Marcus Trower v Elmbridge Borough Council

A Public Spaces Protection Order must clearly identify the prohibited activity, the restricted area and any exceptions, particularly where breach attracts criminal sanctions. An enforcement policy may assist interpretation but cannot enlarge or amend the Order. A court reviewing a PSPO applies a supervisory, rationality-based approach. The local authority may draw a reasonable line between permitted and prohibited conduct, even though the line is necessarily imperfect, provided the statutory criteria are met and the restrictions are reasonable. Where an Order expressly suspends its prohibition during specified river warnings, an enforcement policy cannot extend that exception to other areas. The failure to include a rational and effective exception for upstream safety warnings rendered the Order unlawful.

The claimant, an itinerant boat-dweller, challenged a Public Spaces Protection Order made by Elmbridge Borough Council under the Anti-social Behaviour, Crime and Policing Act 2014. The Order restricted unauthorised mooring for more than 24 hours in six specified areas of the River Thames and created an exception where the Environment Agency issued specified red or yellow river warnings.

Fifteen grounds challenged the Order, including uncertainty, failure to satisfy the statutory conditions, disproportionality, inadequate consultation, failure to make reasonable enquiries, Convention rights, equality duties, failure to consider accommodation assessments and failure to publicise the Order.

1. Ground 1 succeeded. The Order was unlawful because its river-warning exception applied only to the section between Molesey Lock and Teddington Lock, downstream of the restricted areas. The Council’s Environmental Enforcement Policy stated that enforcement would also be suspended during warnings affecting upstream reaches, but that policy could not amend the Order. The affected user was entitled to rely primarily on the published Order itself. The difference between an activity which could not constitute an offence and one which the Council said it would not prosecute was legally significant.
2. The reference to mooring “by” a restricted area was imprecise. Nevertheless, read with section 59(4)(a) of the 2014 Act, it could not lawfully extend to activity wholly outside the restricted area and was treated as superfluous rather than fatal.
3. Adopting the approach in Summers, the court considered first the activities restricted and then the appropriateness of the restrictions, including their enforceability. The Council had reasonable grounds to find persistent and seriously anti-social effects from littering, noise and obstruction associated with unauthorised mooring. A 24-hour limit was not irrational merely because some shorter-term moorers caused harm and some longer-term moorers did not.
4. The Council had made reasonable enquiries for the purposes of the Tameside duty. It was not required to identify every boat responsible for anti-social behaviour or improve its evidence indefinitely.
5. The Order’s impact on boat-dwellers’ Article 8 rights had been considered proportionately. The restricted areas were public-authority land, permission could be sought, and the right to moor under the public right of navigation was a right to remain for a reasonable time rather than an unlimited entitlement.
6. The consultations satisfied the Gunning principles. The Council provided sufficient information, allowed adequate time, considered responses conscientiously and undertook a further consultation. The equality impact assessment and public sector equality duty were also adequately addressed. The accommodation assessments had been taken into account.
7. The failure to publicise the Order under the relevant regulations was a procedural flaw, but Ground 15 was moot following the conclusion on Ground 1 and, in any event, substantial prejudice had not been shown.

All other grounds were dismissed. The parties were invited to make submissions on the appropriate consequential order and remedy.