Enforcement notice — Appeal — Secretary of State refusing to hear appeal — Appellant squatting on subject land — Whether applicant in adverse possession or a mere trespasser — Whether appellant has ‘an interest in land’ to make appeal
The appellant
moved her caravan to its present site on land known as Cefn Einion Quarry. The
appellant does not own the quarry and its owner is unknown to her. The
appellant had been on the land for about 12 months at the time of the notice.
The second respondents, South Shropshire District Council, issued an
enforcement notice in respect of the quarry on May 13 1988 requiring the
removal of the caravan. The appellant sought to appeal against that enforcement
notice to the first respondent, the Secretary of State for the Environment, by
virtue of section 88 of the Town and Country Planning Act 1971 (section 174(1)
of the Town and Country Planning Act 1990). By a letter of September 2 1988,
the first respondent conveyed his decision that the applicant’s appeal was
invalid and that he was refusing to hear it.
The
appellant’s application for judicial review of that decision was dismissed by
McCowan J ([1989] 3 PLR 73) on the ground that the appellant did not have an
interest in the land for the purposes of bringing an appeal under section 88 of
the 1971 Act.
1. Where the
decision impugned involves a question as to the jurisdiction of the
decision-maker and where the primary facts are contained in documents and do
not involve any question of credibility or policy, the court should look at the
matter afresh and make up its own mind. The court must look at the
matter on the basis of the evidence which was before the Secretary of State at
the time he reached his decision: see p 83B.
2. The
appellant did not have an interest in the land. She did not have adverse
possession as a matter of law: see p 86. The appellant’s correspondence
referred to her travelling way of life and to an offer to pay rent. This was
inconsistent with an intention to claim a right to possession against the world
including the true owner. The appellant had failed to show the necessary animus
possidendi in respect of the land: see p 86F.
to in the judgments
Buckinghamshire
County Council v Moran [1989] 3 WLR 152;
[1989] 2 All ER 225, CA
Powell v McFarlane (1979) 38 P&CR 452
Puhlhofer v Hillingdon London Borough Council [1986] AC 484; [1986] 2
WLR 259; [1986] 1 All ER 467; (1986) 84 LGR 385, HL
West
Glamorgan County Council v Rafferty [1987] 1
WLR 457; [1987] 1 All ER 1005, CA
Appeal against
decision of McCowan J
This was an
appeal against a decision of McCowan J ([1989] 3 PLR 73), who had dismissed an
application for judicial review of a decision of the first respondent, the
Secretary of State for the Environment, that the appellant did not have an interest
in land for the purposes of appealing an enforcement notice issued by the
second respondents, South Shropshire District Council.
(instructed by Thorpes, of Hereford) appeared for the appellant, Rita Myra
Davis.
Katkowski (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
respondents, South Shropshire District Council, did not appear and were not
represented.
following judgments were delivered.
NEILL LJ: This is an appeal by Miss Rita Myra Davis from the order of McCowan
J dated May 11 1989, rejecting her application for judicial review of the
decision of the Secretary of State for the Environment dated September 2 1988,
whereby he decided that the appellant had no interest in the land in respect of
which an enforcement notice had been served upon her and that therefore she was
unable to bring an appeal against the notice pursuant to section 88(1) of the
Town and Country Planning Act 1971, which I will call ‘the 1971 Act’. That
subsection is now section 174(1) of the Town and Country Planning Act 1990.
The first
respondent to this appeal is the Secretary of State. The second respondents are
South Shropshire District Council, the planning authority who issued the
enforcement notice, but they have taken no part in these proceedings either
before the judge or in this court. Leave to apply for judicial review was
granted by Webster J on October 28 1988.
It is
necessary to set out the facts of this case in a little detail. In or about
September 1987 the appellant moved with her father and her son to a disused
quarry at Bishop’s Castle in Shropshire. They took up residence there, first, I
think, in one caravan and then in two. In due course, however, their presence
came to the attention of the local planning authority. On May 13 1988 the
planning authority issued an enforcement notice in exercise of their powers
under section 87 of the 1971 Act. In schedule 3 to the notice the authority set
out the steps which they required the appellant to take, namely to remove the
two caravans from the land and to discontinue the use of the land as a caravan
site. The authority gave three reasons for the service of the enforcement
notice, stating, inter alia, that ‘the use of the land as a caravan site
is detrimental to the visual amenities of the locality’. In a covering letter
the
enforcement notice would take effect on June 18 1988.
