What options are available when dealing with persons who trespass on land owned by another with an intention to reside?
What is an Unauthorised Encampment?
Unauthorised encampments (UEs) are defined by the Government as "encampments of caravans and/or other vehicles on land without the landowner or occupier's consent and constituting trespass".
Encamping on someone's land without their consent is unlawful and in certain circumstances, it’s not just a breach of civil law, but can also be criminal.
The prevention of trespass is the responsibility of the landowner.
You are reminded that Gypsies and Travellers are protected by law from racial discrimination.
What powers do the local authority have?
If a UE is on Council land without consent, Section 77 of the Criminal Justice and Public Order Act 1994 gives local authorities in England and Wales power to give a direction to leave the land.
The power applies to land forming part of a highway and any other unoccupied/occupied land on which people are residing without the consent of the occupier. It is an offence to fail to comply with such a direction and the person can be liable on summary conviction to a fine.
If the direction is not complied with, the local authority can apply to a Magistrates' Court for an order requiring the removal of vehicles and any occupants from the land (section 78).
In this scenario responsibility for eviction lies with the local authority and officers or agents of the local authority may use reasonable force to evict.
It is usually recommended that the police attend such evictions in order to prevent a breach of the peace.
There are common law powers to evict those who do not have permission to camp on land. All landowners can use their common law rights to recover land. This allows the person in possession of land to direct a trespasser to leave and should they not leave it allows them to use no more force than is necessary to evict them.
However, this should only be done with the assistance of certified bailiff and police should be in attendance.
Even though this power is available, in practice, mindful of the Human Rights Act 1998, and the Public Sector Equality Duty arising from the Equality Act 2010, it is not recommended that an eviction using this power is carried out and it is preferred instead, that if the threat of this action is not successful, that the authority apply for an order from the magistrates before enforcing eviction.
What rights do private landowners have?
Dudley Council will make every effort to determine who the land belongs to and contact the landowner to ascertain if the encampment has permission. We will attend the UE and provide support, advice and guidance to the landowner as required around welfare assessments and eviction, but the responsibility for costs rests with the landowner.
The landowner may be able to negotiate for the UE to leave but if this is not possible the landowner may ask them to leave. If they refuse the landowner may use reasonable measures to remove them. A landowner can regain possession of their land by pursuing a claim through the County Courts under Civil Procedure Rules 55. County Court bailiffs can be used to remove trespassers from the land once a possession order has been granted.
What powers do the police have?
The police will visit all sites reported to them, but trespass is a civil offence and not a criminal offence. Prevention of trespass and the removal of trespassers are the responsibilities of the landowner and not the police.
West Midlands Police carefully assess each incident of unauthorised camping and follow NPCC (National Police Chiefs Council) guidelines on proportionality.
The police have powers to move Gypsies or Travellers off land where criminal activity by them can be established - just as crime committed by settled people must be proven.
The police also have discretionary powers to direct Travellers off land where group behaviour goes against the Criminal Justice and Public Order Act 1994.
In certain circumstances (for example, where the Gypsies/Travellers have with them at least one vehicle or caravan), officers may use powers under Section 62 of the Criminal Justice and Public Order Act 1994. These powers will only be used in situations of serious criminality or public disorder not capable of being addressed by normal criminal legislation and in which the trespassory occupation of the land is a relevant factor.
Under S62 of the Criminal Justice and Public Order Act 1994 the Police have discretionary powers to direct trespassers to leave and remove any property or vehicles they have with them and not return within 12 months.
The police are bound by the Human Rights Act and may be constrained to avoid using Section 62 of the Criminal Justice and Public Order Act 1994 in circumstances where it would preclude welfare considerations from being applied by the civil courts. Utilising Section 62, the Police can direct the travellers to Budden Road, Coseley, which is Dudley Council’s transit site, but does not compel them to do so. If the travellers refuse, then they will be directed out of the borough.
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