Guerilla gardening in unlawfully occupied property did not give rise to Article 8 rights
8 July 2013
Malik v Fassenfelt and others  EWCA Civ 798 – read judgment
A common law rule that the court had no jurisdiction to extend time to a trespasser could no longer stand against the Article 8 requirement that a trespasser be given some time before being required to vacate:
The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect?
This was the question before the Court of Appeal in a challenge to a possession order requiring the removal of squatters from private land.
Although there is now some doubt as to whether the leading authority on landowners’ rights against squatters is still good law, Article 8 still does not entitle a trespasser to stay on the land for ever. At its highest it does no more than give the trespasser an entitlement to more time to arrange his affairs and move out.
The appellants, members of the anti-third runway pressure group “Grow Heathrow” had entered Mr Imran Malik’s land without permission and established a home there. Mr Malik subsequently applied for possession of the land. The judge held that as the court was a public authority and the land was being occupied as a home, Article 8 was capable of application, even though Mr Malik was a private individual taking action against trespassers. Consequently, she held that the real issue was whether Article 8 afforded any additional protection to the squatters in the circumstances of the case. The question was whether their eviction was a proportionate means of achieving a legitimate aim. She stated that it was difficult to envisage circumstances where the eviction of trespassers would not be found to be a proportionate means of achieving a legitimate aim, and concluded that it was appropriate to order possession.
This was no ordinary squatter versus landowner story. The property in question, which was blighted by the threat of Heathrow’s third runway, had been sublet by the respondent and unlawfully used as a car dump and fly tipping site. The squatters, whom the first instance judge described as “mature, intelligent and highly articulate individuals”, had cleared the land which had become contaminated with spillage of car oils and fuels, restoring it to its former attractiveness as a market garden centre with a range of glass houses which in time became their dwelling places and their homes. They had won the praise of and support from the people of the neighbouring Sipson village. Nonetheless, as the judge found, they, or at least some of them, were “experienced squatters and knew precisely what they were doing when entering onto this land”.
The leading authority on claims for possession brought against squatters who had broken into empty houses and started to live in them is McPhail v Persons, Names Unknown  Ch. 447. In that case Lord Denning said that homelessness was no defence in the case of illegal occupation. The owner was entitled to go to the court and obtain an order that the owner “do recover” the land, and to issue a writ of possession immediately. McPhail has been good law for the past forty years.
But after 2 October 2000, when the European Convention on Human Rights and Freedoms was introduced into UK law, the right to respect for the home began to trouble the higher courts in a number of cases. In London Borough of Harrow v Qazi  the House of Lords considered that in these situations Article 8 was engaged but in general there would be no lack of respect and no infringement of Article 8 where an order was made in favour a person entitled to possession under domestic property law. Kay v Lambeth Borough Council  subsequently confirmed that the local authority in each case had an unqualified right to possession and that therefore the defendants had no rights under domestic law to remain on the land. Since domestic law had struck the balance correctly under Article 8(2), there was no need to carry out the proportionality exercise every time. It would only be in highly exceptional circumstances that Article 8 could avail illegal occupiers:
The rule in McPhail v Persons, Names Unknown  Ch 447 must … be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite.
The feeling was that there was no warrant in Strasbourg case law for undermining the McPhail rule; successful claims in these circumstances under Article 8 are few and far between.
In this appeal, the squatters submitted that in the light of legal developments in the area of trespass, it was time to acknowledge, as the Supreme Court had in Manchester City Council v Pinnock  UKSC 6,  2 A.C. 104 and Hounslow LBC v Powell  2 A.C. 186, that the rule in McPhail that there was no discretion to suspend a possession order against squatters had to be relaxed in order to comply with Article 8.
Sir Alan Ward concluded that McPhail can no longer be regarded as good law, but dismissed the appeal on the basis that the possession order was a proportionate interference with the appellants’ Article 8 rights.
Lord Toulson (with Lloyd LJ) reserved his position on the issue of whether McPhail had ceased to represent the law in cases of trespass to privately owned land. It would be a “considerable expansion of the law” to hold that Article 8 imposes a positive obligation on the state, through the courts, to prevent or delay a private citizen from recovering possession of land belonging to him which has been unlawfully occupied by another.
There would also be a weighty argument that for the state to interfere in that way with a private owner’s right to possession of his property would be contrary to a long standing principle of the common law.
Reasoning behind the judgment
It was rightly common ground that the appellants had established a home on the land because of a “sufficient and continuous link with a specific place”, and they were therefore entitled to protection under Article 8(1). (Per Sir Alan Ward) Even if Article 8 had no direct application between a private landowner and the trespassers on his land, the court as a public authority was obliged by section 6 of the Human Rights Act 1998 to act compatibly with that right. It had to consider whether the making of a possession order was proportionate, and whether the occupiers’ eviction was a proportionate means of achieving a legitimate aim.
Section 89 of the Housing Act 1980 did not prevent the making of a possession order forthwith: it merely placed a limit on possession being delayed beyond 14 days after the making of the order, save in cases of exceptional hardship. Accordingly, the test was whether eviction was a proportionate means of achieving a legitimate aim. The fact that the landowner had a legal right to possession was a very strong factor in support of proportionality: it spoke for itself and needed no further explanation or justification. Thus, even if squatters had established a home on land where they otherwise had no legal right to remain, it was difficult to imagine exceptional circumstances which would give them an unlimited and unconditional right to remain.
The judge below had approached the question correctly. Having found that Article 8 was engaged, she correctly identified the issue as to whether eviction was a proportionate means of achieving a legitimate aim. There was nothing wrong with approaching this question on the basis that an owner was entitled to the return of his property unless some exceptional circumstances militated against it. The judge was fully alive to the fact that the appellants were “good” squatters, and was obviously impressed by them and to that extent sympathetic. She took into account the fact that they had made their homes on the land and had invested time and energy in clearing the land. She held that recovery of the land from trespassers, even if work has been carried out to that land, was proportionate because the alternative would be to allow the land to be taken and used by those who had no right in the land who would then prohibit the lawful owner from recovering his own land.
So she was perfectly entitled to conclude that the benefits to the local community arising from the appellants’ occupation were not enough to preclude the landowner seeking to vindicate his ownership rights to the immediate return of his property. If and in so far as she was relying on McPhail for the assertion that the court had no jurisdiction to extend time for possession, she was wrong, but that error had no material effect upon her judgment.
The McPhail rule has not been conclusively been laid to rest. This is because Mr Malik did not choose to challenge in his appeal the judge’s conclusion that Article 8 was engaged as between a private landowner and squatters because of the position of the court as a public authority. As Lloyd LJ said, it would have been an interesting question on which the Court of Appeal would have received “valuable” submissions. Quoting from Gardner and Mackenzie, he notes the degree of frustration at the uncertainty around the reach of the ECHR into private disputes:
To this extent, we are still waiting to learn the horizontal reach of the ECHR into the domestic understanding of land law. It is once again disappointing that one should be reduced to awaiting a judicial announcement as to the state of the law in this way, rather than having a reasonable opportunity to deduce it, and so converse with the judges about it, oneself. (Introduction to Land Law (3rd ed.), Hart Publishing 2012, at Chapter 2.)
Permission to appeal to the Supreme Court was refused, despite the differences in reasoning between the judges. The case did not raise an issue of sufficient general importance to justify giving permission to appeal.