England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		6th November 2015

APPROVED JUDGMENT
1. JUDGE HODGE QC: This is my extemporary judgment in the case of Timothy William Dutton and three others (as claimants) v Persons Unknown and, now, two named defendants, claim number B31MA436. This is the first hearing of a claim for possession of land at Upton Grange, Long Lane in the County of Chester. The first two named claimants (Mr Timothy William Dutton and Mr Piers Verling John Dutton) are the freehold owners of the farmland in question. Their title is registered at the Land Registry under title number CH565723. On 5^th August 2015 they granted a lease of a parcel of that land, shown coloured yellow at number 2 on the official copy of the title plan at page 1 of exhibit KAL1, to the third and fourth named claimants, who are Dart Energy (West England) Limited and IGas Energy PLC. The premium paid on the grant of the lease was £60,000. Dart Energy (West England) Limited is a subsidiary of IGas Energy PLC. At the time the lease was granted the subject-matter of the lease had been occupied by a number of individuals styling themselves the Upton Community Protection Camp. They were protesting about proposals to undertake exploratory drilling with a view to possible fracking for shale gas on the land in question. That camp had been there for some 16 months, since about 5^th April 2014.
2. The present claim for possession was issued in the Manchester District Registry of the Chancery Division on 28^th October 2015. That is some 18 months or more after the occupation of the land first began. The particulars of claim for possession assert that the persons in possession of the land are there as trespassers. It is said that in April 2014, persons unknown entered onto the land of the first and second claimants and began occupying it without their consent or licence in connection with an anti-fracking protest. It is said that they have remained in unlawful occupation ever since. That occupation is said to have continued following the creation of the third and fourth claimants’' leasehold interest in August 2015.
3. The evidence in support of the application comprises two witness statements from Mr Kevin Aidan Lee, a solicitor and partner with the claimants’' solicitors, Hill Dickinson. They are dated 27^th October 2015 and 5^th November 2015. Various documents are exhibited to those witness statements as exhibits KAL1 and KAL2. There is also a short supporting witness statement from the second named claimant, Mr Piers Dutton, dated 25^th October 2015. Mr Lee deals with the ownership of the land and produces evidence of title. At paragraphs 5 onwards, he deals with the alleged trespass to the land. He states that in early April 2014, persons unknown entered onto the first and second claimants’' freehold land. He is advised by the Duttons that that entry was, “"without any shadow of a doubt”", an unlawful trespass, and without the Duttons’' licence or consent. It is said that the occupiers were not invited onto the land and that there was no warning; they just turned up and took occupation and have remained ever since without the Duttons’' licence or consent. Mr Lee refers to the fact that Mr Piers Dutton has made an unequivocal statement in this regard in the proceedings. Mr Lee says that Mr Dutton has instructed him that he did not, and does not, have the means to fund expensive court proceedings to remove the protestors; these proceedings are being paid for by IGas. Mr Dutton’'s passive position is said merely to reflect his inability to pay for expensive proceedings and nothing should be read into this. He is said to want the protestors off his land.
4. A Facebook page was promptly set up named “"Upton Community Protection Camp”". The stated aim of the trespassers is, according to the Facebook entry, to resist extreme energy extraction and showcase the [living?] alternative. The purpose is said to be to create a protest camp to campaign against the publicised future exploratory drilling activity on the property by IGas. Over the subsequent weeks and months the trespassers have erected a number of tents and structures on the property. Mr Lee exhibits various screenshots from the Facebook page. He says that the trespassers have courted publicity from the local press and have stated quite openly that their campaign is against any activity on the property by IGas and its subsidiary, which have planning permission and a government licence to undertake exploratory drilling on the land. One of the Facebook entries makes it clear that the protestors have to hold on to the land until 26^th May 2016 to stop IGas from being able to drill there. It states that the Duttons Lane site is the only one in the survey area where IGas have all the necessary permissions to go ahead and all the paperwork is in place for them. The camp is said to be the only thing that stops the site being developed. The entry states that they are heading towards winter now and IGas have until the end of May 2016 to make their move.
