Supreme Court limits public nuisance on private land

McCafferty: Supreme Court clarifies the limits of public nuisance on private land

The Supreme Court’s decision in the McCafferty case [2026] UKSC 20 is an important development for landowners, occupiers and businesses facing protest, or other trespass, activity.

The judgment provides significant, and potentially surprising, clarification on the scope of the statutory offence of public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (PCSCA). It highlights the need for careful consideration of the legal response to trespass and disruption on private land.

What happened in McCafferty?

The case arose from protests outside Müller UK’s dairy works at the Stonebridge Cross Industrial Estate. Protesters obstructed access to the site by chaining themselves to fencing and attaching themselves to the road surface outside the entrance. For several hours, no vehicles could enter or leave the site.

The protesters were charged with intentionally or recklessly causing a public nuisance under section 78(1)(b)(ii) PCSCA. The prosecution relied on the second limb of the offence, namely that the defendants had obstructed the public or a section of the public in the exercise or enjoyment of a right capable of being exercised by the public at large.

At trial, the Crown Court ruled there was no case to answer because the alleged obstruction concerned access to private premises via a private road. The Court of Appeal overturned that decision. The matter was then appealed to the Supreme Court.

What did the Supreme Court decide?

The key issue before the Supreme Court was one of interest and importance to anyone owning or occupying private businesses premises.

The question was whether people travelling to private business premises, such as employees, customers and suppliers, were exercising a “right that may be exercised or enjoyed by the public at large” when approaching, entering or leaving those premises.

Allowing the protesters’ appeal, the Supreme Court unanimously decided that people travelling to private business premises were not exercising a public right.

The protesters in McCafferty were not, therefore, guilty of causing a public nuisance.

The implications of the case are potentially very wide-ranging.

In reaching its decision, the Supreme Court emphasised the distinction between a legal right (such as a public right of way) and a licence or permission granted by a landowner to enter private land.

The Müller site was private property and the access road, Pointon Way, was also a private road. The public at large therefore had no legal right to use the road or access the site. Employees, customers and suppliers were able to do so only because they had permission (albeit implied and tantamount to unrestricted) from the occupiers of the premises. That permission did not amount to a public right for the purposes of section 78(1)(b)(ii).

Importantly, the Supreme Court rejected the proposition that land or facilities made available to the public generally give rise to a relevant public right. The fact that access is permitted does not mean that a legal right exists. It’s this aspect of the judgment which means that an action against trespassers in public nuisance may not be available in respect of a variety of land types/uses which may previously have been widely presumed (such as factories, industrial parks, retail parks, office complexes, and the like).

What are the practical implications for landowners and businesses?

Businesses operating from industrial estates, logistics hubs, manufacturing sites, energy facilities and other private developments, including retail and office parks, should note the Supreme Court’s confirmation that a private road over which permission is generally/impliedly granted remains fundamentally different from a highway. The fact that a road is routinely used by visitors, employees or suppliers doesn’t mean it’s a place where the public enjoy legal rights giving rise to the potential for a public nuisance action.

Consequently, organisations affected by protest and other trespass activity need to carefully consider and formulate their response. They may need to place greater reliance on private law remedies, property rights and injunctions, than on public nuisance offences.

Please see our earlier articles [1] for information and advice on some of the most effective private law responses to protest, trespass and nuisance risk.

How we can help

Following McCafferty, organisations with privately owned operational sites should review their response arrangements to ensure that, if disruption occurs, the most effective civil and criminal remedies are identified and deployed quickly. The decision provides welcome clarity on the scope of public nuisance, but it also underlines the continuing importance of proactive planning and robust responsive strategies.

Success in responding to protest, trespass, nuisance and site disruption depends on both identifying the correct legal route from the outset, and managing the process effectively on the ground.

Our Commercial Dispute Resolution team regularly advises on trespass, nuisance and protest actions involving possession and injunction proceedings, including newcomer injunctions against persons unknown. The team also works with clients to establish and implement trespass incident protocols and staff training. Our specialists also advise on related matters, such as site boundary and access issues, allocation of responsibilities relating to waste and land management and wider risk issues relating to trespass and disruption.

Please contact Nick McQueen to discuss.

[1] Protestors and newcomer injunctions – Walker Morris; Managing trespass, fly-tipping and nuisance risk – Walker Morris; Nuisance, negligence and neighbouring land – Walker Morris