Trespass – Injunction – Punting – Claimant council applying for interim injunction against defendants preventing commercial punt operations on river – Whether defendants trespassing on claimant’s land – Whether activities constituting unreasonable use of highway – Application granted
The claimant council issued a claim form against the defendants as freehold owner of various parcels of land in Cambridge. It asserted that the defendants owned, operated or were otherwise involved in unlicensed and unlawful punting activities on the River Cam involving trespass on the claimant’s land from specified “claim locations”; the activities were undertaken without the claimant’s consent and were in breach of the byelaws of the Cam Conservators, the body with authority over the River Cam. The relief claimed was an order prohibiting the defendants from operating punt tours or punt hire, mooring boats or other vessels, embarking or disembarking passengers, and touting from the claimant’s land at any of the claim locations.
The claimant leased or licensed the use of six official punt stations at various places along the River Cam. Licensed punt operators paid licence fees or rents to the claimant. They also paid business rates and covered their operating expenses either by payments made directly to the claimant or through their rent or licence fees. The use of any other part of the river bank for commercial punting activity was not permitted.
The claimant applied for an interim injunction against named defendants, as well as persons unknown, to prevent the unauthorised commercial punt operations. The first defendant was a company carrying on commercial punt operations, which currently departed from and returned to a slipway on Garrett Hostel Lane. The second to fourth defendants were individuals and directors of the first defendant. The fifth to eleventh defendants were individuals who were alleged to have been involved in the first defendant’s punt operations. The twelfth defendant was “persons unknown”, to cater for the possibility that others were involved, or likely to become involved, in the first defendant’s punt operations or other unauthorised commercial punt operations from the claimant’s land. The fifth to eleventh defendants did not resist the application.
Held: The application was granted.
(1) The public highway was a public place, on which all manner of reasonable activities might occur. Provided those activities were reasonable, did not involve a public or private nuisance, and did not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they would not constitute a trespass. Subject to those qualifications, there was a public right of peaceful assembly on the public highway. The rule would not permit unreasonable use of the highway, nor use which was obstructive, ie by squatters or other uninvited visitors. The test of reasonableness would be strictly applied to narrow highways across private land, where even a small gathering would be likely to create an obstruction or a nuisance. In the present case, the activities described by witnesses and illustrated by photographs plainly amounted to unreasonable use of the highway at Garrett Hostel Lane. Members of the public were gathering in large numbers there to take punting trips on the Cam and to disembark. They were being organised by people working for the first defendant which was a commercial operation of quite some scale. There was no lawful right to set up a business on the claimant’s land; that was not reasonable use. It was equivalent to the occupation of a pitch for commercial purposes. The activity was unlicensed by the claimant and so unregulated, giving rise to health and safety concerns for people clambering onto the punts from the wall or across the pontoon; the activity was in any event unlawful to the extent that it took place on the river and the use of the claimant’s land to promote an unlawful activity was unreasonable, in and of itself. The first defendant, as a corporate, was capable of committing an act of trespass by unreasonable user of a highway: Iveagh v Martin [1961] 1 QB 232 and DPP v Jones [1999] 2 AC 240 considered.
(2) The fact that the trespass had persisted, despite various measures taken by the claimant and the conservators, demonstrated the determination of unauthorised operators, including the defendants, to continue the activity unless the court ordered them to stop. There was no impediment to the court making an order prohibiting unauthorised commercial punting operations on the claimant’s land. It was just and convenient to exercise the court’s discretion under section 37 of the Senior Courts Act 1981 to grant the injunction sought. The balance of convenience did not arise, at least so far as the application related to the operations at Garrett Hostel Lane, because the claimant was entitled to an injunction to protect its proprietary rights. Furthermore, damages would not be an adequate remedy. The claimant was not seeking money; rather it wanted the first defendant to stop its activities. There was no reason to defer making an order until the substantive hearing. The first defendant was trespassing on the claimant’s land and should not be permitted to continue. Therefore, an injunction would be granted in relation to Garrett Hostel Lane.
(3) The threat of future trespass by the first defendant and/or by other operators at any claim location by means of unauthorised commercial punt operations was both imminent and real. On the evidence, unless restrained, the operators would try to find alternative access to the river from the claimant’s land. Thus, the injunction had to extend to any person, individual or corporate (“persons unknown”) if it was to be effective. The claimant was a public authority acting for and on behalf of the community it served. It was in the public interest that the claim locations should be free of unauthorised commercial punt activity, so that the public could enjoy the ordinary amenity of those locations without interference or obstruction. The claimant should not be required to make a succession of expensive applications to court, as and when a fresh trespass occurred, depleting limited public resources. The balance of convenience favoured the grant of an injunction against the first defendant and persons unknown, in relation to all claim locations. Any breach of that injunction would amount to a contempt of court, punishable with imprisonment or a fine.
Lisa Busch QC (instructed by Sharpe Pritchard LLP) appeared for the claimant; Simon Butler (instructed by Direct Access) appeared for the first to fourth defendants.
Eileen O’Grady, barrister
