The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate the site. The council brought proceedings for injunctions restraining the contractor from ‘entering, remaining or otherwise trespassing’ on the site.
Held: The court rejected a submission that a certifying architect was obliged to act in accordance with the principles of natural justice. He was obliged to retain his independence in exercising his judgment, but, unless the contract so provides, he need not go further and observe rules of natural justice. For the rules of natural justice to apply, there must be something in the nature of a judicial situation, and this was not the case with the architect. The court considered whether a licensee who is in actual occupation may have the protection of the law of trespass against intruders. Megarry J: ‘in recent years it has been established that a person who has no more than a licence may yet have possession of the land.’ and ‘The contractor is in de facto control of the site, and whether or not that control amounts in law to possession, the injunction would in effect expel the contractor from the site and enable the borough to re-assert its rights of ownership. ‘ The court considered a submission that the contractor was in possession of the site – in which case the injunctions sought would, clearly, have been inappropriate: ‘I do not think that I have to decide these or a number of other matters relating to possession. First, I am not at all sure that the matter is determined by the language of the contract. It is in a standard form [containing R.I.B.A. conditions], and may be used in a wide variety of circumstances. In some the building owner may be in manifest possession of the site, and may remain so, despite the building operations. In others, the building owner may de facto, at all events, exercise no rights of possession or control, but leave the contractor in sole and undisputed control of the site. Second, in recent years it has become established that a person who has no more than a licence may yet have possession of the land. Though one of the badges of a tenancy or other interest in land, possession is not necessarily denied to a licensee.’
Judges:
Megarry J
Citations:
[1971] 1 Ch 233, [1970] 3 WLR 538, [1970] 3 All ER 326
Jurisdiction:
England and Wales
Citing:
Applied – Panamena Europea Navigacion v Frederick Leyland and Co HL 1947
The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they . .
Cited by:
Cited – Amec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Lists of cited by and citing cases may be incomplete.
Construction, Arbitration, Landlord and Tenant
Updated: 07 February 2022; Ref: scu.224304