Possession — RSC Ord 113 — Trespassers — Protesters against development — Whether licensees having contractual rights to ‘occupy’ land entitled to possession under Ord 113
In August 1999 the first appellant and her friends set up a protest
camp in an area of woodland. The camp covered two plots of land that the
respondent developer had options to purchase for residential development. Under
the option agreements, the respondent held licences permitting access to carry
out surveys and investigations. Following an application under RSC Ord 113, the
district judge granted the respondent an order for possession of the plots in
October 1999. On appeal, the district judge’s decision was upheld. The Court of
Appeal granted permission to the first appellant to appeal that decision. There
were other proceedings following the acquisition of title to the plots by the
respondent.
It was important not to confuse contractual rights, in relation to
which the respondent might well have rights against any person who sought to
interfere therewith, with the right of possession, which was the foundation of
an Ord 113 remedy. There was a difference between a licence granted for the
purpose of access, which did not provide effective control over the land, and a
licence to occupy, which did. If the respondent had occupied the land prior to
the protest camp being set up, it might have been able to argue that, as a
fact, it did occupy and have effective control so as to bring itself within the
concept, as recognised by Laws LJ in Manchester Airport plc v Dutton [1999]
1 EGLR 147. The respondent did not have a contractual right to occupy or have
possession with the effective control that was necessary if Dutton were
to apply. It simply had a contractual right to access, which was not sufficient
for Ord 113 purposes.
BP Refinery (Westernpoint) Pty Ltd v Shire of Hastings
(1978) 52 AJLR 20, PC
Luxor (Eastbourne) Ltd v Cooper [1941] AC 108;
[1941] 1 All ER 33, HL
Manchester Airport plc v Dutton [2000] 1 QB 133;
[1999] 3 WLR 524; [1999] 2 All ER 675; (2000) 79 P&CR 541; [1999] 1 EGLR
147
Westminster City Council v Croyalgrange Ltd [1986]
1 WLR 674; [1986] 2 All ER 353
Wiltshire County Council v Frazer (1983) 83 LGR
313; (1984) 47 P&CR 69, CA
Appeal against possession order
This was an appeal brought by Christiana Tugwell (a minor) by her
litigation friend (Maria Tugwell) against the decision of Sir Oliver
Popplewell on 29 November 1999, dismissing her appeal against a possession
order granted to the respondent, Countryside Residential (North Thames) Ltd.
appeared for the appellants, Christina Tugwell and Maria Tugwell.
Cambridge) represented the respondent, Countryside Residential (North Thames)
Ltd.
WALLER LJ: Miss Tugwell, who is the appellant on this
appeal, is just 16 years of age. In August 1999 she and some young friends set
up a protest camp in woods across the road from her home in Wood Avenue,
Hockley. The camp was set up on plots 22 and 14, as identified on a map that is
at p11 of our appeal bundle1. Her protest was against the activities
of the respondent. It was planning to develop houses, and had secured options
over certain plots of land behind Miss Tugwell’s home. In order to secure
planning permission for the proposed development, it had obtained licences
under the options, which entitled it to carry out certain investigatory work on
the sites, those works to be carried out prior to obtaining planning
permission.
1 Not reproduced here
The terms of those licences were in clause 6 of the options. An
example of the clause is at p14 of our bundle1 and reads:
The owners will at any time on 10 working days prior notice in
writing by Countryside (that is the developers) allow Countryside and their
duly authorised representatives access to the property to carry out surveys and
technical investigations (including soil pollution and archeological
investigations) of the site provided that Countryside shall cause as little
damage as possible and make good all damage caused at its own expense.
Although there is no express reference to the carrying out of an
ecological survey in clause 6, it is common ground that it was the threat of
the carrying out of such a survey through certain ecological consultants that
caused Miss Tugwell and her friends to mount the protest. We were told, and it
is not unimportant, that Miss Tugwell and her friends began their occupation of
the sites before the developer came onto the sites through the consultants.
Thus, the only licence or right upon which the developer could rely at the
commencement of the proceedings, and when the original order was made by the
district judge on 19 October 1999, is clause 6, and its right must be governed
by the wording of that clause.
It was on 14 October 1999 that the developer commenced proceedings.
They were commenced under Ord 113. That order is still the applicable procedure
following the coming into force of the CPR. It is a summary procedure designed
for situations in which trespassers can be ejected from land by the person or
company in ‘possession’ (to use the words of the order) of land. It was a procedure
brought in by amendment to the rules
in 1970, in order, in particular, to provide a procedure where not
every wrongful occupier could reasonably be identified. An order for possession
under Ord 113 was granted to the developer by the district judge in Cambridge
on 19 October, as I have said. It seems that, on 29 October 1999, the developer
completed its purchase of one of the plots, plot 14, and thus, from that date,
held an equitable title to that plot.
An appeal came on before Sir Oliver Popplewell on 23 November 1999.
