Lane v The Royal Borough of Kensington & Chelsea London Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeSir Raymond Jack
Judgment Date19 April 2013
Neutral Citation[2013] EWHC 1320 (QB)
Date19 April 2013
Docket NumberCase No: QB/2011/0706

[2013] EWHC 1320 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Strand

London

WC2A 2LL

Before:

Sir Raymond Jack (Sitting as a Judge of the High Court)

Case No: QB/2011/0706

Between:
Lane
Applicant
and
The Royal Borough Of Kensington & Chelsea London Borough Council
Respondent

Mr Ben Mccormack (instructed by WTB Solicitors) appeared on behalf of the Applicant

Mr Stephen Evans (instructed by the Director of Legal Services for the Royal Borough of Kensington and Chelsea) appeared on behalf of the Respondent

Approved Judgment

1

This is an appeal against an order of His Honour Judge Collender, QC made on 23 rd December 2011 in the Central London County Court.

2

No. 19A Edith Grove, Chelsea has a long and interesting history. For present purposes that history begins in 1956, when a tenancy was entered into between the Royal Borough of Kensington and Chelsea as landlord and the father of Mr Nicholas Lane. Mr Lane's father died in 1989 and his mother succeeded to the tenancy. When it expired a fresh tenancy was entered into by his mother with a provision that it might only be used as an artist's studio. The Borough, however, gave Mrs Lane a licence to use the property for residential purposes. That licence was to last for her lifetime only. She died on 29 th January 2005. Mr Nicholas Lane was born in 1964 and started life in the property. He has continued to live there following the death of his mother. He pays no rent.

3

The issues in the action relate to a Tree of Heaven planted in the small rear garden in about 1956. The size of this tree and its roots have caused difficulties between Mr Lane and his neighbour at No. 17A, Mr Lennarts Jostedt. The tree has caused cracking in the wall between the two gardens and may be interfering with water services to 17A. It also overhung the garden of 17A. It is very likely that no difficulties would have arisen with Mr Jostedt if Mr Lane did not suffer from obsessive compulsive disorder. In his case the disorder is severe and chronic and is associated with or triggered by changes in Mr Lane's life-long home, such as possibly the proposal to fell the tree with which he has a particular fixation. On 18 th July 2010 the Council made an order entitling Mr Jostedt to enter 19A's garden and to fell the tree. On 29 th March 2011 Mr Lane commenced proceedings against the Borough as First Defendant and Mr Jostedt as Second Defendant and obtained an injunction preventing the felling.

4

On 10 th November 2011 Judge Collender ordered that a preliminary issue be determined between Mr Lane and the Borough. The issue was as follows: whether the Claimant has any proprietary interest in 19A Edith Grove, London SW10 0JZ and, if not, whether he has any other sufficient interest to entitle him to bring a claim against the first Defendant. The judge heard the issue and delivered his judgment on 23 rd December 2011. He decided that Mr Lane had no proprietary interest in No. 19A and was, in effect, living there as a trespasser. He also held that Mr Lane had no claim under the Equality Act 2010 arising from his disability as a suffer from OCD because he was not a lawful occupier. There is now no appeal against those conclusions.

5

The final matter which the judge had to consider was whether the Council's order was an interference with Mr Lane's rights under Article 8 of the European Convention on Human Rights and whether this gave Mr Lane an interest to bring a claim against the Borough. He decided that Mr Lane was unable to advance a claim in connection with Article 8. That is the sole issue which is the subject of this appeal. As I have said, the order for the preliminary issue provided that it was to be determined between Mr Lane and the Borough. Mr Jostedt took no part.

6

I should next record that the order for the preliminary issue made on 10 th November 2011 also recorded an agreement made between Mr Lane and Mr Jostedt. It was that Mr Jostedt might lop the tree in quite a severe way and cut the roots that are beneath No. 17A to a depth of four feet. In his judgment Judge Collender expressed the hope that the performance of this work might resolve the differences between the parties. The lopping was carried out in, I think, the first part of 2012. It appears that Mr Jostedt may still want to fell the tree, but I have no definite information as to this. The Borough's order permitting him to fell the tree remains in place.

7

Mr Lane did not have legal aid initially, but following the payment of the costs awarded against him in the County Court his savings have been sufficiently reduced for him to be eligible, so he is now represented at public expense. The beneficiary, as it were, on the Defendant's side, namely Mr Jostedt, plays no part, presumably because he wants to avoid costs. So this litigation is between two publicly funded parties with the Borough acting to protect the interest of Mr Jostedt. It does not seem that any efforts have been made to resolve the matter following the lopping, although the Borough has received an arboricultural report on the tree dated 13 th June 2012. If that is right, it is unfortunate. The parties should be looking to see what can be done to resolve the situation and avoid the further expense of legal proceedings.

8

I come now to the final part of Judge Collender's judgment where he dealt with Article He stated:

"Finally, it is said that in his dealings with the tree in relation to the claimant the first defendant has breached his rights under Article 8 of the European Convention on Human Rights brought into domestic law by the Human Rights Act 1988. That provides that (1) everyone has the right to respect for his private and family life, his home and his correspondence; (2) there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary for democratic society in the interests of national security, public safety or the economic wellbeing of the country for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

"Home, it is argued is an autonomous concept and does not depend on an occupier having a legal interest in property. It is not limited necessarily to those homes which have been lawfully occupied or lawfully established. See, for example, Mabey v. United Kingdom [1996] 22 EHHR CD 22.

"In my judgment in the circumstances of this case and in particular my finding that the claimant has no proprietary interest in the property, the claimant cannot successfully rely on Article 8 so as to establish a sufficient interest in the property to entitle him to bring this claim.

"In reaching that conclusion I take support from the speeches of the majority in the House of Lords in ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT