Court of Appeal rejects council bid for borough-wide injunction, issues guidance on tackling unauthorised encampments

The Court of Appeal has dismissed an appeal by the London Borough of Bromley over a High Court judge’s refusal to grant a borough-wide injunction on encampment at all accessible public spaces in the council’s area.

In The London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12 Lord Justice Coulson also issued wider guidance as to how local authorities should deal “with this plainly pressing issue”.

The Court of Appeal judge noted that in the South East, a recent spate of wide-ranging injunctions had been aimed at the Gypsy and Traveller community. This process began in 2015 with Harlow District Council v Stokes and others [2015] EWHC 953 (QB), and there now appeared in total to be 38 wide-ranging injunctions in place.

Leigh-Ann Mulcahy QC, sitting as a Deputy High Court judge, had in May 2019 concluded that all the ingredients for a quia timet injunction sought by Bromley Council against persons unknown were in place. However, she also found that it was not proportionate to extend the injunction prohibiting camping on 171 open spaces and car parks in Bromley.

The judge did grant the council a more limited injunction preventing people from fly-tipping, depositing substantial amounts of waste, or entering parks and car parks in vehicles for the purposes of waste disposal or fly-tipping. However, the requirement restraining the occupation of the council’s open spaces by caravans was discharged.

Bromley Council appealed. The London Boroughs of Sutton and Merton and the Royal Borough of Kingston-upon-Thames intervened at the Court of Appeal hearing last month.

Lord Justice Coulson, with whom Lord Justice Haddon-Cave and Sir Ernest Ryder, the Senior President of Tribunals, found that:

• Judge Mulcahy had been “quite right” to be concerned about the width of the injunction being sought by Bromley, and to regard that as a highly relevant factor in the proportionality exercise.
• The absence of any substantial evidence of past criminality (leaving aside fly-tipping) was a factor that was relevant to the proportionality exercise. “The fact that the sort of criminal and quasi-criminal conduct which was the basis of the injunctions in the Harlow cases was absent here was not unimportant, because it meant that the mischief at which the injunction was aimed was simply entry and occupation.” Beyond that, the weight to be given to this factor was entirely a matter for the judge.
• The absence of any transit or alternative sites was a very important factor militating against the imposition of the borough-wide injunction.
• He agreed that the cumulative effect of other injunctions was a material consideration but the weight to be afforded to it was a matter for the judge. “Here, the judge clearly had the cumulative effect in mind, but she does not say anything which suggests that she gave it undue weight or significance. It was simply a factor that she took into account in her assessment of proportionality.”
• The particular factual criticisms that the judge made of Bromley, including a failure to comply with its public sector equality duty and its failure to carry out an equality impact assessment, were plainly open to her on the evidence. “As I have noted, these criticisms (and in particular the various failings under the Equality Act) go a long way towards distinguishing the appellant's case from those of the majority of the second and fourth interveners.”
• Bromley had never suggested a shorter period than the five-year term sought, which the judge had concluded was unduly long and therefore disproportionate. “Whilst that would have been something which the judge could have considered, she was primarily obliged to test the proportionality of the injunction in the terms sought by the appellant. She was certainly entitled to conclude that the five-year term was, for a variety of reasons, much too long.”
• The judge was entitled to reach the view, based on the evidence before her, that Bromley had not dealt in a satisfactory way with the issue that the injunction would potentially cut across permitted development rights. (By reference back to schedule 1 of the Caravan Sites and Control of Development Act 1960, the GPDO grants deemed planning permission for the stationing of a single caravan on land for not more than 2 nights, or not more than 3 caravans on a larger site, or use of land as a caravan site for a travelling showman).
• The judge had been right to apply the test of “irreparable harm” as a matter of law for the grant of a quia timet injunction.

Dismissing the appeal, Lord Justice Coulson said Judge Mulcahy had considered all of the relevant factors when undertaking her proportionality exercise.

He added: “She did not have regard to anything irrelevant. She came to a conclusion which she was entitled to reach. Whilst I would not accept Mr Willers' [counsel for London Gypsies and Travellers’] description of the appellant's arguments as ‘just a list of grouches’, I agree with his summary submission that the appellant has struggled and failed to find any error of principle in the judge's reasoning. There is therefore no basis for this court to interfere with her conclusions.”

