Waterways PSPO Legal Objections


Public Space Protection Orders are governed by Chapter 12 of the Antisocial Behaviour, Crime and Policing Act, 2014 (link to legislation, link to guidance)

Antisocial Behaviour is defined as:

  • Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,
  • Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
  • Conduct capable of causing housing-related nuisance or annoyance to any person.

Power to make orders for Public Space Protection Orders are given in Chapter 2:

  • A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.
  • The first condition is that—
    • 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.
  • The second condition is that the effect, or likely effect, of the activities—
    • is, or is likely to be, of a persistent or continuing nature,
    • is, or is likely to be, such as to make the activities unreasonable, and
    • justifies the restrictions imposed by the notice.

Oxford City Council’s Proposed Waterways PSPO does not meet these conditions!!!

Objections to the scope of the PSPO

  • The statutory test that must be met is that an activity in a public space has a ‘detrimental effect on the quality of life of those in the locality’. The act of mooring in and of itself seems unlikely to pass this test, particularly in cases where the landowner is a corporate body, and therefore incapable of emotional distress. This is the case in much of the area covered by the proposed PSPO. Legislation makes clear that the prohibited activity must be detrimental.
  • The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order…
    • If the prohibition on mooring is targeted at mooring, the act of mooring must in itself be detrimental.  The alternative approach would be to ban mooring as a “reasonable” way to prevent some other detrimental activity. But if that is the case, surely it follows that the order must state what that activity is? Otherwise, how to judge whether mooring provisions are a reasonable way to prevent it. At any rate it is a rather roundabout and cumbersome way to address unwanted behaviour, that disadvantages all boaters trying to navigate the waterways, as is their right.
  • Much of the proposed PSPO area is already covered by primary legislation and case law. (See ultra vires objections below.)
  • Many of the PSPO provisions lack robust supporting evidence, and rely instead on such vague notions as the council being satisfied “on reasonable grounds” that the activities are, or are likely to be, “of a persistent or continuing nature”.
  • For example: the supporting evidence pertaining to unauthorised mooring does not relate directly to mooring, but rather to other alleged nuisances perpetrated by those who also happened to be moored in a location the council doesn’t like, with one exception:
    • one comment from a visiting boater who couldn’t moor his boat where he wanted – but it’s hard to see how the PSPO would address this – and the fact that mooring on Port Meadow is not currently prohibited (but nothing in the evidence makes the case that the example given is detrimental to quality of life).
  • None of the evidence supports the proposed boundaries of the PSPO. This would appear to fall foul of the legislation.
    • The only prohibitions or requirements that may be imposed are ones that are reasonable to impose… Is it reasonable to impose a PSPO regarding mooring on an extended geographical area in order to target only one or two restricted localities within that area?
    • Based on responses to questions asked of the Council Executive Board, it is clear that the council intends to argue that the boundaries of the PSPO are necessary to prevent “dispersal” – that is, the possibility that activities (specifically mooring) would relocate to the edge of the PSPO area. Even if this argument were to be accepted, the geographical scope still appears excessive.
    • If the same argument is used for other restrictions in the PSPO (eg dog walking, suspicion of carrying alcohol, noise, smoke), then the restricted activity could be carried out legally (and have the exact same effect on the locality) simply by relocating just a few paces away from the edge of the waterway.
  • Much of the behaviour targeted by the PSPO is not anti-social behaviour as defined.
  • The wording of the PSPO implies that prior permission must be obtained from the landowner prior to mooring (even in the absence of signage restricting or prohibiting mooring).
    • This is contradicted by their response to a public question, in which the Council replied that “the application of this prohibition will be in response to the withdrawal of consent by the land owner or managing agent, either through relevant signage or the land owner informing the council”.
  • The wording relating to mooring is vague, referring to “land owner or managing authority”. It is not clear under what circumstances the provision refers to a landowner, and under which it refers to a managing authority.  Managing authority is also undefined.

Procedural Objections to the PSPO

  • Evidence presented in support of the PSPO is erratic and inconclusive. For example,
    • It seems likely that much of the supporting evidence regarding smoke is generated by a single complainant.
    • There is very little evidence relating to dogs.
    • Almost all evidence related to alcohol is confined to a small area.
    • There is very little evidence relating to Wolvercote or Godstow.
    • There is no evidence at all relating to the River Cherwell.
    • Evidence contains copyrighted images used without permission.
    • Evidence contains direct references identifying the homes of otherwise innocent individuals.
  • Scrutiny Committee recommendations for revision and community engagement have been disregarded.
  • Oxford City Council has disregarded statutory guidance on the 2014 Crime and Policing Act:
    •  OCC presents no evidence that they have consulted with Thames Valley Police.
    •  OCC presents no evidence that they have consulted with Oxfordshire Highways.
    •  OCC presents no evidence that they have consulted with community representatives.
    •  OCC has not consulted interested parties, in particular itinerant boaters.

Ultra Vires Objections

Oxford Council has no authority to circumvent primary legislation and would be acting ultra vires in seeking to do so, specifically:

  • JURISDICTION OF THE CANAL & RIVER TRUST –  s.17(3)(c)(ii) British Waterways Act 1995.
  • JURISDICTION OF THE ENVIRONMENT AGENCY – s.79 Thames Conservancy Act 1932
  • RIPARIAN OWNERSHIP – Case law: in relation to land owned by a riparian (notwithstanding s.79 TCA 32) a navigator is entitled by virtue of the Public Right of Navigation to moor ancillary to navigation.

Human Rights Objections

  • RESPECT FOR HOME – The PSPO Draft in no way embraces the implications of Art 8 European Convention on Human Rights. There is no evidence of a compliance review.
  • EQUALITY – The Equality Impact Assessment considers that the PSPO Draft will not have a differential impact on race, age or pregnancy.
  • The proposed PSPO would disproportionately affect residents of the waterways.
  • Art 8 ECHR, noting that “respect for home” includes the right to keep warm and thus light a fire in one’s wood burner.
  • Art 8 ECHR, noting that “respect for home” includes the right to generate electricity.