Tendring District Council & Ors v Persons Unknown

The Clacton-on-Sea Airshow (“the Airshow”) is well established. This year it runs over 25 and 26 August, and will be followed by a food and drink festival on 27 and 28 August.

The Airshow will be the only airshow on the East of England this year. In excess of 200,000 visitors are expected. The Airshow is important to tourism and holidaying in the area, and helps bring in income and employment for the area.

The Claimants comprise the local authority for the area that includes Clacton-on-Sea (Tendring District Council: “the Council”), the highways authority for the County of Essex (Essex County Council), and three owners of car parks.

The Claimants, led by the Council, are concerned that campervans, mobile homes, caravans and tents will cause severe disruption of the Airshow and the follow-on food and drink festival. They seek an injunction against parking or placing these types of vehicle, and tents, on defined land and roads. The application is made without notice to any known person, and the injunction sought would be directed to persons unknown.

The application was issued on Monday 1 August 2016 and came before me on Tuesday 2 August 2016 in the interim applications court, supported by a skeleton argument dated the same day and a witness statement dated 29 July 2016 of Mr Tim Clarke, Head of Housing at the Council. After hearing Counsel for the Claimants I put the matter back 48 hours to today, Thursday, so that I could consider the matter more closely. In the intervening period I received a further witness statement dated Wednesday 3 August 2016 and answers to some factual questions I had asked.

The Claim Form refers to the Claimants’ ownership of the land and to parking controls. The application notice seeks an injunction “to prevent breaches of planning control”.

In clear and helpful written submissions Mr Rory Clarke for the Claimants identifies the legal wrongs addressed by the injunction sought, as being (a) trespass in respect of what is described as the Council Open Land and the Car Park Land (b) breach of parking controls on what are described as the Seafront Roads and (c) obstruction of the highway and nuisance at what are described as the Roads Adjoining the Seafront.

On the evidence of the Claimants, the airplanes that take part in the Airshow assemble and display just off the sea front over a distance of three quarters of a mile.

The main seafront road is called Marine Parade West. Marine Parade West is closed and pedestrianised during the Airshow. Road closures begin the day before the Airshow and adjacent roads are coned off to allow residents-only parking.

Between the road and the sea wall there is a wide green area of land, owned by the Council, that is used during the Airshow by commercial licensed stall holders and the viewing public. Together with Marine Parade West this is the main visitor area. It is also the area for the food and drink festival. The Council’s evidence is that Marine Parade West is “the central part of the Airshow in terms of viewing, commercial activities and flight co-ordination”.

The main Airshow car park (there are others) is in West Road and leased from the third Claimant. Coach parking is provided at the Martello Coach Park. Airshow car parks get very busy and as the Council says “space is at a premium”.

The Council’s evidence included evidence of issues at times outside the period of the Airshow, or outside the immediate run-up period, or outside the area of the Airshow. For the present I will concentrate on the evidence within the period of an Airshow (including run-up) and within the area of an Airshow. I make clear I leave aside other issues quite separate from the Airshow, and attracting quite separate measures including by way of injunction, in Walton-on-the-Naze and at Weeley in 2014.

In 2011, 2012 and 2013, on Mr Tim Clarke’s evidence “people arriving in caravans and campervans have caused significant disruption to the Airshow by camping on Marine Parade West and on the green area of land between the road and the sea wall”. I will set out his evidence in a little more detail in the next paragraphs.

In 2011, 8 such vehicles were there at the morning of the Airshow and “only moved … after service of Section 77 notices [under the Criminal Justice and Public Order Act 1994] and in the knowledge that court action would be taken”.

In 2012, 24 vans were present “either on Marine Parade West, or the immediate vicinity of the Airshow” for 5 days over the Airshow and the weekend following. Included in the reference to “immediate vicinity” are car parks, local supermarkets and the Council’s recreation ground at East Cliff.

In a witness statement of Mr David McCullogh dated 15 July 2014 and to which Mr Tim Clarke refers, Mr McCullogh said:

“The campers had come to Clacton for a holiday, and to attend the Airshow in particular. They were in campervans or small touring vans. The group was highly mobile, moving from site to site as they were moved on a daily basis. Commercial sites that would take them on a holiday basis, in particular the Park Resorts Martello site in Jaywick, were rejected by the campers as too far away (3 miles) from the site of the Airshow.”

Mr McCullogh went on to describe a sequence of moves by all or some of the vehicles. They would go to one location, Council employees or security guards would move them on, and they would go to the next place. This, but not this alone, brought with it much disruption. At times the process of being moved on took the vehicles nearer to, and on to, Marine Parade West. At one point notices were served under section 77 and at another point what are described as civil repossession or eviction proceedings were commenced.

In 2013 an injunction was sought for the first time. It was applied for on 16 August 2013 and granted that day for the period 16 to 28 August; the Airshow itself was on 22 and 23 August 2013. The injunction was directed to persons unknown intending to park or place caravans, campervans, mobile homes or tents on certain land and roads in the area. Copies of the injunctions were posted across the area covered by the injunction, together with a notice that was published on the Council’s website.

