The Mayor and Burgesses of the London Borough of Enfield v (1) Outdoor Plus Ltd (2) J C Decaux (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson,Lord Justice Tomlinson,Lord Justice Mummery |
| Judgment Date | 09 May 2012 |
| Neutral Citation | [2012] EWCA Civ 608 |
| Docket Number | Case No: A2/2011/2001 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2012 |
[2012] EWCA Civ 608
Lord Justice Mummery
Lord Justice Tomlinson
and
Mr Justice Henderson
Case No: A2/2011/2001
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Seymour
HQ09X01140
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Knox QC (instructed by DMH Stallard LLP) for the Appellant
Miss Zia Bhaloo QC (instructed by Trowers & Hamlins LLP) for the Respondents
Hearing dates: 29 and 30 March 2012
Introduction and background
This appeal raises questions about the right approach to an award of damages for trespass to land, in circumstances where the purpose of the award is to compensate the claimant for loss of use of the land by reference to the fee which would have been agreed between the parties, in a hypothetical negotiation, as representing the proper value to the trespasser of its use of the land during the period of the trespass.
In April 2004 the first defendant, Outdoor Plus Limited ("Outdoor"), was invoiced for the erection of a backlit advertising hoarding beside the North Circular Road at 67 Bowes Road, London, N11 ("No. 67"). The intention was to place the whole of the hoarding within the curtilage of No. 67, which was owned by a Mr Mukesh Shah ("Mr Shah") and two other members of his family. This intention was reflected in a written licence agreement ("the First Licence") entered into on 21 May 2004 between Mr Shah and a company associated with Outdoor called Graefield Limited ("Graefield"), whereby Mr Shah licensed Graefield to erect and maintain a hoarding at No. 67 for three years in return for an index-linked annual rent of £11,000.
For reasons which remain obscure, but probably as a result of some mistake or carelessness by the contractors employed to erect the hoarding, it is now common ground that the three steel supports or stanchions for the hoarding were in fact placed on some adjoining waste land in the ownership of Enfield Borough Council ("the Council"), just across and parallel to the boundary with No. 67. It seems that part of the wooden fence which had previously marked the boundary was removed in order to allow the work to be done, although the original concrete posts to which the fence had been attached were left in place. The relevant part of the wooden fence was then replaced a little further within the curtilage of No. 67.
Although the supports were placed on the Council's land, the hoarding panel itself (which at this date was of "landscape" format, and measured approximately 6 metres x 3.5 metres) oversailed No. 67 and did not encroach over the boundary. In other words, the back of the panel ran along, but did not cross, the boundary, and the points where the panel was attached to the supports therefore lay on the boundary itself. The extent of the encroachment was approximately 60 centimetres or 2 feet, consisting of the concrete footings for the stanchions together with the stanchions themselves and their steel footplates.
Over the next few years various developments and changes to the position on the ground took place, of which it is sufficient for the purposes of this appeal to note the following.
By August 2004 the hoarding and the benefit of the First Licence had been assigned to Outdoor (under its then name of Supreme Outdoor Limited). It seems that Outdoor had in fact begun to derive income from letting the hoarding in April 2004, and it continued to do so until 2007 when it entered into the co-operation agreement mentioned in paragraph 12 below.
Complaints about the hoarding on planning and amenity grounds were made to the Council by some neighbouring residents in 2004 and 2005, but following desultory investigation no action was taken. The Council did not appreciate at this stage that the hoarding encroached onto its land.
In August/September 2006 the hoarding was replaced with a new and larger Mega 6 backlit panel or lightbox, which measured approximately 7 metres x 5.3 metres in a vertical or "portrait" format, with the bottom of the panel about 1.5 metres above ground level. The work, which was carried out by Outdoor's contractors, required new concrete footings to be put in place of the old ones and new steel stanchions to be erected, but the extent of the trespass remained materially unchanged and the whole of the new lightbox continued to oversail No. 67.
