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The Community Law Partnership (CLP) is a radical, progressive firm of solicitors specialising in the law relating to Housing and Public Law. We aim to provide quality legal services to the most vulnerable and disadvantaged sections of society who, without our assistance, would be denied access to the legal system and to their rights.
This paper considers the main rules that apply to interveners in proceedings for judicial review and some relevant case law.
Under Civil Procedure Rules (CPR) Part 54.17 (headed ‘Court’s powers to hear any person’) it is stated : –
(1) Any person may apply for permission:
(a) to file evidence or
(b) to make representations at the hearing of the Judicial Review.
(2) An application under paragraph (1) should be made promptly.
In R (Air Transport Association of America Inc.) v Secretary of State for Energy and Climate Change  EWHC 1554, Ouseley J observed at para 8:
It has been the practice of this court for a number of years, well established and beneficial, to allow interventions by groups or bodies, or individuals who have particular knowledge and expertise in the area, whether in terms of the effect which the action at issue may have upon them and their interests, or by virtue of the work which they carry out or through close study of the law, practice and problems in an area, or because of the campaigning experience and knowledge which their activities have brought.
In Re Northern Ireland Human Rights Commission  UKHL 25,  NI 236, Lord Oliver held (at para 32):
The practice of allowing third persons to intervene in proceedings brought by and against other persons which do not directly involve the person seeking to intervene has become more common in recent years but it is still a relatively rare event. The intervention is always subject to the control of the court and whether the third person is allowed by the court to intervene is usually dependent upon the court’s judgment as to whether the interests of justice will be promoted by allowing the intervention. Frequently the answer will depend upon whether the intervention will assist the court itself to perform the role upon which it is engaged. The court has always to balance the benefits which will be derived from the intervention as against the inconvenience, delay and expense which an intervention by a third person can cause to the existing parties.
In R. (British American Tobacco UK Ltd) –v- Secretary of State for Health  EWHC 3515 (Admin),  CMLR 1016, the Administrative Court considered the circumstances in which it may be appropriate to grant permission to intervene. KZPT, the Polish Association of National Tobacco Growers, sought to intervene in this case which was challenging a European Union Directive. One of the main reasons for not allowing KZPT to intervene was, as stated by Turner J at para 19:
It is very unlikely that the formal intervention of KZPT would have any significant impact….There is no discernible conflict between the interests of [British American Tobacco] and those of KZPT. The information contained in the KZPT witness statements does no more than supplement, albeit with a greater level of potentially relevant detail, the evidence already relied upon by [British American Tobacco] in its Statement of Facts and Grounds.
Section 87(1)-(7) of The Criminal Justice and Courts Act (CJCA) 2015 states:
(1) This section applies where : –
(a) a person is granted permission to file evidence or make representations in judicial review proceedings, and
(b) at that time, the person is not a relevant party to the proceedings
(2) That person is referred to in this section as an “intervener”
(3) A relevant party to the proceedings may not be ordered by the High Court or the Court of Appeal to pay the intervener’s costs in connection with the proceedings
(4) Sub-section (3) does not prevent the court making an order if it considers that there are exceptional circumstances that make it appropriate to do so
(5) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, if the court is satisfied that the conditions described in sub-section (6) is met in a stage of the proceedings that the court deals with, the court must order the intervener to pay any costs specified in the application that the court considers have been incurred by the relevant party as a result of the intervener’s involvement in that stage of the proceedings
(6) Those conditions are that –
(a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent;
(b) the intervener’s evidence and representations, taken as a whole, have not been of significant assistance to the court;
(c) a significant part of the intervener’s evidence and representation relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings;
(d) the intervener has behaved unreasonably.
(7) Subsection (5) does not require the court to make an order if it considers that there are exceptional circumstances that make it inappropriate to do so.
Therefore an intervener in judicial review will not be able to recover costs from the other parties unless there are exceptional circumstances and the intervener risks costs against themselves in the circumstances explained above at section 87(6) (once again unless there are exceptional circumstances). Section 87(6)(b)-(d) reminds interveners that their evidence and submissions must relate to the issues before the court. Any temptation to make points that are important to the intervener, but irrelevant to the particular issues before the court, should be resisted.
