Marcus Trower v Elmbridge Borough Council

Hearing dates: 20 th and 21 st November 2024

Approved Judgment

This judgment was handed down remotely at 10.00am on 14 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr Tim Smith (sitting as a Deputy High Court Judge):

Introduction

This claim is a statutory challenge brought by the Claimant against an Order made by Elmbridge Borough Council (“the Council”) regulating the unauthorised mooring of boats on the river in parts of its administrative area.

Section 59 of the Anti-social Behaviour, Crime and Police Act 2014 (“the 2014 Act”) empowers a local authority to make a Public Spaces Protection Order (a “PSPO”) affecting land in its administrative area. The purpose of a PSPO is to impose measures to restrict or prevent incidences of anti-social behaviour.

On 19 ^th February 2024 the Council made a PSPO entitled the “Elmbridge Borough Council (Unauthorised Mooring) Public Spaces Protection Order 2024” (“the Order”). In broad terms the effect of the Order is to restrict the ability of boat-users to moor boats within certain defined areas of riverbank in the Borough. Contravening a PSPO is a criminal offence.

The Claimant, Marcus Trower, is described in the claim form as an “itinerant boat-dweller”, meaning that he lives permanently aboard a boat and travels the waterways of the south east of England, mooring up temporarily in different places rather than at one permanent mooring. He usually visits the Council's administrative area aboard his boat and stays for several weeks each year, moving location periodically. He has family who live in the Borough and a seven-year old son who lives aboard the boat with him and whom Mr Trower home schools.

The Claimant is clearly a person affected by the Order. He is a regular visitor to the Borough and the Order restricts his ability to moor his boat on parts of the riverbank – something which (in a public law context at least) he would otherwise be entitled to do by virtue of the public right of navigation (“PRN”) enjoyed by users of the River Thames. By this claim he challenges the lawfulness of the Order, pursuant to the statutory right of challenge afforded by section 66 of the 2014 Act, on multiple grounds.

Background facts

In 2019 the Council began the process of considering whether or not to make one or more PSPOs in respect of land in its administrative area. A recommendation by officers that consultation on the proposed PSPOs be commenced was considered by the Council's Cabinet on 5 ^th June 2019. The recommendation was approved but no further steps were taken at the time, it is assumed because of the intervening Covid-19 pandemic.

Consideration of the proposals did not resume until early 2022. On 8 February 2022 the Council's Cabinet received a further report recommending that consultation commence on potential PSPOs to tackle issues of the use of portable fire pits and barbecues (for which the Council's evidence uses the shorthand of the “naked flames” PSPO), overnight camping and fishing, and unauthorised mooring on the riverbank within five areas owned by the Council (being land at Ditton Reach, Albany Reach, Cigarette Island, Cowey Sale, and Hurst Park) and one owned by Surrey County Council (being land adjacent to Hampton Court bridge). The same report considered the possibility of a fourth PSPO relating to anti-social behaviour involving dogs but it was not pursued.

It is appropriate at this juncture to set out the operative parts of the proposed PSPO on unauthorised mooring and to review what ended up being the terms of the Order as made. This exercise also helps to place into context some of the consultation responses received by the Council during the promulgation of the Order.

The preamble paragraphs in the Order as made include – at paragraph 3 – a justification for the making of the Order in the following terms:

“3. The Council is satisfied that the conditions set out in Section 59(2) & (3) of the [2014] Act have been met, namely:

a) That the activities of Unauthorised Mooring(s) and the associated littering, noise, and preventing other users of the River Thames from temporary mooring for 24 hours in association with the Public Right of Navigation in a Restricted Area has a detrimental effect on the quality of life of those in the locality; and

b) That the effect, or likely effect, of the activities is, or is likely to be, of a persistent or continuing nature and accordingly, these activities are unreasonable and justify the restrictions imposed by the Order”

The Order then prescribes an offence of engaging in a “Prohibited Activity within, or on, or by, or at, any of the Restricted Areas” without reasonable excuse unless at the relevant time the Environment Agency has issued a red or yellow warning about dangerous river conditions between Molesey Lock and Teddington Lock advising river users to find a safe mooring.

As to the relevant definitions in the Order:

a) “Prohibited Activity” is defined as “a prohibition against activities of an Unauthorised Mooring and the associated littering, noise and prevention of other users of the River Thames from temporary mooring for 24 hours in association with the Public Right of Navigation”,

b) “Restricted Area” is defined as being one of the six locations identified by the Council, in each case identified on a plan accompanying the Order, and

c) “Unauthorised Mooring” is defined as “a mooring that has stayed for longer than 24 hours within, or at, or by a Restricted Area, without the written consent of the Council, and no right of return within 72 hours to that Restricted Area”

The report to the Council's Cabinet on 8 February 2022 included a proposed timeline for undertaking consultation on the proposals. As reported, this would have seen consultation taking place from 21 February until 20 March 2022 with the results of consultation being collated and then considered by Cabinet in early July 2022. As it happens there were further delays, with consultation not taking place until the period from 18 February 2023 to 4 June 2023.

The results of that consultation were then considered by the Council's Cabinet on 5 July 2023. Officers recommended the making of the proposed PSPOs relating to naked flames and overnight fishing. In relation to unauthorised mooring, whilst the report noted “strong support” for this proposed PSPO the view was expressed by officers that some aspects of the proposals “require further clarity” and so a second consultation was recommended. This recommendation was agreed to. The report nevertheless summarised the questions in the first consultation and analysed the responses received to date.

At this point it suffices to note that the Claimant challenges the objectivity of the consultation questions asked, and of the weight accorded to some of the more tendentious responses. I consider in more detail the nature of the criticisms when summarising the Claimant's submissions.

The Claimant engaged with the Council during the consultation period. A detailed response to the consultation was also provided by the National Bargee Travellers Association (“NBTA”). The Claimant, as well as being an individual boat user affected by the Order, was also the Deputy Chair of the NBTA at the time. The Claimant attended a virtual meeting with the Council's officers on 18 ^th October 2023 in his capacity as Deputy Chair of the NBTA. This meeting was minuted by the Claimant and the minutes are before the court as part of his witness evidence in the case. The Council accepts the accuracy of these minutes.

The NBTA also provided a written response to the consultation. The text of the NBTA's response was set out in full in the Committee report, punctuated by comments offering the officer's replies to what was said in the response.

Amongst other things the NBTA made the following comments in its response: (a) that mooring for a reasonable period was a right enjoyed under the public rights of navigation (“PRN”) which are protected by both common law and statute; (b) that whether a “reasonable excuse” exists is only determined ex post facto by the relevant regulator or, ultimately, in the Magistrates Court following a prosecution for a prima facie breach and so its existence provides limited comfort (at best) to boat users wishing to know whether what they are about to do will be considered a breach of the Order; (c) that limiting the relaxation of the Order to circumstances where the Environment Agency has issued river warnings in the area between Molesey and Teddington Locks – an area downstream of the restricted areas — ignores potential risks to river users of a similar nature upstream of those areas; (d) that the consultation did not include a lawful Equality Impact Assessment under the Equality Act 2010 and hence there was no way for the Council to judge whether the proposed PSPO would have a disproportionate effect on vulnerable boat users with protected characteristics, for example those who are pregnant or with physical disabilities; (e) that the proposed measures would unlawfully infringe the human rights of boat users contrary to articles 8 and 14 of the European Convention on Human Rights, and (f) that the Council should take account of the findings of its own housing needs assessment for boat users before reaching any decision on the proposed PSPO.

Again, the detail...