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IN THE SUPREME COURT OF JUDICATURE LTA 98/7462/1

(MRS JUSTICE STEELE )

Royal Courts of Justice

Strand

London WC2

Monday, 18 January 1999

B e f o r e:

LORD JUSTICE MUMMERY

LORD JUSTICE CHADWICK

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MANCHESTER AIRPORT PLC

PLAINTIFF/RESPONDENT

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DUTTON & ORS

DEFENDANTS/APPLICANTS

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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The Applicant, Mr C Maile, appeared in person

MR I WOOD (Instructed by Solicitors for Manchester Airport Plc, Manchester M90 1QX) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Monday, 18 January 1999

J U D G M E N T

LORD JUSTICE CHADWICK: This is an application for leave to appeal against an order made on 26 October 1998 by Steele J in the Manchester District Registry. By her order the judge dismissed an appeal by Christopher Maile and others from an order made by the district judge on 18 September 1998, under RSC 1965 Ord.113, requiring Mr Maile and five other named defendants and persons unknown to give possession of land forming part of Arthur's Wood, Styal, Cheshire.

The owner of Arthur's Wood, with title registered at HM Land Registry, is the National Trust for Places of Historic Interest or Natural Beauty. The wood is situate near to the proposed second runway for Manchester Airport. The airport is operated by the plaintiff in these proceedings, Manchester Airport Plc. It appears that, in connection with the operation of the second runway, the airport company needs to carry out certain works within Arthur's Wood. Those works are described as "OLS" works, being works connected with the creation of an "obstacle limitation surface". Put shortly, the works may be described as the lopping of trees.

For that purpose, the airport company were granted a licence by the National Trust dated 22 June 1998. So far as material the terms of the licence are contained in the first three paragraphs:

"1. IN CONSIDERATION of the agreements on behalf of [Manchester Airport] hereinafter contained [National Trust] gives [Manchester Airport] and its contractors and agents licence to enter and occupy that part of Arthur's Wood Styal Cheshire shown edged red on the attached plan ('the Land') for the purpose set out in this Agreement.

2. The purpose for which the licence is granted is to enable the works agreed between the parties and set out in the document appended hereto and titled 'Trees affected by Obstacle Limitation Surface - Arthur's Wood' ('the Works') to be carried out. [National Trust] gives no Warranty that the premises are legally or physically fit for the purposes specified in this clause.

3. This Licence shall subsist from the date hereof until 31st March ...

There was a proviso for extension for such reasonable period for completion of the OLS works as the parties should agree.

The significance of 31 March 1999 - as explained to us today - is that that date marks the onset of the nesting season. It is recognised by all that, if the works are to be carried out this year, they should either be carried out before the nesting season commences or deferred until after the nesting season has ended. That would be in late September.

Mr Maile and his co-applicants, it may be inferred, are opposed to the construction of a second runway at Manchester Airport - or, at the least, are opposed to the works to be done in Arthur's Wood in connection with that second runway. Since 21 June 1998 or thereabouts (that is to say, since very shortly before the grant of the licence to which I have referred) they, or others, have been in occupation of parts of Arthur's Wood as trespassers. It may also be inferred that it is their intention that their presence in the wood should make it difficult or impossible for the airport company to carry out the OLS works.

It was in those circumstances that the airport company commenced these proceedings by the issue of an originating summons under RSC Ord.113,r.1. The rule is in these terms:

"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order."

The short point in the present proceedings is whether the airport company, who claims as licensee under the licence of 22 June 1998 is a person entitled to bring summary proceedings for possession under that rule. The judge, affirming the district judge, held that the airport company was such a person. Mr Maile and his co-applicants, for reasons set out in a carefully drawn notice of appeal provided to us in draft, wish to challenge that finding.

It is common ground that there is no decision of this Court which is directly in point. I express no view on the prospects of persuading the Court of Appeal that the airport company in the present case is or is not a person entitled to bring summary proceedings against trespassers under Ord.113,r.1. But I am satisfied that it would be for general public benefit that that question should be determined authoritatively by the Court of Appeal on a substantive hearing.

In those circumstances, I think it right to give leave to appeal.

LORD JUSTICE MUMMERY: I agree.

ORDER: Leave to appeal granted; the hearing to take place on Friday, 5 February; respondent's skeleton argument to be submitted by close of business on Friday 29 January; Mr Maile (if he is going to conduct the case in person and intends to use a skeleton argument) by the same time; there will be an order staying execution of the order of 26 October 1998 until determination of the appeal.