constitute a suitable alternative accommodation for a Gypsy with a cultural aversion to bricks and mortar. The County Court found that “to impose on the Housing Authority a duty to produce a pitch or berth for six or seven caravans is not supported by statute or by case law, whether in this country or in Europe.” It also found that, while the Council had not expressly considered Articles 8 or 14, it had proceeded in a way compatible with their requirements. The court therefore found that, in the circumstances, the Council’s offer was an adequate discharge of its duty under section 193. The applicant appealed to the Court of Appeal, which dismissed her application for permission to appeal on 15 July 2004. The Court of Appeal found that, while an empty pitch is not itself “accommodation” for purposes of section 193, a council could, by making it available as a site to pitch a caravan, and with the agreement of the individual, be said to have discharged its duty under the section. The Court of Appeal therefore considered at some length the question of whether bricks and mortar accommodation could be said to be “suitable” for a Gypsy with a cultural aversion to bricks and mortar. It considered the same domestic cases as had been considered by the lower court, as well as Chapman, and found there to be three main criteria for assessing the suitability of accommodation offered: “1) suitability to a [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223] minimum level of suitability in the nature, location and standard of condition of the accommodation having regard to the circumstances of the applicant and his or her resident family including the duration of their likely occupation of it; 2) the absolute nature of the duty which, though, coupled with an elastic concept of suitability is not elastic as to allow an offer below the Wednesbury minimum standard (or... outside the margin of appreciation); and 3) special consideration, in the regulatory and decision-making in individual cases, for the housing needs of particularly vulnerable applicants such as traditional gypsies with a view, so far as is practicable and when considered with all other circumstances, to facilitating their traditional way of life.” The Court of Appeal found that, if the Council had carried out a genuine consideration of a Gypsy’s needs, “where land is not available, or cannot readily be made available, on which a Gypsy applicant can station his or her caravan, it is open to a local authority to provide other accommodation of the conventional bricks and mortar kind, providing that it satisfies the Wednesbury minimum line of suitability.” The Court of Appeal found that the Council and first instance judge had correctly identified and applied the relevant principles in the applicant’s case. It also considered that the first instance judge had properly considered the Article 8 question in his own right. The Court of Appeal noted that the Council was required as “as a matter of relative urgency to find accommodation for an extended family occupying some six or seven caravans, who were insisting, because of their aversion to conventional housing, on being provided with an alternative site for all of their caravans on which they could continue to live together.” As with the first instance court, the Court of Appeal found that there was no such site available, nor was the Council immediately able to provide long-term conventional bricks and mortar accommodation for the extended family. It therefore concluded that, “depending on the quality of bed and breakfast accommodation offered and, on the reasonable assumption that the Council will see to it that their stay will only be for a short time,” the Council by offering bed and breakfast accommodation had discharged its duty under section 193 and had acted compatibly with Articles 8 and/or 14. It added the caveat that bed and breakfast accommodation could become unsuitable either under domestic law or by reference to Article 8 if too long a period elapsed before the provision either of conventional housing or, if it could be found, a caravan site. The House of Lords refused the applicant permission to appeal on 16 December 2004 on the basis that her petition did not raise an arguable point of law of general public importance which ought to be considered by the House at that time, given that it had already been the subject of judicial decision. On 28 September 2004, the Council reassessed the applicant and made a further offer of temporary accommodation. This was refused by letter dated 30 September 2004. No details of the accommodation offered at that point have been provided by the applicant. It is in particular not clear whether the Council offered bed and breakfast or permanent settled accommodation and/or whether it restated its view that there were no suitable caravan sites available. On 5 November 2004 (and again on 8 November 2004), the Council gave notice of its intention to enforce the injunction; the High Court dismissed an application for judicial review of the Council’s decision on 2 February 2005. The applicant and her family vacated the Site on or before 23 February 2005. It appears that they are now on unauthorised sites, and the applicant’s family is split because they have been unable to find a site where they can remain together. She contends that she (and her family) are now vulnerable to proceedings for possession from local authorities and private landowners, and also to the imposition of removal directions and/or possible criminal proceedings under sections 61, 62A-E, 77 and 78 of the Criminal Justice and Public Order Act 1994. The applicant has submitted a press release from the Office of the Deputy Prime Minister dated 7 March 2005, from which it appears that the Government is consulting on a revision to the directions given to local authorities with a specific view to increasing the number of authorised caravan sites available for use by travellers and gypsies. Local authority duties to the homeless are provided in Part VII of the Housing Act 1996. Section 193 provides, in material part: “(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. (2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.” Section 206 provides, again in material part, “(1) A local housing authority may discharge their housing functions under this Part only in the following ways – (a) by securing that suitable accommodation provided by them is available, ...” There is no definition of the word “suitable” in this section. By section 175 (2) of the 1996 Act “A person is also homeless if he has accommodation but – ... (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.” The meaning of the word “suitable” within the context of sections 193 and 206 of the 1996 Act has been considered in several domestic cases. The most relevant is that of R (Price) v Carmathenshire County Council [2003] EWHC 42 (Admin), in which the main issue was whether the Gypsy in question had a cultural aversion to bricks and mortar. However, the High Court had to consider as a starting point whether such an aversion of itself could prevent an offer of such accommodation from amounting to an offer of suitable accommodation. The High Court, expressly considering itself to be following Chapman, accepted that it was incumbent on local authorities to give effect to the positive obligation imposed on contracting States under Article 8 to facilitate the Gypsy way of life, but found that, had the respondent council concluded that: “the claimant’s cultural commitment to traditional life was so powerful as to present great difficulties in her living in conventional housing, it was not bound by duty to find her a pitch, but it would have been a significant factor in considering how far it should go to facilitate her traditional way of life.”