B2/2005/0128 
Neutral Citation Number: [2005] EWCA Civ 941
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM GUILDFORD COUNTY COURT
(HIS HONOUR JUDGE REID QC)
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 27th June 2005
 
B E F O R E:

LORD JUSTICE CHADWICK 
LORD JUSTICE RIX 
LORD JUSTICE CARNWATH 
 - - - - - - -
 
(1) MARK CHAPMAN
(2) FIONA RIVERS CHAPMAN 
Claimants/Respondents
-v-
 
(1) GODINN PROPERTIES LIMITED 
First Defendant/Appellant

(2) DAVID ROBERT STIRLING
(3) JACKIE STIRLING 
Second and Third Defendants 
 - - - - - - -
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR IAN FOSTER (instructed by Messrs Shammah Nichols, Manchester M3 3EL) appeared on behalf of the Appellant
MR MARTIN STRUTT (instructed by Messrs Lyons Davidson, Bristol BS1 6AD) appeared on behalf of the Respondents
 - - - - - - -

J U D G M E N T
1.	LORD JUSTICE CHADWICK:  This is an appeal from an order made on 7th January 2005 by His Honour Judge Reid QC, sitting at Guildford County Court, in proceeding brought by Mr Mark Chapman and his wife Mrs Fiona Chapman.  The first named defendant to those proceedings, Godinn Properties Ltd, is the owner of property known as the Shamley Wood Estate, near Shamley Green in Surrey.  The second and third named defendants, Mr David Stirling and his wife Mrs Jackie Stirling, are or were the occupiers of the principal house on that estate - Shamley Wood House.
2.	Access to Shamley Wood House from the public road, Woodhill Lane, is over a private metalled or concrete driveway.  The driveway runs in a north-easterly direction from the point at which it joins Woodhill Lane.  In the angle formed by Woodhill Lane and the private driveway, there is a property known as Hillyfields which is owned and occupied by Mr and Mrs Chapman.  Hillyfields lies to the south and east of the driveway.  The north-western boundary of Hillyfields is formed by a close boarded fence on the top of a bank.  Between the fence and the driveway there is a strip of land, to which, for convenience, I shall refer as "the disputed land").  The strip is about 100 yards in length, that being the length of the north-western boundary of Hillyfields; its width varies from a few feet to about 10 yards.  Access from Hillyfields to the private driveway is gained over the disputed strip.  There are two entrances, each used by vehicles and each formed by gravel laid over a hard base.  Access from Hillyfields to the public road, Woodhill Lane, from those entrances is over the private driveway.  There is, I think, no direct access from the public road.  The southern and western of the two entrances - that is to say, the entrance nearest to the point where the private driveway joins Woodhill Lane - is flanked by two brick walls, which extend from the close boarded fence to the edge of the driveway and are splayed so as to give adequate sight lines.
3.	The Shamley Wood Estate - or, at least, so much of it as is relevant to the issue on this appeal - is held by Godinn Properties Ltd ("GPL") under a registered title, SY447892.  That title - which is an absolute title - includes the driveway.  In particular, it includes that part of the driveway which lies to the north and west of Hillyfields, and over which Hillyfields gains access to Woodhill Lane.  The driveway is subject to right of way for the benefit of Hillyfields.  The judge found that the disputed strip was not within title SY447892.  There is no challenge to that finding on this appeal.
4.	Hillyfields and adjoining land to its north and east are held by Mr and Mrs Chapman under registered titles SY247575 and SY548396.  For the purposes of this appeal it is the only former title which is of relevance.  The judge held that the land in that title did not include the disputed strip.  Again, there is no challenge to that finding.
5.	The circumstances in which the conveyancing history of the Shamley Wood Estate and the property now known as Hillyfields has led to the position that the disputed strip is not included within either title SY447892 or title SY247575 are fully set out by the judge in his careful judgment.  For the purposes of this appeal it is not necessary to rehearse them.  It is enough to say that there appears to be no person registered with title absolute to the disputed strip; and, if there is someone who could establish a paper title to the disputed strip under pre-registration conveyances, that person has not been identified and has, for practical purposes, long ceased to have any interest in what use is now made of that strip. 
6.	At the time that these proceedings were commenced in October 2001, however, the disputed strip (with other land) was the subject of registration with possessory title under title no SY563632.  That registration had been first effected on 24th September 1986 by Mr Ronald Frost and his wife Mrs Beryl Frost, the previous owners of the Shamley Wood Estate.  The possessory title had been transferred to GPL on its acquisition of the Shamley Wood Estate in 1994.
7.	The circumstances in which registration of the disputed strip with possessory title was obtained in 1986 are described by the judge in paragraphs 21 and 24 of his judgment:
"Mr Frost made a statutory declaration in order to support his claim for possessory title to the disputed strip.  He described the drive and verges as having 'been enclosed throughout their entire length by substantial fencing on each side' and asserted that he had 'regarded the whole length of the driveway and verges within the fencing as being part of the property' and that 'it has been so repaired and maintained by me.'  He accepted that 'certain adjoining owners have rights of way over parts of the access drive and do in fact exercise these rights.'  He went on to say that he was unaware of 'any person claiming ownership of the access drive and verges.'  There was a statutory declaration in similar terms from Mr Featherstone, his farm manager.
... 
In my judgment the statutory declarations were seriously misleading.  The verges had not been enclosed with 'substantial fencing on each side'.  If the reference to repairing and maintaining 'it' was a reference to the driveway itself, it was entirely irrelevant to the issue of ownership of the verges.  If the intention was to suggest that Mr Frost had repaired and maintained the verges, it was not true.  The assertion that he was not aware of 'any person claiming ownership to the access drive and verges nor any part or parts of them and in particular those sections of the grass verges which are shown coloured blue on the annexed plan' sits very oddly with the existence of the walls flanking the entrance to Hillyfields which clearly stand on the areas coloured blue."

