Mahoney & Anor, R (on the application of) v Secretary of State for Communities and Local Government [2015] EWHC 589 (Admin)

Case No CO/10732/2013

Case No CO/12150/2013

[2015] EWHC 589 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Monday 9th March 2015

Before

Mr Justice Lindblom

Between

R. (on the application of Patrick Mahoney and Frances Jones)Claimant

Secretary of State for Communities and Local GovernmentDefendant

And between:Claimant

R. (on the application of Rachel Cleary)Claimant

Secretary of State for Communities and Local Government

(Transcript of the Handed Down Judgment of

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Defendant

Mr Alex Offer (instructed by Community Law Partnership) for Claimants

Mr Benjamin Lask (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing date: 20 November 2014

Judgment

Introduction

[1]In these two claims for judicial review the court must decide whether section 33(2) of the Land Compensation Act 1973, which precludes the making of a home loss payment to a caravan dweller unless no suitable alternative site is available to him on reasonable terms, is incompatible with

article 14 of the European Convention on Human Rights

, read together with article 8 and article 1 of the First Protocol.

[2]The claimants, Patrick Mahoney and Frances Jones (in claim no. CO/10732/2013) and Rachel Cleary (in claim no. CO/12150/2013), are Irish travellers, and thus belong to a recognized ethnic group within the scope of the prohibition of discrimination in article 14. Each of them lives in a caravan on a site in Eleanor Street, London E.3, where there are 19 pitches. The site is owned, and provided for occupation by travellers, by the London Borough of Tower Hamlets Council. It is required by Crossrail Limited for the construction of a tunnel intervention and ventilation shaft in an underground section of the new railway it is building. The project is known as Crossrail. Crossrail Limited is a fully owned subsidiary of Transport for London.

[3]Under section 6(1) of the Crossrail Act 2008 Crossrail Limited have the power to acquire land compulsorily. It has compulsorily acquired the land needed for the pitches that will replace those lost on the Eleanor Street site. It also intends to acquire the Eleanor Street site from Tower Hamlets London Borough Council by agreement, but if this turns out to be impossible it will use its compulsory purchase powers to acquire the land. The claimants are willing to co-operate in the removal of their caravans from the Eleanor Street site to suitable pitches on other land nearby. They do not dispute that a suitable alternative site is being made available to them on reasonable terms, or that the effect of section 33(2) of the 1973 Act is therefore to prevent home loss payments being made to them. They contend, however, that section 33(2) discriminates unlawfully between caravan dwellers and those who live in dwelling-houses, and is thus incompatible with

article 14 of the Convention

, read in conjunction with article 8 or article 1 of the First Protocol, or both. The only remedy they now seek is a declaration of incompatibility under section 4 of the Human Rights Act 1998. They had initially sought permission to pursue a ground alleging indirect discrimination, as defined by section 19 of the Equality Act 2010.

[4]The defendant is the Secretary of State for Communities and Local Government. He resists the claim, on three main grounds: first, that the circumstances of the claimants’ case do not fall within the ambit of either article 8 or article 1 of the First Protocol; secondly, in any event, that the claimants are not in an analogous position to those with whom they choose to compare themselves, namely those who live in dwelling-houses; and thirdly, again in any event, that any difference in treatment arising from section 33(2) is objectively and reasonably justified. Therefore, says the Secretary of State, the court should hold that section 33(2) is not incompatible with article 14, and both claims should be dismissed.

[5]Permission to apply for judicial review was initially refused on the papers by Jay J. on 4 October 2013, but was granted on the claimants’ renewed applications by Mitting J. at a hearing on 27 February 2014. Mitting J. permitted the claims to proceed only on the ground alleging incompatibility with article 14.

Home loss payments

[6]Part III of the 1973 Act contains various provisions for the benefit of a person displaced from his dwelling as a result of the compulsory acquisition of an interest in that dwelling or the acquisition of that interest by agreement by an authority with compulsory purchase powers. Sections 29 to 33 provide for “Home loss payments”.

[7]The parties agree that the purpose of a home loss payment is to recognize a person’s distress at being compelled to move out of his home when land is compulsorily acquired. In R. v Corby District Council, ex p. McLean [1975] 1 W.L.R. 735 Lord Widgery C.J. said (at p.736H) that “[no] doubt the purpose of [the provision in section 29(1)] is to make some compensation to a man for the loss of any interest he might have in the particular dwelling he formerly occupied”. That understanding of the purpose of a home loss payment is reflected now in the Department for Communities and Local Government’s guidance “Compulsory Purchase and Compensation: Compensation to Residential Owners and Occupiers”, which says (in paragraph 2.64) that “[the] home-loss payment is an additional sum to reflect and recognise the distress and discomfort of being compelled to move out of your home”.

[8]The legislative history of home loss payments is described on behalf of the Secretary of State by Ms Susan Lovelock, the Deputy Director of the Planning – Development Management Division in the Department for Communities and Local Government, in her witness statement of 14 May 2014 (in paragraphs 27 to 42). Ms Lovelock says that home loss payments were introduced by the 1973 Act “because the Government considered that individuals should be entitled to payment for the personal grief or frustration of being forcibly displaced from their homes”. She refers to the report of the Urban Motorways Committee to the Secretary of State for the Environment dated 11 July 1972, which recommended (in paragraph 12.19) that the legislation should include an additional payment for the occupiers of dwellings “in recognition of the real personal disturbance that is inflicted on them when they are required to move”. The Government of the day accepted the committee’s recommendation. Paragraph 36 of the White Paper of October 1972, “Development and Compensation – Putting People First”, acknowledged that “[when] people’s homes are acquired for public developments the occupiers who are obliged to uproot themselves suffer personal upset, discomfort and inconvenience”, that “the loss of a home” was “something distinct from the value of the land and the bricks and mortar”, and that “the principle of a lump sum payment … , quite independent of the payment for the interest acquired [was] right”. It “therefore decided that where an authority wishes to acquire houses, whether for roads or for other public works, through compulsory purchase or with the backing of compulsory purchase powers, a home loss payment … should be paid to the occupier whether he happens to be the owner or a tenant …”.

[9]Provision for home loss payments was included in the Land Compensation Bill presented to the House of Commons in November 1972. In January 1973, during the committee stage of the passage of the Bill through the House of Commons, the minister responsible for it said that a home loss payment “should be a payment for exceptional personal grief or frustration of the residential occupier forcibly displaced from his home” (Hansard, 23 January 1973, first column, p.267). An undertaking was given to the committee that “the Government would wish to provide that those who lose their permanent home, whether mobile or otherwise, should receive the benefit of the home loss payment” (Hansard, 8 February 1973, first column, p.513). The amendment which ultimately became section 33(2) of the 1973 Act was brought forward at the committee stage in the House of Lords (Hansard, 3 April 1973, second column, p.240). The reason for the difference in treatment between those who live in dwelling-houses and those who live in caravans was explained by the minister, Lord Sandford, in this way (Hansard, 3 April 1973, first column, p.241):

“The conditions of eligibility for caravan occupiers are the same as for occupiers of traditionally built dwellings, modified only where necessary to take account of the mobile nature of caravans. … The main difference between a caravanner whose site is acquired and, say, the occupant of a house is that if an alternative site is available the caravanner can take his home with him on displacement. He does not therefore lose his home as such, and for this reason the new clause specifically excludes him from an entitlement to a home loss payment if a suitable alternative site is available on reasonable terms.”

Proposed amendments to the Bill which would have extended the entitlement to home loss payments to caravan dwellers on the same basis as occupiers of dwelling-houses were rejected by the Government. The new clause tabled by the Government in the House of Lords, which duly became section 33(2), provided that a home loss payment would be paid to caravan dwellers when no suitable alternative site was available to them on reasonable terms.

[10]Ms Lovelock says (in paragraph 43 of her witness statement) that “[the] Government considers that the different provision made in the [1973 Act] between house dwellers and occupiers of caravans for [home loss payments] remains justified, for essentially the same reasons initially advanced by Lord Sandford in the House of Lords”. She goes on to say this:

“An occupier of a dwelling must leave his home when the land is compulsorily purchased, whereas an occupier of a caravan can, where an alternative site is available, take his caravan with him. An occupier of a caravan who is able to take his caravan with him does not lose the physical structure that constitutes his home. He therefore suffers a significantly lower degree of personal disturbance than an occupier of a dwelling who is displaced from that dwelling.”

[11]In his second witness statement, dated 3 July 2014, the claimants’ solicitor, Mr Christopher Johnson, says (at paragraph 31):

“I can confirm that a Gypsy or Irish Traveller would never be referred to as a ‘caravanner’ and, indeed, I think they would be most insulted if you referred to them in that way. The use of the word ‘caravanner’ in the Parliamentary debates is, I believe, instructive since it indicates that the members of both the Lords and the Commons did not have a way of life in mind when they were looking at the provisions with regard to those who live in caravans. My colleague and fellow Solicitor at the Community Law Partnership and also fellow expert in dealing with Gypsy and Traveller cases, Sharon Baxter, has been through the Parliamentary debates and informs me that she cannot find a single reference to Gypsies and Travellers. She informs me that she is satisfied that the members of the Lords and Commons did not have Gypsies and Travellers in mind at all when they were addressing the amendment to the Land Compensation Bill which dealt with caravan dwellers. Given that fact, I do not see how [the Secretary of State] can justify the obvious difference in treatment given that the effects on Gypsies and Travellers were not even taken into account at the time of the passage of the Bill.”

