Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903

[2008] EWCA Civ 903

Case No B5/2007/2001

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE POOLE COUNTY COURT

MR RECORDER NORMAN

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2008

Before

LORD JUSTICE PILL

LADY JUSTICE ARDEN

LORD JUSTICE WILSON

Between

SECRETARY OF STATE FOR THE ENVIRONMENT FOOD AND RURAL AFFAIRSAppellant

NATALIE MEIER & ORSRespondents

Mr John Hobson QC & Mr John Clargo (instructed by Messrs Whitehead Vizard) for Appellant

Mr Richard Drabble QC & Mr Marc Willers (instructed by Community Law Partnership) for Respondents

Hearing Hearing date : 29 April 2008

Judgment

Lady Justice Arden :

[1]The respondents to this appeal have a nomadic lifestyle. In 2007, they established an unauthorised encampment on woodland known as Hethfelton Wood, near Wool in Dorset. They have since resided there and taken vehicles on to the land. Hethfelton Wood is vested in the appellant, the Secretary of State for the Environment, Food and Rural Affairs (“the Secretary of State"). The Forestry Commission manages it. The respondents’ encampment was unauthorised, and contravened bye-laws of the Forestry Commission made pursuant to s 46(1) of the Forestry Act 1967. In May 2007, the Secretary of State made an application to Mr Recorder Norman, sitting in the Southampton County Court, for a possession order in relation to Hethfelton Wood. That application was successful, and the order so made is not in issue on this appeal. The Secretary of State also made a further application on the same occasion for a possession order in relation to other woodlands, likewise vested in the Secretary of State, within a specified area of Dorset, and also made an application for an injunction preventing the respondents from entering or occupying those other woodlands. That application was refused, and the recorder’s order for its dismissal is the subject of this appeal. The question that we have to decide is whether the law of trespass, which protects landowners from acts of threatened trespass, can be interpreted as to require a public body to tolerate acts of trespass by persons who otherwise lack suitable accommodation.

The parties

[2]The Forestry Commission is a statutory body. Its powers are governed by the Forestry Act 1967. The principal function of the Forestry Commission is to promote the interests of forestry, the development of afforestation and the production and supply of timber and other forest products (s 1 of the 1967 Act). The Commissioners have power to make byelaws, which are made by statutory instrument: see s 46 of the Forestry Act 1967. A contravention of a byelaw is a criminal offence (s 46(5)). It is not suggested that the statutory powers of the Commissioners extend to providing sites, permanent or temporary, for travellers.

[3]It is necessary to give background about only some of the respondents. Ms Natalie Meier, the first respondent, has been a traveller for five years, having lived in a trailer on her mother’s drive prior to this and has been in the Dorset area for two to three years with her two children. She made a homelessness application initially for an authorised site or pitch, but at trial she stated that she would consider bricks and mortar accommodation.

[4]Ms Sharon Horie, the second respondent, has been a traveller for over twenty years spending time in India, Nepal and France. She has three children, who all attend formal education of some form in the local area. She has, however, recently made a homelessness application. The fifth respondent, Ms Rand, has a severely disabled child, and she has recently resided in the Dorset area where a complex care package for her daughter is administered. The respondents, or some of them, and their families were previously encamped at Moreton Plantation (less than five miles away from Hethfelton), which is also owned by the Forestry Commission, before possession proceedings were commenced and they moved to Hethfelton.

[5]It was alleged by the Forestry Commission that all of the respondents have at some time or another been encamped upon Forestry Commission land and that this practice is likely to continue. The current action for the possession of Hethfelton Wood was brought after Forestry Commission representatives discovered the travellers’ encampment at Hethfelton Wood and a request for them to move on was not complied with. The Forestry Commission considered that the action for possession was needed due to the likelihood of the respondents repeating their occupation of Forestry Commission land. According to the first witness statement of Mr William Parke of the Forestry Commission, Ms Horie requested that the Forestry Commission identified land on to which the respondents could move and be allowed to stay without the need for eviction. Mr Parke states that he told her that he would not do that because it would shortcut the democratic process. His witness statement states that he pointed out that the provision of accommodation for travellers is a matter for the County Council, that they had the matter in hand and that the question of planning consent had to be resolved. Ms Horie explained in her evidence that she was not targeting the Forestry Commission but said that it would be helpful if the Forestry Commission would help put pressure on the County Council to provide the respondents with sites. She also states that she did not say that if they were evicted from their current encampment that they would move on to the next bit of local Forestry Commission land. She states that she said that what the respondents needed was to stay locally because of their commitments to schools, college and work.

[6]Two only of the defendants in the action are represented on this appeal and they are Ms Sharon Horie and Ms Lesley Rand. The form of order sought by the Secretary of State is an order for possession and an injunction against all the respondents (save one who has since died) and other unnamed persons occupying or residing at Hethfelton Wood.

[7]There is no suggestion in the evidence that there was some other obvious and available authorised site where the respondents could camp in Dorset. Apart from some evidence of antisocial behaviour towards other residents at a previous site (Morden Heath), the evidence does not disclose any suggestion of antisocial behaviour in terms of the tipping of rubbish, the destruction of the environment or conduct towards other members of the public or persons accessing the woodland, or the police, or officials representing the Secretary of State or the Forestry Commission, at Hethfelton Wood. The evidence was that the site there was “relatively tidy” (judgment of the recorder [19]). The recorder found: “The overall impression from the evidence is of a reasonably well organised site (comparatively speaking) with occupants who are co-operative with those that deal with them, albeit not to the extent of decamping on demand.” (judgment [20])

[8]It was said in argument that the Forestry Commission made no complaints about the respondents. There was evidence that the encampment had led to a delay in the seasonal thinning of trees. The Forestry Commission took the view for health and safety reasons that heavy plant to assist in this work could not be moved into the wood near where the respondents were camped. This delay may have had some effect on sales of timber and growth of the plantation.

[9]Ms Horie gave evidence that: “We are a collection of people trying to live. I am a traveller. I am forced into a position of being called a trespasser because there is nowhere for me to go. ” (judgment of the recorder [38]) The wider context: the problem of lack of sites and the government’s guidance to public bodies about unauthorised encampments

[10]There is a serious shortage of pitches for travellers. A report on Dorset Traveller Needs Assessment by Anglia Ruskin University dated October 2006 states that in England there are now about 2,500 “unauthorised caravans” and that this was a small number in comparison with the numbers of homeless people (para. 3.6). The evidence in this case shows that, as at March 2007, there was an immediate need for 407 additional pitches in Dorset to resolve problems associated with unauthorised camping, including 100 pitches to accommodate short-term needs. Dorset County Council (“DCC”) had been attempting to identify sites for about six years but land is in short supply and service had proved difficult. Not surprisingly the view of DCC is that applications for possession by landowners would increase the pressure on it and seriously restrict the options of travellers to live anywhere in Dorset.

