Unauthorised Encampments: The Powers of Landowners and the Police.

Unauthorised encampments can cause considerable concern for landowners and local communities. The law in England and Wales gives landowners, local authorities and the police a range of powers, but the appropriate response will depend on the circumstances.

Although trespass is generally dealt with as a civil matter, legislation introduced in 2022 created a specific criminal offence relating to people residing, or intending to reside, on land without consent in or with a vehicle. This does not make every form of trespass a criminal offence.

What Is an Unauthorised Encampment?

An unauthorised encampment normally arises where people occupy land without the landowner's permission, often while living in caravans or other vehicles.

The fact that an encampment is unauthorised does not automatically mean that a criminal offence has been committed. The police must consider the relevant legal conditions, the conduct taking place and whether criminal or public-order powers are available.

The Criminal Offence of Residing on Land Without Consent

The Police, Crime, Sentencing and Courts Act 2022 introduced an offence of residing, or intending to reside, on land without consent in or with a vehicle.

The offence can apply where a person aged 18 or over:

■ Is residing, or intends to reside, on land without the occupier's consent
■ Has at least one vehicle with them
■ Is asked to leave the land and remove their property
■ Fails to leave as soon as reasonably practicable, or returns within the prohibited period
■ Has caused, or is likely to cause, significant damage, significant disruption or significant distress
■ Does not have a reasonable excuse

The legislation is therefore aimed at encampments associated with a specified level of harm. Simply entering or remaining on land without permission will not necessarily satisfy the criminal test.

What Counts as Significant Damage or Disruption?

The police will consider the individual circumstances of the encampment. Relevant matters may include significant damage to land, buildings, crops, vehicles or the environment.

Significant disruption may include interference with a person's ability to use their land, conduct a business or access essential services. Threatening behaviour or conduct causing significant distress may also be relevant.

Minor inconvenience, the mere presence of an encampment or general concern about people occupying land may not be sufficient on its own.

Police Powers

Where the criminal offence is suspected, the police may arrest those involved and seize vehicles or other property.

The police also have existing powers under the Criminal Justice and Public Order Act 1994 to direct people to leave land in certain circumstances. These powers can apply where two or more people are trespassing with the common purpose of residing on the land and specified conditions are met.

Those conditions can include damage to land or property, threatening or abusive behaviour, or the presence of six or more vehicles. Additional powers may be available where a suitable alternative pitch has been provided.

The existence of a police power does not mean it must be exercised immediately. The police must act lawfully and proportionately and will consider the level of harm, the needs of those involved and whether another organisation is better placed to respond.

Can a Landowner Remove an Encampment?

A private landowner may ask those occupying the land to leave. Where they refuse, the landowner may seek possession through the civil courts.

Possession proceedings can provide a court order requiring those occupying the land to leave. Authorised enforcement officers or bailiffs may then enforce the order.

Landowners should avoid confrontational action or attempting to remove people, caravans or possessions by force. Doing so could create safety risks and expose the landowner to civil or criminal allegations.

Local Authority Powers

Local authorities may take action where an unauthorised encampment is situated on council-owned land. They may use civil possession proceedings and, where the statutory requirements are met, seek directions or orders under the Criminal Justice and Public Order Act 1994.

Before taking enforcement action, a local authority may need to consider Welfare issues, including the presence of children, older adults, disabilities, medical needs and the availability of suitable alternative accommodation.

This does not give those occupying land an automatic right to remain. It means that enforcement decisions should be proportionate and take relevant circumstances into account.

Possession Orders

Landowners and public authorities can apply to the court for possession of land occupied by trespassers. Accelerated procedures may be available in appropriate cases, but the correct procedure will depend on the type of land, the identity of the occupier and the circumstances of the occupation.

A court order should be carefully drafted so that it covers the relevant land and can be enforced effectively. Legal advice may be particularly important where the occupiers' identities are unknown, or the encampment is moving between adjoining areas.

Planning Law and Traveller Sites

An unauthorised encampment should be distinguished from an unauthorised development. Planning issues can arise where land is used as a permanent or temporary residential caravan site without the necessary planning permission.

Local planning authorities are responsible for investigating possible planning breaches and may serve enforcement notices where appropriate.

The planning definition of Gypsies and Travellers is used for planning-policy purposes. It is separate from the criminal and civil rules governing trespass and should not be treated as determining whether an encampment is lawful.

Protection Against Discrimination

Romany Gypsies and Irish Travellers are recognised ethnic groups and may be protected from race discrimination under the Equality Act 2010.

Landowners, councils and public bodies must therefore avoid decisions based on prejudice or assumptions about aperson'ss ethnic background. Enforcement action should be based on the occupation of the land, the conduct involved and the legal powers available.

Equality protections do not provide a general right to occupy land without permission. Still, public authorities must exercise their powers fairly and proportionately.

What Should a Landowner Do?

A landowner faced with an unauthorised encampment should record when the occupation began, the number and location of vehicles, any damage or disruption and any communication with those occupying the land.

The police should be contacted immediately where there are threats, violence, criminal damage, dangerous driving or an immediate risk to public safety.

Where there is no immediate criminal issue, the landowner may need advice about civil possession proceedings. The local authority may also be able to provide information about its unauthorised-encampment procedures.

Obtaining Legal Advice

The law governing unauthorised encampments involves criminal law, civil possession procedures, planning law, human rights and equality duties. The correct course of action will depend on who owns the land, the conduct taking place and whether the statutory requirements for police intervention have been met.

Landowners, businesses and those affected by enforcement action should obtain advice from a solicitor experienced in property, public or criminal law before taking action.

Important Information

Solicitors.com is not a firm of solicitors. This article is provided for general information only and does not constitute legal advice. The law may change, and its application will depend on the individual circumstances. You should seek advice from a suitably qualified solicitor before taking or refraining from legal action.