Section 88(4) of the CJCA 2015 limits the power to cap costs in judicial review proceedings, stating:
The court may make a costs capping order only on an application for such an order made by the applicant for judicial review in accordance with rules of court.
Therefore an intervener cannot seek a costs capping order or what is sometimes called a “protective costs order” in order to try and limit the amount of costs that may be awarded against them.
If an organisation is considering intervening in a judicial review action, we would always advise them to seek legal advice on the particular circumstances of the case in question. An alternative may be to offer to assist a party to the litigation without intervening.
Response of Community Law Partnership, Garden Court Chambers Gypsy Roma Traveller Team and Ruston Planning
Generally speaking we welcome this consultation. We are concentrating on the issues that we specialise in, namely accommodation issues. However, we welcome many of the other proposals as well.
Going through the main actions in the order they are presented in the paper:-
Regional Community Cohesion Coordinators will be funded to provide cohesion support around proposed and approved Gypsy and Traveller sites
We welcome the idea of coordinators as quite often there can be considerable issues around the perception of the impact of a new site. Any opportunity to address such perceptions should be applauded. The training of elected members is something we would fully support in particular. However, we would note that, since the Housing (Wales) Act (HWA) 2014 we have come across cases where Welsh local authorities are ignoring the needs of Gypsies and Travellers who instruct us. We also note the July 2017 Welsh Caravan Count showed 4% of caravans on unauthorised developments and 9% of caravans on unauthorised encampments (albeit we appreciate that the number of unauthorised sites has decreased). We believe the time has come for action against those local authorities who are ignoring the provisions of HWA 2014 by the Welsh Government using their powers under HWA 2014 section 104. The lessons of the Caravan Sites Act 1968 (when the duty under that Act was in force and before its repeal by the Criminal Justice and Public Order Act 1994) were that insufficient sites were brought into being because of lack of central Government action even though central Government had powers to take action.
Ensure sufficient pitches are provided to meet the identified needs across Wales
We fully support this but see what we say above and below.
The Mobile Homes (Wales) Act 2013 Schedule 2 Part 1 Chapter 2 para. 14 and Chapter 4 para. 44 concern re-siting of the mobile home and are in very similar terms to the English provisions contained in the Mobile Homes Act 1983 with one important major exception. The major exception is that, if a broadly comparable pitch on another site is offered and the Residential Property Tribunal holds that it is reasonable for the mobile home to be stationed there, other than in situations involving repairs or works, then the owner does not have to allow the occupier to return to his/her original pitch. Effectively this allows site owners to evict Gypsies and Travellers from their plots and we wonder whether this result can really have been intended. As we say above in England it is different in that the resident must be given the opportunity of returning to his/her plot once the refurbishment or repair works are completed. We would urge the Welsh Government to reconsider this provision.
Provide sufficient Sites Grant Funding to ensure local authorities are able to create the required number of authorised Gypsy and Traveller pitches in the area
We fully support this.
Government Designing and Managing Gypsy and Traveller Sites Guidance
We fully support this section.
Review awareness and accessibility of Residential Property Tribunals for Residents of Local Authority Gypsy and Traveller sites
Legal Aid is not available for Tribunal cases and, given the problems of literacy and educational attainment amongst the Gypsy and Traveller community, representation will usually be required before such Tribunals if any applications or defences to any action are to be successful. Exceptional Cases Funding is extremely hard to obtain. There are a lot of important issues being dealt with by these Tribunals such as:- written statements; repairs; pitch fees; re-siting of mobile homes etc. The Welsh Government needs to address the lack of funding which is a very serious issue in terms of Tribunal representation.
Monitor the effectiveness of the planning system in enabling appropriate site provision.
We note that a new Planning Circular is to be produced and we look forward to seeing that and commenting upon it.
Eligible Gypsies and Travellers living on unauthorised sites will be able to access energy efficiency advice and support through the Welsh Government
We support this.
Ensure Local Authorities are supported to develop a network of transit sites across Wales to facilitate the nomadic Gypsy and Traveller way of life
We fully support this but note that there is desperate need for transit site provision. We would also suggest that the Welsh Government look at the Negotiated Stopping model piloted in Leeds as an example of facilitating the nomadic way of life of Gypsies and Travellers.
