Anonymised Summary of Opinion of Judge Drummond

Factual and Procedural Background

The pursuer (Company A) sought a declarator that the defenders had no right or title to occupy land owned by Company A at [Number] Main Street in The City, and an order for removal and, if necessary, warrant for ejection. The First Defender and others (Second to Seventh Defenders) disputed Company A's entitlement and asserted rights to occupy. The site comprises chalets, vehicles and equipment and is shown on the plan annexed to the summons (area outlined in red and a further area shaded yellow). Occupiers include the First Defender, family members, and a young child (hereafter "the Child"), represented in proceedings by the Seventh Defender. Company A has identified the land for redevelopment under a local master plan.

Company A relies on a 1995 lease granted to the First Defender. The parties litigated the extent of the leased area (red only v red plus yellow), applicability of statutory regimes (Mobile Homes Act 1983, Housing (Scotland) Act 2001), human-rights and UNCRC compatibility issues, public-sector equality duty, and the effect of the First Defender's sequestrations. The court conducted a proof, heard witnesses and submissions from the parties, the Lord Advocate and the Commissioner for Children and Young People in Scotland, and delivered findings.

Legal Issues Presented

1. Whether Company A is entitled to decree of declarator and removal as sought.
2. Whether the defenders have right or title to occupy the site and the present basis for their occupation.
3. Whether the First Defender has right to occupy the site pursuant to a tenancy created in terms of sections 11–12 of the Housing (Scotland) Act 2001.
4. If the First Defender has no such right, whether sections 11–12 of the 2001 Act ought to be read down in terms of section 3 of the Human Rights Act 1998.
5. If sections 11–12 cannot be read down, whether the court should grant a declaration of incompatibility in respect of those sections of the 2001 Act.
6. Whether sections 11–12 of the 2001 Act ought to be read down by the court in terms of section 24 of the United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024.
7. If sections 11–12 of the 2001 Act cannot be read down, whether the court should grant a strike down declarator in respect of those sections on the basis they cannot be read in a way compatible with the UNCRC requirements.
8. If the First Defender has no right under the 2001 Act, whether the provisions of the Mobile Homes Act 1983 in connection with protected sites operate to prevent termination of occupation by some or all of the defenders.
9. Whether Company A's pleas-in-law should be upheld (various discrete grounds).
10. The parties omitted issues 9 and 10.
11. Whether decree of declarator or removal ought not to be pronounced in respect of all or some defenders as contrary to the Equality Act 2010 or Articles 8 and 14 ECHR.
12. Whether Company A is exercising a relevant function under section 6 of the 2024 Act and, if so, whether removal would be contrary to specified UNCRC articles in respect of the Seventh Defender.
13. The effect of the First Defender's sequestrations on the defenders' right to occupy the site.

Arguments of the Parties

Pursuer's Arguments

• The 1995 lease covered only the area outlined in red; the yellow area was never leased and had been occupied by encroachment.
• The Mobile Homes Act 1983 does not apply because the chalets are not "mobile homes" for statutory purposes (not capable of being moved as required by the definitions in the 1960/1968 Acts).
• The Housing (Scotland) Act 2001 sections 11–12 do not apply to a lease of bare ground used to station caravans/chalets.
• The First Defender's sequestrations vested his estate in trustees and, absent adoption, terminated his leasehold interest.
• Company A complied with equality and child-rights processes and proposed alternative accommodation; removal is justified by property rights and redevelopment needs.

First Defender's Arguments

• The 1995 lease (and prior arrangements/planning permissions) entitled occupation of the larger area (red plus yellow); occupation dates back decades.
• The chalets are caravans/mobile homes within the statutory definitions; accordingly the Mobile Homes Act 1983 applies and protects occupiers from eviction except by sheriff on specified grounds.
• Alternatively, the lease should be treated as a Scottish secure tenancy under sections 11–12 of the 2001 Act, or those provisions should be read down or declared incompatible with ECHR/UNCRC to afford protection.
• The First Defender contended sequestrations did not terminate the lease in practice and Company A accepted rent/housing benefit after sequestrations, indicating continuance.

Seventh Defender's Arguments (including on Child matters)

• The Seventh Defender supported the First Defender's positions on statutory protections and additionally argued that eviction would breach UNCRC requirements in relation to the Child (best interests principle) and relevant UNCRC articles.
• The Seventh Defender argued that sections 11–12 should be read down under the UNCRC incorporation or, if not possible, a declarator striking down/incompatibility should follow.

