Neutral Citation Number: [2009] EWCA Civ 146
Case No: B5/2007/1565
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
H H J TRIGGER
6LV55430/6LV55431
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/03/2009
Before:
LORD JUSTICE JACOB
LORD JUSTICE TOULSON
and
LORD JUSTICE AIKENS
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Between:

	MARGARET DORAN	Appellant	
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	LIVERPOOL CITY COUNCIL 
-and-
THE SECRETARY OF STATE FOR COMMUNTIES AND LOCAL GOVERNMENT	Respondent

Intervener	
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(Transcript of the Handed Down Judgment of
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David Berkley QC and Kashif Ali (instructed by Messrs James Murray) for the Appellant
Edward Bartley Jones QC and Andrew Vinson (instructed by Liverpool City Council) for the Respondent
Daniel Stilitz (instructed by Treasury Solicitors) for the Intervener
Hearing dates: 9 February 2009
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Judgment
Lord Justice Toulson : 
Introduction
1.	The appellant is an Irish traveller.  She appeals against a summary judgment given by His Honour Judge Trigger on 30 May 2007, by which he ordered the appellant to deliver up vacant possession of pitch 8, Tara Park, Oil Street, Liverpool, to the respondent (“the council”).  Tara Park is a site run by the council under the regulations of the Caravan Sites Act 1968.  By written licence agreement dated 30 March 2005 the council granted a licence to the appellant to occupy pitch 8.  On 12 June 2006 the council served on the appellant a notice to quit the site on 10 July 2006.
2.	In summary, the appellant argues that the council’s decision to issue the notice to quit and to seek possession of the site was unlawful as a matter of public law, and that she therefore had a public law defence to the claim for possession.  Mr Berkley QC on her behalf made the point that the council’s decision to seek to evict the appellant was sub-divisible into a number of stages, the decision to issue a notice to quit, the decision to issue proceedings and the decision to ask the judge to make a possession order.  Subject to one important reservation, however, he did not suggest on the facts of this case any different considerations apply to an assessment of the lawfulness of the council’s conduct at these different stages.  So I will concentrate on the issue as to the lawfulness of the decision to issue a notice to quit and will come to the reservation at the appropriate point.
3.	The appellant seeks an order that the summary judgment be set aside and the matter remitted to the county court for the judge to hear oral evidence so as to be able properly to determine the validity of her public law defence after resolving any relevant disputed issues of fact.  It is submitted that this is necessary because the council’s decision to issue the notice to quit was prompted by criticisms of the behaviour of the appellant or other members of her family, which she denies and should have the opportunity of refuting. 
4.	The arguments before this court have concentrated on two cases, both decided since the judgment of Judge Trigger.  One is the decision of this court in Smith v Evans [2007] EWCA Civ 1318, [2008] 1 WLR 661.  The other is the more recent decision of the House of Lords in Doherty v Birmingham City Council [2008] UKHL 57, [2008] 3 WLR 636.  We were told by counsel that this is the first of a number of appeals which raise issues about the effect of Doherty and, more particularly, its effect on the decision in Smith v Evans.
History of the action
5.	The council issued its possession proceedings on 14 August 2006.  A defence was lodged on 12 October 2006.  On the same day a deputy district judge gave written directions, which included allocating the case to the multi-track and directing a case management conference.  By the date of the case management conference, on 12 February 2007, little if any progress had been made by the defendant in complying with the previous directions, and the court set fresh directions for the service of witness statements, including any medical evidence on which the defendant intended to rely.  Directions were also given for a hearing, with an estimated length of 3 days, from the 30 May 2007 to 1 June 2007. (Nobody at the hearing of the appeal was able to explain such a long trial estimate).  The defendant’s witness statement was served (4 weeks late) on 21 May 2007.
6.	Counsel on both sides prepared skeleton arguments for the trial.  The council’s skeleton argument contended that the licence agreement had been validly determined by the notice to quit, and that on the authorities the appellant had no public law defence; accordingly the council was entitled to summary judgment.  The appellant’s skeleton argument advanced a public law defence.
7.	The judge concluded that the council was entitled to summary judgment.  His reasoning is not entirely clear.  He said that he would not be assisted in determining whether the council was entitled to possession of the site by hearing evidence about the rights and wrongs of the appellant’s conduct.  That seems to have been on the basis argued for by the council, which was that the council was entitled to summary possession on the undisputed ground that notice to quit had been served, and that it was irrelevant whether the council was able to prove that the appellant had committed breaches of the licence.  But that did not address directly the appellant’s public law defence.  As to that, the judge he said that:
“…It seems to me that even if there is, or may be a breach by the Claimants which should afford the Defendants …a right of contest, because they contend that their rights, such as the right to respect for private and family life have been impugned, the decision that I make does not in any way end that particular avenue of approach if the Defendants are advised to seek it.”
