Malik v Fassenfelt & Ors

The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect? That, in colloquial terms, is the issue in this appeal which is brought by squatters against the order made by Her Honour Judge Walden-Smith sitting at the Central London County Court on 19th July 2012 when she ordered that they give the claimant possession of his land to the north side of Vineries Close, West Draycott forthwith. The castle metaphor is quaint but outmoded: the correct legal question to be asked since the Human Rights Act 1998 came into force in October 2000 is how, if at all, if squatters have established homes on the land without the leave of the landowner, does the court, faced with a claim for possession by a private landowner against the trespassers, give effect to the squatters’ right to respect for their homes guaranteed to them by Article 8 of the European Convention on Human Rights?

The land was purchased by the respondent, Mr Imran Malik, in 2003 for £240,000. The land had been used as a market garden and plant nursery but the business had closed down by the time of his purchase. He was refused planning permission to develop the land for office use and although he contemplated applying for permission to build flats, he became aware of the growing uncertainty about the potential development of the land as a third runway at Heathrow Airport. The land falls within the village of Sipson in Middlesex, one of the villages that lies adjacent to the northern perimeter of Heathrow Airport and so is blighted by the ongoing threat of a future third runway for Heathrow. Instead, the respondent, who had a taxi business, used the land for parking and storing cars in the course of his business. In early 2007 through to 2008 he let the land to an importer of motor cars from Japan and in 2008 he let the land to a Mr Asad who used it unlawfully for the dumping of motor cars and for fly tipping, a use which led to enforcement notices being served both on Mr Asad and on the respondent. When the site was not cleared, both were convicted. The land was vacated by Mr Asad and the keys returned in mid-late February 2010.

Before the respondent could implement his new plan to convert the land back to a garden centre and to use it as a boxing club, unknown persons now represented, in effect, by the appellant Mr Joseph McGahan gained entry on 1st March 2010. They entered without the respondent’s permission and were and have remained trespassers. The occupiers are part of a group collectively known as “Grow Heathrow”, otherwise known as “Transition Heathrow”. The judge found that those who were part of the Grow Heathrow movement were mature, intelligent and highly articulate individuals who had chosen the lifestyle which they considered to be beneficial to themselves and to the community around them. They cleared the land which had become contaminated with spillage of car oils and fuels and they restored it to its former attractiveness as a market garden centre with a range of glass houses which in time became their dwelling places and their homes. They have won the praise of and support from the people of Sipson village. Nonetheless, as the judge found, they, or at least some of them, are “experienced squatters and knew precisely what they were doing when entering onto this land”.

The defendants raised defences to the claim for possession under three broad headings: (i) alleged procedural failings on the part of the claimant; (ii) the grant of an implied licence to remain on the land; and (iii) their enjoyment of the protection of Article 8 of the European Convention alleging that eviction would interfere with their rights and that any such interference would not be proportionate. The first two defences failed and there is no appeal against those parts of the judgment.

The defendants contended that the court had to determine what a reasonable period would be to allow them to vacate the land, suggesting a number of months but the claimant contended that if an order for possession was to be made, the court did not have jurisdiction to extend the normal time for possession orders to take effect.

The leading authority on claims for possession brought against squatters who had broken into empty houses and started to live in them without any authority from their respective owners is McPhail v Persons, Names Unknown [1973] Ch. 447. On the squatters’ appeals against orders that the plaintiffs “recover possession” of the premises Lord Denning M.R. said this at p. 456-458:

Orr LJ agreed and Lawton LJ added:

On that date relevant provisions of the European Convention on Human Rights became part of our law. By section 6 of the Human Rights Act 1998 it was made unlawful for a public authority to act in a way which is incompatible with a Convention right. A private landowner is not a public authority and is, therefore, not obliged to respect the trespasser’s human rights but section 6(3) of the Act makes it plain that the court is a public authority. It is, thus, common ground between the parties that the court is obliged to act in a way which is compatible with Convention rights. The relevant rights are these:

It is common ground that the squatters have established their homes on the land and thus the prospect of eviction from their homes must engage Article 8.

