City of London Corporation v Samede and others

Highway – Protest camp – Possession proceedings – Large number of tents erected on highway as part of protest – Claimant as highway authority and owner of highway land seeking possession order and injunctive relief against defendant protesters – Injunctions also sought under planning legislation in respect of land not in claimant’s ownership – Whether claimant entitled to relief sought under general law – Whether grant of relief a disproportionate interference with defendants’ right to freedom of expression and assembly under Articles 10 and 11 of European Convention on Human Rights – Claim allowed The defendants participated in a protest camp set up in the churchyard of St Paul’s cathedral in London, comprising 150 to 200 tents for accommodation plus larger tents used for activities and meetings and for the provision of food, first aid and other services. The camp covered an area of highway land, ownership of which vested in the claimant as highway authority pursuant to section 263(1) of the Highways Act 1980 (area 1), plus further open land owned by the Church (area 2). The claimant was also the planning authority for the area under the Town and Country Planning Act 1990 and a local authority under the Local Government Acts of 1972 and 2000. It had given no licence or consent for the protest camp and had failed in attempts to reach agreement with the protesters on a time for its removal. The claimant had served both a written notice under section 143 of the 1980 Act and an enforcement notice under the 1990 Act but neither had been complied with. The claimant brought proceedings against the defendants in order to secure the removal of the camp. The relief it sought included: (i) possession orders in respect of area 1 plus a wider area of adjoining highway and open land (area 3) also in the claimant’s ownership; (ii) injunctive relief in respect of those areas under section 130 of the 1980 Act and declarations as to its right to remove the tents; and (iii) injunctions under section 187A of the 1990 Act in respect of area 2. The defendants argued that the grant of such relief would be an unjustified interference with their right to freedom of expression and assembly under Articles 10 and 11 of the European Convention on Human Rights. The claimant contended that the interference was justified in order to protect the rights and freedoms of others, including the Article 9 rights of worshippers at the cathedral, and to prevent disorder and crime. The main issues were whether the claimant had established its entitlement to possession and/or injunctive relief and, if so, whether the interference with the defendants’ rights that the grant of such relief would represent was lawful, necessary and proportionate. Held: The claim was allowed. (1) The claimant was entitled to an order for possession of the whole of area 3, of which area 1 was a part. The inclusion of area 3 in the order for possession was a prudent and necessary precaution against the defendants moving off areas 1 and 2 on to adjacent highway land and open space. Area 1 and most of area 3 was highway, over which there was a public right of way and which was vested in the claimant and maintainable at public expense. The defendants had entered and remained on the land in area 1 without the permission of the claimant and were in actual possession of it. The claimant had been ousted from the possession and control to which it was lawfully entitled. The protesters had failed to comply with a formal notice to vacate and there had been no indication that they were likely to leave in the foreseeable future unless required to do so by the court. Apart from their rights under Articles 10 and 11 of the Convention, they had no arguable right to occupy, control or take possession of highway land from the claimant as highway authority. That conclusion did not depend on the claimant being able to prove that the defendants’ occupation of area 1 constituted an unreasonable obstruction of the highway; although that was a relevant consideration in the proceedings for injunctive relief under section 130 of the 1980 Act, it was not a prerequisite of the claim for possession. Neither under the statutory regime in the Highways Acts nor at common law had there ever been a right to occupy, control or take possession of highway land from the highway authority. The common law, in its post-Convention evolution, has gone no further than recognising a limited right to protest on the highway, provided that the activity involved in such protest did not amount to a nuisance, and provided also that it did not unreasonably impede the right of the public to pass and repass. The statutory scheme provided in the 1980 Act could not be reconciled with the concept of third parties occupying, controlling and taking possession of the highway. To impose on the highway a substantial encampment of tents was inimical to the statutory scheme: Wiltshire County Council v Frazer (1984) 47 P&CR 69, Director of Public Prosecutions v Jones [1999] 2 AC 240; [1999] EGCS 36, Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [2009] 49 EG 70 (CS) and Mayor of London v Hall [2010] EWHC 1613 (QB); [2001] EWCA Civ 817; [2011] 1 WLR 504 considered.