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Trespassers
This page deals with three points:Orders against persons unknown.
Orders in respect of neighbouring land.
No power to suspend order for possession without consent of owner.
Orders against persons unknown
Article: "Magical intervention" by Daniel Levy, Lovells - Discussion of Hampshire Waste Services Ltd v Persons Unknown [2003] EWHC 1738 (Ch); [2003] 42 EG 126 in which land owners obtained an injunction, in advance of a planned protest, against persons unknown preventing them from carrying out a trespass in the course of that protest. The court order was made against: "Persons entering or remaining without the consent of the claimants [on the incinerator sites] in connection with the 'Global Day of Action Against Incinerations' (or similarly described event) or around 14 July 2003". The court ordered that the order could be fixed to posts around the site and that this would constitute sufficient service on the protesters. The article gives some very practical advice on the evidential and procedural steps to be taken when seeking such an order (Estates Gazette, 22 November 2003, p149).
Order in respect of neighbouring land
Limit of possession orders - injunctions
Secretary of State for the Environment Food & Rural Affairs v Meier
[2009] UKSC 11
Facts
Squatters had occupied certain areas of woodland belonging to the Secretary of State ("claimant"). There was a risk that squatters would also move onto other separate areas (which were miles away from the trespassed land), particularly if the squatters were moved on from their present encampment. The claimant obtained a possession order in relation to all the land, both that which was occupied and that which it was feared would become occupied. Was that possible?
Held
An order for possession of land not actually occupied by trespassers was too wide. The basis of a claim for possession was that the owner had been ousted and should ‘recover’ the land. An order could not be made where, although there was a risk of squatting, the owner was still in possession. There was nothing to recover. Lord Neuberger at para 64 and 65:"The notion that an order for possession may be sought by a claimant and made against defendants in respect of land which is wholly detached and separated, possibly by many miles, from that occupied by the defendants, accordingly seems to me to be difficult, indeed impossible, to justify. The defendants do not occupy or possess such land in any conceivable way, and the claimant enjoys uninterrupted possession of it. Equally, the defendants have not ejected the claimant from such land. For the same reasons, it does not make sense to talk about the claimant recovering possession of such land, or to order the defendant to deliver up possession of such land.
This does not mean that, where trespassers are encamped in part of a wood, an order for possession cannot be made against them in respect of the whole of the wood (at least if there are no other occupants of the wood), just as much as an order for possession may extend to a whole house where the defendant is only trespassing in one room (at least if the rest of the house is empty). " However, an injunction could be made to prevent threatened trespass. An injunction would be granted even if the persons against whom the injunction were to be made were ‘persons unknown’, had little if any assets and were unlikely to face imprisonment. Lord Neuberger at para 79:"That brings me to the question whether an injunction restraining travellers from trespassing on other land should be granted in circumstances such as the present. Obviously, the decision whether or not to grant an order restraining a person from trespassing will turn very much on the precise facts of the case. Nonetheless, where a trespass to the claimant's property is threatened, and particularly where a trespass is being committed, and has been committed in the past, by the defendant, an injunction to restrain the threatened trespass would, in the absence of good reasons to the contrary, appear to be appropriate."
No power to suspend order for possession
Boyland and Son Ltd v Rand
[2006] EWCA Civ 1860
Summary
In the absence of agreement from the land owner, the court has no power to give trespassers time to vacate when making an order for possession. No such power has been introduced by s89 of Housing Act 1980; nor pursuant to the European Convention on Human Rights.
1980 Act
Section 89(1) of the 1980 Act is in the following terms:"Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order." Neuberger LJ at para 9:"As a matter of ordinary language, it seems to me that Section 89 cannot assist the applicant. As the title to the section, which is reflected in the longer title to the 1980 Act, shows, the provision is concerned with cutting down the period from which the court can postpone the operation of an order for possession. It is also clear from the negative terms in which the section is expressed. It is to my mind concerned with cases where the court has power to postpone and, in those cases, it is directed to curtailing the exercise of that power. There is no reason to think that, by a side wind, the legislature intended to grant squatters rights which did not previously exist.". Human rights
As to the human rights point that was dealt with in Leeds City Council v Price; Kay v London Borough of Lambeth. Neuberger LJ at para 13:"Finally, there is a suggestion "that the decision in McPhail [which held that there was no power to suspend an order for possession against a trespasser] may be inconsistent with the European Court on Human Rights jurisprudence on Article 8, in a case such as this, where the trespasser is occupying as his home. It is fair to say that some support for that view is to be found in the speech of Lord Bingham of Cornhill in the Kay case (see paragraph 37). However, Lord Bingham was in a minority in that case. It seems to me quite clear from the passages I here identified in the speeches of the four members in the majority in that case that they came to a contrary view." Parenthetically, Neuberger LJ also held that s89 of the 1980 applies in the High Court, approving the decision in Stanley Burnton J in Hackney London Borough Council v Side-by-Side (Kids) Ltd [2003] EWHC 1813 and disapproving the decision of Harman J in Bain v The Church Commissioners [1989] 1 WLR 24.
(See also now Taylor v Central Bedfordshire Council referred to on the Post Doherty human rights page).
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