The end of the road for human rights in private landowners' disputes?

This article examines whether, and if so, to what extent human rights are progressively transforming the juridical basis of the law in relation to private landowners. First, the article analyses the vagaries which undermine a coherent framework for horizontality and erode stability and predictability in private land law disputes. It is argued that McDonald v McDonald is applying a species of negative obligation model with the consequence that horizontality will only apply in non-regulatory and non-consensual circumstances. Various grounds for cognitive dissonance between the analysis in McDonald and normative adjudicative reasoning are explored. It is suggested that judges may be evolving a form of contextual horizontality to deal with complexities involved in difficult circumstances. Secondly, it is examined whether vulnerability as a heuristic device can result in increased human rights protection for occupiers of privately owned land. Case law is analysed to demonstrate that flexibility to help the vulnerable is evident in deserving cases.