Unlawful entry – University campus – Possession proceedings – Claimant school seeking possession of building following forced entry by student defendants – Defendants claiming breach of right to freedoms of expression and association with others – Whether claimant entitled to immediate possession order covering entire campus – Application granted
The claimant school operated from a campus leased from the University of London for a term of 98 years from 12 May 1993. The permitted user of the premises was any of the uses permitted by paras (c) or (d) of Class D1 of the Town and Country Planning (Use Classes) Order 1987; the relevant use class was education.
The lease contained a covenant against nuisance, including anything “which may be or become a nuisance or which may cause damage, annoyance, inconvenience or disturbance to the landlord or the owners, tenants or occupiers of the adjoining property, or which may be injurious to the value, tone, amenity or character of the demised premises”. It also contained a covenant not to use any part of the premises for residential use and an alienation provision that the claimant should not part with possession or share the occupation of the demised premises. Since the claimant’s campus was private land, only persons with the licence or consent of the claimant were able to enter the premises. Students had permission to access the campus for educational purposes.
The claimant applied for a possession order against persons unknown, including the defendant students, who had occupied one of the principal buildings on the campus to protest against the coalition government’s spending plans for higher education. The claimant argued that it was seeking to exercise its property rights to occupy its own premises and to prevent unlawful trespassing. The defendants were trespassers because they had no implicit right or licence to occupy the building to the exclusion of the claimant nor to sleep there or control access.
The defendants argued that Articles 10 (freedom of expression) and 11 (freedom of peaceful assembly and of association with others) of the European Convention on Human Rights had been infringed.
Held: The application was granted.
Although the freedom of expression was an important consideration, it was also important to have regard to property rights under Article 1 of Protocol 1 of the Convention. Article 10 did not provide a general freedom to exercise the right to freedom of expression on private land. It was allowed only in exceptional circumstances where the court considered that the inability to exercise that right on private land would prevent any expression of that right. It was equally fanciful to suggest that Article 11 required the court to override the claimant’s property rights: Appleby v United Kingdom (2003) 37 EHRR 38 considered.
The proposition that the law required the property rights of the claimant to be overridden in their own building was unarguable. The court was not persuaded that there was any defence that offered a realistic prospect of success and it would be wrong to adjourn the proceedings to allow the defendants to seek other grounds of defence. The claimant was the leasehold owner and had a right to immediate possession. The defendants were entitled to use the property in accordance with their contracts but those rights did not extend to a sit-in that excluded the claimant’s rights of occupation.
Accordingly, the claimant was entitled to a possession order. It was a common-sense proposition to regard the campus as a single piece of property and to apply the possession order to the entire property rather than to part of it. An interim possession order would be granted over the entire campus: University of Essex v Djemal [1980] 1 WLR 1301 and Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [009] 1 WLR 2780 applied.
Katharine Holland QC and Katie Helmore (instructed by Martineau Solicitors) appeared for the claimant; Alexis Slatter (instructed by Imran Khan & Partners) appeared for the defendants.
Eileen O’Grady, barrister
