Manchester Ship Canal Developments Ltd and another v Persons Unknown and others

Highway – Protest camp – Possession proceedings – Defendants erecting large number of tents on verge adjacent to highway as part of protest – Claimants applying for possession as owners of land – Whether claimants proving title to land – Whether grant of relief a disproportionate interference with defendants’ right to freedom of expression and assembly under Articles 10 and 11 of European Convention on Human Rights – Application granted The claimants owned an area of farmland to the north east of a single-track road used by a number of businesses and properties to the north of the M62 as a means of access to the A57 in Manchester. The land was licensed a third party (Igas) to carry out exploratory drilling for the purpose of establishing whether there were hydrocarbon deposits underneath the land that were capable of being exploited using a technique known as “fracking”, which involved using fluid under pressure to fracture subterranean shale rock formations to extract the hydrocarbons trapped therein. In November 2013, the defendants set up a camp on the western verge of the road, which had grown to 42 tents, six caravans and two huts as a protest against fracking in general, and the exploratory activities by Igas in particular. The claimants issued proceedings for possession of the land occupied by the defendants. The defendants resisted the claim contending that: the claimants had not proved title to the land they claim possession of; the claimants were not entitled to possession of the sub-soil of the road over which there was a public right of way; and if they did have, a possession order would represent a disproportionate interference with their human rights contrary to article 10 or 11 of the European Convention on Human Rights (ECHR) and/or article 8. Held: The application was granted.(1) On the evidence, the court was satisfied that the claimants had proved title to the land and were entitled to a possession order over the part of the road over which a public footpath ran and that the contrary was not realistically arguable. The use by the defendants exceeded permissible highway use and as a result constituted a trespass against the owner of the land over which the right ran. There could be no question of the possession order adversely affecting the right of all the public to pass and re-pass along the public footpath, not least because it was proposed that the possession order should be expressly qualified so as to make that point entirely clear.(2) The rights of protesters under articles 10 and 11 of the ECHR did not even arguably provide the defendants with a defence to the possession claim. The land in respect of which possession was claimed was land owned otherwise than by a public authority. To permit the defendants to occupy that property would be a plain breach of domestic law, because neither defendant had the licence or consent of the claimants to be or remain on the land. It was also an interference with the claimants’ rights under article 1 of the First Protocol (A1P1) to the ECHR in relation to their property. The continued presence of the defendants, and all those others coming within the scope of the phrase “persons unknown”, was a source of interference with other legitimate users of the land concerned. Although the defendants denied that there was any interference with third party users or occupiers, other than Igas, the evidence showed an obstruction of a public highway having an effect on third party users, with the claimants having to construct an alternative means of access over other land for one local business at a cost of about £4,000. Further, the protest had been ongoing and escalating since November 2013 and the length of the protest was a relevant consideration of importance to the decision whether to make the order sought. In any event, there was nothing to prevent the protesters from carrying on their protest elsewhere and/or by other means that did not involve interfering with the A1P1 rights of the claimants, their licensees and visitors: Appleby v United Kingdom (2003) 38 EHHR 783, SOAS v Persons Unknown [2010] PLSCS 303, Sun Street Property Ltd v Persons Unknown [2011] EWHC 3432 (Ch), City of London Corporation v Samede [2012] EWCA Civ 160; [2012] PLSCS 40, University of Sussex v Persons Unknown [2013] EWHC 862 (Ch); [2013] PLSCS 84.(3) The defendants were not entitled to rely on the effect of article 8 of the ECHR (right to respect for home) on all those who were present in the camp as a defence to the possession claim. Article 8 was a right accorded to an individual who was entitled to assert it usually as an answer to proposed administrative action by a public authority. It was not an answer to a claim for possession made by a landowner against a specific individual that the effect the order sought would be a disproportionate interference with the article 8 rights of other defendants unless the allegation was of interference with family rights, where the interests of the family as a whole might be relevant. That was not this case: McPhail v Persons Unknown [1973] Ch 447, Buckley v United Kingdom (1996) 23 EHRR 101, R (on the application of Beoku-Betts) v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 AC 115, Malik v Fassenfelt [2013] EWCA Civ 798. Katharine Holland QC (instructed by Wragge & Co) appeared for the claimants; Lindsay Johnson (instructed by Leigh Day) appeared for the second and fifth defendants; The remaining defendants did not appear and were not represented. Eileen O’Grady, barrister