[11]The government has over many years issued guidance to public bodies responsible for providing homes and to police. For example, in February 2004, the Office of the Deputy Prime Minister issued guidance entitled Guidance on Managing Unauthorised Camping. This guidance is aimed primarily at local authorities and police who share the responsibility of managing unauthorised camping, but will also be relevant to all bodies likely to be involved in partnership approaches. The guidance is described as advisory (para.1.5). The guidance recognises that, while there are insufficient authorised sites and there would be locations where encampment would not be acceptable under any circumstances, each location has to be considered on its merits against criteria such as health and safety and serious environmental damage and land use:

“Unacceptable encampment locations 5.4 Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampments will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risks, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land uses…. ”

[12]Para. 6.14 states:

“Several government bodies are major landowners and their land may be subject to unauthorised encampment -- examples include the Forestry Commission and the Highways Agency. Public bodies should ask local authorities to assist with welfare enquiries and local authorities should be prepared to help with these.”

[13]An annex to this document states that local authorities are concerned in planning and information, race relations, site provision and land use planning, site protection, housing and homelessness, traveller education, social services, refuse collection, unauthorised camping, communication and public relations. The same annex refers to the Forestry Commission. It states that it should be consulted as to its role in relation to unauthorised encampments. Although there is no reference in this context to the Secretary of State, who technically holds the land managed by the Forestry Commission in a case such as this, this guidance is intended to be read as if the Forestry Commission were the landowner. That takes me naturally to consider the protection that the law provides in cases of threatened intrusion on to land. No-one has doubted the importance of the ancient law of trespass in the ordinary case. It is consistent with the rule of law that the courts should provide full and prompt protection to owners of land on which others trespass: see President of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC), referred to below.

The decision in Drury v the Secretary of State

[14]The decision of this court in Drury v the Secretary of State

[2004] 1 WLR 1906

is now the leading authority on possession orders where acts of trespass are threatened. The principal issue was whether an order for possession of land, to be made against the known occupiers of land and “persons unknown”, should be limited to the land actually occupied by the trespassers or could extend to other land owned by the same claimant. Like this case, the land in question was woodland vested in the Secretary of State and managed by the Forestry Commission. The Secretary of State was represented then, and on this appeal, by Mr John Hobson QC. The appellant, like the respondents in this appeal, was a traveller and she was represented by Mr Richard Drabble QC, who also appears for the respondents to this appeal. The court rejected the argument that there was no jurisdiction to make an order for possession to other parcels of land. Wilson J (as he then was), with whom Ward and Mummery LJJ agreed, held that an order for possession could be made in respect of the further area where a quia timet injunction would have been granted:

“[20] In my view, the key to this case indeed lies in the law's recognition that even an anticipated trespass sometimes gives rise to a right of action. But, where it does so, it should offer an effective remedy, otherwise the right is nugatory. Thus, if a claimant entitled to an order for possession of a certain area of land were to contend that its occupants are likely to decamp to a separate area of land owned by him, the separate area should, in my view, be included in the order for possession if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area.”

[15]He then went on to approve the test laid down by Saville J in Ministry ofAgriculture, Fisheries and Food v Heyman (1989) 59 PC & R 48:

“Given that the court's powers are not limited to the particular area adversely occupied, the question remains as to what is required to justify an order for possession extending to other areas as well. To my mind neither the fact that the land is rural rather than urban, nor the fact that there are parcels of land which are geographically separated from each other, necessarily determines the matter one way or the other. In my judgment what is needed (apart of course from the other requirements of Order 113) is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted.”

[16]He then set out the general description of the test for quia timet injunctions set out in Snell’s Equity, 30th ed (2000), p 719, para. 45-13:

“Although the claimant must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for "preventing justice excelleth punishing justice". This class of action, known as quia timet, has long been established, but the claimant must establish a strong case; "no one can obtain a quia timet order by merely saying 'timeo.’ He must prove that there is an imminent danger of very substantial damage…”

[17]Wilson J continued:

“[21] It follows that the inclusion in a possession order of an area of land owned by the claimant which has not yet been occupied by the defendants should be exceptional. Although it would be foolish to be prescriptive about the nature of the necessary evidence, it seems safe to say that it will usually take the form either of an expression of intention to decamp to the other area or of a history of movement between the two areas, from which a real danger of repetition can be inferred or, as in the MAFFcase itself, of such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to the other.”

[18]The passage which I have italicised therefore expresses the circumstances in which in a case such as this the court has jurisdiction to grant an order for possession. It was repeated by Mummery LJ at [35]. This condition has been referred to in argument on this appeal as the Drury criterion.

[19]Wilson J went out to point out the “paradox” that the court has jurisdiction to grant this extended order where part of an owner’s land is occupied by the trespassers, but not ( as he held) where none of it was already occupied:

“[22] Nevertheless, in my view, the existence of the jurisdiction to include an area of land in a possession order by reference only to an anticipated trespass creates a paradox. For it avails only the landowner who can complain of actual trespass on one area of its land at the time of issue of proceedings and who is entitled to a possession order by virtue thereof. However clear may be the evidence of risk that persons will wrongfully occupy an area of land, its owner will not at that stage be entitled to a possession order in relation to it unless they are already in wrongful occupation of another area of its land. [23] Inherent in the same jurisdiction is also, in my view, a danger of injustice. It flows from the power, already noticed, to enforce an order for possession against all persons found by the enforcement officer to be in wrongful occupation of the land. Thus, for example, a traveller who was not a member of the encampment that gave rise to the action, and so was not served with the proceedings, and who takes occupation of a separate area of land may find himself confronted by an enforcement officer flourishing an order for possession that, on an anticipatory basis, had included that area of land. Mr Hobson states that it would be the practice, at any rate of his client, to give prior notice of such enforcement to all persons on the land, and that every claimant needs the court's permission, albeit often obtainable without notice, to issue a writ or warrant of possession in aid of a possession order made more than three months earlier: see r 7(1) of RSC Ord 113 and r 6(2) of CCR Ord 24. He also points out that anyone directly affected by an order for possession can apply under r 40.9 to set it aside; but it is far from clear that an enforcement officer upon the land would be obliged to stay his hand upon notification of such a proposed application. At all events, the fact remains that an occupant in that situation will not have been served with proceedings, and, in particular, will not have been notified of a hearing at least two days in advance under r 55.5(2)(b). Whether or not he would have had an arguable defence to raise at such a hearing, such notice would at any rate have guaranteed him a short period in which, if he wished, he could have protected himself and his family from the unpleasantness of forcible removal by effecting a voluntary removal. [24] I believe, on balance, that the law is right to tolerate both the paradox and the danger of injustice to which I have referred in the interest of avoiding the need for a succession of separate proceedings to address a succession of decampments, however predictable, on to separate areas of an owner's land. But they militate in favour of keeping the jurisdiction within the reasonably narrow bounds of the principles applicable to injunctions quia timet.”

[20]In his judgment, Mummery LJ gave guidance as to the circumstances in which it would be right to make an order in the wider form:

“[36] Although there may be difficulties in knowing precisely where to draw the line in particular cases, a line has to be drawn somewhere. That should be done by the process of a common sense assessment of the whole situation, taking account of the past conduct of the trespassers and their likely future conduct with respect to the claimant's land. If there is convincing evidence of a real danger that actual trespasses will be committed on other land of the claimant, a wider form of possession order may be justified. It should be made only in cases in which: (a) trespasses have already been committed on an area of the claimant's land; and (b) it is necessary to provide the claimant with an effective remedy in respect of the danger of serial violations of the right to possession of other areas of its land by persons who neither have, nor, indeed, even assert, any right to enter into possession of the claimant's land. As explained by Wilson J a quia timet injunction against individual persons in such a situation would not be an effective remedy for dealing with a situation.”

[21]In his judgment, Ward LJ acknowledged the dangers of granting a wide form of possession

[22]Ward LJ went on to explain that the critical question is the risk of invasion of the further land, and stressed that the jurisdiction must be sparingly exercised because of the risk that persons who were not involved in the original trespass might be subjected to the extended possession

[23]The final issue in Drury was whether the evidence in fact demonstrated that there was a real danger of trespass in relation to the additional 30 areas owned by the Secretary of State and not occupied by the travellers. There was no evidence that linked the respondents in that case, with past or present occupants of any of those areas. This court accordingly allowed the appeal and set aside the possession order in respect of those further areas.

[24]Drury is binding on this court but Mr Drabble has reserved the right to challenge the correctness of the decision should the present case go further. No argument was addressed in Drury as to the impact of the wider context explained above. As appears below, Mr Drabble’s argument for upholding the decision of the recorder has focused on the guidance given to public bodies in the light of the acute problem for travellers arising from the shortage of authorised sites. This guidance played a crucial part in the reasoning of the recorder.

The judgment of the recorder

[25]I need not summarise all of the lengthy judgment of the recorder. He dealt with the title of the Secretary of State and the question whether the respondents were travellers. He held that they should be treated as travellers for the purposes of the relevant government guidance. He also made his findings on the evidence. He noted that the intention of the Forestry Commission was not to enforce any order for possession of Hethfelton Wood until the end of the then current school year so as to enable the children of the respondents to complete their education in that period. In a section headed "A Widespread Problem for the Forestry Commission”, he noted that the respondents had already been evicted from other woodland sites managed by the Forestry Commission. In a passage headed "The Policy Background", he set out passages from government guidance, including that set out above.

[26]The recorder dealt with the question whether to make an order for possession of Hethfelton Wood. He held that he should do so. He noted that it was established in McPhail v Persons names unknown

[1973] Ch 447

, approved by the House of Lords in Kay v Lambeth BC

[2006] 2 AC 465

, that the court had no discretion to suspend orders for possession against trespassers. The argument before him was that the decision of the Secretary of State to take possession proceedings was open to review on public law principles because the Forestry Commission had failed to take into account government guidance about unauthorised sites and the accommodation issues for travellers.

[27]The recorder held that the combination of Kay v Lambeth BC and the further case of Kanssen v Secretary of State for the Environment, Food and Rural Affairs

[2005] EWHC 1024 (Admin)

(Owen J) (permission to appeal refused:

[2005] EWCA Civ 1453

, Carnwath LJ) made it a very difficult for the respondents to mount an effective challenge to the decision of the Forestry Commission to initiate and prosecute possession proceedings of the site. He continued:

“87. The concern that I have had is that the Forestry Commission were asked by the Dorset County Council before they issued proceedings to consider the effect of rapid and regular eviction. The nomadic lifestyle of travellers is recognised in the Government policy and in the legislation to which I have referred. The Government has expressed an aim to secure the provision through the planning process of sufficient authorised sites in a 3-5 year timescale. In the meantime it is acknowledged by the Government that in the face of insufficient authorised sites, some unauthorised camping will continue. Although this guidance is addressed principally to local authorities and the police, it is guidance which the Forestry Commission as a public authority can be expected to take into account. In the absence of sufficient authorised sites for travellers, their Article 8 rights of respect for their private and family life are engaged at point c of the propositions listed by Owen J (para 83 above). As he determined in that case, the Forestry Commission has no power or duty to provide residential sites for travellers on land placed at its disposal. However, it does have discretion as to whether to seek to recover possession of the land or to defer eviction. If it does not engage its discretion in line with the Guidance on Managing Unauthorised Camping February 2004 (so far as applicable to it) it could be said to be leaving out of account a relevant consideration. If it exercises its discretion in such a way as to result in repeated and rapid evictions without considering the acceptability of the site in question against the criteria spelt out in paragraph 5.4 it is leaving out of account a relevant consideration. Of course it cannot be expected to exercise its discretion so as to allow travellers to remain indefinitely at a particular site. To exercise its discretion thus in relation to travellers would be a solecism. However, to exercise its discretion in such a way as to enable travellers who are encamped on a site that is not in a wholly unacceptable location to remain for a period of time sufficient to enable them to give their children some continuity of education and to enable them to move with some degree of planning and scheduling would be in line with the guidance. In failing to ask itself whether and if so how it should exercise its discretion in line with the Guidance it is leaving out of account a consideration that it should take into account. 88. The question then arises as to when the exercise of the discretion should be addressed, viz whether it should be at the point of the initiation of proceedings, or at the point of obtaining a possession order, or at the point of eviction. 89. In my judgment the Forestry Commission could not be criticised for seeking to take control over the situation by instituting possession proceedings and obtaining a possession order. However, when it comes to exercising the discretion as to whether to seek an immediate possession order or not, that is the point at which it seems to me that the considerations dictated by the Guidance should be addressed. 90. I therefore have to consider the exercise by the Forestry Commission of its discretion at the point of the submissions made to me by Mr Clargo on 25 June 2007. By then the encampment had been in place for 5 months or so and Mr Clargo indicated an intention not to enforce any order before the end of the school term as well as an intention on the part of the Forestry Commission to take into account on issues of timing the particular welfare considerations of the sixth and seventh Defendants. Taking this intention at face value, the decision of the Forestry Commission to persist in the application for an immediate order for possession cannot be faulted. The protection that the Defendants have against the Forestry Commission changing its mind arbitrarily or capriciously is in their ability to apply to the Court to suspend the warrant of possession. However, given the indications of Mr Clargo this is a theoretical rather than a practical observation. 91. For these reasons therefore I shall make an order for possession in respect of the site at Hethfelton Wood forthwith.”

