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 to enter on the land to remove the trees. The respondents said the claimant had insufficient interest to found the request for the order.
Held: The objectors appeal failed. (Lord Chadwick dissenting) The National Trust could not grant exclusive possession to the claimant. ‘There is no doubt that a licensee may have a right to exclusive possession without thereby becoming a tenant – for example where the licence is gratuitous – but that will depend on the terms of the licence. ‘ A letter from the National Trust could not assist: ‘The legal effect of a written document is a matter for the court which has to give effect to its terms. The ‘right as licensor to enter should the need arise’ is not reserved in any express term of the licence; it exists, in my view, because the licence grants no right of possession which would enable the airport company to exclude the National Trust. The right to control access to and egress from the site is not mentioned in the licence; nor is there, in the licence, any mention of responsibility for security measures. ‘
Laws LJ: ‘in this I hear the rattle of mediaeval chains.’ The historical law of ejectment was based upon a fiction: ‘the remedy by way of ejectment was by definition concerned with the case where the plaintiff asserted a better title to the land than the defendant; and the fictions, first introduced in the latter half of the sixteenth century and in effect maintained until 1852, were designed to cut out the consequences of pleading points that might be taken if the plaintiff did not plead his case as to the relevant legal relationships with complete accuracy. ‘ and ‘there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition, that no remedy by way of possession can now be granted to a licensee not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. ‘ The court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence. If, as here, that requires an order for possession, the spectre of history (which, in the true tradition of the common law, ought to be a friendly ghost) does not stand in the way. The law of ejectment has no voice in the question; it cannot speak beyond its own limits. ‘
Judges:
Laws LJ, Chadwick LJ
Citations:
[1999] EWCA Civ 844, [2000] 1 QB 133, [1999] 2 All ER 675, (2000) 79 P and CR 541, [1999] 1 EGLR 147, [1999] 3 WLR 524, [1999] EG 31
Links:
Statutes:
Rules of The Supreme Curt Order 113 Rule 1, Common Law Procedure Act 1852
Jurisdiction:
England and Wales
Citing:
Cited – University of Essex v Djemal and others CA 1980
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just . .
See Also – Manchester Airport Plc v Dutton and others CA 18-Jan-1999
. .
Cited – Allan v Liverpool Overseers 1874
The court was asked whether a steamship company was liable to be rated in respect of its occupation of sheds which it occupied under a licence from the Mersey Docks and Harbour Board. The court noted that liability for rates fell only on a person . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Appah v Parncliffe Investments Ltd CA 1964
The test of whether a person is a lodger, as opposed to a sub-tenant, must be determined by the degree of control retained by the householder over the rooms which the lodger occupies. . .
Cited – Manchester Corporation v Connolly CA 1970
The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: ‘The writ of possession was originally a common law writ (although it is . .
Cited – Radaich v Smith 7-Sep-1959
(High Court of Australia) Justice Windeyer said: ‘What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and . .
Cited – Hounslow London Borough Council v Twickenham Gardens Development Limited 1971
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 . .
Cited – Dunford v McAnulty HL 1883
Lord Blackburn: ‘in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title ; and consequently possession was at law a good defence against anyone, and those who sought to . .
Cited – In Re Wykeham Terrace ChD 1971
Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was . .
Cited – Wiltshire County Council v Frazer CA 1984
For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: ‘(1) of the plaintiff that he should have a right to possession of the land in . .
Cited by:
See Also – Manchester Airport Plc v Dutton; Longmire; Stoddard; Maile and Persons Unknown CA 4-Mar-1999
The claimant wished to construct a new runway on its own land, and it was necessary to carry out works, namely, that trees on nearby land should be lopped or felled so that they would not constitute an obstruction to the flight path. The claimant . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 05 December 2022; Ref: scu.145759