It does not appear that any argument was addressed to Sir Oliver on the basis
that the acquisition of an equitable title to one of the plots made any
difference to the developer’s position as compared to that before the district
judge. Indeed, since, with regard to one plot, that is, plot 22, the
developer’s position was no different, that perhaps was not surprising. Thus,
it was upon clause 6 of the licence that the developer once again placed its
reliance as being the person in ‘possession’ and entitled to bring the Ord 113
proceedings. The original order of the district judge was upheld in trenchant
terms by Sir Oliver. The position as he saw it was that Miss Tugwell and her
friends were trespassers, which they undoubtedly were; they had no merit; and
public funds should not be wasted on enabling Miss Tugwell to defend the
proceedings. He also, not surprisingly, refused permission to appeal.
An application was made for permission to appeal. Chadwick LJ took
a different view in giving permission. He identified a point of some
importance, which he expressed as being the ‘extent to which Dutton had
derogated what was formerly thought to be the established law in relation to
claims for possession’. Dutton was a decision of the Court of Appeal (Manchester
Airport plc v Dutton [1999] 3 WLR 524), in which Chadwick LJ gave a
dissenting judgment. The majority, Laws and Kennedy LJJ, had upheld the
decision of Steel J to grant Ord 113 relief to Manchester Airport as a licensee
that had been given a right to ‘enter and occupy’ part of a wood for particular
purposes. I will have to examine precisely what the majority in Dutton decided
in a moment. The concern of Chadwick LJ in giving permission was that, even if Dutton
had enabled licensees that had a contractual right to ‘occupy’ land to
obtain orders for possession under Ord 113, an impermissible extension to Dutton
was arguably being invoked in the instant case.
I should complete the history. In the meanwhile, the developer
obtained a legal title to plot 14 and an equitable title to plot 22. In those
circumstances, it brought fresh proceedings on 25 January 2000 in reliance upon
its titles. Miss Tugwell’s advisers resisted the new proceedings only in so far
as the developer was not able to establish its legal title. The district judge
made an order for possession. That order was confirmed on appeal by Judge
Richard Walker QC on 16 February 2000. In the light of the existing appeal in
the first proceedings, he granted permission to appeal so that the matter could
come on at the same time as the first appeal. Both appeals were listed before
this court today. In the meanwhile, the story had moved on. There is some
dispute about the way in which things happened, but, as of today, Miss Tugwell
is no longer occupying a camp on plot 22 or on the land that the developer
wishes to develop. The
proceedings would thus, at first sight, appear to be academic.
Attempts were made by the parties to dispose of the appeal by agreement.
Indeed, even before the second set of proceedings had been heard by the judge
on appeal from the district judge, an effort was made by those acting for Miss
Tugwell, who, it should be said, has always been legally aided, and who was, at
that time, still occupying her protest camp, to reach a compromise. They did
that by making a Part 36 offer, which both sides were ultimately happy that we
should see. I will not go into the details of that offer except to say that, in
the light of the view that I take of the merits of the appeal, that was an
appropriate and responsible offer to have made. Ultimately, costs were a
stumbling block to disposing of the appeal. Indeed, following the
correspondence that was revealed to this court, through my lord, Aldous LJ,
this court expressed disquiet at the possibility that an academic point might
be being decided on this appeal. A short period was given for the parties to
reconsider their position. That reconsideration produced a settlement of the
second appeal on the basis that that appeal would be dismissed with no order as
to costs, but, as regards the first appeal, no agreement could be reached. Mr
Matthew Hutchings’ position on behalf of his client was that a duty was owed to
the legal aid fund. He pointed to the fact that his client had made the Part 36
offer previously, and he submitted that the first appeal had good prospects of
success. He submitted that there was a lis so far as costs were
concerned. He referred us to Westminster City Council v Croyalgrange
Ltd [1986] 2 All ER 353, where the position on costs was described as
giving sufficient lis to decide an appeal.
Mr Christopher Falvey, it should be said, on behalf of his clients,
was resolute. He said that it was prepared not to seek orders for costs, but it
was not prepared to pay any part of Miss Tugwell’s costs.
This court took the view that there was a point of some importance
identified by Chadwick LJ, and that it was right to resolve that point in order
to resolve the issue as to costs.
Mr Hutchings, in his skeleton argument, has indicated that he
sought primarily to distinguish Dutton in so far as the first appeal was
concerned. He also indicated that he wished to challenge Dutton even in
this court, as decided per incuriam. It was indicated to him that he
should, at least initially, concentrate upon distinguishing Dutton. He
appreciated that, although he might keep open the question of whether Dutton
was rightly decided, if he could successfully distinguish the same that was a
shorter and more cost-effective way of dealing with the first appeal.
