Law Report: Licensee was entitled to evict trespassers

Tuesday Law Report: 2 March 1999; Dutton and others v Manchester Airport; Court of Appeal (Lord Justice Kennedy, Lord Justice Chadwick and Lord Justice Laws) 23 February 1999
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A LICENSEE who was not in de facto possession or occupation of the land was entitled to maintain proceedings to evict trespassers on the land by way of an order for possession under RSC Order 113.

The Court of Appeal dismissed the appeal of trespassers on land owned by the National Trust against an order giving possession of the land to Manchester Airport, which had been granted a licence by the National Trust to enter and occupy the land in order to carry out certain works.

The National Trust was the owner of property known as Arthur's Wood, which was near the site of the proposed second runway for Manchester Airport. In order to comply with operating conditions for the second runway, the respondent airport company needed to carry out certain works, which involved lopping and felling trees, within the wood.

The appellants, who were opposed to the carrying out of the works on environmental and ecological grounds, entered the wood and set up encampments without licence or permission from the National Trust.

Very shortly after the appellants had taken up occupation of the wood, the National Trust granted a licence to the respondent to enter and occupy the land for the purpose of carrying out the works.

The respondent commenced proceedings by issuing a summons under RSC Order 113 against the appellants. The district judge granted an order for possession, and the appellants appealed to the judge on the ground that since the respondent, as a licensee, did not have exclusive possession of the land, it had no locus standi to apply for an order under Order 113.

The judge dismissed the appeal, and the appellants appealed. The central issue on the appeal was whether the respondent, as licensee, was entitled to rely on Order 113 notwithstanding that it was not in de facto occupation or possession of the land.

Christopher Maile in person, and on behalf of the other appellants; Timothy King QC and Mark J Forte (Legal Department, Manchester Airport plc) for the respondent.

Lord Justice Laws said that it was clear that, if the respondents had been in actual occupation under the licence and the trespassers had then entered on the site, the respondents could have obtained an order for possession against them.

The principal objection to the respondents' obtaining such an order before they entered into occupation was that such relief would amount to an ejectment, and ejectment was a remedy available only to a party with title to or estate in the land, which the respondent, as mere licensee, plainly lacked.

It was clear that that was the old law, but the old learning demonstrated only that the remedy of ejectment was simply not concerned with the potential rights of a licensee, being by definition concerned with the case where the plaintiff asserted a better title to the land than the defendant.

There was a logical mistake in the notion that because the remedy of ejectment was only available to estate owners, possession could not be available to licensees who did not enjoy de facto occupation. If the action for ejectment was by definition concerned only with the rights of estate owners, it was necessarily silent upon the question of what relief might be available to a licensee. The limited and specific nature of ejectment meant only that it was not available to a licensee; it did not imply the further proposition that no remedy by way of possession could now be granted to a licensee not in occupation.

Nowadays there was no distinct remedy of ejectment. The court today had ample power to grant a remedy to a licensee which would protect but not exceed his legal rights granted by the licence. The true principle was that a licensee not in occupation might claim possession against a trespasser if that was a necessary remedy to vindicate and give effect to such rights of occupation as he enjoyed by contract with his licensor.

Kate O'Hanlon,