International Traders Ferry Ltd v Adur District Council [2004] EWCA Civ 288

Case No C3/2003/1555[2004] EWCA Civ 288
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 26 February 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE LATHAM
MR JUSTICE EADY
Between
INTERNATIONAL TRADERS FERRY LIMITEDAppellant-v-
Between
ADUR DISTRICT COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR ALUN ALESBURY (instructed by Messrs Willans, Gloucestershire GL50 1RH) appeared for AppellantMR DAVID HOLGATE QC AND MR CHARLEY MYNORS (instructed by Barlow Lyde & Gilbert, London EC3A 7NJ) appeared for Respondent
J U D G M E N TThursday, 25 February 2004

LORD JUSTICE PILL:

This

[1]is an appeal against a decision of the Lands Tribunal, George Bartlett Esq QC President, dated 13 June 2003. The Tribunal considered a reference by International Ferry Traders Ltd ("ITF") dated 10 April 2000 seeking compensation under section 186(2) of the Town and Country Planning Act 1990 ("the 1990 Act") in respect of a stop notice served by the Adur District Council ("the Council") on 1 February 1995 along with an enforcement notice which had been quashed on appeal.[2]The enforcement notice and stop notice related to land at Shoreham Harbour, West Sussex in the ownership of the Shoreham Port Authority ("SPA"). The site had formerly been occupied by a power station. In 1994 and 1995 ITF used ground on the site as a holding area and for loading onto ships animals destined for France. The trade in live animals was a controversial activity at the time and subsequently. Other parts of the site were used by other persons.[3]The enforcement notice under section 172 of the 1990 Act related to the whole of the site known as the Brighton "B" Power Station site and to further land within the port. It required the cessation of:
"The use of the Quays for the docking of ships and the loading and unloading of cargoes and of the open land on the site for the movement of vehicles and for the temporary storage of cargo and materials and the use of any buildings or land in support of all these functions."
The stop notice served under section 183 of the 1990 Act, a draconian step, submits Mr Aylesbury on behalf of ITF, prohibited these operations.[4]By virtue of section 186(1) of the 1990 Act, compensation may be payable in respect of a prohibition contained in the stop notice if certain requirements are satisfied, including that the enforcement notice is quashed on grounds other than those mentioned in paragraph (a) of section 174(2) of the Act. The enforcement notice in this case was quashed on ground (c), namely that the matters stated in the notice did not constitute a breach of planning control. Section 186(2) provides, insofar as is material:
"A person who, when the stop notice is first served, has an interest in or occupies the land to which the notice relates shall be entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition contained in the notice..."
[5]Section 186(3) provides:
"A claim for compensation under this section shall be made to the local planning authority within the prescribed time and in the prescribed manner"
. Under Regulation 12 of the Town and Country Planning (General) Regulations 1992 ("the 1992 Regulations") a claim for compensation under the section must be in writing and must be served on the authority by delivery or by post within 12 months of the date of the decision in respect of which the claim is made or such longer period as the Secretary of State may allow.[6]Both ITF and SPA appealed against the enforcement notice. Following a local public inquiry held in January and February 1997 the Secretary of State accepted a recommendation of the inspector who conducted the inquiry that the appeal should be allowed on ground (c). On 28 January 1998, the Secretary of State quashed the enforcement notice. That decision was itself quashed in the High Court but restored on appeal to this court on 23 July 1999.[7]ITF relied on a letter of 25 February 1998 as a claim for compensation within the meaning of section 186 and Regulation 12. An extension of time was later, on 21 January 2000, sought from the Secretary of State but was refused.[8]The President of the Tribunal ordered that the following matters be determined as preliminary issues:
"(a) whether or not the claimant is a person entitled by section 186(2) of the 1990 Act to be compensated in respect of the stop notice issued by the authority on 1 February 1995 relating to land and property known as the Brighton B Power Station Site at Shoreham-by-Sea, West Sussex; (b) whether or not the letter of 25 February 1998 to the authority from the solicitors acting for the claimant constituted a claim for the purposes of regulation 12 of the 1992 Regulations and section 186 of the 1990 Act."
