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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The London Borough of Bromley v Persons Unknown (Rev 3) [2020] EWCA Civ 12 (21 January 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/12.html Cite as: [2020] RTR 24, [2020] WLR(D) 35, [2020] HRLR 6, [2020] 4 All ER 114, [2020] EWCA Civ 12, [2020] PTSR 1043, [2020] JPL 852 |
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ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Ms Leigh-Ann Mulcahy QC
(Sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE COULSON
and
LORD JUSTICE HADDON-CAVE
____________________
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF BROMLEY | Appellant |
|
| - and - |
||
PERSONS UNKNOWN | Respondents |
|
| - and – |
||
LONDON GYPSIES AND TRAVELLERS |
First Intervener |
|
| - and – |
||
THE LONDON BOROUGHS OF MERTON AND SUTTON AND THE ROYAL BOROUGH OF KINGSTON UPON THAMES |
Second Intervener |
|
| - and – |
||
| LIBERTY |
Third Intervener |
|
| - and – |
||
HARLOW DISTRICT COUNCIL, BARKING & DAGENHAM LONDON BOROUGH COUNCIL, REDBRIDGE LONDON BOROUGH COUNCIL & THURROCK COUNCIL |
Fourth Intervener |
____________________
London
Borough
of
Bromley
Corporate Services) for the Appellant
The Respondents did not appear and were not represented
Mr Marc Willers QC and Ms Tessa Buchanan (instructed by The Community Law Partnership) for the First Intervener
Mr Steven Woolf (instructed by South
London
Legal Partnership) for the Second Intervener
Mr Jude Bunting (written submissions only) for the Third Intervener
Ms Caroline Bolton (written submissions only) for the Fourth Intervener
Hearing Date: 3 December 2019
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
LORD JUSTICE COULSON:
1. INTRODUCTION
boroughwide
prohibition of encampment and upon entry/occupation…in relation to all accessible public spaces in
Bromley
except cemeteries and highways". Although the stated target of the injunction was "
persons
unknown",
it was common ground that the injunction was aimed squarely at the Gypsy and Traveller community. The points arising from the appeal itself are of relatively narrow compass, but all parties were anxious that, in the light of the recent spate of similar cases, this court should provide some guidance as to how local authorities might address this issue in future.
very
carefully at the orders which they were being asked to make, I do not doubt that, in an adversarial system, there can be no substitute for reasoned submissions from those against whom an injunction is directed.
2. THE FACTUAL BACKGROUND
vulnerable
minority. They constitute separate ethnic groups protected as minorities under the Equality Act 2010 (see Moore and Coates
v
Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin)), and are noted as experiencing some of the worst outcomes of any minority across a broad range of social indicators (see, for example, Department for Communities and Local Government, Progress report by the ministerial working group on tackling inequalities experienced by Gypsies and Travellers, 2012, and Equality and Human Rights Commission, England's most disadvantaged groups: Gypsies, Travellers and Roma).
v
United Kingdom (2001) 33 EHRR 18, the court held at [73]:
"The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures affecting the applicant's stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition."
Bromley
for many years. Traditionally they had done so:
"... whilst working in and travelling through theBorough.
Historically, Gypsies moved between farms in
Bromley
and Kent picking fruit and
vegetables
in the summer, hops and potatoes in early autumn. [However] as traditional forms of work diminished, travelling patterns changed both nationally and locally. More recently Irish Travellers have also
visited
the
Borough."
Bromley
had also had a history of unauthorised encampments, albeit in relatively small numbers. In 2016 there were eleven such unauthorised encampments; in 2017 there were twelve; and in 2018, prior to the application for an interim injunction in the middle of August 2018, there were again twelve. The average length of stay was between five days and two weeks.
Bromley
or anywhere else in Greater
London.
The court was told that the closest transit site is in South Mimms in Hertfordshire. As to permanent pitches in
Bromley,
in 2016 there was a shortage of between ten to fourteen pitches with a recognised need for a further six by 2021. Despite all that, Ms Slater, the appellant's acting planning policy manager, has previously suggested that there was insufficient need for a transit site in
Bromley.
v
Stokes and others [2015] EWHC 953 (QB). The prohibition on encampments in that
borough,
and the subsequent perception that the injunction had been effective, led to a large number of similar injunctions in 2017-2019. Most of these injunctions, such as the injunction granted in the recent case of
London
Borough
of Kingston Upon Thames
v
Persons
Unknown
[2019] EWHC 1903, as well as the interim injunction granted in this case, did not identify any named defendants. The second and fourth interveners in this case all obtained similar injunctions following what were uncontested hearings.
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.
Bromley:
139 parks, recreation grounds or open spaces, and 32 public car parks. The 171 sites amounted to all the public spaces in the
borough:
they excluded only highways and cemeteries, and that seemed to be because there had not been a particular problem with incursions on those sites in the past.
Bromley
"did not suffer particularly from gypsy and traveller incursions". At best it appears that, prior to the original application in August 2018, there had been an increase in the frequency with which the incursions occurred (again, see [24] of the judgment).
various
arguments, the judge refused to grant the final injunction sought in respect of entry and encampments. She did grant a wide injunction in relation to fly-tipping and waste.
3. THE JUDGMENT
boroughs
in
London
and the South East obtaining such injunctions ([6]); the fact that there were 34 injunctions nationwide ([9]); and the cumulative effect of such injunctions ([11] – [12]). At ([13] – [15]) the judge dealt with the first intervener's argument that the granting of widespread injunctions was in danger of supplanting the existing statutory scheme, parts of which she set out. It does not appear that she reached any conclusions on that specific aspect of the case.
