Case No: OUB00913
IN THE CENTRAL LONDON COUNTY COURT
17 July 2012
Before: Her Honour Judge Karen Walden-Smith
Between:
IMRANMALIK Claimant
-and(
1) PERSONS UNKNOWN
(2) I’ADDYREYNOLDS
(3) JENNY MATTHEWS
Defendants
Naomi Winston (instructed by Burch Philips & Co) for the Claimant
Lindsay Johnson (instructed by direct access) for the Second and Third Defendants
Hearing dates: 18 & 19 June 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
Approved Judgment
Her Honour Judge Karen Walden-Smith:
Introduction
I.
This is a claim for possession of land known as land to the north side of Vineries
Close, West Drayton and registered under title number NGL356127 (“the Land”).
2.
The Land was purchased by the Claimant on or about 10 April 2003 and registered on
15 May 2003. The office copy entries for the Land state that the price paid on 10
April 2003 was £240,000. While the plan attached to the office copy entries show
different parcels of land, this case only relates to the southern parcel. Mr Malik is the
freehold registered proprietor of the Land and that is not a point in dispute between
the parties.
3.
It is also not in dispute that the Land has been occupied by the Defendants from the
date that they gained entry on I March 2010 and that the Defendants entered onto the
Land without the permission or consent of the Claimant, and therefore entered onto
the land as trespassers.
4.
I have been greatly assisted by both the oral and written submissions of Miss Winston
on behalf of the Claimant and Mr Johnson on behalf of the Defendants. While Mr
Johnson formally acts on behalf of the Second and Third Defendants, and a number of
the other occupiers of the Land occupying the Land gave evidence before me, no-one
sought to represent the interests of the “persons unknown” in submissions and Mr
Johnson’s submissions for the Second and Third Defendants were adopted by all
those occupying the Land.
5.
The Land falls within the village of Sipson in Middlesex. Sipson is one of the
villages that lies adjacent to the northern perimeter of Heathrow Airport and,
according to the evidence of Mr Paddy Reynolds (the Second Defendant) it has been
blighted by the threat of a future third runway at Heathrow Airport. I am informed
that Sipson was one of a number of villages scheduled for demolition to make way for
the expansion of Heathrow Airport and, even since the hearing of evidence and
submissions in this case, the controversy surrounding the expansion of Heathrow
Airport and the development of a third runway has erupted again into the public
arena.
The Issues
6.
The Claimant seeks possession of the Land on the basis that the Defendants were, and
remain, trespassers on the Land. The Claimant contends that not only did the
Defendants enter the Land without consent, but that they remain on the Land without
the consent or licence of the Claimant.
7.
The Defendants have raised a defence to the claim for possession under three broad
headings:
(i)
alleged procedural failures on the part of the Claimant which failures,
it is submitted on behalf of the Defendants, defeat the claim so that the
Claimant will have to start proceedings for possession again;
Approved Judgment
(ii)
that there was an implied licence granted to the Defendants to remain
on the land and that licence has not been properly terminated;
(iii)
that the Defendants enjoy the protection of Article 8 of the European
Convention and that eviction would interfere with their rights and any
such interference would not be proportionate.
8.
The Defendants further contend that, even if the COUll is against them on those
defences, the COUll must determine what would be a reasonable period to allow the
Defendants to vacate the Land. The Defendants suggest a number of months. The
Claimant contends that if an order for possession is made then the COUll does not have
jurisdiction to extend the normal time for possession orders to take effect.
The Defendants
9.
The occupiers are part of a group collectively known as “Grow Heathrow”.
According to the evidence the Second Defendant, Mr Reynolds, the project is part of a
local community campaign to regenerate the villages surrounding Heathrow Airport
that have been blighted by the threat of a third runway.
10.
Grow Heathrow, otherwise known as Transition Heathrow, have a great deal of
community support -including from local residents and from the local Member of
Parliament, John McDormel1. I will summarise the evidence from both the members
of Grow Heathrow and the local community in the course of this judgment but it is
important to make the general remark at the outset that, whatever might be the
individual and community benefits of the work of Grow Heathrow, this case is
determined upon the legal issues raised.
II.
I found those who were part of the Grow Heathrow movement who gave evidence in
court, mature, intelligent and highly articulate individuals. They have chosen a life
style which they consider to be beneficial to themselves and to the community around
them. The motivation behind their occupation of the Land is set out in the statement
of Christine Taylor, a local resident, where she says “The value ofGrow Heathrow is
more than just material-through its example, it is a call to move beyond systems that
can reduce community life to isolation, toward a (literally) common groundfor those
who collaborate together. To allow such a seminal project to be destroyed would be
a nod to the opportunistic and avaricious individuals/organisations who seek to
demolish environmental values and divide society for financial gain, and an injustice
for all who genuinely seek to take control oftheir surroundings for good. ”
12.
The support given by the local community is epitomised by the contents of the
statement of Tracey Howard. She refers to Grow Heathrow in the following terms:
“Grow Heathrow is what Sipson needs. We have been through so much in the last
few years, and taking away Grow Heathrow will take away the heart ofthe village. I
know that they are all lovely people doing things for other people without wanting
anything in return; living as a community with the people ofSipson. They are now my
Fiends andfamily who make my and my family ‘s lives better just by knowing them. I
need them. The village needs them. The local area needs them. ”
13.
While I fully understand the concerns of the individuals directly involved and the
local community, it is my duty to apply the law to the facts of the case entirely
Approved Judgment
dispassionately. The members of Grow Heathrow took the steps that they did, both in
entering onto the Land and remaining on the Land, knowing what they wanted to
achieve and how they thought they could achieve those aims. They, or at least some
of them, are experienced squatters and knew precisely what they were doing when
entering onto this Land, which they had identified before occupation as appearing to
be “abandoned”.
The Factual History
14.
The Land was purchased by the Claimant on I0 April 2003 and registered at the Land
Registry on 15 May 2003. The Land had been a market garden and then plant
nursery that had closed down. Mr Reynolds provided evidence that he had been
informed by a local historian that greenhouses on the site had been present since
before World War II and that there is an interest by the local preservation society to
preserve the Land as a heritage site.
