The Court of Appeal provides important guidance on the use of borough-wide injunctions
In May 2019 the High Court refused to grant Bromley Council’s application for a “de facto borough-wide injunction”.
Public confidence in the planning system is undermined if authorities fail to take prompt and decisive action to remedy clear breaches of planning control. However, over-stepping the mark when it comes to enforcement action can prove equally damaging. The watchword here is proportionality. On this issue, (and whilst it was concerned with trespass rather than the enforcement of planning control), the recent litigation relating to borough-wide injunctions aimed at preventing unauthorised Gypsy and Traveller encampments demonstrates the challenges facing authorities who need to balance their responsibilities to the travelling community with the need to protect amenity.
In May 2019 the High Court refused to grant Bromley Council’s application for a “de facto borough-wide injunction”. Bromley had applied for a five-year injunction preventing “persons unknown” from camping on 171 open spaces and car parks. The High Court instead issued a more limited injunction banning fly-tipping and the disposal of waste. In deciding to restrict the ambit of the injunction Deputy High Court Judge Leigh-Ann Mulcahy (the judge) referred to the absence of a proper equality impact assessment (EqIA); the lack of engagement with Gypsy and Traveller families and the failure to have regard to the rights, needs and welfare of Gypsies and Travellers – especially the best interests of children. The judge also made clear her concerns about the impact of these injunctions on the ability of Gypsies and Travellers to pursue their traditional way of life, particularly given the shortage of official sites. This decision was appealed and on 21 January 2020 the Court of Appeal handed down its judgment.
After dismissing the appeal and praising the judge’s cogent judgment and ‘clear eyed’ approach, Coulson LJ went on to provide some wider guidance to assist local authorities who are faced with this dilemma. He first of all highlighted the ‘inescapable tension’ between the Article 8 rights of the Gypsy and Traveller community and the common law of trespass. He saw the ‘obvious solution’ as being the provision of more designated transit sites. He pointed to the fact that none of the national guidance refers to borough-wide injunctions being a satisfactory solution to the problem of unauthorised encampments. He advocated regular engagement, through a process of dialogue and communication with the Gypsy and Traveller community with a view to avoiding injunctions of this type all together. He also highlighted an alternative approach pioneered by Leeds City Council, namely ‘negotiated stopping’ which involves Gypsies and Travellers being allowed to stay on specified sites for a period of time if they agree to certain conditions around behaviour, health & safety and waste. Coulson LJ stressed the importance of regular welfare assessments and up-to-date EqIA’S – if these were absent then he warned that the local authority may expect to find its application refused. He characterised borough-wide injunctions as ‘inherently problematic’ as they give the Gypsy and Traveller community ‘no room to manoeuvre’. In his view, applications for injunctions where only particularly vulnerable sites are targeted for protection would have much higher prospects of success. Finally, turning to the duration of injunctions, he suggested that injunctions for one year, after which there is a review undertaken, represented a ‘sensible’ approach which was preferable to a five-year long order.
The 'obvious solution’ identified by Coulson LJ requires local authorities to identify an appropriate supply of transit sites through the Local Plan process. Whilst this is rarely a straightforward exercise, Coulson LJ’s timely intervention has underlined the importance of local authorities dedicating time and resources to positive planning for the needs of the travelling community.