"16. It is important to recognise that the injunction that is being sought, and the injunctions that have been sought and granted in other cases, are not limited to preventing fly tipping, and no one, including the intervenor, is suggesting that this kind of behaviour should not be prevented by legal means if necessary. The injunctions are not specifically addressed to antisocial behaviour or criminal acts. They are focused on prohibiting (with, of course, the penal sanction of potential committal to prison if breached) anyone from setting up an encampment without permission of the local authority and the landowner and entering and/or occupying land for residential purposes, and bringing onto the land any caravans or mobile homes and bringingvehicles
onto the land in question for the purpose of disposal of waste or materials.
17. Mr Smyth accepted during the course of argument that the order that he was seeking amounted, on at least a de facto basis, to aboroughwide
exclusion save that Gypsies and Travellers could still go onto private land, cemeteries and highways which were not subject to the order. There is clearly a potential issue when one takes the cumulative effect of all the injunctions granted and potentially to be granted in future into account, as to whether Gypsies and Travellers will be prevented from exercising what is recognised in both UK equalities law and human rights law to be their right to pursue their traditional nomadic lifestyle. I am told that three-quarters of the 30,000 or so Gypsies or Travellers in
London
are in permanent accommodation, and on the evidence there is some provision in that regard in
Bromley,
albeit with a shortfall based on need, but one-quarter of that number are nomadic and travel rather than remaining in one place. 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 authorised transit sites available for nomadic Gypsies and Travellers anywhere in
London,
including
Bromley,
which then raises the question of where they are to go."
Bromley
(and therefore covered by the separate claim in trespass). At the hearing there had been a debate about whether the appellant would be content with an injunction which carved out any permitted development rights. The judge recorded that, through counsel, the appellant had made plain that the proposal would constitute a "second rate" injunction, "and not something that the local authority would wish to have".
Bromley
owned). She identified some of the relevant authorities at [33] – [38]. She dealt with the particular requirements of an application for an injunction against
persons
unknown
at [39] – [42]. She addressed the issue of permitted development rights which related both to the sites owned by the local authority and the approximately one-quarter of the sites which were not. She then referred at [46] – [47] to the appellant's public sector equality duty ("PSED") and Article 8 of the European Convention on Human Rights ("the Convention").
persons
unknown.
She concluded that it was impossible in this case to name the
persons
who were likely to commit the conduct which it was sought to restrain. Similarly, at [49] the judge was satisfied that it was possible to give effective notice of the injunction to those affected by it. Finally, on this aspect of the application, the judge concluded at [51] that there was "a strong probability" that, unless restrained by an injunction, the defendants would act in breach of the appellant's rights.
"54. The key question is the second part of the test which has been expressed slightly differently in different cases. InVastint
Leeds BV
v
![]()
Persons
![]()
Unknown
[2018] EWHC 2456 (Ch) it was expressed as follows:
'Secondly, if the defendant did an act in contravention of the claimant's rights, would the harm resulting be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at the time of actual infringement of the claimant's rights) to restrain further occurrence of the acts complained of, a remedy of damages would be inadequate?'
55. There was some disagreement between counsel as to whether irreparable harm was actually required as a matter of law by the authorities. Clearly, substantial harm has been caused which is sufficient, in myview,
to amount to grave harm to local residents as a result of their inability to access and use public and recreational areas they are entitled to access and use [news] and the environmental impact in the respects I have already outlined, together with the clean-up costs which are borne by the
Bromley
taxpayer.
56. It is a more difficult question whether the harm can be said to be "irreparable", if that is a requirement, since the damage, for example, to points of entry and so on can be repaired, albeit at a cost in terms of time and money. It could be said that the damage to community relations and the distress to residents is irreparable."
Accordingly, the judge found that all the necessary ingredients for a quia timet injunction against
persons
unknown
were in place, and that what remained was the discretionary exercise of weighing up whether or not it was proportionate to grant such an injunction in all the circumstances of the case.
various
ways. I use those 7 factors to address the bulk of the appeal in Section 6 of this Judgment.
a) The wide extent of the relief sought and its geographical compass, amounting to "a de factoboroughwide
prohibition of encampment and upon entry/occupation for residential purposes… in relation to all accessible public spaces in
Bromley
except cemeteries and highways" [59].
b) The fact that the injunction was not aimed specifically at prohibiting antisocial or criminal behaviour, but just entry and occupation [60].
c) The lack of availability of alternative sites. As to this important factor, the judge said:
"61. However, one factor that is clearly relevant to my consideration, as was made clear in the South Buckinghamshire case by Simon Brown LJ, is the availability of suitable alternative sites. I note this was an important factor that influenced the decision of Jefford J in the Wolverhampton City Councilv
![]()
Persons
![]()
Unknown
[2018] EWHC 3777 QB case when granting an injunction similar to the one sought here. At paragraph 10 she makes clear that she was concerned but was reassured that the result of the injunction would not be a
boroughwide
prohibition on Traveller sites in Wolverhampton because there were other sites that could be occupied, not all sites were subject to the injunction, and the local authority had taken steps to consider and was seeking to put in place the provision of a transit site. She granted the injunction for a period of three years but with an annual review at which the council would be required to provide evidence of the steps it had actually taken to provide the said transit site.
