Compulsory purchase order — Limitation — Appellant landowner reoccupying land after entry by council — Council vesting land in themselves by deed poll — Whether appellant’s adverse possession barring council’s possession claim — Validity of deed — Sections 76 and 77 of Lands Clauses Consolidation Act 1845 — Appeal allowed in part
In 1964, the respondent council’s predecessors made a compulsory purchase order in respect of the appellant’s land for the purpose of providing public open space. The order was confirmed in 1965, and the appellant was served with a notice to treat and a notice of entry. The council entered into possession in March 1966, but the appellant moved back onto the land shortly afterwards.
The compulsory purchase was governed by the Acquisition of Land (Authorisation Procedure) Act 1946, which incorporated certain provisions of the Lands Clauses Consolidation Act 1845. Under that statutory scheme, the council’s act of taking possession of the land triggered an obligation to pay compensation, but did not have the effect of vesting in them title to the land. However, section 76 of the 1845 Act provided that if the owner refused to convey, the council were entitled to pay the compensation moneys into court, whereupon they could, by section 77, execute a deed poll vesting the land in themselves. In 1968, the Lands Tribunal made a final assessment of compensation in the sum of £15,000. The appellant remained on the land, and, by 1988, the council had paid the £15,000 into court and executed the requisite deed poll.
In January 2000, the council brought possession proceedings in the county court. The appellant, in his defence and counterclaim, maintained that he was entitled to remain on the land because, since 1966, he had enjoyed more than 12 years’ adverse possession, so that the council’s claim to the land was time-barred under section 15 of the Limitation Act 1980. The judge struck out most of the defence and counterclaim, including an assertion by the appellant that the deed poll was invalid because, at the time of its execution, the council had abandoned their plans to use the land for the purpose for which compulsory purchase had been authorised, intending instead to use it for housing. He gave summary judgment for the council, and the appellant appealed.
Held: The appeal was allowed in part.
1. The council’s cause of action had accrued, for limitation purposes, in 1966. Following their entry onto the land, they had enjoyed a right to possession superior to that of the appellant, and had they brought possession proceedings in 1966, they would have won: Tiverton & North Devon Railway Co v Loosemore (1884) 9 App Cas 480 applied. The fact that the appellant held the title to the land did not prevent his possession of it from being adverse after 1966, since he had unlawfully dispossessed the council: Buckinghamshire County Council v Moran [1990] Ch 623 distinguished. Thus, when the deed poll was executed, the 12-year limitation period had expired in favour of the appellant.
2. However, the possessory interest that the appellant had acquired by his adverse possession was subject to the rights and incidents of the notice to treat. The council could enforce those rights even though they had relinquished their right to possession. To find otherwise would conflict with the established rule that the owner of land subject to a compulsory purchase order could not create new interests in the land, with the result that he would have a claim for compensation for those new interests: Mercer v Liverpool, St Helen’s & South Lancashire Railway Co [1903] 1 KB 652 considered. The rights arising from the notice to treat included referral of the issue to the Lands Tribunal and the execution of a deed poll upon payment of compensation. Upon executing a valid deed, an acquiring authority would become entitled to immediate possession by virtue of section 77 of the 1845 Act. They could enforce that new right to possession separately from the one previously acquired and lost.
3. The judge should not have struck out the appellant’s defence and counterclaim in so far as it disputed the validity of the deed poll, and the appeal was allowed on that point. The council could succeed on the limitation point only if the deed poll were valid, and the appellant had a real prospect of establishing that it was not. If he were able to prove the facts that he had asserted with regard to the council’s plans, the deed poll could be declared null and void, or set aside, because the power to acquire the freehold title would not have been exercised in accordance with the purpose for which it had been conferred: Grice v Dudley Corporation [1958] Ch 329 applied. Although the issue was one of public law, the appellant had been entitled to raise it as a defence to a private law claim: Wandsworth London Borough Council v Winder (No 1) [1985] AC 461 applied.
Per Arden LJ: The council had not acquired any equitable interest in the land: R v Northumbrian Water Ltd, ex parte Able UK Ltd [1996] 2 EGLR 15 disapproved.
Geraint Jones QC and Clare Brown (instructed by David W Harris & Co, of Pontypridd) appeared for the appellant; Joseph Harper QC and David Kolinsky (instructed by the solicitor to Rhondda Cynon Taff Borough Council) appeared for the respondents.
Sally Dobson, barrister