[28]Then the recorder turned to deal with the claim for possession of the additional sites. He found that the Drury criterion was satisfied. However, he declined to extend the possession order to the neighbouring sites or to grant an injunction for the following reasons:

“96. The question however, arises as to whether, having found the criteria for the jurisdiction to be satisfied, I am bound to exercise it, or whether the court has a discretion. I think it is probably unnecessary for me to determine that point because in this case I should also consider whether the decision of the Forestry Commission to continue to seek an order in such terms survives Wednesbury scrutiny. 97. On this issue my judgment can be brief. Given my holding in paragraph 87 above and given that there is no concession on the part of the Claimant that it would stay its hand in enforcing the possession order to any degree in relation to any trespass that there might be on its other parcels, it follows that such a decision (by the Forestry Commission) leaves out of account the relevant considerations referred to and derived from the Guidance on Managing Unauthorised Camping February 2004. In particular, it is likely to lead to regular and rapid evictions. 98. For these reasons if I have a discretion I exercise it against making a possession order in relation to the other sites and, if I do not have a discretion, I hold that a defence succeeds upon the footing that the decision to seek the wide-ranging possession order forthwith in relation to the other sites is Wednesbury unjustified, because it leaves out of account relevant considerations. Application for an Injunction 99. Precisely the same considerations apply in relation to the application for an injunction. Moreover, had I considered that I should exercise the jurisdiction to make the order for possession to extend to the other sites, I would nevertheless have refused the application for the injunction. An injunction would have had the undesirable effect of criminalising these defendants. It would add nothing but the sanction of imprisonment for breach to the extended possession order in terms of the enforceability and would in those circumstances be disproportionate.”

Application for an Injunction

[29]As noted above, the recorder referred to Kanssen v the Secretary of State. In that case, there was an encampment on land managed by the Forestry Commission. Owen J held that the respondent acting through the Forestry Commission had no duty to make enquiries about the welfare needs of the occupiers before seeking an order for possession. Permission to appeal was refused by Carnwath LJ (

[2005] EWCA Civ 1453

, which we considered notwithstanding para. 6 of the Practice Direction (Citation of Authorities)

[2001] 1 WLR 1001

). However, the decision does not bear on the present case as Mr Drabble does not suggest that the Forestry Commission should carry out the function of making welfare enquiries. That function is imposed on other public bodies.

Grounds of appeal

[30]The Secretary of State contends that the recorder had no discretion to refuse the order and injunction once he had concluded that the Drury criterion was fulfilled. Alternatively, he erred in the exercise of his discretion by declining to grant the order and injunction. In the further alternative, he was wrong to hold that the Secretary of State was perverse in seeking the order and injunction. Finally, the recorder was wrong to conclude that the grant of the injunction was disproportionate.

Submissions

[31]Mr Hobson QC, for the Secretary of State, submits that once the recorder found that the criterion required by Drury v The Secretary of State for the Environment Food and Rural Affairs had been fulfilled (see judgment, [94]), he should have made a possession order in respect of the further sites. In any event the approach of the recorder to the further sites was inconsistent with [89] of his judgment where he had held that the considerations indicated in the government guidance should be considered at the stage of enforcement of the possession order. Questions of discretion should be considered at the stage of enforcement.

[32]Furthermore, on Mr Hobson’s submission, if the court had discretion, the recorder should not have exercised it against the Secretary of State.

[33]In support of his submissions, Mr Hobson cited in his skeleton argument a number of authorities such as Patel v W. H. Smith (Eziot) Ltd

[1987] 1 WLR 853

, in which this court held that, save in exceptional circumstances (as to which, see, for example, Behrens v Richards

[1905] 2 Ch D 614

) the court should not decline to grant an injunction to a landowner to restrain a trespass even if no harm to the landowner was shown. He submits that since the jurisdiction to grant the wider possession order was similar to the jurisdiction to grant a quia timet injunction, the court ought also to grant an injunction. He submits that it was not suggested in Drury that an injunction would be a disproportionate remedy but rather that it would be an ineffective one. He submits that the practicality of enforcing an injunction, once granted, would be a matter for the Secretary of State and should not inhibit the court in granting an injunction.

[34]Moreover, on Mr Hobson’s submission, the finding of unreasonableness made against the Secretary of State should be set aside as the Secretary of State was prepared not to enforce the order until the end of the school term. It was unnecessary to give a similar indication in relation to any other land as the respondents would only be required to move on from Hethfelton Wood once enforcement had been effected which would only be after the school term had finished.

[35]Mr Drabble QC, for the respondents, submits that it would have been inconsistent with the government guidance set out above for a possession order in the wider form to be made. That guidance enjoins public authorities to consider whether eviction is really necessary. It requires public authorities to consider the specific characteristics of the site and of the incursion before they make a decision to evict. On his submission, the Forestry Commission should look at the site occupied, and on the basis of the guidance they should accept that, in view of the shortage of suitable accommodation for travellers, the presence of the respondents should be tolerated. He submits that if the Forestry Commission wants a possession order in the wider form it should have to identify the areas where it accepts that the respondents could encamp.

[36]Mr Drabble seeks to uphold the recorder's decision to refuse an injunction in relation to the further sites. His argument on the recorder’s refusal of an injunction proceeds in three stages. First, he submits that the jurisdiction in Drury was created to provide an effective remedy, and, because an injunction would have been difficult to enforce against a fluctuating body of persons, this court “married” the characteristics of a possession order with an injunction. It was thus inappropriate to grant an injunction as well as the wider possession order. In his oral argument, Mr Drabble went so far as to say that the wider order and injunction were incompatible. The second stage in Mr Drabble’s argument on this point is to say that the grant of an injunction is discretionary. He cites the following passage from the speech of Lord Bingham in SouthBuckinghamshire DC v Porter

[2003] 2 AC 558

at 578:

“It is indeed inherent in the concept of an injunction in English law that it is a remedy that the court may but need not grant, depending on its judgment of all the circumstances.”

[37]Mr Drabble submits that thecourt should refuse to grant an injunction where the making of the injunction would be contrary to an aspect of government policy that has not been properly considered by the public authority itself.

[38]The third stage in Mr Drabble’s argument on this point focuses on this court’s standard of review to the exercise of a discretion. He submits that the recorder was plainly entitled to come to the view that the making of a wide order and injunction was inconsistent with the policy in the government guidance because it did not involve consideration of the detailed facts of each individual case, either in the sense of the characteristics of the site itself or the position of the individuals at the relevant time.

[39]On Mr Drabble’s submission, the recorder was correct to hold that the Forestry Commission had not properly considered the considerations advised by the government guidance. The wider order was sought under a blanket policy to recover land as soon as possible. In addition, the grant of the wider order and injunction was refused by the Recorder as it would have led to regular and rapid evictions.