On 14 September 2006 Mr Shah and Outdoor entered into a new written agreement ("the Second Licence"), which gave consent for the erection and maintenance of the Mega 6 hoarding at No. 67 for three years from 1 November 2006 at an annual index-linked rent of £15,000. Apart from those changes, the wording of the Second Licence was almost identical to that of the First Licence.
No planning permission had been sought or granted for the new hoarding, and its erection generated a further complaint from a neighbour which led to a visit to the site on 12 October 2006 by a Council planning officer, Mr Roger Bryan. This was not his first visit to the site, as he had photographed the previous hoarding in September 2005. In his report dated 19 October 2006, Mr Bryan noted that the new hoarding was much larger than its predecessor, and that the site had no planning history. He therefore recommended that steps be taken to secure its removal. He was also concerned that the site might be owned by Transport for London, as the hoarding stood just in front of a TFL footbridge, so he asked the Council's legal department to carry out a Land Registry search.
On 24 October 2006 the legal department informed Mr Bryan that the land on which the hoarding stood was in fact owned by the Council, and was held for allotment purposes. This appears to have been the first occasion when the Council became aware of the trespass, although no steps were taken to determine its precise extent.
On 12 July 2007 Outdoor entered into a co-operation agreement with the second defendant, J C Decaux (UK) Limited ("Decaux"), granting Decaux the exclusive right to use fourteen advertising panels in various locations, including the Mega 6 hoarding at 67 Bowes Road, for five years from 10 September 2007 at a guaranteed minimum fee of £65,000 per annum per panel. The final letting of the hoarding by Outdoor expired on 26 August 2007. According to the evidence of Mr Jonathan Lewis, who had joined Outdoor in November 2005 and was its managing director, the hoarding at Bowes Road was one of the lower value sites in the package. In the event, Decaux never generated enough revenue from it for more than the minimum fee to become payable to Outdoor.
In November 2007 the Council concluded a comprehensive survey of advertising sites in the borough which it had commissioned in April of that year, with a view to tackling the problem of illegal hoardings. Experience had shown that this problem was difficult to manage, because of lack of resources and the size of the road network in the borough. In the light of this survey, a planning enforcement officer of the Council wrote to Outdoor on 7 November 2007 giving 21 days' notice to remove three hoardings, including that at No. 67, on the stated ground of lack of express or deemed planning consent, and inviting a response supported by evidence within the same period if the absence of planning consent was challenged. No mention of trespass was made in this letter.
On 11 December 2007 Mr Lewis replied on behalf of Outdoor, asserting that all three panels had the benefit of planning consent "as there have been panels in situ at each of these locations for more than 10 years". No supporting evidence for this assertion was provided, although Mr Lewis expressed willingness to provide it should it be required. The Council then seems to have let the matter drop again.
In August 2008, however, the Council tried a new tack. It instructed solicitors, Saunders Solicitors LLP, who wrote to the head of Decaux's legal department, Mr Julian Cole, on 26 August, alleging trespass for the first time in relation to the Mega 6 hoarding, and repeating the earlier allegation of lack of planning consent. The letter demanded a schedule of the profits made by Decaux from its use of the site, and sought proposals to compensate the Council for the use of its land without consent, as well as for removal of the hoarding within seven days. Enclosed with the letter were a number of recent photographs of the site, one of which clearly showed the stanchions on the "wrong" side of the old concrete fence posts on the boundary with No. 67.
Decaux passed this letter to Outdoor, who promptly instructed solicitors (Trowers & Hamlins) to investigate the matter. On 1 September 2008 Trowers & Hamlins replied to the Council's solicitors, repeating Outdoor's earlier assertion that the site had been used for an advertising hoarding for more than 10 years, and denying trespass on the basis that the hoarding stood within the registered title to No. 67.
On 9 September 2008 Saunders Solicitors wrote to Trowers & Hamlins, taking issue with Outdoor's contentions in relation to both planning and trespass. A substantially accurate description of the trespass was given (with the benefit of a site inspection), and Outdoor was invited to supply detailed information relating to the commercial use of the site within 7 days on a voluntary basis, failing which the Council said it would have to consider legal action.
Further inconclusive correspondence...
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