On May 31 1988
the appellant submitted her appeal to the Secretary of State. The grounds of
her appeal were that ‘planning permission ought to be granted for the
development to which the enforcement notice relates’ and, second, that ‘the
period specified in the enforcement notice as a period within which any
required steps are to be taken falls short of what should reasonably be
allowed’.
In para 6 of
the appeal form, the appellant set out her statement of the facts. She said (I
leave out unnecessary words):
I live with my
father and son in the caravan on the land in question for nearly 12 months. I
am age 40. My father is 71, my son 21. We have lived in the locality of
Bishop’s Castle for 25 years and since having to adopt the travelling way of
life it is an area to which I have resided and resorted. My father suffers from
one lung bad legs [and] bronchitis. He is in receipt of a disablement benefit
combined with old age pension. It is submitted that the father son and myself
are gipsies within the statutory definition contained in the Caravan Sites Act
1968 and that we have all resided in and resorted to the County of Shropshire.
Before adopting the travelling way of life we were all homeless within the
meaning of the Housing Act 1985.
It is
submitted that the required period of 6 weeks for compliance with the
enforcement notice is unreasonably short. In view of the absence of any
alternative suitable site within the district it is submitted that 3 years is a
reasonable time given that it will be necessary for some other site to be found
or provided in order to prevent us returning to our homeless state.
The receipt of
that appeal form was acknowledged on June 6. On June 20, however, the planning
authority, in a letter to the Department of the Environment, raised a query as
to whether the appellant and her father and son had a right of appeal. It was
said that they occupied two caravans which they had stationed in the quarry
without licence or permission. On June 27 1988 Miss Rye, who was in charge of
the matter at the Department of the Environment, sent the appellant a copy of
the letter from the planning authority. Miss Rye continued:
As you will
see from the last paragraph of the letter, it has been suggested that you may
not have sufficient legal interest in the land to lodge an appeal. Under the
provisions of section 88(1) of the Town and Country Planning Act 1971 (as
amended) only a person having an interest in the land to which the enforcement
notice relates may appeal against a notice. I should perhaps explain the
Department’s view that for the purposes of section 88(1), as amended, an
‘interest in the land means an interest in the legal sense of land ownership’,
and a person with an interest [in] the land would include an owner, lessee and
mortgagee. Section 4(2) of the Town and Country Planning Act 1984 extends this
definition to include a person with a licence in writing to occupy the land who
is doing so at the time the appeal is made.
In order that
the Secretary of State may satisfy himself that your appeal is valid, I would
be grateful if you could provide documentary evidence of your interest in the
land, within 14 days.
The appellant
replied to that letter by two letters, the first dated June 28 and the second
June 29. Parts of those letters I should refer to. In her first letter, of June
28, addressed to the Secretary of State, she said:
I have a
right of appeal and have done again. I have sent your letter to my solicitor.
My right of appeal is my right to live. The Council haven’t offered me a place
in 9 years and I have got to live somewhere. And if this place does not belong
to the Council they had no right to stick up a great board with our names on
it. It [makes] us look foolish in front of our friends. We have also
offered to pay rent and rates for just this corner. We have not made it untidy
. . .
Then in the
postscript she added:
This quarry
is God’s. It is not man made. So go to him, he owns it and he has not told us
to go.
Then on the
following day the appellant wrote a longer letter. This letter was addressed to
Miss Rye, who had sent the letter of June 27 to the appellant. She wrote as
follows (again I need not read the whole of the letter, but I will read
substantial parts of it):
In regard to
your letter regarding my interest in the land is as follows. I and my 71 year
old Dad and 21 year old son were made homeless in 1979 after my mum died.
Then on the
next page she went on:
I must have a
place to live. The Council have offered us nothing — only a derelict house for
2 weeks which I refused to take on, as it was due to be pulled down within 2
weeks.
