Trespass

Trespass

Countryside Residential (North Thames) Ltd v. Tugwell, The Times, 4 April

In this case developers were granted a licence for the purposes of access to land to carry out surveys and technical investigations prior to obtaining planning permission to develop the site. The defendant and some friends set up a camp on the site prior to the plaintiff's entry on to it in order to protest against the development. The district judge granted the plaintiff an order for possession of the site under Order 113 of the Rules of the Supreme Court. The defendant's appeal in the High Court was dismissed but permission to appeal to the Court of Appeal was given because of the concern of Chadwick LJ that the case of Manchester Airport v. Dutton (1999) which permitted contractual licensees with a right of occupation of land to obtain orders for possession under RSC113 might be being extended in this case in an impermissible way.

It was argued for the defendant that the view of the majority in Duttonwas that not every licensee who had some right of access to the land had the right of possession required to eject trespassers. The only licensee with that right was one with the right of effective control of the land, that is who had the right of occupation in that sense. However, this licence was clear in providing only for the access and did not give the right to effective control. Thus there was no room to imply a term to provide the developers with this right.

Waller LJ said that it was important not to confuse the developer's contractual rights with the right of possession which was the foundation of an Order 113 remedy. The defendant's argument was correct and there was a clear 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 developers had been in occupation before the protesters they might have been able to argue that they were in fact in occupation and had effective control.

However, His Lordship felt that it was not legitimate to imply terms into the licence or to construe it so as to provide for that degree of control by contract.