Part III of the 1973 Act

[12]Section 29 of the 1973 Act provides:

“(1) Where a person is displaced from a dwelling on any land in consequence of – (a) the compulsory acquisition of an interest in the dwelling; … he shall, subject to the provisions of this section and section 32 below, be entitled to receive a payment (hereafter referred to as a “home loss payment”) from (i) where paragraph (a) above applies, the acquiring authority; … (2) A person shall not be entitled to a home loss payment unless the following conditions have been satisfied throughout the period of one year ending with the date of displacement – (a) he has been in occupation of the dwelling, or a substantial part of it, as his only or main residence; and (b) he has been in such occupation by virtue of an interest or right to which this section applies, but, if those conditions are satisfied on the date of displacement, a payment (referred to in this section and sections 32 and 33 below as a “discretionary payment”) may be made to him of an amount not exceeding the amount to which he would have been entitled if he had satisfied those conditions throughout that period. …”

. Subsection (4) sets out the “interests and rights” to which section 29 applies, which include “(a) any interest in the dwelling”, “(b) a right to occupy the dwelling – (i) as a statutory tenant within the meaning of the Rent (Agriculture) Act 1976 or the Rent Act 1977, or (ii) under a contract to which section 19 of the Rent Act 1977 … applies …”, and “(e) a right to occupy the dwelling under a licence where – (i) it is a right to occupy as a protected occupier within the meaning of the Rent (Agriculture) Act 1976, (ii) Part IV of the Housing Act 1985 (secure tenancies) applies to the licence, (iii) the licence is an assured agricultural occupancy within the meaning of Part I of the Housing Act 1988, or (iv) Chapter 1 of Part V of the Housing Act 1996 (introductory tenancies) applies to the licence. Subsection (6) states:

“Where an authority possessing compulsory purchase powers acquire the interest of any person in a dwelling by agreement, then, in relation to any other person who is displaced from the dwelling in consequence of the acquisition, subsections (1) to (4) above shall have effect as if the acquisition were compulsory and the authority (if not authorised to acquire the interest compulsorily) had been so authorised on the date of the agreement. …”

. A “dwelling” is defined in section 87(1) of the 1973 Act as “a building or part of a building occupied or (if not occupied) last occupied or intended to be occupied as a private dwelling …”. (a) the compulsory acquisition of an interest in the dwelling; … (i) where paragraph (a) above applies, the acquiring authority; … (a) he has been in occupation of the dwelling, or a substantial part of it, as his only or main residence; and (b) he has been in such occupation by virtue of an interest or right to which this section applies,

[13]Under section 30(1), in the case of a person who on the date of displacement is occupying, or is treated as occupying, the dwelling “by virtue of an interest in it which is an owner’s interest”, the amount of the home loss payment will be “10 per cent of the market value of his interest in the dwelling … , subject to a maximum of £47,000 and a minimum of £4,700. Under section 30(2), in any other case the amount will be £4,700.

[14]Section 32(7) provides for the situation in which a person has voluntarily disposed of his interest to the acquiring authority before it has been authorized to acquire the dwelling by a confirmed compulsory purchase order. It provides that “[where] an interest in a dwelling is acquired by agreement by an authority possessing compulsory purchase powers, the authority may, in connection with the acquisition, make to the person from whom the interest is acquired a payment corresponding to any home loss payment or discretionary payment [as defined in section 29(2)] which they would be required or authorised to make to him if the acquisition were compulsory and the authority had been authorised to acquire that interest before he gave up occupation of the dwelling.”

[15]Section 33 extends the statutory scheme for home loss payments to certain caravan dwellers. It provides:

“(1) Sections 29 to 32 above shall, so far as applicable, have effect in relation to a person residing in a caravan on a caravan site who is displaced from that site as they have effect in relation to a person displaced from a dwelling on any land but shall so have effect subject to the following modifications. (2) No home loss payment or discretionary payment [as defined in section 29(2)] shall be made to any person by virtue of this section except where no suitable alternative site for stationing a caravan is available to him on reasonable terms. (3) Subsection (1) of section 29 above shall have effect as if for the words preceding paragraph (a) there were substituted the words “Where a person residing in a caravan on a caravan site is displaced from that site in consequence of” and subsection (2) of that section shall have effect as if for paragraphs (a) and (b) there were substituted – (a) he has been in occupation of the caravan site by using a caravan stationed on it as his only or main residence; and (b) he has been in such occupation of the site by virtue of an interest or right to which this section applies. (4) Section 30 above shall have effect as if the references to a person occupying a dwelling by virtue of an interest in it and to his interest in the dwelling were to a person occupying a caravan site by virtue of an interest in it and to that interest. (5) Section 32 above shall have effect – (a) as if in subsections (3) and (3A) the references to a dwelling were to a caravan site; (b) as if in subsection (4) for the words “resided in the dwelling, or a substantial part of it” there were substituted the words “resided in a caravan on the caravan site”; and (c) as if for subsection (5) there were substituted – “(5) where any land comprises two or more caravan sites and the claimant has successively been in occupation of or resided in a caravan on different caravan sites on that land, section 29(2) above and subsections (3) to (4) above shall have effect as if those sites were the same site.” (6) Sections 29 to 32 above shall have effect as if in any provision not modified as aforesaid for any reference to a dwelling or land there were substituted a reference to a caravan site. (7) In this section “caravan site” means land on which a caravan is stationed for the purpose of human habitation and land which is used in conjunction with land on which a caravan is so stationed.” (a) he has been in occupation of the caravan site by using a caravan stationed on it as his only or main residence; and (b) he has been in such occupation of the site by virtue of an interest or right to which this section applies. (a) as if in subsections (3) and (3A) the references to a dwelling were to a caravan site; (b) as if in subsection (4) for the words “resided in the dwelling, or a substantial part of it” there were substituted the words “resided in a caravan on the caravan site”; and (c) as if for subsection (5) there were substituted – “(5) where any land comprises two or more caravan sites and the claimant has successively been in occupation of or resided in a caravan on different caravan sites on that land, section 29(2) above and subsections (3) to (4) above shall have effect as if those sites were the same site.”

[16]Sections 37 and 38 of the 1973 Act provide for disturbance payments to be made to those who are displaced from land in which they have no interest entitling them to compensation for the compulsory acquisition of land. A person who was not entitled to such compensation could, in principle, receive both a home loss payment and a disturbance payment under section 37. A disturbance payment will be equal to the reasonable costs of removal.

[17]Section 39 provides the duty to re-house “residential occupiers”. Under subsection (1)(a), where a person is displaced from “residential accommodation on any land” in consequence of “the acquisition of the land by an authority possessing compulsory purchase powers” and “suitable alternative residential accommodation is otherwise not available” to him, the “relevant authority” has a duty “to secure that he will be provided with such other accommodation”. The “relevant authority” here is “the local housing authority within the meaning of the Housing Act 1985” (section 39(7)). Section 40 extends the statutory duty of housing authorities under section 39 to re-house those displaced from residential accommodation to “a person residing in a caravan on a caravan site who is displaced from that site …”, where neither suitable residential accommodation nor a suitable alternative site for stationing a caravan is available to the person on reasonable terms.

The claimants’ licences

[18]The claimants say that they have an interest in the Eleanor Street site within section 29(4)(a), or a right to occupy the site under licence within section 29(4)(e). Without admitting that this is so, the Secretary of State is prepared to assume at this stage in these proceedings that the claimants have an interest or right to which section 29 applies.

[19]In both claim forms in these proceedings it is contended that “[the] licence to occupy the pitch being a personal interest and not an interest in land the compulsory acquisition of the site will necessarily result in the displacement of persons occupying the pitches upon it” (paragraph 17 of each claim form). The claimants also say that after the judgment of the European Court of Human Rights in Connors v United Kingdom (2005) 40 E.H.R.R. 9, the Government indicated that it would have to amend the law “to make sure that Gypsies and Travellers living on local authority run sites had proper security of tenure”; that “[this] has now been achieved by bringing local authority Gypsy & Traveller sites within the scheme of statutory protection set out within the Mobile Homes Act 1983 …” (paragraph 20 of each claim form); and that, for a gypsy or traveller living in a caravan or mobile home, a licence to occupy a pitch on a site provided by a local authority is “as close to holding a secure tenancy of a council house as a caravan dweller can get” (paragraph 21 of each claim form).

