Bromley LBC v Persons Unknown (Liberty, London Gypsies and Travellers, and numerous local authorities, intervening) (2020) EWCA Civ 12

Over the last few years, there has been a real growth in “all borough” injunctions against anticipated trespass by gypsies and travellers. As far as the Court of Appeal could tell, there seem to be 38 presently in force. For obvious reasons, once one authority obtains such an injunction, the pressure builds on other authorities to do likewise. Moreover, because the injunctions are usually sought against “persons unknown” there are rarely, if ever, any represented defendants.

Which is why this judgment is so important. The Court of Appeal reviewed a whole range of anti-traveller injunctions (i.e. injunctions aimed at Gypsies and Travellers) and had submissions from a number of local authorities, Liberty and the London Gypsies and Travellers (whose role was plainly very important and welcomed by the Court of Appeal – so a big “well done” to our friends CLP, Marc Willers QC and Tessa Buchanan).

In August 2018, Bromley LBC applied for an injunction preventing unauthorised encampments on 171 sites in the borough (fields, car parks etc). It also sought injunctions against waste and fly-tipping. The Deputy High Court judge granted the injunctions against waste and fly-tipping but refused it in respect of the encampments. It was that decision that was appealed to the Court of Appeal.

The Court was satisfied both that it was possible to obtain injunctions against “persons unknown” and also that the injunction could be obtained on a quia timet basis (i.e. in anticipation of possible future unlawful acts). The real issue was whether it was proportionate (both in terms of Art.8, ECHR and Equality Act 2010 considerations). In this regard, the following points merited consideration:

(a) Romany Gypsies and Irish Travellers are a particularly vulnerable minority group whose members routinely experience discrimination and the worst social outcomes of any minority group. A nomadic lifestyle is a central element of their lifestyle and culture. There is a serious shortage of sites for them to use which, in turn, leads to a situation where they end up having to set up unauthorised encampments.

(b) the injunction was, in effect, an “all borough” injunction;

(c) there was no evidence of past criminality by the affected group;

(d) there were no suitable alternative sites provided (or identified) by the local authority;

(e) the cumulative effect of other injunctions obtained by other local authorities in the area;

(f) there had been no proper engagement with the affected groups, no consideration of the needs of elderly (or other similarly vulnerable) members of that group; this one was considered of central importance, with the Court explaining that “… if the appropriate communications, and assessments (like the Equality Impact Assessment) are not properly demonstrated, then the local authority may expect to find its application refused”.

(g) the injunction was sought for a long period of time (5 years, without any built-in review period);

(h) it was possible that the injunction would impact on permitted development rights (a planning law concept – in fairness, the Court is quite keen not to get into the planning law issues);

(i) whether or not the local authority would suffer irreparable harm.

All these matters had been properly considered by the Deputy Judge and her decision that it was disproportionate to grant the injunction was one that was properly open to her. Appeal dismissed.

Implications

That would have been a big deal in itself, but the Court of Appeal understood that this was a “test case” and, in addition to endorsing the points made by the Deputy Judge, went on to give guidance themselves. In particular, the Court noted that (emphasis added):

there is an inescapable tension between the article 8 rights of the Gypsy and Traveller community… 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

That is a big deal. The obvious implication is that an anti-traveller injunction just became a lot harder to obtain if the local authority claimant doesn’t also provide some lawful sites which can be used. Given that most authorities would rather eat nails than provide suitable sites, this should – hopefully – cause some of our leafy shire councils to start to rethink their approach.

It’s also something that the government will need  to consider as part of the ongoing consultation on a proposal to create a new criminal offence of trespass for the purposes of establishing an unauthorised encampment (here).

Finally, I’m very interested in this tension between the art.8 rights of the Gyspy and Traveller community and the wider law of trespass. As someone who spent three days watching the Court of Appeal grapple with whether it can ever be right for the law to assist someone who is (or may be about to) break the law (I’m talking about the Right to Rent appeal – you can spend three days watching a recording of it here), I wonder if there is something in here of much wider implication?