Public order - Freedom of association and assembly - Defendant protestors setting up camp outside St Paul’s Cathedral
City of London Corporation v Samede and others: QB (Mr Justice Lindblom): 18 January 2012
The defendants were all members of an unincorporated association (Occupy) which had organised a protest in central London. The first defendant was appointed a representative defendant of Occupy under Civil Procedure Rule 19.6. In October 2011, the defendants established a protest camp in the churchyard of St Paul’s Cathedral which consisted of between 150 and 200 tents, some used as accommodation and others for activities such as meetings, a library, a first aid facility and a welfare facility.
For all of the land in respect of which the instant proceedings related, and the surrounding land, the claimant (the City) was both the local planning authority under the Town and Country Planning Act 1990 and a local authority under the Local Government Act 1972 and the Local Government Act 2000. In respect of some of the land, the City was also the highway authority in accordance with the Highways Act 1980 and that land vested in the City by virtue of section 263(1) of the 1980 act. The City had not given a licence or consent for the protest camp, for which no end date had been set.
On 15 October, the crypt door of St Paul’s Cathedral was closed by the Church of England (the church), except for emergency use. On 21 October, the cathedral was temporarily closed. On 25 October, the City undertook a survey of pedestrian movements in the local area. On 28 October, the cathedral was re-opened. On 4 November, the City sent a without prejudice proposal for an agreed settlement to the defendants’ solicitors. On 11 November, that proposal was rejected. On 15 November, the City’s planning and transportation committee resolved to take legal action against the protest camp.
On 16 November, the City served notice on the camp requiring the removal of all tents and other structures by 6pm on 17 November. The camp was not removed. On 18 November, proceedings were issued by the City and served, together with evidence and a document setting out a broad legal analysis. On 23 November, the first directions hearing took place at which a date was set for trial and the appropriate procedural steps were laid down. On 24 November, the first defendant was given details of the person with whom to negotiate or discuss the claim on behalf of the City. On 29 November, the church formally offered the defendants an alternative forum for their protest and repeated its request that the camp be removed. On 30 November, an enforcement notice under the 1990 act was served on the defendants.
The instant proceedings concerned the City’s application for possession of the highway and other open land that was being used as the protest camp. The disputed land comprised three areas: highway land (area 1); open land owned by the church (area 2); and a large area vested in the City which encircled the cathedral and included footpaths and a carriageway (area 3). Area 1 was wholly contained within area 3. The proceedings did not include the public open space within the precincts of the cathedral which was owned in part by the City and in part by the church. The claimant sought possession of areas 1 and 3.
The City further sought injunctions in respect of areas 1 and 3 under section 130 of the 1980 act and a further injunction in respect of area 2 pursuant to section 187B of the 1990 act. Furthermore, the City sought a declaration that it might use its power at common law and, if necessary, its power pursuant to section 143 of the 1980 act to remove the tents from area 1 and any tents erected in area 3, and a further injunction preventing the defendants from interfering in the removal of the tents from areas 1 and 3.
The issues for determination were: (i) whether the City had established that it was entitled to possession of areas 1 and 3 so that, subject to any interference with the defendants' rights under articles 10 and 11 of the European Convention on Human Rights, an order for possession ought to be granted; (ii) whether, subject to articles 10 and 11 of the convention, the City was entitled to injunctive relief in respect of areas 1, 2 and 3 and declaratory relief for areas 1 and 3; and (iii) whether the interference with the defendants' rights under articles 10 and 11 of the convention was lawful, necessary and proportionate. Consideration was given to section 137 of the 1980 act, to section 55 of the 1990 act and to the rights of others to worship at the cathedral pursuant to article 9 of the convention. The application would be allowed.
(1) Neither under the 1980 act nor the common law was there a right to occupy, control or take possession of highway land from the highway authority. The statutory scheme could not be reconciled with the concept of third parties occupying, controlling and taking possession of the highway. To impose upon the highway a substantial encampment of tents was inimical to the statutory scheme (see  of the judgment).
On the facts of the instant case, the requirements for a claim for possession had been met. Both area 1 and most of area 3 were highway, vested in the City and maintainable at public expense. It was sufficient that there were public rights over the highway even though they were limited to use by those travelling on foot. It was incontestable as a matter of fact that the defendants were in actual possession of area 1. They had entered and remained on the land without the permission of the City, the body lawfully entitled to possession. No licence or consent had been granted that allowed the defendants to occupy the land. They had not complied with a formal notice to vacate.
