Author: Hilary
Last saved by: viky.martzoukou
Company: Merrill Corporation

Case No: A3/2008/1526
Neutral Citation Number: [2008] EWCA Civ 757
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE LEWISON)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 10^th June 2008

Before:

LADY JUSTICE ARDEN DBE

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Between:

| FOWLES | Appellant
| - and - |
| HEATHROW AIRPORT LTD | Respondent

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr G Platford (instructed by Spratt Endicott) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lady Justice Arden:

1.	This is an application for permission to appeal from the judgment of Lewison J dated 15 February 2008 whereby the judge made a possession order against the claimant.  

2.	The appellant was in occupation of land owned by the defendant.  His tenancy had begun in 1978 but was terminated by a notice under section 25 of the Landlord and Tenant Act 1954 in July 1990 by the then owner of the land.  The appellant’s case was that he had enclosed the land and that he claimed adverse possession of the whole of the land by saying that he had erected new gates across the only access and that as a result he had acquired title.  In 1994 planning permission was granted for use of the site for receiving and recycling waste concrete.  That was a limited planning permission for seven years.  The application for permanent planning permission failed in 2002 and a number of enforcement notices were served.  I am not going to go into the detailed planning history but there was a fresh application for planning permission.  This was refused.  There were proceedings for judicial review in which Sullivan J refused permission and in which Beatson J on review granted permission on one ground only, which remains to be heard.

3.	There was an application for a Certificate of Lawful Existing Use and Development, which was refused and an appeal is pending.  The judge had to deal with a large number of questions, including adverse possession.  For instance he had to deal with the question of whether or not there was a valid Breach of Condition notice given pursuant to section 187A of the Town and Country Planning Act 1990.  He held in the course of his judgment that there was no realistic prospect of success on the application for the Certificate of Lawful Existing Use and Development.  I need not deal with his further findings on the detailed facts, but he did reject the claim for adverse possession.  He held that it depended on the erection of gates, which in his judgment were not erected until 1994, and accordingly 12 years’ possession was not shown.  

4.	The areas in which permission to appeal is sought may be summarised as follows:  first, adverse possession, grounds 1-5; validity of the Breach of Condition notice, that is grounds 6-9; grounds 10-11 concern the enforcement notice; grounds 12-14 concern the Certificate of Lawful Existing Use and Development; and ground 15, the discretion to grant a new tenancy.  In respect of adverse possession, as I have said, the judge’s finding was that gates were not put up until 1994 and therefore that 12 years’ adverse possession was not shown.  Mr Fowles’ case was that he had taken control of the site at an earlier date, but there was another person present on the site, namely a company by the name of Quick’s, which was also prosecuted for its use of the land and convicted with Mr Fowles in 1990.  As I see it, there could be no exclusion of the world in general as is necessary for adverse possession until Quick’s had left the site.  As I read paragraph 124 of the judge’s judgment, the judge clearly found that Quick’s did not leave the site and/or that Mr Fowles did not take over Quick’s land until 1992.  He says that Mr Fowles had filed a witness statement saying that that was the date when Quick’s went bust and left the site.  This was not corrected in the third witness statement.  And then the judge continues in 124:

“The demolition of Quick’s building and its replacement with a weigh bridge did not take place until after 18 May 1992 (see my findings about area L).  This is consistent with a takeover of Quick’s’ land in 1992.”

5.	Then he says in paragraph 125 that he was not satisfied that Mr Fowles had established that it was more probable than not that he took possession of area H earlier than 1992.  That is a finding specifically about area H, which Quick’s had occupied.  Mr Graham Platford, who appears for Mr Fowles on this application, submits that the finding to which I have referred was not consistent with the evidence in that the judge did not deal with further submissions that he made in his written closing submissions but not orally.  There may have been some misunderstanding at this point because the judge says at paragraph 109 that by the time of the closing address Mr Fowles’ case for adverse possession was squarely on the erection by Mr Fowles of new gates in place of the old farm gate barring access to the yard and the land beyond.  As I see it, the judge understood that to be the only case on adverse possession put forward at that point.  

6.	The closing submissions which are at tab 7of the bundle refer to the date on which Quick’s left the site and, as I see it and have explained, Quick’s had not left the site as Mr Fowles has contended in 1990 but in 1992.  The other incident referred to, namely the exclusion of the landlord, could not have amounted of itself to exclusion of the world in general for the purposes of adverse possession.  Accordingly, as it seems to me, there is no prospect of success on this part of the case.  There being a finding by the judge that Quick’s did not leave until 1992, in my judgment.  There is no real prospect of success on appeal on adverse possession.  

7.	The second set of grounds of appeal relate to the validity of the Breach of Condition notice and this, as Mr Platford frankly admitted, was a very short point.  It was this:  the Breach of Condition notice is at tab 8 to the appeal bundle.  It sets out condition 4 in the 1994 Planning Permission, which included a condition that the site should be restored in accordance with the details contained in the application.  That part was, Mr Platford submits, unenforceable.  Be that as it may, when it came to the matters with which the addressee of the notice had to comply, that part of the condition was not referred to.  The judge in a detailed passage held that this was within section 187A.  The material part of that section on which counsel relies is section 187A(2), which was annexed to counsel’s skeleton argument on the appeal.  That provides:

“2) The local planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a “Breach of Condition notice”) on…[I need not read (a) or (b)]
requiring him to secure compliance with such of the conditions as are specified in the notice.”

8.	 Mr Platford submits that the notice must set out and require compliance with the whole of the condition and not simply a part of it.  But he has not taken me through the judge’s reasoning and in addition to the judge’s reasoning there is, as it seems to me, a further point which demonstrates that there is no real prospect of success and it is this: that the section uses the words “such of the conditions”.  As I see it, it would be fanciful to say that that means “such whole condition of the conditions that are specified in the notice”.  It must include, in the case of a multipartite condition, a reference to such of the conditions, in whole or part, as are specified in the notice.  In other words, in my judgment, given the detailed reasoning of the judge and the wording of the section, there is no real prospect of success on that point.  

9.	That leaves the remaining grounds and counsel has addressed me at some length on this point.  I have a skeleton argument and a statement which really do not, if I may say so, deal with the point to best advantage and, as I see it, there are a number of problems in the judge’s judgment.  First there is a potential inconsistency pointed out by counsel between, on the one hand, saying that there was no material change from the 1994 permission, and yet saying that the activity was rendered unlawful as being in breach of the 1988 enforcement notice.  

10.	Secondly, as I read the judgment the judge did not in any detailed way interpret the terms of the 1994 permission as to what precisely it included and likewise, in relation to the 1988 enforcement notice, he did not analyse that in detail.  As I understand it from Mr Platford, there was evidence showing what the business of recycling waste concrete would normally comprehend and I have not been taken to any part of the judgment where the judge’s findings on that evidence are set out.  Thirdly, the judge did not deal with the point that the court could not make a decision about whether a Certificate of Lawful Existing Use and Development could be granted.  Alternatively there may be an argument here that the appropriate test is not whether the user was in fact lawful, but whether or not, if a certificate had been issued in favour of Mr Fowles, it would have been lawfully given on the facts found or whether it could have been judicially reviewed and thus rendered of no effect.  Fourthly, if any of those grounds -- that is grounds 10-14 succeed -- there would then be an issue about whether or not the court should grant a new tenancy under section 30.  

11.	In those circumstances, in my judgment it would be right to give permission under grounds 10-15 but not under the earlier grounds, and I direct a hearing of one to one-and-a-half days and three LJs or including a High Court judge, one Lord Justice with planning experience, if possible.

Order: Application granted in part