62. That is not the case here. Here there is no transit site and there is no proposal for a transit site. Further, it would seem thatBromley
is not supporting the provision of a transit site in
Bromley,
at least based on Ms Slater's evidence at the examination in public."
d) The cumulative effect of other injunctions. The judge said:
"63. Mr Smyth's answer to this was that the Gypsy and Traveller community can occupy private land or they can go elsewhere outside theBorough.
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 (which is apparently what has happened following the grant of an interim injunction) 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, as I indicated before, 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."
e)Various
specific failures on the part of the appellant, as the judge found, in respect of its duties under the Convention and in particular, its PSED. The judge found that, in contrast to the approach taken by other
boroughs
in other cases, there was no evidence that any proper equality impact assessment ("EIA") had been carried out "whether in form or indeed in substance" [65]. She found in the same paragraph that there had been no engagement with Gypsy and Traveller families. She also found that it was not clear how any infringements of the injunction would be dealt with in future and that, from the one recent incident (at Leaves Green, first referred to at [27]), it did not appear that any welfare assessments had been carried out [67]. This led to her conclusion on this topic in the following terms:
"68. In myview,
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)."
f) The length of time – 5 years – for which the proposed injunction would be in force. The judge found that this was "an unduly wide and disproportionate temporal limit" [69].
g) The issue of permitted development rights had not been satisfactorily addressed by the appellant. The judge reiterated at [70] the fact that the appellant had told her that it did not want an injunction which excluded lawfully exercised permitted development rights.
4 THE GROUNDS OF APPEAL
various
elements of these injunction cases which had never been considered at appellate level. The judge gave permission on two bases:
"1. Although the proposed appeal against the refusal to grant an injunction prohibitingpersons
![]()
unknown
from unauthorised occupation of public land is an appeal against the exercise of a discretion and an assessment of proportionality, in circumstances where (a) it appears that injunctions that are wider even than in this case have previously been granted in a number of cases without being held to be disproportionate, and (b) there is room for legitimate differences of
view
as to how local authorities should strike the necessary 'fair balance' between the Art. 8 ECHR rights of gypsies and travellers on the one hand and the rights of the residents who have been adversely affected by the existence of unauthorised encampments on the other, the appeal has a real prospect of success pursuant to CPR 52.6(1)(a).
2. There is in any event a compelling reason for an appeal to be heard pursuant to CPR 52.6(1)(b). Some 34 injunctions to date have been granted by the courts to local authorities in similar terms (all apparently undefended). This is the first case which has had the benefit of a formal intervention, evidence and argument by leading and junior counsel on behalf of the gypsy and traveller community. The cumulative effect of such injunctions now merits consideration in circumstances where it is common ground that their grant has the effect of displacing the difficulties into the area of a nearby local authority which then applies for a similar injunction relying on those difficulties and the previous grant of such relief. Further, injunctive relief, if it continues to be sought and granted as it has been to date, would appear to carry a risk of supplanting the existing statutory scheme for the removal of gypsies and travellers supported by government guidance. In addition, the injunctions which have previously been granted pursuant to s.187B Town & Country Planning Act 1990 arguably proscribe the lawful exercise of permitted development rights. All these matters appear to me to merit appellate consideration."
a) Ground 1: The judge erred in finding that the order sought was disproportionate;
b) Ground 2: The judge erred in setting too high a threshold for the harm caused by the threat of trespass;
c) Ground 3: The judge erred in approach to the cumulative effect issue;
d) Ground 4: The judge was wrong to conclude that the appellant had failed to discharge its PSED;
e) Ground 5: The judge erred in ruling that the issue of 'permitted development' rights had not been satisfactorily addressed.
On one
view,
only Grounds 1 and 3 were covered by the judge's grant of permission. In addition, under Ground 1, the written grounds of appeal only identified two ways in which it was said that the judge erred in finding that the order sought was disproportionate, whilst Mr Kimblin's skeleton argument, and his oral submissions, asserted numerous other ways in which it was said that the judge failed to carry out the proportionality test correctly.
5 THE RELEVANT LAW
5.1 General
Persons
Unknown;
ii) Quia timet injunctions to prevent trespass; iii) Article 8 and the Gypsy and Traveller community; and iv) The relevant statutory and other guidance relating to the Gypsy and Traveller community.
5.2 Quia Timet Injunctions Against
Persons
Unknown
persons
unknown
has been recently considered by this court in Joseph Boyd and another
v
Ineos Upstream Ltd and 9 others [2019] EWCA Civ 515. That was a case involving protesters concerned about the fracking process. Having said at [32] that it was not easy to formulate the broad principles on which an injunction against
unknown
persons
can properly be granted, Longmore LJ "tentatively" framed the requirements at [34] in the following way:
"1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;
2) it is impossible to name thepersons
who are likely to commit the tort unless restrained;
3) it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;
4) the terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;
5) the terms of the injunction must be sufficiently clear and precise as to enablepersons
potentially affected to know what they must not do; and
6) the injunction should have clear geographical and temporal limits."
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
personam.