Fewer vehicles of the relevant type arrived in Clacton that year but from those that did, the Council experienced movements that respected the requirements of the injunction. These movements then took some of the vehicles to places not covered by the injunction.

An injunction was granted in 2014 for the period 15 to 31 August. The coverage was expanded, in part so as to include some of the places to which movements in 2013 had taken some of the vehicles but which had not been covered by the injunction then in place.

The Council’s evidence is that there were “no incursions or problems reported either before or during the period of the Airshow” in 2014. The Council attributes this to the injunction. In fact there is no evidence to show what the reason was, though I accept this is something that it may not be easy to demonstrate. Generally the Council provides little evidence about that year.

An injunction was again sought and granted in 2015. In that year “one encampment, unusually of tents, took place on the Knox Road playing fields in Clacton”. The group involved were still present on the site on the day when the injunction came into force “but moved on around lunchtime that day”. It transpires from a schedule to Mr Tim Clarke’s witness statement that, as well as the injunction, section 77 of the Criminal Justice and Public Order Act 1994 was invoked.

On the impact of the injunctions the matter is put as follows in the Council’s evidence:

“During the injunction period the Clacton area was largely free of travellers and the general view is that the injunction again proved to be a very effective deterrent to unauthorised encampments which had the potential to disrupt the Airshow proceedings”

The reference to “largely free of travellers” in the passage just quoted carries some emphasis that it is to the traveller community that the Council’s focus is directed.

The Claimants accept in their evidence that an injunction of the type sought would impact on individuals adopting a traveller lifestyle more that it would on the population at large. But it is more than that here; the injunction sought is, at least largely, particularly directed to individuals adopting a traveller lifestyle where they stay without authority.

It is clear that the Council regularly faces what it sometimes calls in its evidence “incursions” across the summer months. At one point, referring to 2015 as a whole, the Council’s evidence is that there were “in excess of 20 separate incursions onto land either owned by The Council or Essex County Council” “mainly in the Clacton and Jaywick area” and “the same group of travellers seemed to remain in the area undertaking driveway laying work, often fly tipping the wastes generated from their employment activities on the sites where there were camped”.

This passage describes a situation that the Council may find difficult but, on the face of things, the focus of this application is the Airshow.

Again more generally, the evidence of Mr Tim Clarke refers to the Council having joined with other Essex Councils, including Essex County Council, and the Police and Fire Service to form a partnership:

“… to deal consistently and fairly with Travellers across Essex. The formal launch of this partnership, the Essex Countrywide Traveller Unit (ECTU), took place in May 2013. Traveller incursions on publicly owned land are now investigated and dealt with by the new ECTU, rather than by individual Councils, ensuring not only a uniform approach but that all legislation, such as the Human Rights Act 1998 (HRA) and the Equality Act 2010 (EA) are taken into account consistently. In addition there are Essex wide operational protocols within the partnership in respect of site assessment, human rights, welfare, enforcement and Police intervention.”

Mr Tim Clarke states that officers from the ECTU will be available over the Airshow period as they were in 2013, 2014 and 2015. It appears that during the 2014 Airshow the officers were based in the Town Hall in Clacton, but during 2015 “they were out and about in the County dealing with various traveller encampments and issues.” No doubt arrangements along these lines will assist towards a successful Air Show in 2016.

Where members of the traveller community do wish to come to the area to enjoy the Airshow the application seeks to address where they cannot park. But where can they park?

The Council’s evidence is that “there are a number of commercial sites which will take [campervans and caravans] and did so during 2015.” In the further witness statement of Mr Tim Clarke of 3 August 2016 he states that these sites “have indicated that they are willing to take travellers”.

However, when I look at the detail of a schedule of these sites, provided in the Claimants’ original evidence, I note that three of the seven (including the Park Resorts Martello site to which Mr McCullogh had referred) require a home address, another one requires a name to be on the electoral role, a further two have limited or very limited spaces, and the remaining one requires caravan club membership.

In addition five of the seven will not allow commercial vehicles and Mr Tim Clarke appears to acknowledge in his further witness statement that this restriction affects some of the vehicles used by the traveller community. I requested details of distances from the Airshow and the answer ranges from 2.3 to 18 miles.

Against this detail I do not find Mr Tim Clarke’s evidence that “groups of travellers do stay on holiday parks in the Clacton area” and that yesterday he was “aware of at least one group staying on a caravan park in the District” sufficient.

The Council has made provision for other types of parking (see paragraph 11 above). I am not sufficiently persuaded that there are arrangements for members of the traveller community to park or place their vehicles over the period of the Airshow. That situation itself reveals part of the underlying problem.

This is one of those cases where, in practice, an injunction granted now will be of final effect for this year.