8.	The judge seems to have had in mind the possibility that the appellant might apply to the Administrative Court for judicial review.  This idea may have been sown in his mind by the appellant’s defence which, as well as contending that the council’s decision to seek a possession order was unlawful under s6 of the Human Rights Act 1998 (“HRA”), raised the possibility of an adjournment or stay of the proceedings pending an application to bring proceedings for judicial review of the council’s decision to terminate her licence.  (The reference to the “defendants” in the passage cited was because the judge was dealing simultaneously with similar proceedings against the appellant’s daughter, but they are no longer contested.)
9.	For whatever reason, the judge did not embark on considering whether, on the evidence before him, there was an arguable foundation for finding that the council’s decision to issue a notice to quit and seek possession was unlawful as a matter of public law.
10.	At the conclusion of the judgment, Mr Berkley (who represented the appellant at the trial as well as on the appeal) argued that execution of any possession order should be postponed either through the court’s statutory power to suspend its execution or by way of a stay pending appeal.  The judge stayed the possession order pending appeal, for which he gave leave, and therefore did not reach the stage of considering whether there should be a statutory suspension.  It is common ground that if this appeal fails the matter will have to go back to the county court for consideration whether the possession order should be suspended under s4 of the Caravan Sites Act 1968.
Legislative scheme: phase one
11.	In paragraphs 26-30 of his judgment in Doherty, Lord Hope set out a summary of the legislative scheme.  As appears from that summary, the scheme has gone through three phases.  Phase one gave rise to the decision of the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189 (delivered on 27 May 2004), and the decisions of the House of Lords in Kay v Lambeth London Borough Council [2006] 2 AC 465 (delivered on 8 March 2006) and Doherty (delivered on 30 July 2008).  
12.	Under phase one, where a local authority provided a caravan site under the Caravan Sites and Control of Development Act 1960, the only statutory restriction on its power to terminate a licence to occupy the site by a notice to quit, and obtain a possession order on expiry of the notice, was that s2 of the Caravan Sites Act 1968 required the period of the notice to be a minimum of 4 weeks in cases where the licence was for residential rather than holiday use.  The Mobile Homes Act 1983 provided a significantly higher level of security for mobile home occupiers, but s5(1) of that Act excluded its operation in relation to any land occupied by a local authority as a caravan site providing accommodation for gypsies.  The original thinking may have been that caravan sites provided by local authorities under the Caravan Sites and Control of Development Act 1960 were intended for those who led a nomadic way of life.  However, many (including the appellant) who describe themselves as “travellers” by reason of their cultural background do not wish to live a nomadic existence.  Local authorities regularly enter into licence agreements for the occupation of caravan sites by travellers who intend to use the site as their home.  Under phase one their rights of occupation were precarious, as the case of Connors illustrated.  
13.	Mr Connors and his family lived on a caravan site for a number of years.  His licence was terminated by notice to quit and the council obtained a summary possession order.  The underlying reason for the council’s decision to proceed in this way was that the family was alleged to be “a magnet for trouble” and the site manager asserted that there had been breaches of the licence agreement.  All this was denied by Mr Connors, but it did not form the legal basis on which the council obtained possession of the site and there was no form of adjudication on the allegations.  The European Court of Human Rights held that there had been a violation of Article 8.  It said:
“94.	…It would rather appear that the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle.
95.	In conclusion, the court finds that the eviction of the applicant and his family from the local authority site was not attend by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued.  There has, accordingly, been a violation of art 8 of the Convention.” 
14.	Mr Berkley submitted that there were two interwoven strands in this reasoning; first, concern over the discriminatory treatment of gypsies, although the court considered it unnecessary in that case to decide whether there was a separate violation of article 14; and secondly, concern over the absence of any procedural safeguard for seeing that there was a sufficiently substantial reason for taking the serious step of evicting the licensee from his home.  Mr Berkley submitted that the same twin objectionable features were present in the instant case.
15.	In Kay the House of Lords agreed on a number of points.  These included:
1.	If a licensee wishes to advance public law grounds for not making a possession order, it is for the licensee to raise the point.
2.	There are two potential grounds or gateways (to use the language of later authorities) for making such a challenge;
(a)	that the law which requires the court to make a possession order is itself incompatible with the Convention;
(b)	that the local authority’s exercise of its power to serve a notice to quit and seek a possession order was unlawful on public law grounds.
