Trespasses, unauthorised incursions and encampments - Legal Summary
This page provides a short summary of the law on Police powers, and the legal position relating to public land and private land.
Trespasses, unauthorised incursions and encampments on both publicly and privately owned land are problematic. Sites of such incidents rarely provide adequate facilities and as such provide poor living conditions and are frequently a substantial concern and inconvenience to the usual users of such land. Community tensions can result and there is frequently a resultant cost to the public or private purse. This guidance sets out the principles which must underpin dealing with such incidents, what options exist for both public and private landowners, what the obligations are for those landowners and what limitations exist to dealing with such incidents for landowners, authorities and the Police.
It is important to understand that the law confers legal rights on Gypsies and the Travelling Community with Romani Gypsies and Irish Travellers being recognised ethnic groups for the purposes of the Equality Act 2010. Legislation and nationally mandated practise also places responsibilities on Councils with Article 8 of the European Convention on Human Rights underpinning the right to respect for a private and family life.
It is necessary to balance the Human Rights of the travellers against the needs of the wider community. Department of the Environment circular 18/94 states: The Secretary of State continues to consider that local authorities should not use their powers to evict Gypsies needlessly. He considers that local authorities should use their powers in a humane and compassionate way, taking account of the rights and needs of the Gypsies concerned, the owners of the land in question and the wider community whose lives may be affected by the situation. As a result when managing such incidents on Council land officials are obliged to establish the welfare situation of the encampment and to take appropriate steps before proceeding with any enforcement action. Every encampment and incursion is therefore dealt with on a case by case basis and careful consideration is given to whether enforcement action is justified, necessary and proportionate.
Under S61-62 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. This power only applies where the senior police officer reasonably believes that two or more people are trespassing on land with the purpose of residing there, that the occupier has taken reasonable steps to ask them to leave
That any of the trespassers have caused damage to land or property. OR
That any of the trespassers have used threatening, abusive or insulting words or behaviour towards the occupier, a member of the occupier’s family or an employee or agent of the occupier. OR
That the trespassers have between them six or more vehicles on the land.
Failure to comply with a direction to leave as soon as reasonably practicable is an offence and a trespasser who leaves the land in compliance of a direction commits an offence if they return to the land as a trespasser within three months of the direction being given. In exercising these powers the Police will be mindful of the imperative to act within the framework and spirit of the law.
Publicly owned land
In accordance with the Joint Protocol where the authority becomes aware of an encampment an agent of the authority will visit and ascertain their intentions, advise of any authorised alternatives, conduct a welfare check with referrals where appropriate and consider the necessity for enforcement action. During any enforcement action the authority will be required by the courts to evidence that it has conducted these enquiries.
If a requirement to leave is ignored enforcement action may be commenced immediately where there are aggravating circumstances such as unreasonable or statutory nuisance, road safety hazards, obstruction or where the land is required for use, there is environmental damage or demonstrable criminality linked to the encampment.
If the Police are unable to take action under S61-62 then the authority may seek possession of the land through the civil courts, the most usual option being Part 55 of the Civil Procedure Rules. Such procedure may however take some time and involves the expenditure of public funds its use is therefore considered carefully.
Privately owned land
If a private landowner decides to tolerate or permit an encampment then they should first seek advice to ensure they do not contravene planning or other legislation. Where an encampment occurs on privately owned land and is unauthorised then it is the responsibility of the landowner to pursue enforcement action. Where the circumstances are appropriate then following a request to leave the Police may be asked to consider the use of powers under S61-62. Otherwise the landowner must pursue possession of the land through the civil courts. Please see separate advice ‘How can I protect my land?'
Removal of waste
Local authorities are under an obligation to remove fly tipped waste from public land but on private land it is the responsibility of the landowner to remove the waste and dispose of it legally. This can involve engaging private contractors and be expensive. The council can advise what options are available locally but are also obliged in certain circumstances to use powers to require landowners to remove waste