15.
The Defendants contend that during the ownership of the Claimant, the Land fell into
misuse and the Land, which had previously been fertile, became contaminated particularly
with the spillage of car oils and fuels into the Land. The Claimant’s
evidence on this is that when he purchased the Land in 2003 he planned to build
offices, but was refused planning permission, and was advised by local residents not
to apply for planning permission to build flats in light of the uncertainty of the
development of a third runway at Heathrow Airport. As a consequence the Claimant,
Mr Imran Malik, says he used the Land for the purpose of parking and storing cars, as
he ran a taxi business. He denied running his business from the site, and said he
simply used the site for storing cars.
16.
In early 2007 through to 2008 he rented the Land to a Mr Kaiser Baig, who imported
cars from Japan and stored them on the site, and in 2008 he rented the Land to a Mr
Faisal Asad who had been introduced to him by his brother Rizwan Malik. Mr Imran
Malik, the Claimant, gave evidence that it was Mr Asad who used the Land for the
dumping of cars and that the Land started to be used for fly-tipping during the time of
Mr Asad’ s tenancy. The Land was vacated by Mr Asad (and keys returned via
Rizwan Malik) in mid to late February 2010, a matter of weeks before the Defendants
entered onto the site and, the Claimant says, before he could clear the site. The
Claimant said that he was about to enter into negotiations with a neighbour of his
brother, Ahmed Malik, to run a garden centre as that person was already running a
local garden centre; and that his brother, Irfan Malik, was going to run a boxing club
that they had planned for the site as Irfan Malik was already running a boxing club in
Colnbrook. The Defendants contend that the Claimant’s plans are ill-thought out and
he has failed to take into account the work that would need to be carried out in order
for the Land to be operated as both a garden centre and boxing club. The Claimant
denies that, although accepts that he has not yet applied for planning permission.
17.
Paddy Reynolds gave evidence that he suspected that the Claimant was related to Mr
Asad; that enforcement action with respect to the state of the site was taken by
Hillingdon Council against Imran Malik, as it had become neglected and an open fly
tip; that an enforcement notice to clear the site had not been complied with prior to
their occupation; and that the Land had become a major source of anti-social
behaviour and criminal activity. Mr Malik accepted that enforcement action was
taken against both him and Mr Asad and that he was fined. He asserted that Mr
Approvrd .Judgment
Asad’s use of the site in an illegal manner was without his permission, although he
had either accepted by an admission of guilt, or was found guilty, that he did have
responsibility as owner of the Land. He denied having any familial relationship with
Mr Asad.
Procedural Issues
Service
18.
The Claimant issued its claim for possession on 22 July 20I0, some 4 Y:. months after
the Defendants had entered onto the land as trespassers on I March 20IO.
19.
The Civil Procedure Rules, part 55, provides that in the service of claims against
trespassers, the following steps must be taken pursuant to the provisions of CPR 55.6.
“Where, in a possession claim against trespassers, the claim has been issued against
“persons unknown “, the claimform, particulars ofclaim and any witness statements must be served on those persons by
(a)
(i)
attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part ofthe land so that they are clearly visible; and
(ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to “the occupiers” through the letter box; or
(b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies ofthe claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to “the occupiers”
20.
A certificate of service dated 19 August 20I0 was provided by Stephen Henry Phillips, partner in the firm of Burch Philips & Co, solicitors for the Claimant. That
certificate provided that on 19 August 2010, Mr Phillips had served the claim for possession, the particulars of claim, the defence form, the court address details and the
witness statements of the Claimant, Imran Malik, and Irfan Malik. The certificate of service further set out that he pinned three copies to the outside of the locked premises
and that one copy was given to a lady, who would not identify herself, through a gap in the gates.
21.
In response to an allegation on behalf of the Defendants that the documents had not been served in the prescribed form as a consequence of not being posted through the
letter box, Mr Phillips set out in his statement dated 23 June 2011 that “When I attendedthepremisestoservetheclaimform therewasnoletterboxatall,although I looked vel)1 carefully for one.” Mr Phillips attached to his witness statement a photograph and said that the photograph showed clearly that “three copies of the
claim were atlached 10 the premises in plain sight. ”
22.
In a second statement dated 29 December 20II, Mr Phillips set out that he had
searched for a postbox but that he could not find one. He then went on to exhibit a
further photograph that he had taken at the time and said “J have marked Ihereon with
an arrow what I now believe 10 be the post box. It is nol very clear that it is a posl
box, parlicularly as it is behindtheFontfence. ”
23.
While Mr Phillips did give oral evidence before the cOUl1, in order to deal with issues
about the compiling of the witness evidence from the Claimant and his brothers, the
Defendants had accepted the contents of the two witness statements of Mr Phillips
and had not sought to cross examine him about the contents of those statements. In
the event, there was some cross examination of Mr Phillips with respect to this
evidence but it was of little effect and I accept that Mr Phillips attended the Land,
looked for a post box, could not find one and therefore posted the relevant documents
on to the fence at the locked entrance to the Land. Mr Reynolds’ evidence with
respect to the letter box was that it was in the position indicated on the photograph
exhibited to the second statement of Mr Phillips and that other deliverers of mail and
flyers, including the postman, had located the letter box. Mr Reynolds cannot, of
course, give evidence as to whether there were others who had tried but had been
unable to find the letter box.
24.
I have seen the photograph of the letter box. It is not obviously a letter box. It is
constructed out of two wooden slats, is not marked in any way as being a letter box, it
is behind the wire fence and is (at the time of the photograph) obscured to an extent
by a climbing plant.
25.
