Since November 2013, protestors have been in occupation of land at Barton Moss in Salford, campaigning against exploratory drilling for coal-bed methane by the energy firm IGas. The land occupied by the protestors forms the access road to IGas’s site and is actually owned by Manchester Ship Canal Developments Limited and Peel Investments Limited (“Peel”).

In February 2014, Peel started an action in the Manchester High Court to recover possession of the land from the protestors. 

In response, the protestors have mounted a spirited defence, which demonstrates the potential complexities for landowners seeking to recover possession in these sort of circumstances- particularly if they don’t act quickly.

There were a number of strands to the protestors argument against possession:

  • There was an issue of fact about whether in fact Peel was entitled to an order for possession of part of the occupied land comprising a grass verge alongside the road;
  • It was claimed that an order for possession should not be granted because the access road comprised a public right of way;
  • The protestors asserted that the campsite was the only home of some of the protestors and that eviction would be an unlawful interference with those protestors’ rights under Article 8 of the European Convention Human Rights (ECHR) - to respect for a person’s home; and
  • Eviction would also be an unlawful interference with the protestors’ rights under Articles 10 and 11 ECHR- to freedom of expression and peaceful assembly.

Earlier this month, HHJ Pelling QC handed down his judgment and ordered that the protestors give up possession of land to Peel immediately (albeit that the protestors have since indicated an intention to appeal). 

Peel’s right to possession of the land

The Judge was satisfied on the factual evidence that Peel had proved title to all of the land of which it was claiming possession, including the grass verge. 

As to the right of way point, the judge confirmed that any order for possession could not interfere with the lawful exercise of a public right of way. What the protestors were doing however went far beyond that and amounted to obstruction which justified the making of a court order.

Human rights

The Judge then turned to the thorny topic of whether Articles 8, 10 and 11 ECHR can apply to possession claims by private landowners. In principle, he said they could, although the fact that the land in question was privately owned would be the primary factor for the Court to consider when deciding whether it is proportionate to grant possession. 

Furthermore, Article 8 rights of a trespasser will only prevail over the landowner’s right to the enjoyment of his property in exceptional circumstances. 

On the facts here, the judge concluded that the named defendants had failed to establish that the campsite was their home for the purposes of Article 8. In particular, the Judge referred to the protestors’ stated intention to vacate the campsite when the exploratory drilling ceased at the end of March. That, said the judge, meant the protestors fell short of establishing the sort of continuous links with the land which were necessary to claim Article 8 rights.

The Judge also commented that, even if Article 8 was engaged, there was nothing exceptional in the case that meant that the named defendants’ rights should take priority over that of Peel.

Finally, the judge dismissed the protestors defence under Articles 10 and 11 ECHR. He drew on principles established by the case of Appleby v UK (2003) that this defence should only prevail if the effect of a possession order would be to prevent any effective exercise of the protestors’ rights to freedom of expression and assembly. In the Barton Moss case, he concluded that there was nothing preventing the protestors from exercising their rights in another location, or by other means, which would not interfere with the rights of others. 

So the case concluded with an order for possession being granted to Peel. It may not be over yet however, because the protestors have been granted a stay of execution whilst they pursue an appeal.

These proceedings are a timely reminder of the complexities which can be involved in recovering possession in these sort of circumstances. What appeared at first blush to be a straightforward possession action became a much more lengthy and complex affair. Any landowner wishing to retain control of events would be best advised to act swiftly when dealing with any trespass and be ready to address human rights challenges thoroughly.