[20]In his first witness statement, dated 12 July 2013, Mr Johnson describes the likely effect on Mr Mahoney and his family of their being displaced from the Eleanor Street site:

“7. Mr Mahoney has had a licence at the Eleanor Street site since 1982 when the site was set up. He has always been on the same plot, plot 6, and has never moved from this plot. … There is an amenity shed on the pitch which has a kitchen, bathroom, 3 ft. hallway and a cupboard for the boiler and the meters. … His mobile home measures 37 ft. x 12 ft. and has three bedrooms. … It is rented from Glossops. He has had this mobile home for some two years now. His son’s caravan is also on the pitch through his son is often away travelling. 8. … [Mr Mahoney] believes there is … a danger that the mobile home may be damaged when it is moved. He will be in a new environment. The new plot will be a different shape from his current plot. He would argue that he is still losing his mobile home. His wife and himself thought they would stay precisely where they are for the rest of their lives. Three generations of the family have lived on this site. They have a lot of good memories of the site and the travelling community live together on the site. The move will be very upsetting as Mr Mahoney and his family have lived there for the last 30 years. He states he feels he is being forced to move. This is traumatic for people who are sick and elderly. …”

. Mr Johnson also describes the likely effect of displacement on Mrs Jones:

“10. … Mrs Jones has had a licence at the Eleanor Street site since 1982 when the site was first set up. She has always been on the same plot and has never moved from this plot. … It has a small garden which measures 3 metres by 3.5 metres. … She has been told that at the new site she will have no garden for 4 years. She does not feel confident that she will eventually be provided with a garden. … Mrs Jones has two caravans, one to sleep in and one which she cooks in. She also has an amenity shed which houses her bath and toilet, washing machine, dryer and her fridge. … The caravan she sleeps in is 21 foot by 9 foot and the one she cooks in is 20 foot by 9 foot. … Mrs Jones also has a lot of good memories of living at the Eleanor Street site. She does not want to move but understands she has no option but to do so. All her ten grandchildren who live on site have been born on the site and she does not want to leave those memories behind.”

In her witness statement of 15 August 2013 Mr Johnson’s colleague, Ms Parminder Sanghera, describes Ms Cleary’s circumstances:

“6. [Ms Cleary] is an Irish Traveller who lives on the Eleanor Street site with her three children … . She has been living on this site since she was ten years old and used to live with her grandmother, Elizabeth Mahoney on Plot 8. She has had her own licence agreement with the Local Authority for the last five years. 7. [Ms Cleary’s] plot is much smaller than the other plots on site. Her plot is one of the additional four plots which were constructed after the site had been built. It is much smaller and the utility block on her plot is much smaller as well. … She has a two bedroomed mobile home on the plot which is approximately 25 foot by 10 foot wide. It is rented from Glossops. The utility block has a very small kitchen and bathroom in it.”

[21]In their petitions to the House of Commons Select Committee which considered the Crossrail Bill, the Eleanor Street Travellers All Residents Group and Mr Mark McIntyre, another of the Irish travellers who lives on the site, referred to the likely impact of relocation on the traveller community resident on the site since March 1982. Paragraph 12 of the residents’ group’s petition stated that there would be “an enormous impact on [their] community if [they were] moved from Eleanor [Street]”; that this would be “very stressful for [them] psychologically, particularly for the older generation”; that since they had been living there they had not experienced “the usual prejudice and discrimination faced by Travellers elsewhere”; and that they believed that moving would cause “a breakdown of [their] community …”. Paragraph 13 of the petition said that “the Traveller community living at Eleanor [Street] have integrated with the local community”; that their children attended local primary and secondary schools; that they were “well established with the local services such as local doctors and the local parish churches”; that some of the residents with medical needs and disabilities were regularly attending local hospitals on a regular basis; that they had “very strong relationships with [their] local neighbours, which [had] been built up throughout the years”; and that “[some] of the younger Travellers are now married to members of the settled community”.

[22]In the Select Committee’s First Special Report of Session 2006-07, Volume V, the evidence given to the committee on 17 October 2006 by Ms Marian Mahoney, the secretary of the residents’ group, is recorded (at paragraphs 17356 to 17369). She told the committee that the Eleanor Street site “[had] been home to 20 families for the last 24 years”; that three generations of their children had attended the same schools in the Bow area for the last 24 years”; that any disruption to their children’s education would be “devastating”; and that they had “built up very good relations with the local community” (paragraph 17358). Ms Mahoney went on to say to the committee that the residents’ group supported Crossrail Ltd.’s proposed option for relocating the travellers onto a site comprising the “Laundry Building (39-41 Eleanor Street) and Units 1-3 of the Bow Triangle Business Centre (paragraph 17364):

“Our caravan site will be relocated within the Bow Triangle and we will be able to remain as a community and continue with our traditional way of life. There will be less upheaval and stress for our community and our children will be able to remain in their primary and secondary schools, and their education will not be disrupted. We will be able to continue our strong links with the local community and local services, which has taken us many years to establish. We will not have to face an uncertain future.”

The Convention rights in issue

[23]The right in

article 8 of the Convention

is the “Right to respect for private and family life”:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[24]The right in article 1 of the First Protocol is the right to “Protection of property”:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

[25]Article 14 enshrines the “Prohibition of discrimination”:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

[26]In Associazione Nazionale Reduci dalla Prigionia dall’Internamento e dalla Guerra di Liberazione v Germany (2008) 46 E.H.R.R. SE11 (“ANR v Germany”) the European Court of Human Rights said this (in paragraph 74 of its judgment):

“As the Court has consistently held, Art.14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Art.14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Hans-Adam II of Liechtenstein v Germany 11 B.H.R.C. 526, at [91]).”

[27]In Carson v United Kingdom (2010) 51 E.H.R.R. 13 the European Court of Human Rights identified the nature of “discrimination” in article 14 (in paragraphs 61 and 83 of its judgment): “61. The Court has established in its case law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of art.14. Moreover, in order for an issue to arise under art.14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background. A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. … 83. … [The] Court has established in its case-law that, in order for an issue to arise under Article 14, the first condition is that there must be a difference in the treatment of persons in relevantly similar situations.” (see also Bah v United Kingdom (2012) 54 E.H.R.R. 21, at paragraphs 36 and 41). Indirect discrimination may arise where “a general policy or measure … has disproportionately prejudicial effects on a particular group … notwithstanding that it is not specifically aimed at that group” (see D.H. and others v The Czech Republic [GC], application no. 57325/00, at paragraph 175). Does this case fall within the ambit of article 8 or of article 1 of the First Protocol?

[28]In M v Secretary of State for Work and Pensions

[2006] UKHL 11

, a case concerning child support contributions under the Child Support Act 1991, the claimant did not complain of any violation of her rights under article 8 and article 1 of the First Protocol. She contended that her situation fell within the ambit of the relevant provisions and that she was entitled to complain that her enjoyment of these rights had been the subject of adverse discrimination on the ground of sex, in violation of article 14 in conjunction with either or both of those substantive rights. Lord Bingham of Cornhill said, in paragraph 4 of his speech:

“It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol … , to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until the point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. … I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.”

Lord Bingham did not accept that the enhanced contribution required of the claimant would “impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life”, nor did it “invade the sphere of personal and sexual autonomy which are the essence of private life”. Lord Nicholls observed (in paragraph 18 of his speech) that there was no suggestion that the discrimination against her as “a partner in a same-sex relationship” had had “any significant adverse impact on her family life with her children”; and (at paragraph 32) that there was no suggestion of “any significant adverse impact on the claimant’s lifestyle”. Lord Walker found (at paragraph 87 of his speech) no more than a “tenuous” link with the claimant’s family life, and (at paragraph 88) that the link with her private life was “very tenuous indeed”.

[29]For the claimants Mr Alex Offer argues that the making of a home loss payment is one of the ways in which the state has given effect to the rights in article 8 and article 1 of the First Protocol. It is, he says, precisely in circumstances such as these that article 14 is engaged. When a state decides to provide such a benefit it must do so without discrimination (see paragraphs 35 and 40 of the judgment of the European Court of Human Rights in Bah, and paragraph 53 of its decision on admissibility in Stec v United Kingdom (2005) 41 E.H.R.R. 295). The approach taken by the court in Stec is not confined to the sphere of social security legislation.

[30]Mr Offer submits that article 14 is clearly engaged in this case. The displacement of the claimants from the Eleanor Street site as a result of the exercise of compulsory purchase powers falls within the ambit of both article 8 and article 1 of the First Protocol. It bears directly on the values embodied in article 8. The pitches on which the claimants have stationed their caravans on the Eleanor Street site are truly their homes. The impact of section 33(2) here is not merely financial, but, as Mr Offer puts it in paragraph 25 of his skeleton argument, it “results in the compulsory purchase or acquisition of the Claimants’ homes without the making of a home loss payment”. It is truly an interference with their right to respect for their “home and private life”. Moreover, their licences to occupy the site are existing possessions within the wide meaning of article 1 of the First Protocol, just as, for example, the benefit of the registration of a nursing home under the Registered Homes Act 1984 was held to be in Jain v Trent Strategic Health Authority

[2009] UKHL 4

(see the speech of Lord Scott of Foscote, at paragraph 12). They are being deprived of those possessions. This is a case of formal expropriation of property – the claimants’ rights under the licences – for a public purpose, and thus within the ambit of article 1 of the First Protocol (see paragraph 89 of Lord Walker’s speech in M). It is impossible to divorce the compulsory purchase of the site – and the claimants’ loss of their homes and their possessions through that compulsory purchase – from the effect upon them of section 33(2) of the 1973 Act. Section 33(2) denies them, and others in a similar situation to theirs, a form of compensation payable upon the expropriation of a person’s home.