They adjudicate disputes between the parties to an action and make orders against those parties only" (A-G
v
Newspaper Publishing Plc [1988] Ch 333, per Sir John Donaldson MR at [369C]). This allows disputes to be decided fairly: a defendant is served with a claim, obtains disclosure of the evidence against them, and can substantially present their case before the Court (Jacobsen
v
Frachon (1927) 138 LT 386, per Atkins LJ at [393]). This allows arguments to be fully tested.
persons
unknown,
particularly on a final basis, in circumstances where they are not there to put their side of the case.
view,
the approach which the judge in the present case adopted, that what was required was "irreparable harm", was in accordance with authority:
a) In Fletcherv
Bealey (1884) 28 Ch 688, Pearson J said that "it must be proved that it [the apprehended damage] will be irreparable…"
b) In Lloydv
Symonds [1998] EWCA Civ 511, Chadwick LJ stated that "such an injunction should not, ordinarily, be granted unless the plaintiff can show a strong probability that, unless restrained, the defendant will do something which will cause the plaintiff irreparable harm – that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages."
c) InLondon
![]()
Borough
of Islington
v
Elliott [2012] EWCA Civ 56, Patten LJ agreed with and approved both Fletcher
v
Bealey and Lloyd
v
Symonds.
d) Finally, as already noted, inVastint
Leeds BV
v
![]()
Persons
![]()
Unknown
[2018] EWHC 2456, (a case about illegal raves) Marcus Smith J said at paragraph 31 (3) that the relevant question was:
"Would the harm resulting be so grave and irreparable that, notwithstanding the grant of an immediate injunction… to restrain further occurrence of the acts complained of, a remedy of damages would be inadequate?"
5.3 Quia Timet Injunctions to Prevent Likely Trespass
v
Meier and Another [2009] UKSC 11 was concerned with travellers who set up camp on woodland owned by the Forestry Commission and who, on the evidence, if moved on from that camp, would move to another part of the same woodland. The Supreme Court upheld the Court of Appeal's decision to grant an injunction (against some named defendants and some
persons
unknown)
restraining them from entering any other part of the woodland (including those parts which had never been the subject of an encampment). Lady Hale said:
"38. The main objection to extending the order to land some distance away from the parcel which has actually been intruded upon is one of natural justice. Before any coercive order is made, theperson
against whom it is made must have an opportunity of contesting it, unless there is an emergency. In the case of named defendants, such as the appellants here, this need not be an obstacle. They have the opportunity of coming to court to contest the order both in principle and in scope. The difficulty lies with "
persons
![]()
unknown".
They are brought into the action by the process of serving notice not on individuals but on the land. If it were to be possible to enforce the physical removal of "
persons
![]()
unknown"
from land on which they had not yet trespassed when the order was made, notice would also have to be given on that land too. That might be thought an evolution too far. Whatever else a possession order may be or have been, it has always been a remedy for a present wrongful interference with the right to occupy. There is an intrusion and the
person
intruded upon has the right to throw the intruder out.
39. Thus, while I would translate the modern remedy into modern terms designed to match the remedy to the rights protected, and would certainly not put too much weight on the word "recover", I would hesitate to apply it to quite separate land which has not yet been intruded upon. The more natural remedy would be an injunction against that intrusion, and I would not be unduly hesitant in granting that. We should assume that people will obey the law, and in particular the targeted orders of the court, rather than that they will not. We should not be too ready to speculate about the enforcement measures which might or might not be appropriate if it is broken. But the main purpose of an injunction would be to support avery
speedy possession order, with severely abridged time limits, if it is broken.
40. However, I would not see these procedural obstacles as necessarily precluding the "incremental development" which was sanctioned in Drury. Provided that an order can be specifically tailored against known individuals who have already intruded upon the claimant's land, are threatening to do so again, and have been given a proper opportunity to contest the order, I see no reason in principle why it should not be so developed. It would be helpful if the Rules provided for it, so that the procedures could be properly thought through and the forms of order properly tailored to the facts of the case. The main problem at the moment is the "scatter-gun" form of the usual order (though it is not one prescribed by the Rules)."
"58. Particularly with the advent of the Civil Procedure Rules, it is clear that judges should strive to ensure that court procedures are efficacious, and that, where there is a threatened or actual wrong, there should be an effective remedy to prevent it or to remedy it. Further, as Lady Hale points out, so long as landowners are entitled to evict trespassers physically, judges should ensure that the more attractive and civilised option of court proceedings is as quick and efficacious as legally possible. Accordingly, the Court of Appeal was plainly right to seek to identify an effective remedy for the problem faced by the Commission as a result of unauthorised encampments, namely that, when a possession order is made in respect of one wood, the travellers simply move on to another wood, requiring the Commission to incur the cost, effort and delay of bringing a series or potentially endless series of possession proceedings against the same people."
v
Stokes and Others [2015] EWHC 953 (QB); Tendring District Council
v
Persons
Unknown
[2016] EWHC 2050 (QB); Harlow District Council
v
McGinley and Others [2017] EWHC 1851 (QB); Wolverhampton City Council
v
Persons
Unknown
[2018] EWHC 3777 (QB); Waltham Forest
London
Borough
Council
v
Persons
Unknown
[2018] EWHC 2400 (QB);
London
Borough
of Sutton
v
Persons
Unknown
[Unreported] 7 November 2018;
London
Borough
of Kingston Upon Thames [2019] EWHC 1903; and
London
Borough
of Havering
v
Stokes and Others [2019] EWHC 3006 (QB). As I have said, the one common denominator in relation to all of these decisions is that, although it was the target of all the injunctions sought, the Gypsy and Traveller community was not legally represented.
