Gypsies and Travellers:
It has been the practice over the past several years for local authorities to apply to the courts for a “blanket” borough-wide injunction against travellers setting up unauthorised sites and taking over open land.
The Court of Appeal has now reviewed several such anti-traveller injunctions following a recent case and submissions from a number of local authorities, Liberty and the London Gypsies and Travellers.
The Court of Appeal determined that there are around 38 such injunctions currently in force and concluded that as more are obtained, pressure builds on other authorities to do likewise. And because these injunctions are usually sought against “persons unknown” there are rarely any represented defendants.
In Bromley LBC v Persons Unknown (Liberty, London Gypsies and Travellers, and numerous local authorities, intervening) (2020) as reported by the nearlylegal.co.uk/blog/ Bromley LBC applied for an injunction preventing unauthorised encampments on 171 sites in the borough (fields, car parks etc). It also sought injunctions against waste and fly-tipping.
The Deputy High Court judge had granted the injunctions against waste and fly-tipping but refused it in respect of the encampments. It was the latter decision that was the subject of the appeal.
The Court determined that it is possible to obtain an injunction against “persons unknown” and also that the injunction can be obtained in anticipation of possible future unlawful acts.
However, the question was whether or not it was proportionate in terms of Art.8, ECHR and the Equality Act 2010. In this regard, the court identified following points for consideration, as reported by nearlylegal.co.uk/blog/:
(a) Romany Gypsies and Irish Travellers are a particularly vulnerable minority group whose members routinely experience discrimination and the worst social outcomes of any minority group. A nomadic lifestyle is a central element of their lifestyle and culture. There is a serious shortage of sites for them to use which, in turn, leads to a situation where they end up having to set up unauthorised encampments.
(b) the injunction was, in effect, an “all borough” injunction;
(c) there was no evidence of past criminality by the affected group;
(d) there were no suitable alternative sites provided (or identified) by the local authority;
(e) the cumulative effect of other injunctions obtained by other local authorities in the area;
(f) there had been no proper engagement with the affected groups, no consideration of the needs of elderly (or other similarly vulnerable) members of that group; this one was considered of central importance, with the Court explaining that “… if the appropriate communications, and assessments (like the Equality Impact Assessment) are not properly demonstrated, then the local authority may expect to find its application refused”.
(g) the injunction was sought for a long period of time (5 years, without any built-in review period);
(h) it was possible that the injunction would impact on permitted development rights (a planning law concept – in fairness, the Court is quite keen not to get into the planning law issues);
(i) whether or not the local authority would suffer irreparable harm.
The Appeal Court upheld the Deputy Judge’s decision that it was “disproportionate to grant the injunction” and the Appeal was dismissed.
The onus is now put on local authorities as the only obvious solution to this issue is to provide more designated transit sites for the Gypsy and Traveller community.
The nearlylegal.co.uk/blog/ website states that: The “obvious implication is that an anti-traveller injunction just became a lot harder to obtain if the local authority claimant doesn’t also provide some lawful sites which can be used. Given that most authorities would rather eat nails than provide suitable sites, this should – hopefully – cause some of our leafy shire councils to start to rethink their approach.
“It’s also something that the government will need to consider as part of the ongoing consultation on a proposal to create a new criminal offence of trespass for the purposes of establishing an unauthorised encampment…”