Eviction from land not owned by Travellers

Landowners can use common law powers to remove trespassers from their land. This includes travellers who are on land without permission.

Local authorities can take steps to remove unauthorised travellers from any land in their district, regardless of ownership.

Some types of landowners may also have additional powers to remove travellers who are there without permission.

Highway land

Highway authorities have the right to remove vehicles parked on highway land (usually the land between the fences on either side of the road) since it is an offence for a person without lawful authority or excuse to obstruct free passage on a highway.[1]

There are also powers to remove vehicles that are illegally, obstructively or dangerously parked, or abandoned or broken down on a highway.[2] Highway authorities can also use the Criminal Justice and Public Order Act 1994.

Common land

Members of the public have rights of access for air and exercise on some common land,[3] but do not have the right to drive caravans on to the land and camp there.[4] District councils can also make orders prohibiting caravans on common land for the purposes of human habitation.[5]

Local authority land

Local authorities can evict Travellers from their own land using trespass laws or using the Criminal Justice and Public Order Act 1994

Private land

Under common law, private owners have the right to evict trespassers. In certain circumstances they can also ask the police to direct unauthorised occupiers from the land under the Criminal Justice and Public Order Act 1994.

Network Rail land

If the Travellers are on operational Network Rail land (formerly British Rail land, ie near a railway line), an authorised person, after requesting Travellers and vehicles to leave, has the power to arrest without a warrant.

If a person is on someone else's land without permission they are committing the civil tort of trespass. It is not a criminal offence. To evict a trespasser from open land the owner must issue proceedings using the summary possession proceedings in a county court or the High Court.[6]

The Supreme Court has decided that whilst a possession order can only be made in respect of the land actually occupied, an injunction can be made regarding land that trespassers might occupy in the future (ie once they have been evicted from their current site).[7]

The Criminal Justice and Public Order Act 1994 gives local authorities powers to act to remove persons living in vehicles from land. In certain circumstances, refusing to leave someone's land or re-entering without permission might be a criminal offence.

Enforcement by the local authority

Under section 77 of the Criminal Justice and Public Order Act a local authority can order any person living in a vehicle within its area to move off any land that either:

• forms part of a highway

• is unoccupied (even where the person is causing no nuisance or interference to neighbours etc)

• is occupied, but the occupier has not given permission to them to reside there

Although the section of the Act uses the words 'unauthorised campers', the powers can be used where a Traveller is either on unoccupied land with the owner's consent or on occupied land with the owner's consent where the consent is subsequently withdrawn.

Criminal offences

A criminal offence is committed if Travellers fail to leave the land as soon as practicable after receiving a direction from the local authority to move, and the Travellers can be fined.[8] A removal direction (and a consequent removal order) only applies to people on the land at the time the direction was made and not to those who arrive on the site afterwards.[9]

Under section 60C, a criminal offence is committed if a person resides on someone's land in or with a vehicle and without permission.[10]

An offence under section 60C is committed if a person:

• resides or intends to reside on someone's land without permission

• does not leave someone's land as soon as reasonably practicable when asked to do so

• resumes residence on the land within twelve months after they were asked to leave

For the offence to be committed, the person's residence or conduct must cause or be likely to cause 'significant damage or significant disruption'.

Returning to the land

It is an offence for a Traveller to re-enter the land with their vehicle within three months of the date of the direction to leave, and they can be fined if they do so.[11]

If proceedings are brought for the offence and the Traveller was unable to leave due to vehicle breakdown, illness or another emergency, this is a defence to the action.

The Act gives the police certain powers, including directing caravans to leave if a suitable pitch is available.[12] If this happens, returning is prohibited for twelve months.[13]

Returning to the site is also prohibited for twelve months if action has been taken under section 60C.

The Hight Court has found the twelve months' period to be a breach of Gypsies and Travellers' rights under the European Convention on Human Rights, because there is a shortage of transit pitches and transit pitches cannot be occupied for longer than three months.[14]

Surrounding areas of land

The Supreme Court has decided that whilst a possession order can only be made in respect of the land actually occupied, an injunction can be made regarding land that trespassers might occupy in the future (ie once they have been evicted from their current site).

However the landowner must show that there is a real likelihood of the Travellers camping on the adjoining areas.[15]

Groups affected by the offence

Advisers should note that this section applies to any person who resides in a vehicle and so affects both Gypsies and other Travellers. Only those who live (rather than being on holiday) in a vehicle are affected.

This section means that all Travellers without a secure pitch will find themselves at risk of committing a criminal offence.

Local authority powers to remove vehicles

Sections 78 and 79 of the Act enable a local authority to apply to a magistrates' court to obtain a removal order so that it can go onto the land and remove vehicles that are there in contravention of a direction to leave.

An authority has the power to remove vehicles after giving 24 hours' notice to the owner or occupier, unless the authority is unable to obtain their names and addresses.

Some local authorities have obtained injunctions against persons unknown in order to prevent Gypsies and Travellers from setting up encampments in their area.[16]

Injunctions against persons unknown are an exceptional measure, because they deprive the other party of the opportunity to engage in the litigation process.[17]

Injunctions against newcomers

Injunctions against unauthorised encampments are also referred to as injunctions against 'newcomers' because the persons bound by them cannot be identified at the time of the order and their occupation of the affected area is potential rather than actual.[18]

The Supreme Court has held that an injunction against newcomers is justified if the local authority shows that it is the only measure capable of protecting civil rights or enforcing public law.[19]

The Supreme Court has given the following guidance:

• local authorities should take reasonable steps to bring an application for an injunction to the attention of any newcomers

• any injunction against persons unknown should be clearly displayed at the affected site

• the court should be notified of anything that the newcomers might raise in opposition to the injunction

• injunctions against newcomers should be limited in duration and should not apply to a disproportionately wide area

Borough-wide injunctions

The Court of Appeal has confirmed that Gypsies and Travellers are protected under the Equality Act 2010 as ethnic minority groups, and that applications for borough-wide injunctions to prevent setting up encampments should not be made unless local authorities have taken alternative steps first. The Court has given guidance about how local authorities should approach applications for borough-wide injunctions, including:[20]

• providing sufficient transit sites or alternative accommodation arrangements in the area

• engaging with the Gypsy and Traveller communities to maximise the chances of reaching a solution without an injunction being necessary

• taking into account the specific needs, vulnerabilities and lifestyle of the affected communities

• giving special consideration to the timing, manner and duration of the measures taken to deal with unlawful settlements

• carrying out equality impact assessments and welfare assessments, particularly in relation to the welfare of children

Injunctions protecting specific areas

Local authorities can also apply for injunctions to prevent setting up encampments in specific areas, for example, car parks.[21]