The Supreme Court has held that it is not possible to make a possession order in respect of land that is not yet occupied by trespassers.

The case involved travellers who had camped in a Forestry Commission wood; the Secretary of State then applied for a possession order and injunction in respect of that wood, but also 13 other woods to which it was thought the travellers might move. A possession order was refused, although the court did make it clear that this did not mean that ‘when trespassers are encamped in part of a wood, an order for possession cannot be made against them in respect of the whole wood’. But, what is less clear is where the crossover point lies. For instance could it be asking too much to try to get possession of a 3000-acre estate when travellers have set up a camp on a field in the middle of it? According to Lord Neuberger, that may well be the case, and claimants should not be over-ambitious when defining land in a possession claim.

What should a landowner do when it is anticipated that land will be occupied by trespassers? The theoretical answer is to apply for an injunction. In practice an injunction is likely to be a toothless remedy, because the traveller’s main asset is his vehicle, which is also his home (in which case sequestration would be ‘pointless or oppressive’). Also, since many travellers are ‘vulnerable’ and many have young children, imprisonment would almost certainly be disproportionate. In practice, therefore, the courts will encourage the granting of a declaration, instead of an injunction. What the Supreme Court envisaged was that the court could grant a declaration that the claimant is in possession of the other land referred to, and that the travellers would have no right to dispossess the landowner of it. That would then help the landowner in any subsequent proceedings (although we would have thought it would be of marginal benefit). But, what is clear is that blanket possession orders are history, and claimants should now think less about injunctions and more about declarations.

See excellent note on ?Secretary of State v Meier [2009] UKSC 11 in [2010] SJ 9 February 25.