[9]The President also made an order for the lodging and exchange of witness statements. Neither party complied with the time limit laid down but, well in advance of the hearing, the Council lodged a witness statement. None was lodged on behalf of ITF. Shortly before the date first fixed for the hearing in February 2003 consultants on behalf of ITF requested an adjournment. The hearing was adjourned until 10 April 2003 without objection from the Council. On the morning of the hearing, a representative of the consultants telephoned the Tribunal to say that he was ill and could not attend. Mr WJ Ford, a director of ITF, was given leave to appear on the company's behalf. He requested an adjournment but, unsurprisingly in the circumstances, the application was refused. Evidence from Mr Ford was not permitted, an order having been made on 28 January 2002 debarring the calling of evidence where no witness statement had been lodged.[10]The first preliminary issue turns on whether on the date on which the stop notice was served, 1 February 1995, ITF had an interest in or occupied the land to which the notice related.[11]The evidence before the Tribunal was the witness statement on behalf of the Council and the bundle of documents exhibited with it. Reference was also made to the inspector's report at the local public inquiry. No narrative evidence was available from ITF explaining their activities on site. The inspector at the local public inquiry commented in his report that "the evidential basis offered in support of the ITF claim is very limited".[12]The inspector's findings in relation to the use of the site had included a finding that there was an area "used for the export of livestock, in association with the access coloured yellow leading to turning basin where cargo was unloaded. Includes Howard's Timber Shed occupied as offices". It was found by the Tribunal that the vessel used by ITF tied up at the quayside adjacent to the turning basin, was stern loaded there and that the transhipment of the cargo took place through the land to the west of the turning basin. It was found that on one occasion in March 1995, ITF's chartered vessel was displaced from its berth on the inner lay-by because SPA had told them that the berth was required for another vessel. The harbour master gave instructions that the vessel should be moored at a different wharf. It was found that ITF stored furniture and other office equipment in the Howarth shed, and used it as an office. ITF had erected security fencing at the site and it was in place on the relevant date.[13]For ITF, Mr Aylesbury relies on two licences which SPA had issued to the company. The first was stated to be for the period 1 November 1994 to 31 October 1994, and licensed the company:
"(i) to discharge and load vessels at the Wharves which are owned or under the control of the Port Authority and to make use of Transit Areas adjacent to those Wharves for the temporary storage of goods in transit; (ii) to make use of the Transit Sheds owned or under the control of the Port Authority for the sorting and examination of goods in transit discharged or loaded at the adjacent Wharves; (iii) to use the Port roads on foot and by vehicle for and in connection with the foregoing purposes."
[14]The licence was subject to a number of conditions controlling the rights of the claimant. They included:
"1. Vessels will be berthed at the Port Authority's Wharves only as directed by the Harbour Master. 2. Space in the Port Authority's Transit Sheds and Transit Areas will be subject to control by the Harbour Master. 3. The licensee undertakes:- (a) to pay whatever fees, rates, rents and charges may be authorised by the Port Authority from time to time for the use of the Wharves Transit Areas or Transit Sheds. (b) to observe the conditions from time to time stipulated by the Port Authority for the use of the Wharves, Transit Areas, Port roads and Transit Sheds... (g) to comply with the Port Authority's Byelaws in force from time to time, with all directions made by the Harbour Master acting thereunder or in accordance with his statutory powers and with all regulations made by the Port Authority with respect to Port roads. (h) to remove goods from the Wharves, Transit Areas and Transit Sheds if directed to do so by the Harbour Master; (i) to obtain the Port Authority's consent to the type of handling equipment to be used on the Wharves and Transit Sheds and to comply with any instructions of the Harbour Master in respect of the use of such equipment. 5. The Port Authority reserves the right to remove and store elsewhere any goods placed on its Wharves and Transit Areas or in the Transit Sheds should the Licensee fail to do so within a reasonable time of notice being given by the Harbour Master and to recover the cost of such removal and storage from the Licensee."
The Port Authority also reserved the right to determine the licence:
"(i) forthwith if the Licensee fails to comply with any of the above conditions; (ii) after three months' notice at any time."
[15]The second licence permitted ITF to use premises described as "Former Howarth Timber Ltd office at the Inner Lay-by" from 1 November 1994 until further notice. The structure, described by Mr Aylesbury as "quite a small thing", is agreed to be situated near the eastern end of the site. The licence could be determined by either party on four weeks' notice in writing. A licence fee of £100 plus VAT per month was required and the licensee was required to observe and perform all rules and regulations that might be imposed by the licensor from time to time. The licence was stated to be personal to the licensee and it was declared that it was not the intention of the parties to create between them a relationship of landlord and tenant. Clause 6 provided:
"It is hereby agreed and declared that this Licence confers no right to exclusive possession upon the Licensee and accordingly that the licensor retains the right to enter upon the premises at any time and in any manner and for any purpose, and to relocate the Licensee to other premises within the port area or failing this to terminate this Licence."