Support consistent humane and effective resolution of unauthorised camping which respects the rights of Gypsies and Travellers in the wider community
We support this section and the promotion of protocols and the continuation of the Welsh Government Guidance on ‘Managing Unauthorised Camping’.
Implement the new Caravan Count System to ensure unauthorised encampments and developments are recorded and understood
We support this but it is important that non-reporting local authorities should be penalised for failure to report.
In light of this we are extremely interested in hearing from others who are affected by the definition and examples include the following:-
Those who lose planning appeals because of the new definition;
Those who are not included in Gypsy and Traveller Accommodation Needs Assessment because of the new definition;
Those who are not allowed onto waiting lists or who are excluded from waiting lists because of the new definition.
We would encourage anyone who is affected by the definition or who wants to discuss this matter in general to contact us on our advice line.
As regular readers will know, in August 2015 the Secretary of State for Communities and Local Government (SSCLG) changed the definition of Gypsy/Traveller for planning purposes. From that date those Gypsies and Travellers who have had to stop travelling permanently due to age or ill health have been excluded from the definition. We have been arguing since then that the definition is discriminatory, prejudicial, unreasonable and disproportionate especially as regards those Gypsies and Travellers who are old, disabled, in serious ill health or caring for others.
Some months after the appeals had been dismissed, in January 2015, Mr Justice Gilbart gave judgment in the case of Moore and Coates v SSCLG – see the report on the Community Law Partnership website at http://www.communitylawpartnership.co.uk/gypsy-and-traveller-cases/traveller-planning/moore-a-coates-v-ssclg. You may remember that Ms Moore and Ms Coates challenged Mr Pickles’ decision to recover their planning appeals by way of judicial review before he had the opportunity to determine their appeals and argued that his recovery policy was unlawful. During the course of those proceedings the SSCLG filed evidence from a senior civil servant, Mr Richard Watson, which made it quite clear that Mr Pickles was applying the criteria for the recovery of planning appeals brought by Gypsies and Travellers in respect of Green Belt sites in a way that had a discriminatory impact on ethnic Gypsies and Travellers and the Judge quashed the decisions on that basis.
When those representing Ms Mulvenna and Mr Smith read the Moore and Coates judgment and the Judge’s references to the evidence given by Mr Watson they understood for the first time what had been happening behind the scenes at Department for Communities and Local Government (DCLG) and how the recovery policy had been applied in a discriminatory way by Mr Pickles and that their clients had also been the victims of discrimination. However, their position was clearly different in that their appeal decisions had already been determined.
In the event it was considered that there were grounds to:
challenge the original recovery decisions in both their cases – out of time – on the basis that they could not have known of the SSCLG’s discriminatory recovery practice before the disclosure of Mr Watson’s evidence in the Moore and Coates judgment (as an aside it should be noted that Mr Watson’s evidence had been privileged up to the point it was used in the trial of the Moore and Coates case);
and on the basis that his subsequent determination of their appeals was null and void – applying what is known as the ‘domino effect’.
At first instance the case came before Mr Justice Cranston and he decided that he would not exercise his discretion to extend time to allow Ms Mulvenna and Mr Smith to challenge the recovery decisions and subsequent appeal decisions out of time. He also decided that in any event the unlawful recovery decisions did not make the subsequent appeal decisions a nullity.
The Court of Appeal reviewed Mr Justice Cranston’s decision and concluded that it was lawful. In what many would consider a harsh decision, given the fact that the appellants could not possibly have known what was going on behind the scenes at the DCLG, the three Judges decided that it was far too late to allow the appellants to challenge the recovery decisions. In addition the Court of Appeal held that even if the appellants’ challenges to the recovery decisions were successful that would not undermine the appeal decisions made by Mr Pickles, because, in their view: challenges to appeal decisions could only be made by way of claims brought under section 288 of the Town and Country Planning Act 1990 within 6 weeks of the decision made; and the jurisdiction to determine appeals always vested in the SSCLG and therefore an unlawful recovery decision made no difference.
It is important to note that the judgment in Moore & Coates remains intact.
Marc Willers QC and Tessa Buchanan of Garden Court Chambers represented the appellants and they were instructed by Keith Coughtrie of Minton Morrill solicitors.
