London Borough of Bromley v Persons Unknown, London Gypsies and Travellers and others [2020] EWCA Civ 12

Introduction

As many readers will know, London Borough of Bromley (‘Bromley’) appealed to the County Court against the refusal of “a de facto boroughwide prohibition of encampment and entry/occupation…in relation to all accessible public spaces in Bromley” ( in the words of Ms Ann-Leigh Mulcahy QC, sitting as a deputy judge of the High Court, when refusing the injunction). Some 38 similar injunctions have been granted by the High Court in recent years. In the Bromley case, London Gypsies and Travellers (LGT) intervened represented by Marc Willers QC and Tessa Buchanan of Garden Court Chambers and CLP (all acting substantially pro bono). This was, therefore, the first case involving such an injunction in which the Gypsy and Traveller community were represented before the High Court. As a result of the success of LGT in getting the wide injunction discharged (an injunction just against fly tipping and depositing waste was granted), this was also the first case to be argued out at appellate level. At Court of Appeal level Liberty and seven other local authorities also intervened.

Lord Justice Coulson, giving the unanimous judgment of the Court of Appeal, stated:

A nomadic lifestyle is an integral part of Gypsy and Traveller tradition and culture. While the majority of Gypsies and Travellers now reside in conventional housing, a significant number….live in caravans in accordance with their traditional way of life…..

In the UK, there is a long-standing and serious shortage of sites for Gypsies and Travellers…This lack of housing inevitably forces many Gypsies and Travellers onto unauthorised encampments (paras 5&6).

He continued:

First, these injunctions have had the effect of forcing the Gypsy and Traveller community out of those boroughs which have obtained injunctions, thereby imposing a greater strain on the resources of those boroughs or councils which have not yet applied for such an order. Secondly, they have created an understandable concern amongst those local authorities who have not yet obtained such injunctions to seek them forthwith (para 11).

He went on to quote from the High Court judgment as follows:
Whilst there is no general entitlement to encamp or reside on public or recreational spaces and it is a matter for the planning system to ensure suitable provision is made for Gypsies and Travellers, I am told that there are no authorized transit sites available for nomadic Gypsies and Travellers anywhere in London, including Bromley, which then raises the question of where they are to go (para 16).

Dismissal of the appeal

Lord Justice Coulson, with whom Lord Justice Haddon-Cave and Sir Ernest Ryder, the Senior President of Tribunals, agreed, dismissed Bromley’s appeal:

• Ms Mulcahy had been “quite right” to be concerned about the width of the injunction being sought by Bromley, and to regard that as a highly relevant factor in the proportionality exercise.
• The absence of any substantial evidence of past criminality (leaving aside fly-tipping) was a factor that was relevant to the proportionality exercise:

The fact that the sort of criminal and quasi-criminal conduct which was the basis of the injunctions in the Harlow cases was absent here was not unimportant, because it meant that the mischief at which the injunction was aimed was simply entry and occupation. Beyond that, the weight to be given to this factor was entirely a matter for the judge (para 67).

• …the absence of any transit or alternative sites was a very important factor militating against the imposition of the boroughwide injunction (para74).
• He agreed that the cumulative effect of other injunctions was a material consideration but the weight to be afforded to it was a matter for the judge.
• The particular factual criticisms that the judge made of Bromley, including a failure to comply with its public sector equality duty (PSED) and its failure to carry out an equality impact assessment (EIA), were plainly open to her on the evidence:

Regardless of whether the failure to undertake an EIA was a specific breach of duty on the part of the appellant, this was a case where the judge found that, not only was there no EIA in fact, but there had been no proper engagement with the Gypsy and Traveller community at all. There was therefore a failure by the appellant to comply with its PSED (para81).

• Bromley had never suggested a shorter period than the five-year term sought, which the judge had concluded was unduly long and therefore disproportionate:

She was certainly entitled to conclude that the five-year term was, for a variety of reasons, much too long (para 89).

• The judge was entitled to reach the view, based on the evidence before her, that Bromley had not dealt in a satisfactory way with the issue that the injunction would potentially cut across permitted development rights (by reference back to schedule 1 of the Caravan Sites and Control of Development Act 1960, the general permitted development order (GPDO) grants deemed planning permission for the stationing of a single caravan on land for not more than 2 nights, or not more than 3 caravans on a larger site, or use of land as a caravan site for a Travelling Showman).

• The judge was right to apply the test of irreparable harm as a matter of law.

Dismissing the appeal, Lord Justice Coulson said Ms Mulcahy had considered all of the relevant factors when undertaking her proportionality exercise.

Guidance

Very importantly, the Court of Appeal then gave guidance to local authorities on how to approach such injunctions. In the guidance Lord Justice Coulson said, amongst other things, that:

• The obvious solution to the inescapable tension between the article 8 rights of the Gypsy and Traveller community, and the common law of trespass, was the provision of more designated transit sites:

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 (para 100).

