Trespassers entering land – Owner of property granting licence – Licensees seeking to evict trespassers – Licensees not in occupation or possession of land – Whether licensees having sufficient interest in land to apply for possession order under Ord 113 RSC 1965 – Judge making possession order – Appeal dismissed
A property known as Arthur’s Wood, Styal, Cheshire, was conveyed to the National Trust by a conveyance dated 5 August 1980. The wood was situated at or near to the proposed second runway at Manchester Airport. In order to comply with conditions that would govern the operation of the proposed second runway, the respondent airport company needed to reduce nearby obstacles, which would involve the topping, lopping and felling of trees in the wood. The appellants were opposed to the works on environmental and ecological grounds, and entered the land and set up encampments, including tree houses, ropewalks and a tunnel. It was the appellants’ intention that their occupation would make it difficult or impossible for the respondent to carry out the works. On 22 June 1998 the National Trust granted a licence to the respondent to allow it to enter and occupy the wood to carry out the works.
On 7 August 1998 the airport commenced proceedings by way of originating summons under Ord 113 of the Rules of Supreme Court 1965 against six named individuals and a “person unknown”, on the ground that it was entitled to possession and that the persons in occupation were occupying without licence or consent. The district judge made an order under Ord 113 r 6 that the respondent was entitled to recover possession, which was upheld by the judge. The appellants appealed contending that Ord 113 r 1 only entitled a person with an absolute title and exclusive possession to claim a possession order by way of originating summons, and since the respondent only had a licence to occupy and was not in occupation, it did not have the locus standi to apply for such an order.
Held The appeal was dismissed by a majority.
1. Although the limited and specific nature of ejectment meant that it was not available to a licensee, it did not imply the further proposition that no remedy by way of possession could currently be granted to a licensee not in occupation. In any event, there was no longer a distinct remedy of ejectment and the proposition that a plaintiff not in occupation might only obtain a possession order if he was an estate owner assumed that he had to bring himself within the old law of ejectment, which was a false assumption: Radaich v Smith (1959) 101 CLR 209; Street v Mountford [1985] AC 809, considered.
2. Under the same principle that allowed a licensee who was in de facto possession to evict a trespasser, a licensee not in occupation could claim possession against a trespasser if that was a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoyed. However, his remedy was strictly limited to what was required to make good his legal right.
3. Under the law of remedies there was no distinction drawn between a plaintiff whose right to occupy the land arose from title and one whose right arose only from contract. In each case, the question was whether the right had been breached, and whether it was shown that the defendant’s acts violated the plaintiff’s enjoyment of the right. If they did, and an order for possession was the only practical remedy, the remedy was to be granted. Otherwise, the law was powerless to correct a proved and admitted wrongdoing which would be unjust and disreputable.
The fourth appellant appeared in person and on behalf of the other appellants; Timothy King QC and Mark Forte (instructed by the solicitor to Manchester Airport plc) appeared for the respondent.
Thomas Elliott, barrister
