Secretary of State for the Environment Food & Rural Affairs v Meier & Ors

The law of trespass ordinarily requires effective protection of a landowner’s possession. Where existing trespass and a real danger of further occupation of other land are proved, the court may extend a possession order on the quia timet analogy, but retains a discretion to refuse in exceptional circumstances. Guidance on unauthorised encampments requires consideration of the particular occupied site and relevant risks. It does not require indefinite toleration, and those matters are ordinarily considered when enforcement is sought. An extended possession order and an injunction may be granted together. An injunction should normally issue to protect a threatened legal right unless a sufficiently weighty countervailing factor exists.

The respondents established an unauthorised encampment on woodland owned by the Secretary of State and managed by the Forestry Commission. The recorder granted possession of that woodland but refused an extended possession order covering other Forestry Commission sites and refused an injunction restraining occupation of those sites.

The appeal concerned whether satisfaction of the Drury criterion made an extended order mandatory, whether government guidance required the Secretary of State to tolerate or defer eviction, when the guidance had to be considered, and whether an injunction was compatible with an extended possession order.

1. Extended possession order. Arden LJ, with Pill LJ agreeing, held that the court had jurisdiction to extend a possession order where the claimant proved existing trespass and convincing evidence of a real danger of occupation of other land, so that a quia timet injunction would otherwise have been available. The criterion derived from Drury [2004] EWCA Civ 200 was satisfied, and there was no cross-appeal against that finding.
2. The jurisdiction retained a discretion. Refusal should occur only in exceptional circumstances, which could include failure to perform a public-law obligation. The guidance on unauthorised camping required consideration of the acceptability of the particular occupied site, including health, safety and environmental factors. It did not require indefinite toleration or consideration of alternative sites. Those matters were ordinarily relevant when enforcement was sought, not when the order was obtained. The recorder therefore erred in refusing the extended order.
3. Injunction. An extended possession order and an injunction were complementary, not incompatible. In a society governed by the rule of law, an injunction necessary to protect a threatened legal right should normally be granted unless a sufficiently weighty countervailing factor existed. Public-law obligations, including considerations arising from Article 8, overlay but did not displace property rights. Concerns about criminalisation, proportionality and practical enforcement were principally matters for enforcement. The injunction was therefore granted.
4. Dissent. Wilson LJ agreed that the extended possession order should be made but would have dismissed the appeal concerning the injunction. He considered that adding the less effective remedy of committal was disproportionate on the evidence, which showed cooperative occupants and no demonstrated intention to defy the possession order.
5. The appeal was allowed and the respondents’ notice dismissed.

1. Court of Appeal (Civil Division): allowed the Secretary of State’s appeal, ordered an extended possession order and granted the injunction; [2008] EWCA Civ 903.
2. Poole County Court: granted possession of Hethfelton Wood but refused the extended possession order and injunction concerning other Forestry Commission sites.