[16]The Tribunal found, in favour of ITF on this point, that an occupier is not disabled from claiming compensation by reason of the fact that he does not occupy the whole of the land to which the notice relates. It was held that:
"A person who has an interest in part of a piece of land can properly be said to have an interest in that land; and the same goes for occupation."
There is no appeal against that finding.[17]The Tribunal found that the first licence:
"... conferred no interest in land, nor did it give any right to use any particular part or parts of the port. Both berthing and the use of the transit sheds and transit areas were subject to the direction and control of the Harbour Master, who was able to direct where vessels were to be berthed and what wharves etc were to be used and to require the removal of goods from the wharves etc."
It was also held that the second licence did not confer an interest in the land. Reference was made to its terms, and it was also found that the nature of the first licence "colours the second licence and provides confirmation that it was not intended to confer any interest in land":
"It is clear, in my judgment, that this second licence conferred on the licensee no interest in land. Quite apart from the stated intention of the parties, which would not necessarily be conclusive, the terms of clause 6 in particular show that the licensee gained no exclusive right to possession and could be relocated by the licensor at any time. It is also right, in my view, to bear in mind the circumstances in which the licence was granted. ITF Ltd evidently required the use of office space in connection with its use of the port for the export of livestock. The building it was licensed to use was, adjacent to the wharf and the transit area that it used for this purpose, and it ceased to use the building (apart from not removing its possessions from it) not long after the export of livestock from the wharf came to an end. The nature of the first licence, which I have referred to above, and the use of the port facilities for which it provided, in my view colours the second licence and provides confirmation that it was not intended to confer any interest in land."
[18]As to occupation, the Tribunal stated:
"What amounts to occupation is likely to depend upon the nature of the use, but in all cases, in my judgment, the occupation must have a sufficient degree of permanence and must be exclusive (or paramount where there are two potential occupiers)."
It was held that the test fell to be applied in the light of any contractual terms or other limitations that condition the nature of the occupation.[19]The Tribunal's conclusion was:
"As I have said above, the first licence granted ITF Ltd no rights in respect of any particular part of the land or of the port. It was a matter for the harbour master to direct which part of the port should be used. He could require ITF Ltd to move elsewhere at a moment's notice, just as he could (and did) direct where ships should berth. ITF Ltd's use of the land was just one of a number of such uses. The storage and shipment of granite setts and baled waste paper were other similar uses of parts of the B Station site. That ITF Ltd was evidently permitted to erect security fencing around the area allotted to it does not seem to me inconsistent with a high degree of control exercised by the harbour master over the use of the port."
[20]Mr Aylesbury makes the general point that in a context in which ITF have been wronged by the issue of a stop notice, the court should be prepared to construe the words "interest" and "occupied" generously to the victim of the wrong. He also relies in relation to both "interest" and "occupy" upon the principle of equivalence in Horn v Sunderland Corporation [1941] 2 KB 26. However, that principle applies to the amount of compensation and does not, in my view, assist in deciding whether a claimant is entitled to compensation at all.[21]In relation to the claim for an interest, the claim which was not made below though it was considered by the Tribunal at its own initiative, Mr Aylesbury relies on Pennine Raceway v Kirklees MBC [1983] 1 QB 382. He submits that it is not necessary to have an interest in land in the technical and conveyancing sense, an enforceable right to use the land is sufficient. That is the foundation of his submission. The claimant in Pennine had been granted a contractual right to use an airfield for arranging motor racing events. Planning permission which permitted that use had been revoked. A right to compensation was conferred by section 164 of the Town and Country Planning Act 1971 ("the 1971 Act") upon "a person interested in the land". Eveleigh LJ stated at page 388F:
"Therefore I approach section 164 on the basis that it is a section designed to compensate those who have incurred expenditure in reliance upon a permitted use only to find that they now face loss because the planning authority has revoked the permission. The subject matter of the compensation is not the compulsory acquisition of land, but the restriction upon use. Clearly some limit has to be placed upon the right to claim compensation because many a person may be affected by a change in the permitted use of land while not themselves being directly concerned to make any use of it. In the present case, for example, an omnibus company might have planned to lay on transport facilities to and from the airfield. In my opinion this section envisages as deserving of compensation a person who has a right in relation to the land, which right is adversely affected by the restriction on use."
