Nelson Loveridge and Ors v The Mayor and Burgesses of the London Borough of Islington
“The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way. Some see nature all ridicule… and some scarce see nature at all. But to the eyes of the person of imagination, nature is imagination itself” (William Blake)
Goldsmith Chambers’ third-six pupil, Jeremy Frost, has acted for environmental campaigners in a successful High Court application for permission to appeal against a possession order. In the hearing on 18 November 2020, he was led by Marie Demetriou QC of Brick Court Chambers, with both counsel acting pro bono.
Islington Council had granted itself planning permission for private dwellings on a public green space at Dixon Clark Court, opposite Highbury Corner Tube Station. The development, if it goes ahead, will entail the felling of seven mature trees – horse chestnuts, sycamores and a Norwegian maple A well-supported local campaign has been seeking to persuade the Council to change its mind, and several environmental activists, including Mr Loveridge, are currently occupying the site. The Council issued possession proceedings in the High Court, and, due to time constraints, witness statements supporting the defence of the possession claim had not been filed ahead of the hearing on 12 November 2020. At that hearing, at which the defendants were represented by a Mackenzie friend, Deputy Master Linwood refused to read the statements, or to allow an adjournment, and only gleaned a flavour of what they contained because opposing counsel had sifted and summarised them, as it were, on the hoof. The Deputy Master proceeded to make an order that the “Defendants give the Claimant possession of the Site on or before 12 noon on Wednesday 18 November 2020”. Mr Loveridge and his fellow site occupiers sought permission to appeal against the order, and an interim stay.
The case was heard by Mr Justice Peter Roth, who found an arguable case that the possession order is contrary to Articles 10 and/or 11 of the European Convention on Human Rights, which protect the freedom to protest and freedom of expression, including the location of and manner in which any protest is conducted. The Judge found, in particular, that the hearing before the Deputy Master had been unsatisfactory because he had not read the many witness statements submitted in defence of the council’s possession claim, many of which contained key evidence that is relevant to the issues raised under Articles 10 and 11. Although the Deputy Master had set out the correct balancing exercise, including the Court of Appeal’s (non-exhaustive) list of relevant factors in City of London v Samede [2012] EWCA Civ 160 (at [39]), he could not have adequately undertaken that balancing exercise without having appraised himself of key evidence submitted by the site occupiers.
So, for instance, on the first factor identified in Samede, the breach of domestic law, the Deputy Master found that the activists appear to have been a breach of coronavirus regulations. However, evidence was overlooked that suggested this was simply not the case. Further, he had considered evidence from the council to suggest that some residents may be upset by the protest, but had not considered the copious evidence of other residents, local schoolchildren, and a local councillor, who were supportive.
Moreover, the Judge found (in line with Samede at [51]-[54]), that even if interference with Articles 10 and 11 were justified, the question of proportionality also goes to the appropriate remedy that the court may impose. Less intrusive remedies that full and immediate eviction/possession should at least be explored, but in this case had not been.
Thus, permission to appeal has been granted on grounds of procedural unfairness and arguable breaches of Articles 10 and/or 11, the Judge further ordering a stay of the possession order which therefore cannot be enforced until the appeal is determined.
One further ground of appeal was unsuccessful, namely a procedural argument that the possession application had wrongly been issued in the High Court rather than the County Court, given that there were no exceptional circumstances under Practice Direction 55A of the Civil Procedure Rules. The Judge held that the procedural arrangements are a merely a “filter mechanism”, designed to avoid overburdening the High Court with claims that do not properly belong there. They are not in themselves intended to open up subsequent contested hearings.
If the appellants are successful at the substantive stage, the matter will be remitted for a fresh determination of the council’s possession application. This will not, of course, affect the planning application itself. However, the stay at least gives the protesters time to generate even more support and publicity in their efforts to save these seven trees, and to persuade the council, who have recently declared a climate emergency, to consider developing one of the dozens of available brownfield sites instead.
Related barristers: Jeremy Frost