5. The protestors are said to be planning to move nowhere, but they need the support of those reading the Facebook page. They need people to visit, to help out, and to stop over on the camp. The point is made that the protestors have stuck it out since April 2014 and that if IGas are going to make their move, each week that passes brings everyone closer to that day. That posting was dated 21^st September 2015. It has at the foot an extract from the relevant planning consent that makes it clear that the development must commence not later than the expiration of three years beginning with the date of the permission, hence the 26^th May 2016 end stop date.
6. Mr Lee makes the point that it has become common practice for sites upon which IGas and its related companies have been granted planning permission to be repeatedly targeted by trespassers for the purposes of establishing unlawful protest camps under the general banner of “"anti-fracking”". He refers to a number of cases that have been brought in the Manchester District Registry. He says that there is a history of trespassing protestors taking up unlawful occupation of land in the vicinity of anticipated exploratory drilling by IGas and its related companies pursuant to the licences and planning permissions that have been granted by the relevant authorities, and he says that this case is another of those cases. He deals with the extent of the land currently occupied, exhibiting at page 8 of exhibit KAL1 a plan showing the approximate position of the tents and structures currently on the property as prepared from an aerial photograph taken on or about Sunday 25^th October. He says that at the present time the leasehold land is not fenced and so there is open access from the leasehold land of IGas and its subsidiary onto the freehold land of the Duttons. Following eviction of the trespassers, if that takes place, it is said to be the intention of IGas and its subsidiary to fence off the leasehold land. It is said that they would not be able to do this at present due to the threat of serious disturbances. Mr Lee says that the number of trespassers on the property has fluctuated and that they have openly stated an intention to remain in unlawful occupation of the property, citing the Facebook posting to which I have already made reference.
7. Mr Lee refers to a recent escalation of activity, citing incidents on 9^th and 23^rd October 2015. On the latter day, Friday a fortnight ago, and in advance of these proceedings being issued, contractors engaged by IGas and its subsidiary attempted to place notices, in a form appearing at page 55 of the bundle, on the leasehold land to tell those in occupation that IGas and its subsidiary were now its legal owners and that those in occupation were trespassing and should leave. He sets out the claimants’' account of what then took place.
8. Mr Lee addresses the reasons for issuing in the High Court at paragraphs 18 through to 22. He concludes that the property is currently occupied by persons unknown, who do not have the licence or consent of any of the claimants to be there. They are trespassing, and the claimants are said to be entitled to an order for possession in order to secure their removal. The notice at page 55, to which I have referred, is headed, “"To whom it may concern.”" It reads as follows:

“"Please note that the leasehold interest in this land at Upton Grange, Long Lane, Chester, is now owned by Dart Energy (West England) Limited and IGas Energy PLC (the owners) and there is no right to occupy this land without the lawful licence or consent of the owners. Any persons occupying or possessing this land are doing so as trespassers without the consent of the owners and should cease such occupation with immediate effect.”"

As I have said, notices to that effect were erected about a fortnight ago, on Friday 23^rd October.

9. In his short supporting witness statement Mr Dutton states that in early April 2014, and prior to the grant of the lease, protestors entered onto the Duttons’' land. He wishes to make it clear that this entry was unequivocally, and without any shadow of a doubt, an unlawful trespass, and without the Duttons’' licence or consent. The occupiers were not invited and there was no warning; they just turned up and took occupation and have remained ever since “"without our permission”". Any suggestion that they had the Duttons’' permission is said to be untrue. Mr Dutton says he cannot be any clearer than this: “"They are trespassing and we want them off our land.”"