The impact of Article 8 has troubled the House of Lords and the Supreme Court on a number of occasions. In Harrow London Borough Council v Qazi [2004] 1 AC 983 a council house was let to Mr Qazi and his wife as joint tenants. She served a notice to quit but he remained in occupation. The local authority issued proceedings for possession and the defendant claimed the protection of Article 8. It was held, certainly by the majority, if not by all the members of the House, that there had on the facts been an interference by a public authority with Mr Qazi’s right to respect for his home. There was, however, a clear difference of opinion among the members of the House. In a case where a public authority had an unqualified right to possession under domestic property law, Lord Hope did not consider Article 8 to be irrelevant but held that Article 8(2) was satisfied where domestic property law gave an unqualified right to possession. He concluded that contractual and proprietary rights to possession could not be defeated by a defence based on Article 8. Lord Millett was of a similar opinion: Article 8 was engaged but, save in wholly exceptional circumstances, there would be no lack of respect and no infringement of Article 8 where an order was made in favour a person entitled to possession under domestic property law. Lord Scott echoed that view holding that Article 8 could not be raised to defeat contractual and proprietary rights to possession. Lord Steyn and Lord Bingham dissented, being of the opinion that where, as in that case, there was a proposed interference with a person’s right to respect for his home, the question of justification, if raised, did fall to be considered even though considerations of domestic property law were likely to be crucial and the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional.

The next case is Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. It was argued that Qazi should not be followed as two later cases decided by the European Court of Human Rights, namely Connors v United Kingdom (2004) 40 EHRR 189 and Blecic v Croatia (2004) 41 EHRR 185, were inconsistent with the ratio of the majority in Qazi and supported the approach of the minority.

Kay was essentially a homelessness case but linked with it in the House of Lords was a second appeal in the matter of Leeds City Council v Price & ors where the defendants were gypsies who had moved their caravans onto a recreation ground owned by the local authority without its consent and remained there as trespassers. To that extent it is similar to the facts of the case before us, save for the important difference that the claimants there were the local authority, a public authority under the Human Rights Act. The case is important in our appeal because of the discussion there of McPhail. It is, however, pertinent to put the discussion in its context and for that purpose I can conveniently cite the third holding from the headnote in the law report:

Lord Bingham said this:

In Lord Hope’s opinion, “The absence of any statutory protection in these cases” [including actions against trespassers] “is the result of a deliberate decision by Parliament that the owner’s right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier.” He agreed with Lord Nicholls that “judges in the county courts, when faced with [an Article 8] defence, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier’s Convention rights.” But he added:

In Baroness Hale’s view:

The law continued to develop. In Manchester City Council v Pinnock [2011] UKSC 6 [2011] 2 AC 104, nine members of the Supreme Court had to consider the local housing authority’s claim against a demoted tenant of a dwelling house for a possession order. The judgment of the court of nine was given by Lord Neuberger and among those agreeing with him were Lord Hope, Baroness Hale and Lord Brown who, as already shown, were in the majority in Kay outnumbering Lord Bingham, Lord Nicholls and Lord Walker. In the light of the further developments in Strasbourg which included cases such as McCann v United Kingdom (2008) 47 EHRR 913 and Kay itself (Kay v United Kingdom [2011] HLR 13), the Supreme Court concluded:

In so far as it is helpful to set out the principles which apply certainly so far as the local authorities are concerned, they are set out at [45]:

Dealing further with exceptionality the Court said this:

Shortly after the Supreme Court considered Pinnock, the same court heard Hounslow London Borough Council v Powell [2011] UKSC 8 [2011] 2 AC 186, dealing with claims for possession in cases of homelessness and introductory tenancies. Dealing with the form and content of the proportionality review, Lord Hope said:

In this appeal a further question arose as to the effect of section 89 of the Housing Act 1980 and the question was whether, if the argument was made out that the proportionate course would be to defer the delivery of possession for a period such as three months or to make a suspended order for possession, this could be done in the face of section 89(1) of the Housing Act 1980 which provides:

Dealing with this point Lord Phillips agreed but added:

The Court of Appeal considered Article 8 in Birmingham City Council v Lloyd [2012] EWCA Civ 969 [2012] HLR 44 where the defendant was a trespasser not entitled to the transfer of his deceased brother’s tenancy. Lord Neuberger said:

Finally there is Thurrock Borough Council v West [2012] EWCA Civ 1437 where the claim for possession was made against the occupier of a flat who could not claim a right of succession to it on the death of his grandparents. Etherton LJ said the principles to be applied were clear:

May I be forgiven this long trawl through the authorities, all dealing with claims for possession being made by public authorities when the following question lies at the heart of this appeal.