[31]Mr Offer says the claimants could not have challenged their displacement from the Eleanor Street site on the grounds of their differential treatment under the statutory regime for home loss payments. Any such challenge would have been met with the response that section 6(2) of the Human Rights Act 1998 enables a public authority to act incompatibly with a Convention right if a provision in primary legislation prevents it from acting differently. Their only possible remedy is a declaration of incompatibility in respect of section 33(2), the particular provision in the legislation which gives rise to the incompatibility. It is the discriminatory effect of section 33(2) which brings the case within the reach of article 14, for it is specifically that provision which infringes the claimants’ rights in article 8 and article 1 of the First Protocol. But if the court thinks that the claimants should have sought a declaration of incompatibility in respect of the 1973 Act as a whole, rather than merely section 33(2), it should not refrain from granting relief in those terms.

[32]Mr Benjamin Lask, for the Secretary of State, submits that the facts on which the claim is built lie well outside the ambit of both article 8 and article 1 of the First Protocol.

[33]There is one misapprehension in Mr Offer’s submissions which ought to be tackled at the outset. This is the notion that section 6(2) of the Human Rights Act has some bearing on the question of whether this case falls within the ambit of either of the Convention rights with which I am concerned. That is not so. If section 6(2) would prevent a challenge to the statutory process by which the acquisition of the Eleanor Street site has been achieved, this has nothing to do with the relationship, if any, between the provisions for home loss payments for caravan dwellers in section 33 of the 1973 Act and any rights under the Convention. Logically, those two concepts are wholly unconnected.

[34]I come then to the main substance of Mr Offer’s argument on this issue, and first to his suggestion that

article 14 of the Convention

will be engaged when the measure impugned can be said to be one of the ways in which a state “gives effect to”, or “shows respect for”, the right in article 8.

[35]As I understand this submission, it does not correspond to what the House of Lords said in M, in the passages of the speeches of Lord Bingham, Lord Nicholls and Lord Walker to which I have referred. Adopting the approach indicated by the majority in the House of Lords in that case, and recognizing that the concept of the “ambit” of a Convention right is somewhat protean, I do not see how it could properly be concluded that the facts of this case bring it within the ambit of either of the Convention rights in issue.

[36]The question for the court at this stage is whether the claimants being denied home loss payments and discretionary payments under sections 29 and 33 of the 1973 Act impinged upon their rights under either article 8 or article 1 of the First Protocol. In my view it very clearly did not.

[37]One must focus on the particular provision which is said to offend the Convention rights in issue – which is section 33(2). The claimants do not complain about the statutory process which will result in their being displaced from the pitches they have occupied with their caravans on the Eleanor Street site, which Mr Offer says is their home. Their complaint is not that the statutory powers deployed to put the Eleanor Street site in the hands of Crossrail through an agreement which it has entered into with the council were within the ambit of article 8 and article 1 of the First Protocol, and that their enjoyment of those rights has been the subject of discrimination amounting to a violation of article 14. Their grievance is not to do with their displacement from the site. It is to do with their disentitlement to a home loss payment under section 33(2).

[38]The effect of that provision is not to found the relevant acquisition of land, or to displace the claimants from the Eleanor Street site. It is simply to prevent a home loss payment being made to them, and others in the same position as theirs, because, and only because, a “suitable alternative site” for stationing their caravans is available to them “on reasonable terms”. This is not tantamount to an expropriation of property. The effect of section 33(2) is merely to deny the claimants a payment of money which would have been made to them as caravan dwellers if the circumstances of their case had been different: that is, if another suitable site had not been available to them on reasonable terms.

[39]In my view the claimants’ case gains nothing from Mr Offer’s argument that section 33(2) is part of the wider legislative scheme for compulsory purchase and compensation, that the wider scheme must be viewed as an indivisible whole. Although section 33(2) sits within the statutory arrangements governing the payment of compensation for compulsory purchase, its own effect is simply and solely to define the circumstances in which home loss payments and discretionary payments corresponding to home loss payments may be made to caravan dwellers. It is not a component of the statutory framework which enables land to be taken from its owner by compulsion where the public interest so demands. The ability of an acquiring authority to acquire land, and thus to displace persons from their dwellings on that land, does not depend on the provisions in Part III of the 1973 Act, including sections 29 and 33. It derives entirely from other statutory powers which are not the target of either of the claims before me, and could not be.

[40]I reject the submission that the regime for home loss payments should be regarded as one of the ways in which Parliament has given effect to the rights under article 8 and article 1 of the First Protocol. Mr Lask submits, and I accept, that the relevant statutory scheme went well beyond what was necessary to demonstrate respect for those Convention rights.

[41]Mr Lask relies on the familiar and uncontroversial observations in the Commission’s decision on admissibility in Howard v United Kingdom, application no.10825/84, rejecting the contention that a compulsory purchase order and the provisions under which it was made contravened article 8 and article 1 of the First Protocol. In considering the applicants’ rights under article 8, the Commission noted that they were “entitled to full compensation for disturbance and for removal expenses arising from the compulsory purchase of their property, together with compensation for the full value of their house and land”. It concluded that in these circumstances “the competent authorities have struck a balance between the applicants’ interests and the interests of the community as a whole, which establishes that the interference with the applicants’ right to respect for their home is justified in accordance with the terms of Article 8 para. 2 of the Convention as necessary in a democratic society for the protection of the rights and freedoms of others who would benefit from the proposed redevelopment”. As to the applicants’ rights under article 1 of the First Protocol, the Commission emphasized that in any expropriation of private property “it must be shown that the competent authorities struck a fair balance between the rights of the individual property owner and the rights of the community”, and that “[a] significant factor in any such balance will be the availability of compensation, reflecting the value of the property expropriated”. In view of “the availability of compensation for the value of the property expropriated from the applicants”, the Commission concluded that the compulsory purchase of their property, which was “clearly in the public interest … , was in accordance with the requirements of Article 1 of Protocol No. 1”.

[42]Two points may be made about those basic and well established principles. First, they stand in the way of any argument that the statutory scheme for compulsory purchase is incompatible with the Convention rights on which the claimants seek to rely. It is not. Secondly, they provide no support for the proposition that home loss payments, whose purpose is simply to recognize a person’s distress at being compelled to move out of his home as a consequence of compulsory purchase, are an essential part of the statutory scheme for compensation for compulsory purchase.

[43]In any event, as Mr Lask submits, there is nothing by way of evidence before the court to show that any of the claimants’ “private and family life, his [or her] home and his [or her] correspondence” has been affected by the operation of section 33(2) to deny him or her a home loss payment, let alone that any such effect could be described as a “significant adverse impact”. The facts of this case do not display an interference with the “core values” protected by article 8, nor even a “tenuous link” with those “core values”. Taking even the most generous understanding of the “ambit” of article 8, I cannot see how the circumstances I am dealing with could be seen as falling within it. If one applies the European and domestic jurisprudence to which I have referred, reflected as it is in the decision of the House of Lords in M, there is no basis for finding that the operation of section 33(2) has brought about any harm to the claimants’ family or private life, home or correspondence, or that it would bring about any such harm to caravan dwellers in the same situation as theirs.

[44]The question of whether this case falls within the ambit of article 1 of the First Protocol is, I think, not quite so straightforward.

[45]A violation of article 1 of the First Protocol arises only where the decision or measure impugned relates to a person’s “possessions”. As the European Court of Human Rights said in its judgment in Kopecky v Slovakia (2004) 41 E.H.R.R. 43 (at paragraph 35), “possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a ““legitimate expectation” of obtaining effective enjoyment of a property right”. By contrast “the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 …”. A legitimate expectation “must be based either on a legal provision or have a solid basis in the domestic case-law” (see the judgment of the court in ANR v Germany, at paragraph 64, citing its judgment in Von Maltzan v Germany (2006) 42 E.H.R.R. SE11, at paragraph 112).

[46]Where the subject-matter of a case is an unsuccessful claim for compensation, the European Court of Human Rights has consistently held that the case will only come within the ambit of the right in article 1 of the First Protocol if the claimant has a legitimate expectation of the compensation in question (see Von Maltzan v Germany, at paragraph 112: ANR v Germany, at paragraphs 64 to 78; Ernewein v Germany (application no. 14849/08, judgment of 19 March 2008, at pp. 5 and 6); and Smiljanic v Slovenia (application no. 481/09, judgment of 2 June 2009, at paragraph 54). In those cases, because the claimants could not show some legitimate expectation of securing compensation or the restitution of property, their claims were held to lie beyond the ambit of article 1 of the First Protocol, so the question of discrimination under article 14 did not arise. In Ernewein v Germany the court observed (at p.5 of its decision on admissibility) that “… the belief that a compensation scheme previously in force could be changed to an applicant’s advantage cannot be regarded as a form of legitimate expectation for the purposes of Article 1 of Protocol No. 1, for there is a difference between a mere hope of compensation, however understandable that hope may be, and a legitimate expectation, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision (see, mutatis mutandis, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, paragraph 73, ECHR 2002-VII, and von Maltzan and Others, cited above, paragraph 112)”.

