I asked Gemini “Could you explain why it is better to get a court order when dealing with traveller occupation of parish land than to simply serve an eviction notice and employ bailiffs immediately?”
I am not a solicitor so don’t know if this is 100% correct but it certainly paints a good picture, like the one above 😉
When dealing with Traveller occupation of parish land in the UK, it is generally better to obtain a court order (a Writ of Possession) rather than relying solely on a common law eviction notice and immediately employing bailiffs. While common law eviction can be quicker in some cases, a court order offers several significant advantages and reduces risks for the parish council.
Here’s why a court order is often the preferred route:
1. Enhanced Legal Authority and Police Support:
- Writ of Possession: A court-ordered Writ of Possession is a formal legal document that grants High Court Enforcement Officers (HCEOs – formerly High Court Sheriffs) specific authority to evict trespassers. Crucially, the police are generally required to support HCEOs in enforcing a writ, especially if there’s a risk of resistance or breach of peace. This additional support can be vital in ensuring a safe and effective eviction.
- Common Law: While landowners have a common law right to remove trespassers, and can employ Certified Enforcement Agents (bailiffs) to do so, the police are not typically obliged to assist in a common law eviction as it’s considered a civil matter. Bailiffs can only use “reasonable force,” which is open to interpretation and can be a difficult line to navigate.
2. Reduced Risk of Legal Challenges and Liability:
- Clarity and Protection: A court order provides clear legal authorisation for the eviction. This significantly reduces the risk of the parish council facing legal challenges from the Travellers, such as claims of unlawful eviction, assault, or human rights breaches. The court will have already considered the legal basis for the eviction.
- “Reasonable Force” Ambiguity: Under common law, the concept of “reasonable force” can be subjective. If excessive force is perceived to have been used by bailiffs in a common law eviction, the parish council (as the instructing party) could face a claim for damages or even criminal charges. A court order provides a stronger framework for what is permissible.
- Welfare Considerations: Public authorities (like parish councils) have certain welfare duties towards occupants, even trespassers, especially if there are children, elderly, or vulnerable individuals present. A court will typically ensure that these welfare considerations have been addressed before granting an eviction order, which provides an added layer of protection for the council.
3. Deterrent to Re-occupation:
- Criminal Sanctions: If Travellers fail to leave after a court order has been obtained, or if they return to the land within a specified period (often three months) after being evicted under a court order, they can face criminal sanctions, including fines or even imprisonment. This provides a stronger deterrent against immediate re-occupation.
- Common Law Limitation: With a common law eviction, there’s no inherent penalty if the Travellers return to the land shortly after being moved on. The process would simply have to be repeated.
4. Handling Complex Situations:
- Resistance and Aggression: If there’s an expectation of significant resistance, aggression, or a large number of vehicles, a court order and the involvement of HCEOs with police support are far better equipped to manage such situations safely and effectively.
- Difficult to Reach Agreements: If negotiations with the Travellers for voluntary departure are unsuccessful, a court order provides the necessary legal muscle to compel their removal.
While Common Law Eviction can be faster and less costly initially, it carries greater risks:
- It relies on the goodwill of the Travellers to leave after notice.
- The bailiffs’ powers are more limited, and they cannot break locks or force entry into caravans.
- There’s no automatic police support, potentially leaving bailiffs (and by extension, the parish council) vulnerable if resistance is met.
- No criminal sanctions for re-occupation.
In summary:
| Feature | Common Law Eviction (Notice + Bailiffs) | Court Order (Writ of Possession) |
| Speed | Potentially faster (24-48 hours) | Can take longer (days to weeks) |
| Cost | Generally lower initial cost | Higher due to court fees and legal involvement |
| Police Support | Not generally obligated | Usually required to support HCEOs |
| Legal Authority | Landowner’s right, “reasonable force” | Formal court decree |
| Risk of Challenges | Higher | Lower |
| Re-occupation | No immediate criminal penalty | Criminal sanctions for return |
| Welfare Checks | Less formal | Addressed by the court |
For a parish council, which is a public body with duties and responsibilities, prioritizing legal compliance, safety, and long-term resolution often makes obtaining a court order the more prudent and ultimately better approach, despite the potentially longer timeframe and higher initial cost. It provides a more robust and defensible position should any issues arise during or after the eviction.
Hope you found that interesting and useful.
Thank you.
Jon Davey
Community Champion
