Bromley London Borough Council v Persons Unknown

The Court of Appeal dismissed the appellant council's challenge to the deputy High Court judge's refusal to grant a final, boroughwide quia timet injunction against "persons unknown" prohibiting entry and residential occupation of almost all public spaces in Bromley. The court accepted that the statutory and common law tests for an injunction against persons unknown could be made out in principle but held that the judge had carefully and lawfully applied the proportionality exercise required by Article 8 ECHR and domestic law (including the public sector equality duty under the Equality Act 2010). Key material grounds for refusal were: the very wide geographical and temporal scope of the order sought, the absence of evidence of sufficient alternative or transit sites, shortcomings in the council's engagement and equality/welfare assessments (PSED/EIA), and the risk that cumulative wide injunctions would displace rather than resolve the problem.

This was an appeal from the deputy High Court judge's decision refusing to grant a final injunction sought by the London Borough of Bromley against "persons unknown" (aimed principally at Gypsies and Travellers) to prevent unauthorised encampments on 171 public sites across the borough.

Background and parties:

• The appellant sought a boroughwide quia timet injunction following a series of historical unauthorised encampments; an interim without-notice injunction had been granted in August 2018. The first intervener (London Gypsies and Travellers) represented the Gypsy and Traveller community and intervened successfully below. Numerous other local authorities and civil liberties bodies intervened.

Nature of the application and issues:

• The council sought quia timet relief in trespass and planning enforcement terms (including reliance on s.187B TCPA 1990) to prevent entry, occupation and stationing of caravans across most public spaces in Bromley. The court was asked to decide whether the quia timet requirements for persons unknown injunctions were satisfied, whether the judge erred in applying the irreparable-harm threshold, whether she misapplied proportionality (including treatment of cumulative effects of other injunctions), whether the council had complied with its public sector equality duty and whether permitted development rights had been properly considered.

Procedural posture: Appeal from the High Court (Deputy High Court Judge, Mulcahy QC) following her refusal to grant the final injunction and grant of certain fly-tipping/waste relief. The appeal was heard in the Court of Appeal where the Gypsy and Traveller community were represented at first instance and the appeal contested by the council.

Court's reasoning:

• The Court of Appeal endorsed and applied the recent guidance on injunctions against persons unknown (Joseph Boyd v Ineos), including six practical requirements for such orders. The court also reaffirmed that the quia timet test requires, as supported by authority, a showing of likely irreparable harm.
• On proportionality under Article 8 and domestic law, the deputy judge had identified and weighed a number of factors: the breadth of the injunction (effectively boroughwide), that the order targeted entry and occupation rather than demonstrated criminality, the absence of transit or other alternative sites in Bromley, the cumulative effect of similar injunctions in other boroughs, failures on the council's part to demonstrate adequate engagement/welfare assessments and a substantive equality impact assessment, the five-year duration sought, and unresolved issues about permitted development rights. The judge lawfully exercised her discretion in concluding that the order sought was disproportionate.
• The Court of Appeal found no error of law or misdirection in the judge's approach and dismissed the appeal. The court gave guidance to local authorities emphasising engagement with the Travelling community, the importance of welfare and equality assessments, consideration of transit sites, careful tailoring of any injunction (geographic/temporal limits), and attention to cumulative effects of similar orders.

Appeal dismissed. The Court of Appeal held that the deputy High Court judge had lawfully and properly exercised her discretion in applying the quia timet and proportionality tests. She had correctly required consideration of irreparable harm and had legitimately relied on the breadth and duration of the proposed order, the absence of transit or alternative sites, the council's shortcomings under the public sector equality duty and welfare engagement, the cumulative effect of other injunctions, and unresolved permitted-development issues. No error of principle or unfair exercise of discretion was identified that would justify interference.

Appeal from the High Court of Justice Queen's Bench Division (Deputy High Court Judge Mulcahy QC) whose ex tempore judgment refusing the final boroughwide injunction is reported at [2019] EWHC 1675 (QB). The appeal was heard in the Court of Appeal and dismissed ([2020] EWCA Civ 12).