Wed, 12 Feb 2020
Bromley LBC v Persons Unknown  EWCA Civ 12
Bromley LBC had secured a without notice interim injunction in the High Court which prohibited encampment and entry/occupation in relation to all accessible public spaces in the Borough except cemeteries and highways. These amounted to 139 parks, recreation grounds or open spaces, and 32 public car parks. Although the injunction was against “persons unknown”, it was widely understood that the injunction was aimed at the Gypsy and Traveller community.
In the months and years before the final hearing in the High Court in May 2019, some 38 similar injunctions had been granted. However, at the final hearing in this case, the Judge decided that it would have been disproportionate to grant an injunction in the terms sought. The Judge did, though, grant a wide injunction in relation to fly-tipping and waste. Significantly, it was the first time that the Gypsy and Traveller community had been represented before the High Court.
Bromley LBC appealed the judgment of the High Court to the Court of Appeal. Interveners included a number of local authorities who had succeeded in obtaining injunctions similar to that sought by Bromley LBC. Several grounds were relied on by Bromley LBC, including that the judge was wrong to find that the injunction sought was disproportionate. However, the Court of Appeal rejected all of Bromley LBC’s grounds and dismissed the appeal.
The Court of Appeal’s Guidance
In practical terms, the key part of the judgment is the wider guidance that the Court of Appeal gave as to how local authorities should deal with the pressing issue of unauthorised encampments. The Court noted the tension between the rights of the Gypsy and Traveller community under article 8 of the European Convention on Human Rights (ECHR) and the common law of trespass and said that the obvious solution was the provision of more designated transit sites.
The Court further indicated that, while the granting of wide injunctions should not be ruled out, the following should be considered by local authorities:
- When injunctions orders are sought against the Gypsy and Traveller community, the evidence should indicate what alternative housing or transit sites are reasonably available;
- If no alternative housing or transit site is available, or a 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;
- It is not sufficient to say that the Gypsy and Traveller community can stop elsewhere, or occupy private land, particularly where nearby authorities are taking similar action;
- There should be proper engagement with the Gypsy and Traveller community and an assessment of the likely impact of the injunction order sought that takes into account their specific needs, vulnerabilities and different lifestyle. It would be good practice to carry out a substantive EIA assessment (so far as the needs of the affected community can be identified) and welfare assessments of individual members of the community (particularly children) before carrying out enforcement action; and
- Special consideration should be given to the timing and manner of approaches to dealing with any unlawful settlement and in relation to the arrangements for alternative pitches or housing.
Finally, the Court of Appeal said that it must be recognised that the Gypsy and Traveller community have an enshrined freedom not to have to stay in one place, but to move from one place to another. It warned that an injunction that prevents the community from stopping at all in a defined part of the UK would be a potential breach of the ECHR and the Equality Act 2010.
Such an injunction, the Court advised, should only be sought by a local authority, when it has considered the points above and reached the considered view that there was no solution to the particular problems that have arisen, or that the problems were imminent.
The guidance of the Court of Appeal is helpful. It is plain that it will now be much harder for local authorities to obtain wide injunctions against the Gypsy and Traveller community.
Local authorities will need to engage more fully with the Gypsy and Traveller community to seek to find a solution that protects their rights. The Court has indicated that this solution is the provision of more transit sites. Local authorities should therefore plan to provide these now, rather than wait for particular problems to arise.
There may still be situations where wide injunctions will be granted. However, these should only be applied for as a last resort or where an urgent response to particular problems that have arisen or which are imminent is required.
Howard Leithead will be speaking on this case at an upcoming seminar Proportionate & Effective Enforcement – Gypsies and Travellers on 2 March. Register here: https://www.no5.com/events/proportionate-effective-enforcement-gypsies-and-travellers/