a) In Harlowv
Stokes, Patterson J described the scale of the problem (109 encampments) at [3] and [4]. She identified that there would be ten new sites for Gypsies and Travellers in the
borough
by 2018 at [4] and [8]. She noted the liaison meetings with the Gypsy and Traveller community at [6]. She also identified the graphic evidence of criminality and the risks posed to public health and safety [10] and the fact that assessments had been offered and not taken up [12]. It was therefore a case where the proportionality assessment clearly favoured the granting of the interim injunction.
b) In the Wolverhampton case, Jefford J was troubled about the width of the injunction sought and, in particular, whether there were other council-owned sites that could still be occupied. She was also concerned about the need for a transit site. Positive evidence on both these points had a major impact on her decision:
"10. It is, nonetheless, necessary for me to consider whether it is just and proportionate to grant such an injunction. One matter that needs to be addressed is whether there are lesser alternatives to such an injunction. I am satisfied that, in terms of the efficacy of preventing unauthorised encampments, there is no adequate alternative remedy. There have been plenty of instances in which the council has tried to make it more difficult to access a site. Indeed, businesses have done the same. But measures taken to prevent access have simply been torn down, gates climbed over and ignored. Actions for possession take time and also eat up further council resources. My concern, however, has been, as I said at the outset of this application, that even bearing all that in mind, there is a potential risk in this injunction that it would have the draconian impact of leaving travellers with nowhere to go within the city council of Wolverhampton's area of control. That is one of the reasons why the identification of the relevant sites is material. It appeared to me that it might be the case that the 60 sites that have been identified were the only sites that might be available to travellers within the relevant area and that, if that were the case, the net result of the injunction which was sought would be aborough-wide
prohibition on travellers' sites in Wolverhampton. I have been told today, and I accept, that that is not the case and that the 60 sites identified are those that are the most
vulnerable,
that other sites could still be occupied, and indeed that, since this application was made, one such site not covered by the scope of the injunction sought has been the subject of an unauthorised encampment. That is a relevant consideration.
11. The second matter, however, is this. The council recognises,very
fairly and properly, that there is a balancing act to be carried out between the protection of sites from unauthorised encampments and the provision of facilities for those who choose to adopt, as it was put, a nomadic lifestyle. The council has therefore taken steps set out in the evidence before me to consider the provision of a transit site. In the absence of that transit site, all that is available to travellers within this area are the sites that would be unaffected by this proposed injunction. Efforts have been made to identify such a transit site, and a shortlist of three has been drawn up. I was told today that matters are progressing well in that respect. The preferred site is the fishing pool site, which is a privately owned site, and negotiations are taking place with the owner with a
view
to renting that site to the claimant so that it can be established as an appropriate transit site."
c) In Harlowv
McGinley, Jay J expressly noted that the cumulative effect of other injunctions was a relevant factor to be taken into account in any proportionality exercise. In that case, the injunction was justified in part because of the extent and nature of the criminality identified by the judge at [17] - [18].
d) Although the Tendring case wasvery
specific because it related to a particular event (namely the Clacton Air Show), Knowles J refused the injunction, partly because of the lack of alternative sites. Presciently, he observed at [46] that the council's methodology "could lead to injunctions of ever-increasing compass year by year". The Waltham Forest case was largely concerned with fly-tipping (in respect of which the judge granted an injunction in the present case). I note too that, in Waltham Forest, the injunction was for three years, not the five years sought in the present case.
e) Fly-tipping was also the principal concern in the Sutton case: see [18], [19], [36] and [38] of the judgment of Warby J. The judge went on to note that the granting of this sort of injunction could be unjustified and disproportionate, but he concluded that, on the facts of that particular case, it was not. Amongst the factors that led him to that conclusion were the careful making of assessments on the part of the local authority ([40] - [44]). In particular, there was evidence of a policy of 'negotiated stopping' which demonstrated both a degree of flexibility and a willingness to engage which, on the judge's findings in the present case, was absent here.
f) I also note that, in the Sutton case, an EIA had been carried out. Although a perusal of that document demonstrated that it was a rather one-sided exercise, I think that Mr Willers was right to say that it at least showed that the second intervener was aware of its PSED. Again, the judge in the present case reached a contraryview
on the different evidence before her.
5.3 Article 8 and the Gypsy and Traveller Community
v
Porter and another [2003] UKHL 26; [2003] 2 AC 558. That was a case in which injunctions granted against the Gypsy and Traveller community to enforce planning requirements were refused by the Court of Appeal and House of Lords on the basis that it was inherent in the injunctive remedy that its grant depended on the court's judgment of all the circumstances of the case. Two aspects of the judgment of Lord Bingham should be set out: the first concerned with the history (which demonstrates that, 15 years on,
very
little has changed) and the second concerned with principle.
"13… The means of enforcement available to local planning authorities under the 1990 Act and its predecessors, by way of enforcement orders, stop orders and criminal penalties, gave rise to considerable dissatisfaction. There were a number of reasons for this, among them the delay inherent in a process of application, refusal, appeal, continued user, enforcement notice, appeal; the possibility of repeated applications, curbed but not eliminated by section 70A of the 1990 Act; and the opportunities for prevarication and obstruction which the system offered. In the case of Gypsies, the problem was compounded by features peculiar to them. Their characteristic lifestyle debarred them from access to conventional sources of housing provision. Their attempts to obtain planning permission almost always met with failure: statistics quoted by the European Court of Human Rights in Chapmanv
United Kingdom (2001) 33 EHRR 399, page 420, paragraph 66, showed that in 1991, the most recent year for which figures were available, 90 per cent of applications made by Gypsies had been refused whereas 80 per cent of all applications had been granted. But for many years the capacity of sites authorised for occupation by Gypsies has fallen well short of that needed to accommodate those seeking space on which to station their caravans. Sedley J alluded to this problem in R
v
Lincolnshire County Council, Ex p Atkinson (1995) 8 Admin LR 529 at 533, in a passage quoted in Chapman at paragraph 45:
"It is relevant to situate this new and in some ways Draconic legislation in its context. For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant power given to them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravan Sites Act 1968, therefore, Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils (although the latter continued to possess the power to open sites). For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powersvested
in central government, to which the court was required to defer, were rarely if ever used."
