Medway Council v Heron & ors, Canterbury County Court, KO1ME613

13 May 2025

In 2023, the Gypsy Defendants moved on to land owned by Medway Council ( the Council) which had previously been a park and ride car park which had been closed down at the time of the pandemic and not re-opened or re-used since then. In July 2023 the Council entered into a three month licence agreement with the Defendants. At the end of the agreement, the Council served a notice to quit. The Ds sought to defend the possession action. The Ds made an application for planning permission. This was refused. An appeal against that refusal is ongoing.

It was accepted that the D’s encampment had put an end for the time being to use of the land by boy racers and drug dealers. The Council said that the land would probably be sold. At para 73 HHJ Parker stated:

‘The Claimant’s position has … changed from there being a likelihood of sale in the near future to sale being a matter which will be considered at some point in the future.’

There was no water supply to the land though portaloos had been provided. A councillor’s evidence was that a water supply and/or bowsers could be provided. If the Ds had to leave the land the  evidence was that they would have to return to roadside encampments where they would face frequent evictions. Some of the Ds had significant health problems. 9 of the Ds and 11 of the children were registered at a local GP. 3 children were regularly attending school and were doing well. HHJ Parker firstly concluded that there was a breach of Article 8 of the Human Rights Act 1998 ( the  right to respect for private and family life and home):

‘177 …The present benefit to the Claimant of recovering the land appears very slight when set against the likely impact on the Defendants. I appreciate that the Claimant has come to the opposite
conclusion, and that the view of a local authority on how best to strike a balance is not one with which I should lightly interfere. But I do not consider that this is one of those “decisions which a court could regard as proportionate, whichever way they went” (in the words of Lord Mance in Belfast CC v Miss Behavin’ Ltd, quoted at paragraph 136 above). 178 My conclusion is that a possession  order is not justified … It would be a disproportionate interference with the Defendants’ rights under article 8.2 of the European Convention on Human Rights. 179 This does not mean that the Defendants have a permanent right to stay. My decision is based on the parties’ present circumstances, which are likely to alter. Future circumstances may shift the balance in favour of eviction. It is not possible to evaluate or even list all of the possibilities, but these include that some of the Defendants might leave, there might be. changes in the Defendants’ heal th or the position of their children, there might be instances of behaviour causing a nuisance, the Claimant might identify another site to which the Defendants could move, and that the Claimant might develop a plan to use or sell the Land.

180 I have considered whether there is any scope to adjourn the claim or to make a possession order coming in to force on a deferred date. I do not believe that there is. The proportionality  exercise depends on balancing a range of factors against each other. There is no identifiable date to which I can adjourn, and no factor which I can isolate so as to make it a condition on which a possession order is suspended. It seems to me therefore that I must dismiss the possession claim.’

HHJ Parker also concluded that there was a breach of section 11 of the Children Act 2004 at para 222:

‘In reaching its decision to pursue these proceedings the Claimant did not have proper regard to the need to safeguard and promote the welfare of the affected children. There has been a breach of s11 Children Act 2004 which is a further basis for refusing to make a possession order.’

Thanks to Stephen Cottle of Garden Court Chambers, Parminder Sanghera of Community Law Partnership and Keith Coughtrie of Public Interest Law Centre who represented some of the Defendants.