At page 389G Eveleigh LJ stated:
"The Act refers to an 'interest in land' in other sections and to my mind the change to the less technical language of 'interested in the land' in section 164 is deliberate. I cannot see that it was dictated by the desire to achieve economy of language, for the saving between 'a person interested in the land' and 'a person with an interest in the land' is minimal. I therefore feel free to interpret the phrase without regard to technical terms. In the context of the Act, and section 164 in particular, a person who, like the appellants, has an enforceable right as against the owner to use the land in the way which has now been prohibited is 'a person interested in the land' within section 164."
That is the basis on which Eveleigh LJ decided the case. Kerr LJ agreed, stating at page 394G:
"It seems to me that, in construing the words 'a person interested in the land' in a provision dealing with compensation, one is entitled to say that if the draftsman had intended to section 164(1) should only apply to persons who have an interest in land, and if the draftsman had also intended that the latter expression should bear its narrow technical meaning wherever it appears in the Act, then he would have been most unlikely to use the more general words 'a person interested in the land' in section 164(1)."
[22]However, Mr Aylesbury relies on the fact that Eveleigh LJ, though not Kerr LJ, went on to consider what the position would have been had the word "interest" been used. He stated at page 389H:
"Although I have reached my conclusion upon the basis that I do not have to regard section 164 as requiring the claimant to establish that he is a person with an interest in the land, I would nonetheless have come to the conclusion that the appellants were entitled to compensation even if the words in section 164 had been 'a person with an interest in the land'."
The Eveleigh LJ referred to the Privy Council decision in Plimmer v Wellington Corporation (1884) 9 AC 699, where an occupier of land with a reasonable expectation that his occupation would not be disturbed was held to have an interest in land for the purposes of a compensation statute when he had incurred expense at the request of the Government, the owners of the land. Giving the judgment of the Board, Sir Arthur Hobhouse stated, at page 713:
"... the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated."
Eveleigh LJ saw no distinction between Plimmer and Pennine, where the licensee had also spent substantial sums on clearing land, erecting safety fencing, laying a tarmacadam surface on a substantial area and creating a bank for spectators. Agreeing in the result, Stephenson LJ stated at page 395G:
"Differing, I fear, from Eveleigh and Kerr LJJ in this respect with due diffidence, I cannot see any difference between a person who has an interest in the land, a person entitled to an interest in it and 'a person interested in the land', and I regard the last expression as shorthand for the others or synonymous with them."
Stevens v Bromley London Borough Council [1972] 1 Ch 400, a case to which I will refer in more detail on the second limb of ITF's case, was not cited in Pennine. Dealing with provisions in the Town and Country Planning Act 1962 ("the 1962 Act") providing for the service of enforcement notices, Salmon LJ stated at page 410A:
"I agree that the interest referred to in section 45(3)(b) [cited at paragraph 31 below] is confined to a legal or equitable interest and does not include an interest in the loose or colloquial sense of someone being interested in the land."
Stamp LJ, who dissented on the issue as to occupation, stated at page 417 that the caravan dwellers had no legal or equitable interest in the land itself or any part of it. Edmund Davies LJ did not refer to the question of "interest". Pennine is distinguishable because the decision was based on the word "interested" and not the word "interest", which now appears in section 186(2). Moreover, it is distinguishable on the basis that the licence is quite different and in that no reliance is placed in the present case on the expenditure of substantial sums of money to create an interest; no attempt is made to make such a case.[23]I respectfully agree with Salmon LJ in Stevens that the interest must be a legal or an equitable interest. Whether in another case reliance could be placed on the obiter remarks of Eveleigh LJ to create an interest for present purposes need not be resolved in this case. The Tribunal was, in my view, correct to hold that ITF had no interest in the land.[24]As to occupation, Mr Aylesbury relies on the statement of Viscount Cave in Madrassa Anjuman Islamia of Kholwad vMunicipal Council of Johan-Nesburg [1922] 1 AC 500 at 504, cited by Salmon LJ in Stevens at page 410:
"The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, ... At other times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time, ... Its precise meaning in any particular statute ... must depend on the purpose for which, and the context in which, it is used."
