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Proportionate Trespassing: Manchester Ship Canal Developments Ltd and Peel Investments Ltd v Persons Unknown

The Court has recently held that Article 8 of the European Convention on Human Rights is capable of being engaged in possession claims brought by private landowners against trespassers.

In Manchester Ship Canal Developments Ltd (1) Peel Investments Ltd (2) v Persons Unknown & 6 ors [2014] EWHC 645, the claimants (M and P) sought a possession order against defendant protesters in respect of land comprising a single-track road and grass verges. The road, which was surrounded by farmland, provided access to farm properties, an aerodrome and various businesses. M and P owned the land adjacent to the road and were allowing an energy company to carry out exploratory drilling in order to discover whether there were hydrocarbons beneath the land that could be exploited by "fracking".

In November 2013, the defendants, who included a number of "persons unknown", set up a protest camp against the fracking process close to the road and along its verges, obstructing the road on a number of occasions. Some of the defendants resisted the subsequent claim for possession, and submitted that (amongst other things) a possession order would be a disproportionate interference with their rights under the European Convention on Human Rights 1950 articles 8, 10 and 11.

Article 8 provides that everyone has the right to respect for his private and family life, and his home. Article 10 provides for freedom of expression, and article 11 is freedom of peaceful assembly. The Court initially held that articles 10 and 11 of the Convention did not even arguably provide the protesters with a defence to the possession claim. The land was owned privately, and to permit the protesters to occupy it would be a plain breach of domestic law and an interference with M and P's rights as landowners. The defendants' continued presence was also a source of interference with other legitimate users of the road. The protest had been escalating since November 2013, and its duration was a relevant consideration. Finally, there was nothing to stop the defendants from carrying out their protest elsewhere.

However, Judge Pelling QC considered that article 8 could be engaged in relation to land owned by a private landowner and may apply in certain exceptional circumstances.

The court held that anyone relying on article 8 as a defence to possession proceedings would have to establish that the land was a "home", applying the Convention test applicable to that concept. Once the threshold had been passed, the only obvious justification for treating a trespasser on land owned by a local authority any differently than a trespasser on privately owned land was that the latter's article 8 rights would have to be balanced against the private landowner's Protocol 1 article 1 rights. That could be dealt with by treating the fact that the land was owned privately as the primary factor in deciding whether possession was proportionate. It would only be in exceptional cases that the landowner's rights would be trumped by the trespasser's article 8 rights. In this case, the protesters had not made out an arguable case that they had established a home on the land. Even if they had, there was nothing to make a possession order disproportionate.

Although the protesters were unsuccessful in this instance, aspects of this case can be likened to the 2010 case of Manchester City Council v Pinnock and the later 2011 case of Hounslow LBC v Powell, whereby a proportionality test based on the right to a home, private and family life was incorporated into the decision making procedure involved in possession proceedings. This case can be distinguished, however, as the landowner is a private landowner rather than a local authority or public body.

Whilst it is clear it would only be in exceptional cases that a trespasser's Article 8 rights would trump the private landowner's rights (including those under Protocol 1 Article 1), this is a potentially significant widening of the jurisprudence in this area, with potential relevance in landlord and tenant claims.