10. The proceedings were served early on the morning of Thursday 29^th October. What has happened since then is related in Mr Lee’'s second witness statement. He says that on the following day, the fact that service had been effected was posted on the Upton Community Protection Camp Facebook page with a copy of the claim form and details of the hearing date. That posting apparently took place very early on the morning of Friday 30^th October. A posting slightly later that morning, at 5.45, and an earlier posting at 2.11 that morning, invited those supporting Upton Community Protection Camp to write letters to the court in support of the camp. It was said to be important to get as many letters of support for the camp as possible. Persons supporting the Protection Camp were also invited to attend at court today and to gather in peaceful protest outside the court at 10.00 am. The understanding was expressed that the general public would be allowed into the court hearing. The rest of Mr Lee’'s witness statement sets out various other matters that have occurred since the proceedings were served; in particular, it is said that on Wednesday of this week, 4^th November, threats were made to relocate the camp to the site of a local fishing club in a field on the opposite side of the public highway, and also belonging to the Duttons as freeholders. It is said that a further field to the north might also be at risk. That is the evidence in support of the claim.
11. I am entirely satisfied on the evidence that the first and second claimants have freehold title to the land in question and that the third and fourth claimants have leasehold title to the land shown coloured yellow at number 2 on the Land Registry plan at page 1 of exhibit KAL1. I am also satisfied that proper service of these proceedings has been effected on persons unknown occupying the property and that there has been knowledge of these proceedings for the last seven days. Indeed, the contrary has not been suggested. The claimants are represented before me by Miss Myriam Stacey (of counsel), who has produced a written skeleton argument dated 4^th November. Shortly before coming into court at 10.30 this morning, I was handed a defence of two individuals: Mr Phillip Whyte and Mr Simon Stafford Smith. It later became apparent that each of those defendants had also produced witness statements in support of their defence. The named defendants are represented by Mr Offer (also of counsel).
12. When the matter was first called on for hearing, the hearing took place in court 42. It became apparent that a number of those supporting the persons in occupation of the Protection Camp had been unable to fit into the court because of their sheer number and because of health and safety concerns at the sheer number of people being in court. At the conclusion of Miss Stacey’'s initial submissions, at about ten past eleven, I rose for, in the event, about an hour to enable the hearing to be relocated to this much larger court – court 40. I also invited the solicitor instructing Mr Offer to make enquiries of anyone who might be outside the court building who might also wish to be joined as a defendant to the proceedings. When the court resumed at ten past twelve for Mr Offer’'s submissions I was told by him that in fact there was no one either outside the building or within who wished to apply to be joined as a defendant other than Messrs Whyte and Stafford Smith. Without opposition from Miss Stacey, I joined them as defendants to the proceedings.
13. As I have said, Miss Stacey had addressed me for about 30 minutes. She submitted, first, that any allegation of a licence to occupy the premises granted to those in occupation at the Protection Camp by the Duttons was wholly unparticularised. There was said to be no sufficient evidence of the grant of any licence; that even if a licence had been granted, it had been granted by the Duttons and was binding only upon them and not on the third and fourth claimants as leaseholder owners; and, in any event, any licence had been terminated prior to the issue of these proceedings by the notices erected on 23^rd October (at page 55).
14. So far any reliance upon Article 8 of the European Convention on Human Rights (the right to respect for family and private life) was concerned, Miss Stacey submitted, on the Court of Appeal authority of McDonald v McDonald [2014] EWCA Civ 1049, [2015] Ch 357, that Article 8 does not apply to privately owned land. It is clear from page 374 of the report that there is an appeal from that decision pending to the Supreme Court following the grant of permission to appeal by Lords Neuberger, Wilson and Hodge. I am told that that appeal is due for hearing in March of next year. Even if Article 8 is engaged in relation to private land, it is said that neither of the defendants has his home at the Protection Camp due to the relatively short period of their respective occupations. The second defendant has been in occupation since July 2014 and the third defendant since March of this year.
