In cases where a public body is seeking possession of land (perhaps against squatters, trespassers or ex-tenants or licensees), it needs to ensure that (where the occupier is living on the land) the decision to do so is proportionate. A decision from the Court of Appeal means that many potential challenges to proportionality can be dealt with at an early stage of proceedings without the need for a full trial.

It is now settled law that where a public authority seeks possession of a property or piece of land which is a person’s home, that person has the right to challenge the proportionality of the decision to evict under article 8 (which provides that every person has the right to respect for his or her home.)

Thus in whatever circumstances such a person came to occupy the land – whether as trespasser or tenant, with permission or without – if their connection with the land is sufficient for it to be their “home” then article 8 applies, and the decision of any public authority to evict needs to be justified by article 8(2) – commonly known as “proportionality”.

In the sphere of housing law it is now accepted that an occupier can raise a Human Rights argument as a defence to possession proceedings. Where faced with such a challenge, the court should proceed on the basis that the housing provider has sound management reasons for seeking possession – their management duties and ownership rights are usually a “given”. As such, any occupier seeking to raise a proportionality challenge will find that their argument is reviewed at an early stage by a judge and unless the judge is satisfied that the argument gets over the hurdle of being “seriously arguable” it will be dismissed. Further, the view is now accepted that it is only in “exceptional” cases that article 8 proportionality will even arguably give a right to continued possession where the applicant has no right under domestic law to remain. (Manchester CC v Pinnock [2010] UKSC 45; Hounslow LBC v Powell, Leeds CC v Hall, Birmingham CC v Frisby [2011] UKSC 8)

Proportionality rarely raises an issue where possession is sought against tenants who have assured or secure tenancies as protections in domestic law mean the court is unable to grant a possession order without assessing the reasonableness of granting it. However, where the occupier has a less secure form of tenure – such as an assured shorthold or a licence, or where they are a trespasser, an Article 8 argument will often be raised (but normally dealt with fairly quickly).

Last month the Court of Appeal had to consider whether this approach is confined to housing cases or whether it had a more general application in Jones v Canal and River Trust [2017] EWCA Civ 135.

Mr Jones was disabled. He owned a narrowboat which he had moored on the Kennet and Avon canal. The Canal and River Trust, being the statutory successor to British Waterways Board owned the canal and had statutory powers (and obligations) to regulate its use which included granting consents to navigate.

Mr Jones had a licence, granted to him by the Defendant’s predecessor which allowed him to use the canal for bona fide navigation (which did not permit him to remain static for any period greater than 14 days.) The Defendant considered that he had breached the licence, terminated it and issued proceedings seeking a declaration that it was permitted to remove the boat from the canal.

Mr Jones’ article 8 defence was dismissed summarily on the basis that the circuit judge held that there was no issue under art 8 as the Defendant was not a housing authority; he also held that the article 8 defence was not seriously arguable as per Pinnock and Powell. Mr Jones appealed, and the case reached the Court of Appeal.

The Canal and River Boat Trust sought to argue that their position was analogous to that of a housing authority, and so the court should start with the presumption that their decision to evict was proportionate. (They did not seek to uphold the suggestion that article 8 did not apply. It clearly does).

Mr Jones sought to argue that the Trust’s position was not analogous to that of a housing authority managing public housing stock. The suggestion was that housing cases were exceptional. With reference to the “structured approach” to proportionality laid down in the decision of Lord Sumption in Bank Mellat v HM Treasury (No 2) [2013] UKSC he argued that the question of proportionality had to be decided at a full trial rather than at a summary stage of proceedings.

The Court of Appeal held that the housing cases were not a true exception to the requirement of a structured approach to the proportionality assessment, but that they are particularly amenable to a pre-trial summary assessment of the issue. There is no reason that an equally robust approach cannot be taken to non-housing cases, although the relative weight of competing interests may not always be as easily apparent.

On the facts, there were issues about whether or not the licence had been breached and Equality Act arguments which were live, and so this was not a case where it was appropriate to deal with the case on a summary basis.

However, it is useful to have a clear authority confirming that the summary assessment of Article 8 issues is not confined to housing cases. This case will be of interest to any case where a public authority is seeking possession of land – particularly trespass cases.