In the guidance, which is set out below, Lord Justice Coulson said amongst other things that:

• The obvious solution to the inescapable tension between the article 8 rights of the Gypsy and Traveller community, and the common law of trespass, was the provision of more designated transit sites;
• There was no hint in the “voluminous” guidance on authorised encampments that it was or could be a satisfactory solution to seek a wide injunction of the sort in issue in the Bromley case;
• Through a process of dialogue and communication, and following the guidance, it should be possible for the need for this kind of injunction to be avoided altogether. 'Negotiated stopping' was just one of many ways referred to in the English caselaw in which this might be achieved.
• If the authority considers a quia timet injunction as the only way forward, then it will still be “of utmost importance” to seek to engage with the Gypsy and Traveller community before seeking any such order “if time and circumstances permit”.
• If the appropriate communications, and assessments (like an EIA) are not properly demonstrated, then the local authority may expect to find its application refused.

Lord Justice Coulson set out the particular considerations that should be at the forefront of a local authority’s mind when considering whether a quia timet injunction should be sought against persons unknown and where the proposed injunction is directed towards the Gypsy and Traveller Community.

He said that in his view boroughwide injunctions were “inherently problematic” as they gave the Gypsy and Traveller Community “no room to manoeuvre”.

The Court of Appeal judge said a solution put forward in Wolverhampton, which identified particularly vulnerable sites but did not include all the sites owned by the council, seemed to be a much more proportionate answer. This was likely to be a better solution than a potentially discriminatory blanket ban.

Lord Justice Coulson said the limitation of the Wolverhampton injunction to one year, after which there would be a review, also seemed to be sensible.

“I consider that it is - without more - potentially fatal to any application for a local authority to seek a combination of a borough-wide injunction and a duration of a period as long as five years,” he said.

Lord Justice Coulson added that credible evidence of criminal conduct in the past, and/or of likely risks to health and safety, were important if a local authority wished to obtain a wide injunction. The injunctions in the Harlow cases were explicable on those grounds.

The Court of Appeal judge said injunctions which were designed to prevent entry and encampment only, and without evidence of such matters, “should be correspondingly more difficult to obtain”.

He did however say he did not agree with Liberty, which intervened, that this kind of injunction should never be granted.

Lord Justice Coulson concluded: “It must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another.

“An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.”

Responding to the ruling, Cllr Kate Lymer, Executive Councillor for Public Protection and Enforcement at Bromley, said: “The council was granted an Interim Injunction by the High Court, which prevented unauthorised encampments in August 2018 to prevent the environmental harm and associated costs of repairing the damage which has previously occurred. Whilst a longer term injunction has not been granted, land owners and local authorities continue to have a range of options to stop unauthorised encampments.

She added: “Nobody is above the law - there should be no doubt that the council will continue to protect all its parks and greenspaces using the range of legal measures available to it. The injunction prohibiting the depositing of waste remains in place. We note the court’s decision and will need to take time to reflect on the implications of the judgement in the coming days.” 

There are no plans to appeal to the Supreme Court, Cllr Lymer said.

Marc Willers QC of Garden Court Chambers, who together with Tessa Buchanan appeared for London Gypsies and Travellers, said: “Very importantly, the Court of Appeal has stated in this judgment that an injunction which prevents Gypsies and Travellers from stopping at all in a defined part of the UK comprises a potential breach of both the European Convention on Human Rights and the Equality Act. Given that finding, it is difficult to see how the government can possibly justify its proposal, which is currently out to consultation, to criminalise trespass.”

GUIDANCE FROM LORD JUSTICE COULSON

“8 WIDER GUIDANCE

99. As noted at the outset of this judgment, the parties were anxious for this court to provide some wider guidance as to how local authorities should deal with this plainly pressing issue. I am wary of offering too prescriptive a set of suggestions, particularly in circumstances where the appeal itself raised a number of fact-specific matters and has been refused. However, in deference to the parties' requests, I will endeavour to set out in brief terms what I consider to be the overall position.

100. I consider that there is an inescapable tension between the article 8 rights of the Gypsy and Traveller community (as stated in such clear terms by the European caselaw summarised at paragraphs 44-48 above), and the common law of trespass. The obvious solution is the provision of more designated transit sites for the Gypsy and Traveller community. It is a striking feature of many of the documents that the court was shown that the absence of sufficient transit sites has repeatedly stymied any coherent attempt to deal with this issue. The reality is that, without such sites, unauthorised encampments will continue and attempts to prevent them may very well put the local authorities concerned in breach of the Convention.

101. This tension also manifests itself in much of the guidance documentation to which I have referred at paragraphs 54 - 56 above. That guidance presupposes that there will be unlawful encampments, and does not suggest, save as a last resort, that such encampments should be closed down, unless there are specific reasons for so doing. There is no hint in the guidance that it is or could be a satisfactory solution to seek a wide injunction of the sort in issue in this case: indeed, on one view, much of that guidance would be irrelevant if the answer was a boroughwide prohibition on entry or encampment.