[47]As Mr Lask submits, the claimants’ licences to station caravans on pitches on the Eleanor Street site do not amount to existing “possessions” within article 1 of the First Protocol. On several occasions the European Court of Human Rights has held that a person’s right to live in a particular property which he does not own does not, in itself, constitute a “possession” (see, for example, Kukalo v Russia, application no. 63995/00; H.F. v Slovakia, application no. 54797/00; Kovalenok v Latvia, application no. 54264/00; and J.L.S. v Spain, application no. 41917/98). But even if the claimants were able to say that their licences to station caravans on pitches on the Eleanor Street site should be regarded as “possessions” within article 1 of the First Protocol, I cannot see how they could say that such “possessions” were in any way affected by the operation of section 33(2). Essentially the same analysis applies here as in the case of article 8. Section 33(2) does not warrant the expropriation of any asset belonging to the claimants, nor does it override or remove any property right which they currently enjoy. It is the operation of the statutory scheme for compulsory purchase which has that effect. I therefore reject Mr Offer’s submission that section 33(2) constitutes “an interference with [the claimants’] existing possessions, in particular their [licences] to occupy the Eleanor Street … site” (paragraph 29 of Mr Offer’s skeleton argument), or a “formal expropriation of their property: their personal and contractual rights under their site licences” (paragraph 30 of Mr Offer’s skeleton argument).

[48]But it is also necessary to consider whether the facts of this case demonstrate a legitimate expectation of compensation arising from a statutory provision or from domestic case law. Mr Lask submits that this is not such a case. He says the claimants cannot contend for any claim supported by a legitimate expectation of obtaining a property right, whether on the basis of statute or case law. If a suitable alternative site for the stationing of a caravan is available on reasonable terms to a caravan dweller who would otherwise be entitled to a home loss payment under section 33, that person cannot claim to have a legitimate expectation of obtaining such a payment. At most, he would be able to say that he had a legitimate expectation of either being offered, on reasonable terms, a suitable alternative site on which to station his caravan, or, failing that, receiving a home loss payment. That, says Mr Lask, is not the same thing as a legitimate expectation of receiving a home loss payment in any event. Since the claimants accept that they have been offered a suitable alternative site on reasonable terms, they cannot say that they have “property” – or a “possession” – inherent in a legitimate expectation of receiving a home loss payment.

[49]I can see the logical force of those submissions. But in my view another analysis is possible, and arguably preferable. I think it may be said that under section 33 of the 1973 Act a caravan dweller in the position of the claimants has a legitimate expectation, based upon a statutory provision, of obtaining a home loss payment unless a suitable alternative site is available to him on reasonable terms, and that in this respect and to this extent he has a claim for compensation which constitutes a “possession” under article 1 of the First Protocol. If this were right the circumstances of the claimants’ case could be said to fall within the ambit of the substantive right in article 1 of the First Protocol. I recognize of course that this would be to adopt, in this statutory context, the broadest possible understanding of the concept of a “possession” under article 1 of the First Protocol, on a reading of the European jurisprudence as generous to the claimants as it could be.

[50]I do not accept that my conclusions on this issue are inconsistent with the decisions of the European Court of Human Rights in Stec and in other cases such as Andrejeva v Latvia [GC], application no. 55707/00, and Luczak v Poland, application no. 77782/01. In Stec the court revisited the question of whether a claim to non-contributory welfare benefit should attract the protection of article 1 of the First Protocol. It held (in paragraph 53 of its decision on admissibility) that if a state had legislated to provide for the payment as of right of a welfare benefit, the legislation “must be regarded as generating a proprietory interest falling within the ambit of Art.1 of Protocol No.1 for person satisfying its requirements”. If an applicant had been denied “all or part of a particular benefit” on a discriminatory ground covered by article 14, the relevant test would be “whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question” (paragraph 54).

[51]The distinct context within which that jurisprudence has emerged, namely in the field of social security legislation, has been emphasized by the European Court of Human Rights itself (for example, in its judgment in ANR v Germany, at paragraph 77, and in its decisions on admissibility in Ernewein v Germany, at p.6, and in Smiljanic v Slovenia, at paragraph 57) and domestically at the highest level – in the decision of the House of Lords in R. (on the application of RJM) v Secretary of State for Work and Pensions [2009] 1 A.C. 311. In RJM Lord Neuberger of Abbotsbury, with whom Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Mance all agreed, said (at paragraph 32 of his speech) that Stec “was expressly distinguished … in [ANR v Germany] … on the grounds that what was involved in that case was “a one-off payment granted as compensation for events which occurred even before the Convention came into force” which was therefore “outside the framework of social security legislation” and could not be “likened to the payments in Stec””.

[52]Mr Offer relies in particular on the decision of the European Court of Human Rights in Bah. In that case the applicant complained that she had been impermissibly discriminated against because, as she had not been classed as being in priority need of accommodation when threatened with homelessness, she was not given reasonable preference for social housing and provided with temporary accommodation until social housing became available for her. The court referred (at paragraph 40 of its judgment) to the approach it had taken when dealing with cases concerning “other social benefits”, citing its decision on admissibility in Stec. It held (ibid.) that the impugned legislation “obviously affected the home and family life of the applicant and her son, as it impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness”, and that the particular facts fell within the ambit of article 8.

[53]I do not think that decision necessarily shows, as Mr Offer says it does, the court’s willingness to apply the principles on which it acted in Stec outside the context of social welfare (see the discussion of the ambit of article 1 of the First Protocol in paragraph 14.010 of “Human Rights Practice”). But this makes no difference to my conclusions on the issue I am considering here. Even if Mr Offer is right to suggest a wider significance for the case law stemming from Stec than Mr Lask is able to agree, those conclusions would be the same. In the legislative context with which I am concerned, and on the facts, I cannot accept that the claimants’ case falls anywhere near the ambit of article 8, or within the ambit of article 1 of the First Protocol except, arguably, in the sense to which I have referred.

[54]In summary, therefore, I conclude that the only respect in which the claimants could conceivably seek to rely on

article 14 of the Convention

in this case would be a legitimate expectation of securing a “possession” within the meaning of article 1 of the First Protocol, in the sense I have indicated. Nevertheless, I shall deal with the next two main issues on the wider basis contended for by Mr Offer, lest my other conclusions on this issue are wrong. Are the claimants’ circumstances analogous to the circumstances of those with whom they seek to compare themselves?

[55]Where the difference between a claimant’s situation and the situation of those with whom he seeks to compare himself is so obvious that they cannot be regarded as “analogous” it is unnecessary for the court to consider whether a difference in treatment is justified (see the speech of Lord Nicholls of Birkenhead in Carson v Secretary of State for Work and Pensions [2006] 1 A.C. 173, at paragraph 3).

[56]Mr Offer submits that the appropriate comparison here is between a person in the claimants’ position, namely a caravan dweller who is displaced from a site as a result of compulsory purchase, and to whom suitable alternative accommodation has been made available on reasonable terms, and a person living in a “bricks and mortar” dwelling, who is displaced from that dwelling in the same circumstances and who may be provided with suitable alternative accommodation under section 39. The two situations are analogous. The effect of section 33(2) is to require those in the claimants’ situation to be treated differently from those in the other situation. The former is denied a home loss payment; the latter qualifies for one.

[57]I cannot accept that argument.

[58]The question of whether one person is in an analogous situation to another can only be considered in the light of the relevant statutory scheme (see, for example, the judgment of the Grand Chamber in Carson v United Kingdom, at paragraphs 83 to 90, and the Court of Appeal’s decision in Ratcliffe v Secretary of State for Defence

[2009] EWCA Civ 39

(at paragraph 89 of the judgment of Hooper L.J., with whom Wall and Ward L.JJ. agreed). For example, the European Court of Human Rights and the domestic courts have both distinguished between different forms of tenure: the distinction between tenancies under the Rent Act 1977 and secure tenancies under the Housing Act 1985 (see Michalak v Wandsworth London Borough Council

[2002] EWCA Civ 271

); between regulated tenancy agreements and assured tenancies (see Spath Holme Ltd. v United Kingdom (2002) 35 E.H.R.R. CD106); between non-secure tenancies and introductory or assured short-hold tenancies (see Sheffield City Council v Smart

[2002] EWCA Civ 4

); and between a freehold interest and a secure tenancy (see Martin v United Kingdom 37 E.H.R.R. CD91).

[59]In this case I am not concerned with differences in tenure, but, in the context of the statutory regime for “home loss payments”, with the essential nature of a person’s “home”. Given that a home loss payment is the means by which a person is to be compensated for his distress when he is displaced from his home in consequence of compulsory purchase, any relevant difference between the “home” of a caravan dweller and the “home” of somebody who lives in a “bricks and mortar” dwelling is likely to be crucial.

[60]In that context, as Mr Lask submits, there is a real and obvious dissimilarity between the claimants’ situation and the situation of those with whom they seek to compare themselves. The comparison to be made here is between the situation of somebody who lives in a caravan and somebody who lives in a dwelling-house. The two situations are not analogous. Of course, neither a “caravan” nor a “dwelling-house” is in itself synonymous with a “home”. And I accept that the concept of a “home” is broader than merely the physical structure which forms a habitation. But when that concept is being considered there is, in my view, a material difference to be discerned between a caravan and a dwelling-house, and a material difference between the situation of someone who lives in a caravan and someone who lives in a dwelling-house. When a caravan dweller is compelled to move from a site where he has stationed his caravan he is able to take the caravan with him. It is mobile. By contrast, when a person who lives in a dwelling-house is displaced from it he leaves not only the location where he has made his home but also the house in which he has lived. It is immoveable. This is a practical difference, and in my view a significant one. It goes to the very heart of this case. It is aptly described by Mr Lask in this way: that someone in the claimants’ situation is moving his home from one place to another, while the person with whom the claimants seek to compare themselves must actually move out of his home, and leave it behind when he goes.