• That [Government] guidance presupposes that there will be unauthorised encampments, and does not suggest, save as a last resort, that such encampments should be closed down, unless there are specific reasons for doing so. There is no hint in the guidance that it is or could be a satisfactory solution to seek a wide injunction of the sort in issue in this case: indeed, on one view, much of that guidance would be irrelevant if the answer was a boroughwide prohibition on entry or encampment (para 101).

• Through a process of dialogue and communication, and following the copious guidance…, it should be possible for the need for this kind of injunction to be avoided altogether. ‘Negotiated stopping’ is just one of many ways referred to in the English caselaw in which this might be achieved (para 102).

• If a local authority considers a quia timet injunction may be the only way forward, then it will still be of the utmost importance to seek to engage with the Gypsy and Traveller community before seeking any such order if time and circumstances permit. Welfare assessments should be carried out, particularly in relation to children. An up-to-date EIA will always be important…In my view, if the appropriate communications and assessments (like the EIA) are not properly demonstrated, then the local authority may expect to find its application refused (para 103).

Lord Justice Coulson set out the particular considerations that should be at the forefront of a local authority’s mind when considering whether a quia timet injunction (i.e. an injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced) should be sought against persons unknown and where the proposed injunction is directed towards the Gypsy and Traveller Community. He stated, at para 104:

a) Injunctions against persons unknown are exceptional measures because they tend to avoid the protections of adversarial litigation and article 6 ECHR [the  right to a fair hearing]
b) In order for proportionality (or an equilibrium) to be met in these cases, it is important that local authorities understand and respect the Gypsy and Traveller community’s culture, traditions and practices, in so far as those factors are capable of being realised in accordance with the rule of law. That will normally require some positive action on the part of the authority to consider the circumstances in which the article 8 rights [the right to respect for private and family life and home] of the members of those communities are ‘lived rights’ i.e. are capable of being realised.
c) The vulnerability and protected status of the Gypsy and Traveller community, as well as the integral role that the nomadic lifestyle plays as part of their ethnic identities, will be given weight in any assessment as to the proportionality of an injunction or eviction measure.
d) The equitable doctrine of ‘clean hands’ may require local authorities to demonstrate that they have complied with their general obligations to provide sufficient accommodation and transit sites for the Gypsy and Traveller community.
e) Common sense requires the court, when carrying out the proportionality exercise, to have careful regard to the cumulative effect of other injunctions granted against the Gypsy and Traveller community.

He said that in his view boroughwide injunctions were “inherently problematic” as they gave the Gypsy and Traveller Community “no room to manoeuvre” (para 105).

On the question of duration of an injunction, he stated:
I consider that it is – without more – potentially fatal to any application for a local authority to seek a combination of a borough-wide injunction and a duration of a period as long as five years (para 106).

He added that credible evidence of criminal conduct in the past, and/or of likely risks to health and safety, were important if a local authority wished to obtain a wide injunction (para 107).

He summarised the main points as follows at para 108:

a) When injunction orders are sought against the Gypsy and Traveller community, the evidence should include what other suitable and secure alternative housing or transit sites are reasonably available. This is necessary if the nomadic lifestyle of the Gypsy and Traveller community is to have effective protection under article 8 and the Equality Act.
b) If there is no alternative or transit site, no proposal for such a site, and no support for the provision of such a site, then that may weigh significantly against the proportionality of any injunction order.
c) The submission that the Gypsy and Traveller community can “go elsewhere” or occupy private land is not a sufficient response, particularly when an injunction is imposed in circumstances where multiple nearby authorities are taking similar action.
d) There should be a proper engagement with the Gypsy and Traveller community and an assessment of the impact …an injunction might have, taking into account their specific needs, vulnerabilities and different lifestyle. To this end, the carrying out of a substantive EIA, so far as the needs of the affected community can be identified, should be considered good practice, as is the carrying out of welfare assessments of individual members of the community (especially children) prior to the initiation of any enforcement action.
e) Special consideration is to be given to the timing and manner of approaches to dealing with any unlawful settlement and as regards the arrangements for alternative pitches or housing.

Most powerfully, he concluded at para 109:

Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.

Comments

Commenting on the judgment, Debby Kennett, Chief Executive of LGT, stated:
We are extremely pleased with this result and proud to have been involved in such an important case which advances the recognition and protection of the nomadic way of life in the UK. The judgment sets a high standard for councils seeking injunctions and stresses the need to put in place adequate and safe provision. We are keen to work with councils to explore alternatives to evictions and injunctions, such as negotiated stopping.

Very importantly, the Court of Appeal has stated in this judgment that an injunction which prevents Gypsies and Travellers from stopping at all in a defined part of the UK comprises a potential breach of both the European Convention on Human Rights and the Equality Act. Given that finding, it is difficult to see how the Government can possibly justify its proposal, which is currently out to consultation, to criminalise trespass (see at:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/844954/Unauthorised_Encampments_-_consultation_paper.pdf ). See further below. A link to the judgment can be found on our website: www.communitylawpartnership.co.uk/news/urgent-press-release-injunctions-criticised-in-landmark-ruling