15. Finally, it is said that if it falls to the court to apply the test of proportionality, there are no exceptional circumstances militating against the court’'s enforcement of the claimants’' rights, as owners of the land, under Article 1 of the First Protocol to the European Convention. Reliance is placed in that regard upon a number of authorities. Similar considerations are said to apply to any reliance upon Articles 10 and 11 of the Convention, being respectively the rights to freedom of expression and to freedom of assembly and association. So far as reliance is placed on the interests of children who may be living at the Protection Camp, there is said to be no evidence as to who those children are or how many. Certainly they are not children of either of the named defendants. Miss Stacey submits that it is difficult to conceive of circumstances in which the interests of the children in a case such as the present can prevail over the rights of property of persons in the position of the claimants. There is no one here in court representing any children, and no detailed evidence as to their circumstances. Miss Stacey’'s further submissions are sufficiently set out in her written skeleton argument.
16. After the court had resumed, Mr Offer addressed me. He did so in cogent and measured terms. He began by identifying the test which this court should apply to the present claim. That is set out in CPR 55.8(2). That provides:

“"Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1) (b) will include the allocation of the claim to a track or directions to enable it to be allocated.”"

I accept Mr Offer’'s submission that I should not make a possession order unless I am satisfied that there is no genuine dispute in answer to this claim on grounds which appear to this court to be substantial. If the claim is genuinely disputed on grounds which appear to be substantial, I should do no more than give case management directions for the future conduct of the case. I should grant possession only if I am satisfied that the defendants have failed to demonstrate that they have a realistically arguable defence to the claim. If satisfied that the defendants do demonstrate a realistically arguable defence to the claim, then I should do no more than give directions for the trial of that claim.

17. Mr Offer relies upon the allegations at paragraphs 17 and 18 of the defence in support of his claim that there is a licence here in favour of all of those presently in occupation of the Upton Community Protection Camp. There are said to be children living within that camp who attend local schools in Upton. So far as the second defendant is concerned, he has been residing on the land as his only home since July 2014, having previously been squatting in London and homeless in the street for a time. Having heard about the camp, he had moved onto the land. He is said to suffer from a spinal complaint which gives him difficulties with walking. If evicted from the land, he is said to have nowhere else to go. He is said to reside on the land in a tent during the summer months and in a small wooden dwellinghouse with wooden walls and a tin roof during the winter. He makes use of a community kitchen and community reading room.
18. The third defendant has been residing on the land as his only home since March 2015. Before taking up residence at the camp, he is said to have been homeless for two years and living in car parks. He had heard about the camp from people who had been squatting in Liverpool. He is said to have dyslexia, dyspraxia, attention deficit hyperactivity disorder and to be on the autistic spectrum. He is said to have continuing mental health problems and to have been diagnosed with paranoid anxiety disorder. He attends regularly at a mental health drop-in centre by the name of “"Chester Plus”". He resides on the land in a dwellinghouse with wooden walls and a tin roof. He is said to have successfully addressed his addiction to legal highs since moving into the camp and his mental health has substantially improved. If evicted from the land, he would have nowhere else to go. He is said to have no family and friends to provide help and support.
19. The second defendant asserts that at the outset of the occupation of the land, in or around April 2014, either one or other of the Duttons attended the camp. The residents were informed by that person that they could remain on the land. It is said that it was clearly understood that that amounted to permission to remain on the land until the third and fourth claimants’' attempt to undertake work in relation to fracking had concluded. In particular, one or other of the Duttons indicated that they were going to erect an electric fence to demarcate the area reserved for the camp from the remainder of their property. He goes on to refer to particular instances of that licence being recognised and given effect to. Mr Offer submits that those instances show that the assertion of the existence of a licence has real substance. That licence extends to all, including the second and third defendants, who live at the camp. Mr Offer points to the fact that paragraph 24 of the defence asserts that one or other of the Duttons has asked members of the camp to cut the grass in the area occupied by it. He submits that that arguably constitutes consideration for the grant of a contractual licence. He submits that there is a genuine and substantial claim to a licence which gives rise to a genuine dispute to the claimants’' claim for possession. He emphasises that this is the first hearing of a possession claim and that there is no obligation on any defendant to have filed evidence at all. He points to the provisions of CPR 55.5 (3), which provide that in a non-trespass case there should be no less than 28 days between the issue of a claim and any hearing of it and that the defendant must be served with the claim form and particulars of claim at least 21 days before that hearing date.