That question arose on an application for permission to appeal in Boyland & Son Ltd v Rand [2006] EWCA Civ 1860 where Neuberger LJ said, and I agreed with him:

Mr Jan Luba QC, who now appears for the appellants though he did not appear below, submits that, in the light of the developments of the law following the decisions in Strasbourg after Kay, it is time to acknowledge, as the Supreme Court did in Pinnock and Powell, that the minority view of Lord Bingham, Lord Nicholls and Lord Walker should prevail over the majority. Mr Luba is a most persuasive advocate and I always have to listen to him most attentively but at the conclusion of the oral argument I was on Miss Naomi Winston’s side. Since then I have, of course, read the authorities again, indeed again and again, and I am now satisfied that McPhail can no longer be regarded as good law. I come to that conclusion for these reasons:

It is rightly common ground that the squatters have established a home on the land by reason of the existence of a “sufficient and continuous link with a specific place” which is the autonomous test in European jurisprudence. The squatters are, therefore, entitled to respect for their homes by virtue of Article 8(1).

Even if Article 8 has no direct application between a private landowner and the trespassers on his land, the Court as a public authority is obliged by section 6 of the Human Rights Act 1998 to act in a way which is compatible with that Convention right.

The basic rules are not now in doubt, per Lord Hope in Powell at [33]. So the court will have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupiers’ eviction is a proportionate means of achieving a legitimate aim.

Proportionality is, therefore, in issue. The rule in McPhail that the court has no jurisdiction to extend time to a trespasser can no longer stand against a requirement that proportionality may demand, albeit most exceptionally, that a trespasser can be given some time before being required to vacate. In Pinnock the court held at [63] that the conclusion that the court must have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited and it seems to me this is one of those procedural provisions that does require fresh treatment.

There are subsidiary, but not very compelling, reasons for reconsidering McPhail. Part of the ratio of that decision was that the landowner has the remedy of self help but the Criminal Law Act 1977 has prevented the use of force to evict an occupier. His opportunity to obtain immediate relief by resorting to self-help may be curtailed if the squatters refuse to leave without a fight. Standing alone the changes in the criminal law would not lead me to depart from McPhail.

Another crucial factor distinguishing the present position from McPhail is the fact that in McPhail there was no defence to the claim of possession whereas, if Article 8 is engaged, then there is at least a potential defence.

If proportionality confers upon the court, as the public authority, a discretion to consider giving time to the trespasser even at the suit of a private landlord, then it seems to me that section 89 of the Housing Act 1980 must apply. However, section 89 does not prevent the making of an order for possession forthwith: it merely places a limit on possession being delayed beyond 14 days after the making of the order save in cases of exceptional hardship and even then possession must not be postponed to a date not later than 6 weeks after the making of the order. The court in Powell ruled against the submission that section 89 is incompatible with Article 8. Mr Luba submits that in a case where proportionality demands that a longer time than six weeks be allowed to the trespasser (if such a case can be imagined) then the court has no option but to dismiss the application for possession. It does not, he submits, preclude a further application being made by the landowner if the circumstances have changed. I do not find it necessary to rule upon that argument. I see its logical force but an indefinite postponement of possession seems to run counter to European jurisprudence: see [131] of the judgment in Yordanova v Bulgaria (Application No. 25446/06, dated 24th April 2012) where the court says:

I conclude that the court must approach the claim made by a private landowner against a trespasser in a similar way to that adopted to claims of various sorts made by a local authority as set out in the cases to which I have referred. Thus the test is whether the eviction is a proportionate means of achieving a legitimate aim. The fact that the landowner has a legal right to possession is a very strong factor in support of proportionality: it speaks for itself and needs no further explanation or justification. Thus, even if the defendants have established a home on the land but where they have otherwise no legal right to remain there, it is difficult to imagine circumstances which would give the defendant an unlimited and unconditional right to remain. The circumstances would have to be exceptional.

