Elmbridge, Runnymede and Spelthorne Councils have carried out a consultation (ended 31 July 2019) about boat dwellers who do not have a licence or who overstay time on temporary moorings. One of the proposals is to bring into force a Public Spaces Protection Order banning such boat dwellers from the area of the boroughs. You can find the consultation details here: http://mygov.elmbridge.gov.uk/documents/s24122/Unauthorised%20moorings.pdf For CLP’s response to this consultation – click read more.
RESPONSE OF COMMUNITY LAW PARTNERSHIP TO ELMBRIDGE, SPELTHORNE AND RUNNYMEDE BOROUGH COUNCILS’ UNAUTHORISED MOORINGS STAKEHOLDER CONSULTATION 2019
The Community Law Partnership (CLP) is an award winning, progressive firm of solicitors specialising in the law relating to Housing and Public Law. Amongst other things, we provide advice and assistance to boat dwellers throughout England and Wales. We took the leading case of Jones v Canal & River Trust  EWCA Civ 135.
Obviously, nobody condones anti-social behaviour (ASB) but it is not the case that mooring without a licence amounts to ASB in itself. Additionally there are sufficient methods already of enforcing against ASB. There is a grave danger that and blanket order will catch innocent people who are not guilty of any ASB.
The Law relating to Public Spaces Protection Orders (PSPOs)
It may be useful to look at the details of the law here since the Council’s consultation paper makes no real attempt to do so. A PSPO is an order issued by a local authority which is designed to tackle activities carried on in a public place which have a detrimental effect on the quality of life of those in its locality and which prohibits specified things being done in a restricted area or requires specified things to be done by persons carrying on specified activities in that area, or does both of those things.
The power to make PSPOs is contained within the Anti-Social Behaviour, Crime and Policing Act (ASBCPA) 2014. Section 59 states:
Power to make Orders
(1) A local authority may make a Public Spaces Protection Order if satisfied on reasonable grounds that two conditions are met.
(2) The first condition is that:
a) Activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or it is likely that activities will be carried on in a public place within that area and that they will have such an effect.
(3) The second condition is that the effect, or likely effect, of the activities –
a) Is, or is likely to be, of a persistent or continuing nature
b) Is, or is likely to be, such as to make the activities unreasonable, and,
c) Justifies the restrictions imposed by the Notice.
(4) A Public Spaces Protection Order is an Order that identifies the public place referred to in sub-section (2) (“the restricted area”) and
a) Prohibits specified things being done in the restricted area
b) Requires specified things to be done by persons carrying on specified activities in that area, or
c) Does both of those things.
(5) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order –
a) To prevent the detrimental effect referred to in sub-section (2) from continuing, occurring or recurring, or
b) To reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.
(6) A Prohibition or requirement may be framed –
a) So as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories;
b) So as to apply at all times, or only at specified times, or at all times except those specified;
c) So as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.
A PSPO can last for up to 3 years, can be extended under certain circumstances and its term can be extended more than once (ASBCPA 2014 Section 60).
These are, therefore, very draconian powers and it is essential that the conditions contained in this section are satisfied and that evidence is put forward to justify any PSPO.
A flawed consultation
It is suggested that this consultation itself is flawed and thus challengeable. It is also unclear that sufficient time has been given for people to respond to this consultation.
The principles of lawful consultation
The principles of lawful consultation in respect of public law decision making have been established in case law over many years. The starting point is whether a duty of consultation arises. In the present matter the power to make a PSPO is given by the Anti-Social Behaviour Crime and Policing Act (ASBCPA) 2014 s59 (see above). Section 72 deals with ‘Convention rights, consultation, publicity and notification’. This provides as follows:
(3) A local authority must carry out the necessary consultation and the necessary publicity, and the necessary notification (if any), before –
(a) making a public spaces protection order,
(4) In subsection (3) –
“the necessary consultation” means consulting with –
(a) The chief of Police, and a local policing body, for the police area that includes the restricted area;
(b) Whatever community representatives the local authority thinks it
appropriate to consult;
(c) The owner or occupier of the land within the restricted area;
“the necessary publicity” means –
(a) In the case of a proposed order or variation, publishing the text of it.
It is an established principle of public law that, in circumstances where consultation is deemed to be appropriate by a decision maker, such consultation must be carried out lawfully and in accordance with established public law principles. In short, if consultation is to be done it must be done properly.
The principles of lawful consultation have been restated many times by the courts (see, for example, the Supreme Court case of R(Moseley) –v- London Borough of Haringey  UKSC 56) These are:
1. that consultation must be done at a time when proposals are still at a formative stage;
2. that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
3. that adequate time must be given for consideration and response;
4. that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.
These principles have been explained in many different forms of guidance and in the case of Best Value Local Authorities are given statutory force. The Local Government and Public Involvement in Health Act 2007 s138 inserts a new section (Section 3A) into the Local Government Act 1999. This states, materially:
3A Involvement of Local Representatives
(1) Where a best value authority considers it appropriate for representatives of local persons (or of local persons of a particular description) to be involved in the exercise of any of its functions by being –
(a) Provided with information about the exercise of the function,
(b) Consulted about the exercise of the function, or
(c) Involved in another way,
It must take such steps as it considers appropriate to secure that such representatives are involved in the exercise of the function in that way. …
(5) In deciding how to fulfil its duties under subsection (1), an authority must have regard to any guidance issued by the Secretary of State.