20. Mr Offer asserts that at no time before the issue of these proceedings did any of the claimants terminate the licence of the second or third defendants, or indeed anyone else’'s licence at the camp, to occupy the land. He says that the claim for possession is therefore premature and must fail. Reliance is placed upon the Court of Appeal decision of GLC v Jenkins [1975] 1 WLR 155, in particular at pages 157 to 158, and the earlier Court of Appeal case of Minister of Health v Bellotti [1944] 1 KB 298, in particular at pages 305 to 306. Even if notice purporting to terminate the licence has been given, the occupiers of the camp are said to have been entitled to reasonable notice; and, in the circumstances of their occupation, that should mean a reasonable time within which to find alternative accommodation before possession proceedings are instituted. There is no allegation or evidence that they have been given such notice.
21. Mr Offer also relies upon the protection afford by section 3 of the Protection from Eviction Act 1977 and the need for a notice complying with section 5 of the Protection from Eviction Act 1977. He says that the claimants have failed validly to terminate any licence to occupy the premises enjoyed by anyone at the Protection Camp, including the second and third defendants. Thus it is denied that the occupation of those at the camp has become unlawful, and it is said that this is not a claim for possession against trespassers and that the present hearing is premature.
22. Mr Offer also relies upon defences under the Human Rights Act. He reminds this court that it is a public authority for the purposes of the Act and that it is therefore unlawful for it to act in a way that is contrary to the human rights of anyone on the site, including the defendants and any children. He asserts that the land is the home of the second and third defendants for the purposes of Article 8 and that the making of a possession order, at least in relation to Mr Smith, if not Mr Whyte, would at this present stage constitute a disproportionate interference with Mr Smith’'s right to respect for his home. That is because he is homeless and has nowhere else to go, he has the various disabilities that I have identified which constitute continuing mental health problems, and, since moving into the Community Protection Camp, Mr Smith has successfully addressed his addiction to legal highs and his mental health has substantially improved. It is said that he is benefitting from living within a stable and supportive environment.
23. Mr Offer submits that the camp constitutes the home of each of the two defendants. They have been living there since July 2014 and March 2015 and they have the necessary sufficient and continuous link to the land. He asks rhetorically, if this land is not their home, where is their home? Mr Offer recognises that, as it stands, McDonald v McDonald is an answer to the Article 8 claim of Mr Smith; but he points out that there is an appeal pending to the Supreme Court and that this court should determine the issue of proportionality and should defer making any possession order until the appeal in McDonald can be finally disposed of. Mr Offer points out that there are children residing at the camp. He refers me to Article 3.1 of the UN Convention on the Rights of the Child (1989). That provides:

“"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”"

That binding international obligation means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be in accordance with the law for the purposes of Article 8.2 of the European Convention.

24. Mr Offer has taken me to observations of Baroness Hale in the case of ZH Tanzania v The Home Secretary [2011] UKSC 4, [2011] 2 AC 166, in particular at paragraphs 22 through to 26. The best interests of the child must be a primary consideration. That principle applies not only to immigration decisions but to all decisions concerning children. It follows, so it is said, that this court must have regard to the need to safeguard and promote the welfare of the children resident on the site and must evaluate the children’'s best interests. In that regard, reference was made to the case of Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, in particular at paragraphs 10 and 13. Reliance is placed upon the principles there stated. Mr Offer submits that the court cannot have regard to an evaluation of the children’'s best interests without being provided with the information as to their individual circumstances and needs.
