18 January 2024
RED Alert - January 2024 – 1 of 4 Insights
Welcome to the first edition of RED Alert of 2024
Also featuring in this month's update:
Wolverhampton City Council v London Gypsies and Travellers  UKSC 47
In what will be positive news for landowners, the Supreme Court on 29 November 2023 confirmed a balanced and sensible approach to using "newcomer injunctions" to tackle interference with land by trespassers. This new type of injunction can now be made not only against "persons unknown", but also against "newcomers", who might not yet even have threatened to perform the prohibited act – allowing for it to be enforced even where there is no actual harm or damage. The case related specifically to unauthorised Gypsy and Traveller encampments (following concerns that the newcomer injunctions were potentially discriminatory and disproportionate when applied to these groups), but here Senior Associate Stephen Burke (SB) and Senior Counsel Clare Harman Clark (CHC) discuss how the ruling could also be applied to trespass by protestors and beyond.
CHC: How big a concern is interference for landowners? Is private land really at risk from unauthorised newcomers?
SB: The issue is very real for very many clients. Landowners (especially developers) who have experienced unauthorised encampments on their sites will be all too aware of the time, expense and administrative burden associated with their removal, and the ongoing effort of securing the site. More recently, private land has become the high-profile battlefield for protests against oil, fracking, climate change and even the sale of animal fur. And advances in technology have meant it is easier than ever for large numbers of otherwise unconnected individuals to arrange to trespass or otherwise interfere with land, in connection with protest.
CHC: But what about the existing remedies? Are they really not sufficient in practice?
SB: In the majority of cases, trespass is a civil offence, meaning that recovering possession of the land involves following frustratingly slow court processes. When it comes to the unauthorised Gypsy and Travellers encampments, local authorities might be able to rely on breaches of local byelaws or even constructive negotiation with community representatives to find alternative sites. Ultimately however, to evict successfully, landowners are likely to need to convince the courts that a possession order is required. These are equitable remedies, meaning the courts will step in when other remedies are inadequate and they are very much a reactive, as opposed to pre-emptive, solution. They have historically been "final" possession orders; the introduction of "interim" orders was supposed to speed things up but, in practice, the courts do not have adequate resources to facilitate their use effectively.
"Newcomer injunctions" offer a chance to deny access to any and all "unknown" persons who might trespass in the future. It's clearly not practical in many circumstances to have expressly identified every individual to be bound by the injunction – they are unknowable at the outset and many will never be named. These injunctions therefore apply to everyone, not just those who are breaching the terms of the order (and interfering with the land).
It follows then that this injunction is binding against all persons who are unknown and unidentified at the date of its grant and who have not yet performed, or even threatened to perform, the acts which the injunction prohibits. "Unknown persons" covers the whole world, and it can be expected that everyone in it will want to obey the law. The flip side is that you don't need to be in breach to seek to have an order broadly affecting you varied or discharged (and the drafting of the injunction certainly shouldn't try and limit challenge). But in the meantime, in practice, the injunction should be able to stop "newcomers" in their tracks, before they even arrive to occupy land without permission.
CHC: So what exactly was this case about?
SB: From 2015, various local authorities, including Wolverhampton CC, had obtained interim and final injunctions that prevented "unknown persons" setting up future unauthorised encampments on local authority land. Applications were made to extend or vary those injunctions from mid-2020, and the move effectively landed in court when traveller organisations and liaison groups argued that final injunctions could not be granted against newcomers, since these were effectively discriminatory or disproportionate.
CHC: And what exactly did the Supreme Court decide?
SB: The Supreme Court held that the court can grant a "without notice" interim or final injunction against Gypsy and Traveller newcomers since they are not inherently discriminatory or disproportionate.
CHC: You can see why HS2 and the Secretary of State for Transport were interested in this case as interveners - the implications for dealing with protestors are wide. But when could a "newcomer injunction" actually be granted by the court?
SB: The Supreme Court justices emphasised that the use of "newcomer injunctions" against unauthorised Gypsies and Travellers encampments should always be a last resort, but it also set out a useful checklist of conditions that will need to be satisfied by private landowners. These conditions are:
CHC: It sounds like the Supreme Court has given more certainty to landowners hoping to use a "without notice" "newcomer injunction", but practically speaking how can landowners ever give notice to unidentified individuals, especially when they might not have actually done anything wrong?
SB: Helpfully, the Supreme Court gave a non-exhaustive list of suggestions for how to provide notice. In the context of travellers, these included placing notices in and around the relevant sites, on appropriate websites and in relevant publications, as well as directly to relevant community, charitable and/or other representative groups. When it's necessary to provide notice, it could absolutely involve thinking broadly and creatively about how best to reach the intended recipients.
CHC: Can a landowner recover their costs of obtaining a newcomer injunction?
SB: Given that a "newcomer injunction" is against "unknown persons", landowners clearly won't be able to recover their costs immediately after an injunction is granted. If the injunction is then breached, they could potentially recover costs from identified individuals, although this will be assessed on a case-by-case basis.
CHC: When should a landowner seek a possession order and when should it instead seek a newcomer injunction?
SB: A lot of analysis here will be on a case-by-case basis, and be subject to evolving law as the courts adapt to the changing threats of trespass and protest. As a rule of thumb, isolated incidents should be resolved by seeking a possession order. This includes the all-too-common scenario where squatters have broken into a development site and are refusing to leave. At the other end of the scale, landowners fearing repeated incidents might be better off exploring the potential for a "newcomer injunction". This might involve high profile buildings that often prove tempting to so-called urban explorers, for example, or sites that may foreseeably be especially vulnerable to protests.
CHC: What should landowners do if they are concerned about potential trespassers or indeed dealing with actual trespassers on their land?
SB: As the most appropriate remedy will depend on the factual circumstances, it is important that they seek legal advice. Our Real Estate Disputes team have considerable experience of assisting clients with these issues and are ready to assist.
18 January 2024
18 January 2024
18 January 2024
by Emma Archer