Pre-emptive possession orders

Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 was a case concerning travellers encamped on Forestry Commission land. Some of the travellers had previously camped on a nearby patch of Forestry Commission land until a possession order was obtained. The Forestry Commission (or rather the Sec of State, the owner of the land) applied for:

  1. A possession order in respect of the patch of land occupied.
  2. A possession order for other nearby areas of Forestry Commission land that the travellers might move to.
  3. An injunction preventing the travellers from entering upon the land they currently occupied and the other nearby areas.

At the County Court, possession order 1 was granted. But the ‘prospective’ possession order and injunction were refused, on the grounds that the recorder had discretion and exercised it against the orders because a prospective possession order and injunction clashed with the recommendations made to local authorities and others, including, inter alia, the Forestry Commission in the then ODPM’s Guidance on Managing Unauthorised Camping, 2004, which suggests that, while there are insufficient authorised sites, and there would be locations where encampment would not be acceptable under any circumstances, each location has to be considered on its merits against criteria such as health and safety and serious environmental damage and land use (para 11-12). A prospective possession order, which would subject anyone who entered on the parcels of land to eviction, was, the recorder found, not in accordance with the guidance, and was for that reason, Wednesbury unreasonable.

The Secretary of State appealed on basis that:

the recorder had no discretion to refuse the order and injunction once he had concluded that the Drury criterion was fulfilled. Alternatively, he erred in the exercise of his discretion by declining to grant the order and injunction. In the further alternative, he was wrong to hold that the Secretary of State was perverse in seeking the order and injunction. Finally, the recorder was wrong to conclude that the grant of the injunction was disproportionate.

Drury v the Secretary of State[2004] 1 WLR 1906 set out the criterion for prospective possession orders where further acts of trespass are threatened. A prospective order would be granted:

if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area. [Drury 20]

and where there

is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted. [Drury 20]

The test for a quia timet injunction, as set out in Snell’s Equity is:

Although the claimant must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the claimant must establish a strong case; “no one can obtain a quia timet order by merely saying ‘timeo.’ He must prove that there is an imminent danger of very substantial damage…

The Drury criterion itself is taken from Wilson J at para 21:

Although it would be foolish to be prescriptive about the nature of the necessary evidence, it seems safe to say that it will usually take the form either of an expression of intention to decamp to the other area or of a history of movement between the two areas, from which a real danger of repetition can be inferred or, as in the MAFF case itself, of such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to the other.

In Drury, there was no injunction application, on the basis that, as it could only be made and enforced against named individuals, it would not have been of much practical use.

In the appeal, the Sec of State argued that once the Drury criterion had been met, then there was no discretion on the making of a prospective possession order. The considerations of the Guidance should take place at the enforcement stage, not at the point of considering the claim. As the hurdle for the prospective possession order and an injunction were effectively the same, the recorder should also have granted the quia timet injunction, the practicality of enforcement being an issue for the Sec of State, not the court. In any case, the finding of unreasonableness should be set aside because the Forestry Commission were not going to enforce the possession order granted until the end of the school term.

The Respondents argued that

it would have been inconsistent with the government guidance set out above for a possession order in the wider form to be made. That guidance enjoins public authorities to consider whether eviction is really necessary. It requires public authorities to consider the specific characteristics of the site and of the incursion before they make a decision to evict. […] the Forestry Commission should look at the site occupied, and on the basis of the guidance they should accept that, in view of the shortage of suitable accommodation for travellers, the presence of the respondents should be tolerated. […] if the Forestry Commission wants a possession order in the wider form it should have to identify the areas where it accepts that the respondents could encamp.

On the injunction, the Respondents argued that the point of Drury was the creation of a practical remedy, and that the prospective possession order incorporated elements of an injunction to that end. or that reason an injunction in addition was inappropriate. In any case, grant of injunction was discretionary. As the recorder was plainly exercising his discretion within its proper bounds and he was entitled to reach his conclusions, the Court of Appeal had no basis to review the decision.

Lady Justice Arden, in the lead judgment, held that while the making of a prospective possession order was discretionary, once the Drury criterion were made out, it would only be in ‘exceptional circumstances’ that the order would be refused. Exceptional circumstances would include a failure to carry out a public law obligation.

