Judge gives reasons for granting interim injunction prohibiting anti-HS2 protesters from overnight sleeping and other acts on council land next to construction site

A High Court judge has issued his reasons for last month granting Hillingdon Council a limited interim injunction preventing a number of named defendants and persons unknown from doing certain acts on land at Harefield Moor owned by the council and adjoining the site of construction works for part of the HS2 railway line.

The council had argued before Mr Justice Kerr at a remote hearing on 13 July that the defendants and others were trespassing on the land and committing acts of nuisance.

In Hillingdon Borough Council v Persons Unknown & Ors [2020] EWHC 2153 (QB), which was published this week on Bailii, Mr Justice Kerr said he would not have been prepared to grant an injunction that would prevent a protester from walking on the land carrying a protest banner or singing anti-HS2 songs.

The question, he said, was whether to grant a limited injunction to prohibit trespass by named defendants and persons unknown by:

(1) sleeping overnight on the land without express permission;

(2) attaching persons to other persons or objects so as to create an obstruction;

(3) attaching a person or persons to fences, gates or barriers;

(4) banging objects so as to cause noise; and

(5) standing, sitting or lying down in front of vehicles.

The judge said: “I have come to the conclusion that it would be appropriate to grant an interim injunction, pending a full trial later this year or early next, to prohibit that limited class of acts. The prohibitions do not prevent the protesters from protesting, both on and off the land. They do restrict the ways in which they can do so on the land.”

Mr Justice Kerr stressed that the court occupied a position of strict neutrality in the argument about the merits of HS2., and that the merits of the arguments for and against HS2 were not of the slightest concern to him in deciding this case.

“But I must and do recognise that the issue is one of the utmost public importance, with acutely polarised views. The public importance of the issue goes even beyond HS2; it engages more broadly the decarbonising of the economy and confronting the reality of climate change,” he said.

“The importance of these issues is such that the weight to be given to the right to protest about them is very considerable…..So important are the issues here that the right to protest about them is very important too.”

However, the judge said he would not go as far as to accept that the right to life under article 2 of the Convention is engaged here, as was suggested by one of the defendants. “Any threat to life (for example, through water contamination or global warming) is too indirectly linked to the HS2 construction project to be capable of raising an article 2 issue.”

The judge said that, on the other side of the balance, there was the right of Hillingdon as landowner to regulate the use of its land and its power under section 222 of the LGA 1972 to bring civil proceedings to promote the interest of its inhabitants; “here, in particular, people who use the land but are not protesters; families, dog walkers, anglers and others”.

Mr Justice Kerr said: “I think it would be inappropriate for Hillingdon to be compelled to tolerate the unwanted presence on its land of overnight sleeping protesters. To do so would give the protesters special and preferential treatment over other ordinary citizens, who on the evidence are not allowed to camp on the land without special permission for which payment is made.

“I do not think the protesters' ability to protest is very seriously impaired by a ban on overnight sleeping accommodation on the land, so that the special privilege of being allowed to do so should be effectively granted to them by this court. Hillingdon should not be drawn against its will into the politics of pro- and anti-HS2 discourse.”

The judge added: “In short, the land is not a free camp site. Hillingdon is acting reasonably by acting to prevent unrestricted and unregulated overnight camping. If the protesters are allowed to do it, why should not anyone else be allowed to do it? Their numbers could swell greatly and they could be joined by others, for example, ramblers, hikers, holiday makers, homeless people and others less interested in protesting than the opportunity for free camping.”

Enjoyment of the land by others would then be seriously impeded, he said, and insanitary conditions would be impossible to avoid. “Being a protester does not give you rights that others do not have. Invoking articles 10 and 11 of the Convention does not put you in a better legal position than other ordinary members of the public who are not allowed to camp.”

Mr Justice Kerr said those who wanted to camp on someone else's land, should negotiate with the owner and offer terms such as those available to anglers and trippers who are customers of the Hillingdon Outdoor Activity Centre. “If the owner refuses, you should not camp on the owner's land as by doing so you are trespassing and the owner is entitled to ask for an injunction to stop you from trespassing.”

He said the overnight sleeping by anglers and Activity Centre trippers was not in the same category. “They have the owner's permission and the protesters do not. They pay for the privilege and the protesters do not. I conclude that the injunction to restrain overnight sleeping should be granted.”

In relation to the four specific types of protest, the judge accepted that these acts, if committed, were disruptive of others' enjoyment of the land and activities on it. “They prevent others from going about their lawful business. I do not think the protesters' Convention rights should make those acts inviolable. Those Convention rights are not absolute.”

Mr Justice Kerr said he thought the “modest” restrictions on the protesters' rights to protest embodied in a prohibition of the aforementioned four specific types of protest act were justified and fell within the scope of justified restrictions defined in the European Convention on Human Rights.