Doherty & Ors v Birmingham City Council

Factual and Procedural Background

The Respondent (“The Local Authority”) owns a long-established caravan site in The City. In 1987 the Appellant, a member of the gypsy and traveller community, was granted a licence to station a caravan on plot 12; in 1998 the licence was extended to plot 14. After roughly 17 years’ occupation, the Respondent served a notice to quit on 4 March 2004. The notice relied on the Respondent’s contractual right and complied with the four-week minimum period in the Caravan Sites Act 1968. The stated reason was the need to carry out extensive improvements and to re-designate the site for short-term traveller accommodation.

On 27 May 2004 the Respondent began possession proceedings in the County Court. Relying on Connors v United Kingdom, the Appellant pleaded that eviction without a merits-based review would breach Article 8 of the European Convention on Human Rights. The case was transferred to the High Court, where Judge McKenna granted summary judgment for possession on 20 December 2004, holding that the licence had ended and that, following Harrow LBC v Qazi, Article 8 could not defeat the Respondent’s proprietary rights. Execution was stayed to allow a potential judicial-review application; none was made. Permission to appeal was, however, granted and execution stayed pending appeal.

The Court of Appeal dismissed the appeal in November 2006, reading this House’s decision in Kay v Lambeth LBC as limiting any Article 8 defence to two “gateways” and finding neither applicable. The Appellant then appealed to the House of Lords. During the appellate process Parliament amended the statutory scheme via the Housing and Regeneration Act 2008, removing the gypsy-site exclusions, and the European Court of Human Rights delivered its judgment in McCann v United Kingdom.

Legal Issues Presented

1. Whether, and in what circumstances, Article 8 can be invoked as a defence to a local-authority claim for possession of a gypsy caravan plot when the occupier’s licence has been validly terminated.
2. Whether the Respondent’s decision to serve the notice to quit was open to challenge on conventional judicial-review grounds or on broader proportionality grounds under Article 8.
3. How section 6(2)(b) of the Human Rights Act 1998 applies where a public authority relies on common-law rights preserved by, but not expressly conferred in, primary legislation.
4. Whether a declaration of incompatibility should be made in relation to statutory provisions that denied gypsies security of tenure on local-authority sites.

Arguments of the Parties

Appellant's Arguments

• The case is factually indistinguishable from Connors; procedural safeguards were absent, rendering eviction disproportionate under Article 8.
• Gateway (a) of Kay applies because the statutory framework is itself discriminatory and incompatible; alternatively gateway (b) applies because the decision to evict was irrational and lacked proportionality.
• A declaration of incompatibility is required if Article 8 cannot be relied on directly.

Respondent's Arguments

• Parliament deliberately excluded local-authority gypsy sites from statutory protection; the court must give effect to that choice.
• Any challenge should be confined to orthodox Wednesbury grounds; no factual allegations of misconduct are made, and the improvement programme is plainly reasonable.
• If incompatibility exists, the only remedy is a declaration; the court cannot read in security of tenure contrary to statute.

Intervener's Arguments (Secretary of State)

• Supported the Appellant that the case falls within gateway (a); Connors principles apply beyond cases of misconduct.
• No wholesale departure from Qazi and Kay is necessary, but the present facts fit the “exceptional” category contemplated in those authorities.

Table of Precedents Cited

Court's Reasoning and Analysis

The House emphasised that Qazi remains the “basic law” but must be read in light of Connors and McCann. Domestic law ordinarily balances property rights and Article 8, yet discrimination against gypsies created an “exceptional case”.

Gateway (a): the statutory exclusions left the Appellant without any in-court proportionality review. Section 3 HRA could not reinterpret clear exclusions, and the legislative gap had since been closed by the 2008 Act. A declaration of incompatibility was therefore unnecessary.

Gateway (b): The notice to quit was a discretionary management decision under section 24 of the Caravan Sites and Control of Development Act 1960. As such, it was open to challenge on public-law grounds. Relying on Winder, the House held that the County Court (and, in this case, the High Court) must entertain a defence that the decision was unreasonable or disproportionate, including consideration of Article 8 factors. The Court of Appeal erred in finding the defence unarguable; any factual disputes could and should be resolved by the trial judge.

Section 6(2)(b) HRA did not immunise the Respondent. Exercising a common-law right preserved by statute is not the same as being compelled by statute; therefore the authority remained bound to act compatibly with Convention rights.

Holding and Implications

APPEAL ALLOWED. The possession order is set aside and the case is remitted to the High Court for a full merits review of the Respondent’s decision to terminate the licence, taking into account both conventional judicial-review principles and the Article 8 proportionality standard.

Implications: Local authorities must, when deciding to serve notices to quit or to pursue possession, conduct a substantive proportionality assessment that respects Article 8. Defendants may raise such challenges directly in possession proceedings. While Qazi and Kay remain good law, their “gateways” now operate in light of McCann; gateway (b) will often require courts to examine the reasonableness of a landlord’s decision in Article 8 terms. No new declaration of incompatibility was required because Parliament has already amended the relevant legislation, but the judgment signals heightened scrutiny of eviction decisions affecting long-standing traveller communities.