Dutton & 3 Ors v Persons Unknown & Ors

On a first possession hearing, the court should make an order only where the defendant has failed to show a realistically arguable defence. Mere tolerance of trespass does not create a contractual licence without consideration. A licence affecting leasehold land will not bind a later tenant, and clear notices may terminate any licence. As the law then stood, McDonald v McDonald required the court to hold that Article 8 was not engaged against a private landowner. Protesters’ Articles 10 and 11 rights remained relevant, but could not outweigh private property rights where the occupation was intended to prevent time-limited development and alternative forms of protest were available. Any possession order should allow a reasonable period for vacation where occupants had remained for a substantial time.

The claimants sought possession of farmland occupied by an anti-fracking protest camp. The first and second claimants owned the freehold, while the third and fourth claimants held a later lease of part of the land. Two occupants were joined as named defendants at the hearing.

The defendants argued that the landowners had granted a licence, that any licence had not been validly terminated, and that the claim was premature. They also relied on the Protection from Eviction Act 1977, Articles 8, 10 and 11 of the European Convention on Human Rights, Article 1 of the First Protocol, and the best interests of children living at the camp. The central issue was whether the defences disclosed a genuine dispute on substantial grounds.

1. The claim for possession was allowed. Under CPR 55.8(2), the court should make a possession order only if the defendants failed to demonstrate a realistically arguable defence. Otherwise, the matter should proceed by case management directions.

2. The alleged licence was rejected. There was no express contractual licence, and the suggestion that occupation was permitted until completion of the proposed drilling was inconsistent with the evidence and the later lease. Mere tolerance of trespass did not create a contractual licence. Cutting the grass was a practical arrangement, not consideration for a licence. The contractual licence principles in GLC v Jenkins [1975] 1 WLR 155 and Minister of Health v Bellotti [1944] 1 KB 298 therefore did not assist the defendants.

3. Even if a licence had existed, a mere contractual licence would not bind the later leaseholders. The notices placed on the leasehold land on 23 October 2015 were effective to terminate any licence affecting that land.

4. As the law then stood, McDonald v McDonald [2014] EWCA Civ 1049 required the court to hold that Article 8 was not engaged against a private landowner. If Article 8 had been engaged, the defendants’ rights would have yielded to the claimants’ Article 1 First Protocol rights. No exceptional circumstances justified the occupation continuing.

5. Assuming Article 3(1) of the UN Convention on the Rights of the Child was engaged, the best interests of the children were a primary consideration. The limited evidence did not establish an arguably substantial defence. The children’s interests could be accommodated by allowing time before enforcement.

6. The occupation and its political and environmental message fell within Articles 10 and 11. Nevertheless, the balance favoured possession. The occupation’s purpose was to prevent development within the planning permission’s time limit, and peaceful protest could continue without occupation.

7. Because the camp had existed for more than 18 months, possession was ordered with enforcement deferred for 28 days, until approximately 4 December 2015.