The rules provide that the claim form, particulars of claim and any witness statements
“must” be served by attaching copies in a clearly visible location and “if practicable”
through the letter box. A point was initially taken that not all the documents were
served. That point was not advanced any further on behalf of the Defendants and the
provisions of CPR 55.6(a)(i) were undoubtedly satisfied. The issue raised on behalf
of the Defendants is that the Claimant had failed to comply with CPR 55.6(a)(ii) by
not posting through the letter box. The requirements are mandatory, but the posting
through the letter box is tempered by it being “if practicable”. It cannot be
practicable to serve through a letter box if the letter box is not discovered. A
deliberate or wilful avoidance of seeing a letter box might give rise to an argument
that it would have been practicable to serve through the letter box so that there was a
failure of service, but I am satisfied by Mr Phillips’ evidence that there was a search
which did not, at the time, reveal the letter box.
26.
The Defendants responded to the claim and did not suffer any prejudice. While Mr
Reynolds sought to say in his evidence that the failure to serve through the letter box
may well have caused difficulties, his answers to that line of questioning rather
undermined his own credibility. The documents attached to the front fence were clear
to all. The photographs show that to be the case and, indeed, the Defendants had
taken the precaution of posting on the fence a notice setting out the provisions of
section 6 of the Criminal Law Act 1977, no doubt on the basis that it was a prominent
position for all to see.
27.
I am satisfied that the Claimant complied with the provisions relating to service of
documents upon trespassers as set out in CPR 55.6 and there was no procedural
irregularity.
28.
Further, the court has, by virtue of CPR 3.10, a general power to rectify matters where
there has been an error of procedure, such as a failure to comply with a rule or
practice direction so that the error does not invalidate any step taken in the
proceedings unless the court so orders and the court may make an order to remedy the
error. If I am wrong in my primary finding that CPR 55.6 was complied with, so
that there was in fact a procedural irregularity; in exercise of the power created by
CPR 3.10, I order that the attaclunent of the documents to the fence and the handing
of a copy of the documents to an individual within the site was sufficient to comply
with the requirements of CPR 55.6.
Naming ofthe Defendants
29.
The proceedings were issued with the Defendants being “person or persons
unknown”. By an order of District Judge Banks sitting at Uxbridge County Court on
3 February 2011, Paddy Reynolds and Jenny Matthews were joined as additional
defendants. In the defence form dated 30 August 2010, that is 11 days after the
documents were served by Mr Phillips, Jenny Matthews set out the basis of the
defence of there being a licence, but also that Paddy Reynolds (who was then away)
had given his full name in a meeting between himself and Irfan and Rizwan Malik
and that name should have therefore appeared on the pleadings. Jenny Matthews has
not taken any active role in these proceedings in the hearing before me as she has left
the project; although the contents of her statement have been confirmed by Theodora
Middleton, who did give evidence.
30.
There is a conflict of evidence between the Claimant and his brothers and the
Defendants as to whether Paddy Reynolds gave his full name or whether he just
referred to himself as Paddy. There is no contemporaneous documentation including
his name, either as Paddy or as Paddy Reynolds, and it is notable that the email sent to
Mr Malik dated 2 March 2010, to which I will return, is signed off as “The Occupiers
of Berkeley Nursery” even though that was written after the meeting in which Mr
Reynolds said he gave his full name and had been asked to put forward his proposals.
31.
Rizwan Malik’s evidence was that the only person from the occupiers who
volunteered his name was “Paddy” and that he did not give his full name at any time.
Rizwan Malik said that he had gone to the site in the early part of March 2010, with
his brother Irfan Malik who had been to the site the day before, and that at a meeting
which took place in Irfan’s car he spoke to someone who called himself “Paddy” but
who did not give any other name. Rizwan said in cross examination that the meeting
had lasted about 5 minutes, and that all Rizwan had wanted to know was why they
were there and when they were going to leave. He said that interest was expressed by
the occupiers to rent the Land and he said that it was his brother’s place and that they
should email their proposals. That gave rise to the email dated 2 March 2010 signed
off as “The Berkeley Nursery Occupiers”. Rizwan also referred to a telephone call
when he spoke to someone who would only give his name as “Paddy”.
32.
Imran Malik, the claimant, also provided a statement that “Paddy” never gave his full
name, although he accepted in cross-examination that he had not met or spoken to any
of the occupiers of the site and he had not, by the time of the hearing, yet been to the
site. His information with respect to the name was not independent and he was
simply repeating information he had received from one of his brothers.
33.
Irfan also gave evidence that “Paddy” introduced himself, that he never gave his full
name, and that they exchanged phone numbers. Irfan’s evidence was properly
criticised by the Defendants because in his statement he refers to the statement of
Rizwan and confirms its contents, although it was clear from his oral evidence that he
did not in fact know what Rizwan had said. Mr Phillips, the solicitor acting on behalf
of Imran Malik, gave evidence that in compiling the witness statements he had all the
brothers in together and that he had read the statements out, explaining the more
difficult passages, and that Imran Malik translated some bits. He said that he had
trusted one brother to accurately translate for another brother.
34.
Paddy Reynolds evidence was that he cannot recall whether he gave his full name to
begin with but when telephone numbers were exchanged (this appears on the evidence
to have been on 2 March 2010 during the meeting when Rizwan was present) he says
that he would have given his full name and that “I am certain that he knew my full
name “. In the statement that he had made earlier in the proceedings, Mr Reynolds
said in the meeting with Rizwan “I gave him my name as a contact to continue these
discussions “. He does not expressly state that the name he gave was his full name,
although he said in his oral evidence that is what he meant.
35.
I am not satisfied, on the balance of probabilities, that Imran Malik ever knew of the
surname of Paddy Reynolds. Mr Reynolds was certain in his evidence that he did
provide his surname to Rizwan Malik. Rizwan Malik is equally certain that he didn’t.
While there is proper criticism of the way in which Irfan Malik provided a statement
confirming the contents of his brother’s statement, when it was clear from his
evidence that he neither fully knew nor understood what his brother’s statement said:
that criticism does not apply to the statement of Rizwan Malik, which was confirmed
by his oral evidence.
36.
I have been asked to put to one side the fact that the DVD shown to me of the work of
Grow Heathrow at Sipson, which I watched with the sound muted so that further
unchallengeable evidence was not introduced, subtitled all the participants by their
first names alone. I do put that to one side, but it is clear from the limited
documentation available that the names of individuals occupying the Land are not
included on that documentation. From their own evidence, the core of Grow
Heathrow comprise experienced “squatters” who treat squatting as a way of life and
are well versed in their legal rights. It is therefore not a surprise that they do not wish
to highlight their personal identities. If, as he says, Paddy Reynolds did give his full
name I do not think it likely that he would have made a big issue of it.
37.
I do not find it necessary to determine that either Paddy Reynolds or Rizwan Malik
has set out to deliberately mislead the court on this point. What I am satisfied about,
is that even if Rizwan had been informed of the surname of Paddy Reynolds, that
information did not register with him and it was not passed on to Imran Malik.
38.
If I am wrong on that point and the name of Paddy Reynolds was made clear to
Rizwan Malik and then passed on to Imran Malik, or Imran Malik is to be imputed
with the knowledge of his brother, in my judgment the failure to name Paddy
Reynolds when the proceedings were issued does not render the claim defective.
39.
CPR 55.3(4) provides:
“Where, in a possession claim against trespassers [as this claim is], the claimant
doesnotknowthename ofaperson inoccupationorpossession oftheland,the
claim must be brought against “persons unknown” in addition to any named
defendants. ”
The Defendants seek to contend that it was a procedural irregularity in failing to name
Paddy Reynolds together with “persons unknown”. The mandatory requirement is to
name those not known as “persons unknown” and that requirement was complied
with.
40.
The Defendants place reliance upon two authorities, London Borough of Hackney v
Persons Unknown (1992) I0 December QBD, reported in Legal Action, and 9 Orpen
Road, Stoke Newington [1971] 2 QB 143 as support for the contention that the failure
to name Paddy Reynolds makes the claim defective. In London Borough ofHackney
v Persons Unknown, Master Eyre held that the failure to name the known occupants
was not merely a procedural defect that could be cured and in 9 Orpen Road (the case
followed by Master Eyre in London Borough ofHackney), Pennycuick V-C held that
the applicant had not taken reasonable steps to identify the person occupying the land;
the special procedure enabling a person claiming possession to proceed on a summons
not naming the alleged occupant must be strictly complied with; the proceedings were
defective from the start and the summons would be dismissed: “the summons was
issued… without fulfilling the conditions in RSC Ord 113 r 2(2) that the applicant
should have taken reasonable steps to identify the person occupying the land. It is
nihil ad rem that he has subsequently identified the occupants who are, I understand,
a Mr and Mrs Taylor. I am sorry to dismiss the summons on what may be thought to
be a somewhat formal procedural point, but it seems to me that this velY special
procedure enabling a person claiming possession to proceed on a summons not
naming the alleged occupant must be strictly complied with and it would not be right
to waive a defect ofthis kind even ifI hadjurisdiction to do so”
41.
Both the aforementioned cases were determined at a time before the civil procedural
rules were in force when the procedural requirements were different and the person
who claimed possession had an obligation, pursuant to RSC Ord 113, r 2(2) to take
“reasonable steps” to identify every person occupying for the purpose of making him
a defendant. In other words, a positive obligation was placed upon the plaintiff.
There is a significant distinction between what RSC Ord 113 I’ 2(2) required and what
is required by CPR 55.3(4) and I do not consider that the two cases cited to me by the
Defendants support the Defendants’ contention that the failure to name an occupier
gives rise to a procedural defect incapable of remedy under the Civil Procedure Rules.
42.
In Burston Finance Ltd v Wilkins & Persons Unknown [1976] 2 EGLR 117, Oliver J
held that a failure to comply with RSC Ord 113, I’ 2(2) should not result in the
summons being dismissed as that would be unjust and contrary to common sense as
the court should not be astute to aid those who had deliberately broken, and continued
to flout, the law. In Westminster City Council v Chapman & Ors [1975] 2 All ER
1103 it was held that the failure to fix the application for possession on the main door
of the house was a mere irregularity capable of cure (Sir John Pennycuick dissenting
from the judgments of Lord Denning MR and Brown LJ). It was held that the object
of the rule was that the patties got to know of the proceedings and, as they had done,
the irregularity had been cured.
43.
In this matter, the Defendants (including the now named Defendants -Paddy
Reynolds and Jenny Matthews) do not seek to suggest that they did not know of the
proceedings and they did not give any positive evidence to suggest that they had been
prejudiced in any way by not being named on the claim. As I have already
mentioned, save for providing a statement in support, Jenny Matthews has known of
the proceedings but has taken no active role. Paddy Reynolds has taken a very active
role and was the principle witness for the Defendants.
44.
As I have referred to above, CPR 3.10 gives the court a general power to rectify
matters where there has been an error of procedure and if, contrary to my primary
finding, there has been an error, I make an order remedying that error. In any event,
Paddy Reynolds and Jenny Matthews have now been named as the Second and Third
Defendants in addition to “persons unknown” and any defect was cured by them
being added to the claim by way of amendment.
45.
In my judgment, therefore, for the reasons set out, the Defence fails on the two
procedural points raised.
Licence to Occupy
46.
Imran Malik’s case is put simply. He says that he is the freehold owner of the Land,
that the Defendants entered into occupation without his licence or consent and that,
having issued proceedings for possession on 22 July 2010, they have no right to remain.
47.
The Defendants contend that a licence to occupy is to be implied from conversations
with the Claimant’s brothers andlor from their conduct and that, as no notice to quit was
served prior to the proceedings being issued, the claim must fail. The Defendants
contend that the implied licence arose from conversations between themselves and
Rizwan and Irfan Malik, acting with the actual or ostensible authority of their brother
Imran Malik, and from their being allowed to remain on the land and clear “30 tonnes
of detritus” that the Council then collected from the site and that nearly 5 months were
allowed to pass before proceedings were commenced in July 20IO. Mr Keith
Fassenfelt gave evidence that it is disingenuous of Mr Malik to say there is no licence
when he knew of their occupancy, allowed them to clear the site and then initiated
possession proceedings.
