Social Welfare Lawyers in the Centre of Birmingham

Manchester Ship Canal Developments -v- Persons Unknown

Manchester Ship Canal Developments Ltd, Peel Investments Limited -v- Persons Unknown, Crane and Others [2014] EWHC 645 CH, 10 March 2014

This is not a Gypsy or Traveller case.

An organisation called Igas proposed to carry out drilling activity on a piece of land. This drilling activity was to be investigatory and was for the purpose of establishing whether there were hydro carbon deposits underneath the land that were capable of being exploited using a technique known as “fracking”.

The technique of fracking is controversial because some people consider that the effect of using the technique will be to damage the environment in a number of different respects. Igas could only access the piece of land via a road called Barton Moss Road. A group of protesters set up a camp on part of Barton Moss Road. The camp covered pieces of land owned by both of the Claimants. It should be added that Barton Moss Road also provided access for other residential accommodation and for certain businesses. Possession action was taken against the Defendants. The Defendants sought to defend the action under Articles 8, 10 and/or 11 of the European Convention on Human Rights. Article 8 is the right to respect for private and family life and home. Article 10 is the right to freedom of expression. Article 11 is the right to freedom of peaceful assembly.

In a case called Appleby – v – UK (2003) 38 EHRR 783, a case concerning protesters seeking to conduct a protest within a privately owned shopping mall, the European Court of Human Rights (ECtHR) concluded that the applicants’ Article 10 and 11 rights had not been breached. The ECtHR stated that, where a bar on access to property had “the effect of preventing any effective exercise of freedom of expression where it can be said that the essence of the right has been destroyed, the Court could not exclude that a positive obligation could arise for the state to protect the enjoyment of Convention rights by regulating property rights”.

In the case of Sun Street Property Limited – v – Persons Unknown [2011] EWHC 3432 (Ch), a case concerning the occupation of a property owned by a bank by a group of protestors, Roth J rejected the defence of the protesters stating:-

Those submissions confuse the question of whether taking over the bank’s property is a more convenient or even more effective means of the Occupiers expressing their views with the question whether if the bank…recovered possession, the Occupiers would be prevented from exercising any effective exercise of their freedom to express their views so that, in the words of the Strasbourg Court, the essence of their freedom would be destroyed. When the correct question is asked, it admits of only one answer. The individuals….currently in the property can manifestly communicate their views about waste of resources or the practices of one or more banks without being in occupation of this building complex…I need hardly add that the fact that the occupation gives them a valuable platform for publicity cannot in itself provide a basis for overriding the Respondent’s own right as regards it’s property.

In rejecting the defences in this matter, HHJ Pelling QC stated:-

In my judgment Articles 10 and 11 do not even arguably provide the Second and Fifth Defendant’s with a defence to the Claimants’ possession claim. My reasons for reaching that conclusion are as follows:-

First, the land in respect of which possession is claimed is 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 has the licence or consent of the Claimants to be or remain on the land. It is also an interference with the Claimants’ Article 1 Protocol 1 [A1 P1 – the right to respect for property] rights in relation to their property.

Secondly, the continued presence of the Defendants and, more importantly, all those others coming within the scope of the phrase ‘persons unknown’ is a source of interference with other legitimate users of the land concerned.

Thirdly, the protest has been ongoing and escalating since last November. The length of the protest is a relevant consideration…

The final and key point is that there is absolutely nothing to prevent the protesters from carrying on the protest elsewhere and/or by other means that does not involve interfering with the A1 P1 rights of the Claimants, the licensees and visitors.

Only two of the Defendants were represented before the High Court. In terms of Article 8, HHJ Pelling concluded that neither of those Defendants had established that they had shown that they had established a home at the site in question. Therefore their defences under Article 8 were also dismissed.  See: Manchester Ship Canal Developments -v- Persons Unknown Judgment