R(Trower) v Elmbridge Borough Council [2025] EWHC 314 (Admin)

On 19 February 2024, the Council made a public spaces protection order (PSPO) under section 59 of the Anti-social Behaviour, Crime and Police Act 2014 to restrict the ability of boat users to moor boats within certain defined areas of the banks of the River Thames that passed through the borough. Contravening a PSPO is a criminal offence.

Marcus Trower describes himself as ‘an itinerant boat dweller’ and he travels with his young son whom he home educates. He took an appeal against the Council and was successful on one of the grounds of challenge. Accordingly the PSPO was quashed.

The PSPO needed to be read in conjunction with the Council’s Environmental Enforcement Policies (EEPs). Tim Smith, sitting as a deputy high court judge, examined the interaction between the  SPO and the EEP.

128. A comparison between the wording of the Order and the wording of the relevant part of the EEP is revealing.

129. The dispensation in the Order for carrying out what would otherwise be a prohibited activity when the Environment Agency has issued river warnings states as follows: “UNLESS – The  Environment Agency’s Guidance on River Thames: current river conditions for the area between Molesey Lock to Teddington Lock has issued a Red or Yellow Warning Board, which advises, depending on the warning issued, that users of powered and/or unpowered boats, either not to navigate, or to find a safe mooring”

130. As I have noted already, the section of river which these words cover – Molesey Lock to Teddington Lock – is a section downstream from the restricted areas.

131. Compare this with the wording of the EEP (August 2024 version) which states as follows: “The proposed PSPO prohibits mooring without consent for longer than 24 hours in the ordinary  course of navigation with no return to that same open space, within 72 hours within the different named listed areas. For the avoidance of doubt, a boat may return to a different, named area within the Restricted Areas in the same 72 hour period, provided it does not return to the same named area in that period.  UNLESS – the Guidance on River Thames: current river conditions advise boats either not to navigate, or to find a safe mooring (on Yellow boards unpowered craft should not navigate, this might include some houseboats without engines, and on Red boards no  craft should navigate). This would apply to all reaches within the Borough boundaries and adjacent reaches up to Bell Weir. 

In these cases, the PSPO would not be enforced before river conditions return to no stream warnings” (my emphasis)

132. The highlighted passage describes a larger section of the River Thames than the Order does. Bell Weir, for example, is upstream of all the restricted areas. Thus the EEP describes something which the NBTA [ National Bargee Travellers Association who made submissions in the case] says should be a wider exception to the definition of prohibited activity in the Order but which is not.

133. The misalignment between the EEP and the Order is clear. Whilst the EEP can assist in the interpretation of the Order where there are passages which may be unclear, it cannot change what the Order clearly says. That would be to relegate the terms of the Order to being subordinate to the EEP. That is clearly not the intent of the legislation.

134. There is therefore a clear distinction in my mind between (on the one hand) using the EEP to help interpret what the Order means and (on the other hand) using it to enlarge what the Order actually says. The Order is specific in defining the parts of the river for which an in-force Environment Agency river warning suspends what would otherwise be a prohibited mooring. Those parts of the river are all downstream of the restricted areas.  Warnings confined to upstream areas do not suspend the control over prohibited moorings.

135. Put at its highest for the Council we are left, therefore, with the possibility of an activity which could be prosecuted under the Order but which the Council has said it would not prosecute for.

136. The “would not” assurance, in my view, is insufficient to bring the Order within the scope of the statutory criteria. I say this for three reasons: a) The primary source for any affected user to ascertain what is lawful is the Order itself. Regulations require the publication of the Order. They do not extend to requiring publication of the EEP. To require an affected user to alter its understanding of the clear terms of the Order by reference to a separate document whose existence it may not even be aware of defeats the purpose of the statutory safeguards requiring publication, b) There is a difference between the two scenarios – “could not” and “would not” – regarding how a prosecution could be defended when upstream warnings are in place. If the existence of upstream warnings is provided for as an exception to the prohibition in the Order itself – as downstream warnings are – then any prosecuted river user has a copper-bottomed defence to the prosecution. No offence has been committed. But as things stand a river user prosecuted when an upstream warning is in place would have to rely instead on the assurance given in the EEP that he “would” not be prosecuted. Whilst a court may well be sympathetic to a defendant faced with a prosecution in these circumstances, and whilst a defence founded on (for example) breach of a legitimate expectation may yet prevail, all of that is less certain than a defence resting solely on the words of the Order itself; and c) Recognition of the limitation to prohibited activities “without lawful excuse”  in the Order does not rescue it, in my view. The fact that there is specific reference to river warnings downstream of the restricted areas would, in all likelihood, persuade a court that the omission of comparable upstream warnings was deliberate and that they were not intended as an exception to prohibition

137. If some may consider that my conclusion produces an unfair outcome then it must be remembered that the Council could at any time have suspended its consideration of the draft Order to insert wording specifically about upstream warnings, in the same way it has done about downstream warnings. Why it did not do this is unclear to me.

138. What is clear is that on this point the evolving terms of the EEP appear to be a tacit acceptance of what the Order should have said but does not. The EEP attempts to rescue the Order by including a commitment not to prosecute when downstream or upstream warnings are in place. But in my judgement the EEP cannot have the effect which the Council contends, because that would be to amend what is otherwise the clear wording of the Order.

139. It is irrational for the Order not to include a relaxation of the prohibition when upstream river warnings are in place. For this reason I conclude that the Order is unlawful.

It is thought that this is the first time that a PSPO has been successfully challenged.