(There was sharp disagreement as to the breadth of the latter ground or gateway)
3.	Where either ground is raised, the court must first consider whether the licensee has a seriously arguable case.  As to that, Lord Bingham said at para 39:
“This question should be decided summarily, on the basis of an affidavit or of the defendant’s evidence, suitably particularised, or in whatever other summary way the court considers appropriate.  The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question.”
4.	If the court considers that the defence sought to be raised on either or both grounds is not seriously arguable, the court should make a possession order.
5.	Where a seriously arguable challenge is raised on the first ground, the court has either to decide the case itself, doing the best it can to arrive at a result which is compatible with the Convention, or it may refer the case to the High Court.
6.	Where a seriously arguable issue is raised on the second ground, the court should decide it.  In other words, the licensee is not required to pursue such a challenge by way of a separate judicial review application but can raise it as a defence to the claim for possession.
16.	The House was divided as to the width of gateway (b).  The minority would have held that it was open to the licensee to argue that the decision to seek a possession order was an unlawful act within the meaning of s6 of the HRA on the ground that it was incompatible with a Convention right.  It is implicit on that approach that in considering the issue of proportionality for the purposes of article 8, the personal circumstances of the licensee may be relevant.
17.	The position of the majority was summarised in the judgment of Lord Hope at para 110, where he said:
“Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out…Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented.  But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:…(b) If the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.”
18.	In Doherty the Court of Appeal (Tuckey, Carnwath and Neuberger LJJ) subjected the judgments in Kay to detailed analysis.  They concluded, in para 61, that the effect of the majority’s decision was that under gateway (b) a council’s action was open to challenge “on conventional judicial review grounds, but not on the grounds that it was contrary to article 8”.
19.	The House of Lords was invited in Doherty to adopt the position of the minority in Kay, but it declined to do so.  (Kay had been decided by a seven judge panel and it would have unprecedented for its decision to be departed from shortly afterwards by a five judge panel.)  However, Lord Hope said at para 36 that he acknowledged that the way in which the formula expressed by him in para 110 of Kay worked in cases of this kind required further explanation and to some extent modification.
20.	In Doherty the council’s decision to seek possession of the site was not prompted by any concerns about the behaviour of the licensee or any members of his family.  They had occupied the site peaceably for 17 years.  The decision to seek possession of the site was driven by planning considerations.  The council wanted possession in order to carry out essential improvement works and thereafter to manage the site as temporary accommodation for travellers.  The judge had made a summary possession order.  The Court of Appeal held that it was not open to Mr Doherty to advance an article 8 claim under gateway (b) and that the council’s judgment about the appropriate use of its land in the public interest could not be characterised as Wednesbury unreasonable.  Accordingly, there was no point in remitting the case to the county court for further consideration of whether Mr Doherty had a defence under gateway (b).  
21.	The House of Lords disagreed and remitted the matter to the county court.  Lord Hope’s reasons are encapsulated in the following paragraphs of his opinion:
“Gateway (b) 
52		As I said earlier, the speeches in Kay show that the route indicated by this getaway is limited to what is conveniently described as conventional judicial review…
54.	The Court of Appeal said in para 61 that it could see no purpose in remitting the case to the judge.  I disagree, with respect, with this assessment.  In para 43 of his judgment the judge said that it seemed to him that in this case judicial review would be able to check the fairness and legality of the respondent’s decision.  Now that it is clear that arguments of that kind may be presented by way of a defence to the proceedings under gateway (b), I think that he should be given the opportunity to carry out that exercise.  Any factual disputes that may exist between the parties as to the facts on the basis of which the decision was taken will be capable of being resolved by him too.  Lord Brown’s observations in para 210 of his opinion in Kay add a further point that is relevant to this issue.  The site had been occupied as their home by the appellant and his family for about 17 years when the notice to quit was served.  So it could be argued that it was unfair for the respondent to be able to claim possession without being required to make good the reasons that it gave in its own statement of claim for doing so.
55.	I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds.  The considerations that can be brought into account in this case are wider.  An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate.  But the requisite scrutiny would not involve the judge substituting his own opinion for that of the local authority.  In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.  The further point to which Lord Brown referred will have a part to play in that assessment.”
22.	The point made by Lord Brown in para 210 of Kay was that in Connors it might have been argued that, having regard to the great length of time that the family had resided on the site, it was unreasonable and unfair for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such action.
