Timothy William Dutton & 3 Others v Persons Unknown & Others
| Jurisdiction | England & Wales |
| Judge | Judge Hodge QC |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] EWHC 3988 (Ch) |
| Court | Chancery Division |
| Date | 06 November 2015 |
| Docket Number | Claim No. B31MA436 |
[2015] EWHC 3988 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
His Honour Judge Hodge QC
sitting as a Judge of the High Court
Claim No. B31MA436
Counsel for the Claimants: Miss Myriam Stacey
Counsel for the Named Defendants: Mr. Alex Offer
APPROVED JUDGMENT
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.
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.
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.
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.
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.
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.
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.
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.
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;...
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