Olympic Delivery Authority v Persons Unknown & Ors

This is an application by the Olympic Delivery Authority (“the ODA”) for the continuation of an injunction which I granted on 4 April 2012 to restrain then unknown defendants described as “persons unknown entering or remaining without consent on land known as Porter’s Field and surrounding land forming part of Leyton Marsh in connection with protest activities”. The background to the matter is set out in full in the judgment which I gave on that date, [2012] EWHC 1012 (Ch), and I do not propose to repeat it in full now.

In brief summary, the ODA is the exclusive licensee of a portion of the land known as Porter’s Field which forms part of Leyton Marsh. Leyton Marsh is owned by the Lea Valley Regional Park Authority (“the Park Authority”). By virtue of a licence Agreement dated 7 July 2011 between the Park Authority and the ODA, the site (“the ODA Site”) is licensed to the ODA for use as a temporary basketball practice facility for the purposes of the Olympic Games. Under the terms of that Agreement, the licence comes to an end on 15 October 2012, by which date it is a condition of the licence that the land be reinstated in its original condition.

As I described in my judgment of 4 April 2012, local residents have been deeply concerned by the grant of planning permission by the local authority, the London Borough of Waltham Forest (“the Borough”), for various reasons which I will describe later. As a result, they commenced protests about the construction works which commenced on site on 15 March 2012. Those protests began on 20 March 2012, and grew thereafter. In addition to what one might call the local protestors, they were joined by protestors from the Occupy London movement, starting on or about 24 March 2012. The upshot was that, as I described in my judgment, there was obstruction of access to the ODA Site, and in particular obstruction of delivery lorries attempting to make deliveries to the Site for the purposes of the construction work. There was also evidence of threats, harassment and intimidation of the ODA’s contractors and employees.

The basis of the application by the ODA before me on 4 April 2012 was the ODA’s rights as exclusive licensee of the land in question. The ODA’s case, in short, was that the activities of the protestors constituted a private nuisance which was actionable at the suit of the ODA. Secondarily, the ODA relied upon the fact that in so far as the protestors were carrying out their activities on public highways or land subject to a public right of way, then there was a claim in public nuisance which was also actionable at the suit of the ODA. The ODA’s evidence, and its Particulars of Claim in the proceedings, also raises other causes of action, such as intimidation and harassment, but counsel for the ODA made it plain on that occasion that those causes of action were not relied upon in support of the application for the injunction.

As I recorded in my judgment, I was satisfied that, if one left on one side the protestors’ rights under the European Convention of Human Rights, the ODA’s claim was a strong one. Contrary to the submission of counsel for the ODA appearing on that occasion, however, I accepted that the Convention rights of the protestors under Articles 10 and 11 of the Convention, that is to say the right to freedom of expression and the right to freedom of assembly, were engaged. I accepted that the protestors were attempting by their protest to make their views known about the matters which concerned them, and that they were attempting to do it in ways which would be caught by the order sought by the ODA.

In those circumstances, I considered that the correct approach was to consider whether it was necessary and proportionate for an order in the form sought by the ODA to be granted. That involved balancing the ODA’s rights as exclusive licensee of the land in question under Article 1 of the First Protocol to the Convention, and the protestors’ rights under Articles 10 and 11. I concluded, for the reasons that I gave, that at least for a period of two weeks in the first instance, the balance came down in favour of granting an injunction essentially preserving the status quo as it was immediately prior to the commencement of the protests. In so concluding, I considered that damages would not be an adequate remedy for the ODA. I also considered that damages would not be an adequate remedy for the protestors, but it seemed to me that the balance of the risk of an injustice favoured the grant of an injunction.

I particularly had in mind, as I explained in my judgment on that occasion, that the application for the injunction had been made with very short notice. Accordingly, the defendants and those who were interested in the application had had very little time in which to take legal advice, to attempt to obtain legal representation, or to serve evidence. It seemed to me that those were things that they had a right to do, and that they plainly needed more time in which to do that. It was for that reason that I declined to grant an injunction until trial or further order, as counsel for the ODA submitted, but instead granted an injunction for a fourteen day period, thereby requiring the ODA to renew its application at the expiry of that time.

The ODA now accordingly seeks continuance of the injunction granted on that occasion until trial or further order, or until 15 October 2012, which is when the licence expires and the ODA is required to reinstate the land in its former state, if that turns out to be earlier.

Counsel for the ODA submits that the events that have happened since 4 April 2012 strengthen the ODA’s case for an injunction rather than the reverse. It is therefore necessary briefly to outline the matters that are relied upon.

The first matter is more by way of background than directly relevant to the ODA’s claim, but nevertheless it should be taken into account. That is that on the following day, 5 April 2012, Master Marsh, on the application of the Park Authority, made an order giving the Park Authority possession of Porter’s Field and surrounding land forming part of Leyton Marsh. Following the grant of the injunction and the grant of the possession order, the ODA’s contractors attempted to resume deliveries to the ODA site on 10 April 2012. On the same occasion High Court Enforcement Officers executed a writ of possession obtained by the Park Authority pursuant to Master Marsh’s order.

