Out-Law News 2 min. read
04 Dec 2023, 10:19 am
Local authorities in England seeking court injunctions to prohibit unauthorised encampments on land they own must disclose to the courts any arguments gypsies and travellers might raise in opposition to their applications, the UK Supreme Court has ruled.
In a judgment issued last week, the Supreme Court considered the extent to which the courts in England and Wales have the power to issue so-called ‘newcomer injunctions’ – court orders issued against persons who are unknown and unidentified at the date of the grant of the injunction, and who have not yet performed, or even threatened to perform, the acts which the injunction prohibits.
The court considered the issue in the context of concerns many local authorities have about gypsies and travellers trespassing or breaching planning controls, but its ruling has broader application to other would-be applicants for, and would-be targets of, newcomer injunctions.
The Supreme Court said that the courts do have the power to issue newcomer injunctions – but that those powers should only be exercised in certain circumstances.
It said: “They are only likely to be justified as a novel exercise of an equitable discretionary power if there is a compelling need, sufficiently demonstrated by the evidence, for the protection of civil rights (or, as the case may be, the enforcement of planning control, the prevention of anti-social behaviour, or such other statutory objective as may be relied upon) in the locality which is not adequately met by any other measures available to the applicant local authorities (including the making of byelaws).”
Even in cases where a newcomer injunction is deemed justified, the Supreme Court said a series of safeguards would need to be put in place to ensure “procedural fairness”. It considered the safeguards are required since newcomer injunctions are made without notification being given to the people affected.
One safeguard it specified is a new “disclosure duty” on local authorities that apply for newcomer injunctions, requiring them to “present to the court everything that might have been said by the targeted newcomers against the grant of injunctive relief”, based on prior research. The court considered this duty appropriate since gypsies and travellers’ interests are not typically represented at newcomer injunction hearings.
“The full disclosure duty is of the greatest importance,” the Supreme Court said. “We consider that the relevant authority must make full disclosure to the court not just of all the facts and matters upon which it relies but also and importantly, full disclosure of all facts, matters and arguments of which, after reasonable research, it is aware or could with reasonable diligence ascertain and which might affect the decision of the court whether to grant, maintain or discharge the order in issue, or the terms of the order it is prepared to make or maintain.”
“This is a continuing obligation on any local authority seeking or securing such an order, and it is one it must fulfil having regard to the one-sided nature of the application and the substance of the relief sought. Where relevant information is discovered after the making of the order the local authority may have to put the matter back before the court on a further application,” it said.
The court added that it must be “just and convenient” for a newcomer injunction to be granted, adding that applications for such injunctions may not satisfy that requirement if the injunction would restrain travellers from using some sites as short-term transit camps but the local authority had “failed to exercise its power or, as the case may be, discharge its duty to provide authorised sites for that purpose within its boundaries”.
The Supreme Court said local authorities to ensure their application for a newcomer injunction is advertised widely – and that when such an injunction is granted it is displayed in a prominent location at the affected site. It added that injunctions granted should be “constrained by both territorial and temporal limitations so as to ensure, as far as practicable, that they neither outflank nor outlast the compelling circumstances relied upon”, and that those impacted by the injunction should have a right to apply to the court to have that injunction set aside – without having to first show that the circumstances have changed.