48.
The argument that had previously been raised in a skeleton argument, but not pleaded,
that the Claimant was estopped from denying the existence of a licence and further
estopped from terminating that licence, was formally abandoned by Counsel before me.
The estoppel argument was properly not proceeded with as it was not an argument
sustainable in law.
Negotiations/Disc/ISS ions
49.
The Defendants’ case that there is an implied licence to occupy can be summarised as
follows. The Defendants moved onto the Land on I March 20I0 having, they say,
written beforehand but I have not seen such a letter. Within days of moving onto the
Land, Irfan Malik and then Rizwan and Irfan Malik had meetings with some of the
occupiers. In fact the evidence shows that Irfan attended the Land on I March 2010 and
then Irfan and Rizwan attended on 2 March 20IO. Irfan and Rizwan Malik were
informed that the site was occupied and, in an email sent from the “Beverley Nursery
Occupiers” dated 2 March 2010, they were informed that the Land had been “squatted”.
I will turn to that email in due course. The Defendants contend that the Malik
brothers never told them that they had to leave and, on the contrary, Mr Reynolds
contends that Irfan and Rizwan Malik were enquiring how long they wanted to stay.
The Defendants also rely upon the fact that on no steps were taken to evict them until
the issue ofproceedings in July 20IO.
50.
The Malik brothers dispute the account that they never told the Defendants that they
would have to leave. Irfan Malik said that he first met with the Defendants when he
realised that they were on the Land. He said that the occupiers told him they wanted to
stay and he said that he wanted them out. Paddy Reynolds in his evidence, said that
Irfan Malik had not been amicable at the first meeting, knowing people were on the
Land. Mr Reynolds alleged that Irfan said words to the effect that if they were in
Pakistan the matter would be dealt with by men with guns. This allegation is
strenuously denied by Irfan who said that when he told the squatters that he wanted
them out, Paddy had said it will cost you a lot of money as they’d have to take them
through the courts. The second meeting, which included Rizwan as well, took place in
Rizwan’s car outside the Land and Paddy said that the squatters wanted to stay and rent
the Land while both Irfan and Rizwan told them that they wanted them out. Rizwan
said that he would have to talk to his brother and Irfan, like Rizwan, denied saying that
they could stay until they had talked to Imran, After the email dated 2 March 2010,
Rizwan Malik said that he received a phone call and that in that phone call, having by
then spoken to Imran Malik, he told them that his brother did not agree to them renting
and they were told to leave. Irfan said that he visited again with a friend called “Sal” in
about May 20I0 but that at no time did he say they could stay. He said that Paddy
made it clear that they wanted to pay to stay, but that he could not agree to anything as
Imran was the landowner. There was one further meeting on site in June 2010 when
again Irfan said that he was telling the Defendants that they had to go. Paddy Reynolds
denied that they had ever said that they had to go.
51.
Both Rizwan and Irfan were consistent in their evidence that at the meetings they had
with the Defendants, and in the telephone call, they asked the Defendants to leave. The
evidence of Paddy Reynolds was that the Malik brothers were not asking them to leave
the Land but were asking how long they would like to stay. He said that Irfan Malik
visited on several occasions and that “on each visit we would discuss how we were
occupying and living on the site and that we wanted to stay and negotiate with him and
his brother for a permanent arrangement to stay. He made it clear that he acted on
behalfofand with the authority ofhis brother.” Mr Reynolds went on to say that it was
his understanding (and that of Irfan Malik, although it is not clear to me how he could
have know what Irfan Malik’s understanding was) that they were on the Land with his
knowledge and approval while the negotiations were ongoing: he know that and
accepted it.
52.
Mr Reynolds’ evidence was that there were numerous visits from Irfan and that Irfan
regularly asked the Defendants how long they were going to stay and that he made it
clear that they were staying there while they had discussions about a permanent
arrangement.
53.
Imran Malik accepted he has never met with Mr Reynolds or the other Defendants and I
accept that Irfan and Rizwan were acting with his authority in their discussions with Mr
Reynolds and the other Defendants.
54.
Mr Reynolds’ account as to the content of the discussions is an entirely different
account to that oflrfan and Rizwan Malik. This is one area of the evidence in which I
was assisted by contemporaneous documentation in the form of the email dated 2
March20I0senttothe Rizwan Malikfrom”the Occupiers oftheBerkeleyNursery”. It
is worth considering that email in some detail.
55.
The evidence establishes that there had only been one earlier meeting between Mr
Reynolds and the Defendants and Irfan Malik. That was the meeting on I March 20I0
when they first entered onto the site and at that meeting Mr Reynolds accepted that
Irfan Malik was “not welcoming”. On that basis, Mr Reynolds could not have
considered that there was consent for the Defendant to stay on the land at that time.
56.
The email was sent after the meeting on site with Rizwan and Irfan Malik. Contrary
to what MI’ Reynolds sought to contend, the email does not support there being an
implied agreement that they could stay. In fact, what is written in that email, and Mr
Reynolds accepted that he either drafted the email 01′ was involved in its drafting, shows
that the Defendants were trying to obtain such an agreement and none had been reached
by then. In the email, the “Occupiers of Berkeley Nursery” set out as follows:
“It was good to meet you and your brother today. We hope that we can come to an
agreement with regards to the property at Berkeley Nursery on Vineries Close in
Sipson. As you suggested, to help this process we are writing to you to let you know
our intentions for the land. ”
The email then sets out that the Land was chosen as it appeared to have been
abandoned, what the plans for the Land were to renovate and rejuvenate it to its
former state as a market garden, for the benefit of the local community and that it was
part of a wider project called “Grow Heathrow”. The email further sets out the aims
of the project and says “This explains why we’re here and why we’ve squatted your
property. ” The email then sets out a number of bullet points as to why the
Defendants say their occupation is beneficial, including the support from the local
community, the clearance of rubbish, that they are caretaking the land and that “Our
presence and activities here as part ofthe wider campaign against the third runway
will help to stop the runway which is good for your plans for the property.” The
email then continues as follows:
“If we were caretakers of your property then we could agree a legal contract that
would allow for us to move out should you or afuture owner, be ready to build on or
usethesite. Ineffectwewouldbepayingapeppercornrenttoyou fortheuse ofthe
site. This would [beJfinancially advantageous to you. The other option is that you
could take us to court and go through the expensive and lengthy process of flying to
get us convicted (stc.) , In order to do this the registered owner would have to
convince thejudge that the land was being usedfor something legitimate andprovide
evidence of this and ownership status. After this you would still have [to pay to maintain the property and all associated taxes. This would not be jinancially
beneficial for you in our opinion. We hope that this helps to layout some of the
options for you and we lookforward to discussing this with you further.” The writer
or writers of the email clearly do not consider themselves to have any right to occupy
the land at the time of writing that email. Despite Mr Reynolds best attempts in his
evidence to say that the email was simply an attempt to reach a formal legal
agreement with the owner when an informal agreement already existed, in my
judgment this email was written with the obvious intention of securing an agreement
to their remaining on the Land, pointing out what they considered to be the benefits of
their occupation and what they suggested to be the negative consequences of not
agreeing to their remaining on the Land.
