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’ actions, in deliberately preventing access, constituted an actionable wrong.

The Court’s Decision

The judge agreed, subject to the questions of whether the protestors’ rights to freedom of expression and freedom of assembly under the European Convention of Human Rights had been engaged and, if so, whether they should be restricted.

The judge found that both rights had been engaged by virtue of the overwhelming evidence of the protestors seeking to express their views on the development within Leyton Marsh. In assessing whether those rights should be restricted, the Judge considered the proportionality of the order sought and, in particular, recent guidance from The Mayor Commonalty and Citizens of London v Samede (2012) relating to the protest at St Paul’s Churchyard. In that case, the Court recognised that such decisions would be largely dependent on the individual facts of a case, including “the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protestors occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the lands, and the rights of any member of the public.”

The judge held that the order sought by the ODA was wholly proportionate since it did not seek to evict the protestors or prevent them from continuing with their camp or displaying their banners, but simply to prevent the unlawful obstruction of access to the site.

The injunction was, however, only effective for two weeks. At the expiry of that period, the ODA made a further application for the continuation of the injunction on the basis that the situation was, if anything, worse. Deliveries had been obstructed by protestors lying in front of and under vehicles, contractors continued to be subjected to abuse and several arrests had been made. The ODA was therefore increasingly concerned about meeting the handover deadlines, and their escalating costs. The judge held that the protestors’ environmental concerns were legitimate matters of concern, but saw no reason why the protests could not continue without obstructing the ODA’s access. In the circumstances, the injunction was continued until a trial could be heard or, if earlier, October 2012 when the licence expires and the ODA is obliged to reinstate the land.

Commercial Implications

The ODA stressed the potential financial losses it would suffer because of the delay caused by the protestors. The question of who bears the risk for any delay and / or disruption caused by protestors will very much depend on the terms of the parties’ contract regarding force majeure events.

Under the JCT standard form of contract, civil commotion is listed as a relevant event, entitling a contractor to an extension of time, but not any compensation. FIDIC lists a riot, commotion or disorder as an example of an event that will excuse a party from performance of their obligations, so long as the event is (broadly speaking) exceptional and the relevant notice has been issued. In certain circumstances, a contractor will not only be entitled to an extension of time, but also costs. For the force majeure provisions to come into play under an NEC 3 form of contract, a protest would require to be (i) unpreventable and (ii) so unlikely to occur that a reasonable contractor would not have allowed for it. If the protest then either prevents completion or prevents completion on time, the project manager will be entitled to issue instructions and the contractor will be entitled to compensation for the associated time and cost of dealing with the instruction.

It is worth bearing in mind that force majeure provisions are sometimes interpreted narrowly and are often accompanied by strict notice provisions.

Conclusion

The case offers useful guidance on a contractor’s rights where access to a construction site has been blocked by protestors. However, it is worth noting that had the protestors occupied the site, rather than just the access route and adjacent land, the ODA would have been able to exercise additional rights, including an order for possession against trespassers (as discussed in Manchester Airport Plc v Dutton, 1999), and the ODA (or its agents) would have been entitled to exercise reasonable force to evict the protesters.

References: Olympic Delivery Authority v Persons Unknown [2012] EWHC 1012 (Ch) and Olympic Delivery Authority v Persons Unknown [2012] EWHC 1114 (Ch)