Crossing the boundary

Jessica McGoldrick reports that in the battle against trespassing and illegal land possession, the extension of possession orders by the Court of Appeal may have gone a step too far

The traveller community is one which invokes mixed emotions throughout the UK, with curiosity being one of the strongest among them. Television documentaries this year have provided entertaining and thought-provoking insights into the deep-rooted traditions and cultures of this usually private community. However, the reality of unauthorised traveller settlements can be a real and difficult problem for landowners.

The Supreme Court case of Secretary of State for Environment, Food and Rural Affairs v Meier heard last year, highlights the difficulties the law has in providing an effective remedy for landowners who are faced with persistent and repeated trespass by travellers.  Presently, it seems the law cannot always provide an appropriate remedy for landowners.

The usual remedy in law to remove trespassers is a possession order. Where trespass is anticipated but has not yet occurred, it is possible to obtain an injunction as a preventative measure to stop trespassers entering or remaining on your land. In relation to travellers, actions can be brought against “persons unknown”, provided the description is sufficiently certain to identify those who are included. Therefore it is not necessary for landowners to name each and every individual.

Enforcement methods
There are important differences between possession orders and injunctions in terms of how they can be enforced. A possession order gives the landowner the right to call upon bailiffs to physically remove trespassers from the land. An injunction can only be enforced by imposing penalties such as committal to prison or sequestration (seizing assets). An injunction only binds the individual occupiers served with the order whereas a possession order operates for the protection of the land and can be enforced against anyone on the land.

In relation to trespass by travellers, a possession order is considered to be more effective as it can ultimately be enforced by the physical removal of the trespassers and can be used against anyone occupying the land. Sequestration may be viewed as an empty threat against people who have few assets and, in any event, would not necessarily lead to removal of the travellers. It is likely that it would be impracticable to seek the committal to prison of a large, probably changing group of not easily identifiable travellers and furthermore, imprisonment may be viewed as a disproportionate response by the court. Therefore, landowners may consider that even if an injunction is obtained, the enforcement methods are of little practical value.

The Meier case concerned an unauthorised travellers’ camp in Hethfelton, one of the woods in Dorset managed by the Forestry Commission and owned by the Secretary of State for Environment, Food and Rural Affairs. The travellers had already been evicted from other woodland sites managed by the Forestry Commission in the area and therefore the Forestry Commission believed that even if a possession order for Hethfelton was obtained, there was a real risk that the travellers would move onto another site nearby. The Secretary of State therefore applied for a possession order, not only in relation to Hethfelton, but also in respect of various other sites managed by the Forestry Commission in the surrounding area. The Secretary of State also applied for an injunction preventing the travellers from re-entering Hethfelton and from entering the other woods.
 
At first instance, the Secretary of State obtained a possession order in relation to Hethfelton. However, the recorder declined to grant an injunction and also declined to grant a possession order in relation to the other woods that the travellers had not yet occupied. The Court of Appeal allowed an appeal in respect of these two points and the travellers appealed to the Supreme Court.

The two main questions before the Supreme Court were (i) whether a court could grant an order for possession in respect of distinct land not yet occupied or possessed by a defendant; and (ii) Whether a court could grant an injunction restraining a defendant from trespassing on other land not currently occupied by it.

The Supreme Court held that it was not appropriate to grant a possession order in respect of land which had not yet been occupied or possessed by a defendant; the appropriate remedy in such circumstances was an injunction.

The Court of Appeal’s decision to grant a wider possession order in respect of all the woods, was a pragmatic solution to overcome the inadequacies of enforcement methods for injunctions. However the Supreme Court held that extending possession orders to such an extent would be inconsistent with the fundamental nature of an action for recovering land, because there was nothing to recover. Therefore such an extension would intrude upon ‘natural justice’.

The judges recognised that there were issues over effective enforcement of injunctions however. Lady Hale stated that, “however desirable it is to fashion or develop a remedy to meet a particular problem, courts have to act within the law, and their ability to control procedure and achieve justice is not unlimited.” The Supreme Court were also concerned that it would be inappropriate to make an order for possession over other distinct areas of land in circumstances where the occupiers of such land had not had the opportunity to have their position represented before the court.

The way forward
The judges agreed on the need for reform and proposed that the Rules Committee should devise a new remedy for breach of an injunction. Therefore, whilst Meier has limited the scope of possession orders, it will hopefully lead to a more appropriate remedy in the future for breaches of injunctions.

In the meantime, landowners can still use possession orders in respect of land actually occupied by travellers and can obtain an injunction to prevent travellers from entering or remaining on land where trespass is a real possibility. The extent of any land which can be included in a possession order will depend on the facts of each case. Following Meier, it is clear that the order could not be extended to include other distinct sites. However, it may still be possible to obtain a possession order in respect of one entire registered title even if travellers only occupied part, depending on the circumstances.

It should not be assumed that travellers will breach an injunction, and indeed injunctions do still carry a degree of utility for landowners. The court has the ability to impose shorter time limits for possession orders and has shown willingness to do so when necessary, for example, when there is a substantial risk of public disturbance or of serious harm. In one case relating to protestors, a possession order was obtained and enforced in one day. The High Court judge shortened service to two hours and even authorised service of the order by a loudhailer announcement from a helicopter.

The wider issue at stake is that there are insufficient authorised sites for travellers. One of the travellers in Meier stated in her evidence: “We are a collection of people trying to live. I am a traveller. I am forced into a position of being called a trespasser because there is nowhere for me to go.” The traveller community have the right to live their nomadic lifestyle in accordance with their own distinct culture yet there is a real need for the provision of sufficient authorised traveller sites to allow them to do so. If the issue over the shortage of authorised sites was addressed, then difficult situations for landowners in relation to unauthorised traveller camps need not arise in the first place.

Jessica McGoldrick is a trainee solicitor in the property solutions team at law firm Halliwells LLP. Email: jessica.mcgoldrick@halliwells.com