Gypsies – Trespass – Injunction – Appellant local authority appealing refusal of injunction against gypsy and traveller community in respect of unlawful entry and encampment on public spaces – Whether refusal of injunction being proportionate – Appeal dismissed
The appellant local authority obtained an interim injunction on a without notice basis preventing encampment on 171 sites in the borough of Bromley: 139 parks, recreation grounds or open spaces, and 32 public car parks. The sites amounted to all the public spaces in the borough, excluding only highways and cemeteries which had not had a particular problem with incursions in the past.
Although targeted at “persons unknown”, the injunction was aimed at the Gypsy and Traveller Community. Romany Gypsies and Irish Travellers were protected minorities under the Equality Act 2010 and a nomadic lifestyle was integral to their culture. However, there was a shortage of designated sites and permanent pitches in the UK and no transit sites in the appellant’s borough.
The judge granted a final injunction in relation to fly-tipping and waste, but refused one in respect of entry and encampment. She found in favour of the appellant that the test for a quia timet injunction against persons unknown had been made out because the six requirements noted in Boyd v Ineos Upsteam Ltd [2019] EWCA Civ 515 had been satisfied; and there was a strong probability of irreparable harm unless relief was granted.
However, it would not be proportionate to grant the proposed injunction taking into account: (i) the wide relief sought; (ii) the fact that it would prohibit entry and occupation and not anti-social or criminal behaviour; (iii) the lack of alternative sites; (iv) the cumulative effect of other injunctions by neighbouring authorities; (v) the appellant’s failure to carry out a proper environmental impact assessment (EIA); (vi) the five-year period for which the proposed injunction would be in force; and (vii) the fact that the issue of permitted development rights under schedule 1 to the Caravan Sites and Control of Development Act 1960 had not been satisfactorily addressed. The appellant appealed.
Held: The appeal was dismissed.
(1) A high hurdle had to be overcome in order to set aside the exercise of a judge’s discretion when undertaking a proportionality analysis. The appellate court should only interfere when it considered that the judge at first instance had not merely preferred an imperfect solution which was different from an alternative solution which the Court of Appeal might or would have adopted, but had exceeded the generous ambit of reasonable disagreement. Before the court could interfere, it had to be shown that the judge had either erred in principle or left out of account or taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court was forced to the conclusion that the various factors had not been weighed fairly in the scale.
(2) The judge was right to be concerned about the width of the proposed injunction; that it amounted to a de facto borough-wide prohibition of encampment and entry/occupation for residential purposes; and to regard that as a highly relevant factor in the proportionality exercise. Furthermore, she had been entitled to find that the proposed five-year term was disproportionate and could not be criticised for failing to explore the possibility of a shorter timescale when the appellant had never suggested one. Although it was not determinative, the absence of any substantial evidence of past criminality (leaving aside fly-tipping) was a factor relevant to the proportionality exercise whose weight was a matter for the judge. Although judges had to consider ordering less draconian relief where appropriate, there had to be realistic limits to that exercise and the absence of any existing or proposed transit sites were relevant. The judge was entitled to take into account the cumulative effect of similar injunctions obtained by neighbouring local authorities. While the situation of each local authority had to be considered on its own merits, it would be wrong to ignore the fact that injunctions obtained by neighbouring authorities would narrow the options for the community. The cumulative effect of other injunctions was a material consideration whose weight was a matter for the judge: Harlow District Council v McGinley [2017] EWHC 1851 (QB) and Wolverhampton City Council v Persons Unknown [2018] EWHC 3777 (QB) applied.
The judge had considered all the relevant factors when undertaking her proportionality exercise. She did not have regard to anything irrelevant and came to a conclusion which she was entitled to reach: Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [2010] 1 EGLR 169 considered.
(3) The reality was that, without more designated transit sites for the gypsy and traveller community, unauthorised encampments would continue and attempts to prevent them might put the local authorities concerned in breach of the European Convention on Human Rights. If a local authority considered that a quia timet injunction might be the only way forward, it was of the utmost importance to seek to engage with the gypsy and traveller community and assess what impact an injunction might have, taking into account the specific needs, vulnerability, and different lifestyle of the community.
The local authority had to provide evidence showing what other suitable and secure alternative housing or transit sites were available. That was necessary if the nomadic lifestyle of the gipsy and traveller community was to have effective protection under article 8 of the European Convention and the Equality Act 2010. If there was no alternative or transit site, no proposal for such a site, and no support for the provision of such a site, then that might weigh significantly against the proportionality of any injunction order.
The gypsy and traveller community had an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevented them from stopping at all in a defined part of the UK comprised a potential breach of both the European Convention and the Equality Act and in future should only be sought when a local authority reached the considered view that there was no other solution to the particular problems that had arisen or were imminent.
Richard Kimblin QC and Jack Smyth (instructed by London Borough of Bromley Corporate Services) appeared for the appellant; the respondents did not appear and were not represented; Marc Willers QC and Tessa Buchanan (instructed by The Community Law Partnership) appeared for the first intervener; Steven Woolf (instructed by South London Legal Partnership) appeared for the second intervener.
Eileen O’Grady, barrister
Click here to read a transcript of Bromley London Borough Council v Persons Unknown
