Public spaces protection order regulating unauthorised mooring on riverbank quashed on appeal

A dispute about the use of a Public Spaces Protection Order (PSPO) to ban unauthorised mooring on part of the River Thames has seen a claimant win on one ground of irrationality but lose on 14 others.

Marcus Trower, who lives on a boat on the Thames, challenged Elmbridge Borough Council in the High Court over a PSPO that restricted the ability of boat users to moor within defined areas of riverbank.

Tim Smith, sitting as a deputy High Court judge, noted in his judgment that absent the order Mr Trower could - in a public law context - moor anywhere by virtue of the public right of navigation.

Elmbridge in 2022 received a report into using a PSPO to tackle issues including unauthorised mooring on the riverbank within five areas owned by the council and one owned by Surrey County Council.

It proposed to ban moorings unless a boat owner could show a reasonable excuse or unless the Environment Agency had issued an emergency warning requiring boats not moor.

During a consultation, the National Bargee Travellers Association (NBTA), of which Mr Trower was then deputy chair, argued 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 - ignored potential risks to river users of a similar nature upstream of those areas.

The association also told Elmbridge that whether a ‘reasonable excuse’ existed could only be determined by the relevant regulator or a Magistrates Court following a prosecution and so provided limited comfort to boat users wishing to know whether their actions would be considered a breach of the order.

It further said Elmbridge’s consultation did not include a lawful Equality Impact Assessment.

Mr Trower’s first - and only successful - ground was that the terms of the Order were too uncertain to be enforceable;

The deputy judge said wording in Elmbridge’s environmental enforcement policies appeared to mean the order would be suspended were the Environment Agency to issue emergency warnings both upstream and downstream whereas the Order itself only mentioned the latter.

Mr Smith continued: “The misalignment between the [policies] and the Order is clear. Whilst the [policies] can assist in the interpretation of the Order where there are passages which may be unclear, it cannot change what the Order clearly says. That would be to relegate the terms of the Order to being subordinate to the [policies]. That is clearly not the intent of the legislation.”

He said the order defined parts of the river for which an in-force Environment Agency warning suspends what would otherwise be a prohibited mooring.

“Those parts of the river are all downstream of the restricted areas,” Mr Smith said. “Warnings confined to upstream areas do not suspend the control over prohibited moorings.

“Put at its highest for the council we are left, therefore, with the possibility of an activity which could be prosecuted under the Order but which the council has said it would not prosecute for.”

He said this ‘would not’ assurance was “insufficient to bring the Order within the scope of the statutory criteria”.

This was because “to require an affected user to alter its understanding of the clear terms of the Order by reference to a separate document whose existence it may not even be aware of defeats the purpose of the statutory safeguards requiring publication”,

Mr Smith said if the existence of upstream warnings was provided for as an exception to the prohibition in the Order itself – as downstream warnings are – “then any prosecuted river user has a copper-bottomed defence to the prosecution. No offence has been committed.

“But as things stand a river user prosecuted when an upstream warning is in place would have to rely instead on the assurance given in the [policies] that he ‘would' not be prosecuted. Whilst a court may well be sympathetic to a defendant faced with a prosecution in these circumstances, and whilst a defence founded on (for example) breach of a legitimate expectation may yet prevail, all of that is less certain than a defence resting solely on the words of the Order itself.”

He said the specific reference to river warnings downstream of the restricted areas “would, in all likelihood, persuade a court that the omission of comparable upstream warnings was deliberate and that they were not intended as an exception to prohibition”.

Mr Smith said Elmbridge “could at any time have suspended its consideration of the draft Order to insert wording specifically about upstream warnings, in the same way it has done about downstream warnings. Why it did not do this is unclear to me”.

He concluded: “It is irrational for the Order not to include a relaxation of the prohibition when upstream river warnings are in place. For this reason I conclude that the Order is unlawful.”

Community Law Partnership, which acted for the claimant, said the PSPO had been quashed, the first time a PSPO has been quashed on appeal.

Mark Smulian