Rhondda Cynon Taff Borough Council v Watkins

An acquiring authority which lawfully takes possession under compulsory purchase legislation obtains a possessory title. If the landowner then dispossesses it, the authority’s right of action accrues immediately and may become barred under the Limitation Act 1980.

A valid deed poll under section 77 of the Lands Clauses Consolidation Act 1845 nevertheless vests the owner’s existing estates and interests in the authority and creates a fresh right to possession.

The deed must represent a lawful exercise of the compulsory purchase power. A defendant to possession proceedings may challenge its validity on public law grounds as of right. The mere lapse of the judicial review period does not give the court a discretion to exclude that defence.

The Council obtained a compulsory purchase order to acquire the appellant’s land for public open space. It entered in 1966 but was immediately and wrongfully dispossessed by the appellant. Compensation was assessed in 1977, deposited in court in 1987 and followed by a deed poll in 1988. The Council commenced possession proceedings in 2000.

HH Judge Moseley QC struck out most of the defence and counterclaim and granted summary judgment for possession. Neuberger J dismissed an appeal but suspended the possession order pending a further appeal.

The Court of Appeal considered whether the Council’s original possessory claim had become time-barred; whether the deed poll created a fresh title and right to possession; and whether the appellant could defend the proceedings by alleging that, before executing the deed, the Council had abandoned the statutory purpose for which the land was acquired.

1. Appeal allowed unanimously. The appellant’s public law defence raised triable issues of fact and law. The orders striking out that defence and granting summary judgment for possession could not stand.

2. Per Schiemann LJ, with Arden LJ and Aikens J agreeing on the material conclusion, the Council acquired a possessory title when it entered under paragraph 3 of the Second Schedule to the Acquisition of Land (Authorisation Procedure) Act 1946. When the appellant dispossessed it, the Council immediately acquired a right of action for possession. Sections 15 and 17 and Schedule 1 paragraph 8(1) of the Limitation Act 1980 applied. The claim based on the Council’s 1966 possession therefore became barred after 12 years.

3. The appellant’s status as freeholder did not prevent limitation from running. Possessory rights depend on the right to possession. His paper title was inferior, for this purpose, to the Council’s statutory right to possess. Buckinghamshire CC v Moran was distinguishable because it concerned occupation under a licence from the paper owner.

4. Subject to its validity, the 1988 deed poll changed the position. Section 77 of the Lands Clauses Consolidation Act 1845 vested in the Council all legal, equitable and possessory interests which the appellant then held. It also conferred a new and independently enforceable right to immediate possession. Time consequently began to run afresh when the deed was executed, and the proceedings commenced in 2000 were within 12 years.

5. The deed could support the Council’s claim only if it was valid. On the assumed facts, the Council had abandoned the purpose for which compulsory acquisition was authorised before executing it. Applying Grice v Dudley Corporation, there was a real prospect of establishing that the compulsory power was no longer exercisable for its statutory purpose and that the deed was invalid.

6. Per Aikens J, applying Wandsworth LBC v Winder, a defendant may raise the invalidity of a public authority’s act as a defence to private law proceedings as of right. The appellant had not initiated the proceedings and had no need to challenge the deed while his possession remained undisturbed. The delay associated with judicial review did not itself confer a discretion under CPR Part 24 to exclude the defence. Clark v University of Lincolnshire and Humberside concerned a claimant advancing a private law claim substantially based on public law issues and did not displace the rule governing defences.

1. Court of Appeal (Civil Division): The principal appeal was allowed unanimously. The Council’s applications to strike out the counterclaim and obtain summary judgment were dismissed. A related appeal against the order dated 11 December 2001 was dismissed. Permission to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division: Neuberger J dismissed the appellant’s appeal but suspended the possession order pending any further appeal.
3. Cardiff County Court: HH Judge Moseley QC struck out most of the defence and counterclaim and granted the Council summary judgment for possession.