Possession order – Trespassers – Appellant travellers setting up unauthorised camp in wood – Possession order granted in respect of that and other woods owned by the respondent in the area – Injunction restraining appellants from entering those woods – Whether permissible to grant possession order against trespassers in respect of land not occupied by them – Whether injunctive relief appropriate – Appeal allowed in part
The appellants were travellers who lived and travelled in motor vehicles. In 2007, they established an unauthorised camp in Hethfelton Wood, near Wool, Dorset, one of numerous woods managed by the Forestry Commission on behalf of the respondent owner. The respondent brought proceedings for possession against the appellants and “persons unknown”. It sought possession not only of Hethfelton Wood but also of other woodland managed by the Commission in Dorset in an area approximately 25 miles by 10 miles; the aim was to prevent the travellers from moving to another area of woodland if possession of Hethfelton were ordered. The respondent also applied for further injunctions against the same parties restraining them from re-entering Hethfelton or entering the other woods.
The recorder granted an order for possession in respect of Hethfelton. However, he refused to make a wider order for possession in respect of the other woods or to grant the injunction sought, primarily on the ground that the Commission had not, prior to commencing the proceedings, considered the matters suggested by 2004 government guidance on managing unauthorised camping. The respondent appealed. The Court of Appeal allowed that appeal and granted the relief sought. In doing so, it applied the earlier Court of Appeal decision in Druryv Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 200; [2004] 3 EGLR 85; [2004] 37 EG 142 that an order for possession against trespassers could, in appropriate cases, extend to land not forming part of or contiguous with or even near to the land occupied by the trespassers.
The appellants appealed. The central question was whether the court had the power to grant a possession order in respect of land of which they were not in occupation. The appropriateness of the injunctive relief was also in issue.
Held: The appeal was allowed in part.
(1) A possession claim against trespassers involved the party entitled to possession seeking recovery of the land. That was reflected in the terms of the relevant court order. There was no legitimate basis for making a wider, precautionary order for possession in respect of land that the appellants had not occupied, but were threatening to occupy. Although the common law evolved by means of pragmatic incremental developments, those developments had to be consistent with basic principles and had to make sense. It was nonsensical to talk about the respondent recovering possession of land that was wholly detached and separated, possibly by many miles, from that occupied by the appellants. The latter did not occupy or possess such land in any conceivable way and the respondent enjoyed uninterrupted possession of it. A wider order for possession would require the appellants to do the impossible, namely to deliver up possession of land that they did not occupy, and would purport to return to the respondent something that it had not lost, namely possession of land of which it had possession.
Although the concept of occupying part of a property in the name of the whole was well established and an order for possession could be made in respect of the whole of land of which the trespasser occupied part, that reasoning could not legitimately be extended to apply to land that was wholly distinct or miles distant from the occupied land: University of Essex v Djemal [1980] 1 WLR 1301 distinguished. There was no justification for concluding that a wider order for possession could be made in respect of separate pieces of land, only one of which was occupied by trespassers, just because they happened to be in the same ownership: Drury wrongly decided.
The concept of a wider, precautionary order for possession was attractive. Unlike an injunction, an order could be enforced by the procedurally direct and simple method of using bailiffs to remove the occupiers from the land. However, the court’s ability to control procedure and achieve justice was not unlimited and there would be a point at which primary or secondary legislation would be required to deal with a particular problem. It was not possible for the courts to make the kind of wider possession order that the Court of Appeal had made in the instant case.
(2) A decision on whether to grant an injunction restraining a person from trespassing would turn on the facts of the particular case. Where a trespass was threatened, and particularly where it was being committed, and had been committed in the past, an injunction to restrain the threatened trespass would be appropriate unless there were good reasons to the contrary. The court should not make orders that it did not intend, or would be unable, to enforce. None the less, even in cases where there was little prospect of enforcing the injunction by imprisonment or sequestration, it might be appropriate to grant it if such a grant could have a real deterrent effect on the particular trespassers. The 2004 guidance did not preclude the granting of an injunction to restrain travellers from trespassing on other land. There were no grounds for setting aside the injunction granted in the instant case.
Richard Drabble QC and Marc Willers (instructed by Community Law Partnership, of Birmingham) appeared for the appellant; John Hobson QC and John Clargo (instructed by Whitehead Vizard, of Salisbury) appeared for the respondent.
Sally Dobson, barrister
