Highway – Protest camp – Possession proceedings – Large number of tents erected on highway as part of protest – Possession order and injunctive relief granted to claimant as relevant highway and planning authority – 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 – Whether judge required to consider less intrusive measures – Permission to appeal refused 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. Held: Permission to appeal was refused.
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.
In the court below, the judge granted the relief sought. He held that the continued presence of the camp was contrary to the purpose of the statutory highway and planning schemes and that any interference with the defendants’ Convention rights that its removal would cause was justified and proportionate in order to protect the rights and freedoms of others, including the Article 9 rights of worshippers at the cathedral, and prevent disorder and crime: see [2012] EWHC 34 (QB); [2012] PLSCS 21. The defendants applied for permission to appeal.
Articles 10 and 11 of the Convention were engaged in the instant case and the defendants could invoke their rights under those provisions of the Convention in relation to the maintenance of the camp. State authorities had a positive duty to take steps to ensure that lawful public demonstrations could take place: Kuznetsov v Russia (App no 10877/04) [2008] ECHR 1170, Lucas v United Kingdom (App no 39013/02) [2003] ECHR 717, Appleby v United Kingdom (App no 44306/98) (2003) 37 EHRR 38, Mayor of London v Hall [2010] EWCA Civ 817; [2011] 1 WLR 504 and Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 applied. However, the judge had correctly found that there was a sufficiently “pressing social need in a democratic society” to justify the orders that he made, bearing in mind the defendants’ Article 10 and 11 rights. There was no chance that any of the criticisms raised by the defendants, or even all of those criticisms taken together, could persuade an appellate court that the judge’s decision was wrong.
Whether the right of lawful assembly and protest could extend to the indefinite occupation of highway land would inevitably be fact-sensitive, and would normally depend on a number of factors, including the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupied the land and the extent of the actual interference that the protest caused to the rights of others, including the property rights of the owners of the land and the rights of any members of the public. It could also be appropriate to take into account the general character of the views the expression of which the Convention was being invoked to protect. The fact that the defendants’ movement was raising topics of very great political importance could fairly be taken into account, but that factor could not trump all others and was unlikely to be particularly weighty; otherwise, judges would find themselves according greater protection to views that they thought important, or with which they agreed.
While the protesters’ Article 10 and 11 rights were undoubtedly engaged, it was difficult to see how they could ever prevail against the will of the landowner, when they were continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems connected with health, nuisance, and the like, particularly in circumstances where the occupation had already continued for months, and was likely to continue indefinitely.
The judge had not been required to investigate whether there was some order less intrusive to the defendants’ Convention rights that he could have made. He had rejected the single alternative put to him by the defendants for good reasons. Assuming that he was none the less obliged to consider the question further, he was required to do no more than raise the issue with the defendants, who would have had to come up with a specific arrangement that would: (i) be workable in practice; (ii) not give rise, at least to anything like the same degree, to the breaches of statutory provisions and other peoples’ rights that were caused by the current state of affairs; and (iii) be less intrusive of the defendants’ Convention rights than orders made by the judge. The defendants had not put forward a proposal that satisfied any of those criteria. It was therefore not open to the judge, or to the appeal court, to make any less intrusive order: A v Secretary of State for the Home Department [2005] 2 AC 68 and Manchester City Council v Pinnock (No 2) [2011] UKSC 6; [2011] 2 WLR 220 considered.
Start your free trial today
Your trusted daily source of commercial real estate news and analysis. Register now for unlimited digital access throughout April.
Including:
- Breaking news, interviews and market updates
- Expert legal commentary, market trends and case law
- In-depth reports and expert analysis
Highway – Protest camp – Possession proceedings – Large number of tents erected on highway as part of protest – Possession order and injunctive relief granted to claimant as relevant highway and planning authority – 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 – Whether judge required to consider less intrusive measures – Permission to appeal refused
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.In the court below, the judge granted the relief sought. He held that the continued presence of the camp was contrary to the purpose of the statutory highway and planning schemes and that any interference with the defendants’ Convention rights that its removal would cause was justified and proportionate in order to protect the rights and freedoms of others, including the Article 9 rights of worshippers at the cathedral, and prevent disorder and crime: see [2012] EWHC 34 (QB); [2012] PLSCS 21. The defendants applied for permission to appeal.
Held: Permission to appeal was refused.Articles 10 and 11 of the Convention were engaged in the instant case and the defendants could invoke their rights under those provisions of the Convention in relation to the maintenance of the camp. State authorities had a positive duty to take steps to ensure that lawful public demonstrations could take place: Kuznetsov v Russia (App no 10877/04) [2008] ECHR 1170, Lucas v United Kingdom (App no 39013/02) [2003] ECHR 717, Appleby v United Kingdom (App no 44306/98) (2003) 37 EHRR 38, Mayor of London v Hall [2010] EWCA Civ 817; [2011] 1 WLR 504 and Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 applied. However, the judge had correctly found that there was a sufficiently “pressing social need in a democratic society” to justify the orders that he made, bearing in mind the defendants’ Article 10 and 11 rights. There was no chance that any of the criticisms raised by the defendants, or even all of those criticisms taken together, could persuade an appellate court that the judge’s decision was wrong.Whether the right of lawful assembly and protest could extend to the indefinite occupation of highway land would inevitably be fact-sensitive, and would normally depend on a number of factors, including the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupied the land and the extent of the actual interference that the protest caused to the rights of others, including the property rights of the owners of the land and the rights of any members of the public. It could also be appropriate to take into account the general character of the views the expression of which the Convention was being invoked to protect. The fact that the defendants’ movement was raising topics of very great political importance could fairly be taken into account, but that factor could not trump all others and was unlikely to be particularly weighty; otherwise, judges would find themselves according greater protection to views that they thought important, or with which they agreed.While the protesters’ Article 10 and 11 rights were undoubtedly engaged, it was difficult to see how they could ever prevail against the will of the landowner, when they were continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems connected with health, nuisance, and the like, particularly in circumstances where the occupation had already continued for months, and was likely to continue indefinitely.The judge had not been required to investigate whether there was some order less intrusive to the defendants’ Convention rights that he could have made. He had rejected the single alternative put to him by the defendants for good reasons. Assuming that he was none the less obliged to consider the question further, he was required to do no more than raise the issue with the defendants, who would have had to come up with a specific arrangement that would: (i) be workable in practice; (ii) not give rise, at least to anything like the same degree, to the breaches of statutory provisions and other peoples’ rights that were caused by the current state of affairs; and (iii) be less intrusive of the defendants’ Convention rights than orders made by the judge. The defendants had not put forward a proposal that satisfied any of those criteria. It was therefore not open to the judge, or to the appeal court, to make any less intrusive order: A v Secretary of State for the Home Department [2005] 2 AC 68 and Manchester City Council v Pinnock (No 2) [2011] UKSC 6; [2011] 2 WLR 220 considered.
John Cooper QC and Michael Paget (instructed by Kaim Todner) appeared for the first appellant; Felicity Williams (appearing pro bono) appeared for the second appellant; the third, fourth and fifth appellants appeared in person; David Forsdick and Zoe Leventhal (instructed by the legal department of City of London Corporation) represented the respondent.
Sally Dobson, barrister