23.	Lord Rodger (at para 89) and Lord Walker (at paras 123-124) agreed with Lord Hope’s approach.
Legislative scheme: phase two
24.	In response to the decision of the Strasbourg Court in Connors, s211 of the Housing Act 2004 (which received Royal assent on 18 November 2004) amended s4 of the Caravan Sites Act 1968.  Prior to the amendment, s4(1) gave a statutory power to the court making an order for possession of a protected site within the meaning of the Act to suspend the execution of the order, but s4(6) excluded such a power in the case of possession proceedings brought by local authorities.  The amendment which was introduced by s211 of the Housing Act 2004 removed that exception in relation to proceedings begun on or after 18 January 2005. 
25.	In relation to the exercise of the court’s statutory power of suspension of eviction orders under s4, the section provides:
“(2)	Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.
(3)	The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than 12 months at a time.
(4)	In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions –
(a)	whether the occupier has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site license, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;
(b)	whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c)	whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).”
26.	The present proceedings fall under phase 2 of the legislative scheme, having been commenced in 2006.
27.	This phase of the scheme was considered by this court in Smith v Evans.  The case arose from possession proceedings brought against a number of travellers who occupied various pitches at a caravan site at Port Talbot.  They all belonged to the same family.  The appeal was brought by one of the defendants, who had been living on the site for 4 years.  At first instance Judge Bidder QC delivered two judgments.  In his first judgment, dated 25 July 2006, he held that it was not seriously arguable (i) that the law on which the claimant relied to claim possession was incompatible with article 8, so as to bring the case within gateway (a); or (ii) that the decision to seek possession was amenable to judicial review, so as to afford a public law defence under gateway (b).  In his second judgment, given 3 days later, he decided that the order should be suspended for 4 months on condition that the defendant continued in the meantime to comply with an undertaking given to the court, that her son (who lived with her) leave the site and that she discharge arrears of water charges at a specified rate.  The decision to seek possession had been prompted by the claimant taking the view that the defendant and members of her family had been guilty of conduct amounting to a nuisance on the site.  The judge investigated the allegations when considering whether to suspend the possession order; he exonerated the defendant of personal misbehaviour but found that there had been misconduct by her son.
28.	The Court of Appeal upheld the judge’s summary possession order.  It rejected the argument that phase 2 of the legislative scheme was incompatible with the defendant’s Convention rights, so as to bring the case within gateway (a).  The appellant in this case has not sought to resurrect that argument, recognising that in any event it would not be open to her to do so before this court.  The interest in Smith v Evans for the purposes of this case is in relation to gateway (b).
29.	The leading judgment was given by Dyson LJ, with whom the other members of the court agreed.  After setting out extracts from Kay, he said about the public law defence under gateway (b) as follows, at para 40:
“This defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it or that it was unlawful for some other public law reason: see the Kay case [2006] 2 AC 465, paras 110, 118-190, 207-212 and the Doherty case [2007] LGR 165, paras 22(iii)(b), 37-60, 61.”
30.	He considered that the amendment to s4 of the Caravan Sites Act 1968, introduced by the Housing Act 2004, was relevant not only to the question whether the legislative scheme was compliant with the Convention, but also to the question whether there had been unlawfulness giving rise to a public law defence in any particular case, so as to bring it within gateway (b).  He said at para 41 that “…for the purposes of deciding whether in a particular case the public law defence is seriously arguable, let alone that it is made out on the facts, it is highly material that section 4 has been amended in this way”.
31.	He went on to explain his reasoning.  Under phase 2 of the legislative scheme a claimant’s decision to seek possession did not involve summary eviction without judicial scrutiny.  “By issuing proceedings the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant’s complaints about the defendant’s behaviour” (para 42).  It followed in his view that it would be only in a truly exceptional case that it would be even seriously arguable that such a defence would succeed.  
32.	Turning to the facts of the case, Dyson LJ held that the judge had been right to conclude that the defence was not seriously arguable.  Although the judge had rejected allegations of personal misconduct on the part of the defendant, his finding of misconduct by her son involved a finding that she was in breach of a condition of her licence.  Further, the claimant was entitled to bring the proceedings on the basis of the evidence that it had from its site manager that the defendant was personally guilty of conduct amounting to a nuisance on the site.  It did not follow from the judge’s rejection of allegations of personal misconduct made against the defendant that the claimant was acting outside the bounds of reasonableness in bringing proceedings on the basis of those allegations.  Dyson LJ also observed that the decision to institute the proceedings had to be viewed in the context of an attempt to address problems caused by a generally disruptive family, in which a culture of disrespect presented a risk of disturbance and violence.
