Nuisance & Trespass: Application By Local Authority For Injunction To Prevent Protesters Sleeping On Property Overnight (Hillingdon Borough Council V Persons Unknown & Others – 2020)

Can a local authority succeed in its application for an injunction to prevent protesters sleeping overnight on property owned by the authority?

The background

In Hillingdon Borough Council v Persons Unknown & Others [2020], the local authority owned land which was being developed as part of the HS2 high-speed rail network. Persons unknown, and 21 named defendants, were alleged by the local authority to be trespassing on the development site, causing a nuisance and sleeping overnight on it as a protest against the development.

The local authority brought a claim for an injunction under Part 8 of the Civil Procedure Rules and s.222(1) Local Government Act 1972, which states that the local authority may make such an application where it is considered ‘expedient for the promotion of the interests of the inhabitants of their area’. The High Court considered the application in the context of 4 forms of protest:

1. Creating an obstruction by attaching persons to other persons or objects
2. Attaching persons to fences, gates or barriers
3. Causing noise by banging objects
4. Standing, sitting or lying down in front of vehicles

The defendants argued that use of the land for their protest was reasonable, referring to Articles 10 and 11 of the European Convention on Human Rights (“ECHR”) and stating that an injunction would be an unacceptable interference with their right to protest.

The decision

The High Court granted an interim injunction, restricting the protesters’ use of the 4 identified forms of protest. The local authority was entitled to regulate the use of the land in the interests of everyone who accessed it, including walkers, anglers and so on, and preventing overnight sleeping on the land did not prevent the protesters from exercising their rights under the ECHR.

Firstly, Articles 10 and 11 may be subject to restrictions, penalties and other formalities necessary ‘in a democratic society’.

The local authority’s application centred on nuisance (infringement of the property owner’s interest in property) and trespass (entering the property owner’s land without consent) as two separate causes of action. As a public body, the local authority’s rights to enjoy the land were not as wide as those of a private body and the land itself was subject to a number of rights of way, which the public was entitled to enjoy. The local authority was able to use the land and grant or withhold consent to its use by others so long as members of the public were still able to enjoy the rights of way and provided that rights enjoyed by members of the public under the ECHR were not interfered with.

The action for trespass in this case rested on individuals sleeping overnight on the land. The local authority stated that it had not granted consent for this use, and therefore trespass was actionable. The prevention of unrestricted and unregulated – and unpaid – overnight sleeping on the site was reasonable.

The local authority’s case in respect of nuisance was less clear. The act of protesting was considered no more of a nuisance than, for example, angling on the land, and the injunction granted by the court only restricted the ways in which the protesters could exercise their protest, rather than restricting their right to protest at all.

Advice and action

A decision that many landlords and property owners will welcome, this judgment supports a ‘common sense’ viewpoint that, whilst property within the ownership of a local authority may be openly accessed by members of the public, it is still within the local authority’s entitlement to withhold consent for unreasonable uses such as unauthorised overnight sleeping.

The nuisance claim was not clearly established in this case, and the injunction was granted primarily on the basis of the trespass claim with restrictions on how the protest could be carried out.