The London Borough of Bromley v Persons Unknown

Factual and Procedural Background

This appeal concerns the refusal by the High Court to grant a broad injunction described as a "de facto boroughwide prohibition of encampment and upon entry/occupation in relation to all accessible public spaces" within a London borough, excluding cemeteries and highways. The injunction was directed at "persons unknown" but was understood to target the Gypsy and Traveller community specifically. This case was notable as the first in which the Gypsy and Traveller community was legally represented at the High Court level, resulting in the discharge of an interim injunction and subsequent appellate consideration.

Gypsies and Travellers are protected ethnic minorities with a long-standing nomadic tradition. There is a significant shortage of authorised sites for their accommodation, including transit sites, leading to frequent unauthorised encampments within the borough. The local authority had obtained an interim injunction covering 171 public sites, aiming to prevent unauthorised encampments. However, the High Court judge refused to grant the final injunction against entry and encampment, granting only a related injunction concerning fly-tipping and waste.

The procedural history includes the grant of an interim injunction on a without-notice basis in August 2018, followed by a contested final hearing in May 2019 where the Gypsy and Traveller community was represented. The judge’s refusal to grant the final injunction prompted the appellant to seek permission to appeal, which was granted on the basis of the novel issues raised and the cumulative impact of similar injunctions nationwide.

Legal Issues Presented

1. Whether a quia timet injunction against persons unknown, prohibiting unauthorised encampments and entry on public land, is proportionate and lawful in the circumstances.
2. The proper application of the proportionality test balancing Article 8 rights of the Gypsy and Traveller community against the rights of residents affected by unauthorised encampments.
3. The relevance and weight to be given to the cumulative effect of multiple injunctions granted by various local authorities.
4. Whether the appellant complied with its Public Sector Equality Duty (PSED) under the Equality Act 2010 in seeking the injunction.
5. The impact and consideration of permitted development rights under planning law on the scope of the injunction.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed proportionality analysis of the appellant’s application for a wide-ranging quia timet injunction against persons unknown, aimed at preventing unauthorised encampments by the Gypsy and Traveller community across nearly all public spaces in the borough. The court accepted the legal basis for such injunctions where a strong probability of irreparable harm exists and where procedural safeguards are met, including effective notice and clarity of terms.

However, the court found the proposed injunction disproportionate for multiple reasons:

• The injunction’s geographic scope was effectively boroughwide, excluding only cemeteries and highways, which the court found to be an accurate and problematic characterization given the severe restriction on the community’s nomadic lifestyle.
• The injunction targeted entry and occupation broadly rather than focusing on antisocial or criminal behaviour, reducing the justification for such a wide prohibition.
• The local authority failed to demonstrate the availability or proposal of alternative or transit sites, a critical factor in assessing proportionality given the recognised shortage of authorised sites for the community.
• The cumulative effect of numerous similar injunctions granted by other authorities was a relevant and weighty factor, as it effectively displaced the problem rather than resolving it, potentially leaving the community with nowhere lawful to encamp.
• The appellant failed to comply with its Public Sector Equality Duty, notably by not conducting a substantive Equality Impact Assessment or engaging meaningfully with the Gypsy and Traveller community, undermining the proportionality of the injunction.
• The proposed five-year duration of the injunction was excessively long and disproportionate without provision for review or adjustment.
• The appellant had not satisfactorily addressed the impact of permitted development rights, which might allow limited lawful occupation of land by caravans, and declined to accept a narrower injunction that would preserve those rights.

The court also emphasized the importance of procedural fairness, noting the adversarial system’s requirement that affected parties be able to present their case, which is often lacking in injunctions against persons unknown. It endorsed the requirement that the harm justifying such injunctions must be grave and irreparable and found that this threshold was met but was insufficient alone to justify the broad injunction sought.

In sum, the court concluded that the trial judge had properly considered all relevant factors, applied the correct legal principles, and exercised discretion within the generous ambit allowed on appeal. There was no error of principle or law warranting interference with the refusal of the injunction.

Holding and Implications

The court DISMISSED the appeal and upheld the refusal to grant the broad quia timet injunction sought by the appellant.

The direct effect of this decision is that the appellant cannot enforce a boroughwide prohibition on unauthorised encampments across nearly all public spaces without first addressing the proportionality concerns identified. The judgment underscores the necessity for local authorities to comply with equality duties, engage with affected communities, consider alternative accommodation solutions, and tailor injunctions narrowly to avoid disproportionate interference with the rights of vulnerable minorities.

No new binding precedent was established, but the judgment provides important guidance on the proper approach to such injunctions, highlighting the risks of wide-ranging orders that fail to account for the cultural rights and statutory protections of the Gypsy and Traveller community. It cautions against the proliferation of overlapping injunctions that cumulatively restrict lawful rights and stresses the importance of procedural fairness and substantive engagement before seeking injunctive relief.