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A new lease of life for public space injunctions?

What can councils do to obtain an injunction after the Bromley judgment? Jack Smyth looks at the lessons from the first hearing after the Court of Appeal ruling.

The injunction hearing in Canterbury City Council v Persons Unknown was the first since the Court of Appeal’s judgement in Bromley LBC v Persons Unknown [2020] EWCA Civ 12 (“Bromley”). In that case, the court deprecated the use of borough-wide injunctions but left the door open on more targeted restraints.

Before the Bromley judgement, Canterbury City Council had obtained a one-year injunction covering about 60% of its public open spaces and council carparks. In advance of its expiring in June, with my advice, it set about recasting and narrowing the terms of the relief sought in such a way as to be Bromley-compliant. Its old injunction covered 83 sites. The new injunction covers 35 sites.

The matter came before Mrs Justice Thornton, remotely, on 30 July. The legal basis was trespass.

The judge was satisfied that the qualifying conditions of INEOS were satisfied. In these circumstances, the crux of the hearing revolved around the proportionality of the relief. In crafting an injunction, the terms of the restraint must be carefully calibrated to the threatened tort. The judge ruled that the council had “scrupulously observed” the guidance in Bromley by engaging with the gypsy traveller community, drafting an equality impact assessment and carefully targeting the relief at the most vulnerable and sensitive sites. She was impressed by the council‘s site selection exercise and observed that the sites chosen appeared “logical and reasonable”.

The judge granted the prohibitory injunction until further order, but provided for a review hearing in October 2020 so that the court can hear further evidence as to the temporary provision of a transit site during the currency of the COVID lockdown and the character and extent of the “negotiated stopping“ policy of the council.

What can councils do to obtain an injunction post Bromley?

(1) The key ingredient is demonstrating that the proposed injunction is consistent with members of the gypsy traveller community exercising their nomadic habit of life. The injunction needs to be carefully targeted on the most vulnerable and sensitive sites. If it can be shown that the vast majority of public land is not restrained, it can be argued that the “lived rights” of the gypsy traveller community are being respected rather than unacceptably constrained.

(2) In order to be Bromley-compliant, it will usually be important for the council to show that its district has a transit site or it is in the process of providing one. In Canterbury, this was not the case. It did not have a transit site and had no plans to provide one. However, this was not due to a lack of political will, foot-dragging or a failure of policy. It was because the council’s 2018 GTAA advised that it was not necessary and the “negotiated stopping” policy was a better means to meet the unauthorised need. In this way, the council was able to distinguish itself from Bromley which had a significant amount of need for gypsy traveller pitches and there was no transit site in the whole of Greater London notwithstanding the obvious need.

(3) Adopting a logical and objective site selection “sieve”. In Canterbury, the council split the sites into four categories:

  • Environmentally sensitive sites (such as SSSIs and local wildlife sites)
  • Sites which were valued by local people and managed and maintained by volunteers
  • Sites with a track record of unauthorised incursions
  • Prominent & open sites in regular use where unauthorised occupation would cause considerable disruption

(4) Scrupulously follow the guidance in Bromley by engaging with the gypsy traveller community and evidencing this meaningful engagement. In Canterbury, the council advertised the fact that it was reconsidering its injunction and sought the views of members of the public, consulted its gypsy traveller liaison officer and wrote seeking the view of the local gypsy traveller charity (including offering the opportunity of a meeting to discuss their views).

Provided the spadework is undertaken by officers to follow the guidance in Bromley and the relief is targeted at particular sites, councils ought to be in a good position to obtain injunctions of this sort or renew ones they have on a narrower basis.

Jack Smyth is a barrister at No5.

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