Hillingdon Borough Council v Persons Unknown & Ors

A public authority owning land may regulate its use, but must act consistently with its statutory functions, public rights of way and Convention rights. Members of the public using land with the authority’s consent are not trespassers. That consent may, however, be withdrawn for a specific use, such as unauthorised overnight camping.

At the interim stage, the Cyanamid test applies, together with the court’s obligation to protect freedom of expression and peaceful assembly. Protest concerning matters of major public importance attracts substantial weight, but Articles 10 and 11 do not make disruptive conduct immune from restriction. A proportionate injunction may prohibit overnight sleeping and specified obstructive or disruptive acts while preserving lawful protest, reporting and campaigning.

Hillingdon Borough Council sought an interim injunction under Part 8 of the Civil Procedure Rules and section 222(1) of the Local Government Act 1972. The defendants included named protesters and two categories of persons unknown occupying or entering the council’s land at Harefield Moor to protest against HS2 construction works.

The council alleged trespass and nuisance. It sought orders prohibiting overnight occupation and four specified forms of protest: attaching persons to persons or objects, attaching persons to fences or barriers, banging objects to cause noise, and obstructing vehicles by standing, sitting or lying in front of them. The defendants relied on their Convention rights, particularly freedom of expression and peaceful assembly. The central issue was whether limited interim relief was justified and proportionate.

1. Causes of action. Trespass consists of an unjustifiable intrusion onto land in another’s possession. Nuisance concerns infringement of a claimant’s property interest without direct entry. Hillingdon’s case on nuisance was thin, diffuse and unsuitable for a Part 8 claim because the alleged conduct was inadequately particularised, often historic, and did not match the relief sought.
2. Status of the land. Hillingdon’s ownership was subject to important qualifications. As a statutory public authority, it had to use its land consistently with its statutory functions. Its ownership was also subject to public rights of way and to the duty under section 6 of the Human Rights Act 1998 not to act incompatibly with Convention rights.
3. Trespass by overnight camping. Hillingdon had given the public general consent to enter and use the land. That consent did not extend to unauthorised overnight sleeping. The protesters therefore raised a serious issue to be tried in trespass by sleeping overnight without permission, while ordinary daytime protest, walking, banners and singing remained within the general consent.
4. Interim test. Applying the Cyanamid test, there were serious issues to be tried, damages would not be an adequate remedy, and the balance of convenience and justice had to be assessed alongside Articles 10 and 11 of the Convention. Section 12(2) of the Human Rights Act 1998 did not prevent relief because reasonable steps had been taken to identify and serve the defendants.
5. Proportionality. The protest concerned HS2, climate change and decarbonisation, matters of the utmost public importance. The right to protest therefore carried considerable weight. Nevertheless, the right to protest did not confer a special right to camp on land where other members of the public could not camp without permission. The four specified disruptive acts could proportionately be prohibited because they obstructed others’ lawful activities.
6. Article 2. Article 2 was not engaged. Any threat to life from HS2 was too indirectly connected with the construction project.
7. Order. An interim injunction was granted until trial or further order. The defendants had to remove the tents by 5 pm on the specified Friday. The injunction prohibited unauthorised overnight sleeping and the four specified forms of protest, but did not prevent daytime or night-time recording, lawful protest, carrying banners and flags, distributing campaign literature, or reporting and disseminating journalistic material.

This was a first-instance application. On 18 May 2020, Laing J adjourned the matter to enable individuals who wished to be joined as defendants to be served and joined. The present court then determined the interim injunction application.