Human Rights Act and Law Land Essays

Human Rights Act 1998 and Land Law

1. Everyone has the right to respect for his private and family life, and his home.

2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of public safety for the protection of the rights and freedoms of others: Article 8 of the European Convention of Human Rights.

Critically assess the impact this provision has had on the law relating to land, including land occupied by houses, in England and Wales since the passage of the Human Rights Act 1998.

Since the enactment of the Human Rights Act (HRA) 1998, human rights has been incorporated into land law and now acts as a bridge between personal and proprietary rights. The rights encompassed by the European Convention on Human Rights (ECHR) include the basic rights important to the enjoyment of human life, and it has been recognised that domestic law must be given effect to in a way which is compatible with the Convention rights 1 and that it has become unlawful any a public authority to act in a way which is incompatible with a Convention right 2. Human Rights Act 1998 Schedule 1 Part I Article 8 (Article 8) as stated above indicates that persons have acquired a new and special form of parallel proprietary rights ranking equally and potentially overriding those of others. Most of the following case law relate to the rights of gypsies and travellers against their local authorities.

In South Buckinghamshire DC v Porter (No. 1) 3, the Court of Appeal had to consider how to exercise its jurisdiction 4 in relation to granting injunctive relief to restrain a breach of planning control. This case concerned gypsies occupying land in breach of planning control, and the local authority had applied and been granted injunctions against them requesting them to move from the relevant land. The court had to consider whether granting injunctive relief under section 187B would flout the right to family and private life under Article 8, and whether any interference with that right was "necessary in a democratic society".

The Court of Appeal held that when considering whether to grant injunctive relief under s. 187B of the Act, a court must act proportionately and consider whether granting the injunction would fulfil the public interest and also how the private interests of the individual affected, and that injunctive relief should not be granted unless the court was prepared to commit a defendant to prison for its breach, having regard to potential hardship caused to the defendant's family by requiring them to move and to the availability of alternative sites, together with consequences to the family's health and education, the extent of the alleged breach of planning control and prior planning decisions, the 'test of proportionality'.

1 section 3(1) Human Rights Act 1998
2 section 6(1) HRA 1998
3 [2001] EWCA Civ 1549
4 Town and Country Planning Act 1990 s. 187B

However, the test can weigh against the appellants, as shown in Buckland v Secretary of State for the Environment, Transport and the Regions 5, in which a gypsy had applied for planning permission to site caravans on land in the green belt (for local development plans), and the inspector had refused permission, arguing that her needs as a gypsy could not amount to "very special circumstances" outweighing the need to preserve the green belt, and that there were other suitable sites in the area to site caravans. The gypsy made an application on the basis that there was a failure to give proper consideration to her rights as a gypsy under Article 8. The court dismissed the application, that the inspector had properly considered all relevant matters, including her rights as a gypsy under Article 8, in reaching his decision to refuse the application.

The availability, even if minimal, of other sites other than the one in which the gypsy lives is a major consideration to whether he or she should be moved, as was demonstrated in Chapman v United Kingdom (27238/95) 6, in which a gypsy, as in the above case challenged the planning officer's refusal to allow her planning permission to set up her caravan on a plot of green belt land, arguing that this refusal and the enforcement of planning restrictions in relation to the land violated her rights under Article 8 and that there was discrimination against the ethnic group of gypsies. The court weighed up the planning restrictions as against the gypsy's right to the enjoyment of the lifestyle common to her ethnic group, and noted that the existence of authorised gypsy sites, though an insufficient number, indicated that she did not have to use that particular site to set up the caravan. The court also stated that Article 8 should not be interpreted that states should give in to the demand for gypsy sites and override other domestic concerns, and used the test of 'proportionality' in weighing up the factors of the gypsy's right to the enjoyment of her lifestyle as against those of society at large.

The consequences of a local authority failing to follow procedures is shown in Connors v United Kingdom (66746/01) 7, in which the local authority served a notice to quit to evict a gypsy and his family from a local authority run gypsy site, following a written warning regarding anti-social behaviour and nuisance caused by them. The gypsy argued that the eviction contravened his rights under Article 8, as the family had lived on the site for fourteen years apart from one short absence. However, the notice to quit did not contain reasons for the decision and a possession order was granted by the county court and the gypsy's application for judicial review was refused. The court upheld the complaint under Article 8, as it noted the local authority's failure to provide reasons for the eviction and the potentially serious consequences of evicting the family necessitated this, and held that the local authority, in failing to provide detailed reasons for the eviction had acted in breach of Article. 8.