[61]The distinction between the position of a caravan dweller and that of someone who lives in “bricks and mortar” accommodation is reflected in the definitions of a “caravan” in section 29(1) of the Caravan Sites and Control of Development Act 1960 and a “mobile home” in section 5(1) of the Mobile Homes Act 1983, and the definition of a “dwelling” in section 87 of the 1973 Act. Section 29(1) of the 1960 Act defines a “caravan” as meaning “any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted …”. The definition of a “dwelling” in section 87 of the 1973 Act is “a building or part of a building occupied or (if not occupied) last occupied or intended to be occupied as a private dwelling”, which, except in section 29, “includes any garden, yard, outhouse and appurtenances belonging to or usually enjoyed with that building or part”.

[62]The difference between the two situations is not negated by the duties, in sections 39 and 40 of the 1973 Act, to re-house “residential occupiers” and “caravan dwellers” respectively. The possibility in either case that suitable alternative accommodation will be available does not change the facts that matter here. When a person who lives in a dwelling-house is displaced from it he loses the building in which he resides. When a caravan dweller is forced to move he can take his caravan with him.

[63]In my view therefore, as Mr Lask submits, there is a fatal flaw in Mr Offer’s argument that an issue of discrimination under

article 14 of the Convention

arises in this case. The analogy Mr Offer seeks to draw between the claimants’ situation and that of persons resident in “bricks and mortar” accommodation is plainly false.

[64]The claims must therefore fail for this reason, even if the circumstances of the case lie within the ambit of either article 8 or article 1 of the First Protocol.

Is the difference in treatment objectively and reasonably justified?

[65]If a measure requiring justification is one of economic or social strategy, the state has a wide “margin of appreciation”. Such matters are “pre-eminently well suited for decision by Parliament” (see the speech of Lord Nicholls of Birkenhead in R. (on the application of Williamson) v Secretary of State for Education and Employment

[2005] UKHL 15

, at paragraph 51). This principle was stressed by the European Court of Human Rights in James v United Kingdom (1986) 8 E.H.R.R. 123 (at paragraph 46):

“Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”

. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken … . Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. Furthermore, the notion of “public interest” is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment be manifestly without reasonable foundation. …” (see also the judgment of the Grand Chamber in Carson v United Kingdom, at paragraph 61, and its judgment in Stec, applications nos. 65731/01 and 65900/01, at paragraph 52).

[66]That the “manifestly without reasonable foundation” test is an exacting one was underlined by the Court of Appeal in R. (on the application of SG and others) v Secretary of State for Work and Pensions

[2014] EWCA Civ 156

(in paragraph 27 of the judgment of the court). This, said the court, is “a stringent test because decisions as to the criteria to be applied in the distribution of state benefits are an aspect of political and governmental life in which the court should be very slow to substitute its own view for that of the legislature or executive”. Such decisions are not “a no-go area” for the courts. The reasons put forward to justify discriminatory measures must be the subject of careful scrutiny …”. They “may be found, on analysis to lack a reasonable basis” (see the judgment of Baroness Hale of Richmond in Humphreys v Revenue and Customs Commissioners

[2012] UKSC 18

, at paragraph 22, and the judgment of Lord Dyson M.R. in R. (on the application of MA and others) v Secretary of State for Work and Pensions

[2014] EWCA Civ 13

, at paragraphs 49 to 52). If that is so, the court “should not shrink from saying so and granting appropriate relief to those adversely affected”.

[67]Mr Offer argues that in this case there is no objective justification for the difference in treatment. A caravan dweller to whom section 33(2) applies may not be able to move his caravan to another site. But if a suitable alternative site for the stationing of “a caravan” is available on reasonable terms he will be not be entitled to a home loss payment. He might lose his home and still be left without a home loss payment. Even if he is able to move his caravan, he may still suffer some loss of the “amenity” essential to the enjoyment of his home. A person’s home is something more than the physical space in which he lives. It embraces the physical surroundings, views, access to local services and facilities – schools, surgeries and shops – the experience of life in a community, and so forth. This is no less so for a caravan dweller than it is for a person who lives in a “bricks and mortar dwelling”. Yet the statutory regime for home loss payments takes no account of it.

[68]Mr Offer points out that before the 1973 Act came on to the statute book the Government had recognized in the 1972 White Paper that “severance of communities” and “loss of amenity” were relevant considerations behind the concept of a home loss payment. Those considerations apply no less to the claimants as travellers than they do to those who live in “bricks and mortar” accommodation. Compulsory purchase can have the effect of breaking up communities. As Mr Johnson’s evidence (in particular in paragraphs 17 to 20 of his witness statement of 3 July 2014) shows, a gypsy or a traveller can have an “emotional attachment” to the site on which he lives just as strong as is felt by somebody who lives in a “bricks and mortar” dwelling. Mr Johnson’s evidence also demonstrates that gypsies and travellers have a strong sense of community (see, for example, the Niner report, “Local Authority Gypsy/Traveller Sites in England”, prepared for the Office of the Deputy Prime Minister in 2003, at p.114). Indeed, submits Mr Offer, given the hostility and prejudice often encountered by gypsies and travellers and the vulnerability of their communities, the distress they will suffer when compelled to move from a site will be at least as great as is suffered by someone who is displaced from a “bricks and mortar” dwelling, and often greater. That is the reality of the claimants’ experience, as is clear in the petitions and evidence to the House of Commons select committee which considered the Crossrail Bill (see paragraphs 21 and 22 above).

[69]Mr Offer submits that the imposition of a “blanket restriction” on the making of home loss payments to caravan dwellers when suitable alternative accommodation is available to them on reasonable terms is outside the state’s margin of appreciation and is not a proportionate means of pursuing a legitimate aim.

[70]The margin of appreciation here, submits Mr Offer, is not as wide as is contended by the Secretary of State. This case is concerned not merely with matters of general planning or economic policy, but with the expropriation of the claimants’ property and their displacement from their homes. In such cases the state’s margin of appreciation is more slender (see the judgment of the European Court of Human Rights in Connors v United Kingdom, at paragraph 86). The effect of section 33(2) on gypsies and travellers is substantial and disproportionate. In Chapman v United Kingdom (2001) 33 E.H.R.R. 399 the court recognized (at paragraph 96 of its judgment) the “positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life”. Where the measure impugned affects a particularly vulnerable group in society, which has suffered prejudice, discrimination and disadvantage, the margin of appreciation is considerably narrower than would otherwise be so. The state must then have “very weighty reasons for the restriction in question” (see Kiyutin v Russia [2011] E.C.H.R. 439). As Irish travellers, the claimants belong to a “disadvantaged and vulnerable minority”, no less than, for example, Roma (see the judgments of the European Court of Human Rights in D.H. v Czech Republic, at paragraph 182, and Yordanova v Bulgaria, [2012] E.C.H.R. 758, at paragraph 129). Measures in primary legislation are worthy of respect. Mr Offer acknowledges that. But he says that, unlike SG, this is not a case in which the discrimination with which the court is concerned was the subject of any debate, let alone “vigorous debate”, in Parliament (see paragraph 28 of Lord Dyson M.R.’s judgment in that case). The particular circumstances of gypsies and travellers were not discussed in Parliament when the amendment to the Land Compensation Bill dealing with caravan dwellers was considered (see paragraph 11 above).

[71]The claimants’ circumstances are, says Mr Offer, typical of those faced by gypsies and travellers displaced from sites on which they have made their homes for many years. All of them have occupied caravans stationed on pitches on the Eleanor Street site as their “only or main residence” for a very long time. Had they not been caravan dwellers but residents of “bricks and mortar” dwellings they would have been entitled to a home loss payment or a discretionary payment on a claim made under section 32. Disturbance payments under sections 37 and 38, to which caravan dwellers may be entitled, are not an alternative to home loss payments. They do not address the “separate head of loss, the discomfort and distress of having to move”. Occupiers of “bricks and mortar” dwellings may be entitled to both. The possibility that a caravan dweller will be able to move his caravan to another site – though in some cases this may not be physically possible even if a suitable site is available – might justify a reduction in the home loss payment itself. But it cannot justify excluding any home loss payment for a caravan dweller when a suitable alternative site is available. In view of the very small sums available as home loss payment under the 1973 Act, the court cannot regard it as being within the state’s margin of appreciation and proportionate to deny even that modest level of compensation to a gypsy or an Irish traveller when there is another suitable site available for him. It would have been possible to provide for a home loss payment to be made to a caravan dweller on the basis of a “fact-sensitive assessment” of the “loss of amenity” and “loss of community” in each particular case. After all, an assessment of this kind has to be undertaken in determining whether a suitable alternative site is available, and whether the terms on which it is available are reasonable. But in any event, in the absence of any statutory provision to guarantee the claimants a home loss payment, the difference in treatment applying to them under section 33(2), is not objectively and reasonably justified.

[72]Therefore, submits Mr Offer, this is a case in which a declaration of incompatibility can and should be made.

[73]I cannot accept that argument.

[74]There seems to be no dispute that the objective underlying section 33 of the 1973 Act – to extend to caravan dwellers the entitlement to receive home loss payments – is a legitimate aim. In my view it clearly is. The issue raised by Mr Offer’s submissions is whether the legitimate aim has been pursued in an inappropriate way in section 33(2). The crucial question is whether, by restricting home loss payments to cases in which no alternative site is available to a caravan dweller on reasonable terms, Parliament acted within its margin of appreciation, and proportionately.