[40]Mr Drabble submits that it is not necessary for the respondents to rely on

art 8 of the European Convention on Human Rights

(indeed, they did not do so before the recorder in relation to the wider order), and accordingly it is unnecessary for this appeal to await the outcome of the appeal in Birmingham City Council v Doherty

[2007] LGR 765

, which raises issues arising from Kay v Lambeth BC. Furthermore, Mr Drabble has not objected to the inclusion of any particular site in any extended possession order.

Discussion and conclusions

[41]The guidance given in connection with unauthorised encampments, reveals the wider social context of the issue in this case. It highlights that an order for possession is a mechanism to be seen in a much broader context. Clearly the evidence of the respondents and the government guidance had a considerable influence on the decision of the recorder in this case.

[42]Other jurisdictions have had to face similar problems. A leading example is the decision of the Constitutional Court of South Africa in President of South Africa v Modderklip Boerdery (Pty) Ltd referred to above. In that case, trespassers for whom other housing was not available were not evicted so as to give the state time to find adequate housing and meanwhile the landowner was compensated for their occupation. That case turned on various constitutional rights, including, in the case of the trespassers, the right of access to adequate housing, which included the right not to be evicted without a court order made after considering all the circumstances. Although some aspects of our law of homelessness can be compared with the position under a constitutional right to adequate housing (see, for example, R(Ali) v Birmingham CityCouncil

[2008] EWCA Civ 48

at [57]), there is, certainly as the law stands, no equivalent right under English law. That is not to say that our property law is static or removed from the effects of social change. As I said in R (Godmanchester Town Council) v Secretary of State

[2006] QB 727

(reversed on a separate point

[2007] 4 All ER 273

), the balance between the interests at stake in property law has changed over the course of history:

“85 Real property law reflects the long legal history of England and Wales, and the rights which the law gives to freehold owners of land reflects the value which the law places on their rights as opposed to the rights enjoyed by other citizens. Over time the balance has changed. In medieval times, the ownership of the freehold interest in land carried with it large social and political privileges. Property law was then the basis of all public law. The balance which property law draws at any time in its history between the rights of different persons can have large social and economic effects. For instance, to take a very different case from the present, the ease with which property can be mortgaged has facilitated the financing of commerce and business. The court must be alive to the large effect which property rights have on the life of the ordinary citizens of this country.”

[43]However, this court must apply the law binding on it and can only develop the law within the confines of the doctrine of precedent. It does not start with a clean sheet of paper. Nor, understandably, have the arguments for the Secretary of State been addressed otherwise than on that basis. Any reconsideration of the precedents would require careful consideration to be given to the position of both parties and to the role of the court. This court can thus only accept arguments to the extent that it is consistent with the established case law.

[44]The first issue is whether, under Drury, the grant of a possession order in respect of additional sites must follow if the real danger of occupation is shown or whether the court has some general discretion. In my judgment, the court has discretion. Once the Drury criterion is satisfied, there is no reason why the owner of land who seeks an order for possession of sites which have not yet been occupied, but which there is cogent evidence to show are in real danger of being occupied, should be in a better position than an owner who seeks possession of land in the case of an actual trespass. However, as where a possession order is made in cases of actual trespass, once the title of the claimant and the trespass by the defendants are proved, and the Drury criterion is satisfied, the court should in my judgment only exercise its discretion to refuse an order in exceptional circumstances.

[45]As to what can constitute an exceptional circumstance for this purpose, there is no reason why it should not, in an appropriate case, include the failure to perform an obligation imposed by public law.

[46]In this case, however, the highest the obligation in public law can be put is an obligation to consider the acceptability of an encampment once the encampment has occurred. The obligation is to be found in para. 5.4 of Guidance onManaging Unauthorised Camping dated February 2004, set out above. The factors which the public body must consider are factors which relate to the site occupied and not, for example, to other possible sites. It follows that the exercise of the court’s discretion should not be driven by the risk of "regular and rapid evictions" (c.f. [98] of the recorder’s judgment). The court must focus on the considerations specific to the encampment on the particular site with which it is concerned. The Guidance does not impose an obligation to tolerate the trespass where the options have been appropriately considered and toleration has been rejected.

[47]If the court is concerned with any of the factors in the government guidance, the appropriate time for the court to consider them is when the court is considering the date for enforcement of the possession order. Accordingly, in my judgment, the recorder should have extended the possession order to the further sites and it is not a breach of his public law obligations for the Secretary of State to apply for an extended possession order at this stage.

[48]Mr Hobson urged on us the point that those factors did not need to be considered at all if the occupiers had previously been found on the land of the same landowner and a Drury order had been made. That order would identify the land to which it related. I do not consider that the court can fetter itself in relation to some future application to enforce a possession order. The occupation had not yet taken place. There will inevitably be an interval of time between the occupation and the order for eviction. In that time, the defendants may assert that there are matters which the Secretary of State ought to have considered but did not do so. There may be some people affected who are within the order yet unnamed. They may not know about the order for eviction from Hethfelton Wood. But, in so far as the occupiers were served with an order for possession of Hethfelton Wood, I would expect the court to be less willing to give them further time. If there is any such matter which the court needs to consider, it can be considered at the stage of enforcement.

[49]Although the reasoning of the recorder in [89] (set out above) is not wholly clear, in my judgment Mr Hobson’s interpretation (above [31]) is correct. It follows that the recorder was inconsistent in his reasons for the grant of an immediate possession order for Hethfelton Wood and his reasons for refusing such an order in relation to the further sites. The recorder’s refusal of an injunction

[50]The recorder also rejected the application for an injunction against the respondents restraining them from occupying the further sites on the ground that an injunction would render them liable for proceedings for committal if it were breached. He was concerned about criminalising their action.

[51]The starting point has to be to identify the principle on which the court should act to this point. In this inquiry, it is necessary to examine whether the decision in Drury provides guidance. As Mr Hobson submits, the reason why this court in Drury developed the extended possession order was that this court accepted the submission of Mr Drabble that it was impracticable to enforce an injunction. The wider possession order was the more effective remedy. But I would not accept Mr Drabble's submission that the grant of an injunction and the wider possession order are incompatible. The former order binds the individual occupiers served with the order whereas a possession order operates for the protection of the land and can be enforced against anyone on the land. These orders are complementary and not incompatible. Moreover, the question whether the grant of an injunction will be an effective remedy in any case will depend on the facts at the time of enforcement, though there is always a risk it will be ineffective because the occupiers cannot satisfactorily be served after a breach of the injunction. The Secretary of State accepted that position in Drury because he did not apply for an injunction.