The argument on the first appeal of Mr Hutchings was, ultimately, a
short one. The only basis upon which the developer could claim ‘possession’,
when the proceedings were before the district judge on 19 October 1999, was on
the basis of the right of access to the land under clause 6 of the options. He
submitted that the language of the clause did not provide for the developer to
have ‘effective control’ of the land; ie he submitted that it did not give the
developer that right of ‘possession’ or ‘occupation’ that entitled it to eject
trespassers. He submitted that, on any view, Dutton should not be
construed as going further than its particular
circumstances would allow. He submitted that an examination of the
view of the majority in Dutton demonstrated that not that every licensee
who had some right of access to land had the right of possession required to
eject trespassers. The only licensee who had that right was the licensee who
had the right of ‘effective control’ of the land, ie who had the right of
occupation in that sense. He submitted that the words of clause 6 were clear in
providing access only, and did not give the right to that ‘effective control’.
There was no room, he submitted, for implying a term to provide the developer
with that effective control. He cited to us authorities relating to the
implication of terms. He cited BP Refinery (Westernpoint) Pty Ltd v Shire
of Hastings [1978] 52 ALJR 20, a decision of the Privy Council, in
particular a passage in the speech of the majority delivered by Lord Simon of
Glaisdale at p26. He also referred us to the passage in Lord Wright’s speech in
Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 at p137.
Mr Falvey submitted, however, that Dutton was not concerned
with a licence that granted a right to occupation, in the sense of having
effective control over the land. He submitted that the developer in the instant
case had rights to occupy in as full a sense as those the subject of the
decision in Dutton. He submitted that the developer’s right was to occupy
for the purpose of carrying out the tasks envisaged by clause 6 of the options
or any other task for which it had consent to enter the land. He submitted that
its rights were to exclude at least those who interfered with the carrying out
of those lawful rights. His argument was that, because his client must have had
the right to exclude anyone who interfered with the tasks it was contractually
entitled to carry out, his client must have had at least that much possession
and, thus, the right to exclude anyone who did not have a superior title to his
client.
In my view, it is important not to confuse contractual rights, in
relation to which the developer may well have rights against any person who
seeks to interfere therewith, with the right of possession, which is the
foundation of an Ord 113 remedy. In my view, the construction that Mr Hutchings
places upon the judgments of the majority in Dutton is correct. The
basis of Laws LJ’s judgment seems to me to be found in the following extracts
from his judgment. At p536C-D, at the beginning of his judgment, he says:
Now, I think it is clear that if the… [airport company] had been
in actual occupation under the licence and the trespassers had then entered on
the site, the [airport company] could have obtained an order for possession; at
least if it was in effective control of the land.
And then, a little further down that page, he says:
But if the
[airport company], were it in actual occupation and control of the site, could
obtain an order for possession against the trespassers, why may it not obtain
such an order before they enter into occupation, so as to evict the
trespassers and enjoy the licence granted to them? As I understand it, the
principal objection to the grant of such relief is that it would amount to an
ejectment, and ejectment is a remedy available only to a party with title to or
estate in the land; which as a mere licensee the [airport company] plainly
lacks.
He then examined the law in relation to ejectment, and, ultimately,
he said (this might be said to be going a little more widely, but it has to be
read in the context of what he had previously said):
In my judgment, the true principle is that a licensee not in
occupation may claim possession against a trespasser if that is a necessary
remedy to vindicate and give effect to such rights of occupation as by contract
with his licensor he enjoys. This is the same principle as allows a licensee
who is in de facto possession to evict a trespasser. There is no
respectable distinction, in law or logic, between the two situations.
The judgment of Kennedy LJ also supports the view that something
beyond just the right to enter the land is required. He cites a dictum from
the judgment of Stephenson LJ in Wiltshire County Council v Frazer (1984)
47 P&CR 69, and then says at p539H:
In my judgment, those requirements are met in this case. The
plaintiff does have a right to possession of the land granted to it by the
licence. It is entitled ‘to enter and occupy‘ (my emphasis) the land in
question.
He places emphasis on the fact that the right is to enter and
occupy. It seems to me that there is a clear difference between a licence
granted for the purpose of access, which does not provide effective control
over the land, and a licence to occupy, which does. In the instant case, if the
developer had occupied the land prior to protest camps being set up, it might
have been able to argue that, as a fact, it did occupy and have effective
control, so as to bring itself within that concept as recognised by Laws LJ.
However, it does not seem to me that it was in any way legitimate to imply
terms into the licence or to construe the licence, clause 6, so as to provide
for that degree of control by contract. In my view, the first appeal should be
allowed. The developer did not have a contractual right to occupy or have
possession with the effective control that is necessary if Dutton is to
apply. It simply had a contractual right to access, which is not sufficient for
Ord 113 purposes. Since we are agreed as to the conclusion on the first point
taken by Mr Hutchings, we have not heard argument on how far Dutton can
be attacked in this court.
ALDOUS LJ: I agree.
ROUGIER J: I agree.
Appeal allowed.
