TRESPASSERS ON LAND
Trespass is where someone enters land without the permission of the owner, either for a short time or sometimes with the intention of staying for a longer period of time. Unauthorised camping on Council owned or privately owned land is trespass and is usually carried out by Gypsies, Travellers or the homeless.
In 2008 in the Horsham District, there were 7 incidents of unauthorised camping on Council owned land - 5 by Gypsies, 1 by a young couple who could no longer live with parents, and 1 unknown trespasser. In addition, there were 2 unauthorised encampments on Parish Council owned land and 2 known of on privately owned land, all by Gypsies.
A: The Owner of the land is responsible for removing trespassers from that land.
Council owned land – The Council will take the action, obtaining a possession order in the County Court
Parish Council owned land – The Parish Council will take the action, either by taking County Court action or by appointing private bailiffs
Privately owned land – The owner of the land will take the action, either by taking County Court action or by appointing private bailiffs
A: The Police will usually expect the landowner to take appropriate action to evict the trespassers, however all encampments should be reported to the Police to make them aware of the situation, and complaints about criminal activity by the trespassers should be reported to them.
Police have discretionary powers to direct trespassers off land under the Criminal Justice and Public Order Act 1994 where there are six or more vehicles, but will use these powers only exceptionally and generally they will only be used in situations where the trespassers are causing criminal damage, are in close proximity to housing or other sensitive public places, or in a high crime rate area.
A:
Reports of trespassers
The Council is usually alerted to trespassers by members of the public phoning in to complain.
Council Officers will go to the land as soon as possible after the first report to deal with the matter and before the trespassers get too settled. The Officers will assess the situation and make a judgement on the urgency of legal proceedings (see Court Procedure section below).
Obligations on the Council
The Council may have duties to discharge in some cases and so Officers must try and talk to the trespassers to find out some details. If the process is not carried out correctly then the Council’s action may be challenged in the High Court and this may mean that the trespassers cannot be evicted for some time or until the court case is concluded.
The Council’s Officers will talk to the Trespassers to find out:
- How long they intend to stay
- Where they have come from
- Whether they have anywhere else to go (many trespassing Gypsies will be travelling to work for a period of time eg summer holidays and then return to their home base)
- Do they wish to receive housing advice and assistance or make a homeless application
- If there are children do they go to school and if so where, and if the encampment is in school term time, do they want help with securing their child a place at a school while they are trespassing on the land
- Whether they are expecting anyone else to join them
- Whether they wish to contact the Gypsy and Traveller liaison Officer at WSCC, in which case the information is given to them then and there
The Officers will tell the trespassers that they are there without permission and that an application would be made to the County Court for possession. The aim is that the Court papers are issued and served the same day, and this is usually the case.
Following this initial visit, it is important that any obligations the Council has are dealt with. This means that if for example assistance with housing is requested, a housing officer will visit as soon as possible (if there is no housing officer present at the initial visit) and discharge the housing duty by advising and/or taking a homeless application and offering suitable temporary accommodation before court proceedings are issued.
Trespassers on Parish Council and Privately Owned Land
There are not the same obligations on the Parish Council and private landowner as there are on the District Council, and so if the Trespassers are there without consent then they should be told that and proceedings can be started immediately. The procedure for issuing Court proceedings is described below. A Solicitor will be able to make the application, or the Landowner can make the application in person.
As an alternative to Court proceedings, the Parish Councils and Private Landowner may wish to consider the use of Private Bailiffs. Many Private Bailiffs offer a service of evicting Trespassers using common law powers with no need for a Court Order. Details of such Bailiffs can be found on the internet. The costs may vary so inquiries should be made by the Parish Council or Landowner.
What happens if the Landowner allows the trespassers to stay?
If the landowner takes no action to remove the Trespassers, planning permission will be required after 28 days, so after that time there will be a breach of planning control which may lead to enforcement action being taken
Issuing Court Proceedings
The proceedings must be issued in the correct Court, and this will depend on where the trespassers are located. The Council’s District is served by 5 County Courts, at Horsham, Brighton, Worthing, Chichester and Haywards Heath. The Court will fix a hearing date not less than 2 clear days after issue (unless an application is made to the Court and granted by the Judge for an earlier hearing because of the harm being caused by the presence of the trespassers)
Court Procedure
The Court forms that need to be completed are found at www.hmcourts-service.gov.uk
Contact details for the Courts are found at ‘Court information and addresses’.
The forms required are under the heading ‘Forms and guidance’. The relevant form numbers in all cases are:
n5 (Claim form)
n121 (Particulars of Claim – Trespassers)
The Court fee is currently £150 which must be submitted with these forms
n215 (Certificate of service – see later)
n325 (Request for a warrant of possession – see later)
In addition, proof of ownership of the land is required, and a copy of the proof of title should be appended to the particulars of claim
2 clear days are required between issue of proceedings and the hearing.
In the event of the proceedings being considered to be too urgent to wait 2 days for a hearing, an application may be made on form n244 to abridge the time for service. This is a general form of application and requires an explanation of why you think it is important that the case be heard in less than 2 days. There is an additional fee for this application which is currently £75. This application will be at the discretion of the Judge and will not be granted without careful consideration.
The papers should be served as soon as they are issued. Service is effected by:
- Handing a copy to an adult person in each residential unit, and/or
- Affixing a copy to each residential unit, and also
- Affixing a copy in a prominent position to the entrance of the land.
The copy at the entrance is important because anyone who arrives after the papers have been served will be deemed to have seen, and therefore have been served by, the notice at the entrance. If there is more than 1 entrance, copies should be posted at each.
After service has been effected, a certificate of service (n215) must be completed and produced at the hearing. This will tell the Judge that the papers were served correctly, and if the Judge is satisfied that the papers are in order and correctly served, then an order for immediate possession should be granted at the hearing.
A further form needs to be completed and handed into the Court office after the hearing. The n325 is a request for a bailiffs warrant, and a fee of £95 is currently payable for this. Although the possession order will be of immediate effect, it is the Court Bailiffs who execute the warrant, although they will require the Landowner to have made provision for assistance to be available in the form of towing vehicles, etc.
Summary
To issue proceedings requires:
n5 Claim form, and
n121 Particulars of claim, and
Proof of ownership
Court Fee – currently £150
(Plus
n244 If making an application to abridge service
Court fee – currently £75)
Following service of papers:
n215 Certificate of service - needed at the hearing
After the hearing:
n325 Application for a warrant of possession
Court fee - currently £95
(It is advisable to check the Court fee with the Court)
Obtaining Possession
After the hearing the Court will draw up the papers, and they need to be served as soon as possible. The trespassers should be told of the date and time of the eviction if it is known. The Bailiffs will ask for assistance in the form of tow trucks or other means of removing the trespassers if they do not move voluntarily.
After the Trespassers have left it is important to make sure the land is secure, or they may re-enter.
Queries or request for further information
Contact Liz Creswick on 01403 215476 or Anne Harwood on 01403 215474
Email: legal@horsham.gov.uk