The claim form says that the claim “is to prevent trespass, breaches of parking control, nuisance and obstruction of the highway”. As mentioned above, the application notice seeks an injunction “to prevent breaches of planning control”. These matters are important, but in the context of an application for an injunction, it is instructive to see where the emphasis is on the particular evidence in the particular case.

When the application and evidence was put to me on Tuesday of this week the Claimants’ evidence did not make a case based on public safety. It was in any event indicated in the course of the Council’s evidence that its position is that it has power to tow away vehicles that are creating a danger to highway users.

Instead on Tuesday the Claimants pointed to overnight stays in vehicles and tents in areas designated for car parking. The Claimants referred to costs in time and money. They pointed out that “encampments occurring on or near to public car parks will deter people from using them, often meaning takings at the pay and display meters are lower”. It gave more recent instances of rubbish being left and graffiti.

Of course the Claimants also referred more generally to “the landowner’s rights to make their own use of the land, and the public’s rights to use the highway”. The Claimants referred to nuisance but the evidence contained one limited reference to noise and disturbance, and that was in 2013 in quiet residential roads adjoining the seafront. I do not overlook the fact that Mr McCullogh’s evidence referred to criminal damage, theft and vandalism in 2012, and to arrests being required. However the requested injunction is directed to parking and placing vehicles and it is not to be assumed against the many people who might be affected by an injunction so directed that they would commit crimes of this nature.

In any event the police have a range of powers to deal with criminal behaviour. As for the Council itself, it accepts that it has, and uses, a range of powers granted by Parliament to deal with parking and placing vehicles. These include powers under section 77 of the Criminal Justice and Public Order Act 1994. In summary only, these allow the Council, if it appears that persons are for the time being residing in vehicles on any land forming part of a highway, on any other unoccupied land, or on any occupied land without the consent of the occupier, to give a direction that those persons and any others with them are to leave the land and remove the vehicles and any other property they have with them on the land. Failure to comply with the direction is (subject to certain exceptions) a criminal offence attracting a fine.

The Council’s evidence contains examples where service of section 77 notices caused departures in many cases. The Claimants say these powers, and the procedure required by them, are not always flexible enough. They are reactive says the Council. However it is important to keep in mind that the flexibility they have is the flexibility that Parliament decided they should have.

Referring to 2015, and, it appears, to the “group of travellers” referred to above, Mr Tim Clarke says in evidence “in most cases it was not until proceedings had been issued, summonses served upon them, and we were actually at Court before they moved on. In some cases, the Court granted Orders which gave the groups a further 24 hours before they had to leave, and in these cases the groups did not leave until the end of that further period.” This however shows in operation the powers that have been given, and the Court acting as, doing the best it can, is appropriate in the circumstances in hand.

Mr Tim Clarke indicates in his evidence that the Council has used powers in other legislation to make provision specifically for the Airshow in 2016. Thus he refers to an Order made by the Council to close Marine Parade West for defined hours, and to an Order made by the North Essex Parking Partnership using delegated powers to prevent waiting over defined hours in certain streets including what have been described as the Roads Adjoining the Seafront.

I mentioned above that the Claimants seek an injunction directed to persons unknown, and the application is made without notice to any known person. It is notable that they do not seek an injunction that is specifically directed to those against whom they have previously taken action, including in the Courts, and where they could name them.

The area covered by the injunction has increased over the few years in which an injunction has been ordered. This year the Claimants seek the inclusion of “possible displacement areas” on the basis, as Mr Tim Clarke puts it, that “if numbers of campers are prevented from using the immediate Airshow area or other land within the vicinity, I believe that they will seek other open sites or land or highway on which to camp”. I do not wish to sound unduly critical, but this methodology could lead to injunctions of ever-increasing compass year by year.

Further, to grant an injunction in the present case would mean that similar injunctions might be sought year on year in many if not most public events, at least of scale or importance. Here it is an Air Show, but in other cases it could be a marathon, a cycling event, a music or book festival, a carnival. This point does bring home the significance, and precedent, of starting to use injunctions to address the challenges of the type, nature and extent of those which arise in the present case.

In all the circumstances and on the evidence in the present case I have reached the conclusion that I should decline to grant an injunction.

I mentioned above that when the application and evidence was put to me on Tuesday of this week the Claimants’ evidence did not make a case based on public safety. In his further witness statement of yesterday, Wednesday, following the hearing on Tuesday, Mr Tim Clarke referred for the first time to (national) security, saying that aside from the safety aspect of the aircraft flights, prevention of terrorism has taken a higher priority this year in the wake of recent attacks across Europe.

I fully understand that, and it is truly of the utmost priority, but that is not what the injunction here sought is directed at. An application truly based on requirements for the prevention of terrorism would of course stand on a wholly different footing. But this is not such an application.

Mr Tim Clarke again refers in this connection to the fact that Marine Parade West will be closed to general traffic during the Airshow. It seems far more appropriate that that step, among others, and rather than an injunction directed to vehicles used by the traveller community, will keep Marine Parade West free of vehicles, and of all vehicles (save for essential vehicles) not just some.