57.
The Defendants did not seek to suggest that the meetings in May and in June altered the
situation. The Defendants contended that the Maliks had agreed that they could remain
on the land, pending a formal agreement, but that argument is not supported by the
evidence, in particular the email dated 2 March 20 IO. The discussions between the
Defendants and the Maliks, which discussions were not, in my judgment, either lengthy
or detailed, amounted to no more than an exploration as to whether the landlord
Claimant and the Defendants could reach a mutually acceptable arrangement.
Negotiations as to the terms on which the Defendants could remain on the land, even if
those negotiations took place, is not sufficient to create a licence: VG Fraulo & Co Ltd
v Papa [1993] 2 EGLR 99. Negotiations are just that. They do not in themselves give
rise to a licence I find that there is no licence to occupy to be implied from the
discussions between the Maliks and the Defendants.
Acquiescence
58.
As an alternative, the Defendants contend that there was an implied licence to remain
on the Land on the basis that Imran Malik, through his brothers, was aware that the
Defendants were on the land and the Defendants’ plans for the site and allowed them to
remain on the land and carry out works to the land without taking steps to evict them
until July 2010.
59.
That argument appears to be an argument in estoppel by another name and Counsel for
the Defendants had already, quite properly, abandoned the estoppel argument as not
being one that could be argued as a matter of law as I will deal with further below.
Work carried out to land by a trespasser, with the knowledge of the landowner, does not
(without more) give rise to a licence. A trespasser carries out work to his land at his
own risk. The Defendants have benefited from their occupation and clearance of the
Land in that they have enjoyed rent-free occupation since March 2010.
60.
Reliance has been placed by the Defendants upon the House of Lords decision in R
(Beresford) v Sunderland CC [2004] I AC 889, and the statement of principle from
Lord Bingham that HI can see no objection in principle to the implication ofa licence
where the facts warrant such an implication. To deny this possibility would, I think, be
unduly old-fashioned, formalistic and restrictive” (para 5). But the Beresford case was
dealing with the very particular issue as to whether a piece of Land ought to be
registered as a town or village green under the provisions of section 13(b) of the
Commons Registration Act 1965 on the basis that the land had been used “as of right”
for more than 20 years for the purposes of section 22(1) of the 1965 Act for more than
20 years. The application to register was refused by the local authority on the ground
that the land had not been used “as of right” but by way of implied licence. The House
of Lords held that while a landowner might, by overt conduct, show that use of its land
was pursuant to its permission so as to amount to an implied grant of a revocable
licence thereby precluding the “as of right” claim, the acts of cutting the grass and
providing seating by the local authority did not evidence an implied licence by the local
authority for local inhabitants to use the piece of land. The decision to refuse the
application to register the land as a town green was therefore quashed.
61.
The situation in this case is entirely different from the Beresford case which was
dealing with a particular statutory provision for the registration of village and town
greens. . The implication of a licence was said (in the lower courts) to arise from the
provision of minor services on the land by the landowner. That was rejected by the
House of Lords as not being indicative of the grant of a revocable licence. In this
matter, Grow Heathrow contend that a licence should be implied by reason of the
discussions that they contend were taking place and by reason of the work carried out
by Grow Heathrow on the land before proceedings were taken by Imran Malik
62.
As I have said above, the argument on behalf of the Defendants appears to be an
argument of estoppel by another name and estoppel is not arguable as, in order for there
to be a proprietary estoppel there needs to be an unequivocal representation; that the
Defendants relied upon; and that was to their detriment: Thorner v Major [2009] I
WLR 776 In this matter, there was no representation and the Defendants have not acted
to their detriment -they have enjoyed rent-free living for, now, more than 2 years.
63.
The Defendants also have relied upon both Latham v R Johnson & Nephew Ltd [1913] I
KB 398 and Lowery v Walker [1910] I KB 173, but these (now century-old) cases are
no more than examples of the situation where a landowner implied consents to others
entering onto his property for lawful purpose: for example a shopkeeper allowing
shoppers into his premises by way of implied licence; or a homeowner allowing visitors
(including strangers) to come up his garden path to knock on the door. These cases are
not support for the proposition that a landowner impliedly grants a licence to a
trespasser, which licence must be terminated by notice, if that trespasser comes onto his
land for the trespasser’s own benefit. No landowner impliedly consents to another
entering onto his own land to make whatever use that trespasser wishes to of that land
by simply standing back and doing nothing.
64.
Reliance upon Canadian Pacific Railway Company v The King [1931] AC 414, PC is
also of no assistance to the Defendants. In that case it was held that the erection of
poles, carrying telegraph wires, which had been erected on the roadway of a Canadian
Government railway without consent did not remain a trespass after “many years’
acquiescence” (16 or more) combined with a claim to the payment of rent. The facts of
that case are far from similar to the facts of this case and the case lends no support to
the Defendants’ position.
