Public Authorities: Beware “Boroughwide” Injunctions

In the case of Mayor and Burgess of the London Borough of Bromley v Persons Unknown and others [2020] EWCA Civ 12 (“the Bromley Case”), the Court of Appeal held that the High Court correctly decided that a final “boroughwide” injunction prohibiting the gypsy and traveller community (“GTC”) encampments was disproportionate.

Obtaining injunctions successfully

Following the Bromley Case, in order for a public authority to obtain an injunction from court, there are certain requirements which must be met. Therefore, if a public authority is seeking to apply for an injunction against “persons unknown” who include persons from the gypsy and traveller community it should first:

• Ensure that it has engaged with the GTC;
• Carry out a substantive equality impact assessment (“EIA”) and welfare assessment;
• Seek to provide an alternative site that the GTC can move to;
• Limit the injunction to particularly vulnerable sites and avoid broad “boroughwide” injunctions;
• Limit the injunction to a period of one year with a review after that one year period;
• Gather evidence of criminal conduct or likely risks to health and safety as a result of the GTC encampment;
• Ensure that effective notice of the injunction to persons unknown can be given; and
• The terms of the injunction must be clear so that the persons unknown know what they must not do.

If the above is not complied with, it is very likely that any injunction application would be refused.

Tensions: Rights of the gypsy and traveller community vs public authorities’ rights under the common law of trespass

Where a public authority’s site is being occupied by the gypsy and traveller community a number of factors must be considered before seeking an injunction to move the GTC to another location and/or prevent them from returning to the same site. This is because, the GTC is a protected minority under the Equality Act 2010 as public authorities must have due regard to the need to eliminate discrimination, harassment and victimisation. Additionally, the gypsy and traveller community is also protected by Article 8 of the European Convention of Human Rights as case law has found that the occupation of a caravan was an integral part of the GTC’s ethnic identity and right to respect for private and family life.

Tensions therefore clearly exist between these rights of the GTC and the rights of public authorities to seek to regain occupation of their sites where such sites are being trespassed. These tensions were considered in the Bromley Case.

The Facts

The Bromley Case involved an application by the London Borough of Bromley for an injunction which prevented the GTC from occupying all public spaces in the borough of Bromley including parks, car parks, recreation grounds and other open spaces (excluding highways and cemeteries).

The Decision

The High Court refused the London Borough of Bromley’s application for a final injunction because it considered the injunction to be disproportionate. The Court of Appeal agreed with this decision because:

• The geographical range of the injunction was very broad as it was “boroughwide” and covered all public spaces in the borough.
• There was no substantial evidence of any local criminality committed by the GTC.
• The London Borough of Bromley had not proposed any alternative site for the gypsy and traveller community. If every public authority obtained an injunction, the GTC would have nowhere to go.
• The London Borough of Bromley had not conducted an EIA and failed to comply with its public authority duty to have due regard to eliminate discrimination, harassment and victimisation.
• The 5 year term to the injunction proposed was too long.
• The London Borough of Bromley did not show that the injunction would not cut across permitted development rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 which allowed limited occupation of land by caravans.

In light of the decision and the guidance provided by the court, it seems that the court is looking to find a balance between the rights of the gypsy and traveller community and also granting injunctions only where it considers that an injunction would be proportionate in the circumstances. It is therefore important that public authorities take the steps highlighted above before seeking an injunction to ensure that the court would consider such an injunction as being proportionate.

If you need legal advice on this matter or other commercial property dispute matters, contact our team.