[52]The jurisdiction to grant the wider possession order is based by analogy on the quia timet jurisdiction to grant injunctions: see per Wilson J at [24] of his judgment in Drury cited in [19] above. There is no reason in law therefore why both orders cannot be made on the same facts. This court did not have to consider whether to make both forms of order in that case because the Secretary of State did not apply for an injunction. Mr Drabble does not submit that anything which was decided in Drury expressly or by implication precludes the grant of an injunction, beyond submitting that the two forms of order are incompatible. I have already dealt with that submission above.

[53]The grant of an injunction is undoubtedly discretionary but, in my judgment, in a society governed by the rule of law, the court should grant an injunction necessary to uphold legal rights against a threatened invasion unless there is some factor which is sufficiently weighty to displace this general rule. Accordingly, I start from the premise that the injunction in this sort of case should normally be granted. It follows that I consider that the recorder erred in the exercise of his discretion because he applied a different principle and because he refused an injunction principally because (in error) he had refused the wider order. Therefore it falls to this court to exercise the discretion afresh.

[54]Have the respondents identified a factor of sufficient weight to displace the general rule? There are essentially two points. First, there are the public law obligations of the Secretary of State under para. 5.4 of the Guidance on ManagingUnauthorised Camping. These are obligations which overlay, and not displace, the Secretary of State’s rights of property. I would expect the Secretary of State to have appropriate regard for his obligations and to the difficulties of travellers so that no question of enforcement arises if it would be contrary to his public obligations. However, the effect of the responsibilities in public law is a matter which can be considered by the Secretary of State and if necessary by the court at the time of enforcing any injunction (as explained by Wilson J in [23] of his judgment in Drury the occupiers will in practice have an opportunity to make an application to the court for a stay against a threatened eviction under a possession order and so the same point applied to the enforcement of that order too).

[55]Turning to the Guidance on Managing Unauthorised Camping, I do not consider that para. 5.4 is to be interpreted as preventing the Secretary of State from obtaining orders of the court in the first place where that is otherwise appropriate: the grant of an injunction does not diminish the Secretary of State's public law obligations. There is thus no reason to withhold the grant an injunction on that account.

[56]The second point is the question whether the grant of an injunction would be disproportionate and have the undesirable effect of criminalising the respondents. In my judgment, the grant by the court, in a society governed by the rule of law, of an order to protect an established right cannot, in the absence of some countervailing right (and none is asserted here), be characterised as disproportionate. As to the effect of criminalising the respondents, in fact the position is that offences under the byelaws may well already have been committed. Irrespective of the byelaws, an injunction is not directed to the traditional way of life of travellers, but at acts of trespass which are against the law. Of course it may be said that to grant an injunction against a group of travellers who have all been co-operative (except for their failure to remove their encampment) would be heavy-handed and liable to exacerbate a situation but those points go to enforcement. The Secretary of State in relation to any order for enforcement of an injunction would have a discretion, just as a prosecuting authority has the discretion, whether to proceed at all. There is no reason to think that that discretion would not be exercised in accordance with his obligations in public law. An injunction might properly be refused if it were merely duplicative of a possession order. However, the remedies are different and that is not a good objection.

Disposition

[57]For the reasons given above, I would allow this appeal and dismiss the respondents’ notice.

Lord Justice Wilson:

[58]I dissent in part from the decision of my senior colleagues. I agree with their conclusion that the Secretary of State’s appeal against the recorder’s refusal to make the extended possession order should be allowed. But I disagree with their conclusion that his appeal against the refusal to grant the injunction should be allowed; I consider that we should have dismissed it. In the course of his oral submissions to us Mr Hobson scarcely touched upon his appeal against the refusal of the injunction; and I regret that I find myself injecting a note of discord between us in relation to a subsidiary point.

The extended possession order

[59]By his Particulars of Claim the Secretary of State sought an extended possession order (i.e. a possession order extending beyond Hethfelton Wood) in relation to 66 named sites managed by the Forestry Commission across Dorset. On the first day of the hearing before the recorder the Secretary of State narrowed this aspect of the claim to sites within a shorter radius of Hethfelton Wood. We were supplied not with a schedule of the sites to which the claim was then narrowed but with a map which showed the contours of the narrower claim. The contours identify an area about 45 kilometres long and up to 8 kilometres wide; and it appears to me to include about 25 of the original 66 sites.

[60]In the case of Drury this court decided that an extended order could be made in relation to land owned by a claimant only if he established a real danger that those trespassing on the land which was the primary subject of his claim would decamp to it: see [20], [21] and [36] of the judgments, set out by Arden L.J. at [14], [17] and [20] above. In the present case the recorder concluded that he had “no doubt that the criteria justifying the extension of the possession order to the other sites are made out”; and, by way of explanation, he added that “there is a real danger that upon eviction from this site, either immediately or within a fairly short timescale, the defendants or some of them will set up an encampment on other Forestry Commission land”. We do not have to consider whether a compendious finding of such a character suffices to satisfy the criterion identified in the case of Drury because there is no cross-appeal against the recorder’s conclusion that it was satisfied.

[61]In the paragraphs of his judgment set out by Arden LJ at [28] above, the recorder concluded that it was unnecessary for him to decide whether, even if the criterion for the making of an extended order was satisfied, he retained a discretion whether to make it. He concluded that it was unnecessary because, in his view, the defendants had what I will call a freestanding public law defence to the application for the extended order; and indeed there is no doubt that a defendant to a claim for a possession order brought by a public authority can, in those self-same proceedings and by way of defence, challenge the validity of any such decision by the authority as forms a necessary part of the foundation of the claim (Wandsworth LBC v. Winder

[1985] AC 461

). The recorder added that, if he retained a discretion whether to make the extended order, the feature which gave rise to the freestanding public law defence should also lead him to decline to exercise it.

[62]Like my colleagues, I have no doubt that Mr Drabble is right to contend that the court retains a discretion whether to make an extended order even if the criterion identified in the case of Drury is satisfied. The court’s jurisdiction to make such an order is the product of a marriage between the jurisdictions to grant an injunction quia timet and to make an ordinary order for possession of land already then in wrongful occupation; and the object of the marriage is that the law should offer an effective remedy. Thus the claimant secures the extended order “if, but only if, he would have been entitled to an injunction quia timet” (see the case of Drury, at [20], quoted at [14] above). The fact that the grant of an injunction is discretionary means that a residual discretion is built into the jurisdiction to make an extended order.

[63]The bigger question is whether the recorder was right to conclude that the defendants had a freestanding public law defence to the application for the extended order and, alternatively, that the feature which in his opinion gave rise to the defence should lead him to decline to exercise his discretion to make it. The recorder’s reasoning in this regard is set out at [97] of his judgment, which Arden LJ has set out at [28] above. His reasoning is best presented as follows:(a) As a public authority, the Secretary of State has a duty to consider paragraph 5.4 of the “Guidance on Managing Unauthorised Camping” issued by the Office of the Deputy Prime Minister in February 2004 (set out by Arden LJ at [11] above), to the effect that, while there are insufficient authorised sites for travellers, some unauthorised camping will continue, that in some locations it will not be acceptable under any circumstances and that the location of each encampment must be considered on its merits in the light of various criteria.