The legislative scheme: phase 3
33.	By the Housing and Regeneration Act 2008, s318 and Schedule 16, Parliament has removed for the future the exclusion by s5(1) of the Mobile Homes Act 1983 of gypsies occupying local authority sites from the provisions about security which protect other occupiers of mobile homes within the meaning of the Act.  By paragraph 4 and other paragraphs of schedule 1 to the 1983 Act, an agreement under which a person is entitled to occupy a mobile home as his only or main residence must contain terms which make any right of termination by the owner conditional on the court considering it reasonable for the agreement to be terminated.  However, the relevant provisions of the 2008 Act have not yet come into force and no commencement date has been set.  So for the time being cases may continue to arise under phase 2 of the legislative scheme.
The facts
34.	For a number of years up to 2005 the appellant and other members of her family camped in various places around Liverpool, including Tara Park, without a licence.  In March 2005 Tara Park was re-opened after of a period of closure for refurbishment, and the appellant and her daughter were granted licences for two pitches.  Living on an authorised site under a licence agreement was a new experience for the appellant.  Before she took up occupation, the council’s park manager, Ms Taylor, and a representative from the voluntary organisation Irish Community Care, discussed with the two families the rules and what they needed to know about living on the site.
35.	From an early stage there were difficulties between the appellant’s family and other residents on the site, resulting in cross-allegations. 
36.	The appellant and her daughter also moved two small caravans onto their pitches, for which they should have asked permission.  When questioned, they said that these were for storage, but it came to Ms Taylor’s attention that there were unknown workmen on the site leaving early in the morning and returning late at night.  On 17 May 2005 she went to the site at 6am to find three Frenchmen on pitch 8 (occupied by the appellant) and one Frenchman on pitch 7 (occupied by the appellant’s daughter).  They said that they were working for the appellant’s husband Peter.
37.	The council served on the appellant a notice to quit but later agreed to withdraw the notice after a meeting with the family, facilitated by Irish Community Care, at which various assurances were given by the Doran families.  However, problems continued.  There were allegations of anti-social behaviour by the appellant’s family towards other residents, and Ms Taylor said that she was repeatedly treated by the family in an insulting and aggressive way, with swearing and accusations of racism. 
38.	In March 2006 the council sent an engineer to the site to investigate electrical problems.  It was discovered that unauthorised electrical work had been done which was highly dangerous.  The electrician took photographs of the irregular wiring on the appellant’s pitch.  In his report he said that “the combination of electrical faults on this one pitch is horrendous”.  This resulted in the council serving on the appellant a final written warning, dated 27 March 2006, that she was at risk of being evicted if she breached her licence once more.
39.	On 1 June 2006 the council’s development manager and manager of homelessness services made a site visit after incidents between the appellant’s family and the residents of a neighbouring plot, involving allegations of physical and verbal abuse by members of the appellant’s family which led to investigations by the police and the arrest of the appellant’s daughter.  During the site visit they were told by a representative of Irish Community Care that on the previous night she had been held back by the appellant’s family, who threatened to cause serious physical injury and damage to property if they were evicted.  This appears finally to have triggered the notices to quit served on the appellant and her daughter on 12 June 2006.
40.	This material was all before the judge at the time of the possession hearing.  He also had the appellant’s defence, her witness statement and a psychiatric report.
41.	The particulars of claim relied on breaches of the licence agreement and service of the notice to quit.  The defence admitted service of the notice to quit but denied every allegation of breach of the licence agreement and alleged that the council’s exercise of its power to seek a possession order was an unlawful act within the meaning of s6 of the HRA.  In her witness statement, the appellant said that she had experienced difficulties with a number of other people on the site, but she denied that this was the fault of herself or her family.  The neighbours had been aggressive and abusive because they wanted her pitch in order to move in more members of their family.  She denied that the electricity supply at her caravan was dangerous.  She also said that other residents had dangerous electrical equipment, as was apparent from the report made by the council’s electrician.  She denied that she had ever allowed people to live at her plot without authority.  The four male workmen who the council said had been living there had in fact only been allowed to sit temporarily in a caravan because it was raining.  She denied making any threats to Irish Community Care about causing damage if she was evicted.  The psychiatric report set out details of the appellant’s personal history, her family circumstances and their health problems.  The psychiatrist expressed the opinion that the appellant was suffering from prolonged depression as a result of multiple stresses and that any additional stress, such as eviction from her current caravan site, was likely to affect her psychiatric condition severely.
42.	Mr Berkley identified the following factors, about which there was evidence before the judge, as particularly relevant to her public law defence:
1.		The appellant had spent £5,000-6,000 on her caravan.
2.	It had taken her 7 years to obtain a pitch.
3.	She had initially been living on the site (and elsewhere) as an unauthorised camper and had become an authorised occupier.
