Manchester Ship Canal Developments Ld & Anor v Persons Unknown & Ors

In a possession claim against trespassers occupying privately owned land, Articles 10 and 11 do not ordinarily provide an arguable defence where the protest can continue elsewhere or by other means. The relevant question is whether eviction would prevent any effective exercise of freedom of expression or destroy its essence. Private ownership, breach of domestic law, interference with other users, duration of the occupation and available alternative means are material factors.

Article 8 may be engaged by a trespasser claiming the occupied land as a home, even where the claimant is a private landowner. The claimant must first establish sufficient and continuous links with the land. Even then, postponement of possession will arise only in sufficiently exceptional circumstances.

The claimants sought possession of land comprising Barton Moss Road and adjoining verges and land occupied by a protest camp opposing exploratory drilling for possible fracking. The second and fifth defendants resisted possession, relying on Articles 8, 10 and 11 of the European Convention on Human Rights and disputing the claimants’ title.

The hearing proceeded on written evidence. The parties agreed that possession should be ordered only if the defendants had failed to demonstrate a realistically arguable defence, with disputed factual matters provisionally assumed in their favour. The issues concerned title, possession of the subsoil beneath a public footpath, and the arguability of Convention-based defences.

1. Possession ordered. The claimants proved title to the relevant land, including the western verge, and an immediate right to possession. The farm business tenancy covered the fields shown on its plan, not Barton Moss Road or its verge: the plan, the commercial purpose of the lease and the surrounding evidence supported that conclusion ([17]–[24]).
2. The public footpath gave the public a right to pass and repass on foot, but standing, sitting or lying on the road and other obstruction exceeded permissible highway use and constituted trespass. The possession order was to preserve the public’s footpath rights ([25]–[27]).
3. Articles 10 and 11 did not provide an arguable defence. The privately owned character of the land, the defendants’ lack of consent, interference with the claimants’ property rights and interference with other users were powerful factors. The protest had continued for several months, and effective protest remained possible elsewhere or by other means. The high threshold identified in Appleby v UK was not met ([28]–[37]).
4. Article 8 was capable of applying to possession claims brought by private landowners because the court was a public authority under section 6 of the Human Rights Act 1998. A defendant had first to show sufficient and continuous links with the land to establish it as a home. That fact-sensitive test was applied separately to each defendant ([38]–[47]).
5. Neither defendant established the required links. One had stayed only occasionally and had a permanent home elsewhere. The other had continued to treat rented accommodation as his home and occupied the camp for the more effective conduct of the protest, intending to leave when the drilling ended. In any event, the circumstances were not sufficiently exceptional to postpone possession ([48]–[52]).
6. The precise form of the possession order was to be settled after further submissions at hand-down ([53]).