Then on the
next page she continued:
Now the
quarry where we live I had no trouble for 7 months. All the people around here
have known me for years. We have everything delivered. The welfare people know
my dad . . . I’ve just had one doctor . . . to see my dad. He says dad has gone
very thin. But the air here is doing him good. I have offered to pay rates
here, but the Council haven’t answered my letter about this. And yet just over
a year ago a woman lived in a caravan with her two sons in the same quarry and
they never bothered her, only [asked] her to pay £ 13 a year rates. Well I have
offered to pay rates and rent. So why ignore me. Anyhow this quarry does not
belong to the Council as the Council have stated. I will tell you my interest
in the land. But first I was told that the quarry belongs to the people of Cefn
Einion and they haven’t complained about me being here. Well my interest in the
land is this. All we want is to be allowed to keep our caravans here to live.
It’s a big quarry and we are only up one corner. I would like to know if
perhaps someone could tell me how much the small corner where we are would be
to buy. I am sending £ 66 off this week for planning permission. I don’t want to
build anything I just want to live.
Later on she
said:
I have put my
trust in God [as] the only one who can help. This is a God made quarry not man
made and God has not told me to move off. When he does I know my time on earth
is up. It is then and only then that I will go, when God calls.
The appellant,
it will be remembered, had sent the letter from Miss Rye to her solicitor and
he replied at the end of June. His letter was subsequently, and it seems
probably in August, forwarded to the department.
On August 9
the department wrote again to the appellant. On this occasion the letter was
written on behalf of Mrs Aspinall and it said:
The contents
of your letter
— this was the
letter of June 28 —
are noted;
however it is considered that insufficient evidence in the form of written
material has been provided so far to support your claim to an interest in the
land. I note that you have referred the Department’s letter of 27 June to a
solicitor. If you can obtain satisfactory written evidence to prove your interest
in the land from your solicitor, you should send this to the Department not
later than 20 August 1988.
In the
absence of a satisfactory reply by that date the Department may be forced to
consider turning your appeal away.
A few weeks
later there was a further letter from the department, dated September 2 1988.
This is the decision letter, which is the crucial letter in this case and which
the appellant seeks to have dealt with by way of judicial review. It is clear
that by then the letter from the appellant’s solicitor had been forwarded to
the department. In the letter of September 2 it was said on behalf of the
Secretary of State that the department did not accept the proposition that
merely moving on to the land constitutes adverse possession, and reference was
made both to the 1984 Act and to section 88(1) of the 1971 Act. In the result
it was said that, in the opinion of the Secretary of State, the appeal was not
considered to be valid. Accordingly, it was said that the fee that had been
paid would be refunded in due course.
In October the
appellant applied for leave to move for judicial review of the decision
contained in the letter of September 2. As I have already recorded, Webster J
granted leave on October 28 and the present proceedings were instituted. The
case came on for hearing before McCowan J on May 11 of the following year,
1989. At that stage there were two issues to be determined:
(1) what test should be applied by the court in
reviewing the decision of the Secretary of State that the appellant did not
have an interest in the land; and
(2) depending on the test to be applied, should
the decision of the Secretary of State be set aside?
On the first
issue it was argued on behalf of the Secretary of State, inter alia,
that it was necessary for the appellant to show that the decision reached by
the Secretary of State was a perverse decision on the material before him. The
judge was referred to the well-known dictum of Lord Brightman in Puhlhofer
v Hillingdon London Borough Council [1986] AC 484 at p 518:
Where the
existence or non-existence of a fact is left to the judgment and discretion of
a public body and that fact involves a broad spectrum ranging from the obvious
to the debatable to the just conceivable, it is the duty of the court to leave
the decision of that fact to the public body to whom Parliament has entrusted
the decision-making power save in a case where it is obvious that the public
body, consciously or unconsciously, are acting perversely.
It would
appear from the judgment that the judge was not satisfied that this was the
correct approach, because he expressed his conclusion on p 15* of the
transcript of his judgment in these terms:
In my
judgment, this case comes down in the end to the two issues posed by Mr Jones.
Ultimately, they seem to me to be a question of fact. On the material put
forward the Secretary of State was, in my judgment, entitled, indeed right, to
conclude that the applicant had not established adverse possession of her
caravan pitch. She was not in fact in adverse possession but was a mere
trespasser and she did not, therefore, have an interest in the land within the
meaning of section 88(1) of the 1971 Act.
