Olympic Delivery Authority v Persons Unknown

An exclusive licensee with the right to occupy land has sufficient interest to claim in private nuisance. Deliberate obstruction of access to that land may constitute private nuisance, and may also constitute public nuisance where the claimant suffers particular damage. Convention rights to freedom of expression and assembly are engaged by protest, but they are qualified rights. An injunction restraining unlawful obstruction may therefore be granted where it is necessary and proportionate. The court must focus intensely on the competing rights, their respective justifications, and the precise terms of the proposed order. Where an injunction is sought on short notice, the proper course may be a short-term order restoring the status quo, followed by an early return date.

The Olympic Delivery Authority, an executive non-departmental public body and statutory corporation, held an exclusive licence over land at Leyton Marsh for construction of a temporary basketball practice facility for the 2012 Olympic Games. Protesters obstructed delivery vehicles, impeded access, and established a camp on adjacent land. The Authority sought an interim injunction against persons unknown, relying principally on private and public nuisance.

Interested local residents opposed the application, chiefly because it had been made on short notice. The central issues were whether the Authority had a sufficient interest to sue in nuisance, whether the proposed restrictions were compatible with Articles 10 and 11 of the Convention, and what interim relief was proportionate.

1. Standing and nuisance. An exclusive licence to occupy land gives the licensee a sufficient interest to found an action in private nuisance. The alleged deliberate obstruction of access interfered with the Authority’s exclusive possession and constituted an actionable nuisance. The claim was against the actual wrongdoers, and a trespasser could in principle be liable in nuisance. Obstruction of a public right of way could also found a claim in public nuisance where the Authority suffered particular damage beyond the inconvenience suffered by the public.
2. Convention rights and proportionality. The protesters’ activities engaged Articles 10 and 11 of the European Convention on Human Rights. Neither those rights nor the Authority’s rights under Article 1 of the First Protocol had precedence. The court had to focus intensely on the comparative importance of the rights claimed, consider the justifications for interference with each, and apply the proportionality or ultimate balancing test.
3. Relevant considerations included the extent to which the protest breached domestic law, the importance of the location to the protesters, its duration, the degree of occupation, and the actual interference with the rights of landowners and the public. The injunction did not prohibit the protest, the camp, banners, or other lawful expression. It restrained obstruction, interference with construction works, trespass on the site, and related activities.
4. The balance of the risk of injustice favoured relief. Damages were not an adequate remedy, and the Authority faced urgent and substantial disruption. However, the short notice meant that interested persons had not had a proper opportunity to obtain advice, representation, or place evidence before the court. The injunction was therefore granted only until 18 April 2012, when the Authority would have to justify its continuation.