4.	The majority of the pitches at the site were occupied by her extended family.
5.	She had health problems which would be exacerbated by her eviction.
6.	Her father suffered from dementia and was in a local hospital, where she regularly visited him.
7.	Her grandson, whose mother was dead, lived with the appellant and went to a local school where he was doing well.
8.	She had nowhere else to go.
9.	She denied all the allegations of breach of her licence.
10.	The family with whom there was greatest friction left the site in 2006.
Arguments
43.	The appellant argued that the matter should be remitted to the county court for a gateway (b) hearing.  Mr Berkley submitted that Doherty had widened gateway (b) and that the matters relied on by the appellant gave rise to an arguable public law defence.  He also argued that there would be breaches of articles 6, 8 and/or 14 if the matter were not remitted.
44.	The council challenged each of these arguments.  Mr Bartley Jones QC submitted that Doherty made no difference to the law in a case under the legislative scheme, phase 2, as interpreted in Smith v Evans.  He also submitted that in any event the appellant could not raise an arguable public law defence on the facts.  
45.	The Secretary of State for Communities and Local Government, who was given leave to intervene, supported the position of the council.
Gateway (b) and the legislative scheme, phase 1
46.	All parties were agreed that Doherty had to some degree widened gateway (b), as it had been previously understood, in cases arising under the legislative scheme, phase 1.  Lord Hope, at para 36, had acknowledged a need for further explanation of the way in which the formula set out in para 110 of his judgment in Kay worked and for modification to some extent.  The parties disagreed sharply on the effect of the revision of the formula.  Mr Bartley Jones submitted that it gave rise to a new form of judicial review of uncertain dimensions, wider than judicial review as ordinarily understood but at the same time not extending to a full application of the Convention.  Mr Stilitz for the Secretary of State submitted that the effect of the clarification and modification in Doherty was far more limited.  It was a modest development in the elucidation of domestic public law principles.  Mr Berkley took an intermediate position, submitting that the effect was less dramatic than was suggested by Mr Bartley Jones but more significant than was suggested by Mr Stilitz.  Counsel were united in the view that the decision had created a new battleground area (to follow the analogy used by Lord Mance in Doherty at para 125) and predicted that there would inevitably be much argument about the scope of the modification of gateway (b) in future cases in the county court and on appeal.  That is a bleak prospect.  The last thing that will help councils or caravan dwellers is further complexity or uncertainty. 
47.	My initial reaction on considering the arguments was that it was unnecessary to express a view on this issue in order to decide this appeal, and that it would be wise to heed the proverb from St Matthew’s gospel that sufficient unto the day is the evil thereof.  However, since my view on the issue can be simply stated, on reflection I think it better to do so in the hope that it may be of assistance to county courts in future cases.
48.	As I see it, the effect of Doherty is two fold.  
49.	First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council’s decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken.  Such factors are not automatically irrelevant simply because they may include the licensee’s personal circumstances, such as length of time of occupation.  In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.
50.	Secondly, the question whether the council’s decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.
51.	There is no conflict between these two propositions, which should be capable of being applied without additional complexity.  As Baroness Hale observed in Kay at para 190, in a passage cited by Lord Walker in Doherty at para 108:
“It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council [2006] EWHC 301 (Admin).”
52.	Having said that the question whether the council’s decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen.  Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking.  Since its enactment, the process has gathered momentum.  It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment.  (See the judgment of Lord Walker in Doherty at para 109.)
Gateway (b) and the legislative scheme, phase 2
53.	It was argued by the council and the Secretary of State that the matters which may be taken into account in support of a public law challenge under gateway (b) are more restricted under phase 2 of the legislative scheme than under phase 1.  The basis of the argument was that Doherty did not overrule Smith v Evans; that Doherty was concerned only with phase 1 of the legislative scheme; and that in relation to phase 2, gateway (b) remains as it was understood to be after Kay and before the decision of the House of Lords in Doherty.
54.	When Dyson LJ said at para 40 of Smith v Evans that the public law defence “is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it or that it was unlawful for some other public law reason”, he was doing no more than to state the effect of the decision in Kay and to follow it.  It is still the law that gateway (b) “is limited to what is conveniently described as conventional judicial review”; see para 52 of Lord Hope’s judgment in Doherty.  What has been clarified and to some degree modified is the range of factors which may be taken into account in carrying out “conventional judicial review”.  There is no principled justification for adopting a narrower range of potentially relevant factors in cases arising since the amendment to s4 of the Caravan Sites Act 1968 introduced by s211 of the Housing Act 2004.  Nor is there any practical justification for doing so.  On the contrary, it would add confusion and complexity to this already complex branch of the law to have two versions of gateway (b) of different ambit.  