The majority of those camping on the land the subject of the writ of possession moved their tents off the land and to another strip of land, which is outside the Park Authority’s ownership. As I understand it, it consists of a grass verge running alongside the Lea Bridge Road immediately adjacent to the Park Authority’s land. I also understand that the grass verge in question is owned by the Borough and that the Borough will be bringing its own claim for possession of that land soon. I should emphasise, however, that that is not a matter that is before me, and again, although it forms part of the background, it is not directly germane to the ODA’s claim.

What is rather more relevant is that a group of protestors who were occupying
a tent at the entrance to the ODA Site refused to move when requested to do so by the Enforcement Officers, and they had to be forcibly removed. There was
a substantial police presence on site on 10 April 2012 to ensure that public order was maintained. That proved to be a wise precaution since, when the first delivery vehicle was escorted along the access route to the ODA Site by the Enforcement Officers, the vehicle was halted on Sandy Lane by a protestor who lay in front of the vehicle holding a large piece of concrete. Other protestors also obstructed the vehicle by standing or lying in front of it, and they had to be forcibly removed. Once the vehicle reached the entrance to the ODA Site, it was obstructed by six or seven protestors sitting in front of the gate, and at this point two women, a child and a dog lay down under the vehicle. It appears from articles subsequently published in the Evening Standard that one of the women in question was Rowena Johnson, who is now the Sixth Defendant in these proceedings. Another protestor climbed on top of the vehicle.

At around the same time, three or four protestors gained access to the ODA Site, as I understand it by climbing over the fence. Two of them climbed up a large pile of excavated soil and unfurled a banner with the word “Toxic” on it. That is a reference to the fact that the protestors understand that the land in question has been discovered to have both asbestos and lead present on it.

At about 10.45 that morning the senior police officer on the site invoked the police’s powers under section 14(1)(a) of the Public Order Act 1986 to impose directions on the protestors. The protestors were given ten minutes to move their protest to an area twenty metres away from the ODA Site or they would otherwise face arrest. The direction was ignored, and accordingly the police started an operation in which four arrests were made. Those arrested were Daniel Ashman, now the Second Defendant in these proceedings, Connor Murray, now the Third Defendant, Simon Moore, now the Fourth Defendant, and Anita Olivacce, now the Fifth Defendant. It was only at about 11.15 that the first delivery vehicle was able to enter the ODA Site and that was subsequently followed by two further vehicles.

There is evidence before me that between about 8.45 and 11.35 that morning there were many individual acts not only of obstruction in the way that I have related, but also of incitement to instruct the free passage of the contractors and employees of the ODA along the access route to the ODA Site. In addition, there is evidence that the contractors and employees and the Enforcement Officers were subjected to foul, abusive and threatening language.

Mr. Ashman, Mr. Murray, Mr. Moore and Miss Olivachi were duly charged, and brought before Thames Magistrates Court on 11 April 2012. Mr. Ashman,
Mr. Moore and Ms. Olivacce pleaded guilty to public order offences. They were each fined, but, as I understand it, were unable to pay their fines and were therefore given short custodial sentences in lieu. Mr. Murray pleaded not guilty and has been bailed.

On the morning of 11 April 2012, there was a further act of obstruction by two or three protestors. On that occasion two vehicles had already managed to reach the ODA Site unimpeded, but a third vehicle was obstructed at the entrance to the Ice Centre car park. As a result, the police had to be telephoned to assist. After their arrival, the protestors ceased their obstruction.

As I understand it, since then there have been no significant further acts of obstruction. Nevertheless, the ODA relies upon the fact that, even if the face of the injunction granted by the court on 4 April 2012, and the writ of possession granted in favour of the Park Authority, the protests have not merely continued, but have continued to involve acts of obstruction of precisely the kind that were the subject of the ODA’s complaint before me on 4 April 2012 and which the injunction was designed to prevent.

I should complete the narrative by recording that, in the light of the arrests and charging of Mr. Ashman, Mr. Murray, Mr. Moore and Ms. Olivacce, they have been joined as defendants to these proceedings by an order of Master Marsh dated 13 April 2012. Ms. Johnson has also been joined as a defendant in the light of her identification in the Evening Standard article to which I have referred.

In the circumstances that I have related, counsel for the ODA submits that the ODA’s case for an injunction is even stronger than it was on 4 April 2012. Counsel submits that, even on the basis that the protestors’ Convention rights under Articles 10 and 11 of the European Convention are engaged, it is necessary and proportionate for an injunction to be granted to restrain obstruction of the access route to the ODA site. Once again, counsel for the ODA relies upon the fact that the ODA has a very short period in which to complete erection of the basketball facility and to hand it over to LOCOG in time for LOCOG to fit it out for use by the various teams for practice before the commencement of the Olympics. The ODA relies upon the fact that it will be prevented from carrying out one of its statutory duties if the injunction is not granted. It relies also upon the significant financial costs which it has been incurring as a result of the protests, as to which there is no suggestion that any of the named defendants or other protestors will be able to pay, and it relies upon the reputational damage that it will suffer if it is unable to deliver the basketball practice facility on time. In all of those circumstances, counsel submits that the balance comes down firmly in favour of the grant of an injunction.