[75]In my view, in the light of both European and domestic jurisprudence, it cannot sensibly be suggested that the restriction on the availability of home loss payments to caravan dwellers in section 33(2) was outside Parliament’s margin of appreciation in the relevant context, or disproportionate.

[76]As Richards L.J. said in R. (on the application of Wilson) v Wychavon District Council [2007] Q.B. 801 (at paragraph 44 of his judgment, with which both Sir Anthony Clarke M.R. and Moses L.J. agreed), the margin of appreciation will depend “on the circumstances, the subject matter and the background” (see also the judgment of the European Court of Human Rights in Petrovic v Austria 33 E.H.R.R. 307, at paragraph 38, and its judgment in Stec, at paragraph 52).

[77]The territory with which the court is concerned here is firmly within the sphere of economic and social policy. Section 33(2) is a manifestation of such policy. The specific context is the view Parliament has taken when determining the liability of the public purse for payments beyond the normal regime of compensation for compulsory purchase. Home loss payments represent an additional cost to the general public of schemes for development or infrastructure which require compulsory acquisition of land and interests in land in the public interest. As an extra component of the framework for compensation under the 1973 Act, they clearly belong to a statutory regime which implements this aspect of economic and social policy. In this area, as I have said, Parliament has traditionally been accorded a wide area of discretion.

[78]Section 33(2) of the 1973 Act cannot be regarded as a measure which is aimed at, or bears specifically upon, an unusually vulnerable group. In this respect it is to be contrasted with cases such as Kiyutin v Russia and Timishev v Russia (2007) 44 E.H.R.R. 37. The court is not concerned here with a case of direct discrimination on the grounds of race or ethnicity. This is not a case in which it is incumbent on the state to demonstrate “very weighty reasons” to justify the measure impugned. The decision of the Court of Appeal in Wilson v Wychavon District Council, in the context of the regime for planning enforcement under the Town and Country Planning Act 1990, provides a relevant parallel. In that case the court rejected the suggestion that the statutory regime in question came close to direct discrimination on the grounds of race. Richards L.J. found the circumstances of that case very different from that in Timishev v Russia. He said (at paragraph 55) that the inclusion of residential caravans within the scope of the general stop notice regime could not fairly be said to be aimed at, or to involve the targeting of, gypsies and travellers. It was “aimed legitimately at the protection of the public against environmental harm”. Although the problem that prompted the removal of the former exemption arose primarily from the activities of gypsies and travellers, it was “the perceived harm done by those activities, rather than the race or ethnic origin of those engaged in the activities”, that led to the difference in treatment. Therefore, although the indirectly discriminatory impact on gypsies and travellers made it appropriate to apply the intense or severe scrutiny referred to in Ghaidan v Godin-Mendoza [2004] 2 A.C. 577 and Carson v Secretary of State for Work and Pensions, the case did not fall within the scope of “the very strict reasoning applied in Timishev v Russia to direct discrimination on the grounds of race or ethnic origin”.

[79]In my view, as Mr Lask submits, the test the court must apply in this case is whether the measure under challenge is “manifestly without reasonable foundation”. And I can see no basis for the argument that in this instance Parliament failed that “stringent” test. Here, I believe, the court should not hesitate to respect the “legislature’s policy choice” – the concept referred to by Lord Dyson M.R. at paragraph 24 of his judgment, with which Lewison and Treacy L.JJ. agreed, in Swift v Secretary of State for Justice [2014] Q.B. 373.

[80]The test itself is well established in both the Strasbourg jurisprudence and the decisions of the domestic courts (see, for example, the judgment of Baroness Hale in Humphreys v Revenue and Customs Commissioners, at paragraphs 15 to 21). In RJM, which was a case concerning the denial of income support disability premium to rough sleepers, Lord Neuberger (with whom Lord Hope, Lord Walker and Lord Rodger agreed) said (at paragraph 56 of his speech), that this was “an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary grounds”. Rejecting the notion that the views of the executive could be described as “unreasonable”, he said (at paragraph 57):

“The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.”

This has been the consistent approach of the domestic courts in cases concerning state benefits. But it has not been confined to that area. It is apparent too, for example, in the Court of Appeal’s decision in Swift, which concerned the statutory right of action to the dependant of a victim of a wrongful death for loss of dependency, a question which, Lord Dyson M.R. accepted, raised “important and difficult issues of social and economic policy” (see, in particular, paragraphs 24 to 28 of his judgment).

[81]Mr Lask submits, and I accept, that because section 33(2) is a provision of primary legislation, and because the position of caravan dwellers was considered during the passage of the Land Compensation Bill through Parliament, it should be given the respect due to a measure which has that degree of democratic legitimacy behind it (see the observations to similar effect made by Lord Dyson M.R. in paragraph 28 of his judgment in SG, and in paragraph 57 of his judgment in MA). I do not accept that this conclusion is undermined by the fact that the clause in the Bill which became section 33(2) was not intensively debated in Parliament (see paragraphs 9 to 11 above). Indeed, in the light of the decision of the House of Lords in Wilson v First County Trust (No.2) [2004] 1 A.C. 816, I do not think it is appropriate to deploy passages from Hansard in support of such an argument in a case of this kind (see, in particular, paragraph 67 of Lord Nicholls of Birkenhead’s speech and paragraphs 139 and 143 of Lord Hobhouse of Woodborough’s in that case, and the Court of Appeal’s decision in Wilson v Wychavon District Council, at paragraphs 30 to 39).

[82]I should add here, as Mr Lask points out, that both the European Court of Human Rights and the domestic courts will also take into account the absence of any consensus among member states as to the importance of measures under consideration. The circumstances in which home loss payments may properly be made or withheld have not been the subject of any such agreement between member states. In such a situation the European Court of Human Rights will, as a rule, afford the member state in question a wider margin of appreciation (see, for example, the judgment of the court in Hamalainen v Finland (application no. 37359/09), at paragraph 67). The same consideration has weighed with the domestic court (see, for example, the judgment of Lord Dyson M.R. in Swift, at paragraphs 24 to 31).

[83]Thus, in the light of European and domestic case law, this is a case in which the margin of discretion should be relatively broad. I do not accept the argument that it should be narrowed because section 33(2) represents an interference with the claimants’ homes, property and community. As Mr Lask submits, and as I have already concluded, any impact on the claimants’ homes, property and community will come about not as a result of their being denied a home loss payment, but through their displacement from the Eleanor Street site as a result of the acquisition of that site by Crossrail.

[84]Given the wide margin of discretion applying in this case, I do not accept that the qualification on the availability of home loss payments to caravan dwellers in section 33(2) can conceivably be said to be a disproportionate means of pursuing the legitimate aim. Mr Lask’s argument here is, I think, clearly correct. He argues, first, that section 33(2) does not generally exclude caravan dwellers from the entitlement to a home loss payment; secondly, that this provision merely requires a case-by-case assessment to establish whether a “suitable alternative site” is available, and, if so, on what terms; thirdly, that in any event it does not necessarily prevent a home loss payment being made to a caravan dweller who is able to move his caravan to an alternative site; and fourthly, that the effect of a home loss payment being denied to a caravan dweller is ultimately, and only, a financial effect.

[85]The fact that there will be cases in which a particular site is found to be both “suitable” for stationing a caravan and “available … on reasonable terms”, with the consequence that a home loss payment is not available to the caravan dweller forced to move his caravan from its existing pitch, does not mean that the restriction in section 33(2) is disproportionate. On the contrary, as Mr Lask submits, it is a proportionate qualification on the general availability of home loss payments, reasonably reflecting the difference between the situation of a caravan dweller and a person whose home is a “bricks and mortar” dwelling, the difference between the impact of displacement in either case, and the likely difference in the “distress” that is suffered. The difference in treatment between those two individuals is, as Mr Lask submits, a difference measured only in monetary terms. One receives a payment of £4,700; the other does not. Both are entitled to a disturbance payment to compensate for the reasonable costs of removal, and to have suitable accommodation found for them.

[86]A caravan dweller for whom an alternative site is available will not necessarily be denied a home loss payment. He will only be denied a home loss payment if the alternative site is both “suitable” and “available … on reasonable terms”. There are three kinds of case in which section 33(2) will operate to enable a home loss payment to be made to a caravan dweller. It will do so where no alternative site is available for the relocation of his caravan, or where there is an alternative site but that site is judged to be unsuitable, or where there is an alternative site and it is suitable but the terms on which it is available are unreasonable. Without speculating about the number or proportion of cases which will fall into one of those three categories, one can, I think, reasonably conclude that there will be many cases in which caravan dwellers will receive a home loss payment under section 33. At the very least one can say that the modified arrangements for home loss payments to caravan dwellers are not a “blanket exclusion”, as Mr Offer describes it. They do not exclude the authority’s discretionary judgment in the particular circumstances of the case in hand. Indeed, they require it. They adjust the entitlement to a home loss payment so as to enable and require that discretion to be exercised.