The essential problem was succinctly stated in a housing research summary, "Local Authority Powers for Managing Unauthorised Camping" (Office of the Deputy Prime Minister, No 90, 1998, updated 4 December 2000):
"The basic conflict underlying the 'problem' of unauthorised camping is between Gypsies/Travellers who want to stay in an area for a period but have nowhere they can legally camp, and the settled community who, by and large, do not want Gypsies/Travellers camped in their midst. The local authority is stuck between the two parties, trying to balance the conflicting needs and often satisfying no-one."
"It follows, in my opinion, when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is any event required by domestic law to carry out."
"38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independentview
of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a
variety
of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary
personal
planning permission."
v
United Kingdom (2001) (referred to by Lord Bingham at [38] of his judgment), the European Court of Human Rights made a series of important observations:
a) The occupation of a caravan by a member of the Gypsy and Traveller community was an "integral part of her ethnic identity" and her removal from the site interfered with her Article 8 rights not only because it interfered with her home, but also because it affected her ability to maintain her identity as a Gypsy [73];
b) There was an emerging international consensus amongst Council of Europe States recognising the special needs of minority communities and an obligation to protect their security, identity, and lifestyle [93];
c) Members of the Gypsy and Traveller community were in avulnerable
position as a minority, with the result that "special consideration should be given to their needs and their different lifestyle"; to that extent there was a positive obligation on States to facilitate the Gypsy way of life [96];
d) The fact that a home had been established unlawfully was highly relevant [102];
e) If no alternative accommodation is available, the interference was more serious than where such accommodation is available [103];
f) Individuals affected by an enforcement notice ought to have a full and fair opportunity to put any relevant material before the decision-maker before enforcement action was taken [106].
v
United Kingdom (2005) 40 EHRR 9, the ECtHR again emphasised the
vulnerable
position of Gypsies and Travellers as a minority, reiterating that "some special consideration should be given to their needs and their different lifestyle" to the extent that there is a positive obligation on the State to "facilitate the gypsy way of life" [84]. The Court distilled three further principles of importance:
a) Given that the applicant was rendered homeless by the decision under challenge, "particularly weighty reasons of public interest" were required by way of justification [86];
b) The mere fact that anti-social behaviour occurred on local authority Gypsy and Traveller sites could not, in itself, justify a summary power of eviction [89];
c) Judicial review was not a satisfactory safeguard as it did not establish the facts [92] and because there was no means of testing the individual proportionality of the decision to evict [95].
v
Bulgaria (App. no. 25446/06), the ECtHR noted a series of resolutions in the Council of Europe which called upon Member States to exercise restraint when carrying out eviction measures that impacted upon the Gypsy and Traveller community. The court considered that such measures should include consultation with the community or individual concerned, reasonable notice, provision of information, and a guarantee of alternative housing measures [76-79]. In its judgment, the court reiterated and expanded upon the principles developed in the case law:
a) Although it was legitimate for the authorities to seek to regain possession of land frompersons
who did not have a right to occupy it [111], orders should not be enforced without regard to the consequences upon the Gypsy and Traveller residents or without the securing of alternative shelter for the community [126];
b) The authorities should consider approaches specifically tailored to the needs of the Gypsy and Traveller community [128] and should consider Gypsy and Traveller groups as part of "an outcast community and of the socially disadvantaged groups", who "may need assistance in order to be able effectively to enjoy the same rights as the majority population" [129];
c) The underprivileged status of the community "must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities, and, if possible, arrangements for alternative shelter" [133].
v
United Kingdom (2013) 56 EHRR 16, the Court built upon the principle set out at [95] of Connors, namely that the absence of any measure enabling a member of the Gypsy and Traveller community to challenge the proportionality of a possession order was a
violation
of Article 8. At [65] the court held that:
"As the Court has previously emphasised, the loss of one's home is the most extreme form of interference with the right to respect for the home. Anyperson
at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end."
v
France (App no. 27013/07, a decision also dating from 2013, the ECtHR again emphasised that occupation of a caravan was an integral part of the identity of the Gypsy and Traveller community so that measures affecting the stationing of caravans affected their ability to maintain their identity. The margin of appreciation left to local authorities was narrower where the right at stake was crucial to the individual's enjoyment of their Article 8 rights.
5.4 Relevant Statutes and Other Guidance
5.4.1 Statutes
person
must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or
victimisation."
This includes indirect discrimination, which is when a practice, criterion or procedure puts or would put the protected group at a particular disadvantage when compared with people who do not share the protected characteristic. Indirect discrimination by a public authority is capable of justification.