25. Mr Offer also relies upon the rights to freedom of expression and freedom of assembly and association under Articles 10 and 11. Any interference with those rights must be proportionate. Mr Offer acknowledges that the claimants also have rights pursuant to Article 1 of the First Protocol of the European Convention on Human Rights, relating to the protection of their property. However, he says, first, any interference with those Article 1 rights in the case of the first and second claimants is theoretical rather than actual given that they have granted a lease of the land to the third and fourth named claimants; and, secondly, as regards the third and fourth claimants themselves, they were, or ought to have been, on notice of the existence of the Upton Community Protection Camp and of the licence to occupy given to it by the first and second claimants when they took their lease on 5^th August 2015. It is clear from photographs, such as that at page 10 of exhibit KAL1, that the presence of the Upton Community Protection Camp, and its fight against fracking and wish to promote a sustainable and frack-free world, must have been clearly evident to anyone who had inspected the land in question. In relation to the rights of the children, Mr Offer emphasised that proportionality is not the only issue because to justify an interference with their rights under Article 8, that interference must be in accordance with the law, and that requires the court to take into account, as a primary consideration, the interests of the children, and their best needs, before the court even goes on to consider the issue of proportionality.
26. In her reply, Miss Stacey submitted that the evidence of any licence from the Duttons is entirely vague whereas the evidence of the Duttons that they have granted no such licence is unequivocal. She emphasises that the cases of GLC v Jenkins and Bellotti (cited by Mr Offer) involve the grant of contractual licences, where there was consideration passing from the occupier to the relevant landowner. This is a case in which, even on the defendants’' own case, the persons in occupation of the camp simply entered into possession without express permission from the land owners and were simply allowed to remain there. So far as the termination of any licence is concerned, the notice at page 55 is said to speak for itself. Miss Stacey submitted that the licence asserted was confined to the leasehold land; but Mr Offer made it clear that the defendants’' case was that it should extend to all of the structures on the land, including those on the freehold land retained by the first and second claimants. Miss Stacey said that it could not possibly be said that the structures occupied by the occupiers of the Protection Camp had been “"let as dwellinghouses”". She submitted that the Protection from Eviction Act did not extend to gratuitous licensees and that the dwellinghouses had been erected by the persons in occupation and not by the claimants. The claimants had merely allowed persons to remain on the land with chattels which they themselves had erected upon it. She submitted that the McDonald decision stood and was binding on this court until it was successfully appealed.
27. Miss Stacey referred to a passage in the judgment of his Honour Judge Pelling QC, sitting as a judge of this court, in Manchester Ship Canal Developments Limited v Persons Unknown [2014] EWHC 645 (Ch) at paragraph 46. There Judge Pelling had indicated that he had been prepared to proceed, in advance of the McDonald v McDonald decision, on the basis that Article 8 was capable of being engaged even in relation to land owned by a private land owner; but he made it clear that if that were so, the fact that land was owned privately was something that could be treated as a primary factor in deciding whether ordering possession was proportionate, with the result that it would only be in exceptional cases that the Article 1 of the First Protocol rights of a private land owner should be treated as trumped by the Article 8 rights of a trespasser. Miss Stacey pointed to the fact that there was no case that had been cited where the Article 1 of the First Protocol rights of a private landowner had in fact been trumped by Article 8 rights.
28. Miss Stacey relied upon passages in the judgment of the Court of Appeal in Birmingham City Council v Lloyd [2012] EWCA Civ 969, [2012] HLR 681 in support of her argument that it should only be in highly exceptional circumstances that it would be appropriate for the court to consider a proportionality argument as a defence to a claim by a private landowner to recover possession of land. She submitted that it would be contrary to the decisions in McDonald v McDonald and in the case of Southend-on-Sea BC v Armour [2014] EWCA Civ 231, [2014] HLR 362 to allow the prospective effect of an order on a child to trump a private landowner’'s rights under Article 1 of the First Protocol. She submitted that the context of the observations of Baroness Hale in ZH Tanzania v The Home Secretary was entirely different. She made the point that that decision predated those upon which she relied in support of her submissions. She also reiterated that the children here are not children of the defendants, and are not represented.
