Fowles v Heathrow Airport Ltd

Permission to appeal is assessed by reference to whether each proposed ground has a real prospect of success. For adverse possession, control over land occupied by another does not amount to exclusion of the world in general until that occupier has left or been displaced. Excluding the landlord alone is insufficient. Under section 187A(2) of the Town and Country Planning Act 1990, a breach of condition notice may require compliance with specified parts of a multipartite condition. Permission may properly be granted where the lower court’s analysis leaves potentially material inconsistencies, fails to interpret relevant planning documents, or does not address a material legal issue.

The appellant occupied land owned by the respondent. His tenancy, which began in 1978, had been terminated by notice under section 25 of the Landlord and Tenant Act 1954. He claimed adverse possession and challenged planning enforcement measures relating to the use of the site for receiving and recycling waste concrete.

The High Court, in a judgment of Lewison J dated 15 February 2008, made a possession order, rejected the adverse-possession claim and addressed the validity of a breach of condition notice, an enforcement notice, a certificate of lawful existing use and development, and the possibility of a new tenancy. The appellant sought permission to appeal on 15 grounds. The central issue was which grounds had a real prospect of success.

1. Disposition. The application for permission to appeal was granted in part. Permission was refused on grounds 1–9 and granted on grounds 10–15. A hearing of one to one-and-a-half days was directed before three Lord Justices, or including a High Court judge, with a Lord Justice having planning experience if possible.
2. Adverse possession. Exclusion of the world in general was required. Because Quick’s remained on the site, there could be no such exclusion until it left or the appellant took over its land. The judge’s findings indicated that this occurred in 1992. The appellant’s separate exclusion of the landlord could not, by itself, amount to exclusion of the world in general. Grounds 1–5 therefore had no real prospect of success.
3. Breach of condition notice. The judge had held that the notice fell within section 187A of the Town and Country Planning Act 1990. Section 187A(2), which referred to securing compliance with such of the conditions as were specified, permitted specification of part of a multipartite condition. The challenge to the notice accordingly had no real prospect of success, and grounds 6–9 were refused.
4. Planning issues. Grounds 10–14 raised arguable issues. The judgment appeared potentially inconsistent in finding both no material change from the 1994 planning permission and unlawfulness by breach of the 1988 enforcement notice. It did not sufficiently analyse the scope of either document or the evidence concerning the ordinary meaning of recycling waste concrete. It also did not address whether the court could determine the certificate issue, or whether a certificate, if granted, would have been lawfully granted or susceptible to judicial review.
5. If grounds 10–14 succeeded, the court would also have to consider whether to grant a new tenancy under section 30 of the Landlord and Tenant Act 1954.

• Court of Appeal (Civil Division): On 10 June 2008, Arden LJ granted permission to appeal on grounds 10–15 and refused permission on grounds 1–9.
• High Court of Justice, Chancery Division: Lewison J’s judgment dated 15 February 2008 made a possession order, rejected the adverse-possession claim and dealt with the planning issues raised by the appellant.