It is common ground that a contractual licensee on land may be, but is not necessarily, an occupier under section 186(2).[25]Mr Aylesbury refers to the company's activities on site. There is nothing to suggest, he submits, that, in the absence of a stop notice, those activities would not have continued for a substantial period of time. The claim to occupy cannot be defeated for lack of permanence when it was a stop notice itself which terminated the occupation. The business was lawfully established and was lawfully operated on the premises. It was not transient. It was unlawfully stopped and compensation should follow.[26]For the Council, Mr Holgate QC relies on the statutory framework in which SPA operate as a background to the licences granted. Section 33 of the Harbours Docks and Piers Clauses Act 1947, incorporated into the Shoreham Harbour Act 1926, provides:
"Upon payment of the rates made payable by this and the special Act, and subject to the other provisions thereof, the harbour, dock, and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers."
[27]While accepting that a port authority may grant a lease over dock premises, Mr Holgate submits that a licence without exclusive possession does not override the effect of section 33 in relation to port users generally.[28]Mr Holgate refers to evidence that the erection of security fencing had been required by SPA simply to enable vehicles to be marshalled within a defined area for inspection by MAFF and to create a secure zone against those protesting against the export of live farm animals from Shoreham. While that point has some force it does not, in my view, defeat the significance of the fencing as a factor in considering whether there is occupation.[29]Reliance is placed on the power of SPA, under the statute and the licence granted to ITF, to give directions in relation to the activities in the area. Mr Holgate also draws attention to the difference in terminology between section 183(6) of the 1990 Act and section 186(2). Dealing with stop notices section 183(6) provides:
"A stop notice may be served by the local planning authority on any person who appears to them to have an interest in the land or to be engaged in any activity prohibited by the notice."
As already indicated, section 186(2) limits the entitlement to compensation to persons having an interest in or occupying the land to which the notice relates. It is easy to see why the broader terminology is necessary in section 183 to achieve the purpose of that section. However, there is force in the point that the broad expression persons "engaged in any activity" is not repeated in section 186(2) where the more limited expression "occupier" has been adopted. Thus, "engaged in an activity" can be taken to be something other than occupation.[30]The issue in Stevens was whether caravan dwellers were "occupiers" of land or had "an interest in land". Its relevance to the present issue is that, if a person is an occupier for the purpose of the service of an enforcement notice, he is likely also to be an occupier for the purposes of section 186 of the 1990 Act. In context, the word is likely to have the same meaning for the purposes of the sections.[31]Section 45(3) of the 1962 Act provided that where an enforcement notice was served by a local planning authority it shall be served "on the owner and occupier of the land to which it relates". There was also a discretion in the authority to serve on any other person having an "interest in that land being an interest which is in their opinion material affected by the notice". The caravans were used as homes, and the issue was whether the dwellers were entitled to be served with an enforcement notice. (I have referred to Salmon LJ's finding as to the meaning of the word "interest" in the relevant section).[32]Stevens establishes, it is submitted by Mr Holgate, that occupation denotes a degree of control of the land which goes beyond mere use. The Tribunal was entitled to hold that the use of the facilities was "short-lived and liable to be so", and also to have in mind the company's liability to be moved from one part of the port to another, as happened on at least one occasion on the evidence. The licensee's rights did not include a sufficient degree of control over the site to amount to occupation. The licence was appropriate for a general port user contemplated in section 33 of the 1847 Act, and the licensee was not an occupier. Salmon LJ stated at page 410H:
"The Town and Country Planning legislation makes anyone who fails to comply with the requirements of an enforcement notice guilty of a criminal offence. Compliance with such a notice may also, in some cases (as I shall show) involve abandoning home and business. The legislation, however, clearly intended to afford a measure of protection to an occupier by ensuring that he should be given adequate warning of the enforcement notice and the opportunity of appealing against it before he could be convicted of a failure to comply with it. I can find no ground for supposing that the legislature intended to deny that protection to anyone in Mr Wicks' position [he was one of the caravan dwellers] by excluding him from the category of occupier. His occupation of his caravan and the plot upon which it stood was far from transient; they were his permanent home. His occupation was exclusive. Even if the plaintiff had some measure of occupation in relation to the unit, Mr Wicks' occupation was clearly paramount. These, in my view, are all factors to be taken into account in deciding whether or not a licensee is an 'occupier' within the meaning of that word in section 45(3)(a). In each case it is a question of fact and degree. There may well be many cases in which it is difficult to decide on which side of the line it falls. On the present facts I have no doubt but that Mr Wicks is well on the right side of the line."
