Marcus Trower v Elmbridge Borough Council

The court considered a statutory challenge under section 66 of the Anti-social Behaviour, Crime and Policing Act 2014 to a Public Spaces Protection Order entitled the Elmbridge Borough Council (Unauthorised Mooring) Public Spaces Protection Order 2024. The key legal issues were whether the Order was sufficiently certain, whether the statutory conditions in section 59 (identifying a detrimental, persistent and unreasonable activity and justifying restrictions) were satisfied, whether the Council had complied with the statutory guidance under section 73, whether the consultation process was lawful, and whether equality duties and article 8 rights had been respected.

The judge held that most aspects of the Order and the decision-making process were within the range of reasonable responses by the Council: the consultation complied with the Gunning principles, the Council had taken reasonable steps under its Tameside duty, and the Equality Impact Assessment and public sector equality duty were adequately addressed on the material before members. The article 8 proportionality challenge and challenges to the substantive selection of a 24-hour limit were rejected on the facts.

However the Order was unlawful because it failed to provide the exception from prohibition for periods when Environment Agency river warnings applied upstream of the restricted areas while an enforcement policy (the EEP) contemporaneously and inconsistently indicated a wider geographic exception. The mismatch meant the Order was irrational and insufficiently certain in that respect, and the Council could not rely on the EEP to enlarge the statutory Order. The court therefore upheld the claim in part and dismissed the other grounds.

This is a first-instance statutory challenge by an itinerant boat-dweller (the Claimant) and deputy chair of the National Bargee Travellers Association to a Public Spaces Protection Order made by Elmbridge Borough Council on 19 February 2024 restricting unauthorised mooring in six identified reaches of the non-tidal Thames within the Borough.

Procedural posture: the claim was brought under section 66 of the Anti-social Behaviour, Crime and Policing Act 2014. The Claimant sought to quash the Order on multiple grounds, including uncertainty, irrationality under section 59, failure to follow statutory guidance (s73), procedural unfairness in consultation, breach of the Tameside duty, failure to discharge the public sector equality duty and Equality Impact Assessment defects, infringement of article 8 ECHR, and failure to publicise the made Order as required by regulation.

Factual background: officers began considering PSPOs in 2019; consultations ran in 2023 (two stages) producing over 1,000 responses; Cabinet resolved to make the Order on 7 February 2024 and it came into effect on 19 February 2024. The Order prohibited unauthorised mooring of more than 24 hours (with no return within 72 hours to the same named area) in the six restricted areas unless the Environment Agency had issued a red or yellow warning for the stretch between Molesey Lock and Teddington Lock. The Council published and revised an Environmental Enforcement Policy (EEP) during the process which at times described the exception for river warnings in wider geographical terms (including reaches up to Bell Weir) than the Order itself.

Issues framed by the court:

• Whether the Order was drafted with sufficient certainty and whether ancillary EEP material could be used to interpret or expand the Order.
• Whether the Council had reasonable grounds under s59 to conclude that the activities justified the restrictions and whether the prohibitions were reasonable (s59(5)).
• Whether the Council complied with statutory guidance (s73), its Tameside duty to make reasonable enquiries, and the Gunning consultation principles.
• Whether the Equality Impact Assessment and PSED compliance were adequate.
• Whether the Order unlawfully interfered with article 8 rights.
• Whether the Order was properly publicised in accordance with the regulations.

Court’s reasoning and conclusions:

• On certainty: by ordinary reading the Order prohibited unauthorised mooring of more than 24 hours; the references to litter, noise and obstruction in the preamble were properly read as identifying detrimental effects rather than additional elements of the offence. Several contested interpretive points were resolved in favour of finding the Order intelligible. However the Order expressly limited the river-warning exception to a downstream stretch (Molesey to Teddington) while the EEP described a broader (including upstream) exception. The EEP could inform interpretation where wording was ambiguous, but it cannot be used to enlarge the operative terms of a made PSPO. The misalignment was irrational and left an affected river user relying on an unenforceable assurance in the EEP rather than a clear statutory defence; that defect rendered the Order unlawful.
• On s59 substantive grounds and statutory guidance: the court applied the Summers approach (supervisory review akin to judicial review, with local discretion) and concluded the Council had sufficient evidence and was acting within a reasonable range in selecting a 24-hour limit, considering enforceability and the need to protect the public right of navigation for other river users. The claim that the Council failed to have regard to the Secretary of State guidance did not identify failures beyond those inherent to the statutory test.
• On consultation, the reports and two-stage consultation complied with the Gunning principles and were conscientiously considered.
• On Tameside: the Council made reasonable enquiries and was not required to pursue perfect information about individual mooring histories.
• On article 8 and proportionality: the court found the Council had given due consideration to rights and acted proportionately; precedents (including Akerman) and the ownership by public authorities of most restricted banks were material reasons that the interference was justified.
• On equality duties: the EqIA and consideration of protected characteristics was adequate on the material before members; there was no evidence that a significant proportion of affected boaters had the protected characteristics relied upon and the PSED had been discharged.
• On publicity/regulation breaches: the Council had not yet published the made Order as required, a procedural flaw which the Council characterised as technical; the court observed lack of prejudice but the point was rendered moot by the primary finding.

Remedy: the court upheld the challenge in part (quashing the Order for the reasons given concerning the river-warning exception) and dismissed all other grounds. The judge invited submissions on the form of final order and appropriate remedy.

The claim is allowed in part. The court found the PSPO unlawful because it failed coherently to provide for the suspension of prohibitions when Environment Agency river warnings applied upstream of the restricted areas; the Council’s separate enforcement policy (EEP) could not be used to enlarge the statutory Order and the mismatch rendered that element irrational and insufficiently certain. All other grounds (including most challenges to consultation, the sufficiency of evidence under s59, Tameside duty, PSED/EqIA and article 8) were dismissed as the Council’s decision fell within the range of reasonable responses.