On the facts, the City had, in reality, been ousted from possession of area 1 by the defendants. In establishing its claim the City had not had to prove an unreasonable obstruction of the highway by the defendants’ occupation of area 1. Other than their rights under articles 10 and 11 of the convention, the defendants had had no arguable right to occupy, control or take possession of highway land from the City as highway authority. Further, subject to articles 10 and 11 of the convention, the City had been 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 an order for possession was a necessary precaution against the defendants moving from areas 1 and 2 onto adjacent highway and open space (see -,  of the judgment).
(2) An assembly on the highway was not necessarily unlawful provided that it was reasonable and non-obstructive and did not contravene the criminal law of wilful obstruction of the highway. It was established law that the requirements for the offence of wilful obstruction of the highway pursuant to section 137 of the 1980 act were: (i) that there was in fact an obstruction of free passage along the highway; (ii) that the obstruction was wilful; and (iii) there was no lawful authority or excuse for the obstruction. Whether a particular use of the highway was reasonable was for the court to determine on the facts (see ,  of the judgment).
Applying established principles to the facts of the instant case, there had been an unreasonable obstruction of the highway. The defendants’ protest camp had occupied and obstructed a substantial portion of the highway, consequently depriving the public of its use. An encampment of between 100 and 200 tents which accommodated a large community of protesters, and which seemed likely to remain until and unless the court intervened, could not sensibly have been regarded as reasonably transitional. On the evidence, some 80% of the highway had been denied to the public for the purposes of passing to and fro along it.
Further, it was clear that the effect, both direct and indirect, on pedestrian movement through and around the cathedral had been significant. There had been no doubt that the presence of the tents themselves, whether they were occupied or not, had brought about a material change of use of the land in areas 1 and 2. Section 55 of the 1990 act required planning permission to be granted for such development and, in the instant case, it had not been nor were any temporary permitted development rights available (see , , , ,  of the judgment).
(3) In the instant case, the interference with the defendants’ rights under articles 10 and 11 of the convention had been both necessary and proportionate. On balance, the factors for granting relief in the instant proceedings easily outweighed the factors against. Parliament had legislated to give highway authorities powers and duties to protect public rights over the highway land vested in them, and had given local planning authorities powers to enforce planning control in the public interest.
For parliament’s intention in enacting those statutory schemes to have been given effect, it had been necessary for the relief sought by the City to have been granted. It had been impossible to reconcile the presence of the protest camp with the lawful function and character of the disputed area as a highway. The effects of the protest camp had been such as to interfere seriously with the right, under article 9 of the convention, of those who desired to worship in the cathedral. On the evidence, it was clear that the presence of the camp constituted a nuisance to the Church as well as a serious interference with the article 9 rights of those who wished to worship at the cathedral.
In addition to the obstruction of the effects of the camp on the routes available to pedestrians and the loss of accessible open space to the public, the camp had made a material change in the use of the land for which planning permission had not been and would not be granted. A further factor of significant weight had been the increased crime and disorder in the area where the camp was situated. Furthermore, the camp had been in place for more than two months by the time of the instant proceedings. If the camp were not removed by order of the court, it seemed likely to remain, possibly for many months more. No firm or provisional date had been given for its removal (see -, ,  of the judgment).
The City had established a pressing social need not to permit the defendants’ protest camp from remaining in St Paul’s churchyard and to prevent it being located elsewhere on any of the land to which the proceedings related. It would not, in the circumstances, have been disproportionate to grant the relief sought by the City. Consequently, the relief sought by the City would be granted (see  of the judgment).
Per curiam: To say that those who are put off attending services in the cathedral can go and worship elsewhere, with more than 450 other churches in the diocese of London to choose from, misses the point. It is to misunderstand the nature of the right in article 9, which is not that one is entitled to worship only where the activities of others make it comfortable or convenient to do so, or where one is made to go by others in the exercise of their own convention rights, but where one chooses to worship in accordance with the law (see  of the judgment).
David Forsdick and Zoe Leventhal (instructed by Andrew Colvin, the Comptroller and City Solicitor, City of London Corporation) for the claimant; John Cooper QC and Michael Paget (instructed by Kaim Todner) for the first defendant; the second and third defendants appeared in person.