Salmon LJ had prefaced those remarks by a statement at page 410F:
"On the facts of this case which I have recited at the beginning of this judgment, it would, in my view be an affront to common sense no less than to ordinary justice to hold that Mr Wicks was not occupying the plot of land upon which his caravan stood."
Edmund Davies LJ stated at page 413H. "For my part, I am prepared to apply the two tests of (a) degree of control and (b) duration..." Edmund Davies LJ added at page 415:
"I am prepared to adopt it [the test he had set out] as one amply warranted by the facts of the case, including the physical lay-out, duration of sojourn on the site, the contractual terms existing between the plaintiff and his caravanners, and all those other features to which Salmon LJ has already referred."
[33]On the question of occupation there are factors in ITF's favour in this case. However ITF are, in my judgment, in extreme difficulty by reason of the absence of evidence by way of a coherent narrative as to what it was they did on the site in November and December of 1994 and January 1995 and up to 1 February 1995. No explanation has been offered as to why appropriate evidence was not submitted to the Tribunal and the failure to have submitted such evidence is very surprising. Mr Aylesbury submits that the company had a right to be present on site by virtue of the licences; they had an actual physical presence on site, there was a sufficient degree of permanence, and in the circumstances, the concept of exclusive possession was wholly irrelevant. He relies essentially upon the use by right of the land. He further submits that whatever the position on the site generally, occupation was established with respect to the Howarth timber shed which in practice was used by ITF, and ITF alone, as an office and store. Mr Aylesbury seeks to rely on findings of fact made in the Tribunal's decision at paragraph 15. When dealing with the timber shed, reference was made by the Tribunal to the "land used for the export of livestock adjacent to the turning basin." In paragraph 29, when dealing with the fencing, the Tribunal referred to the "area of land allotted to it" - that is to ITF.[34]I would not exclude the possibility that a company performing activities in the way this company was, on premises such as these, could be occupiers for the purposes of section 186(2). Stevens demonstrates the willingness of the courts to look at the question generally and to consider, in a common sense way, evidence of the circumstances in which the use of the land occurs. If a significant business premises is for a time established, lack of permanence would not necessarily exclude the use from amounting to occupation while the use continued. During that time a sufficient degree of control may also be established, though in the present case the Harbour Master's powers to relocate and his other powers also constitute an important factor.[35]The nature and extent of ITF's use during the relevant period is, however, on the evidence so lacking in substance and clarity that it is impossible to hold that occupation was established by ITF or that the reasoning of the Tribunal was in any way wrong or inadequate. Mr Aylesbury repeatedly relied on the Howarth timber shed as a separate entity. Not only was the Tribunal justified in its conclusions (to which I have referred) but there is considerable force in the point made earlier in the decision with respect to "interest" that the nature of the first licence colours the second licence. The operation should be treated as a whole, with the shed an adjunct to the whole. I accept Mr Holgate's submission that the concept of a free-standing occupation of the shed would not, in the circumstances, have been acceptable. Nor is it appropriate in the circumstances to attempt, beyond the test stated in Stevens, to formulate a test for the circumstances of a business use, which may include consideration of factors somewhat different from those involved with the residential use of a caravan. In my judgment, the Tribunal was correct on the evidence to reach the conclusion that ITF were not in occupation of the site, or any part of it, for the purposes of section 186(2).[36]Reference to the Human Rights Act 1998 has belatedly been made on behalf of ITF. The Act was not relied on before the Tribunal, the event complained of having preceded the enactment of the statute. Mr Aylesbury seeks to rely on the European Convention on Human Rights Article 1, Protocol 1 only as an aid to construction of the 1990 Act. Article 1 of the First Protocol provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding permission shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
I see no obvious link between the right provided in Article 1 and the construction of the words "interest" and "occupy" in the 1990 Act. This is not a case where a Convention right can be transposed directly into the construction of a United Kingdom statute. A domestic system of law is entitled, subject to the Convention, to have a method of deciding what categories of persons achieve a status which entitles them to compensation in circumstances such as the present. In my view, the approach which has been adopted in the authorities, and which I have sought to adopt, to the words "interest" and "occupy" is not directly or obviously affected by the existence of Article 1.[37]Mr Aylesbury has referred to the decision of the ECHR in Tre Traktorer Aktiebolag v Sweden [1989] 13 EHRR at 309, where licences granted to a restaurant were held to be "possessions" within the meaning of Article 1. It does not, in my judgment, follow that for present purposes any contractual licence would come within the definition. However, this is not a case where there is a direct claim under Article 1, and it is relied on only in the manner to which I have referred. Had there been a direct claim, had the sequence of events been different, I leave open the question of whether licences of this type could amount to a possession. In my judgment, any claim would fail upon the evidential basis that no case was made before the Tribunal which would permit a finding in ITF's favour upon this ground. The first licence permits relocation. Such evidence as there is suggests that a relocation did occur, in which case, within the meaning of the second sentence of Article 1, it is extremely unlikely that there has been a "deprivation" of possessions. In the absence of any evidential basis for a finding that there has been a deprivation of the peaceful enjoyment of a possession, any claim on this ground would inevitably fail.[38]On preliminary issue (b), the Council submit that no claim for compensation was made in accordance with section 186 and Article 12, set out in paragraph 5 of this judgment. The letter relied on by ITF provides:
"In the light of the decision of the Secretary of State dated 28th January 1998 we write to give you notice that it is the intention of our client company to claim compensation from your authority under section 186 of the Town and Country Planning Act 1990. Full details of the claim will be served on you in due course. We also give you notice that we would wish to be served with notice of appeal under section 289 of the Town and Country Planning Act 1990 which your authority has made or intends to make. We must place on record that as a matter of law we do not agree with the Secretary of State's decision on the question of our client's locus standi."
