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Overview

There is a range of legislation that is applicable with regards to unauthorised encampments. Some of this is detailed below. It is important to remember that legislation and protection by law applies to both the landowner and also to Gypsy and Traveller communities.

Police, Crime, Sentencing and Courts Act 2022 (“Police Act”)

Section 83 of the Police Act inserts new sections 60C to 60E into the Criminal Justice and Public Order Act 1994 (“1994 Act”).

New section 60C introduces a criminal offence of residing or intending to reside in a vehicle on land without consent, provided one or more of the following conditions are satisfied:

  • That significant damage or significant disruption has been caused or is likely to be caused as a result of the person’s residence.
  • That significant damage or significant disruption has been caused or is likely to be caused as a result of conduct carried on, or likely to be carried on, by the person while on the land.
  • That significant distress has been caused or is likely to be caused as a result of offensive conduct carried on or likely to be carried on by the person while on the land.

An offence is committed if the person, without “reasonable excuse”, fails to comply as soon as reasonably practicable with a request made by the landowner/occupier or the police to leave the land and remove all their property. It is also an offence for the person, without reasonable excuse, to move back onto the land within 12 months.

The “reasonable excuse” defence allows a person to show that they had a reasonable excuse for failing to comply as soon as reasonably practicable with a request to leave the land with the intention of residing there without consent. It will be up to a court to decide what constitutes a reasonable excuse, but a potential cause may be a vehicle breaking down and awaiting repair.

New section 60C(7)(a) provides that, in relation to common land to which the public has access and where the occupier of the land cannot be identified, a local authority is to be treated as the “occupier”. This means that, in these cases, a person must not reside or intend to reside on the land without the consent of the local authority and a local authority can request that a person leaves the land and removes their property.

New section 60C(8) sets out non-exhaustive definitions for “damage” and “disruption”. Damage includes physical damage, being “damage to the land” and non-physical damage, being “damage to the environment” which includes excessive noise, smells, litter or deposits of waste. Disruption includes a person’s ability to access any facilities located on the land or otherwise make lawful use of the land or a supply of water, energy or fuel.

The maximum penalty for the offence is 3 months’ imprisonment, a level 4 fine (currently £2,500), or both.

Where a constable reasonably suspects that an offence has been committed under new section 60C, new section 60D gives the constable the power to seize and remove any relevant property (defined in new section 60D(2)) that appears to belong to the person who the constable suspects has committed the offence, is in their possession or under their control. This property includes a vehicle, if the constable suspects the person had this with them or intended to have this with them in commission of an offence under new section 60C. Property seized under new section 60D may be retained by the police for up to 3 months from the date of seizure or, if criminal proceedings are commenced, until the conclusion of those proceedings.

Under new section 60E seized property can be forfeited and dealt with as specified in a court order. Before making an order for forfeiture of the property the court must permit anyone who claims to be the owner or to have an interest in it to make representations. The court must also consider the property’s value and the likely consequences of forfeiture.

Section 84 of the Police Act amends existing powers in the 1994 Act. Subsection (3) amends section 61(1)(a) (power to remove trespassers on land) of the 1994 Act, insofar as it applies to England and Wales, to broaden the types of harm caught by the power of a senior officer to direct trespassers with a common purpose of residing on land to leave the land and remove their property. These now comprise damage, disruption or distress and, unlike for the new offence, these do not need to be “significant” to be caught by the power. “Damage” and “disruption” are given the same definitions as in new section 60C.

In line with the existing provision under section 61 of the 1994 Act, a senior officer may direct all trespassers with a common purpose of residing on the land, where he reasonably believes any of them has caused the damage, disruption or distress and reasonable steps have been taken by or on behalf of the occupier, to ask them to leave; there is no requirement to reasonably believe the damage, disruption or distress was caused by one particular trespasser.

Section 61(4) of the 1994 Act is amended to provide that a person issued with a direction to leave by a senior officer in England and Wales under section 61(1) commits an offence if they, without reasonable excuse, enter the land again as a trespasser within 12 months of the direction. Section 61(9) is amended to enable the police to direct trespassers to leave land that forms part of a highway in England and Wales. Section 62(1)(b) of the 1994 Act introduces powers to enable the vehicle of a person to be seized if they, without reasonable excuse, enter the land again as a trespasser within 12 months of being issued with a direction under section 61(1).

Under section 62B(2) of the 1994 Act, a person commits an offence where they enter any land in the area of the relevant local authority as a trespasser with an intention of residing there within 12 months of being issued with a direction to leave under section 62.

Highways Act 1980

Under section 137 of the Highways Act 1980, it is an offence for a person, without lawful authority or excuse, to wilfully obstruct the free passage along a highway in any way. Section 143 of that Act gives a power to a highway authority to remove, on 1 month’s notice, any structures set up on a highway. The definition of structure includes an object capable of causing obstruction, whether or not it is on wheels, and therefore includes a caravan or mobile home.

Civil Procedure Rules 1998

A possession order may be obtained in the civil courts requiring the removal of any trespassers from property under Part 55 of the Civil Procedure Rules. This remedy is available to both public and private landowners.

Human Rights Act 1998

The Human Rights Act 1998 (HRA) gives effect to the European Convention on Human Rights (“ECHR” or “Convention”) in the UK. ll Decisions made by public authorities in Wales must comply with the ECHR.

Article 8 of the ECHR is of significant importance in connection with the home of a Gypsy or Traveller. Article 8 states that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.

’Home’’ can include a caravan even if it is unlawfully or illegally parked. Therefore Article 8 may apply to those persons on unauthorised encampments as well as tenants of sites.

Article 14 concerns prohibition of discrimination and should be read in conjunction with Article 8:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Eviction of a Gypsy or Traveller from an unlawful encampment by a local authority is likely to engage Article 8, as it is likely to be an interference with the Gypsy or Traveller’s home (Chapman v United Kingdom (2001) 33 EHRR 18). However, article 8 rights are qualified and a local authority will have to determine whether an eviction would amount to an unlawful interference, or whether doing so could be objectively justified in al the circumstances of any particular case.

Environmental Protection Act 1990

Local authorities have various powers under the Environmental Protection Act 1990 to address issues of waste, statutory nuisance and litter in their area.

Town and Country Planning Act 1990

Where Gypsies or Travellers (or anyone else) buy land and develop it as a caravan site without planning consent, enforcement action will be through the planning system. Enforcement is a matter for the discretion of the local planning authority. Guidance on using planning enforcement powers is available in the Development Management Manual and Welsh Office Circular 24/97.