The Mayor and Burgesses of the London Borough of Hackney v Persons unknown in London Fields, Hackney (The ‘Prescribed Area’) Who Are:

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Linden
Judgment Date13 July 2020
Neutral Citation[2020] EWHC 1900 (QB)
Date13 July 2020
Docket NumberCase No: QB-2020-002289

[2020] EWHC 1900 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Linden

Case No: QB-2020-002289

Between:
The Mayor and Burgesses of the London Borough of Hackney
Claimant
and
Persons unknown in London Fields, Hackney (The ‘Prescribed Area’) Who Are:
(1) Organising, Attending or Participating in an Unlicenced Music Event and/or Rave(s); and/or
(2) Playing Loud Music; and/or
(3) Urinating and/or Defecating other than When Making Use of Toilet Facilities Designed for this Purpose; and/or
(4) Lighting Fires, Fireworks, Stoves, Barbeques and/or Naked Flames (With the Exception of a Cigarette Lighter), Including on any Equipment or Entertainment Device; and/or
(5) Consuming or Selling of Nitrous Oxide (Laughing Gas) Save When Used for a Valid and Demonstrable Medicinal Purpose; and/or
(6) Uprooting, Destroying or Damaging any Tree, Shrub or Plant; and/or
(7) Bringing Vehicles, Including any Engine or Generator, onto any Part of the Prescribed Area, with the Exception of Vehicles/Engines/Generators Belonging to the Emergency Services or Employees, Agents or Contractors of the Council; and/or
(8) Leaving Litter in the Prescribed Area; and/or
(9) Threatening or Using Violence, or Engaging in Abusive Behaviour Towards Members of the Public or Employees or Agents or Contractors of the Claimant who Question or Challenge their Engagement in any of the Behaviour Described Above.
Defendants

Ms Kuljit Bhogal (instructed by Legal Services, London Borough of Hackney) for the Claimant

No Defendants attended or were formally represented

Hearing dates: 9 and 10 July 2020

Mr Justice Linden

THE HONOURABLE

Introduction

1

This matter came before me in Court 37 on Thursday 9 July 2020, which was the return day for the interim injunction granted by Mrs Justice Thornton on Friday 3 July 2020 (“the Thornton Order”). Thornton J also provided a very helpful short judgment which explained the decisions which she took at that stage (“the Thornton Judgment”).

2

Proceedings were issued by the Council on 2 July 2020, exercising its powers under section 222 Local Government Act 1972 to bring civil proceedings where it considers that this is expedient for the protection of the interests of the inhabitants of its area. In the proceedings, the Council seeks to prevent various forms of anti-social behaviour which are said to amount to the tort of public nuisance and to have been taking place in a park known as London Fields, in London E8, for some time (“the Claim”). The Council feared that this behaviour would be repeated over the weekend of 4 and 5 July 2020 given the relaxation of the Covid-19 related social distancing rules on 4 July 2020 but, more generally, it wishes to put a stop to various behaviours which are disturbing the enjoyment of the park by other users and causing a nuisance to those who live adjacent to the park.

3

At the same time, the Council also made an emergency without notice application for an interim injunction. Thornton J summarised the Council's application for interim relief as follows at paragraph 8 of her Judgment:

“The local authority seeks relief because it is seriously concerned about potential activities which may take place in London Fields over the weekend following the lifting of lockdown restrictions. For several years the area has been used by people to gather in large numbers in order to participate in unlicensed music events and for other reasons. Since the easing of lockdown and sunny weather, anti-social activities have increased. These include urinating and defecating around the area; the use of open fires and barbecues, loud amplified music being played, damage to woodland and wildlife, drug and alcohol usage and litter in the area, as well as aggressive and threatening behaviour when people are asked to refrain from the activities”

4

Because their names were not known when the proceedings were issued by the Council, the Defendants to the Claim and the respondents to the application for interim relief were identified as three categories of unnamed members of the public, each defined by reference to the sort of behaviour which was sought to be prevented. These categories are discussed further below. Although the telephone hearing on 3 July 2020 could in principle be joined by any member of the public including the public, unsurprisingly in the circumstances, no Defendant participated.