(b) By his counsel’s final submissions the Secretary of State made clear that he made no concession that he would, in the light of paragraph 5.4, delay enforcement of any extended order in the event of decampment to any land included in it.

[64]As do my colleagues, I regard the recorder’s reasoning as flawed. The proposition at [63](a) above is valid; the recital at

(b) is accurate; but the conclusion at

[65]In relation to the proposition at [63] (a) above, the Secretary of State concedes that, although the guidance issued by the Office of the Deputy Prime Minister is primarily directed to local authorities and the police, he has a duty to consider it at some stage before deciding to take steps to secure the eviction of trespassers on land managed by the Forestry Commission. Indeed he had made an identical concession in the case of Kanssen, cited by Arden LJ at [27] above; see [24] of the judgment of Owen J in that case. The Secretary of State’s contention, upheld in that case, was only that his duty to consider the guidance did not encompass a duty actively to enquire into considerations referable to the welfare of the trespassers.

[66]But at what stage does the Secretary of State have a duty to consider the guidance? It is inherent in the recorder’s reasoning at [63] (c) above that, at any rate in the section of his judgment under review, namely that in which he addressed the application for the extended order, he considered that the Secretary of State’s duty arose at a stage prior to obtaining the order. I agree with Mr Hobson that the recorder there fell into error. I consider that, in relation to an extended order, the duty arises after the Secretary of State has obtained the order but before he takes the decision whether to seek to enforce it. No other conclusion makes sense.

[67]When the recorder noted, in a sense critically, that, by his counsel, the Secretary of State had made clear that he made no concession that he would delay enforcement of any extended order, he might usefully have reminded himself of the same counsel’s submission, summarised by the recorder in his own words earlier in his judgment as follows:

“A distinction is to be made between the decision to initiate proceedings and the enforcement of the eviction order when obtained: no criticism can be made of the decision to initiate the proceedings. Insofar as enforcement of any eviction order is concerned, the Forestry Commission will take account of all appropriate welfare considerations at the time of enforcement.”

Had he reminded himself of the submission, the recorder might at least have hesitated before concluding that the Secretary of State was acting unlawfully in failing to consider the guidance at the stage then reached, namely prior to obtaining the order.

[68]In fact, of course, it would be impracticable for the Secretary of State to consider the guidance in any meaningful way prior to obtaining the extended possession order. It is practicable for him to consider it only after obtaining the order and prior to his decision whether to apply to the county court pursuant to it for the issue of a warrant of possession. As is stated in the guidance itself, “each encampment location must be considered on its merits against criteria such as …” So the Secretary of State needs to know (for example) to which of the sites included in the extended order trespassers have decamped, the nature and scale of that encampment, the duration of the encampment to date and its likely continued duration; and he needs to be able to assess (for example) the danger which the encampment there may pose to the trespassers themselves and to others, the damage to the environment there and the obstruction of the work and other objects of the Commission to which it may give rise and the significance of any such aspect of the welfare of any of the trespassers as has come to his attention. Mr Drabble concedes that it will also always be of some relevance to the decision that persons who camp on land managed by the Commission act contrary to Byelaw (5) of the Forestry Commission Byelaws 1982 and so commit a criminal offence, albeit punishable only by fine, under s.46(5) of the Forestry Act 1967.

[69]For the above reasons I am clear that the recorder was wrong to conclude that the Secretary of State had acted unlawfully in failing to consider the guidance prior to obtaining the extended order and that, whether as a freestanding defence or as a factor which militated against the exercise of any discretion whether to make it, it should lead him to refuse to make the extended order. In the light of his finding that the criterion was satisfied, there was in my view no ground for considering otherwise than that he should exercise his discretion to make the order.

[70]Ironically it seems probable that in a previous section of his judgment the recorder had himself intended to accept the submission of counsel for the Secretary of State that the stage for his consideration of the guidance did not arise until he came to decide whether to seek to enforce any such order for possession as he had obtained. I refer to [88] and [89] of his judgment, set out by Arden LJ at [27] above. Unfortunately, as Mr Drabble concedes, [89] of the recorder’s judgment makes no sense. There has been a dramatic slip of his pen: for he seems to suggest that a possession order is ‘obtained’ before it is ‘sought’. Although there is no value in our pondering at length what he there meant to say, it seems to me that, in particular when it is read in the light of [88], the recorder probably meant in [89] to identify the stage prior to any attempted enforcement as that at which the Secretary of State should consider the guidance.

[71]Mr Hobson concedes not only that the Secretary of State has a duty to consider the guidance prior to deciding whether to seek to enforce an extended order in relation to a site included in it but also, inevitably, that those trespassing on the site must then have an opportunity to challenge the decision on the basis that it was reached in breach of the duty and is therefore unlawful. Mr Hobson draws to our attention that, once the county court has issued a warrant of possession to its enforcement officer at the request of a claimant who has obtained an order for possession, the officer will serve a Notice of Eviction in Form N54 upon those in occupation of the land, in which he will inform them not only of the date and time of his proposed eviction of them but also of their facility, in some circumstances, to apply to the court for suspension of the warrant and for postponement of the date of eviction. Although the received view has no doubt been that “squatters” enjoy no such facility (see the case of McPhail, cited by Arden LJ at [26] above), it seems to me obvious that the public law challenge which Mr Hobson concedes to be open, at any rate theoretically, to the trespassers at this stage is one which they should raise in the county court in response to the Notice of Eviction; and no doubt it would be entirely unrealistic to commend their adherence to a pre-action protocol. Mr Hobson did not refer us to any particular rule pursuant to which even such trespassers as had been parties to the proceedings might appropriately apply to the county court; but it seems to me that, in any event, the power under C.P.R. 3.1(2)(a) is probably wide enough to enable the court, if so advised, to extend generally the time for compliance by all the then trespassers with the possession order pending the making of a lawful decision by the Secretary of State whether to continue to seek to enforce it. I wish however to associate myself with the note of caution struck by Arden LJ at [46] above in relation to the probably limited ability of most trespassers on land owned by public authorities to secure relief against enforcement of a possession order on this public law basis.

The injunction

[72]In circumstances in which the law countenances the making of an extended possession order because an injunction would “not be an effective remedy” or would indeed be “useless” (see the judgments in the case of Drury at [36] and [19]), it seems to me that the court must scrutinise with extreme care a contention that an injunction should be granted in addition to the making of an extended order. I do not accept that the two orders are in any way incompatible: on the contrary the criteria for making them are identical. But each is discretionary: and the fact (if it be the case) that the court’s discretion is to be exercised in favour of making an extended order should, so it seems to me, weigh heavily in deciding whether to exercise the discretion in favour also of granting an injunction.

