Sheffield City Council v Fairhall & Ors (Rev 1)

A highway authority may lawfully remove trees where removal forms part of maintaining the highway. Peaceful protest rights under Articles 10 and 11 may be engaged even where protesters commit trespass or a domestic criminal offence, particularly where the location is central to the protest.

However, those rights may be restricted where the protest has continued for an extended period, substantially prevents the authority from carrying out lawful statutory functions, interferes with the rights of others, and follows extensive consideration of the protesters’ views. In that situation, the balance may favour an injunction restraining entry into and occupation of safety zones.

The claimant sought an injunction against named protesters and persons unknown who entered or remained within safety zones erected around trees scheduled for removal in Sheffield. Their peaceful presence prevented tree-felling work from being carried out safely.

The council relied on its statutory duty to maintain the highway, trespass, statutory obstruction and the need to protect its lawful operations. The defendants argued that the tree-felling programme and the PFI arrangements were unlawful and that their conduct was protected by Articles 10 and 11 of the European Convention on Human Rights.

The court had to determine whether the removal of the trees was part of highway maintenance, whether the direct action was unlawful, whether Convention rights were engaged and, if so, whether an injunction was justified and proportionate.

1. The court held that the removal of trees classified as damaging or discriminatory formed part of the council’s highway maintenance programme. Such trees affected the fabric or use of the highway, and the council was entitled to determine how its statutory duty should be performed. The reasoning in R (Dillner) v Sheffield City Council was treated as establishing that a decision to remove a tree for highway-maintenance purposes was lawful.

2. The council was entitled to take account of the availability of funding under its PFI contract and was not required to fund alternative engineering solutions by reducing other public-service budgets. The alleged failure to disclose a corporate manslaughter conviction did not affect the validity of the council’s current decision-making.

3. After safety barriers and notices had been installed, remaining within a safety zone was contrary to orders made under section 14(1) of the Road Traffic Regulation Act 1984. It also amounted to wilful obstruction under section 303 of the Highways Act 1980 and constituted trespass. The public’s ordinary licence to use the highway for reasonable activities did not extend to conduct intended to prevent lawful highway works.

4. Articles 10 and 11 were engaged. The location of the protest within the safety zone was an intrinsic part of the defendants’ message, and the fact that the conduct was unlawful did not automatically exclude Convention protection. The restriction was prescribed by law and pursued the protection of the rights and freedoms of others.

5. Applying the fact-sensitive approach in City of London Corporation v Samede, the court considered the illegality of the conduct, the importance of the location, the duration and cumulative effect of the protests, the extent of interference with the council and members of the public, and the availability of other means of protest. A protest which may initially be legitimate may become unlawful when continued indefinitely to prevent a democratically accountable authority from implementing a lawful decision reached after extensive debate.

6. The council was therefore entitled to an injunction restraining the named defendants and persons unknown from entering, remaining in, obstructing or facilitating entry into safety zones. The injunction was to take effect on 22 August 2017 and remain in force until 25 July 2018.

First-instance decision. The claim for an injunction was determined after an expedited trial; no lower-court decision was under appeal.