London Borough of Bromley v Persons Unknown and London Gypsies & Travellers –  EWHC 1675, 17 May 2019
The London Borough of Bromley (LBB) sought a final injunction against ‘persons unknown prohibiting unauthorised occupation and/or deposition of waste’ on 171 parcels of land owned or managed by them. The application for an injunction was clearly targeted wholly or mainly at Gypsies and Travellers. This was in a context where over 30 local authorities throughout England had already obtained such injunctions.
LBB had obtained an interim injunction on 15 August 2018. London Gypsies and Travellers (a registered charity) were given permission to intervene in the case, so that the Gypsy and Traveller community could be represented at the final hearing which was heard by Leigh-Ann Mulcahy QC (sitting as a Deputy Judge of the High Court) on 15 May 2019.
The Judge delivered her judgment on 17 May 2019. After analysing relevant case law, she set out the key issues:
…the real issue for me to determine is whether the order sought is proportionate to the legitimate aim sought to be achieved. …I must also consider whether the terms of the injunction correspond to the threatened unlawful conduct and are not so wide that they prohibit lawful conduct, whether they are sufficiently clear and precise to enable persons potentially affected to know what they must not do, and whether the injunction has clear geographical and temporal limits (para 58).
The question of transit site provision was addressed:
Here there is no transit site and there is no proposal for a transit site. Further, it would seem that Bromley is not supporting the provision of a transit site in Bromley…(para 62).
The Judge continued:
Mr Smyth’s answer [to the lack of transit site provision] …was that the Gypsy and Traveller community can occupy private land or they can go elsewhere outside the Borough. I do not regard transferring the undoubted problems the local authority has experienced to private landowners, who would themselves be entitled to seek possession orders evicting such occupants from their land, as a solution. The ‘going elsewhere’ option … transfers the difficulties to another borough, who will then in turn invoke and seek to rely on the grant of the previous injunction to seek theirs on a ‘me too’ approach. The problem … is now the cumulative effect of all these injunctions which are reaching significant numbers and continue to be applied for by new local authorities as the problem gets transferred into their area, which means there is now more force in the argument that this is a relevant factor to be considered in deciding whether to grant the relief sought (para 63).
The Judge addressed LBB’s failure to undertake any equality impact assessment:
…in the claim before me there is no evidence that any proper equality impact assessment(s) were carried out, whether in form or indeed in substance. There appears to have been no engagement with Gypsy and Traveller families. I have already addressed the fact that there is no evidence of any intention to provide a transit site. I am simply told that consideration was given to the fact that the Gypsy and Traveller community would be unable to live temporarily in Bromley and that it was recognised that this would cause inconvenience and difficulty, but that the stronger argument was in favour of protecting public space (para 65).
The Judge also addressed the need for welfare assessments:
It is also not clear on the evidence how any infringements of the injunction would be dealt with in future in relation to the conduct of welfare assessments as occurs at present in relation to the existing statutory scheme of enforcement pursuant to Government guidance. From the one recent incident, it does not appear…that any welfare assessment was carried out. It may be that none was needed, but this is again a factor that required and requires proper consideration bearing in mind the injunction is effectively replacing the existing system of statutory enforcement powers and the government guidance relating to them with a court-imposed prohibitory injunction, which is subject to the sanction of committal for breach or contempt (para 67).
Having done so the Judge held that LBB’s decision to apply for an injunction to prohibit unauthorised camping on land it owned and managed was disproportionate:
In my view, the decision to apply for an injunction was not made having had regard to all the material considerations and did not properly pose and approach the article 8(2) questions as to necessity and proportionality or indeed the need to have regard to the best interests of children (and there are clearly children who are going to be affected by the policy that is being adopted) (para 68).
The Judge then noted that there are permitted development rights (PDR) under the Town and Country Planning Act 1990 and the General Permitted Development Order 2015, which stipulate that encampments by caravans for short periods in certain circumstances on land will not breach planning control; a point which seemed to undermine one of LBB’s main arguments:
Whilst [PDR] cannot be exercised if the landowner does not permit their exercise, the issue arises as to when a trespass is committed. Is it at the point when a person enters the land for the purpose of exercising those rights or when that person is told the landowner does not permit that exercise and they then fail to leave? This point was raised by the intervenor but, in my view, was not satisfactorily answered by [LBB]. …It is another point it seems to me the claimant needed to consider in order to ensure that the order sought was limited to unlawful conduct and was not proscribing lawful conduct (para 71).
In conclusion, the Judge decided that the application for an injunction to prohibit unauthorised camping on LBB’s land should be dismissed but that there was no reason not to grant an injunction prohibiting fly tipping and the disposal of waste on LBB’s land.
LBB have now appealed to the Court of Appeal. London Gypsies and Travellers and London Boroughs of Merton, Kingston-upon-Thames and Sutton will all be represented at the appeal hearing, which is to take place on 3 – 4 December 2019.
Marc Willers QC and Tessa Buchanan of Garden Court Chambers and Chris Johnson of Community Law Partnership act for London Gypsies and Travellers and all acted pro bono at the High Court stage.