65.
For the reasons set out above, the Defendants also fail upon their arguments that they
enjoy an implied licence to occupy the Land that they entered as squatters. No notice to
quit was served upon the Defendants and none was needed. They had no implied
licence to occupy.
Article 8
66.
The further defence raised by the Defendants is that eviction from the land would be
incompatible with the right to respect for the home, guaranteed by Article 8 of the
European Convention on Human Rights (“the Convention”). This is the most
potentially far reaching of the three lines of defence raised in this case.
67.
Article 8 of the Convention provides as follows:
1.
Everyone has the right to respect for his private and family life, his home and
his correspondence.
2.
There shall be no interference by a public authority with the exercise of this
right except such as in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.
68.
Mr Johnson, on behalf of the Second and Third Defendants, contends that the court, as a
public authority, should not act incompatibly with Convention principles and that just
because the parties before the court are private individuals this does not preclude the
court from consideration of Convention principles. In that submission, he relies upon
sections 3 and 6 of the Human Rights Act 1998 which provide:
“3(1)
So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with the
Convention rights
6(1)
1t is unlawful for a public authority to act in a way which is incompatible with
a Convention right
6(3)
1n this section “public authority” includes
(a) a court or tribunal. ”
69.
Both the European Court of Human Rights and the domestic Supreme Court have
considered the application of Article 8 to possession proceedings.
70.
In Mccann v UK (2008) 47 EHRR 40, the ECHR made the following observations:
“The Court has noted on a number of occasions that whether a property is to be
classified as a “home” is a question offact and does not depend on the lawfulness of
the occupation under domestic law. 1n the present case … the local authority house
… continued to be his “home” within the meaning ofArt 8(1), despite thefact that the
service by the wife ofnotice to quit he had no right under domestic law to continue in occupation.”
“The loss of one’s home is a most extreme form of interference with the right to
respectforthehome. Anypersonatrisk ofaninterference ofthismagnitudeshould
in principle be able to have the proportionality of the measure determined by an
independent tribunal in the light of the relevant principles under Art.8 of the
Convention, notwithstanding that, under domestic law, his right of occupation has
come to an end.”
71.
In this matter, the Defendants entered into occupation without the licence or consent of
the Claimant, the registered freehold owner of the land, and the Defendants therefore
entered the land as trespassers. For the reasons I have already given, no licence was
either expressly granted to the Defendants nor is one to be inferred from what happened
between the parties. The Defendants therefore remain as trespassers on the land. The
fact that the Defendants are trespassers does not affect the decision as to whether the
Defendants, or any of them, occupy the Land as their home.
72.
Paddy Reynolds gave evidence that he lives on the site, having previously lived in a
rented house, and May MacKeith’s evidence was that a number of people live on the
Land 24 hours a day in order to protect the site. Keith Fassenfelt gave evidence that he
has lived on the Land as his home for the past 2 years and that if evicted then he would
be homeless. Mr Fassenfelt has an inoperable brain tumour and says that “Grow
Heathrow provides me both with a home and a way to escape my illness and gain a
sense of direction…Grow Heathrow is my home. It is more than where I live, it is
where I have friends, work, a purpose and a direction. ” Theodore Middleton gave
evidence that she moved onto the site at Sipson full-time in March 2011 and that since
then it has been her sole residence. Christine Taylor, a local resident, gave evidence
that soon after March 2010 it was obvious from the pavement outside the site that
people were now living on the Land and she referred to personal tents and other living
quarters. Charlotte Blake set out in her statement that included in the structures on the
site are sleeping huts in which several of the occupiers live. Tracy Howard stated that
“It is obvious to anyone who passes the site that it is occupied permanently … ”
73.
While it may be that no planning permission would be granted for the Land to be used
for residential occupation, the evidence establishes that Land is used as a home for
some of the Defendants.
74.
The Supreme Court has, so far, shied away from reaching a determination as to whether
Article 8 applies to private as well as public landlords.
75.
In Manchester City Council v Pinnock [2010] UKSC 45, with nine Justices of the
Supreme Court sitting, Lord Neuberger, giving the judgment of the Supreme Court,
stated that it was a well established proposition in the jurisprudence of the EurCt HR
that:
“Anyperson at risk ofbeingdispossessed ofhishomeat thesuit ofalocalauthority
should in principle have the right to raise the question of the proportionality of the
measure, and to have it determined by an independent tribunal in the light ofarticle
8, even if his right of occupation under domestic law has come to an end” (para.
45(a)) so that “… ifour law is to be compatible with article 8, where a court is asked to make an
orderforpossession ofa person ‘0’ home at the suit ofa local authority, the court must
have the power to assess the proportionality ofmaking the order, and, in making that
assessment to resolve any relevant dispute offact. (para. 49)
We emphasise that this conclusion relates to possession proceedings brought by local
authorities …nothing which we say is intended to bear on cases where the person
seeking the order for possession is a private landowner. Conflicting views have been
expressed both domestically and in Strasbourg on that situation … in Belchivkova v
Russia (App no 2408106, 25 March 2010) … the EurCtHR (First Section) seems to
have considered that article 8 was relevant, even when the person seeking possession
was a private sector landowner. Presumably, this was on the basis that the court
making the order was itseif a public authority. But it is not clear that whether the
point was in contention … No doubt in such cases article 1 ofthe First Protocol to the
Convention will have a part to play, but it is preferable for this Court to express no
view on the issue until it arises and has to be determined. ” (para. 50).
76.
The issue as to whether Article 8 can apply to a private landlord has arisen in this case
and has to be determined.
77.
In my judgment, as the court is a public authority and the Land is being occupied as a
home, Article 8 is capable of application even though the landowner is a private
individual and the occupiers are trespassers.
78.
In the Amended Defence, the issue was raised as to whether the Claimant’s right to
possession is incompatible with the Article 8 rights so that a declaration of
incompatibility under section 4 of the Human Rights Act 1998 would need to be made
by the High Court. This point does not in fact arise. The right to possession against
trespassers is a common law right and declarations of incompatibility are only made in
relation to legislation. This submission therefore does not have any foundation in law
and, if I understood him correctly, Mr Johnson did not seek to advance that point any
further in submissions.