(a) eliminate discrimination, harassment,victimisation
and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity betweenpersons
who share a relevant protected characteristic and
persons
who do not share it;
(c) foster good relations betweenpersons
who share a relevant protected characteristic and
persons
who do not share it.
persons
who share a relevant characteristic and those who do not share it involves, in particular, the need to:
(a) remove or minimise disadvantages suffered bypersons
who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs ofpersons
who share a relevant protected characteristic that are different from the needs of
persons
who do not share it;
(c) encouragepersons
who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such
persons
is disproportionately low.
v
Secretary of State for Work and Pensions and another [2008] EWHC 3158 (Admin) at [93]). An EIA undertaken prior to the seeking of injunctive relief will be evidence of good practice. Further, the carrying out of a welfare assessment on unauthorised campers to identify any welfare issues that need to be addressed, prior to the taking of any enforcement action against them, is good practice.
5.4.2 Guidance
voluminous
guidance. DoE Circular 18/94 states that "it is a matter for local discretion whether it is appropriate to evict an unauthorised Gypsy encampment" (paragraph 6); where there are no authorised sites but an unauthorised encampment is not causing a level of nuisance which cannot be effectively controlled, the authorities should consider providing basic services (paragraph 6); that local authorities should try and identify possible emergency stopping places as close as possible to the transit routes used by Gypsies where Gypsy families would be allowed to camp for short periods (paragraph 7); that, where Gypsies are unlawfully camped, it is for the local authority to take any necessary steps to ensure that the encampment "does not constitute a hazard to public health" (paragraph 8); and that "local authorities should not use their powers to evict Gypsies needlessly…local [authorities] should use their powers in a humane and compassionate way" (paragraph 9).
5.4.3 UNCRC
"In all actions concerning children, whether undertaken by public bodies or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".
v
Secretary of State for the Home Department [2013] UKSC 74 at [10], the best interests of a child are an integral part of the proportionality assessment under Article 8 the Convention.
6 ANALYSIS OF THE APPEAL
6.1 Proportionality Generally
persons
unknown
had been made out. In other words, she found that the 6 requirements noted in Ineos had been satisfied and that there was a strong probability of irreparable harm[1]. Accordingly, it seems to me to be unnecessary to trawl over those points again, since they do not affect the outcome of this appeal.
a) Gv
G (Minors: Custody Appeal) [1985] 1 WLR 647 at 642, where Lord Fraser of Tullybelton said:
"The appellate court should only interfere when they consider that the judge at first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible".
b) In AEI Rediffusion Music Limitedv
Phonographic Performance Limited [1999] 1 WLR 507, Lord Woolf MR confirmed at 1523:
"Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced thevarious
factors fairly in the scale".
c) In Rv
Secretary of State for the Home Department ex parte Bulger [2001] EWHC Admin 119 at 50, the judge said:
"A submission that undue or insufficient weight has been given to a relevant factor does not raise any arguable error of law"
6.2 Factor 1: The Extent of the Injunction
very
broad…" amounting to "a de facto
boroughwide
prohibition of encampment and upon entry/occupation for residential purposes". Mr Kimblin submitted that this was an inaccurate description of what was being sought. He relied on two things: the fact that the proposed injunction excluded cemeteries and highways, and the fact that there was a good deal of green space in the southern part of the
borough
which, being privately owned, was not the subject of the proposed injunction at all.
view,
these are not proper criticisms of the judge's finding. Her description of the injunction as a
boroughwide
prohibition was expressly accepted by the appellant's junior counsel at the hearing.
Bromley
in any event. In addition, I reject the submission that, because the proposed injunction did not cover private land, its width was overstated. The judge expressly dealt with that at [63]. She said that she did not regard transferring the undoubted problems that the appellant had experienced to private landowners, who would themselves be entitled to seek possession orders evicting the occupants from their land, as a solution. I respectfully agree.
6.3 Factor 2: Entry/Occupation
view,
although it could not be said to be determinative, 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. She was entitled to take it into account when considering proportionality.
6.4 Factor 3: Alternative Sites
Bromley
did not need a transit site because it did not suffer particularly from incursions, and
Bromley's
claim for a
boroughwide
injunction preventing any entry or encampment.
valves
were not in play here, because of the width of the injunction which the appellant was seeking and the absence of any proposal for a transit site (despite the clear need).
persons
unknown,
when they know that the defendants will almost certainly not be represented at either the interim or final hearings. Of course the judge will want to scrutinise carefully what is being sought (and the cases referred to in paragraphs 38 and 39 above make plain just how scrupulously the first instance judges have undertaken that exercise in these cases) but, ultimately, the burden remains on the local authority.
boroughwide
injunction). It was not explained how the judge could have satisfactorily undertaken such tasks. In my
view,
therefore, this criticism of the judge was unfair and unrealistic.
very
important factor militating against the imposition of the
boroughwide
injunction.
6.5 Factor 4: Cumulative Effect
v
McGinley that the cumulative effect of other injunctions was a material consideration, but that the weight to be afforded to it was a matter for the judge. I agree with that approach[2]. Here, the judge clearly had the cumulative effect in mind, but she does not say anything which suggests that she gave it undue weight or significance. It was simply a factor that she took into account in her assessment of proportionality. Since Mr Kimblin rightly accepted that he could not say that the cumulative effect of other injunctions was something to which the judge should have paid no attention at all, the difference between the judge's approach and Mr Kimblin's ultimate position was nugatory. I therefore reject this fourth criticism of the judge's proportionality exercise.
