Bolton Metropolitan Borough Council v Torkington
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE WALLER,LORD JUSTICE CARNWATH |
| Judgment Date | 31 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1634 |
| Docket Number | B2/2003/0495 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2003 |
[2003] EWCA Civ 1634
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(Mr Justice Lloyd: Vice Chancellor of the County Palantine of Lancaster)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Waller
Lord Justice Carnwath
B2/2003/0495
MR IAN LEEMING QC (instructed by Berg & Co, Manchester M2 5BG) appeared on behalf of the Appellant.
MR PAUL CHAISTY and MR WILSON HORNE (instructed by Central Services, Department of Bolton Metropolitan Borough Council) appeared on behalf of the Respondent.
Friday, 31st October 2003
The Defendant, Geoffrey Torkington, appeals from the order made on 31st January 2003 by Lloyd J, the Vice Chancellor of the County Palatine of Lancaster, giving the Claimant, Bolton Metropolitan Borough Council ("the Council"), possession of certain property in Bolton owned by the Council but occupied by Mr Torkington. The judge required Mr Torkington to pay damages for his use and occupation of that property from 1st February 1991 until possession was given. The judge refused permission to appeal to this court. On application to this court, Aldous LJ, considering the application on paper, granted permission. I will come back later to what he said when giving permission.
The history of this dispute is long and complex and is set out in detail in the judge's judgment. I will attempt to summarise the background facts relevant to the issues raised by this appeal.
The background facts
The property which was the subject of the judge's order is a site formerly consisting of houses known as 5 to 29 (odd numbers) Croft Street (known at the trial as Plots A and B) together with parts of Back Croft Street identified on a plan annexed to the Council's re-amended particulars of claim. Croft Street runs roughly east-west, meeting at its western end Manchester Road, which runs roughly north west to south east across the end of Croft Street. If in 1985 one came down Manchester Road in a south easterly direction towards Croft Street, there was an open space ("the 283 Plot") on the east side of Manchester Road adjacent to 283 Manchester Road. The 283 Plot fronts onto Manchester Road. A little further on down Manchester Road on its east side are 287 and 289 Manchester Road, which are premises owned by Mr Torkington and from which he carries on a motor car business called Park Motor Company (Bolton). 289 is on the corner of Manchester Road and Croft Street. Behind 287 and 289 is Back Croft Street. This runs from Croft Street, just behind the end of 287, and then takes a right-angled turn to the east, extending behind 5 to 29 (odd numbers) Croft Street and parallel to Croft Street. Going further south- east down Manchester Road one comes to a terrace of houses known as 301 to 315 Manchester Road, the site of which was known at the trial as Plot C. Plot C backs onto a road, Back Manchester Road East, which, at its north-west end, joins Croft Street.
In 1985 Croft Street was an adopted public highway as far as a line extending from the eastern boundary of Back Manchester Road East, itself an adopted public highway, as was Back Croft Street. The Council by a compulsory purchase order acquired Plots A, B and C. This acquisition prompted interest from potential purchasers who wished to acquire those plots from the Council. One of them was Mr Torkington, who expressed an interest in Plots A and B.
The responsible officer for the Council was Mr Burrows, a senior assistant to the Council's Chief Estates Surveyor, Mr Disley. Mr Burrows was authorised to negotiate with the three interested purchasers. There then followed extensive negotiations between the Council and Mr Torkington, who conducted the negotiations, for the most part, without professional representation. For the Council Mr Burrows, Mr Cresswell (the Assistant Borough Solicitor), Mr Tipping (a senior conveyancer for the Council) and, in the later stages, Mr Collinge (the Council's Chief Executive) all at various times took part in the exchanges with Mr Torkington. The subject of the negotiations was a 125-year lease of (initially) Plot A but later of Plots A and B with an annual rent of £2,500 (later agreed to be reduced for the first year only) for the first five years and rent reviews every five years thereafter. The Council was to demolish the existing buildings, which it did, and to obtain a Street Clearance Order for that part of Back Croft Street which ran along the backs of Plots A and B and there was to be an option for Mr Torkington to commute the rent after five years. The correspondence between the parties was expressly made subject to contract, though it became an important part of Mr Torkington's case at trial that he was told by Mr Burrows that the Council always used that phrase on its letters, but that Mr Torkington should not worry about that because, once a committee of the Council had taken a resolution, it would not go back on its word. The judge rejected that part of Mr Torkington's case.
Mr Torkington's evidence was that in 1985 he went onto Plot A on which he did some preliminary work, levelling areas and putting up a barrier, and that in 1987–9 he had some drainage works done, put a new surface on Plots A and B and fenced them, and that the Council knew that he was on the land. The Council's evidence that it did not know that Mr Torkington was on the land until February 1989 was accepted by the judge.
Another factual dispute related to the status of the unadopted part of Croft Street and what was said to Mr Torkington about it. The Council's position was that this part of the street was a public highway but was not maintainable at public expense and so was not adopted. Mr Torkington said that he was told by a Mr Banks of the Council that it was a private road but not a highway. Mr Banks' evidence was that he told Mr Torkington that the eastern part of Croft Street was a highway but privately maintainable. The judge accepted Mr Banks' evidence.