29. I should say a little more about the position of the children because it is not strictly covered by the evidence. However, I do have a letter from one of the residents at the Protection Camp, Claire McKenna, in which she refers to three girls, aged 10, 12 and 13, who live at the camp with their mother, their grandmother and their father. Those three girls are also referred to in a letter dated 1^st November 2015 from Dr Steven Peers, where he refers to them attending local schools. He says that his children have lived in the camp since April 2014 and that one of them, the youngest (aged 10) attends Upton Primary School, whilst the other two (aged 12 and 13) attend Upton High School. He says that they consider the Protection Camp to be their home. The children are said to have built up a relationship with the local community, including the farmer, who gave Matilda a tour of his farm last year. He is said always to have referred to the area of the Protection Camp as “"their”" side of the field, and he has always had full use of the remainder of the field for grazing his cows. Those are the evidence and the submissions in the case.
30. I have already indicated that I am entirely satisfied that the claimants have established title to the relevant land, and that all the procedural requirements of a claim for possession have been complied with if, as the claimants assert, the persons in occupation are indeed trespassers. So far as the defence of licence is concerned, I reject that defence for these reasons: It seems to me quite clear that there was no express grant of any contractual licence to any of the occupiers of the Protection Camp to come onto or to remain on the land. The suggestion pleaded in the defence that there was a licence to remain on the land until the attempts of the third and fourth claimants to undertake work in relation to fracking had concluded seems to me to be “"incredible”", in the sense of beyond belief. It is contradicted by the express evidence of Piers Dutton; and it is inconsistent with the grant of the lease to the third and fourth claimants. It is quite clear that here the situation is that the Duttons simply tolerated the trespass upon their land until such time as the third and fourth claimants were prepared to take proceedings to recover the land.
31. Even if that is wrong, I am satisfied that this was not any form of contractual licence. There was no consideration for its grant. I reject the suggestion that members of the Community Protection Camp cutting the grass in the area that they occupied could count as any sort of consideration for the grant or continuation of the licence. That was a pragmatic request to address the need to ensure that the grass was kept down whilst the camp was occupied. It was not the equivalent of the contractual licence supported by consideration that was under consideration by the Court of Appeal in GLC v Jenkins or the earlier case of Bellotti. In any event, it is quite clear that there was no grant of a periodic licence to which the provisions of section 5 of the Protection from Eviction Act subsection (1A) would apply.
32. Even if I am wrong on that, any contractual licence affecting the leasehold land would not have been capable of binding the third and fourth claimants when they took a lease of the land in August of this year. A mere contractual licence, even if there was one, would not have been binding upon a tenant of the land. On the evidence, I reject Mr Offer’'s suggestion that there is any need to consider whether the consciences of the third and fourth defendants, if such there are, are affected by the existence of any licences. I am quite satisfied that the notices that were placed on the leasehold land on 23^rd October were effective to terminate any licence of that land. I reject the submission that there is any genuine dispute to the possession claim on the basis of the asserted licence.
33. I turn then to consider the Human Rights Act defences. As the authorities presently stand, I am bound by McDonald v McDonald to hold that Article 8 is not engaged in the case of privately owned land. If it were engaged, I would have had no hesitation in saying that there is a genuine dispute on the issue of whether the Protection Camp is the home of the second and third defendants. On that issue, I accept Mr Offer’'s submission that if the Protection Camp is not their home, it is very difficult to see what else is. However, were it necessary for me to go on to consider the effect of proportionality, I would hold that the Article 8 rights of Mr Smith must yield to the rights under Article 1 of the First Protocol of the European Convention of the claimants. The position is even stronger for the claimants in the case of Mr Whyte, as Mr Offer himself recognised. I accept that there must be exceptional circumstances before Article 8 rights can prevail over the rights of a private land owner. There are no such exceptional circumstances in the present case that cannot be sufficiently accommodated by ensuring that any order for possession takes effect at a sufficiently future date to give those who have been on the land for some time a reasonable opportunity to pack up and vacate.
