Trespass – Claim for possession – Possession order made with immediate effect – Article 8 of European Convention on Human Rights – Whether permissible to extend time for compliance with possession order in case of trespass on privately-owned land – Whether Article 8 applying to such a case – Whether possession order proportionate – Appeal dismissed
The respondent owned land in Sipson, Middlesex, a village that lay just to the north of Heathrow airport and was scheduled for demolition in the event that proposals for a third runway at the airport went ahead. The appellants were members of the “Grow Heathrow” group, which campaigned for the regeneration of the villages blighted by the threat of the third runway and had considerable support in the local community. During the respondent’s ownership of the land, it had been used for dumping cars and fly tipping; the appellants cleared it, restored its former use as a market garden and took up residence there.
In July 2010, the respondent brought a claim for possession of the land against the appellants as trespassers. The appellants contended that eviction would contravene their right to respect for their home under Article 8 of the European Convention on Human Rights.
The possession claim was allowed in the county court: see [2012] PLSCS 179. The judge held, consistently with McPhail v Persons unknown [1973] Ch 447, that the possession order took effect immediately and that, in a trespass case, she had no jurisdiction to extend the time for compliance. Although she held that Article 8 could apply to private landlords, she considered that it did not afford any additional protection to the appellants, or render the possession order disproportionate, in the circumstances of the case. In that regard, she held that the respondent, as a private landowner, himself had a right to the peaceful enjoyment of his possessions by virtue of Article 1 of the First Protocol to the Convention and that interference with that right on the grounds of the Article 8 rights of trespassers could not be justified save in highly exceptional cases. She held that the respondent could not be denied his ownership of or right to occupy his own land simply because the local community considered his use of the land to be less acceptable than the appellants’ use.
The appellants appealed. They contended that McPhail was no longer good law in light of recent developments in the law relating to Article 8. The respondent did not challenge the county court judge’s conclusion that Article 8 was applicable but sought to uphold her decision that the possession order was proportionate.
Held: The appeal was dismissed.
The county court judge had reached her decision on proportionality in a proper and principled manner and had been entitled to conclude that the possession order was proportionate in the circumstances of the case.
Per Toulson LJ and Lloyd LJ: The question of whether McPhail remained good law was inextricably connected with the question of whether Article 8 extended to such a case. Since the argument on appeal had proceeded on the unchallenged basis that Article 8 was applicable, it was not appropriate for the appeal court to decide whether the county court judge had been correct about the potential availability of Article 8 as a defence to the claim. A decision on a point that was not in issue on the appeal would be of only persuasive authority and, in any event, should not be made without a fuller consideration of the case law on Article 8 and the potential implications. It would be a considerable expansion of the law to hold that Article 8 imposed a positive obligation in the state, through the courts, to prevent or delay a private citizen from recovering possession of land that belonged to him and had been unlawfully occupied by another. There was a weighty argument that such an interference with a private owner’s right to possession of his property would be contrary to a long-standing principle of the common law that was echoed in Article 1 of the First Protocol to the Convention. Accordingly, it was not appropriate to hold that McPhail had ceased to represent the law in cases of trespass to privately owned land. It was better to reserve the court’s opinion until a case came before it in which the applicability of Article 8 was in issue.
Per Sir Alan Ward: McPhail could no longer be regarded as good law in light of recent developments in the law relating to Article 8. Where squatters had established a home on the land, the rule that the court had no jurisdiction to extend time to a trespasser could no longer stand; proportionality might demand, albeit most exceptionally, that a trespasser be given some time before being required to vacate.
Jan Luba QC and Lindsay Johnson (instructed by Hodge Jones & Allen LLP) appeared for the second appellant; Naomi Winston (instructed by Burch Phillips & Co, of West Drayton) appeared for the respondent.
Sally Dobson, barrister