In her careful, reserved judgment Judge Karen Walden-Smith approached the Article 8 defence in this way. She found at [71] that for reasons she had given earlier in the judgment, no licence was expressly granted to the defendants nor was one to be inferred from what happened between the parties. The defendants therefore remained as trespassers on the land. The evidence established that the land was used as a home for some of the defendants. Although observing that the Supreme Court had shied away from reaching a determination as to whether Article 8 applies to private as well as public landowners, she held that “as the court is a public authority and the land is being occupied as a home, Article 8 is capable of application even though the landowner is a private individual and the occupiers are trespassers.” She gave permission to appeal that ruling but we are told that for financial reasons the respondent has not pursued that appeal. For reasons I have given I would have found that any cross-appeal would fail.

Consequently she held that “The real issue is whether Article 8 in fact affords any additional protection to the defendants in the circumstances of this case, the question being “whether the eviction is a proportionate means of achieving a legitimate aim” per Lord Neuberger at paragraph [52] of Pinnock.” Again, for the reasons I have given, I agree. Having referred to Article 1 of the first Protocol she concluded;

She addressed the specific reasons advanced by the defendants. The first was that they had made their homes on the land and had invested time and energy in clearing the land. She held that recovery of the land from trespassers, even if work has been carried out to that land, is proportionate because the alternative would be to allow the land to be taken and used by those who had no right in the land who would then prohibit the lawful owner from recovering his own land.

The other matter relied on by the defendants was their contention that their use of the land had significantly greater social advantages than the use to which the claimant was putting the land, or the use intended to make of the land. She considered the evidence that the local community were extremely keen for them to stay; they had the support of their local Member of Parliament; they had reduced anti-social behaviour in the area, fly-tipping and car thefts. In fact she accepted that it was most likely to be the case that the local community did consider “Grow Heathrow” on the land as a great asset. She was, moreover, impressed by the defendants and the manner in which they had conducted themselves and it was “undoubtedly the case that they are acting in the manner that they do with the best of motives, they would contend entirely altruistic ones.” But she concluded:

Her conclusion was:

Nevertheless she went on to consider section 89 of the Housing Act 1980 and referred to the contention of the defendants that if an order for possession is to be made it should not be made to take effect before 6 weeks from the date of the order. She held that section 89 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.

That reinforced her conclusion that the defences on behalf of the defendants all failed and the order for possession had to be made.

Mr Luba submits that the judge’s error is that she approached the matter on the basis that a failure to make anything other than a forthwith possession order would undermine the concept of private ownership of land. He submits that the stark choice the judge perceived to be applicable was between the land being “taken” by the occupiers and the owner being “deprived” of it and the immediate eviction of the occupiers: see paragraphs [83] and [85] of her judgment. That he submits, was a serious misdirection because the ownership of the land was never in issue nor was the existence of a right to possession. In essence he submits that the judge misdirected herself because she approached the question of possession on the basis of whether or not it was proportionate to make a possession order which took effect forthwith and not when it was proportionate to make a possession order. Article 8, he submits, introduces in the current context a temporal question, not shall the owner have possession (because he always should have possession) but when he should have possession.

Miss Winston points out that that was not the basis on which the appellants ran their defence at trial. Their case below was that possession should be refused. Their case in the defence in the alternative was that they should be allowed six weeks before the order took effect. She submits that the judge did follow the time-honoured approach in the county court of considering whether an order for possession should be made and if so when.