The case was heard with a case for other Travellers (Connors & ors v SSCLG) and that case was also dismissed by the Court of Appeal. It is understood that some of the Travellers are seeking leave to appeal to the Supreme Court.
This is our answer to question 14(b) in the Consultation.
There is currently one small part of the Code that deals with moveable structures such as caravans and houseboats. For ease of reference, that reads as follows:
Caravans, houseboats and other moveable accommodation
16.43 Under section 175(2) applicants are homeless if the accommodation available for their occupation is a caravan, houseboat, or other movable structure and they do Draft Homeless Code of Guidance 119 not have a place where they are entitled, or permitted, to put it and live in it. If a duty to secure accommodation arises in such cases, the housing authority is not required to make equivalent accommodation available (or provide a site or berth for the applicant’s own accommodation). However, the housing authority must consider whether such options are reasonably available, particularly where this would provide the most suitable solution to the applicant’s accommodation needs.
16.44 The circumstances described in paragraph 16.43 will be particularly relevant in the case of Gypsies and Travellers. Where a duty to secure accommodation arises but an appropriate site is not immediately available, the housing authority may need to provide an alternative temporary solution until a suitable site, or some other suitable option, becomes available. Some Gypsies and Travellers may have a cultural aversion to the prospect of ‘bricks and mortar’ accommodation. In such cases, the housing authority should seek to provide an alternative solution. However, where the housing authority is satisfied that there is no prospect of a suitable site for the time being, there may be no alternative solution. Housing authorities must give consideration to the needs and lifestyle of applicants who are Gypsies and Travellers when considering their application and how best to discharge a duty to secure suitable accommodation, in line with their obligations to act consistently with the Human Rights Act 1998, and in particular the right to respect for private life, family and the home.
According to the January 2017 English Traveller Caravan Count:
The number of caravans on unauthorised encampments on land owned by Travellers was 2,141.
The number of caravans on unauthorised encampments on land not owned by Travellers was 780.
There is also evidence of an increase in unauthorised encampments (see the two recent debates in Parliament). This has been exacerbated by the change in the definition of Gypsy/Traveller for planning purposes in the Government’s Planning policy for traveller sites (PPTS 2015).
PPTS 2015 at para 10 states:
Local planning authorities should, in producing their Local Plan: a) identify and update annually, a supply of specific deliverable sites sufficient to provide 5 years’ worth of sites against their locally set targets.
Recent research by national Gypsy/Traveller organisations has shown that most councils are failing to produce a five year supply (see Travellers Times Winter 2017 edition).
Though a few local authorities are taking steps to try and address the problem of the lack of sites (see, for example, ‘negotiated stopping’ in Leeds – http://leedsgate.co.uk/negotiated-stopping/whats-not-evaluation-negotiated-stopping-released ), the majority of local authorities are avoiding the need to provide sufficient pitches, emergency stopping places or temporary solutions. In these circumstances it is incumbent on the Government to provide robust guidance to ensure that this situation does not continue.
We would suggest the following rewording of what is currently para 16.44:
The circumstances described in paragraph 16.43 will be particularly relevant in the case of Gypsies and Travellers. Where a duty to secure accommodation arises but an appropriate site with planning permission is not immediately available, the housing authority should provide an alternative temporary solution (such as an unused or underused piece of their own land) until a suitable site, or some other suitable option, becomes available. Some Gypsies and Travellers may have a cultural aversion to the prospect of ‘bricks and mortar’ accommodation. In such cases, there is an increased emphasis on the housing authority providing an alternative solution. Housing authorities must give consideration to the needs and lifestyle of applicants who are Gypsies and Travellers when considering their application and how best to discharge a duty to secure suitable accommodation, in line with their obligations to act consistently with the Human Rights Act 1998, and in particular the right to respect for private life, family and the home. They should also have regard to their Public Sector Equality Duty under the Equality Act 2010 section 149.
This Response has been endorsed by Marc Willers QC of Garden Court Chambers who specialises in cases for Gypsies and Travellers and Heine Planning who represent Gypsies and Travellers in appeals before Planning Inspectors.