55.	However, when it comes to judging whether a council has acted in a way in which no reasonable person would have done, the existence of the court’s powers of suspension under phase 2 of the legislative scheme is in itself an important factor, as the court held in Smith v Evans.  The amendment to s4 has changed the nature of the legislative scheme and made its operation much more flexible.  It has introduced what amounts in effect to a form of probationary licence, operated under the supervision of the court, which can suspend the execution of a possession order, on such conditions as it thinks appropriate, for a short time or for years (subject to the proviso that it can not order a suspension for more than one year at a time).  A possession order suspended on conditions as to the future conduct of the caravan occupier is the reverse equivalent of an introductory tenancy under Part V of the Housing Act 1996.  Both involve a period of probationary occupation.  It is not difficult to imagine circumstances where a council may reasonably consider that it cannot, or should not, overlook the conduct of a licensee or member of the licensee’s family, if the site is to be run properly, but may be content for a possession order to be suspended on appropriate conditions.  Even if it is not content for a possession order to be suspended, the court has its own responsibility to decide whether there should be a suspension, and any decision by a council to serve a notice to quit and seek possession will therefore be taken against that legislative backdrop.  In that context I agree with Dyson LJ that it is likely to be a rare case indeed where a council decides to issue a notice to quit and seek a possession order without any ground on which a reasonable council might have done so.
Reasonableness of the council’s decision
56.	On the factual history which I have summarised in paragraphs 34-39, I regard the submission that no reasonable council would have served a notice to quit on the appellant in June 2006 as hopelessly unarguable.  It had evidence of repeated breaches of the licence or antisocial behaviour by the appellant or members of her family.  The appellant denies that the allegations had any substance and blames neighbouring residents for the difficulties which arose between them.  Whether she is right or wrong, or whether it was six of one and half a dozen of the other, there is no denying the fact that the council had cause to believe that her family were trouble makers and that there had been repeated breaches of the licence.  Moreover, faced with continuing serious problems between the appellant’s family and other residents, I would reject as unarguable any submission that a reasonable council must have conducted the equivalent of a judicial investigation into where exactly the truth lay between the allegations and counter-allegations before deciding that it was appropriate to terminate the appellant’s licence.  Mr Stilitz referred by way of analogy to the decision of this court in R (McLellan) V Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] LGR 191, which arose from a decision by the council to terminate an introductory tenancy under the Housing Act 1996.  The tenant applied for judicial review of the council’s decision.  In considering the amenability of the council’s decision to judicial review, Waller LJ said at para 97:
“If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed, that at first sight seems to raise issues of fact.  But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that the breaches of the tenancy agreement have in fact taken place.  The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.”
57.	Mr Berkley submitted that even if the council’s decision to serve a notice to quit and seek a possession order was not unreasonable on the material known, or which ought to have been known, to the council at the time of so deciding, the public law defence under gateway (b) enabled the court retrospectively to find that the decision was unlawful, if after full consideration of the evidence available to the court, and after making any findings on disputed issues of fact, it concluded that no reasonable council would have sought to evict the appellant on the facts so found.  (This is the point mentioned at the end of para 2 above.)
58.	In my judgment the argument is unsound in principle and on authority.  As a matter of principle, if the decision to issue a notice to quit was not unlawful at the time of the service of the notice, the notice was valid.  I cannot see a principled basis on which a notice valid at the time of service could be retrospectively invalidated by reason of later developments.
59.	As to authority, the argument runs counter to the reasoning of Dyson LJ in Smith v Evans.  He said at para 46:
“Further…the claimant was entitled to bring proceedings on the basis of the evidence that it had from its site manager…that the defendant was personally guilty of conduct amounting to a nuisance on the site.  The decision to terminate the licence and bring proceedings was informed by that evidence.  It is true that the judge rejected certain of the allegations…But it does not follow that the claimant was acting outside the bounds of reasonableness in bringing proceedings on the basis of those allegations.”
60.	Mr Berkley sought to argue that this approach was implicitly inconsistent with the approach of the House of Lords in Doherty.  He had to argue that the supposed inconsistency was implicit, because there is nothing explicit in Doherty to support Mr Berkley’s argument.  Nor can I see anything in Doherty which provides implicit support for it.  The purpose of the remission ordered in Doherty was so that the court could probe the facts on the basis of which the council had made its decision, relating to the council’s plans for the future use of the site.  Lord Hope stated at para 55 that the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority.  It cannot therefore have been envisaged that the court would make a judgment of the reasonableness of the council’s decision otherwise than on the facts as they reasonably appeared, or should have appeared, to the council at the time of making its decision.
