Secretary of State for the Environment Food & Rural Affairs v Meier and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Wilson,Lord Justice Pill |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] EWCA Civ 903 |
| Docket Number | Case No: B5/2007/2001 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2008 |
[2008] EWCA Civ 903
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE POOLE COUNTY COURT
MR RECORDER NORMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Arden and
Lord Justice Wilson
Case No: B5/2007/2001
Mr John Hobson QC & Mr John Clargo (instructed by Messrs Whitehead Vizard) for the Appellant
Mr Richard Drabble QC & Mr Marc Willers (instructed by Community Law Partnership) for the Respondents
Hearing date : 29 April 2008
The respondents to this appeal have a nomadic lifestyle. In 2007, they established an unauthorised encampment on woodland known as Hethfelton Wood, near Wool in Dorset. They have since resided there and taken vehicles on to the land. Hethfelton Wood is vested in the appellant, the Secretary of State for the Environment, Food and Rural Affairs (“the Secretary of State”.. The Forestry Commission manages it. The respondents' encampment was unauthorised, and contravened bye-laws of the Forestry Commission made pursuant to s 46(1) of the Forestry Act 1967. In May 2007, the Secretary of State made an application to Mr Recorder Norman, sitting in the Southampton County Court, for a possession order in relation to Hethfelton Wood. That application was successful, and the order so made is not in issue on this appeal. The Secretary of State also made a further application on the same occasion for a possession order in relation to other woodlands, likewise vested in the Secretary of State, within a specified area of Dorset, and also made an application for an injunction preventing the respondents from entering or occupying those other woodlands. That application was refused, and the recorder's order for its dismissal is the subject of this appeal. The question that we have to decide is whether the law of trespass, which protects landowners from acts of threatened trespass, can be interpreted as to require a public body to tolerate acts of trespass by persons who otherwise lack suitable accommodation.
The parties
The Forestry Commission is a statutory body. Its powers are governed by the Forestry Act 1967. The principal function of the Forestry Commission is to promote the interests of forestry, the development of afforestation and the production and supply of timber and other forest products (s 1 of the 1967 Act). The Commissioners have power to make byelaws, which are made by statutory instrument: see s 46 of the Forestry Act 1967. A contravention of a byelaw is a criminal offence (s 46(5)). It is not suggested that the statutory powers of the Commissioners extend to providing sites, permanent or temporary, for travellers.
It is necessary to give background about only some of the respondents. Ms Natalie Meier, the first respondent, has been a traveller for five years, having lived in a trailer on her mother's drive prior to this and has been in the Dorset area for two to three years with her two children. She made a homelessness application initially for an authorised site or pitch, but at trial she stated that she would consider bricks and mortar accommodation.
Ms Sharon Horie, the second respondent, has been a traveller for over twenty years spending time in India, Nepal and France. She has three children, who all attend formal education of some form in the local area. She has, however, recently made a homelessness application. The fifth respondent, Ms Rand, has a severely disabled child, and she has recently resided in the Dorset area where a complex care package for her daughter is administered. The respondents, or some of them, and their families were previously encamped at Moreton Plantation (less than five miles away from Hethfelton), which is also owned by the Forestry Commission, before possession proceedings were commenced and they moved to Hethfelton.
It was alleged by the Forestry Commission that all of the respondents have at some time or another been encamped upon Forestry Commission land and that this practice is likely to continue. The current action for the possession of Hethfelton Wood was brought after Forestry Commission representatives discovered the travellers' encampment at Hethfelton Wood and a request for them to move on was not complied with. The Forestry Commission considered that the action for possession was needed due to the likelihood of the respondents repeating their occupation of Forestry Commission land. According to the first witness statement of Mr William Parke of the Forestry Commission, Ms Horie requested that the Forestry Commission identified land on to which the respondents could move and be allowed to stay without the need for eviction. Mr Parke states that he told her that he would not do that because it would shortcut the democratic process. His witness statement states that he pointed out that the provision of accommodation for travellers is a matter for the County Council, that they had the matter in hand and that the question of planning consent had to be resolved. Ms Horie explained in her evidence that she was not targeting the Forestry Commission but said that it would be helpful if the Forestry Commission would help put pressure on the County Council to provide the respondents with sites. She also states that she did not say that if they were evicted from their current encampment that they would move on to the next bit of local Forestry Commission land. She states that she said that what the respondents needed was to stay locally because of their commitments to schools, college and work.
Two only of the defendants in the action are represented on this appeal and they are Ms Sharon Horie and Ms Lesley Rand. The form of order sought by the Secretary of State is an order for possession and an injunction against all the respondents (save one who has since died) and other unnamed persons occupying or residing at Hethfelton Wood.
There is no suggestion in the evidence that there was some other obvious and available authorised site where the respondents could camp in Dorset. Apart from some evidence of antisocial behaviour towards other residents at a previous site (Morden Heath), the evidence does not disclose any suggestion of antisocial behaviour in terms of the tipping of rubbish, the destruction of the environment or conduct towards other members of the public or persons accessing the woodland, or the police, or officials representing the Secretary of State or the Forestry Commission, at Hethfelton Wood. The evidence was that the site there was “relatively tidy” (judgment of the recorder [19]). The recorder found:
“The overall impression from the evidence is of a reasonably well organised site (comparatively speaking) with occupants who are co-operative with those that deal with them, albeit not to the extent of decamping on demand.” (judgment [20])
It was said in argument that the Forestry Commission made no complaints about the respondents. There was evidence that the encampment had led to a delay in the seasonal thinning of trees. The Forestry Commission took the view for health and safety reasons that heavy plant to assist in this work could not be moved into the wood near where the respondents were camped. This delay may have had some effect on sales of timber and growth of the plantation.
Ms Horie gave evidence that:
“We are a collection of people trying to live. I am a traveller. I am forced into a position of being called a trespasser because there is nowhere for me to go.” (judgment of the recorder [38])
The wider context: the problem of lack of sites and the government's guidance to public bodies about unauthorised encampments
There is a serious shortage of pitches for travellers. A report on Dorset Traveller Needs Assessment by Anglia Ruskin University dated October 2006 states that in England there are now about 2,500 “unauthorised caravans” and that this was a small number in comparison with the numbers of homeless people (para. 3.6). The evidence in this case shows that, as at March 2007, there was an immediate need for 407 additional pitches in Dorset to resolve problems associated with unauthorised camping, including 100 pitches to accommodate short-term needs. Dorset County Council (“DCC”) had been attempting to identify sites for about six years but land is in short supply and service had proved difficult. Not surprisingly the view of DCC is that applications for possession by landowners would increase the pressure on it and seriously restrict the options of travellers to live anywhere in Dorset.
The government has over many years issued guidance to public bodies responsible for providing homes and to police. For example, in February 2004, the Office of the Deputy Prime Minister issued guidance entitled Guidance on Managing Unauthorised Camping. This guidance is aimed primarily at local authorities and police who share the responsibility of managing unauthorised camping, but will also be relevant to all bodies likely to be involved in partnership approaches. The guidance is described as advisory (para.1.5). The guidance recognises that, while there are insufficient authorised sites and there would be locations where encampment would not be acceptable under any circumstances, each location has to be considered on its merits against criteria such as health and safety and serious environmental damage and land use:
“Unacceptable encampment locations
5.4 Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is...
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