The Court of Appeal has recently handed down its long awaited judgment in the case of Malik v Fassenfelt  EWCA Civ 798. In this case the Court had to determine whether the right to a home and family life, under Article 8 of the European Convention on Human Rights 1950, should apply in eviction proceedings against occupiers of the ‘Grow Heathrow’ site on land earmarked for the third runway at Heathrow.
The respondent in this case was Mr Imran Malik, who owned land in Sipson, Middlesex. Having initially used the land for storing and parking cars in the course of his taxi business, Mr Malik decided to let it to third parties in 2007 and 2008. Following the unlawful use of the land for the dumping of cars and fly tipping which resulted in enforcement notices being served to both the lessee and Mr Malik, the land was returned to Mr Malik in 2010.
Before he could make any plans for the use of the land, unknown persons, part of a group known as 'Grow Heathrow' or 'Transition Heathrow', gained entry to the land as trespassers and established a home on the land, restoring it to a market garden centre. Mr Malik brought proceedings for possession to which the defendants raised a number of defences, one of which was that eviction would interfere with their rights under Article 8 of the European Convention on Human Rights (ECHR) and that any such interference would not be proportionate.
The First Instance Decision
Sitting in the Central London County Court, Her Honour Judge Walden-Smith made the following observations:
- Since the court was a public authority and the land was being occupied as a home, Article 8 was applicable although the landowner was a private individual and the occupiers were trespassers. The question therefore was whether the eviction was a proportionate means of achieving a legitimate aim;
- Under Article 1 of Protocol 1 of the ECHR, private landlords are entitled to the peaceful enjoyment of their land. It would be in highly exceptional circumstances that their protected rights under Article 1 could be interfered with by reason of the Article 8 rights of trespassers.
Granting Mr Malik an order of possession, she concluded that "while Article 8 does apply in principle to cases involving a private landowner and a trespasser, it is difficult to envisage circumstances where it would have any consequence and the eviction would not be found to be a proportionate means of achieving a legitimate aim." (para 82)
The judge went on to consider the defendants' contention that if an order for possession was granted it should take effect no earlier than 6 weeks from the date of the order. Having considered section 89 of the Housing Act 1980, she concluded that it did not apply to trespassers and that the court had no jurisdiction to extend time for possession as a result of "exceptional hardship" with respect to trespassers or unless the defendants successfully sought a stay.