34. So far as the submissions founded upon the UN Convention on the Rights of the Child are concerned, I am not entirely satisfied that Article 3(1) is engaged because, since there is no defendant who has any child at the camp, I am not sure that the court is engaged upon taking any action concerning children. Certainly, adopting Baroness Hale’'s analysis at paragraph 25 of her judgment in ZH Tanzania v The Home Secretary, this is not a decision that directly affects the child’'s upbringing, such as a parent or other person with whom he or she is to live. At most, it would be a decision which might indirectly affect a child, such as one about where one or both of the child’'s parents are to live. Assuming, however, that the Convention is engaged, I am enjoined to consider the best interests of the child as the primary consideration. Here I am hindered by the lack of any direct evidence from anyone about the children, their needs or circumstances. All I know is what is set out in Dr Steven Peers’'s letter. It does not seem to me that it can be in the best interests of any child for her or him to continue to live at the Community Protection Camp, even if there are wood-burning stoves heating the various units of accommodation. It does seem to me that rather more permanent living accommodation would be in their best interests. As I say, I am hampered by the paucity of information in that regard. I do bear in mind that I am simply considering whether there can be said to be any genuine dispute to the claim on substantial grounds; but it does not seem to me that the best interests of the child give rise to any such arguably substantial grounds in the present case.
35. That leaves the rights of persons in occupation of the Protection Camp under Articles 10 and 11. In that regard, I have read a large number of letters that I have received from residents of the Upton area and, indeed, from those further afield. I recognise the importance which should be attached to the issues which those who are taking part in the Upton Community Protection Camp stand for. Those issues are of prime public importance, and in the first rank of topics which Articles 10 and 11 are concerned to respect, in that they raise political and environmental issues. The importance of having unrestricted rights to express, publicly and strongly, controversial views on political and environmental topics cannot be doubted. That right extends to the way in which those at the camp, and who support its aims, wish to express their views, and also to the location where they wish to do so. Accordingly, I recognise that the defendants’' desires to express their views in Upton, an area for which planning permission has been granted to carry out exploratory drilling for shale gas, and to do so in the form of the Upton Community Protection Camp, on the basis of a relatively long term occupation with tents, placards and postings on social media, all fall within the scope of Articles 10 and 11. As against that, however, the greater the extent of the rights claimed under Articles 10 and 11, the greater the potential for them to interfere with the rights of others.
36. In the present case, I am satisfied that the balance undoubtedly falls in favour of the claimants’' claim to possession. The whole object of the occupation of the Protection Camp is to seek to ensure that the third and fourth claimants should not be able to exploit the planning consent that they have on a time-limited basis. That is the whole thrust of the assertion, in one of the Facebook postings, that the camp has to hold onto the land until 26^th May next year to stop IGas from being able to drill there. There are other ways in which the supporters of the Protection Camp can make their point. They have already been in occupation now for over 18 months. They have established extensive publicity on social media for their aims. There is no reason why peaceful protests cannot take place without the continuing occupation of the camp, to the detriment of the property rights of all four claimants. I recognise that the supporters of the camp are expressing views on very important issues, which they see as being of considerable depth and relevance, and that the supporters strongly believe in the views that they are expressing. However, in my judgment, their views, and their expression, cannot prevail over the property rights of the claimants.
37. For those reasons, what I propose to do is to allow the claim for possession; but I recognise that the persons in occupation of the camp have been there now for over 18 months and, in those circumstances, it would not be right to make the “"forthwith”" possession order that the claimants are seeking. What I have in mind is to grant a possession order that will be capable of enforcement after 28 days from today – that is to say by, I think it is, 4^th December. That will give the defendants, if they wish to do so, an opportunity to consider whether they should appeal. That is my decision in the matter.
(End of judgment) (Discussions as to further directions and costs follow) ___________