Boyland and Son Ltd v Rand

A court making a possession order against a trespasser has no power to postpone possession unless the claimant agrees. Section 89 of the Housing Act 1980 restricts the exercise of an existing power to postpone possession; it does not create such a power.

Occupation of the land as a home does not produce a different result under article 8 of the European Convention on Human Rights. The court retains an inherent power to stay execution in connection with an appeal, but that appellate power does not confer a general jurisdiction to allow a trespasser time to vacate.

The respondent landowner obtained a forthwith possession order against the applicant, one of several travellers who had occupied its Dorset site as trespassers. A district judge dismissed her application to suspend the warrant. His Honour Judge Meston QC then dismissed her appeal but stayed execution while she sought permission for a second appeal.

On the renewed application for permission to appeal, the applicant argued that section 89 of the Housing Act 1980, or alternatively article 8 of the European Convention on Human Rights where land was occupied as a home, empowered the court to allow a trespasser time to vacate. The central issue was whether either provision had altered the established rule that the court possessed no such power without the landowner's agreement.

1. The renewed application for permission to appeal was refused and the stay of execution was lifted. The established law remained that a court making a possession order against a trespasser could not allow time to vacate unless the claimant agreed. McPhail v Persons Unknown [1973] Ch 447 remained good law, and its application in county court proceedings had been confirmed by Swordheath Properties Ltd v Floydd and others [1978] 1 All Law England Report 721.

2. Section 89 of the Housing Act 1980 did not confer a new jurisdiction. Its heading, statutory context and negative language showed that it curtailed the period for which possession could be postponed where a power to postpone already existed. It did not grant trespassers rights which they had not previously possessed. None of the exceptions in section 89(2) applied.

3. Bibby v Partap [1996] 1 WLR 931 concerned the court's inherent jurisdiction to stay execution in connection with an appeal. It did not challenge the rule governing the making or postponement of a possession order against a trespasser.

4. The conclusion was supported by the majority speeches in Kay v Lambeth London Borough Council [2006] 2 WLR 570, which proceeded on the basis that McPhail remained good law. Although Lord Bingham's minority speech gave some support to an article 8 challenge where a trespasser occupied land as a home, the four majority members took the contrary view. Article 8 therefore did not supply the asserted power.

5. Hackney London Borough Council v Side-by-Side (Kids) Ltd [2003] EWHC 1813 did not assist the applicant because the position of a person who had always been a trespasser was not raised there. Neuberger LJ nevertheless approved its rejection of the conclusion in Bain v The Church Commissioners [1989] 1 WLR 24 that section 89 did not apply to the High Court. Ward LJ agreed.

1. Court of Appeal (Civil Division): The renewed application for permission to bring a second appeal was refused and the stay of execution was lifted: [2006] EWCA Civ 1860.

2. Poole County Court, Circuit Judge: His Honour Judge Meston QC dismissed the appeal from the district judge and granted a temporary stay pending an application for permission to appeal.

3. Poole County Court, District Judge: District Judge Winetroub dismissed the application to suspend the warrant, granted permission to appeal and suspended execution in the meantime.

4. Poole County Court: A forthwith possession order was made against the trespassers.