The Mayor and Burgesses of the London Borough of Bromley v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Haddon-Cave |
| Judgment Date | 21 January 2020 |
| Neutral Citation | [2020] EWCA Civ 12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/1328 |
| Date | 21 January 2020 |
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[2020] EWCA Civ 12
SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Coulson
and
Lord Justice Haddon-Cave
Case No: A2/2019/1328
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Ms Leigh-Ann Mulcahy QC
(Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Kimblin QC and Mr Jack Smyth (instructed by 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
INTRODUCTION
This is 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 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.
Numerous similar injunctions have been granted by the High Court in recent years and months. We refer to a number of those judgments below. One common feature of those cases was that the Gypsy and Traveller community was not represented before the court at either the interim or final hearing. Although that did not stop the judges concerned looking 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.
This, therefore, was the first case involving an injunction in which the Gypsy and Traveller community were represented before the High Court. As a result of their success in discharging the interim injunction, it is also the first such case to be argued out at appellate level. I would wish to express my thanks to all counsel, but in particular to Mr Willers QC and Ms Buchanan (and their solicitors, Community Law Partnership), who have acted substantially pro bono throughout and have put the points on behalf of the First Intervener and the Gypsy and Traveller community with clarity and concision.
THE FACTUAL BACKGROUND
Romany Gypsies have been in Britain since at least the 16 th century, and Irish Travellers since at least the 19 th century. They are a particularly 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).
A nomadic lifestyle is an integral part of Gypsy and Traveller tradition and culture. While the majority of Gypsies and Travellers now reside in conventional housing, a significant number (perhaps around 25%, according to the 2011 UK Census) live in caravans in accordance with their traditional way of life. The centrality of the nomadic lifestyle to the Gypsy and Traveller identity has been recognised by the European Court. In Chapman 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.”
In the UK, there is a long-standing and serious shortage of sites for Gypsies and Travellers. A briefing by the Race Equality Foundation found that Gypsies and Travellers were 7.5 times more likely than White British households to suffer from housing deprivation (Race Equality Foundation, Ethnic Disadvantage in the Housing Market: Evidence from the 2011 census, April 2015). The lack of suitable and secure accommodation includes not just permanent sites but also transit sites. This lack of housing inevitably forces many Gypsies and Travellers onto unauthorised encampments.
The evidence is that Gypsies and Travellers had a particular association with the appellant, whose own Accommodation Assessment of November 2016 (“the Accommodation Assessment”) said at paragraph 1.3 that Gypsies and Travellers had been stopping in Bromley for many years. Traditionally they had done so:
“… whilst working in and travelling through the Borough. 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.”
The evidence was that 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.
There are no transit sites to cater for this need, whether in 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.
In the South East, the recent spate of wide-ranging injunctions has been aimed at the Gypsy and Traveller community. This process began in 2015 with Harlow District Council 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.
It appears that, in total, there are now 38 of these injunctions in place nationwide. It would be unrealistic to think that their widespread use has not led to something of a feeding frenzy in this contentious area of local authority responsibility. First, these injunctions have had the effect of forcing the Gypsy and Traveller community out of those 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.
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 particular problem with incursions on those sites in the past.
The basis for the application has never been entirely clear. When it came before Ms Leigh-Ann Mulcahy QC, sitting as a deputy judge of the High Court (“the judge”), she commented at [23] – [24] of her judgment, that, 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 number of incursions had not increased prior to the application for an injunction, a point borne out by the fact that Ms Slater stated publicly (albeit in a slightly different context) that Bromley...
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