6.6 Factor 5: Article 8 and the EIA
various
kinds are required in many circumstances when dealing with Gypsy and Traveller encampments. There is evidence that, for example, some of the second interveners considered these obligations and undertook full assessments before seeking the injunction. As the judge below noted, in the Sutton case, there was detailed evidence about the second interveners' engagement with the Gypsy and Traveller community and the proposed completion of
various
welfare and equality assessments. The judge found that this simply had not happened in the present case and, with one exception, there was no substantive answer to that criticism at the appeal hearing.
view
there are a number of answers to that submission. First, it was common ground that the judge was shown the Accommodation Assessment, and there is nothing to say that she did not have regard to it. Secondly, since the Accommodation Assessment itself expressly referred at paragraph 2.31 to the outstanding demand for additional sites in the
borough,
which demand had not been acted upon by the appellant in the time since the Accommodation Assessment was completed, it does not seem to me that it demonstrated any particular engagement with this issue by the appellant. Thirdly, and most important of all, the Accommodation Assessment was prepared before the appellant had even thought about, let alone obtained, the wide interim injunction in this case. It was therefore already out of date by the time of the hearing before the judge and of little relevance to the issues before the court.
various
failings under the Equality Act) go a long way towards distinguishing the appellant's case from those of the majority of the second and fourth interveners. I note that Mr Woolf, who made short oral submissions on behalf of the second intervener, was anxious to emphasise those differences, and in particular the failings of the appellant in relation to its PSED and its general dealings with the Gypsy and Traveller community.
6.7 Factor 6: Duration
view
it was plainly a relevant factor.
view
is similar to that noted in paragraphs 69-71 above. The appellant never suggested a shorter period. Whilst that would have been something which the judge could have considered, she was primarily obliged to test the proportionality of the injunction in the terms sought by the appellant. She was certainly entitled to conclude that the five-year term was, for a
variety
of reasons, much too long. I therefore reject this criticism of the judge.
6.8 Factor 7: Permitted Development
view,
it is unnecessary and possibly unwise to decide this third (and highly technical) point for the purposes of this appeal. I am aware that planning law in respect of caravans and camping has been described as "particularly complex"[3] and the issue about permitted development rights was never a significant part of the argument before the judge (which probably explains why it was dealt with last). But I consider that the judge was plainly entitled to conclude that the matter had not been dealt with satisfactorily by the appellant. This was in part because, on the arguments before her, it was said that this point only related to a quarter of the sites, but those sites could not be identified (see [70]). Furthermore, on the face of it, the existence of such permitted development rights would seem to require the appellant, as part of its application, at least to explain how or why they had been exhausted or did not apply. Finally, the criticism that the judge should have expressly preserved any permitted development rights in the injunction is most unfair, given that she expressly raised it and the offer was declined by the appellant's junior counsel.
view,
a factor which was relevant to proportionality. The travelling showman exception in the GPDO is perhaps a good example of this. The judge needed to be satisfied that the proposed injunction would not cut across that permitted development right, because the Accommodation Assessment showed that there were large numbers of travelling showmen in
Bromley.
The appellant did not demonstrate that to her (or my) satisfaction. This may be something which, in another case, could be resolved, either by way of the wording of the injunction, or by the designation of particular sites for this permitted development. But the judge was entitled to reach the
view
that she did on this issue, based on the evidence before her. There is therefore nothing in this last criticism of the judge's proportionality exercise.
6.9 Irreparable Harm
6.10 Summary
view
of the underlying problems and was not unduly swayed by the number of other cases in which wide injunctions had been granted in ostensibly similar circumstances.
8 WIDER GUIDANCE
very
well put the local authorities concerned in breach of the Convention.
view,
much of that guidance would be irrelevant if the answer was a
boroughwide
prohibition on entry or encampment.
London
area, the first intervener). Through a process of dialogue and communication, and following the copious guidance set out above, 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.
vary
from
borough
to
borough
and area to area. 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.
persons
unknown,
and where the proposed injunction is directed towards the Gypsy and Traveller Community:
a) Injunctions againstpersons
![]()
unknown
are exceptional measures because they tend to avoid the protections of adversarial litigation and article 6 ECHR.
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 of the members of those communities are 'lived rights' i.e. are capable of being realised.
c) Thevulnerability
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.
view,
boroughwide
injunctions are inherently problematic. They give the Gypsy and Traveller community no room for manoeuvre. They are much more likely to be refused by the court as a result (as happened here). The solution in Wolverhampton, which identified particularly
vulnerable
sites but did not include all the sites owned by the council, seems to me to be a much more proportionate answer. I do not accept that this automatically means that the remaining sites will be the subject of unauthorised encampment, as Mr Kimblin suggested, but even if that happens, it is likely to be a better solution than a potentially discriminatory blanket ban.
boroughwide
injunction and a duration of a period as long as five years.
view,
the injunctions in the Harlow cases were explicable on the grounds of criminality and the grave risks to health and safety. Injunctions which are designed to prevent entry and encampment only, and without evidence of such matters, should be correspondingly more difficult to obtain.
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 of 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.
view
that there is no other solution to the particular problems that have arisen or are imminently likely to arise.
LORD JUSTICE HADDON-CAVE:
SENIOR PRESIDENT OF TRIBUNALS:
Note 1 Because the appellant has raised a separate issue about harm, set out in Ground 2 of the Appeal, I deal with it shortly at section 6.9 (paragraphs 94-96 below). [Back] Note 2 There were also shades of the same approach inTendring: see paragraph 39(d) above. [Back] Note 3 See paragraph 3B-1144.2 of
Volume 6 of the Encyclopaedia of Planning Law and Practice. [Back]