Judicial Review of Section 77(1) Direction: SO v Thanet District Council

Introduction

The case of SO, R (On the Application Of) v Thanet District Council ([2023] EWCA Civ 398) addresses the legality of a local authority's attempt to terminate an individual's residence on public land by serving a direction under section 77(1) of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"). At the heart of the dispute is whether the direction was lawfully issued given that the claimant, an 18-year-old Pavee Traveller with mental health issues, was residing on the land with the consent of Thanet District Council. The claimant seeks judicial review, asserting that the council failed to provide adequate notice before withdrawing its consent, thereby rendering the section 77(1) direction invalid.

Summary of the Judgment

The Court of Appeal granted permission for SO's judicial review on two primary grounds: (1) whether temporary consent to occupy the land must be withdrawn before serving a section 77(1) notice, and (2) challenges related to the failure to notify the withdrawal of consent and the characterization of the occupancy as temporary. Lord Justice Edis held that the section 77(1)(c) direction was unlawful because the necessary state of affairs—residence without consent—did not exist at the time the direction was issued. The court emphasized that consent withdrawal must be communicated prior to serving the direction. Consequently, the direction was quashed, reinforcing the necessity for local authorities to adhere to procedural fairness when terminating authorized occupations.

Analysis

Precedents Cited

The judgment references foundational principles of statutory interpretation and public law duties. Notably, it cites Bennion, Bailey and Norbury on Statutory Interpretation, emphasizing that criminal statutes should be clear to prevent unjust penalization. The court also inferred principles from previous cases regarding the withdrawal of consent and the requirements for procedural fairness, although specific case names beyond the statutory references are not detailed in the provided text.

Legal Reasoning

Lord Justice Edis meticulously dissected the provisions of section 77(1) of the 1994 Act. The crux of the reasoning was that the local authority must establish that individuals are residing without consent at the time of issuing the direction. Since SO was residing with the council's consent, the mere withdrawal of consent without prior notice did not meet the statutory requirements. The judgment underscores that the direction must be based on the current state of affairs, not on anticipated future changes resulting from the direction itself. Additionally, the court highlighted the public law duties of local authorities to act fairly and reasonably, necessitating reasonable notice when terminating consent for residence.

Impact

This judgment sets a significant precedent for how local authorities must handle the withdrawal of consent for individuals residing on public land. It clarifies that procedural fairness, including the provision of reasonable notice, is paramount before enforcing statutory directions that can lead to criminal sanctions. Future cases involving section 77(1) directions will likely reference this decision to ensure that authorities adhere strictly to procedural requirements, thereby protecting individuals' rights against abrupt loss of lawful residence.

Complex Concepts Simplified

Section 77(1) Direction: A legal tool that allows local authorities to compel individuals to leave certain lands, particularly when they're residing in vehicles without proper authorization.
Judicial Review: A legal process where courts review the lawfulness of decisions or actions made by public bodies.
Consent Withdrawal: The process by which a landowner or authority retracts permission previously granted for someone to occupy their land.
Occupied vs. Unoccupied Land: "Occupied land" implies that there is an occupier with recognized rights, whereas "unoccupied land" lacks such designation.
Public Law Duties: Obligations imposed on public authorities to act fairly, reasonably, and within the bounds of the law.

Conclusion

The Court of Appeal's decision in SO v Thanet District Council reinforces the necessity for local authorities to uphold procedural fairness when enforcing statutory directions that impact individuals' rights to reside on public land. By quashing the section 77(1) direction due to the lack of prior notice, the court highlighted the importance of clear communication and adherence to legal protocols. This judgment serves as a critical reminder that even in the exercise of statutory powers, the principles of fairness and reasonableness must prevail to protect individuals from arbitrary or unlawful actions by public authorities.