(2) The claimant was also entitled to the injunctions it sought under section 130 of the 1980 Act, plus a declaration that, under its powers at common law, it could enter area 1 and remove any tents that were not removed in accordance with the section 130 order. An assembly on the highway was not necessarily unlawful, provided it was reasonable and non-obstructive and did not contravene the criminal law of wilful obstruction of the highway. However, the camp amounted to an unreasonable obstruction. Whether an assembly on the highway was reasonable and non-obstructive was to be ascertained objectively, having regard to the size of the assembly, how long it lasted and on what kind of highway it took place. The camp occupied and obstructed a substantial portion of the highway and deprived the public of the use of 80% of it, contrary to the right of the public to pass and repass, which applied to the whole width and every part of the highway. The effect of the camp, both direct and indirect, on pedestrian movement through and around St Paul’s churchyard had been significant. An encampment of between 100 and 200 tents, accommodating a large community of protestors and seeming likely to remain unless and until the court intervened, could not sensibly be regarded as reasonably transitional in nature: Jones applied.(3) The claimant was entitled to injunctions in respect of areas 1 and 2 pursuant to section 187B of the 1990 Act. The statutory remedy of an injunction under section 178B was open to a local planning authority whenever it considered an order of the court to be necessary or expedient as a means of restraining any actual or apprehended breach of planning control. The court could grant such an injunction as it thought appropriate for the purpose of restraining the breach. The retention of any occupied tents in areas 1 and 2 would amount to a breach of planning control, which could properly be enforced again by injunction. Moreover, the presence of the tents themselves, occupied or not, was sufficient to bring about a material change of use of the land in areas 1 and 2. Section 55 of the 1990 Act required planning permission for such development and none had been granted or could reasonably be hoped for. The claimant was entitled to an injunction to require the removal of the tents located in areas 1 and 2 and to prevent the further pitching of tents within areas 1, 2 and 3.(4) The grant of the above orders did not constitute an unwarranted interference with the defendants’ rights under Articles 10 and 11 of the Convention. Although those rights were of fundamental importance in a democratic society, they were subject to the constraints set out in Articles 10(2) and 11(2) in respect of restrictions prescribed by law and necessary in a democratic society in the interests of public safety, for the prevention of disorder or crime and for the protection of the freedoms of others. Considerable weight had to be given to highway authorities’ statutory powers and duties to protect public rights over the highway land vested in them and local planning authorities’ powers to enforce planning control in the public interest. The continued presence of the protest camp was at odds with the intent and purpose of those statutory schemes and the grant of the relief sought by the claimant was necessary in order to give effect to parliament’s intention in enacting those schemes. It was impossible reconcile the presence of the protest camp with the lawful function and character of the land as highway. Further, the effects of the camp had been such as to interfere seriously with the rights, under Article 9 of the Convention, of those who desired to worship in the cathedral, as well as constituting a nuisance to the Church. Other harms resulting from the camp included nuisance by the generation of noise and smell, damage to the trade of local businesses and an increase in crime and disorder in the area. The length of time that the camp had been present was also a relevant factor. Several of those factors would individually warrant the grant of the relief sought and, when added together, they amounted to an unusually persuasive case on the side of granting relief. The grant of relief was not disproportionate but struck a fair balance between the needs of the community and the individuals concerned: Hall applied; Westminster City Council v Haw [2002] EWHC 2073 (QB) and Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 distinguished. David Forsdick and Zoe Leventhal (instructed by the legal department of City of London Corporation) appeared for the claimant; John Cooper QC and Michael Paget (instructed by Kaim Todner) appeared for the first defendant; the second and third defendants appeared in person. Sally Dobson, barrister