5 [2001] EWHC Admin 524
6 [2001] 33 EHRR 18 (ECHR)
7 [2005] 40 EHRR 9 (ECHR)

In relation to residential properties, in R (on the application of McLellan) v Bracknell Forest Borough Council Reigate and Banstead Borough Council v Benfield 8, a tenant argued at appeal that a possession order issued by the local authority under section 127(2) Housing Act (HA) 1996 issued by the local authority under the introductory tenancy scheme contravened his rights under Article 8. The introductory tenancy regime provided a more efficient procedure to local authorities in relation to dealing with tenants with rent arrears or exhibiting anti-social behaviour, by following procedures under section 128 HA 1996. The court dismissing the appeal, stating that the remedy of judicial review provided an adequate potential remedy for tenants wishing to challenge a decision on the grounds of unfairness or contravention of Convention rights, and furthermore that the eviction of a tenant under the introductory scheme could be justified under Art. 8(2) of the Convention to ensure the protection of the rights and freedoms of others.

In Qazi v Harrow London Borough Council 9, a local authority brought possession proceedings against a former joint tenant who had no legal or equitable right to remain in the council house, because his tenancy had been terminated by his wife's unilateral notice to quit the premises. The former joint tenant, living at that property with his new partner, argued that the HRA 1998 imposed the duty upon a court to consider the proportionality of his proposed eviction as against a person's right to respect for his home under Article 8. The local authority appealed against the Court of Appeal's decision 10, and the issues before the House of Lords were whether the Court of Appeal was wrong in concluding that the premises constituted the former joint tenant's 'home' at the time the possession proceedings were served as in Article 8, and whether a possession order would be an interference with the right to respect for his home (Art. 8(1)), requiring justification of that interference (Art. 8(2)).

The House of Lords declared that the test of 'proportionality' was irrelevant in the context of a claim by the local authority, as it had a right in domestic law to obtain a possession order against the former joint tenant and that to decide contrary to this would constitute an amendment of the domestic social housing legislation 11. The House of Lords stated that Article 8 is concerned with the rights of privacy, not over property, and that therefore Article 8 could not be invoked with a view to defeating existing proprietary rights established in domestic law 12. This case demonstrates the House of Lord's reluctance to assert that Article 8 would vest any special proprietary rights in an occupier that he would not have in domestic law.

8 [2001] 33 HLR 45
9 [2003] UKHL 43
10 [2001] EWCA Civ 1834; [2002] U.K.H.R.R. 316
11 ibid at 151 per Lord Scott of Foscote
12 ibid at 149 per Lord Scott of Foscote

In Price v Leeds City Council 13, the local authority issued a possession order against certain gypsies, who argued that this infringed their rights under Article 8 at appeal. The gypsy had entered into and remained in occupation of the land without consent of the local authority. The gypsy argued that Qazi 14 was incompatible with Connors 15 and that the court was bound to follow Connors as precedence needed to be given to the decisions of the European Court of Human Rights (ECHR). The local authority argued that Connors was irrelevant because it was based upon the government's concession that Article 8 was engaged and that it merely showed that was that the only area of domestic law that was incompatible with the Convention, being the law relating to a local authority's right to recover possession of land forming part of a gypsy site, and that accordingly the court was bound to follow Qazi.

The court dismissed the appeal, but rejected the local authority's argument that Connors was based upon the government's concession that Article 8 was engaged, and that this decision did not just apply to gypsies. The court held that the decision in Connors demonstrated the onus upon a public authority to take into account under Article 8(2) of the impact upon the individual when taking certain decisions and to allow those individuals a right of appeal against those decisions. The court held that Connors did not provide an exception to the rule in Qazi as it did consider the possibility of achieving a balance under Article 8(2) as regards the impact upon the individual and the rights of society at large. Although the court held that the gypsy could not raise the Article 8 defence, and referred to Qazi, which it stated it was bound by, it allowed the right of appeal to the House of Lords.

In conclusion, it can be seen from the latest case that Qazi is now established to date as the precedent in relation to the balance between human rights and property rights, and it is clear that the human rights specified in Article 8 do not result in additional rights in property over those already established in domestic law, as stated by Lord Scott in Qazi 16, Article 8 does not vest in the home-occupier any contractual or proprietary right which he would not otherwise have. Qazi has excluded the 'test of proportionality' introduced by Porter 17 and applied in case law following Porter. It is submitted, however, that whether following authorities follow Qazi, as what happened in Price 18, remains to be seen, and the debate about the role of the ECHR in the context of domestic property law will continue.

13 [2005] EWCA Civ 289
14 (ibid)
15 (ibid)
16 (ibid) at 144
17 (ibid)
18 (ibid)

BIBLIOGRAPHY

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