Other Participants

• Lord Advocate (legal submissions): opposed declarations of incompatibility and read-downs; made submissions on statutory interpretation and compatibility issues.
• Commissioner for Children and Young People (written submissions): assisted on UNCRC interpretation and the Child's rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by fact-finding on the extent of the 1995 lease, statutory applicability and human-rights/UNCRC and equality arguments, applying statutory interpretation and established authorities.

On factual extent of lease the court rejected Company A's narrow interpretation of the monochrome plan attached to the copy lease. The court accepted consistent oral evidence from the First, Second and Seventh Defenders and historical pre-1995 documentation (letters, planning application and planning reports) indicating prior planning permission and month-to-month lease covering the larger area (red plus yellow). The court found it more probable the 1995 lease covered the larger area.

On statutory regime, the court examined the Mobile Homes Act 1983 definition of "mobile home" (linked to "caravan" in the 1960/1968 Acts). The pursuer argued the chalets were not "capable of being moved" and thus outside the 1983 Act. The court applied authorities (including Howard, Wyre Forest, Carter and section 13(1) of the 1968 Act) and concluded the key question was whether the 1995 lease entitled the First Defender to station a mobile home. The court found the chalets had been moved onto the site in two parts and assembled and thus were capable of being moved at the commencement of the lease. Consequently the court held the 1995 lease was an agreement to which the Mobile Homes Act 1983 applied and that the site is a protected site; the implied protections therefore attached and the agreement continued month-to-month unless lawfully terminated under the Act.

On the effect of the First Defender's sequestrations, the court accepted that the First Defender's estate vested in trustees but held sequestration did not automatically terminate the lease. The court found no evidence that trustees had adopted or abandoned the lease nor that Company A had exercised its contractual option to terminate on sequestration. Company A accepted housing benefit or other payments after the first sequestration and did not prove it had validly exercised termination options. Accordingly the lease continued on a month-to-month basis and was protected by the 1983 Act.

As to the Housing (Scotland) Act 2001, the court analysed statutory definitions (sections 11, 41, 111) and context. It concluded the 1995 lease was a lease of ground for stationing caravans/chalets and not a lease of a "house" rented as a separate dwelling such that sections 11–12 did not apply; conversion to a Scottish secure tenancy did not occur.

On read-down, incompatibility and discrimination claims, the court applied HRA s3 and Ghaidan principles and found no need to read down or declare incompatibility: the difference in treatment (leases of land v leases of buildings) pursued legitimate aims and fell within the legislature's margin of appreciation. The court further found no prima facie discrimination based on status as travelling showpeople; any difference arose from the distinct factual position.

On Article 8/14 proportionality the court applied Pinnock (and subsequent authorities) and concluded that, assuming no statutory protection, the twin aims of vindicating property rights and enabling regeneration weigh heavily in favour of possession being proportionate. The court reviewed the defenders' evidence (community, child impact, alternative options) but concluded those factors did not outweigh the pursuer's legitimate aims. However, because the court found the 1983 Act protected the First Defender's agreement and Company A had not terminated in accordance with that Act, removal was not "in accordance with law" and could not be granted in these proceedings.

On UNCRC incorporation (2024 Act) and whether Company A and the court acted in connection with a "relevant function", the court followed the approach in Lord Advocate's Reference and found the pursuer's housing/regeneration functions and the court's exercise of jurisdiction were connected to relevant functions; the Child's best interests had been assessed and considered. The court concluded that, taking the Child's best interests as a primary consideration, removal would not be incompatible with the UNCRC requirements on the evidence because Company A had conducted impact assessments, offered alternative sites and taken steps to support relocation in the child's best interests.

On the public-sector equality duty the court applied Bracking/Hotak and Patrick and concluded Company A had reasonably discharged the duty in the circumstances, taking into account the limited engagement by the defenders and the timing of assessments.

Holding and Implications

HOLDING: The court refused the orders sought by Company A and granted decree of absolvitor in respect of the pursuer's claims for declarator and removal, on the grounds that the 1995 lease entitled occupation of the larger area and that the Mobile Homes Act 1983 applied to the First Defender's agreement which had not been terminated in accordance with that Act.

Implications:

• Direct effect: The defenders continue to have a right to occupy the site under the 1995 lease as interpreted by the court; Company A's application for removal was repelled.
• The court did not determine all contested compatibility questions (sections 11–12 HSA 2001 read-down/strike-down) as those issues were unnecessary to resolve the claim after applying the 1983 Act protections, though the opinion addresses them for completeness and rejects read-down and incompatibility claims on the facts presented.
• No new broad constitutional precedent displacing the Mobile Homes Act protections was established; the decision applies statutory interpretation and established human-rights principles to the facts before the court.