Canals and Article 8 – again

10 March 2017 by

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, PowellThurrock – 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

 Related posts:

1 comment;


  1. if this casr had been taken by trustees of the nene the boat would have been gone without court action

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: