City of London v Samede & Ors

A peaceful protest may be conducted on a highway where it is reasonable, non-obstructive and does not amount to a nuisance. That limited right does not extend to taking possession and control of highway land by establishing an indefinite encampment. Whether an assembly is reasonable depends on its size, duration and the nature of the highway. A substantial obstruction, interference with public passage, nuisance, planning breach and serious interference with others’ Convention rights may justify possession and injunctive relief. The court must independently assess necessity and proportionality under Articles 10 and 11. Protection of worshippers’ Article 9 rights may constitute a pressing social need. The removal of tents may be proportionate where it is the least intrusive means of protecting public rights, public safety, health, the environment and the rights and freedoms of others.

The City sought possession of highway land and adjoining open land occupied by a protest camp at St Paul’s Churchyard. It also sought injunctions under the Highways Act 1980 and the Town and Country Planning Act 1990, together with declaratory relief. The defendants argued that the tents were integral to their political protest and were protected by Articles 10 and 11 of the Convention.

The principal issues were whether the defendants had dispossessed the City of highway land, whether the camp unlawfully obstructed the highway or involved a material change of use, and whether the relief sought would be a lawful, necessary and proportionate interference with the defendants’ Convention rights.

1. The City’s claim succeeded. The defendants were in actual possession of Area 1, which was highway land vested in the City. They had occupied it without consent, allocated tent spaces, organised the camp and exercised control over the land. The City had been effectively ousted from possession. A possession claim did not require proof of complete obstruction of the highway.

2. Neither the Highways Act 1980 nor the common law recognised a right to occupy, control or take possession of highway land from the highway authority. DPP v Jones recognised only a limited right of peaceful assembly on the highway. The activity had to be reasonable and non-obstructive, cause no nuisance and avoid unreasonable interference with passage.

3. Reasonableness was a question of fact and degree, having regard to the size and duration of the assembly and the nature of the highway. An encampment of 100 to 200 tents, occupying about 80 per cent of a heavily used pedestrian highway and intended to remain indefinitely, was not reasonably transitional. It substantially obstructed the highway and amounted to a criminal obstruction under section 137 of the Highways Act 1980.

4. The City was entitled in principle to injunctive relief supporting possession. Criminal proceedings would not provide an effective remedy because the occupiers were numerous and changing, many were unidentified, and fines would not remove the tents. The presence of tents, whether occupied overnight or not, constituted a material change of use requiring planning permission. No permission had been granted, and the permitted development provisions did not apply.

5. The defendants’ rights under Articles 10 and 11 were engaged, including the chosen manner and form of protest. The court nevertheless had to assess necessity and proportionality for itself. The City had established a pressing social need arising from the substantial obstruction, nuisance, planning harm, drainage and sanitation problems, increased disorder, effects on businesses, and serious interference with worship and visitors at St Paul’s Cathedral under Article 9.

6. The interference was prescribed by law, pursued legitimate aims, was the least intrusive means available and struck a fair balance. The City was therefore entitled to possession of the relevant land, injunctions requiring removal of the tents and preventing further pitching, and declaratory relief. The precise form of the orders was left for further submissions.