Rhondda Cynon Taff County Borough Council v Watkins
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann,Lady Justice Arden,Mr Justice Aikens |
| Judgment Date | 12 February 2003 |
| Neutral Citation | [2003] EWCA Civ 129 |
| Docket Number | Case No: B2/2001/2801 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2003 |
[2003] EWCA Civ 129
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CARDIFF DISTRICT REGISTRY)
(MR JUSTICE NEUBERGER)
QUEEN'S BENCH DIVISION
Lord Justice Schiemann
Lady Justice Arden and
Mr Justice Aikens
Case No: B2/2001/2801
Joseph Harper QC & Daniel Kolinsky (instructed by The Head of Legal Services of the Rhondda Cynon Taff BC) for the Respondent
Geraint Jones QC & Clare Brown (instructed by David W. Harris & Co., Solicitors) for the Respondent
Crown Copyright ©
The Background
The background to this case is complicated and covers nearly 40 years. During this time there have been changes in local government in Wales. However, these are of no present significance and I shall refer to the claimant council and its predecessors indifferently as the Council.
The case concerns the compulsory purchase of 2 plots of land. For present purposes there is no distinction between them and I shall treat them as one plot.
The Council in 1964 made a Compulsory Purchase Order entitling it to purchase land owned by and in the possession of the appellant, Mr Watkins. I shall refer to this as the Order. The Order was made pursuant to the Physical Training and Recreation Act 1937 and authorised the Council to acquire the land for the purpose of providing public open space. It was confirmed in July 1965. In October 1965 the council served Notice to Treat in respect of the land. On 8 th December 1965 the Council served Notice of Entry in respect of the land. On 14 th March 1966 the Council entered on the land and took possession. Shortly afterwards the Council was wrongfully ousted from the land by Mr Watkins. He has remained there ever since.
A reference was made to the Lands Tribunal in March 1968 and compensation was finally assessed by it in May 1977 at £15,000. In November 1987 the Council lodged £15,000 in the High Court in respect of the compensation monies.
On 15 th February 1988 the Council executed a Deed Poll vesting the land in the Council. However, Mr Watkins refused to move. So the Council issued possession proceedings in the Cardiff County Court on 26 January 2000. Mr Watkins filed a defence and counterclaim to the effect that he was entitled to stay on the land. He asserted that the Deed Poll was of no effect and that he had been in adverse possession to the Council since 15 March 1966. This defence and counterclaim was largely struck out by HH Judge Moseley Q.C. who gave summary judgment for possession to the Council. Mr Watkins appealed to Neuberger J who dismissed the appeal but suspended the operation of the possession order pending any further appeal. Mr Watkins now appeals with the leave of this court.
The appeal involves a consideration of a number of matters: the compulsory purchase machinery which was in place at the relevant time, the Limitation Act 1980, the procedural possibility of challenging the validity of the Deed Poll after this length of time and the substantial merits of any such challenge. As to broad merits, the appellant says he has been on the land for the last 40 years and that it is now too late for the Council to remove him, particularly since the Council no longer want the land for the purpose for which it obtained the CPO. The Council says that what it claims is its relatively recent change of mind as to what it wants to do with the land is irrelevant and that Mr Watkins should not be allowed to have any benefits from his unlawful behaviour in ousting the Council in 1966.
The Statutory Compulsory Purchase Machinery
As one might expect with a case with this long background, much of the relevant legislation has now been replaced or amended.
The Order was made under the Acquisition of Land (Authorisation Procedure) Act 1946. This Act incorporated in relation to the Order various provisions of the Lands Clauses Consolidation Act 1845.
For present purposes three interrelated matters need to be considered: the assessment and payment of compensation, the transfer of title and the taking of possession by the acquiring authority. The usual order of events is that, once the Order has been confirmed, compensation is agreed or assessed, title is conveyed and possession is taken. In the present case, however, the taking of possession was the first thing that happened.
The provisions as to the assessment and payment of Compensation were contained in the Land Compensation Act 1961 and do not need further consideration here.
In the present case, it appears that back in 1966 the Council was in a hurry and wished to enter into possession before compensation had been agreed or assessed or title conveyed. The statutory machinery allows for this.
Paragraph 3 of the Second Schedule to the 1946 Act entitled the Council to enter on and take possession of the land on giving notice to treat and notice of entry. It provided that:
"Where a local authority … have been authorised … to purchase any land compulsorily, then, at any time after serving notice to treat and after serving on the owner … of the land not less than fourteen days notice, the authority … may enter on and take possession of the land …"
Taking possession did not have the effect of vesting title in the Council. It did however have the result that the Council was liable to Mr Watkins to pay compensation.
From time to time it happens that the landowner is uncooperative. At the relevant time the legislation which governed this situation was contained in sections 76 and 77 of the 1845 Act. The 1946 Act provided that the references in the 1845 Act to "the promoters of the undertaking" should be construed as references to the acquiring authority, in this case the Council. So I have for present purposes amended the 1845 Act accordingly.
Section 76 provided:
"If the owner of any such lands purchased or taken by the [Council] or of any interest therein…, on tender of the … compensation … awarded to be paid in respect thereof … refuse to convey … [the] lands as directed by the [Council] …, it shall be lawful for the [Council] [to pay into the Supreme Court the … compensation payable in respect of such lands]."
Section 77 provided:
"Upon any [such payment …] of money as last aforesaid being made … it shall be lawful for the [Council] … to execute a deed poll … containing a description of the lands in respect whereof [such payment …] shall have been made, and declaring the circumstances under which and the names of the parties to whose credit [such payment … ] shall have been made, … and thereupon all the estate and interest in such lands of the parties for whose use and in respect whereof such … compensation shall have been [paid or deposited] shall vest absolutely in the [Council], and as against such parties [the Council] shall be entitled to immediate possession of such lands."
The Pleadings
A number of points were in issue in the court below which have no longer been pursued and so the following account is a somewhat simplified version of the pleadings.
The Council's Particulars of Claim assert that it is the freeholder by virtue of the Deed Poll. They assert that Mr Watkins occupies the land but that at no time since the date of the execution of the Deed Poll has Mr Watkins had any legal or equitable title in the land or any right or permission to occupy the land or part of it.
The Defence accepts the making and confirmation of the Order, the decision of the Lands Tribunal, the serving of the Notice to Treat, the payment into court and the execution of the Deed Poll. However it denies that the Council is the freeholder entitled to possession. It makes the following assertions, mostly in the alternative:
"By the autumn of 1984 the Council had abandoned any intention to use the land for open space but had expressed the intention of selling it for housing purposes;
Mr Watkins retook possession in March 1966 and had been in adverse possession ever since;
By letting 22 years elapse between the confirmation of the order and the execution of the Deed Poll the Council was estopped from asserting that time did not start running against it until the execution of the Deed Poll;
Mr Watkins had been in adverse possession since 2 nd May 1977…."
The Limitation issues
The Limitation Act 1980 provides as follows:
"s. 15. Time limit for actions to recover land
(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
s.17 Extinction of title after expiration of time limit
Subject to …
at the expiration of the period prescribed by this Act for any person to bring an action to recover land … the title of that person to the land shall be extinguished.
Schedule 1
8(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and...
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