I am bound to say I can see no error in the judge’s approach. Having found that Article 8 was engaged she correctly identified the issue to be whether Article 8 afforded “any additional protection to the defendants”, the question being whether eviction was a proportionate means of achieving a legitimate aim. It seems to me to be beyond question that she was considering whether to extend the time at which possession to be given. She started with the difficulty of envisaging a circumstance where eviction would not be found to be a proportionate means of achieving a legitimate aim. I can see nothing wrong with that approach. An owner is entitled to the return of his property unless some exceptional circumstances militate against it. Mr Luba does not appear to challenge her conclusion that the work they did on clearing the land did not give them any right to added time. He did, however, attack her conclusion on the grounds that her order for immediate eviction did not have regard for the fact that the land was being occupied for a beneficial social purpose. He submits that the judge’s approach precluded her from considering that as a relevant factor. I do not read her judgment in that way at all. She was fully alive to the fact that these were, if I may paraphrase, “good” squatters and not “bad” squatters and she was obviously impressed by them and to that extent sympathetic towards them. I, too, can admire the good work they have done. Nevertheless, as the Supreme Court has emphasised, see [57] in Pinnock, the wide implications involved in a consideration of the proportionality of making an order for possession is “best left to the good sense and experience of judges sitting in the county court.” I could not possibly find that the judge was not entitled to conclude that the benefits to the local community arising from the occupation of the defendants were not enough to preclude the landowner seeking to vindicate his ownership rights to the immediate return of his property. An earlier passage in the judgment deserves mention:

For my part the judge was entitled to reach the conclusion she did in paragraph [88] of her judgment. She went on, however, to find that section 89 of the 1980 Act did not apply to trespassers and so she found that “the court has no jurisdiction to extend time for possession as a result of “exceptional hardship”.” If and in so far as she was relying on McPhail for the assertion that the court has no jurisdiction to extend time for possession, and it is not at all clear whether she did so for McPhail is not referred to in the judgment, she was wrong for the reasons I have given. Despite that error, I am satisfied that it had no material effect upon her judgment. She had reached the conclusion in the preceding paragraph that an order for possession was not disproportionate. She had done so in a proper, principled way. Paragraph [89] was a separate and added reason for her coming to her conclusion. She could not both have found that proportionality opened the door to an extension of time, which is the whole thrust of her judgment up to paragraph [88] but then find in paragraph [89] that there was no jurisdiction to extend time. Properly directed she would have maintained the conclusion she reached in paragraph [88]. I would reject Mr Luba's submission that this error requires us to allow the appeal and to remit the matter to the county court to consider whether an order for possession should be made within six weeks or if not whether it should be made at all. I would dismiss the appeal.

As this is the last judgment I shall deliver, I want to add this footnote. Article 8 is often much criticised, surprisingly even by those in a position of authority, as if it has incorporated some undesirable foreign jurisprudence into our law. I do not intend to enter into that debate, but read the opening words of my judgment. What I do want to emphasise is that this case demonstrates one aspect of our way of doing things which does represent the very best of British. That is our procedure for extended oral advocacy in our courts, especially in the appellate courts. Here we had Mr Luba QC, a true expert in the field, marshalling his written and his oral submissions in his usual measured and compellingly persuasive way. He has commanded my admiration over the many years I have been listening to him. Miss Winston is less well known to me. She had a rather torrid time when subject to a penetrating but ever-courteous Socratic inquisition from my Lord, Lloyd LJ, deploying a typical and invaluable judicial technique to tease out the issues and the arguments. She recovered and advanced her case with determination. The result was, as often happens, that the oral argument swayed the Court this way and that. That is the great triumph of oral advocacy and if it gives us more to ponder it eventually makes our task easier. It also makes it a pleasure to be a member of the Court. As I say, this, if not every application of Article 8, is undeniably the best of British. I am sorry not to be enjoying more of it.

The question whether McPhail remains good law in the case of a claim by a private landowner for possession of land occupied by a trespasser is inextricably connected with the question whether article 8 extends to such a case. The judge held that it did, but that in the circumstances an order for immediate possession was not a disproportionate interference with the occupiers’ article 8 rights. Recognising that the first point was controversial, and wishing to limit the issues so as to minimise the costs of the appeal, the respondent did not serve a respondent’s notice challenging the judge’s decision on that point. The argument therefore proceeded on the unchallenged basis that article 8 was applicable, and the issue was whether the judge was right on the question of proportionality.

