Appeal to test article eight right over private property
Squatters occupying the likely site of Heathrow’s proposed third runway were yesterday given a six-week stay of eviction to appeal under article eight of the Human Rights Act, the right to home and family life.
The site is privately owned and this will be the first time that a higher court has been asked to determine whether article eight applies to private landlords in the same way that it does to public bodies.
If the Court of Appeal decides that the squatters do have rights under article eight, private landlords will in future find it harder to remove a tenant, particularly if the tenant is pregnant or has a young child, a disability or other compelling reason to remain in the property.
The Heathrow squatters have for more than two years occupied a site they call Grow Heathrow, transforming it from a derelict rubbish dump to a place where they can live and grow produce.
However, the owner of the site, Imran Malik, has successfully applied to Central London County Court to have the land returned to him.
Judge Karen Walden-Smith, while accepting Malik’s claim for possession, said yesterday that she was taking the ‘unusual step’ of granting an appeal against her own order evicting the squatters so that the higher courts could determine whether article eight applies to the private sector as well as to public bodies.
She said: ‘The supreme court has so far shied away from reaching a determination as to whether article eight applies to private as well as public landlords.
‘In my judgment… [since] the land is being occupied as a home, article eight is capable of application even though the landowner is a private individual and the occupiers are trespassers.’
If the Court of Appeal backs Walden-Smith’s decision, private landlords will have to take tenants’ human rights into consideration before asking them to leave.
Grow Heathrow resident May Mackenzie said: ‘We are delighted by this opportunity to challenge laws which allow landlords to leave land empty and abused.’
A spokesman for Malik said that he was disappointed that leave to appeal has been granted. The squatters have six weeks in which to bring their appeal.
Comments
And I presume May Mackenzie
And I presume May Mackenzie is paying for her Court of Appeal trip out of her own resources, using the money she has saved on rent, and acquired through her working and employment (thereby having contributed in Tax and National Insurance)?
Or is this yet another case of ridiculous high cost drivel, being funded by us, and coming out of the legal aid fund, giving the legal aid board even more excuse to cut legal aid from people who are actually deserving of it.
Funding
If you look at transitionheathrow.com, you will see that Grow Heathrow are "asking for donations to support the cost of lodging an appeal". I would have thought that the donations would be better spent on renting a new piece of land, rather than on running a hopeless Article 8 argument.
From my understading the
From my understading the argument is whether Art 8 would apply to private landlords not whether to defeat the order for possession. Interesting debate which has been avoided for several years but is more a procedural one in the current matter to my belief.
Obviously the claim would fail but clarification is needed on the point as why should judges regard a claim for possession brought by a local auhority differently from one brought by a private landlord. The reasoning should be interesting.
On the Art 8 point, surely
On the Art 8 point, surely that as the court is a public authority, it - the court - rather than the Private Landlord has to have regard to the right to a private and family life. Of course the court will do this by choosing whether to exercise discretion to suspend a possession order for a short period of time, or to make other arrangements to ensure the occupiers can exercise their rights.
When a local authority is the landlord, then they have their own obligations to consider Art 8.
@DomCoop I think you are
@DomCoop
I think you are missing the point, the question is whether Art 8 applies to proceedings where private landlords seek possession.
No I probably didn't express
No I probably didn't express myself clearly.
It would not apply DIRECTLY to the proceedings, since the claimant is seeking to obtain something to which he is entitled, and is not a public authority.
However, it would surely apply INDIRECTLY to the proceedings, since the court - as a public authority bound by the Human Rights Act itself - is required to consider when it exercises its powers whether or not it is breaching Art 8.
It is of course also required to consider Art 1 Prot 1.
There is nothing new about this. See, for example Beaulane Properties Ltd. v Palmer [2005] EWHC 817 (Ch) (23 March 2005) a case in which HRA was considered relevant to questions of occupation of land, and in which neither party was a local authority. Case is at:-
http://www.bailii.org/ew/cases/EWHC/Ch/2005/817.html
Article 8
Given that the appeal will almost certainly fail even if it is decided that Article 8 does have some application, the appeal seems an arid and academic exercise. It therefore seems odd that permission to appeal was given by the judge: it would surely have been more appropriate to refuse permission and leave it to the squatters to ask the Court of Appeal for permission. While it may be said that it would be helpful to get some clarification of the relevance of Article 8 in the private context (a point which the Supreme Court expressly left open in Manchester CC v Pinnock), this does not look like a particularly suitable case in which to seek that clarification.
And my client, Mr. Malik, is
And my client, Mr. Malik, is also not best pleased that he is being used as a guinea pig by the courts. The land concerned is his only significant asset and, having waited 2 years to secure its return, now will have to wait for a further period while the wheels of justice slowly turn.
Wheels of justice
Presumably, you can invite the "persons unknown" not to pursue the appeal (or, if they refuse to do that, try to get the hearing of the appeal expedited) and lay the groundwork for an application for indemnity costs.
Is the judgment online somewhere? Is there a transcript of the application for permission to appeal?
Not if they're legally aided.
Not if they're legally aided. I know they are asking for donations, but this is standard fayre with these types of organisations, even when they are being supported by the taxpayer.
And an indemnity costs order is probably not going to lead Swampy and Swampette to have any sleepless nights. The High Court Enforcement Officer won't be making thousands by seizing and auctioning a collection of healing crystals and a UB40 form.
Donations
If the squatters are legally-aided, I would be asking them why they are asking for donations, how much they have received to date and whether that amount has been disclosed to the LSC. And, if they are legally-aided, why is the LSC funding an appeal which is obviously going to fail? There might be scope for a costs order against the LSC in these circumstances.
They have not been legally
They have not been legally aided; their barrister has, I believe, been acting pro bono.
It is terrible. You would
It is terrible. You would think at least there would be some form of secutiry for costs, but I guess the Circus Judge at Central London wanted to keep her green credentials.
I know of clients faced with this sort of situation in the past who opted for a different method to resolve the problem. Call it "Alternative Dispute Resolution" if you will. It inolved paying a few hundred pounds to a few Gypsies, who attended with a few dogs and a few cans of used motor oil (not to burn or anything, but to make the place a mess and uninhabitable).
Problem solved.