8.	As I have said, these proceedings were commenced in October 2001.  Amended particulars of claim were served on 7th March 2003.  The relief claimed included declarations as to rights of way over the roadway, and an order that the defendants provide the claimants with a code for the key pad to a gate which they had had erected.  Those matters ceased to be in issue at the trial.  But the claim went on to seek a declaration that the claimants (Mr and Mrs Chapman) owned the disputed strip and, by paragraph 5, rectification of title numbers SY563632 and SY247575 at HM Land Registry, so as to cancel the entry in favour of GPL and, so far as necessary, to include the disputed strip within the claimants' title SY247575.
9.	The proceedings came before His Honour Judge Reid QC for trial in November 2004.  The judge took the opportunity to view the disputed strip.  It is helpful, I think, to set out his description of the land as he found it.  At paragraph 3 of his judgment he said this:
"The area in dispute lies on the right of the driveway up to Shamley Wood House.  The driveway, which (as can be seen from a reference in the charges register of the First Defendant's registered title) existed as a cartway at least as long ago as 1925, is on the left of Woodhill Lane as one leaves Shamley Green going towards Farley Green.  The driveway is on an upwards slope away from the road and the house on Hillyfields lies rather below the level of the driveway.  The main entrance to Hillyfields is now through an access set between splayed walls which are constructed across the disputed strip almost up to the edge of the metalled driveway.  This access way has been achieved by cutting through a bank some of which forms part of the land in dispute.  There is a subsidiary entrance to the stable block erected on part of Hillyfields further up the Shamley Wood House Drive.  The plot comprising Hillyfields is roughly triangular in shape, two sides of the triangle being formed by the driveway and Woodhill Lane.  Apart from the splay where the driveway meets Woodhill Lane the width of the current metalled surface of the driveway is a uniform 9 feet.  The Claimants also own a steep field beyond the triangular plot.  It is common ground that Hillyfields has the benefit of a right of way over the driveway both for the triangular plot and for a separate access to the steep field from further up the driveway beyond where there is now a remotely controlled gate to Shamley Wood House."
10.	The judge heard evidence from Mr and Mrs Chapman.  No oral evidence was given on behalf of the defendants.  The judge described Mr Chapman as:
"... in general terms a reliable witness though inclined to over-egg the pudding when describing what he had done on the disputed land: for example, letting natural plants grow with the occasional bit of trimming can hardly properly be described as 'nurturing'."
And, when reaching his conclusion, the judge said this at paragraph 43:
"... I do not rely on the oral evidence of Mr Chapman which could be regarded as self-serving but on the circumstances as events unfolded."
11.	The judge addressed the primary claim to paper title in the first section of his judgment.  As I have said, he reached the conclusion that neither the Chapmans nor GPL could establish a paper title to the disputed strip.  He then went on to address the adverse possession claim.  He directed himself, at paragraph 37 of the judgment, that there were two elements requisite to the establishment of a title by adverse possession: first, factual possession of the land in question for a period of 12 or more years and, second, the necessary intention to possess accompanying that factual possession.  He referred to the well-known statements of the law in Powell v McFarlane (1979) 38 P&CR 452 and in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.  He reminded himself also of the observations of Slade LJ in Buckinghamshire County Council v Moran [1990] Ch 623.  No complaint is made on this appeal of the judge's directions as to the law.  The principles are well known and need not be set out again in this judgment.
12.	The judge then turned to the application of those principles to the facts in this case.  At paragraph 41 he said this:
"In this case the land in question comprised verges and steep banks.  There were no acts of possession by or on behalf of the First Defendant or its predecessors in title after Mrs Johnston [the Chapmans' predecessor in title] acquired Hillyfields.  The issue is whether what was done by the Claimants and their predecessors was sufficient to amount to possession.  The most obvious act of possession done on the disputed land by the Claimants and their predecessor in title was the building of the two walls which flank the gates to Hillyfields.  With that went the maintenance of the two entrances: clearly the house entrance and, to a lesser extent, the stable entrance have been made up.  The surface of the entrances is not simply a worn down verge.  Beyond that the verges and banks have been cut repeatedly, if not regularly.  There has been some planting and some 'nurturing' of the plants on the banks.  The fallen leaves have been swept each autumn.  In my judgment this is all the user to which land of this sort could realistically be put.  In my judgment this, in the circumstances of this particular case, amounts to possession of the disputed land de facto."
