13 February 2020 | Comment | Article by Robert Phillips
In the recent case of Mayor and Burgess of the London Borough of Bromley v Persons Unknown and others  EWCA Civ 12, the Court of Appeal upheld the previous decision of the High Court that a final borough wide injunction that prohibited encampments was disproportionate. Interestingly, in handing down its decision, the Court of Appeal gave some guidance on the issue which included particular considerations for local authorities.
Facts of the Case
In the South East region of England since 2017, county courts have granted a large number of wide-ranging injunctions that had been aimed at prohibiting unlawful encampments within a number of local authorities. As a result, a greater strain was placed on the resources of other local authorities that had not yet applied for such an injunction.
While the London Borough of Bromley (‘Bromley’) had some permanent pitches to accommodate members of the travelling community, they were in short supply.
Against this backdrop, Bromley applied for an interim injunction on a without notice basis that covered 171 sites in their area (including car parks, recreation grounds, parks or other open spaces). Essentially, this amounted to all of the public spaces in the borough and only excluded highways and cemeteries. London Gypsies and Travellers intervened in the proceedings, arguing that the scope of the injunction was too wide, taking issue with matters of evidence, and raising issues of compliance with Article 8 of the European Convention on Human Rights (respect for private and family life, home and correspondence).
At a hearing in the High Court, Bromley asked for a final injunction to prevent unauthorised encampments for a period of five years. This was not forthcoming - although the court was prepared to grant an injunction preventing fly-tipping. The value in borough wide injunctions is generally accepted to be in preventing unauthorised entry onto land in the first place, or at least giving a quicker timescale to address unauthorised occupation. So the thinking goes, the less time unauthorised occupiers are in occupation the less the opportunity to illegally dump waste. Bromley was clearly not satisfied with an injunction preventing fly-tipping and appealed to the Court of Appeal. The appeal was unsuccessful. There are a number of issues within this litigation that are worthy of note:
- the geographical range of the injunction was very broad and essentially acted as a prohibition of encampment, entry and occupation for residential purposes;
- Bromley provided no evidence that unauthorised occupiers would commit any criminal acts on the land;
- The court considered the timescale for the injunction was disproportionate;
- Bromley had failed to undertake any equality impact assessment, failed to engage with the traveller community and had not complied with its public sector equality duty;
- Bromley had failed to demonstrate that the injunction would not cut across permitted development rights which allowed limited occupation of land by caravans in certain circumstances.
- The court will not amend an injunction to ensure it is proportionate, although it may be prepared to look at alternative forms of injunction presented by the claimant.
During this case, the parties asked the Court of Appeal to give guidance as to how a local authority should be expected to approach similar matters. While the Court of Appeal was careful to explain that each matter would turn on its own facts, it was prepared to give the following guidance:
- An injunction application should include evidence of the availability of suitable alternative housing or transit sites that are reasonably available. It is necessary to afford the nomadic lifestyle of travelling communities the protection required by Article 8 of the European Convention of Human Right and the Equality Act 2010.
- The absence of an alternative site or any support from the local authority for the provision of one, will weigh significantly against the proportionality of the proposed injunction.
- To simply suggest that the travelling community can go elsewhere (to other local authorities or private land) is insufficient.
- The local authority should engage with the travelling community and assess its needs and vulnerability with consideration given to their different lifestyle before taking any enforcement action through the courts. This can include undertaking Equality Impact Assessments and Welfare Assessments.
- The local authority must give special consideration to the timing and manner of approaches to dealing with any unlawful settlement and the arrangements for alternative sites.
Clearly, it remains possible to obtain borough wide injunctions, however it will be important to carefully frame any application by reference to the principles set out by the Court of Appeal. The judgement clearly requires detailed thought to be given to the identity of the individuals against whom the injunction is sought and a need to ensure their rights are balanced against any risk which they may pose as a result of criminal activity.
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