*Editor’s
note: Reported at [1988] 3 PLR 73 at p 80.
In this court,
this first issue has almost disappeared, though we heard some argument about
it. We were referred to a number of authorities, including parts of the
European Convention on Human Rights, which was relied upon to demonstrate the
correct approach of this court. But it is now clear that it is common ground
that where the decision-maker had to determine a preliminary question as to his
own jurisdiction and this determination involved the inferences to be drawn
from correspondence and other documents, the test to be applied by the court on
judicial review is not that of
look at the matter afresh and make up its own mind.
The only
remaining question between the parties on this first issue is as to the weight,
if any, to be attached to the decision of the Secretary of State. In the
present case, however, I do not think that there is any real significance to be
attached to the difference in emphasis between the rival submissions.
As will become
clear, we are concerned in this case with a claim by the appellant that at the
material time she was in adverse possession of land and thus, it is said, had
an interest in the land for the purposes of section 88(1) of the 1971 Act. It
is necessary for her to establish an interest in the land in order that she can
appeal to the Secretary of State. It seems to me that in such circumstances,
where the decision impugned involves a question as to the jurisdiction of the
decision-maker and where the primary facts are contained in documents and do
not involve any questions of credibility or policy, the court should look at
the matter afresh and make up its own mind. That means, however, that the court
must look at the matter on the basis of the evidence which was before the
Secretary of State at the time when he reached his decision, because it is his
decision against which judicial review is sought.
Having reached
that conclusion, it does not seem to be necessary for me to say any more about
the authorities and the other arguments which were directed to the European
Convention on Human Rights, nor is it necessary further to consider an argument
that this case might have some impact on the way in which local authorities
would in the future regard the decision in West Glamorgan County Council
v Rafferty [1987] 1 WLR 457. In the particular circumstances of this
case we ought ourselves to look at the facts as set out in the documents and
consider the inferences to be drawn from them and then to make up our minds as
to whether this lady has demonstrated that at the material time, that is
September 2 1988, she was in adverse possession of this land.
The second
issue, as it is now before the court, can therefore be stated or restated very
shortly. Did the appellant have an interest in the land on September 2
1988? Because it is only if she had an
interest in the land that she can bring an appeal under section 88, now section
174 of the 1990 Act. Section 88(1) is in these terms:
A person
having an interest in the land to which an enforcement notice relates may, at
any time before the date specified in the notice as the date on which it is to
take effect, appeal to the Secretary of State against the notice, whether or
not a copy of it has been served on him.
The appeal was
in time. The only question is, did the appellant have an interest in the land?
The appellant
does not claim any paper title to the land, but she says she was in adverse
possession of it and that, in the circumstances, is enough. For the purpose of
the present case it has been conceded on behalf of the Secretary of State that
if the appellant can show that she was in adverse possession, she had an
interest in the land within the meaning of the subsection. For my part, I
express no view as to whether that concession was rightly made, because it may
become an issue on a subsequent occasion and we have heard no argument about
it. It is sufficient merely to notice that the case has proceeded on the basis
that it is enough if the appellant can demonstrate that she was in adverse
possession.
There are
therefore two matters to be considered: what is meant by adverse possession of
land and, second, on the facts, was the appellant in adverse possession of this
land at the material time?
On the first
of these matters there are two modern authorities which give very valuable
guidance. The first of them is a decision of Slade J (as he then was) at first
instance in the case of Powell v McFarlane (1979) 38 P&CR
452. The facts of the case are not material for the purpose of my present
consideration, but in the course of his judgment Slade J enunciated some principles
relating to possession of land in the context of adverse possession, and those
principles have been applied and treated as authoritative in more recent cases.
In particular, they were approved specifically in the judgment of Nourse LJ in
this court in Buckinghamshire County Council v Moran [1989] 3 WLR
152, a case to which I will turn shortly. In the course of his judgment in
Powell’s case Slade J said at p 470:
It will be
convenient to begin by restating a few basic principles relating to the concept
of possession under English law:
(1) In the absence of evidence to the contrary,
the owner of land with the paper title is deemed to be in possession of the
land, as being the person with the prima facie right to possession. The
law will thus, without reluctance, ascribe possession either to the paper owner
or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land
to a person who can establish no paper title to possession, he must be shown to
have both factual possession and the requisite intention to possess (‘animus
possidendi‘).
