London Borough of Hackney & Anor v Powlesland & Ors

A highway authority may recover possession from trespassers who occupy part of a highway, even though the public can still pass. A licensee may also claim possession where occupation interferes with the activities which the licence permits. Possession may extend to adjoining land where that is necessary to give full effect to the order. Rights of protest and assembly under Articles 10 and 11 do not confer a right to occupy a particular site or prevent lawful development. Quia timet relief may be granted where there is a strong probability of threatened unlawful acts and damages would be inadequate. A possession claim against trespassers is not stayed by Practice Direction 51Z where the claim falls within the Rule 55.6 exception.

The Council and a developer sought possession of land at Woodberry Grove and interim injunctions against named protesters and persons unknown. The protest occupied a highway pavement and a tree which planning permission required to be felled as part of a major housing development. The named defendants either consented to relief or were found unlikely to act unlawfully again. The central issues were whether the Council and developer had standing to claim possession, whether possession could extend beyond the occupied highway land, whether Articles 10 and 11 supplied a defence, whether Practice Direction 51Z stayed the possession claim, and whether quia timet relief should be granted against persons unknown.

1. Possession. The claim for possession was granted over the yellow, green and turquoise land. A highway authority may recover possession where an occupation is more than temporary and ousts it to some degree, even though the highway remains passable. An assembly is not necessarily unlawful merely because it occurs on a highway, but the encampment here was semi-permanent and sufficiently substantial to dispossess the Council.
2. A licensee may claim possession where occupation interferes with the activities permitted by the licence. The Developer therefore had standing alongside the Council.
3. Possession may be ordered over adjoining land where necessary to give full effect to the order. The green and turquoise land had not been occupied, but control of it was necessary to fell the Tree and to prevent displacement of the protest.
4. The defendants’ Articles 10 and 11 rights did not justify occupation of the site or prevention of the Tree’s removal. The interference was proportionate. The development had undergone a democratic planning process, the public and private interests were substantial, and lawful protest could continue elsewhere.
5. Practice Direction 51Z did not stay the possession claim. The claim included persons unknown and therefore fell within the Rule 55.6 exception. The separate claim for injunctive relief was not stayed because paragraph 3(a) expressly excluded claims for injunctive relief.
6. Interim injunction. Quia timet relief against persons unknown was granted in revised terms. There was a strong probability that protesters would attempt to prevent the felling by unlawful obstruction, trespass or interference with contractors. Waiting until the acts occurred would cause serious inconvenience, delay, cost and public disturbance. The requirements identified in Islington London Borough Council v Elliott [2012] EWCA (Civ) 56 were satisfied, including the inadequacy of damages.
7. No interim injunction was granted against the three defendants who had attended only briefly and were unlikely to act unlawfully. The First and Second Defendants gave undertakings, and relief was granted against sufficiently identified persons unknown.