They Protesteth Too Much: Construction Sites And Protesters

The recent High Court litigation involving the Olympic Delivery Authority ("ODA") and protestors at Leyton Marsh sheds light on how the law assists owners and occupiers of construction sites against obstructive protesters.

The Facts

The ODA is the body responsible for the planning and delivery of the Olympic Games, 2012. As part of its remit, the ODA is obliged to build a number of venues, including a basketball facility within an area known as Leyton Marsh. The ODA was obliged to (and did) deliver this particular venue to the London Organising Committee of the Olympic and Paralympic Games ("LOCOG") by 7 June 2012.

The basketball facility is a temporary one and, as part of the planning permission for the venue, the ODA is obliged to remove the facility and reinstate the land by October 2012. Notwithstanding this, there was considerable outrage from local residents (and others, including "Occupy London") who took to obstructing access to the site by a number of means (including playing games of boules on the access route to the site and gluing gates shut). As a result, the ODA's works were disrupted at an estimated cost of £8,000 per day. The ODA was also at risk of jeopardising the June handover to LOCOG, which would have had severe financial and reputational consequences for both.

In the circumstances, the ODA made an application for an injunction to prevent the protestors from obstructing access to and from the site. Their claim was principally based on the tort of private nuisance. Private nuisance is an unlawful interference with the rights of an owner or occupier of land caused by an action (or inaction) on a neighbour's land. The tort is often considered in the context of construction, where demolition and re-building are likely to result in some level of inconvenience for neighbours. However, the interference must be substantial and unreasonable for the tort to come into play. Where the inconvenience is temporary and, where reasonable steps have been taken to mitigate it, the courts are generally unlikely to find that the owner or occupier's rights have been infringed.

In this case, the ODA had been granted an exclusive licence to use the site for the purpose of building the temporary basketball venue. The licence agreement also provided for access to and from public roads to the site. As such, the ODA claimed that it had sufficient interest in the land by virtue of the licence agreement to make the application and the protestors'...