As to the guidance issued by the Secretary of State this was originally contained in the 2008 Code of Practice on Consultation (“the Code”) which was subsequently replaced by a set of consultation principles issued by the Cabinet Office. The most recent of these are the Consultation Principles 2018 (“the Consultation Principles”). These state, among other things:
C. Consultations should be informative
Give enough information to ensure that those consulted understand the issues and can give informed responses. Include validated impact assessments of the costs and benefits of the options being considered where possible; this might be required where proposals have an impact on the business or the voluntary sector.
E. Consultations should last for a proportionate amount of time
Judge the length of the consultation on the basis of legal advice and taking into account the nature and impact of the proposal. Consulting for too long will unnecessarily delay policy development. Consulting too quickly will not give enough time for consideration and will reduce the quality of responses.
F. Consultations should be targeted
Consider the full range of people, business and voluntary bodies affected by the policy, and whether representative groups exist. Consider targeting specific groups if appropriate. Ensure that they are aware of the consultation and can access it. Consider how to tailor consultation to the needs and preferences of particular groups, such as older people, younger people or people with disabilities that may not respond to traditional consultation methods.
G. Consultations should take account of the groups being consulted
Consult stakeholders in a way that suits them. Charities may need more time to respond than businesses, for example. When the consultation spans all or part of a holiday period, consider how this may affect consultation and take appropriate mitigating action, such as prior discussion with key interested parties or extension of the consultation deadline beyond the holiday period.
Adequate time must be given for consideration and response
It is apparent that the duration this consultation is too short and is not in accordance with good practice. The consequence of an unreasonably short consultation period is that it disenfranchises those whose views ought to be taken into account. This is the case here and it is relevant to the comments we make below about the Councils’ other failures in this regard
The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response
In this regard the consultation proposal is wholly inadequate. The evidence provided is paltry and, indeed, virtually non-existent.
The following complaints are mentioned:
(i) Mooring without consent (74). There is no explanation of how mooring without consent might cause, per se, ASB.
(ii) Rubbish left by boats (15). No further detail is provided. What is this rubbish? How much of it? What is the evidence that the rubbish was left by a boat dweller? What steps have the Council taken to ensure that there is a proper refuse collection service for boat dwellers?
(iii) Health and safety (9). There is absolutely no explanation of what this means at all.
(iv) Navigation of the river (8). Once again there is absolutely no explanation of what this is about at all.
(v) Pollution (9). Once again, absolutely no detail at all.
There is reference to 20 incidents from the Surrey Police and it is said that these incidents ‘include anti-social behaviour, burglary and altercations between boat users and local residents’. However once again there is no detail about these alleged incidents.
It is stated:
(i) ‘In 2018 Runnymede issued…a warning letter to approximately 20 vessels. Runnymede has three persistent over staying moorers…’ Overstaying is not an example of ASB. There is no evidence of ASB here.
(ii) ‘Complaint have been received from individual park users…The complaints have been general in nature and relate mainly to the loss of amenity…’ Loss of visual amenity is not an example of ASB. There is no evidence of ASB here. It is also rather ridiculous to suggest that a boat moored to a bank affects visual amenity at all in itself.
It is stated:
(i) ‘Spelthorne has noted an increase in boats overstaying at moorings…’ As we say above, overstaying is not an example of ASB.
(ii) Two boats were accused of ‘fly-tipping, littering, using a chemical toilet in full view of any passing public.’ Basing a PSPO on two alleged incidents would clearly be unreasonable and disproportionate.
In Moseley, the Supreme Court held that:
Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme (Para 39).
The ASBCP Act 2014 ASB Powers: Statutory Guidance for Frontline Professionals
• This is a useful reference point by which to gauge the proposed draft order.
• PSPOs are dealt with at pages 47 to 57.
• Protecting the vulnerable:
• Consideration should be given to how the use of this power might impact on the most vulnerable members of society.
• Consideration should also be given to any risks associated with displacement, including to where people may be dispersed to.
• There is no evidence that the Councils have considered how the use of this power might impact on the most vulnerable members of society. It will criminalise them with the consequence of subjecting them to financial penalties that either they will not be able to afford to pay or that will subject them to serious financial hardship. There is no evidence that the Councils have considered the issue of displacement at all.
• The terms are expected to be focused, proportionate and necessary.
• The legal tests focus on the impact that ASB is having on victims and communities. A PSPO can be made by the Councils if they are satisfied on reasonable grounds that the activity or behaviour concerned, carried out, or likely to be carried out, in a public space:
• has had, or is likely to have, a detrimental effect on the quality of life of those in the locality;
• is, or is likely to be, persistent or continuing in nature;
• is, or is likely to be, unreasonable; and
• justifies the restrictions imposed.
The paltry evidence provided fails to show a detrimental effect on quality of life.
It is not shown that any behaviour is likely to be persistent or continuing or is unreasonable.
Indeed it seems that this proposed PSPO is mainly targeted at those boat dwellers who do not have a licence. This may be through no fault of their own and, in any event, is not by itself an instance of ASB.
No account has been taken of the right to respect for private, family life and home under Article 8 of the Human Rights Act 1998. This is not even referred to.
Nor is it clear that this consultation has been properly targeted to boat dwellers. What steps have been taken to ensure that this community are consulted?
What is required is an increase in permanent moorings and temporary moorings and longer time periods for temporary moorings to assist boat dwellers who are homeless in terms of the Housing Act 1996 s175(2)(b).
It appears that the Councils have failed to carry out an assessment of boat dwellers needs as required under Housing and Planning Act 2016 s124. Such an assessment should now be carried out before any further action is taken.
This is a flawed consultation and should be withdrawn. In any event it is not at all clear that current legal powers for dealing with ASB are not sufficient in any event.
Community Law Partnership
24 July 2019