(3) Factual possession signifies an appropriate
degree of physical control. It must be a single and conclusive possession,
though there can be a single possession exercised by or on behalf of several
persons jointly. Thus an owner of land and a person intruding on that land
without his consent cannot both be in possession of the land at the same time.
The question what acts constitute a sufficient degree of exclusive physical
control must depend on the circumstances, in particular the nature of the land
and the manner in which land of that nature is commonly used or enjoyed . . .
(4) The animus possidendi, which is also
necessary to constitute possession, was defined by Lindley MR, in Littledale
v Liverpool College [[1900] 1 Ch 19, CA at p 23] (a case involving an
alleged adverse possession) as ‘the intention of excluding the owner as well as
other people’. This concept is to some extent an artificial one, because in the
ordinary case the squatter on property such as agricultural land will realise
that, at least until he acquires a statutory title by long possession and thus
can invoke the processes of the law to exclude the owner with the paper title,
he will not for practical purposes be in a position to exclude him. What is
really meant, in my judgment, is that the animus possidendi involves the
intention, in one’s own name and on one’s own behalf, to exclude the world at
large, including the owner with the paper title if he be not himself the
possessor, so far as is reasonably practicable and so far as the processes of
the law will allow.
. . . An
owner or other person with the right to possession of land will be readily
assumed to have the requisite intention to possess, unless the contrary is
clearly proved. This, in my judgment, is why the slightest acts done by or on
behalf of an owner in possession will be found to negative discontinuance of
possession. The position, however, is quite different from a case where the
question is whether a trespasser has acquired possession. In such a situation
the courts will, in my judgment, require clear and affirmative evidence that
the trespasser, claiming that he has acquired possession, not only had the
requisite intention to possess, but made such intention clear to the world. If
his acts are open to more than one interpretation and he has not made it
perfectly plain to the world at large by his actions or words that he has
intended to exclude the owner as best he can, the courts will treat him as not
having had the requisite animus possidendi and consequently as not
having dispossessed the owner.
A little
later, at p 476, the judge added:
In my
judgment it is consistent with principle as well as authority that a person who
originally entered another’s land as a trespasser, but later seeks to show that
he has dispossessed the owner, should be required to adduce compelling evidence
that he had the requisite animus possidendi in any case where his use of
the land was equivocal, in the sense that it did not necessarily, by itself,
betoken an intention on his part to claim the land as his own and exclude the
true owner. The status of possession, after all, confers on the possessor
valuable privileges vis-a-vis not only the world at large, but also the
owner of the land concerned. It entitles him to maintain an action in trespass
against anyone who enters the land without his consent, save only against a
person having a better title to possession than himself. Furthermore it gives
him one valuable element of protection even against the owner himself. Until
the possession of land has actually passed to the trespasser, the owner may
exercise the remedy of self-help against him. Once possession has passed to the
trespasser, this remedy is not available to the owner, so that the intruder’s
position becomes that much more secure; if he will not then leave voluntarily,
the owner will find himself obliged to bring proceedings for possession and for
this purpose to prove his title.
I have already
noted that that decision of Slade J has been followed in more recent cases and
was specifically approved in Buckinghamshire County Council v Moran
[1989] 3 WLR 152, where Slade LJ was sitting with Nourse and Butler-Sloss LJJ.
Some further observations were made by Slade LJ as to the doctrine of adverse
possession. In particular, he considered two matters to which our attention has
been specifically drawn by Mr Jones on behalf of the appellant in this case.
First, he considered whether it was necessary for a person who was claiming to
be in adverse possession to show that he intended in due course to claim
ownership of the land. Slade LJ came to the conclusion that that was not
necessary. He said:
I agree with
the judge
— the judge
who decided that case at first instance —
that ‘what is
required for this purpose is not an intention to own or even an intention to
acquire ownership but an intention to possess’ — that is to say, an intention
for the time being to possess the land to the exclusion of all other persons,
including the owner with the paper title.
