Court of Appeal discusses difficult Human Rights Issue over Squatters’ occupation of Land

Ref. Malik v McGahan and Persons Unknown [2013] EWCA Civ 798

From 1st September 2012, squatting in a residential building became a criminal offence – punishable by jail and / or a fine of up to £5000. Squatting on land or in commercial property, however, remains a civil issue and the Court of Appeal has been asked in this case to assess whether the Human Rights Act 1998 may be used as a barrier to a Landlord regaining possession of his land.

The facts of the case make this all the more difficult. The land in question is located in the village of Sipson, neighbouring Heathrow Airport and precisely in the firing line of a potential third runway. For almost seven years, the land was used for the dumping and storage of motorcars and for fly-tipping; illegal activity which eventually led to convictions. The land was vacated in February 2010 and shortly after occupied by the appellant Mr Joseph McGahan and others – all identifiable as part of the “Grow Heathrow” group.

Turning the land around somewhat, they cleared up the site and created a market garden centre complete with several glass houses. The people of Sipson village have praised them for their actions and it is against this backdrop that the original claimant, in an action in the County Court, has sought to regain possession.

In the County Court, the defendants raised defences to the claim for possession under three broad headings: (i) alleged procedural failings on the part of the claimant; (ii) the grant of an implied licence to remain on the land; and (iii) their enjoyment of the protection of Article 8 of the European Convention alleging that eviction would interfere with their rights and that any such interference would not be proportionate. The first two defences failed and there was no appeal on those grounds taken forward.

Lord Denning, so often the authority on Civil matters, said this in McPhail v Persons, Names Unknown [1973] Ch. 447.

“What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law.”

Matters have become less clear since that statement, with the introduction into British law of the Human Rights Act 1998. The relevant provisions to this case are as follows:

Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

Article 1 of the first Protocol:

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 law and by the general principles of international law.

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.

The question identified by both Her Honour Judge Walden-Smith in the County Court and Sir Alan Ward in the Court of Appeal was whether eviction was a proportionate means of achieving a legitimate aim. Essentially, they both found that an owner is entitled to the return of his property unless some exceptional circumstances militate against it.

Her Honour Judge Walden-Smith accurately encapsulated the argument:

“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 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 they knew precisely what they were doing when entering onto this land, which they had identified before occupation as appearing to be “abandoned”. They knew what they were doing; they knew it was unlawful and they knew there was always the risk that the landlord would move for their immediate eviction.”

The judgement in favour of upholding the order for possession will be well received in those vestiges of British property owners still not protected by criminal law – particularly those who believe the 1998 Act has incorporated an undesirable foreign jurisprudence into our domestic law and will celebrate this small victory of domestic over European.

 

02/08/2013                                                                                                         SRJ/LCB

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