[73]Ubi ius, ibi remedium. Cases such as that of Patel, cited by Arden LJ at [33] above, demonstrate the applicability of that fundamental principle even when the court cannot yet give more than prima facie consideration to the facts of a case. But the principle does not militate in favour of adding one remedy, in principle less effective, to another. In such circumstances, no doubt unusual, I cannot agree that there is any sort of rebuttable presumption that the court’s discretion should be exercised in favour of the grant also of the second remedy. If anything, the presumption then runs the other way.

[74]In cases such as the present the object of the Secretary of State is to secure the clearance of all the trespassers from his land; and in the case of Drury I summarised the deficiencies of an injunction in that connection as follows, at [19]:

“It is enforceable by committal; and it would be wholly impracticable for the claimant to seek the committal to prison of a probably changing group of not easily identifiable travellers, including establishing service of the injunction and of the application.”

With his deft charm Mr Hobson submits, albeit gingerly because he does not wish to undermine the basis of the jurisdiction established in that case, that there I missed the point, which is the deterrent effect of an injunction as opposed to the actual extent of the facility, for which in any event the Secretary of State would have no appetite, to secure its enforcement by imprisonment of any of the trespassers.

[75]But, on the evidence before the recorder, what was the ground for considering that an extended possession order would not, of itself, deter the defendants from decamping to any of the 25 sites included in it? Had there been evidence that any of the defendants, donning the mantle of some latter-day Tolpuddle martyr, had evinced an intention to defy enforcement of the extended possession order with every conceivable means at her disposal, the ground, in her case, for the discretionary addition of an injunction would have been in place. On the contrary, however, it was the “overall impression” of the recorder, quoted by Arden LJ in [7] above, that the defendants “are co-operative with those that deal with them, albeit not to the extent of decamping on demand”.

[76]Arden LJ has set out, at [28] above, the paragraph, namely [99], in which the recorder explained his refusal to grant an injunction. Her conclusion, at [53] above, that the recorder “refused an injunction principally because (in error) he had refused the wider order” is fair so far as it goes. But perhaps we should remember that he also offered reasons for his refusal to grant the injunction even on the hypothesis that it was appropriate to make the wider order. Such reasons were that an injunction would criminalise the defendants; that, in terms of enforceability, it would add nothing but the sanction of imprisonment; and that it would thus be disproportionate. To be pedantic, the defendants already commit a criminal offence whenever they begin to camp on land managed by the Commission (see [68] above); but the recorder’s point was that the quasi-criminal sanction of committal for contempt added nothing of value for the Secretary of State to his ability to secure clearance of the land pursuant to the extended order. The recorder’s conclusion in this regard was wholly in accordance with the thinking of this court in the case of Drury; and I find myself unable to discern any ground on which this court could interfere with the way in which, on that hypothetical basis, he explained his refusal to exercise his discretion to grant the injunction. Indeed, on the contrary, had I been in his place, I would have exercised the discretion in precisely the same way and for the same reason.

Lord Justice Pill:

[77]I agree with the judgment of Arden LJ and agree with the order she proposes. I add a few words on the injunction issue because Wilson LJ has taken a contrary view.

[78]In Secretary of State for the Environment, Food & Rural Affairs v Drury

[2004] EWCA Civ 200

[2004] 1 WLR 1906

, this Court accepted that there were circumstances in which an anticipated trespass gave rise to a cause of action. Wilson J stated, at [20]:

“In my view, the key to this case indeed lies in the law's recognition that even an anticipated trespass sometimes gives rise to a right of action. But, where it does so, it should offer an effective remedy, otherwise the right is nugatory. Thus, if a claimant entitled to an order for possession of a certain area of land were to contend that its occupants are likely to decamp to a separate area of land owned by him, the separate area should, in my view, be included in the order for possession if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area.”

Wilson J went on to consider the exceptional circumstances in which a possession order would be made on this basis. Arden LJ has cited [21] of his judgment at [17] above. An order may be made if a “real danger of repetition [trespass on the separate area] can be inferred” from the evidence. Mummery LJ, at [36], referred to the necessity “to provide the claimant with an effective remedy in respect of the danger of serial violations of the right to possession of other areas of its land”.

[79]I agree with Arden LJ that the grant of an injunction is complementary to the remedy by way of the possession order in present circumstances. Once the difficult task of establishing the Drury criteria has been performed, an injunction should normally be granted. The possession order on the separate land is premised on a real danger of trespass on it and the claimant is entitled to the deterrent effect an injunction has on such a challenge to his legal rights.

[80]The Secretary of State can be expected to have regard for his public law obligations, on stated by Arden LJ at [54].

[81]I agree that the appeal should be allowed.

order

“[42] The Forestry Commission could have applied, but sensibly did not apply, for a quia timet injunction to restrain the evicted travellers simply moving onto the next patch of woodland. As Wilson J has explained, the injunction would be a rather ineffective remedy. Nevertheless the purpose behind the extended order for possession sought in this case is similar to that which informs the injunction, namely to deter a threatened course of action. The question in this case is how, if at all, these injunction principles can be applied in order to give the court an effective remedy through an order for possession that is widely drawn so as to include parcels of land which could have been made the subject of a separate injunction. The desire to make such an effective order must be tempered against the potentially unfair effect of the execution of a wide order, operating as it does in rem so as to eject travellers from land B who may have played no part in the original trespass of land A.” order: “[45] That notion of there being a pressing need to protect the land affected by the trespass brings us back to the principles that underlie the quia timet injunction and to a consideration of the quality of the threat that if travellers are moved from part A they will then move to part B. Among the factors to be considered in this regard will be the imminence of the threat to move, the history of former illegal occupations of the several sites in order to establish what if any pattern can be seen in the illegal occupation and the frequency and timings of those occupations. There should also be evidence that the same, or some of the same people are involved in the move from A to B to justify the inference that it is more likely than not that they will immediately encamp on C. [46] My attempt to list the various factors is not intended to be all embracing. It is trite that it is always a matter of fact and degree. At the heart of it there has to be a common sense decision that gives an answer to a question as to whether the established invasion of part A of the land is tantamount to, part and parcel of, all of a piece with, a very probable invasion of part B. There must be a strong and unbroken link between the two parcels. Can one truly say, "If we evict them from here they will simply move there?" I am satisfied, therefore, that the jurisdiction exists to include parcels of a claimant's land other than those in actual occupation but it is a jurisdiction which must be sparingly exercised bearing in mind that the court, while taking account of all the circumstances of the case must always do justice between the invaded claimant and unidentified, but potentially affected, defendants.”