Mayor and Burgess of the London Borough of Bromley v Persons Unknown and others [2020] EWCA Civ 12

Summary

In this case, the Court of Appeal has denied a borough-wide injunction against persons unknown, providing further guidance to local authorities seeking such an extensive injunction.

The facts

Since the case of Harlow District Council v Stokes and others [2015] EWHC 953 (QB), County Courts have granted a significant number of wide-ranging injunctions which have prohibited unlawful encampments within various local authorities. As a result, the gypsy and traveller community has been forced out of these boroughs and they have congregated within local authorities which had not yet applied for such an injunction.

In 2018, the London Borough of Bromley followed in the footsteps of other local authorities, applying for a 5 year, borough-wide injunction on unauthorised encampments on public spaces, including 139 parks, recreation grounds or open spaces, and 32 public car parks. Although the injunction was brought against persons unknown, it was commonly understood to be aimed at the gypsy and traveller community, a protected minority under the Equality Act 2010.

London Gypsies and Travellers intervened in the proceedings, arguing that the scope of the injunction was too wide, and raising arguments under Article 8 of the European Convention on Human Rights (respect for private and family life, home and correspondence).

At the hearing of the final injunction in May 2019, the High Court decided that it was disproportionate to grant an injunction on the terms sought. Bromley appealed the judgment to the Court of Appeal.

Appeal

The Court of Appeal acknowledged the "inescapable tension" between the Article 8 rights of the gypsy and traveller community and the common law of trespass but dismissed the appeal, agreeing with the High Court's decision that an injunction of this type was disproportionate.

It was held that local authorities must regularly engage with the gypsy and traveller community to avoid the need for this kind of injunction and suggesting entering into "negotiated stopping" agreements.

Negotiated stopping involves local authorities coming to an agreement with gypsies and travellers on unauthorised encampments. The terms of the agreement can vary, but will usually include matters such as correct waste disposal and provision and use of services such as portaloos. The length of the agreement can vary but tend to be around 28 days.

If such an agreement is not possible and a local authority considers that an injunction may be the only way forward, then the Court has held that the following must be shown prior to seeking any such order:

• engagement with the gypsy and traveller community if time and circumstances permit
• welfare assessments, particularly in relation to children, and
• an up-to-date Equality Impact Assessment to consider the effect on the gypsy and traveller community.

It was the Court's view that if the appropriate communications and assessments are not properly demonstrated, the local authority is likely to find its application refused.

Our comments

It is clear that injunctions of this type are available to be pursued. However, the burden on local authorities will now be considerably more difficult to overcome.

The ruling not only has repercussions for those local authorities seeking similar prohibitions, but there are also likely to be implications on the Government's proposals to criminalise trespass, which is currently out to consultation.

Strengthening police powers to tackle unauthorised encampments is a plan to effectively replace the civil procedure in Part 55 of the Civil Procedure Rules – which involves an application to court, possession order and, if required, bailiffs – with legislation that would make trespass, for the purpose of setting up an unauthorised encampment, a criminal offence.

Given the Court of Appeal's judgment that an injunction which prevents gypsies and travellers from stopping in parts of the UK comprises a potential breach of both the European Convention on Human Rights and the Equality Act 2010, it will be of interest to see how the Government would rationalise its proposal to criminalise trespass.

The availability of borough wide injunctions the outcome of the Government's consultation will be of particular interest to owners of land, including development sites, which can be vulnerable to trespass and the associated implications.