Landowners frequently turn to their legal advisers for help in evicting travellers or squatters from land, and a recent case should have some bearing on the way in which a possession claim against travellers is approached.

The Supreme Court ruled in December last year that it would effectively be a contradiction in terms to grant a sort of quia timet possession order in respect of land which is not yet occupied by trespassers, particularly if it is some distance from the site in question.

Secretary of State for the Environment and Rural Affairs v Meier (2009) concerned a relatively small number of travellers at Hethfelton Wood in Dorset. Some of them had been camped in woodland a few miles away from Hethfelton, but, when DEFRA issued possession proceedings for the other land, they agreed to leave, only to move to Hethfelton to join the existing encampment. A third set of people who had been ejected from other DEFRA land nearby then also moved into Hethfelton. Exasperated, DEFRA issued proceedings against all the defendants whom it could name, plus ‘persons unknown’. The land subject to the claim was not just Hethfelton, but some 50 other woods covering a large part of the county; although this number was subsequently pared down to 13 sites covering an area of around 25 miles across by ten miles.

Then appeal came to the Supreme Court on two points, which Baroness Hale neatly summarised:

  1. Can the court grant a possession order in respect of land, no part of which is yet occupied by the defendant, because of the fear that she will occupy it if ejected from the land which she currently does occupy?
  2.  Should the court grant an injunction against that feared trespass?

As to the first question, the Supreme Court held that it was simply not possible for DEFRA to obtain possession of land of which it was not dispossessed, particularly since it was seeking a “blanket” possession order spanning most of a county. DEFRA pleaded that a practice had evolved of asking the courts to include not only the area of woodland in wrongful occupation, but all other areas of woodland it owned within a specified radius.

In terms of the injunction, the point was made in judgment that injunctions are a fairly toothless remedy as far as travellers are concerned because a traveller’s main asset is his vehicle, which is also his home. As such, sequestration would be ‘pointless or oppressive’. Since many of the defendants are vulnerable, and most of them have young children, imprisonment may very well be disproportionate. Nonetheless, the Supreme Court upheld the injunction against the anticipated trespass on the basis that it was not “plainly wrong” to grant it.

Points arising from Meier

Possession orders can still go further than just the occupied land, but only slightly! As Lord Neuberger pointed out when giving judgment, “this does not mean that, where trespassers are encamped in part of a wood, an order for possession cannot be made against them in respect of the whole wood”. What is less certain is where the crossover point lies – could it be asking too much to try to seek possession of a 3000-acre estate when travellers have set up camp on a sugar beet pad in the middle of it? According to Lord Neuberger, that may well be the case, and claimants should not be over-ambitious when defining land in a possession claim.

Following the guidance

This case serves as a useful reminder that a claimant (particularly an “eminence of the state”) can find his position prejudiced by a failure to adhere to non-statutory guidance. The relevant guidance here is Managing Unauthorised Camping (published by Communities and Local Government and available at www.communities.gov.uk). It was undisputed that the claimant public body should comply with the guidance before starting proceedings, and that the proceedings ran the risk of being invalidated if it transpired that the guidance had not been followed. It is questionable as to whether adhering to the guidance is as relevant to private landowners as it is crucial to public bodies – self-help remains an available (if rather unfashionable) remedy. Nonetheless, “roughing up” your unwelcome visitors is, putting it mildly, not going to elicit any judicial sympathy.

How useful is an injunction?

There is a fine line to be drawn here, because the Supreme Court has with one hand endorsed this injunction, while observing that it would not be likely to prove a very satisfactory remedy when the time came to enforce. As such, prospective claimants should balance the effectiveness of the threat of sequestration or imprisonment against the possibility that courts may in future be less willing to award injunctive relief in cases such as this.  

How does a claimant protect the rest of his land?  

Lord Neuberger expressed a preference for declaratory relief over an injunction which may well be difficult to bring to bear. His reasoning was that the court could grant a declaration that the claimant is in possession of other land and that the travellers have no right to dispossess him of it. This would help the claimant resolve any subsequent proceedings to his advantage.  

One certainty now subsists though – blanket possession orders are history, and claimants should think less about injunctions and more about declarations.