[87]Is that a reasonable and proportionate adjustment to the general regime for home loss payments? I am in no doubt that it is. One comes back to the essential purpose of a home loss payment, which is, as I have said, to compensate a person for his distress at losing his home when land is compulsorily purchased, or purchased by agreement by an authority with compulsory powers. In those circumstances somebody who lives in a “bricks and mortar” dwelling not only loses the amenity he has enjoyed as a resident of that dwelling and is displaced from the community in which he has lived; he loses the very structure in which he has made his home. A caravan dweller lives in a home that is mobile. In many cases he will be able to move his caravan somewhere else, though in doing so he may suffer some “loss of amenity” and may see his community divided. This, as I have already said, is a real difference between the situation of a caravan dweller and that of a person who lives in “bricks and mortar” accommodation.

[88]Mr Lask submits that the case-by-case assessment contemplated in section 33(2) embodies a “bright line rule” by which it was to be decided, in the facts and circumstances of the particular case, whether or not a home loss payment was to be available. I believe that submission is correct.

[89]I recognize the different statutory context in which the claim in Wilson v Wychavon District Council arose. But I think the Court of Appeal’s decision in that case indicates the correct approach here. Richards L.J. said (in paragraph 66 of his judgment) that it could “readily be seen why the legislature thought it appropriate to confer an exemption [from the regime for stop notices] in respect of dwelling-houses”, noting that “the effect of a stop notice, if complied with (and criminal sanctions may attach to non compliance), will be particularly serious since it will require the occupier to leave his home”. He went on to say, in paragraphs 69 to 71:

“69. On the other side of the balance, the issue of a stop notice in respect of use of land for the site of a residential caravan will not necessarily prevent the occupier continuing to occupy the caravan as his home. In complying with the notice, the occupier may well be able to move the caravan somewhere else without ceasing to reside in it. That is not to deny the potentially serious effect of a stop notice in such a case or its potential to interfere with the article 8 rights of occupiers of caravans; but it does provide a further material point of distinction between residential caravans and dwelling-houses. 70. The force of the point is weakened, but not removed, by the fact that there is in many areas a severe shortage of lawful sites for gypsy caravans, so that removal of a caravan from an unauthorised site in compliance with a stop notice may simply force the occupier back onto the road or onto another unauthorised site. The fact remains, as Mr Sales submitted, that caravans can be moved in a way that buildings cannot. Mr Sales also laid emphasis on evidence that the Secretary of State is continuing to take steps, by the imposition of requirements on local planning authorities through the planning system, to ameliorate the difficulties that gypsies face in finding suitable sites; but I would not give much weight to that consideration either in the context of this particular point or in the assessment of proportionality more generally. 71. I would therefore reject Mr George’s submission that no material distinction can be drawn for these purposes between the unauthorised stationing of a residential caravan on land and unauthorised development to which the dwelling-house applies. In my judgment there is a clear distinction between the two situations, both as regards the harm that they are likely in general to cause and as regards the general effect of a stop notice on the ability of occupiers to remain in their home.”

That analysis seems to me to lend support to Mr Lask’s submission, and my conclusion, that section 33(2) represents a proportionate response to the essentially different situation of a caravan dweller and that of a resident of a “bricks and mortar” dwelling.

[90]The 1973 Act does not define the concepts of a “suitable alternative site” and “reasonable terms” used in section 33(2). I accept, as Mr Lask submits, that these concepts are flexible, and require to be applied in individual cases in the light of the particular circumstances of the particular case. In every case they will involve questions of fact and degree. They are broad concepts, as may be seen in the Court of Appeal’s decision in R. v Bristol Corporation, ex p. Hendy (1974) 27 P. & C.R. 180, which concerned a local authority’s obligation under section 39 of the 1973 Act to secure for a person displaced from residential accommodation “suitable alternative residential accommodation on reasonable terms”. In his judgment in that case Scarman L.J., as he then was, said (at p.184) that he thought the word “suitable” in this context meant “no more and no less than suitable to the requirements of the person and his family in the circumstances in which they find themselves”, and that the important words “on reasonable terms” indicated that this was “a duty to act reasonably”. Equally, in my view, section 33(2) of the 1973 Act does not exclude a comparison between the site on which a caravan dweller has stationed his caravan and the site to which he is expected to move. And this will involve a consideration not only of the arrangements at the alternative site, but also of the services and facilities available to the local community.

[91]I do not accept Mr Offer’s submission that a caravan dweller is likely to be denied a home loss payment if the only site available for the relocation of a caravan dweller was one without a pitch suitable for his own caravan. Of course, this would be a matter for the discretion of the authority making the decision. But I cannot see how that discretion could be reasonably exercised to prevent a home loss payment on the ground that there was, in those circumstances, a “suitable” alternative site, “available … on reasonable terms”. This cannot have been Parliament’s intention when it enacted section 33(2). The observations made by Scarman L.J. in ex p. Hendy surely suggest the opposite. Whether the claimants will be able to move their caravans from Eleanor Street to the site Crossrail has acquired for their relocation is not a question that I have to deal with. The relevant evidence before the court is not that the claimants will be unable to move their caravans to the new site. Mr Johnson says in his witness statement of 12 July 2013 (in paragraph 8) that Mr Mahoney fears his caravan may be damaged when it is moved. That, however, is not the same thing as saying that the new site is unsuitable or that it is not available to Mr Mahoney on reasonable terms.

[92]Mr Offer relies on case law concerning the duty of local housing authorities to secure suitable accommodation for homeless persons, under the provisions of Part 7 of the Housing Act 1996. He says that those cases belie Mr Lask’s submissions on the elasticity of the concepts of a “suitable alternative site” and of such a site being “available … on reasonable terms” in section 33(2) of the 1973 Act (see, in particular, Codona v Mid-Bedfordshire District Council [2005] H.L.R. 1, Sheridan v Basildon Borough Council [2012] H.L.R. 29, and Slattery v Basildon Borough Council [2014] H.L.R. 16). I disagree. As Mr Lask points out in his further written submissions, in each of the cases on which Mr Offer relies the court has accepted the need for the particular facts and circumstances to be considered (see, for example, the judgment of Auld L.J. in Codona, at paragraphs 24 and 33 to 35). The same applies, in my view, to the approach called for by section 33(2) of the 1973 Act. The judgment to be made under that provision would, as Mr Lask submits, take into account “matters such as the facilities on site, wider local amenities, and any potential difficulties between the displaced persons and the local settled community”, and the authority’s decision would be subject to the court’s supervision in a claim for judicial review. If the only alternative accommodation available for the caravan dweller was a “bricks and mortar” dwelling, it obviously would not be a “suitable alternative site for stationing a caravan” and a home loss payment would therefore not be precluded.

[93]I reject Mr Offer’s argument that the potential “loss of amenity” sustained by a caravan dweller when he has to move his caravan to another site renders section 33(2) disproportionate. And I also think it is misconceived to suggest, as Mr Offer does in his reply to Mr Lask’s written submissions, that proportionality would require the alternative site be of “essentially equivalent amenity” to the one from which the caravan dweller is displaced. As Mr Lask submits, even if the concept of a “home” is wider than the physical structure in which somebody lives, the mischief that a home loss payment is intended to address is the loss of a “home”, and not the loss of “amenity” as such. Both a person who lives in a “bricks and mortar” dwelling and a caravan dweller may suffer, to some degree, a loss of amenity when compelled to move. But I do not think it can be said, as a generality, that one will necessarily suffer a greater loss of amenity than the other. What can be said is that the person who lives in a “bricks and mortar” dwelling will lose the physical structure in which he lives; the caravan dweller will not.

[94]It is not symptomatic of a disproportionate approach that Parliament could have provided for a reduced home loss payment in cases where a caravan dweller is able to move his caravan to an alternative site. Parliament’s task is not to select the optimum means by which to achieve the relevant aim. The question is whether the means adopted were proportionate, not whether they were the most proportionate. In James the European Court of Human Rights rejected a submission by the applicant landlords that the Leasehold Reform Act 1967 should have provided for independent consideration for the justification of enfranchisement in each particular case. It held (at paragraph 68) that such a system might have been possible, but that Parliament had chosen instead “to lay down broad and general categories within which the right of enfranchisement was to arise”, and that the system Parliament had chosen could not be dismissed as irrational or inappropriate (see also the judgment of Richards L.J. in Wilson v Wychavon District Council at paragraph 56 to 61, and the judgment of Lord Dyson M.R. in Swift at paragraph 35).

[95]I do not accept that section 33(2) has the effect of prohibiting acquiring authorities from making discretionary or ex gratia payments outside the statutory scheme for home loss payments in Part III of the 1973 Act. Although section 33(2) provides that no home loss payment as defined in section 29(1) or “discretionary payment” as defined in 29(2) may be made “by virtue of this section”. However, even if that point is moot, it does not affect my conclusions on the issue I am considering here.

[96]In my view, therefore, the qualification which Parliament decided to impose upon the availability of home loss payments to caravan dwellers was not “manifestly without reasonable foundation”. It was a proportionate means of pursuing a legitimate aim, comfortably within the margin of discretion allowed to Parliament when enacting legislation in the realm of social and economic strategy. It seems to me beyond sensible dispute that section 33(2) is objectively and reasonably justified so far as article 14 is concerned, and that if this were the critical question in these proceedings the claims would be bound to fail.

Conclusion

[97]For the reasons I have given I conclude that section 33(2) of the 1973 Act is not incompatible with

article 14 of the Convention

, and it follows that both of these claims for judicial review must be dismissed.

Cited in 1 later judgment

London Borough of Haringey v Simawi & Anor 2018