Amongst the very important recommendations made by the Commission are the following:-
The primary recommendation is for a new Right to Justice Act which will codify and supplement our existing rights and establish a new right for individuals to receive reasonable legal assistance, without costs they cannot afford. It will also establish a new, independent body to promote, develop and enforce that right.
The Government should introduce a significantly simpler and more generous scheme for legal aid.
The Commission recommends that the Government restores legal aid for early Legal Help to pre Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 levels for all social welfare law (including debt, employment, welfare benefits, immigration and housing), for family law and for prisoners in appropriate cases.
All matters concerning legal support for children should be brought back into the scope of civil legal aid.
Certain family law cases should be brought back into the scope of civil legal aid with respect to representation in court.
There should be a full investigation into which areas of immigration laws should be within the scope of legal aid funded representation.
Where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased.
Judicial review cases have formally remained within the scope of legal aid but new regulations have dissuaded providers from issuing proceedings. These regulations, which limit the remuneration of legal aid providers for judicial review cases, should be repealed.
The Exceptional Case Funding Scheme has manifestly failed and needs urgent review and reform.
The Legal Aid Agency should be replaced by an independent body that operates the legal aid system at arm’s length from government.
Immediate action should be taken to fix the Legal Aid Agency’s client and case management computer system. This should be done by working with a group of users to identify, develop and implement solutions so that it is fit for purpose.
*The mandatory requirement for mortgage debt, special educational needs and discrimination law to be accessed via the civil legal aid gateway telephone service should be removed, and face-to-face help should be available for those who need it.
The Shadow Justice Secretary, Richard Burgon MP, has stated that the recommendations of the Bach Commission will form an important part of the next Labour Manifesto.
Section 1 (1) of the Mobile Homes Act 1983 (MHA) states that the Act will apply to any agreement under which a person is entitled:- (a) to station a mobile home on land forming part of a protected site; and (b) to occupy the mobile home as his only or main residence. The dispute centred on whether the land formed part of a protected site, and whether the agreement allowed Mr and Mrs Hancock to occupy the mobile home as their only or main residence. The Court of Appeal in Murphy – v – Wyatt  1 WLR 2129 established that an occupier of the mobile home would only have the benefit of the MHA 1983 if the requirements of Section 1 (1) were met at the inception of the agreement.
Subsequently a Certificate of Lawful Use of Development was obtained in January 2015 enabling the applicant to run the site as a residential park. Mr Romans had required A & M to obtain this Certificate before his company purchased the park.
The opening part of MHA 1983 Section 1 (2) provides the overarching definition of a protected site. There is a qualification to the overarching definition where it is stated that it does not apply to land to which the relevant planning permission or site licence is expressed to be for holiday use only or otherwise so expressed or subject to condition preventing occupation of caravans during specific parts of the year.
The Tribunal’s preliminary position was that a site with planning permission and/or a licence for a mixed residential and holiday use (as this site was) is not caught by that qualification and is, therefore, a protected site.
The Tribunal decided that the correct approach is to start with the question of exclusion of holiday only sites and the next step is then to consider whether the terms of the planning permission and site licence distinguish between different parts of the Park and, if so, whether “it is both natural and necessary to treat the Park as divided into two or more parts for the purposes of identifying a protected site” (para 63).
The Tribunal found that:- (i) the planning permission and the site licence for the Park were not restricted to holiday use or otherwise so expressed or subject to a condition to the like effect; (ii) the relevant planning permission and site licence did not designate the Park into separate holiday and residential sectors; (iii) it was not natural and necessary to divide the Park into two or more parks to identify a protected site.
The Tribunal therefore concluded that the Park in its entirety was a protected site and that the plot occupied by Mr and Mrs Hancock was land forming part of a protected site.
The Tribunal also concluded that Mr and Mrs Hancock occupied the mobile home as their only or main residence. Accordingly the Tribunal determined that the provisions of the MHA 1983 applied to the agreement.
This is an extremely important decision albeit that Mr and Mrs Hancock were not Gypsies or Travellers. It is an extremely important judgment for Gypsies and Travellers who live on mixed holiday/residential use sites.
Solicitor for Mr and Mrs Hancock was Peter Johnson of Laceys Solicitors in Poole.