Mr Holgate makes two points about the letter. First, that the letter expresses not a claim for compensation, but an intention to make such a claim in the future; second, the statutory requirement is that the document should indicate the nature of the claim - that is, the main heads and quantum.[39]I reject both submissions. I accept Mr Aylesbury's submission that a claim was made and that the distinction claimed by the Council is not a real one. The inference that a claim was not being made in the letter could not properly be drawn from the terms of the letter. The future aspect upon a reading of the first paragraph as a whole goes to the "full details" of the claim and not the existence of the claim. Nor is it correct that the regulations require that the main heads of claim should have been indicated within the 12-month period. However, having reached that conclusion, I add that in order to avoid points like this being taken and in the interests of the administration of justice, claimants should make any claim they propose to make clearly and promptly, giving appropriate details as soon as they reasonably can.[40]For the reasons I have given I would dismiss both the appeal and the cross-appeal.

LORD JUSTICE LATHAM: I agree that both the appeal and the cross-appeal should be dismissed for the reasons given by Pill LJ. I wish to add only a few words in relation to the submissions that were made to us by Mr Aylesbury in relation to the effect of the Human Rights Act 1998 on the problems presented in this case.

[42]He submits that, whilst he cannot assert that there was any breach of the Act which could be relied upon because of the dates relevant to these matters, nonetheless the Convention is in fact capable of being an aid to construction, as he puts it, in the present case. The argument is that the rights given to the appellants pursuant to the two licences amounted to a possession of the appellants for the purposes of Article 1 of the First Protocol. It is submitted that there has been an interference with the peaceful enjoyment of that possession or a deprivation of that possession. In those circumstances in order to ensure that the domestic system provides properly for that particular interference or deprivation, the word "interest" should be construed so as to encompass the rights which he asserts to amount to possessions.[43]As Pill LJ has indicated, there are a number of difficulties in the way of using the Article in that way, both as a matter of law and as a matter of fact. As far as the law is concerned one of the difficulties is that there has been insufficient examination of the Strasbourg, and indeed United Kingdom, jurisprudence on the meaning to be given to the word "possession" to enable a satisfactory conclusion to be reached in these proceedings. But in any event, the fact is that the appellants have simply not established, even assuming that the rights could in fact amount to possessions, a factual basis for asserting that there was any interference or deprivation for the purposes of Article 1. The terms of the licences read together gave the appellants such strictly limited rights and gave to the Port Authority such overall controlling rights that the appellants could clearly be moved at effectively the immediate wish of the Port Authority to any place within the port.[44]Accordingly, it is difficult to see how, on the facts that have been established, there could have been any interference with that right, or those rights, bearing in mind the fact that the stop notice only related to part of the port. Accordingly, in my judgment, Article 1 of the First Protocol does not provide the appellants with any basis for the claim that they make either as to the construction of the Act, or on the facts to succeed on the preliminary issue.[45]MR JUSTICE EADY: I agree with both judgments. (Appeal dismissed; cross-appeal dismissed; the Respondents are to receive 90 per cent of their costs; application for leave to appeal to the House of Lords refused).

Cited in 1 later judgment