Secretary of State for Environment, Food, and Rural Affairs v Meier and another

An action for recovery of land cannot be used to forestall occupation of wholly separate land. A possession order may cover a single property where trespassers occupy only part, but it cannot extend to detached land which they neither occupy nor possess and which remains in the claimant’s possession.

A real threat of trespass may ordinarily be restrained by injunction, absent good reason. The possibility that sequestration or imprisonment may prove unsuitable does not make an otherwise appropriate injunction unavailable. Non-statutory guidance directed to existing unauthorised encampments does not preclude an injunction preventing new encampments, although it may be relevant to the injunction’s terms or enforcement.

Travellers established an unauthorised camp on Hethfelton Wood, which was owned by the Secretary of State and managed by the Forestry Commission. The Secretary of State brought a possession claim under Civil Procedure Rules 1998 Part 55 and sought an injunction. The claim covered Hethfelton and thirteen other woods in Dorset which the defendants did not occupy.

The county court granted possession of Hethfelton but refused a wider possession order and an injunction. The Court of Appeal allowed the Secretary of State’s appeal, granting both remedies: [2008] EWCA Civ 903, [2009] 1 WLR 828.

The travellers appealed. The central questions were whether a possession order could extend to wholly separate, unoccupied land and whether an injunction against threatened trespass was appropriate, having regard to its likely enforcement and the non-statutory guidance on unauthorised camping.

1. Disposition. The Court unanimously allowed the appeal in part. It set aside the possession order relating to the thirteen other woods but upheld the injunction restraining the defendants from trespassing there. The unchallenged possession order for Hethfelton remained effective.

2. Limits of a possession order. An action under section 21(1) of the County Courts Act 1984 is an action to recover land from a defendant who wrongfully possesses it. The special procedure in Civil Procedure Rules 1998 Part 55 permits speed and proceedings against persons unknown, but it does not alter the essential nature of the remedy. A court cannot order a defendant to deliver possession of wholly distinct land which the defendant does not occupy and which the claimant already possesses. The contrary authorisation in Secretary of State for the Environment, Food and Rural Affairs v Drury [2004] EWCA Civ 200 could not stand. Ministry of Agriculture, Fisheries and Food v Heyman (1990) 59 P & CR 48 was wrongly decided.

3. A single property. A possession order may extend across a single property although the trespassers physically occupy only part. University of Essex v Djemal [1980] 1 WLR 1301 was distinguishable because it concerned one university campus rather than detached properties. Lord Rodger, Lady Hale and Lord Collins considered its result justified by the indivisible nature of the premises or by interference with the claimant’s occupation. Lord Neuberger left its formal correctness open because the parties had not challenged it.

4. Injunction. Per Lord Neuberger, where a trespass is threatened, particularly after past or continuing trespass, an injunction is ordinarily appropriate unless good reasons point against it. The court may consider whether the order has a real deterrent effect and whether sequestration, committal or another enforcement measure could realistically be used. Those matters are relevant rather than automatically decisive. Apprehension that an order may be disobeyed does not bar an otherwise appropriate injunction. Lord Rodger agreed with Lord Neuberger’s reasons, and Lord Walker agreed with Lord Rodger’s observations concerning injunctive relief.

5. Unauthorised-camping guidance. The 2004 Guidance addressed the management of existing encampments and did not prevent an injunction against establishing a future encampment. Its non-statutory character was insufficient to displace the landowner’s right to seek protection from threatened trespass. Depending on the facts, failure to have regard to relevant guidance could bear upon the terms or enforcement of an injunction. Mere failure to comply with non-statutory guidance would be unlikely, by itself, to make a decision unlawful.

6. Procedural reform. The possible use of a writ or warrant of restitution following breach of an injunction or declaration was left undecided. The Court indicated that the enforcement rules and the treatment of circumstances such as those in University of Essex v Djemal warranted consideration by the Civil Procedure Rules Committee.

1. United Kingdom Supreme Court: In [2009] UKSC 11, unanimously allowed the defendants’ appeal in part. The wider possession order was set aside, while the injunction and the possession order for Hethfelton remained effective.
2. Court of Appeal: In [2008] EWCA Civ 903, [2009] 1 WLR 828, allowed the Secretary of State’s appeal. It granted possession of thirteen additional woods and, by a majority, an injunction restraining trespass there.
3. Poole County Court: On 3 August 2007, Mr Recorder Norman granted possession of Hethfelton but refused both the wider possession order and the injunction.