102. It therefore follows that local authorities must regularly engage with the Gypsy and Traveller community (and/or, in the Greater London area, the first intervener). Through a process of dialogue and communication, and following the copious guidance set out above, it should be possible for the need for this kind of injunction to be avoided altogether. 'Negotiated stopping' is just one of many ways referred to in the English caselaw in which this might be achieved.

103. If a local authority considers that a quia timet injunction may be the only way forward, then it will still be of the utmost importance to seek to engage with the Gypsy and Traveller community before seeking any such order if time and circumstances permit. Welfare assessments should be carried out, particularly in relation to children. An up-to-date EIA will always be important because the impact on the Gypsy and Traveller community will vary from borough to borough and area to area. In my view, if the appropriate communications, and assessments (like the EIA) are not properly demonstrated, then the local authority may expect to find its application refused.

104. Three particular considerations should be at the forefront of a local authority's mind when considering whether a quia timet injunction should be sought against persons unknown, and where the proposed injunction is directed towards the Gypsy and Traveller Community:

a) Injunctions against persons unknown are exceptional measures because they tend to avoid the protections of adversarial litigation and article 6 ECHR.

b) In order for proportionality (or an equilibrium) to be met in these cases, it is important that local authorities understand and respect the Gypsy and Traveller community's culture, traditions and practices, in so far as those factors are capable of being realised in accordance with the rule of law. That will normally require some positive action on the part of the authority to consider the circumstances in which the article 8 rights of the members of those communities are 'lived rights' i.e. are capable of being realised.

c) The vulnerability and protected status of the Gypsy and Traveller community, as well as the integral role that the nomadic lifestyle plays as part of their ethnic identities, will be given weight in any assessment as to the proportionality of an injunction or eviction measure.

d) The equitable doctrine of 'clean hands' may require local authorities to demonstrate that they have complied with their general obligations to provide sufficient accommodation and transit sites for the Gypsy and Traveller community.

e) Common sense requires the court, when carrying out the proportionality exercise, to have careful regard to the cumulative effect of other injunctions granted against the Gypsy and Traveller community.

105. In my view, boroughwide injunctions are inherently problematic. They give the Gypsy and Traveller community no room for manoeuvre. They are much more likely to be refused by the court as a result (as happened here). The solution in Wolverhampton, which identified particularly vulnerable sites but did not include all the sites owned by the council, seems to me to be a much more proportionate answer. I do not accept that this automatically means that the remaining sites will be the subject of unauthorised encampment, as Mr Kimblin suggested, but even if that happens, it is likely to be a better solution than a potentially discriminatory blanket ban.

106. The same is true of the duration of the injunction. Again, in the Wolverhampton case, the injunction was limited to a period of one year after which there was a review. That again seems to me to be sensible. I consider that it is - without more - potentially fatal to any application for a local authority to seek a combination of a boroughwide injunction and a duration of a period as long as five years.

107. Credible evidence of criminal conduct in the past, and/or of likely risks to health and safety, are important if a local authority wishes to obtain a wide injunction. In my view, the injunctions in the Harlow cases were explicable on the grounds of criminality and the grave risks to health and safety. Injunctions which are designed to prevent entry and encampment only, and without evidence of such matters, should be correspondingly more difficult to obtain.

108. Whilst I do not accept the written submissions produced on behalf of the third intervener, to the general effect that this kind of injunction should never be granted, the following summary of the points noted above may be a useful guide:

a) When injunction orders are sought against the Gypsy and Traveller community, the evidence should include what other suitable and secure alternative housing or transit sites are reasonably available. This is necessary if the nomadic lifestyle of the Gypsy and Traveller community is to have effective protection under article 8 and the Equality Act.

b) If there is no alternative or transit site, no proposal for such a site, and no support for the provision of such a site, then that may weigh significantly against the proportionality of any injunction order.

c) The submission that the Gypsy and Traveller community can "go elsewhere" or occupy private land is not a sufficient response, particularly when an injunction is imposed in circumstances where multiple nearby authorities are taking similar action.

d) There should be a proper engagement with the Gypsy and Traveller community and an assessment of the impact of an injunction might have, taking into account their specific needs, vulnerabilities and different lifestyle. To this end, the carrying out of a substantive EIA, so far as the needs of the affected community can be identified, should be considered good practice, as is the carrying out of welfare assessments of individual members of the community (especially children) prior to the initiation of any enforcement action.

e) Special consideration is to be given to the timing and manner of approaches to dealing with any unlawful settlement and as regards the arrangements for alternative pitches or housing.

109. Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.”