5

The relevant terms of the Thornton Order are discussed in more detail below but, at the hearing on 3 July 2020, there were a number of issues which needed to be addressed given the potentially conflicting rights and interests of users of London Fields and local residents. These issues included:

a. The method of service of the proceedings and of any interim order which was made.

b. How best to frame any order so that it was clear who was subject to it and what they were prevented from doing. In accordance with well-established principles, this was important given that breach any order would be a contempt of court and given that it was proposed to attach a power of arrest to the injunction pursuant to section 27 of the Police and Justice Act 2006.

c. Although drinking alcohol in London Fields does not of itself amount to the tort of public nuisance the Council takes the view that much of the anti-social behaviour which it wishes to address is rooted in drug and alcohol abuse and therefore wishes the Court to ban the consumption of alcohol whether or not the consumer also behaves anti socially in a way which arguably amounts to a public nuisance.

6

Thornton J resolved these issues on a strictly temporary basis by:

a. Making provision for service to be affected by alternative methods and in alternative places to those which would normally be required under CPR Part 6;

b. Making the Order against all members of the public entering London Fields;

c. Banning members of the public from consuming alcohol and from certain other activities until the return date of 9 July 2020;

d. Attaching a power of arrest to all of the behaviours prohibited by her Order.

7

In relation to the alcohol issue she said this:

“8. I have been particularly concerned about the Council's proposal to introduce an alcohol ban on the basis that drinking alcohol is not of itself an unlawful activity and the Canada Goose criteria require me to consider whether there are other proportionate means available to the Council. Ms Bhogal tells me that the Council has considerable experience of attempting to manage the area and other means have failed. Moreover, the Council considers that alcohol is the root cause of the previous and ongoing serious anti-social behaviour.

9. With some reluctance, I have arrived at the view that the lifting of lockdown and reopening of the pubs on Saturday 4 th July amounts to unusual and compelling reasons so as to justify making the order in the terms sought by the Council. The Council is not alone in its concerns about what may transpire over the weekend. The Prime Minister has today urged people to act responsibly.”

8

Thornton J therefore granted the Council's application in terms which were wide in their reach but short in their duration. She explained her approach as follows at paragraph 16:

“I have not been prepared to make the order for the 12 months sought by the Council given the nature of the restrictions and its interim nature. I have been prepared to agree to its terms on the basis it is in place for this weekend only, given the particularly unusual and compelling circumstances. The application is to return to Court next week for further judicial consideration about the longer term. Anyone affected by the order has the opportunity to make representations to the Court next week.”

The hearing before me on Thursday 9 July 2020

9

The hearings before me were conducted by telephone in view of the Covid-19 pandemic. The Order which I made is attached as Annex 1 for ease of reference.

10

Ms Kuljit Bhogal appeared for the Claimant as she did before Thornton J. Her application was for the Thornton Order to be extended for a year, with one or two minor changes to the drafting. As at the hearing before Thornton J, she presented the Council's case with conspicuous fairness. Her submissions were also well informed and helpful.

11

It had been indicated that three members of the public would also attend the hearing and I understand that they were supplied by the Council with the relevant documentation for this purpose. In the event, I received written objections or concerns about the Thornton Order from two people, including a Mr Barry Murphy who also attended the hearing. I wish to pay tribute to Mr Murphy's public spiritedness in participating in the hearing. He may have no background in the law, but his written submissions tested the Council's case in a measured and fair way and raised a number of relevant points which had struck me in preparing for the hearing.

12

At the outset of the hearing, and in the interests of transparency, I raised the fact that I am very familiar with London Fields and explained why. I did not consider that this gave rise to any conflict of interest, as such, but it did mean that if I relied on my knowledge of the location in addition to the evidence which I received I would draw this to the attention of the parties. Ms Bhogal took instructions and indicated that there was no objection to my dealing with the case. Nor did Mr Murphy object.

The Claim

13

Ms Bhogal confirmed at the outset of the hearing that the only tort alleged against the Defendants is public nuisance, albeit on the basis of a range of group and individual behaviours. In broad terms, a public nuisance is behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. A person may...

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