This article was first published for Sage Journals – Environmental Law Review
There are few sights more unpleasant when walking in our green and pleasant land than that of human waste i.e. faeces selfishly deposited on the ground without any thought for those that wish to enjoy the beauty of our green spaces. Added to the problem of personal waste, is domestic waste1 and industrial scale fly-tipping from contractors, the general public at large and travellers involved in a commercial waste business (for example, who dump waste such as asbestos, rubble, soil, and other hazardous materials) and you have a major waste issue up and down the country. Indeed, due to the fact that most authorities now charge for the disposal of domestic and business waste, fly tipping is a major problem as people do not want to pay for it to be disposed of properly.2 This is a particular problem for local authorities in the country whose primary responsibility is to ensure the safety of its green spaces for its residents and visitors.
Of course, it is not just the abandonment of waste that causes problems, but also the arrival of, huge numbers of people, sometimes as many as 50–60 men, women and children – not forgetting horses and dogs – camping illegally in local parks and green spaces.3 The sight of mobile homes and caravans on green spaces meant for football, picnics and other recreational pursuits is pretty intimidating to local people. Even when the travelling community is forced to move by a court possession order, the delay that arises inevitably results in an area being left in an appalling state, leaving the authority with an expensive bill for cleaning up the site.4
In recent years there has been a dramatic increase not only in the burden of local authorities having to clear up the personal, domestic and industrial scale waste caused by such incursions, but also the consequences of removing domestic and business waste illegally dumped in parks and green spaces into land-fill sites. Indeed, there is a consequential negative effect on relations between councils, their tax payers, the police and the whole community.
The approach to the incursions has, until now, has been reactive; authorities have obtained High Court Writs of Possession or used common law powers which are considered to be high risk, confrontational and often volatile. The High Court has recognised the extent of the problem and accepted that going through the County Courts simply permits the occupants to stay on the land while the legal process runs its course. Interim possession orders (IPOs)5 are slow, cumbersome and ineffective as the police do not have the resources to enforce them within the requisite time. Local authorities are then left to clear up the waste to bring the green space back into public use. Quite apart from the cost associated with such legal action, the problem is that moving people on simply moves the problem to another green space, often literally round the corner; the local authority then has to seek yet another possession order.
Now, however, councils are beginning to taken a stance. Rather than just reacting to the problem, they are making proactive applications to the High Court.6 A proactive approach used most recently by the London Borough of Enfield, (and also Dagenham & Barking and Harlow District Council) has resulted in a preventative injunction, forbidding ‘persons unknown’ from accessing any green spaces,7 most commonly parks and sports fields, to make an encampment. Making any incursion on any of the green spaces named in the injunction would thereby be a contempt of court.8 The advantage of this approach is that those seeking to occupy green spaces illegally: (i) cannot simply move to the next green space within that local authority area; (ii) are faced with a substantial deterrent in the form of fines, seizure of assets and imprisonment; and (iii) the protracted and expensive injunction procedure for each incursion is replaced by the swifter, more effective, contempt procedure.
It is the deterrent element of such action by local authorities which could prove the most effective weapon in the fight against this form of environmental abuse and anti-social behaviour. This will cut the cost and time local authorities spend in dealing with a problem that is on the increase. By avoiding the costs associated with clearing up and repairing the damage it is hoped money can be better spent on enhancing the local environment.
Injunctive relief will provide an immediate benefit but, in addition, local authorities can be seen in a more positive light. They can be seen to be addressing the problem as the injunction is intended to pre-empt the creation of a camp so as to protect green spaces. By being strong in the face of infiltration, councils can be seen as addressing the problem effectively and protecting the green spaces that are intended to provide the leisure, pleasure and recreational activities for the community, which will in turn enhance good community relations.
Of course, the problem of traveller infiltration is not likely to simply disappear, but there is a belief that this different approach – the ‘preventative injunction’ – will discourage people intending to occupy parks and green spaces from coming into areas protected by an injunction. Having an all-encompassing injunction makes the location an unattractive option to set up an encampment. No sooner has the potential incursioner arrived at the site, they will be deemed to be in contempt of court and liable to imprisonment or the seizure of assets.
Although all borough/council-wide injunctions against persons unknown can be difficult to obtain due to their widespread nature, the prospect of a successful application is highly dependent upon the quality of the evidence from the Property/Planning and Environment Departments.9 The better the evidence, the more likely a court will feel obliged not to resist an application for the injunction order sought. Once the Order is obtained, serving on every entrance is necessary to ensure the injunction has teeth against a contemptor.
Time will tell how successful the green spaces injunction will be in this context, but the hope is that by obtaining more protection for our green spaces from travellers and the waste that they typically generate, the environment will benefit as it will be better protected from traveller infiltration. If the money that is saved from doing this were to be ring-fenced by councils it could be used to enhance the environment for everyone (e.g. residents, walking groups, sports enthusiasts, naturalists etc) to enjoy, thus improving our quality of life rather than being adversely affected by it.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1.For example, fridges, furniture and other household items that are dumped indiscriminately in open spaces.
2.Travellers involved in a commercial waste business may dump waste rather than (i) pay for a skip which can cost anything between £150 to £500 (depending on which part of the country you are in and the size) or (ii) pay for it to be disposed of by a licensed contractor.
3.A traveller camp can vary in size.
4.For example, fixing locks, gates, repairing damage to grass areas, footpaths and play areas. They may also have to pay specialist contractors to clear up dangerous waste such as asbestos. The list is not exhaustive.
5.See www.justice.gov.uk/courts/procedure-rules/civil/rules/part55#III (last accessed 8 August 2017). In particular, rules 55.20–55.28 of the Civil Procedure Rules and Practice Directions.
6.The applications made for an injunction have been made under s. 222 of the Local Government Act 1972 and s.187B of the Town and Country Planning Act 1990. Section 222 of the Local Government Act 1972, gives power to local authorities to prosecute or defend legal proceedings. It states: ‘(1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area—(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name, and (b) they may, in their own name, make representations in the interests of the inhabitants at any public inquiry held by or on behalf of any Minister or public body under any enactment. (2) In this section ‘local authority’ includes the Common Council and the London Fire and Emergency Planning Authority.’ Section 187B of the Town and Country Planning Act 1990, which concerns injunctions restraining breaches of planning control states the following: ‘(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.’
7.The green spaces specified can be of varying sizes from open spaces in and around neighbourhoods, small parks surrounding children’s play areas, to larger green spaces such as sports facilities and woodland.
8.Including bringing onto the land or stationing of caravans/mobile homes onto the space identified in the map submitted as part of the application.
9.Detailed witness statements (e.g. from the Street Scene officer for the area about the problems that local residents have faced and the costs the authorities have faced from clearing up sites) will be helpful to persuade the judge to grant the application.
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