Public spaces and encampment - what is the law?

The Court of Appeal, on an appeal from the High Court, has set out a series of principles that tackle the issue of encampment in public spaces by gypsies and travellers.

The case, The London Borough of Bromley v Persons Unknown (Rev 3), was an appeal against the refusal by the High Court to grant what the judge called “a de facto boroughwide prohibition of encampment and upon entry/occupation…in relation to all accessible public spaces in Bromley except cemeteries and highways”.

Although the target of the injunction was “persons unknown”, it was clear that the injunction was aimed at the gypsy and traveller community. The points arising from the appeal itself are secondary to the resultant guidance as to how local authorities might address this issue in future. This was the first case involving an injunction in which the gypsy and traveller community were represented; it was also the first case argued at appellate level.

In the UK, there is a long-standing and serious shortage of sites for gypsies and travellers. This lack of housing inevitably forces many gypsies and travellers onto unauthorised encampments. They have been stopping in Bromley for many years, traditionally to pick fruit and vegetables in the summer, and hops and potatoes in early autumn. Bromley also has a history of unauthorised encampments, albeit in relatively small numbers.

In the South East, there has been a spate of wide-ranging injunctions aimed at the gypsy and traveller community. There are now 38 of these injunctions in place nationwide. The appellant sought and was granted an interim injunction on a without notice basis on 15 August 2018. It covered 171 sites in 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 problem with incursions on those sites in the past.

The basis for the application to the High Court was not clear. Although the appellant had said in its evidence that there had been a “sharp increase” in incursions in 2018, that was not in fact the case. The hearing for the final injunction took place on 17 May 2019 and, having considered the various arguments, the judge refused to grant the final injunction sought in respect of entry and encampments. She did, however, grant a borough-wide injunction in relation to fly-tipping and waste.

The judge addressed the effect of other boroughs in London and the South East obtaining such injunctions; the fact that there were so many injunctions nationwide; and the cumulative effect of such injunctions.

The Court of Appeal dismissed the appeal and set out wider guidance as to how local authorities should deal with this issue. It acknowledged the tension between rights of the gypsy and traveller community under Article 8 of the European Convention on Human Rights, and the common law of trespass. The obvious solution would be the provision of more designated transit sites for the gypsy and traveller community as, without such sites, unauthorised encampments will continue and attempts to prevent them may put the local authorities concerned in breach of the Convention.