Preventative injunction to stop ‘newcomers’ from trespassing

The Supreme Court have confirmed the courts’ ability to grant injunctions against persons who are not identifiable when the injunction is granted, and who are yet to perform, or threaten to perform, the acts which the injunction looks to prevent. Known as ‘Newcomer Injunctions’, these are a wholly new type of injunction granted by the court in the recent decision in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47.

Background

The case concerned injunctions obtained by a number of local authorities between 2015 and 2020 preventing unauthorised encampments by Gypsies and Travellers on local authority land. The injunctions were obtained without notice and were addressed to ‘persons unknown’. Once granted, copies of the injunction were displayed at the relevant land. Some of the injunctions were valid for a fixed period of time whereas others contained provisions allowing for them to be reviewed, varied or discharged.

From around mid-2020, the local authorities submitted applications to extend or vary the injunctions which led to a review of all newcomer injunctions affecting the Gypsies and Travellers by the High Court. The High Court deemed the use of final or long-term injunctions to be disproportionate, ruling that the court did not have the power to grant newcomer injunctions.

On an appeal by the local authorities, the Court of Appeal subsequently reversed the decision made by the High Court and held that the court did in fact have jurisdiction to grant final injunctions that prevented newcomers from occupying and trespassing on land. Those representing the interests of Gypsies and Travellers appealed to the Supreme Court.

Agreeing with the Court of Appeal, the Supreme Court unanimously dismissed the appeal and confirmed the courts’ power to grant newcomer injunctions.

When will the courts grant an injunction?

In its judgment, the Supreme Court set out guidance as to when a Newcome Injunction is likely to be considered, requiring anyone seeking to apply for a newcomer injunction to satisfy a number of conditions before this will be justified:

• The applicant must demonstrate a compelling need for the protection of the rights of the landowners which is not met by any other measures available to them.

• There must be procedural protections for the rights of those affected by the injunction - the applicant must take, “all reasonable steps to draw the application and any order made to the attention of those likely to be affected by it.” This includes identifying the class of people to which the injunction will apply and taking steps to make them aware of the application and injunction once it is granted.
• The applicant is expected to disclose any facts that they are aware of which could be relied upon to oppose the application. This obligation is an ongoing one and continues even after the injunction is granted. The applicant should continue to disclose relevant information as and when they become aware of it.
• The injunction must be clear and limited in its scope – the injunction must be clearly limited in terms of its duration and the area that it is intended to cover. This should not be more than what is required, as a minimum, to provide the applicant with adequate protection.
• It must be “just and convenient”, looking at the facts of the individual application to impose an injunction.

Practical Implications

The strict guidelines set by the court are careful to ensure that the use of such injunctions are to be reserved as a ‘last resort’ protection for landowners and it is unlikely that these will be granted lightly. The exact criteria that needs to be satisfied will inevitably be refined and detailed over time, but the decision will certainly be welcomed by local authorities and landowners, providing them with further protection against trespassers where other measures are deemed unsuitable.

The decision also has wider implications. Although this case relates to unlawful encampments, the injunctions may be used to prevent unlawful behaviour in a number of different contexts including cyber-crime, intellectual property disputes, rioting and unlawful social media activities.

What can we do to help?

If you require assistance removing trespassers or need any advice on any other property disputes issues please contact Tom Edwards on 01274 386567 or email ku.oc1714280868.fcl@1714280868sdraw1714280868det1714280868 for more details.

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