However, the highest the obligation imposed by the Guidance could be said to be was ‘to consider the acceptability of an encampment once the encampment has occurred’, and it did not concern possible future sites. The Recorder was therefore wrong to apply it to future encampments. Consideration of the Guidance should occur at the time of enforcement. Moreover, while:

Mr Hobson [for the Respondent] urged on us the point that those factors did not need to be considered at all if the occupiers had previously been found on the land of the same landowner and a Drury order had been made. That order would identify the land to which it related. I do not consider that the court can fetter itself in relation to some future application to enforce a possession order. The occupation had not yet taken place. There will inevitably be an interval of time between the occupation and the order for eviction. In that time, the defendants may assert that there are matters which the Secretary of State ought to have considered but did not do so. There may be some people affected who are within the order yet unnamed. They may not know about the order for eviction from Hethfelton Wood. But, in so far as the occupiers were served with an order for possession of Hethfelton Wood, I would expect the court to be less willing to give them further time. If there is any such matter which the court needs to consider, it can be considered at the stage of enforcement.

On the injunction, there is enough distinction between an injunction served on individuals and a prospective possession order against any and all (putative) occupiers to mean that an injunction is also available as a complementary remedy. And there is no reason it can’t be granted on the same facts. The grant of an injunction is discretionary, but the Recorder erred in exercising his for the same reason his discretion on the prospective order was wrongly exercised. Nothing in the Guidance prevents the Sec of State obtaining an injunction. While actually exercising the injunction, on the facts of this case, might seem heavy handed, there was nothing to suggest that the Sec of State would not exercise his discretion in whether to enforce the injunction in accordance with public law obligations.

Lord Justice Pill agreed.

Lord Justice Wilson agreed on the possession order, but suggests that where there are two potential discretionary remedies available, the presumption should be that only one is granted, the most practically effective. he therefore disagrees on the grant of the injunction and approves the part of the recorder’s judgment that finds that “the quasi-criminal sanction of committal for contempt added nothing of value for the Secretary of State to his ability to secure clearance of the land pursuant to the extended order”. [paras 72-76]

This judgment clearly has significant repercussions for travellers on unauthorised sites and threatens to make prospective orders and injunctions considerably more likely where the Drury criterion are met. While local authorities have more extensive roles under the Guidance than the Forestry Commission, to be sure, this combination of prospective possession order and injunction could well be used against roadside or verge encampments, with the local authority seeking a prospective order covering great swathes of land. That the Guidance only requires consideration at the point of enforcement, while leaving injunction enforcement hanging over the heads of the travellers, makes for a very difficult situation, both for the travellers and their advisors.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Possession and tagged , , , , .

5 Comments

  1. I will force myself to confining my comment to the fact that we will be seeking to appeal this decision

  2. @Chris Johnson: I was surprised by the blase attitude to the possession order, but the approach to the injunction was astonishingly casual, I felt. The decision on the timing of consideration of the guidance was a surprise, given the usual position that ‘eviction’ covers all stages of possession proceedings (at least for Art 8 purposes, which I understand weren’t raised here, or for the DDA about the only part of Malcolm that wasn’t overturned.)

  3. Dear NL
    The implications of the injunction part particularly for the quarter of the English and Welsh Gypsy/Traveller caravan dwelling population who do not (through no fault of their own) have any authorised place to stop is rather worrying to say the least. In the Dorset area, where the case hails from, you might either stop on private land (and get immediately evicted) or on forest land ( or leave the county altogether with obvious ramifications for education, health etc!!)
    Part of this relates to what appears to be a misreading of what Mr Recorder Norman said when he refused (in an excellent judgment) the wider order and the injunction – he said that the important moment was when the landowner was addressing the court – this has been interpreted to mean when the landowner is considering enforcing an order it already has.
    Plus the idea of imprisoning Gypsies and Travellers because they have nowhere to stop is startling in the extreme!
    We are already rolling with our appeal and will keep people posted

  4. Pingback: Glastonbury no-go area for travellers? - Tribal Living

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