79.
The real issue is whether Article 8 in fact affords any additional protection to the
Defendants in the circumstances of this case, the question being “whether the eviction
is a proportionate means of achieving a legitimate aim” per Lord Neuberger at
paragraph 52 of Pinnock.
80.
Mr Malik, as a private landowner, has a right of autonomy over his own Land and
himself enjoys the protection of Article I of the Convention which provides:
I.
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by the law and by the
general principles of international law.
2.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property
in accordance with the general interest or to secure the payment of taxes or
other contributions or penalties.”
81.
In my judgment, it will be a highly exceptional case where the protected rights of a
private landowner under Article I could be interfered with by reason of the Defendants’
Article 8 rights where, as in this case, the Defendants are trespassers. The Defendants
come onto the Land without the licence or consent of the Claimant and they remained
on the land as trespassers. Mr Malik is entitled to the peaceful enjoyment of his Land.
That is a legitimate right protected by Article I of the Convention but also by virtue of
the limiting words of Article 8(2) of the Convention that the respect to the home is not
to be interfered with by a public authority (the Court) “except such as in accordance
with the law and is necessary in a democratic society in the interests of … the economic
well-being ofthe country … orfortheprotection oftherights andfreedoms ofothers”.
82.
Consequently, while Article 8 does apply in principle to cases involving a private
landowner and a trespasser, it is difficult to envisage a circumstance where it would
have any consequence and the eviction would not be found to be is a proportionate
means of achieving a legitimate aim.
83.
The Defendants seek to contend that it is not proportionate to grant an order for
possession against them for a number of reasons. The first pleaded is that they have
made the Land their home and have invested time and energy in clearing the Land. The
fact that the Defendants have made the Land their home is a qualifying requirement for
Article 8 to apply. Mr Malik has no duty to house the Defendants, he is a private
landowner, and they chose to enter onto the Land without any rights and to carry out
work on that Land. Recovery of the Land from trespassers, even if work has been
carried out to that Land, is proportionate. The alternative would be to allow land to be
taken and used by those who had no rights in the land who would then prohibit the
lawful owner from recovery of his own land.
84.
The other matters relied upon by the Defendants distil down to their contention that
their use of the land has significantly greater social advantages than the use the
Claimant was putting the Land to, or the use he intends to put the Land to. In
particular, the Defendants have put forward compelling evidence that the local
community are extremely keen for them to stay, and I referred to some of that evidence
above; they have the support oftheir local MP; they have reduced anti-social behaviour,
fly-tipping, and car thefts. Imran Malik has put forward a case that he intends to use
the Land for the purposes of a plant nursery himself and to set up a boxing club run by
Irfan Malik. The evidence given by lrfan Malik is that he already runs a boxing club in
Slough. The Defendants dispute that the Claimant does in fact wish to use the Land in
such ways and, in any event, the evidence from both the Defendants and the local
community is that they consider the occupation of the Defendants to be a great asset to
the community. Mr Reynolds refers to the sense of community with a spread of ages
from 8 to 80; the bike workshop and art workshops on the Land; and the various
community events. I accept that is most likely to be the case that the local community
do consider “Grow Heathrow” on the Land as a great asset.
85.
As I have already noted, I was impressed by the Defendants and the manner in which
they conducted themselves and it is undoubtedly the case that they are acting in the
manner that they do with the best of motives, they would contend entirely altruistic
ones. That may be so, but Mr Malik is the legal owner of this Land which has been
deliberately occupied by the Defendants, knowing they had no right to enter. Mr Malik
is not to be denied his ownership or right to occupy his own Land because others find
his use of that Land to be less acceptable than the use made of the Land by the
trespassing Defendants. For a private landowner to have to establish that the
possession order is justified because his own use of his own Land is as useful and
attractive to the local community and society at large as the use of that Land by the
current occupier against whom he has a right to possession, particularly where that
occupier is a trespasser, runs entirely contrary to the principle of private ownership of
Land. If Mr Malik is deprived of his right to possession of the Land, then he is
deprived of an asset for which he paid a substantial six figure sum and is deprived of
the right to use it and make a profit from it.
86.
The Defendants called as one of their witnesses, Mr Keith Fassenfelt, who I have
referred to above. He lives on the Land as his home and he has an inoperable brain
tumour. The tumour is shutting down the left side of his body and he has no time line
for the process, he hopes to live for a couple more years. He says that Grow Heathrow
gives him a home, an escape from his illness and a direction. I have no doubt that is
correct but there is nothing in his evidence and no medical evidence in support that
suggests that an order for possession, which would be against him as well as other
persons unknown, would be disproportionate and contrary to his Article 8 rights.
87.
Mr Reynolds gave evidence that he would need to return to seeking state benefits if he
were to have an order for possession made against as the Land provides him with a
subsistence living. Again, the fact that Mr Reynolds may decided to “squat” in an
unused property, and he considers squatting to be a full-time occupation which he says
would keep him out of employment, does not make an order for possession against him
as a trespasser on privately owned land disproportionate for the purposes of Article 8.
88.
Consequently, while Article 8 can apply to private landlords; it does not in the
circumstances of this matter make an order for possession disproportionate or require
the court to stay the order for possession for a period of time to give effect to any
Article 8 rights.
Housing Act 1980
89.
The Defendants have referred to section 89 of the Housing Act 1980 and contend that if
an order for possession is to be made it should not be made to take effect before 6
weeks from the date of the order. Section 89 of the 1980 Act does not apply to
trespassers and the court has no jurisdiction to extend time for possession as a result of
“exceptional hardship” with respect to trespassers or unless the Defendants successfully
seek a stay.
Conclusion
90.
For the reasons set out in detail herein, the defences raised on behalf of the Defendants
in this all matter fail and an order for possession will be made. I will hear further
argument from Counsel with respect to any consequential orders upon the handing
down of this judgment.