The second
point was whether it was inconsistent with a claim to be in adverse possession
that there might be circumstances in which the claimant would go out of
possession. In that case there was the question that at some time in the future
the land to which the defendant made claim might be required by the local
authority for the purpose of a proposed bypass. It was said that that was not
inconsistent with a claim to adverse possession. But a further feature of that
case to which Slade LJ drew attention was the fact that the land in question
had been enclosed by the person who was making claim to it. In dealing with the
facts, Slade LJ said:
On the
evidence it would appear clear that . . . the defendant had acquired complete
and exclusive physical control of the plot. He had secured a complete enclosure
of the plot and its annexation to Dolphin Place
— which was
his property next door —
Any intruder
could have gained access to the plot only by way of Dolphin Place, unless he
was prepared to climb the locked gate fronting the highway or to scramble
through one or other of the hedges bordering the plot. The defendant had put a
new lock and chain on the gate and had fastened it. He and his mother had been
dealing with the plot as any occupying owners might have been expected to deal
with it.
A little
later, at p 167, Slade LJ drew attention to the fact that enclosure is, as he
put it, ‘the strongest possible evidence of adverse possession’.
Those, then,
are the authorities to which we were referred. I turn now to consider the facts
of the present case.
It was argued
on behalf of the appellant that her letters demonstrated an intention to remain
on the land, come what may. It was true, it was said, that she had offered to
pay rent and rates and, indeed, had raised the possibility of buying a part of
the land. But these proposals, it was argued, were in no way inconsistent with her
intention that, pending the obtaining of a lease or pending a purchase, she
would remain on the land and if she could not get a lease or buy the land she
would nevertheless remain. It was submitted that the recent decision of the
Court of Appeal in Moran’s case had shown (a) that it is not necessary
for the person in adverse possession to show a wish to become the owner of the
land, and (b) that it is not necessary for such a person to show that he
intends to remain in possession forever and in all possible future
circumstances. Mr Jones also laid stress on passages in the letters which I
have read, and in particular on passages such as that at the end of the letter
of June 29, in which the appellant had written: ‘This is a God made quarry not
man made and God has not told me to move off. When he does I know my time on
earth is up. It is then and only then that I will go, when God calls’.
For my part, I
see the force of the submissions which were attractively put before us by Mr
Jones, but in my judgment, in the light of the authorities, the appellant has
not shown that she was in adverse possession of this land as a matter of law.
The documents have to be considered as a whole. The notice of appeal contains
references to the travelling way of life and to the fact that the appellant and
her immediate family regarded themselves as gypsies. The offer to pay rent
appears to me, in the context of this correspondence, inconsistent with an
intention to claim a right to possession against the world including the true
owner. In the letter of June 29 the appellant wrote: ‘my interest in the land
is this. All we want is to be allowed to keep our caravans here to live’.
The
authorities show that a person claiming to be in adverse possession has to show
not only factual possession, but also the animus possidendi. In showing
factual possession or the requisite animus, one of the factors one looks
for is whether steps have been taken to enclose the land. It is not
determinative, but it is a factor and it does not appear that in this case
there was any enclosure of the land. But it is really the correspondence from
which I think inferences are to be drawn. It seems to me, having read it and
reread it, that in the present case the appellant has failed to show the
requisite animus possidendi. I do not consider that if the owner had
been present and had seen the correspondence he or she would have appreciated
that the appellant was actually seeking to dispossess the owner and was not
merely a persistent trespasser.
In these circumstances
I have no doubt that the Secretary of State reached the right decision, and I,
for my part, would dismiss the appeal.
BALCOMBE
LJ: There is a further passage from the judgment of
Slade J in Powell v McFarlane (1979) 38 P&CR 452 at p 480 to
which I would refer. In dealing with the question of what constitutes adverse
possession, the judge said:
In view of
the drastic results of a change of possession, however, a person seeking to
dispossess an owner must, in my judgment, at least make his intentions
sufficiently clear so that the owner, if present at the land, would clearly
appreciate that the claimant is not merely a persistent trespasser, but is
actually seeking to dispossess him.
In my
judgment, the evidence in this case came nowhere near to satisfying that test.
For that reason, in addition to those given by Neill LJ, I agree that this
appeal should be dismissed.
MANN LJ: I agree with both judgments and would also dismiss this appeal.
Appeal
dismissed with costs; application for leave to appeal to House of Lords
refused.
