Canals and Article 8 – again

10 March 2017 by David Hart KC

Jones v. Canal & River Trust [2017] EWCA Civ 135 – 7 March 2017 – read judgment

In recent years, the Courts have come up with a pragmatic resolution to the clash of property and Article 8 rights which typically occur in housing cases. Where the tenant is trying to use Art.8 to fend off a possession order, because he is in breach of some term of the tenancy, then the Courts, here and in Strasbourg, have resolved the issue in the favour of the local authority, save in exceptional circumstances.

But the current case of a canal boat owner raises a rather different balance of rights and interests – which is why the Court of Appeal evidently found the issue a difficult one to decide.

Matthew Jones lives on the “Mrs T” (sic), which he keeps on the Kennet and Avon Canal. You need a licence to keep a boat on a canal, and his particular licence requires him to use his boat for genuine navigation. The Trust, who now own the canals, said that he had not moved the boat out of a 5km stretch in over 2 years, and that he was therefore in breach of his licence. So they gave him 28 days notice to remove “Mrs T” from the canal.

But things are not so simple for Mr Jones. He is disabled which makes it more difficult for him to go up and down the canal. It is therefore trickier for him to comply with the “continuous cruising requirement” in his licence, brought in controversially against the views of the majority who responded to the Trust’s consultation on the topic. He had been unable to find a residential mooring suitable for him.

Unsurprisingly, given this, he relied on his Art.8 rights in response to the claim, and he said that the Trust, as a public authority, had not even considered his position before deciding to “evict” him.

The Trust sought to strike this bit out of his defence, before trial of the question whether he was in fact in breach of his licence. The county court and high court judges agreed with the Trust that he could not bring this case.

The CA disagreed.

The central question was whether the local authority possession cases (bowling out such a defence) applied to these facts. The cases are well known, and include Pinnock, Powell, Thurrock – see also my post here on Sims. The underlying principle is that local authorities, rather than courts, should be the judge of how best to manage housing stocks, and when those authorities were justified to bring possession proceedings against an errant tenant. This applies to cases involving secure tenancies (where the court has in any event to be satisfied that it is reasonable to make a possession order) as well as those where the tenant has no security of tenure and who may under domestic law be evicted without any consideration of proportionality. Equally, the cases say that when the non-secure cases got to court, it was not to be expected that judges should carry out anything more than a summary assessment of proportionality under Art.8(2).

So the Trust argued that these considerations should apply by analogy to them. Their role was to administer canals, including the regulation of who should and should not be able to moor on them. Art.8 should not help the boat owner.

Mr Jones argued that there was no such analogy. In human rights terms, the housing cases were exceptional, and the ordinary rules concerning proportionality should apply. To make an order that threatened to make someone homeless, and thus impact upon his Art.8 rights, required an “exacting analysis” of the factual case said to support that step: see Lord Sumption in Bank Mellat – my post here. Hence the Art.8 defence should not be struck out before the related question of whether the “eviction” was in accordance with the law had been tried.

The CA agreed with Mr Jones’ arguments.

In the housing cases it was possible for the courts readily to assess the things in relation to the limited housing stock to be shared between applicants for housing in austerity conditions.

That may not be so straightforward in cases involving other types of public authority.

In cases of the present type, the court will usually be able to proceed on the basis that the authority has sound management reasons for wishing to enforce rigorously its licensing regime.

As in the housing cases, the court cannot make the judgment of how best it is for the [Trust] to manage the waterways.

But in some cases personal circumstances would give rise to a seriously arguable case that someone’s Art.8 rights had not been respected.

So the CA reinstated the Art.8 defence. It was for the trial court to decide on the evidence and after hearing about Mr Jones’s circumstances whether it was proportionate to make such order, just as the judge was assessing whether in fact a breach of licence had been made out. And those relevant circumstances plainly included his disability.

Conclusion

An interesting decision by the CA, which was obviously perturbed by the idea that all such cases should go through on the nod, even though the public interest, and practicalities, arising in the cases may not be the same. It is also a corrective to the notion that human rights are a makeweight in this sort of county court litigation. I sense that the CA was unhappy with the idea that “Mrs T”‘s fate would depend on how many boat movements she had made up and down the canal, without the court even thinking about why its owner could not take her further upstream or downstream.

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