I do not think that it would be right in these circumstances to decide whether the judge was correct about the availability of article 8 as a potential defence to the claim. A decision on a point which was not in issue before us would be only of persuasive authority. In any event, I would not wish to reach a decision on the point without fuller consideration of the case law on article 8 and of the potential implications. Sir Alan Ward has reviewed the development of the law in relation to public authority landowners, but the courts have been careful to emphasise that nothing in them was intended to bear on claims by private landowners: see Manchester City Council v Pinnock at [4] and [50], cited by Sir Alan Ward at [16].

The expressions “private life” and “home” in article 8 have been interpreted very broadly. “Home” may include a holiday home and a place of intended residence. The “home” of a businessman includes his business premises. “Home” can also include premises which are unlawfully occupied. So I have no doubt that in this case the site is “home” to those who are living there. Their position is in that respect similar to the occupants of Roma camps in Yordanova v Bulgaria [2012] ECHR 758 paragraph 103. However, that is only the start of the inquiry.

The primary obligations imposed by article 8 are negative: the state is not to interfere with a person’s private life or home, etc, except on limited grounds. It has been long recognised that the article also imposes some implied positive obligations, but the Convention jurisprudence does not provide a universal formula or touchstone for determining the incidence or extent of such obligations. The Convention imposes obligations on states, not private citizens, but in some instances the Strasbourg court has held there to be an obligation on the part of states to take measures to protect a person’s private life from interference by another private person or private enterprise – in particular, by criminal acts (X & Y v Netherlands (1985) 8 EHRR 235 paragraph 23, MC v Bulgaria (2003) 15 BHRC 627 paragraph 153) or by the intrusive and harassing activities of paparazzi (Von Hannover v Germany (2005) 40 EHRR1 paragraph 57). However, these are striking and unusual cases in which the applicants were victims of particularly objectionable conduct which seriously impaired their ability to lead a normal life. Article 8 does not ordinarily apply to regulate conduct in the private sector.

It would be a considerable expansion of the law to hold that article 8 imposes a positive obligation on the state, through the courts, to prevent or delay a private citizen from recovering possession of land belonging to him which has been unlawfully occupied by another. There would also be a weighty argument that for the state to interfere in that way with a private owner’s right to possession of his property would be contrary to a long standing principle of the common law, which finds echo in article 1 to protocol 1. The principle was stated in Entick v Carrington (1765) 19 State Tr 1029, 1060:

The potential consequences of such a development and implications for other situations would need careful thought, particularly since the concepts of private life and home are so wide.

For those reasons I do not agree that we should hold that McPhail has ceased to represent the law in cases of trespass to privately owned land, and I would wish to reserve my opinion until such a case comes before the court in circumstances where the applicability of article 8 is in issue.

I am sorry to follow Sir Alan Ward’s inimitable judgment with a note of discord. However, I fully agree with him that, assuming as we must for the purposes of this appeal that the judge was right on availability of article 8 as a defence to the claim, her carefully reasoned decision to order immediate possession of the land cannot be faulted. I agree therefore that the appeal should be dismissed.

I too agree that the appeal should be dismissed. In a way it is matter of regret that the Respondent did not pursue the permission to appeal given to him by the judge on this point so as to challenge the judge’s conclusion that article 8 was engaged as between a private landowner and squatters because of the position of the court as a public authority. It would have been an interesting question on which I have no doubt that we would have received valuable submissions from both sides. Some of the difficulties with which it would have been necessary to grapple are interestingly discussed in Gardner and Mackenzie, Introduction to Land Law (3^rd ed.), Hart Publishing 2012, at Chapter 2. There a degree of frustration is expressed as to the uncertainty:

The authors and other commentators will have to wait somewhat longer, though with the benefit of what Sir Alan Ward has said. It has also to be said that, if the point had been taken, it might have led to an even longer delay in giving judgment than that which has occurred, which I regret.

However, the fact is that the point was not taken before us, we had no submissions on it, and it does not seem to me that we ought to enter upon it so as to venture a view as to whether the judge was right or wrong. Like Lord Toulson, therefore, I reserve for a future case the question whether McPhail is good law in a case where a landowner who is not a public authority seeks possession of land occupied by a trespasser.

Assuming, therefore, without deciding, that the judge was right (because her decision is not challenged in that respect) I have no doubt that her decision to make an immediate possession order was correct on the facts of the case, and beyond challenge on this appeal.