Introduction

The case of The London Borough of Bromley v. Persons Unknown (Rev 3) ([2020] EWCA Civ 12) delves into the complexities surrounding injunctions aimed at preventing unauthorized encampments by the Gypsy and Traveller communities. This appellate case emerged from Bromley's High Court refusal to grant a broad injunction designed to prohibit encampments across all accessible public spaces within the borough, excluding only cemeteries and highways. Unlike previous cases, this was the first instance where the Gypsy and Traveller community was formally represented at both the interim and final hearings. The central issues revolve around the proportionality of such injunctions, the community's protected rights under the Equality Act 2010 and the European Convention on Human Rights (ECHR), and the adequacy of alternative provisions like transit sites.

Summary of the Judgment

The Court of Appeal upheld the High Court's decision to refuse the London Borough of Bromley's extensive boroughwide injunction against unauthorized encampments by persons unknown, notably targeting the Gypsy and Traveller community. The appellate court affirmed that the High Court judge appropriately applied the proportionality test, taking into account factors such as the lack of alternative sites, the cumulative effect of similar injunctions nationwide, and the appellant's failure to comply with its Public Sector Equality Duty (PSED). The judgment emphasized the necessity of balancing local authority interests with the protected rights of minority communities, ultimately rejecting the broad injunction sought by Bromley as disproportionate and lacking in necessary safeguards.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to contextualize and support its reasoning. Notably, cases such as Harlow District Council v Stokes and others [2015] and Wolverhampton City Council v Persons Unknown [2018] were pivotal in illustrating the judiciary's approach to injunctions against the Gypsy and Traveller communities. These cases highlighted issues like the effectiveness of injunctions, the necessity of alternative sites, and the proportionality of injunction terms. Additionally, European Court of Human Rights (ECtHR) decisions, including Chapman v United Kingdom (2001) and Connors v United Kingdom (2005), were instrumental in underscoring the protected rights of these communities under Article 8 of the ECHR.

Legal Reasoning

The court's legal reasoning centered on the principle of proportionality, a fundamental aspect of both UK equality law and human rights jurisprudence. The High Court judge meticulously assessed whether the injunction sought was proportionate to the issues it aimed to address. Key considerations included:

• Scope and Geography: The injunction's broad application across all public spaces was scrutinized for its potential discriminatory impact.
• Alternative Provisions: The absence of designated transit sites for the Gypsy and Traveller communities was a critical factor, suggesting that the injunction would disproportionately hinder their protected nomadic lifestyle.
• Cumulative Impact: The proliferation of similar injunctions nationwide raised concerns about a systemic displacement of the community, limiting their available locales for encampment.
• Public Sector Equality Duty (PSED): Bromley's failure to adequately engage with the Gypsy and Traveller communities or conduct a substantive Equality Impact Assessment (EIA) was deemed a significant oversight.
• Duration: The proposed five-year term of the injunction was considered excessive, lacking the flexibility to adapt to changing circumstances.
• Permitted Development Rights: The injunction's potential conflict with existing permitted development rights for limited caravan use highlighted legal ambiguities that needed resolution.

The appellate court concurred that the High Court judge appropriately weighed these factors, ultimately determining that the injunction was not a proportionate response given the circumstances.

Impact

This judgment sets a critical precedent for future injunctions targeting minority communities, particularly the Gypsy and Traveller populations. It underscores the necessity for local authorities to:

• Engage meaningfully with affected communities before seeking judicial remedies.
• Ensure that proportionality is central to any injunctive measures, particularly when they impinge on protected rights.
• Provide adequate alternative accommodations to prevent disproportionate restrictions on lifestyle choices.
• Conduct thorough Equality Impact Assessments and comply with the Public Sector Equality Duty.

Additionally, the judgment serves as a caution against the unchecked use of broad injunctions, highlighting the judiciary's role in safeguarding minority rights against potential overreach by local authorities.

Complex Concepts Simplified

Quia Timet Injunction

A Quia Timet injunction is a preventive court order issued to avert an anticipated wrongdoing before it occurs. In this case, Bromley sought such an injunction to prevent unauthorized encampments by individuals unknown, aiming to forestall potential breaches of their property rights.

Public Sector Equality Duty (PSED)

As stipulated in the Equality Act 2010, the Public Sector Equality Duty requires public authorities to eliminate discrimination, advance equality of opportunity, and foster good relations between different groups. In this judgment, Bromley's failure to adequately consider or engage with the Gypsy and Traveller communities was a breach of this duty.

Equality Impact Assessment (EIA)

An Equality Impact Assessment evaluates how a proposed policy or action will affect different groups, particularly those protected under equality laws. Although not mandated, conducting an EIA is considered good practice to demonstrate compliance with equality obligations.

Article 8 of the European Convention on Human Rights (ECHR)

Article 8 protects the right to respect for private and family life, home, and correspondence. This case highlights how broad injunctions can infringe upon these protected rights, especially for minority communities whose lifestyles are intricately linked to their cultural identities.

Conclusion

The appellate court's decision in London Borough of Bromley v. Persons Unknown signifies a pivotal moment in balancing local authority's regulatory powers with the protected rights of minority communities. By refusing the disproportionate injunction sought by Bromley, the judiciary reinforced the necessity for proportionality, community engagement, and adherence to equality duties in judicial interventions. This judgment not only provides clear guidance for future cases involving the Gypsy and Traveller communities but also emphasizes the broader principles of fairness and respect for human rights within the legal framework governing local authorities.