Steven Woolf examines the decision in London Borough of Bromley v Persons Unknown  EWCA Civ 12
This is the third and quite possibly the last article I will pen in relation to Borough-Wide Preventative Injunctions. That is because, following the handing down by the Court of Appeal of their judgement in the Bromley Appeal, we have definitive appeal court guidance as to how local authorities should deal with such applications.
Bromley lost their appeal, as I had previously predicted. However, it is worth bearing in mind that the original application had a number of flaws and those flaws could not be papered over by the expert advocacy of their counsel before the Court of Appeal. Happily, however Injunctions of this type were recognised by the Court of Appeal in Bromley as an important part of the armoury to protect green spaces, used and enjoyed by the wider public.
At paragraphs 100-109, his Lordship LJ Coulson set out what he believed to be the overall position as regards such applications, particularly as they affect the Gypsy and Traveller community and gave guidance as to what the Courts would expect to see from a local authority applying for such relief.
The following is a useful Summary:
- There is an inescapable tension between the Article 8 rights of the Gypsy and Traveller Community and the common law of trespass;
- The obvious solution is the provision of more designated transit sites;
- Regular engagement, through a process of dialogue and communication with the Gypsy and Traveller community would assist in avoiding injunctions of this type all together;
- As part of the process of dialogue and communication, regular Welfare Assessments and Equality Impact Assessments need to be carried out;
- Boroughwide injunctions are very likely to be refused because they give no room to manoeuvre, so any future application would have much higher prospects of success where only those particularly vulnerable sites are targeted for protection;
- Injunctions for a period of 5 years will rarely if ever be granted. Injunctions for 1 year, after which there is a review was commented upon as being far more sensible;
On balance it is clear from the Summary above that their Lordships were not terribly keen on injunctions of this nature and absolutely clear that, in their view, that Borough-wide and extended period injunctions could not be justified, save in the most extreme circumstances. However, they recognised that, with the right checks and balances and the operation of proportionality, applications of this nature have an important role to play in ensuring that green spaces and other areas are protected from inappropriate use, including most obviously fly-tipping.
Having obtained near-on 30 such injunctions across London and the South-East, I will be discussing the judgment of the Court of Appeal very closely with all those local authorities I have assisted. Those with final orders will almost certainly want to renew them at the end of their existing life and those authorities with interim orders will now wish to make the interim; final. However, as I was very conscious even before the first instance ruling of Ms. Leigh-Ann Mulcahy QC in the Bromley case, of the need for a balanced and proportionate approach to such applications, I remain confident not only that those preventative injunctions that I have already obtained will be maintained but also that, with the guidance of the Court of Appeal, and with the correct preparation and application of the evidence combined with a clear understanding of the law, worthy and proportionate applications seeking protection of Green Spaces will continue, ensuring the land which in the words of Mrs. Justice Lang in Waltham Forest Borough Council v Persons Unknown  EWHC 240 (QB) was to be “used and enjoyed for their designated purposes”, can continue to be so used.
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