KB-2024-004175 - [2025] EWHC 2050 (KB)

The Claim is advanced under three heads namely trespass, interference with the Claimant’s common law right to access the highway and public nuisance (by obstruction of the highway).

Trespass to land is the interference with possession or the right to possession and includes instances in which a person intrudes upon the land of another without legal justification. The key and well-established features of trespass are:

A person does not commit a trespass where they enter onto the land of another pursuant to a licence, whether express or implied. However, where a person enters onto land pursuant to a licence, and proceeds to act in a way that exceeds the scope of that licence or remains on the land after the expiration of the licence, a trespass is committed (See Hillen v ICI (Alkali) Ltd[1936] AC 65 at Paragraph 69 per Lord Atkin).

In Marshall v Blackpool Corp [1935] AC 16 at 22 Lord Atkin explained the right to access the public highway:

“The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so…whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access; just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.”

Having considered that passage from Marshall Jonathan Hilliard KC (Sitting as a Deputy Judge of the High Court) held in Arla Foods Limited & Anr v Persons Unknown & Ors [2024] EWHC 1952 (Ch) at paragraphs 89 to 93:

“An interference with the right is actionable without proof of loss, and if an interference does cause a loss, then damages can be obtained. Taking the last part of the extract from Marshall above, in my judgment the key question here is the qualification of the right of access by the rights of the public. In Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch), Morgan J considered at [107] the interaction of the adjoining landowner’s right of access to the highway with the protestors’ right to a reasonable use of the highway. He assumed in favour of the protestors that if they were carrying on a reasonable use of the highway which impacted on the rights of the claimants in that case to access the highway, that would not be an infringement of the right of access to the highway.

While Morgan J did not have to decide the point, because the claimants in that case put their case on the basis of public nuisance rather than the landowner’s right to access the highway, in my judgment that is correct and I should take the same approach here. The rights of the public include the right to reasonable use of the highway. Therefore, applying the principles set out in Marshall, a reasonable use of the highway by members of the public will not constitute unlawful interference with the adjoining landowner’s right to access the highway.

It was submitted by the Claimants that the decision of Julian Knowles J in High Speed Two (HS2) Limited v Four Categories of Persons Unknown & Monaghan & Others [2022] EWHC 2360 (KB) at [196] suggests that no balancing act is to be applied between the right to access the highway and the Article 10 and 11 rights of the defendants, because in a claim under this cause of action much, if not all, of the relevant protest is taking place on private land. I do not take Julian Knowles J to be going so far in [196]. Rather he simply put forward the fact that in the case before him much if not all of the protests had taken place on private land as being the first of three reasons why there was no unlawful interference with Articles 10 and 11 on the facts before him. Further, here, the Claimants rely on the obstruction of the highway, such as by protestors mounting and affixing themselves to vehicles on it, as future acts that would breach their right to access the highway, and that acts are not taking place on private land.

However, as set out below, I consider that the apprehended actions would amount to a violation of the Claimants’ right to access the highway whether or not such a balancing act is to be applied. Therefore, I do not consider it necessary to consider further the question of whether such a balancing act needs to be applied.”

Public Nuisance (by obstruction of the highway)

It is long established that in certain circumstances a public nuisance can be occasioned by obstruction of the highway. In Thurrock Council & Anr v Persons Unknown [2024] EWHC 2576 (KB) Julian Knowles J, having conducted a comprehensive review of earlier authorities summarised the law in this regard as it relates to protestor cases at Paragraph 64 of his judgement:

“(a)

There is a right to peaceful assembly on the highway, but it must be remembered that the highway is more than just the carriageway. The assembly on the highway in Jones, was concerned with the grass verge;

(b)

That right does not extend so far as to allow the committing of a public nuisance;

(c)

While the right to use the highway comprises activities such as assembly on the highway, such activities are subsidiary to the use for passage, and they must be not only usual and reasonable but consistent with the primary use of the highway to pass and repass, if a person is deliberately interfering with the primary use to pass and repass, they are obstructing the highway;

(d)

That public nuisance may arise by the unreasonable obstruction of the highway, such as unreasonably impeding the primary right of the public to pass and repass;

(e)

Whether an obstruction of the highway is unreasonable is a question of fact, but will generally require that the obstruction is more than de minimis, and must be wilful.”