High Court adjourns eviction proceedings against fracking protestors due to "flawed" application

Out-Law News | 19 Sep 2013 | 2:25 pm | 3 min. read

The High Court has suspended eviction proceedings against anti-fracking protestors at a West Sussex site, saying that the council had not taken their right to freedom of assembly into account.

Mrs Justice Lang has given West Sussex County Council until 8 October to amend its "flawed" application for a possession order over the verges along London Road, Balcombe, where the protestors have camped, according to the BBC. If the council does not do so then its application could be dismissed by the court.

However, the protestors have said that they will end their action on 28 September, when energy firm Cuadrilla's permission for exploratory drilling in the area will lapse. Protestors have claimed that Cuadrilla's application could lead to hydraulic fracturing, or 'fracking', to recover oil.

Commercial property expert Melissa Thompson of Pinsent Masons, the law firm behind Out-Law.com, said that as the protest was taking place on a public highway, the landowners' rights had to be "balanced" with those of other members of the public, including the protestors. It was therefore more difficult to remove the protestors than if they had been camped on private land, she said.

"Unlike private land, the public have free rights of access over public land and a balance of interests must therefore be struck when determining whether a certain use of the public land is to be prohibited," she said. "Establishing a trespass and an entitlement to possession is traditionally more difficult for local authorities in light of this and involves considerations of the proportionality of any response to protest action which do not arise to such an extent in relation to privately-owned property."

"This said, the 'balance of interests' is indeed a balance. The interests of other users of the land including local businesses must be taken into account and there surely will not be many incidences where obstructing the public highway or indeed other land designated for the benefit of the public will be deemed acceptable and be allowed to continue," she said.

Trespass on land involves the "unjustifiable interference with land which is in the immediate and exclusive possession of another". Although the use of public land will not generally amount to a trespass, previous cases have confirmed that a local authority is entitled to apply for a possession order if the activity in question amounts to a "public or private nuisance" or "reasonably [impedes] the primary right of the public to pass and repass".

"In this case the protestors are considered to have behaved responsibly and the obstruction to the highway that they are causing has not been deemed hazardous," said Thompson. "However, plenty of other high profile protest actions have been judged problematic and have been brought to an end. A good recent example is the mass blocking of the public highway and other public areas by the Occupy Movement at St Paul's Cathedral,"

Cuadrilla has scaled back its drilling operations at Balcombe as a result of the protests. The company plans to drill a conventional exploration well at the site and will not be able to carry out fracking without further planning and environmental permits. Protestors have claimed that fracking, which involves pumping water at high pressure into shale rock in order to recover trapped gas or oil, can contaminate ground water and cause earthquakes.

In a statement, West Sussex County Council said that it accepted the court's decision to adjourn the case. However, it said that the ruling would not prevent it from returning to court before 8 October if "safety issues" at the camp site worsened.

"The County Council reiterates that the reason for taking this action was to maintain road safety on a busy rural road, unlit at night with a 60 mph limit," it said. "The roadside encampment is very close to the edge of the grass verges, and there have been numerous encroachments into the public highway. In our opinion it is not safe. We also have a duty to keep the highway open for all traffic."

"The County Council now respectfully requests that the protestors behave responsibly and do not cause a safety hazard on the road or disrupt the highway. The court has been given assurances on behalf of the protestors that their action will cease on the expiry of the planning permission on 28 September. We expect those assurances to be fulfilled," it said.