I have heard this afternoon from Mr. Ashman, from Mr. Michael Doyle,
a McKenzie Friend acting on Mr. Ashman’s behalf, from Mr. Moore, from
Ms. Olivacce, and from Katie Andrews, who also addressed me on the last occasion. They have all addressed me, if I may say so, very clearly and courteously, and they have made their points well. In substance, what they all say is that there are matters here of legitimate public concern. They have concerns as to the manner in which planning permission was obtained. They have concerns as to the conditions attached to the planning permission, and the way in which those conditions were subsequently varied so as to allow excavation of the site to
a greater depth than was originally permitted. They have concerns about what they see as the undemocratic process that was involved in the seeking and obtaining of the planning permission. They have particular concerns arising out of various environmental considerations. I have already referred to the fact that it appears that there is asbestos and lead on the site. It appears that the site was formerly a World War Two bombsite. One exploded bomb has already been found and it appears that there is a considerable quantity of rubble from the old bombsite buried underground. In addition to those matters, there are other environmental and public interest concerns. There is a great deal of concern on the part of the protestors that this is Metropolitan Open Land which is intended to be green space and to be protected from development. There is concern that it will not be practicable properly to reinstate the land in the condition that it was originally in. There are also a number of other concerns. For example, there is the simple fact of the site being a construction site for the duration of the works with all the attendant noise and disruption.

For my part I fully accept that these are legitimate matters of concern, in relation to which those who are concerned are entitled to exercise their rights of freedom of expression and freedom of assembly. To my mind, however, that simply emphasises the correctness of the conclusion that I reached on 4 April 2012 that the order sought by the ODA engages the protestors’ rights under Articles
10 and 11. These are matters which protestors are entitled to ventilate their views about and to try to attract attention to.

The protestors who have addressed me have made the point that they have sought to engage with the planning process in the normal way, and they have considered the possibility of seeking judicial review. As is so often the case, they say that they are handicapped by the lack of professional legal representation and the lack of finances to instruct lawyers of the calibre instructed by the ODA. They have also sought to engage normal democratic processes in order to make their points. It is because those processes have failed, as the protestors see it, that they have engaged in their protests.

That is all very understandable, but it does not, in my judgment, detract from the basic position which confronts the court. The ODA has rights as exclusive licensee of the land in question under Article 1 of the First Protocol to the Convention. As
I observed in my judgment on 4 April 2012, the protestors’ rights under Articles 10 and 11 are not unqualified rights. They must give way, where it is necessary and proportionate to do so, to the Convention rights of others, and specifically in the present case, of the ODA. The form of injunction sought by the ODA and which I granted on the last occasion does not, in and of itself, prevent or inhibit lawful and peaceful protest. It does not prevent or inhibit the protestors who wish to protest about the matters I have described from doing so in ways which do not interfere with the ODA’s enjoyment of its rights in respect of the land.

As on the previous occasion, I recognise that the protestors wish to bring home the force of their points by obstructing the construction works and the ODA’s access to the Site for that purpose. I appreciate the protestors consider that that is the best way in which to draw public attention to the matters that concern them. However, the court’s function is to uphold the law, and it seems to me that it is necessary and proportionate to grant the relief sought by the ODA because it is open to the protestors lawfully to continue their protests in ways that do not involve obstructing the ODA’s access to the Site.

A further consideration, as I mentioned on the last occasion, is that the protestors’ activities do not only obstruct the ODA, they also have the incidental effect of obstructing use of the area in question by local residents and visitors to the Park, and their interests must also be taken into account.

For all of those reasons I am satisfied, subject to one point which I must still address, that it is indeed appropriate to continue the injunction as sought by the ODA.

The final point which I should consider is the period for which the injunction should run. As I have indicated, the ODA seeks an injunction to continue until trial, or, more realistically, given that it is unlikely that a trial will occur earlier, until 15 October 2012. A number of those who addressed me made the point that, if an injunction were to be granted, it should be granted only for a shorter period. Various alternatives were put forward, one of which was until the date of the handover to LOCOG and another of which was until the Games actually commence. While I can understand that those dates have some appeal, it seems to me that realistically little is going to change between now and then. If I were to limit the injunction in the way that was suggested, I consider that the likely consequence would be a further application for continuation of the injunction when it expired. In my judgment the better course is to do as counsel for the ODA invites me to do, and to grant an injunction until trial, or further order, or 15 October 2012 if that is earlier.