Alleged breaches of the Convention
61.	As already noted, in Smith v Evans the court held that the legislative scheme, phase 2, is not incompatible with articles 8 or 14 (paras 52-65).  The appellant has not sought to advance a contrary argument, which would involve the route of gateway (a), but has confined herself to advancing a common law public illegality defence via gateway (b).  Having concluded that such a defence is unarguable, it is strictly unnecessary for me to say any more about the Convention.
62.	Mr Berkley made the observation that, despite the amendment to s4 of the Caravan Sites Act 1968 by the Housing Act 2004 (which was critical to the reasoning in Smith v Evans), Lord Hope (para 51) and Lord Walker (para 105) in Doherty would have favoured a declaration of incompatibility, at least in relation to s5 of the Mobile Homes Act 1983, but for its amendment by the Housing and Regeneration Act 2008 on a date to be fixed.  In the context of this case that observation does not lead anywhere; but, whatever deficiencies in the law may remain until the amendment to the Mobile Homes Act has been brought into force, I would refer to Lord Walker’s comment at para 117 that:
“Strasbourg is concerned with the bigger picture: has the United Kingdom failed, through all or any of its legislative, executive or judicial arms, to meet the requirements of article 8(2) (it being a given that eviction from one’s home engages article 8)?”
63.	Before any eviction of the appellant takes place, it will be open to her to place before the court all the points referred to in para 42 above; and the courts decision whether the possession order should be suspended (and, if so, for how long and on what terms) must not be incompatible with article 8 (s6(1) of the HRA).  The appellant’s right not to be evicted in contravention of article 8 will therefore be protected in that way.
Conclusion
64.	I would dismiss the appeal.
Post script: practical guidance
65.	Where a local authority seeks possession after service of a notice to quit in a case arising under the legislative scheme, phase 2, there is seldom likely to be any dispute about the service of the notice to quit, and instances where the licensee has a genuinely arguable public law defence are also likely to be very rare.  But cases where the court is asked to exercise its power of suspension under s4 of the Caravan Sites Act 1968 are likely to be much more common.  It would be sensible if the directions given in such cases required the defendant to set out in writing all matters relied upon in support of such a suspension, and for the council, if it intends to oppose the application, to respond by setting out its grounds of opposition.  It would also be sensible to order an exchange of witness statements on that issue.  In the rare case where the licensee advances a public law defence to the claim, as well as invoking the court’s statutory power of suspension, it is unlikely to be a sensible use of the court’s time to conduct a hearing to decide whether the matters relied on by the licensee give rise to an arguable public law defence, when the same matters are going to have to be investigated in any event on the question of suspension.  It will make better sense for the court to hear the evidence and if, at the end of it, there remains a live issue as to the lawfulness of the notice to quit, for the court to give a judgment dealing both with that issue and (if the defence is unsuccessful) with the question of suspension.  That was not the course taken in this case.  If it had been, there would have been a considerable saving of time and costs.
66.	Conscious of the undesirability of judges in the county court having to read through lengthy appellate decisions when dealing with a claim for possession by a local authority of a pitch falling within the Caravan Sites Act 1968, it may help if I seek to summarise the position shortly.  
67.	In a case arising out of phase 2 of the legislative scheme, where notice to quit has been served, but the occupier asserts that the decision to serve it and seek possession was unlawful, it is for the licensee to make good such a defence.  To do so, it must be shown that the council’s decision to serve the notice and seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision.  This is a high test and rarely likely to be satisfied where the decision was made in good faith (for reasons more fully discussed in Smith v Evans and above).
68.	The exercise of the court’s jurisdiction under s4 to suspend a possession order involves a much wider consideration of what would be just.  Here the court is not simply reviewing the decision of the council which began the eviction process, but is forming its own judgment about whether a possession order should be suspended and, if so, for how long and on what conditions. It is required under the terms of the section to take into account the behaviour of the occupier and what attempts he or she has made to obtain alternative accommodation.  Those factors are not exclusive.  The court must itself be mindful of the occupier’s article 8 rights, which will need to be balanced against any other relevant considerations, such as the need to preserve public order, the interests of other residents and the need for safe and proper administration of such sites.  (For example, it cannot reasonably be expected that council staff should have to spend time repeatedly sorting out disputes about disruptive or antisocial behaviour.)  Article 8 rights are important but are not the same as security of tenure.
69.	When phase 3 of the legislative scheme comes into force, the occupier will have a greater degree of contractual security by virtue of the Mobile Homes Act 1983.  Broadly speaking, any right of termination by the owner will be conditional on the court considering it reasonable for the agreement to be terminated.  That protection will be separate from the power of the court to suspend a possession order under s4 of the Caravan Sites Act 1968.
Lord Justice Aikens:
70.	I agree.
Lord Justice Jacob:
71.	I also agree.