There was significant delay before the Council got to work on the documentation for Plots A and B, partly because the Council wanted to complete the statutory processes for the closure of part of Back Croft Street first.
It is unnecessary for the purposes of this appeal to go through all the detailed negotiations on the proposed lease of Plots A and B before the events of June 1990. On 19th June Mr Torkington wrote to Mr Burrows about the Council's position on that lease. He also raised the question of what was to happen to the 283 Plot. He claimed an agreement in principle that he would take a lease of the 283 Plot and said that he had planning permission to use it in conjunction with Plots A and B. He proposed that the 283 Plot be included in the lease of Plots A and B at the same rate per square yard on the usable area as for Plots A and B.
Mr Burrows and Mr Torkington then met. On 5th July 1990 Mr Burrows wrote to confirm the details of what Mr Torkington proposed so that the Council's approval could be sought. Mr Torkington was not happy with some of what was said, and proposed a timetable including an irrevocable commitment by the Council to the terms which, he said, were agreed with Mr Burrows, and requiring completion of the lease for Plots A and B by 9th August 1990 and the lease for the 283 Plot by 4th September 1990.
On 25th July the Land Sub-Committee resolved that the Council's solicitor was to complete the necessary legal documentation for Plots A and B, but consideration of the request for a lease of the 283 Plot was to be deferred until the lease for Plots A and B had been completed. The Sub-Committee also resolved that back rent from when Mr Torkington took possession of Plots A and B at the rate payable in the first year should be recovered. Mr Disley on 26th July wrote to Mr Torkington to report that decision. Mr Torkington's reply showed that he had not understood or accepted the decision, as he asked for a lease of the 283 Plot to be completed by 16th August. On 2nd August 1990 Mr Disley responded, reiterating that the question of the 283 Plot had not been addressed by the Council.
On 13th August Mr Tipping sent Mr Torkington the draft lease amended to take account of what had been provisionally agreed. He was told that completion would be conditional on him paying to the Council on completion the sum due for his occupation of Plots A and B from 6th February 1989 until completion. On 31st August Mr Torkington wrote making further requirements, which were not accepted, and on 18th September 1990 returned to Mr Tipping a copy of the draft lease with various amendments.
In that situation Mr Tipping on 25th September tried to bring matters to a conclusion. He wrote to Mr Torkington, enclosing an engrossed counterpart lease with a completion statement. He said:
"I have also arranged for the Lease to be sealed on behalf of the Council in readiness for completion, which should take place on or before the 1st October. If you cannot or will not complete by that date, I shall have no alternative but to refer the matter back to the Council on the basis of your refusal to complete."
He also repeated what Mr Torkington had already been told that the Council had decided to make up Croft Street beyond the adopted part as and when funding became available and that adoption would take place after completion of all necessary work.
The completion statement was prepared as at 1st October 1990. It...
To continue reading
Request your trial
-
Gaetano Alfano and Others v National Westminster Bank Plc
...were not delivered as deeds intended to be immediately binding (see Longman v Viscount Chelsea [1989] 58 P & CR 189 at 195, 196; Bolton MBC v Torkington [2004] Ch 66 at paragraph 35); (3) the guarantees had been materially altered by the insertion of dates after delivery; (4) the guarantees......
-
Wong Yiu Ting v Kwok Wing Chiu And Another
...4th Edn, p.449. But it ultimately depends on the intention of the executing party, see Bolton Metropolitan Borough Council v Torkington [2004] Ch 66; Longman v Viscount Chelsea (1989) 58 P & CR 189; Windsor Refrigerator v Branch Nominees [1961] Ch 21. In respect of the completion of the 199......
-
Yeung Yun Choi And Another v Lam Pa Kin
...Practice p.449. But it ultimately depends on the intention of the executing party, see Bolton Metropolitan Borough Council v Torkington [2004] Ch 66; Longman v Viscount Chelsea (1989) 58 P & CR 189; Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 25. On the facts of the case bef......
-
Yeung Yun Choi And Another v Lam Pa Kin
...Practice p.449. But it ultimately depends on the intention of the executing party, see Bolton Metropolitan Borough Council v Torkington [2004] Ch 66; Longman v Viscount Chelsea (1989) 58 P & CR 189; Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 25. On the facts of the case bef......
-
Fla. Stat. § 212.055 Discretionary Sales Surtaxes; Legislative Intent; Authorization and Use of Proceeds
...100, ch. 2002 - 20; s. 7, ch. 2002 - 196; s. 1, ch. 2003 - 77; ss. 33, 42, ch. 2003 - 254; s.91, ch. 2003-402; s. 6, ch. 2004 - 41; s. 1, ch. 2004 - 66; s. 1, ch. 2004 - 259; s. 3, ch. 2005 - 55; s. 1, ch. 2005 - 56; s. 1, ch. 2005 - 96; s. 1, ch. 2005 - 242; s. 1, ch. 2006 - 66; s. 2, ch. ......