13.	Having reached that conclusion on the first element -- factual possession -- the judge then turned to the second element -- intention to possess.  He said this at paragraph 42:
"As to animus possidendi, it was submitted on behalf of the Defendants that in order to make the intention to possess clear and plain to the world at large it is invariably necessary to fence off the land in question from the legal owner and the world at large.  The verge has never been fenced off from the road.  And it was significant that in 1987 the Land Registry's surveyor was able to state unequivocally that the land over which the Claimants claim adverse possession 'comprised the mown grass verge of the driveway'.  Thus there was no suggestion then that it had at that date been incorporated into Hillyfields or that the Claimants were making it clear to anybody that they intended to exclude all others from the verge.  It was submitted that nothing has changed since that date and therefore the claim to adverse possession was hopeless."
The judge rejected that submission.  At paragraph 43 he said this:
"The acts of the Claimants were done animo possidendi.  In reaching this conclusion I do not rely on the oral evidence of Mr Chapman which could be regarded as self-serving but on the circumstances as events unfolded.  The walls were at all times there clearly to be seen and to the owners of Shamley Wood House the maintenance of the entrances, the banks and the verges should have been obvious.  ...  The actions of the claimants and their predecessor, Mrs Johnston, in their context made their intentions unambiguously clear to the world at large."
Accordingly the judge found that the claimants had established the two elements requisite for a possessory title to the disputed strip and indicated that he would so declare.
14.	The order which the judge made contains a declaration, at paragraph 1, that the claimants have established a possessory title to the area of land forming part of the land comprised in Land Registry title SY563632, lying on the south-east side of the driveway to Shamley Wood House.  That is the disputed strip.  At paragraph 2 of the order, the judge directed that such land (that is the disputed strip) should be removed from title SY563632.
15.	In order to understand the interrelation of those two paragraphs, it is important to have in mind that the land within registry title SY563632 included, not only the disputed strip and other land on the south-east side of the driveway, but also a very thin strip of land on the north-west side of the driveway opposite the disputed land, in which Mr and Mrs Chapman have no interest.  The position becomes clearer when paragraphs 1 and 2 are read with paragraphs 44 and 45 of the judge's judgment.  He indicated that he would direct that Land Registry title SY563632 should be rectified by the exclusion of the disputed strip, and that it should be further rectified by the registration of the claimants as proprietors of the disputed strip with possessory title.  He then went on, at paragraph 45, to say this:
"I considered whether, in the light of the misleading statutory declaration by which registration of the title SY563632 was obtained I should direct that the register should be further rectified in relation to the land the other side of the driveway, but on balance it seems to me that the better course is not to make any order in relation to that land.  No one has come forward to make any claim adverse to the First Defendant in respect of that land, and in the circumstances it seems to me the better course is to leave that part of the title undisturbed by these proceedings."
16.	It is clear, therefore, that the judge took the view that GPL was not entitled to be registered in relation to any part of SY563632, in the circumstances that the registration had been obtained by misleading declarations.  That founded his decision to direct the rectification of that title by the exclusion from it of the disputed strip.  He might well have gone further and directed also that the thin strip to the north-west of the driveway should be excluded also.  But, for the reason which he explained in paragraph 45, he took the pragmatic view that there was no purpose in going that far in the circumstances that there was no one else who appeared to be interested in the thin strip to the north-west of the road.
17.	The further rectification -- registering the claimants as proprietors of the disputed strip -- does not, of course, depend on the manner in which GPL and its predecessors obtained registration of the disputed strip in 1986; but on the acts of possession and the intention to possess which the judge found had taken place while the claimants and their predecessors were at Hillyfields.
18.	It is from that order that the first defendant, GPL, appeals.  Permission to appeal was granted by this court (Jonathan Parker LJ) on 1st March 2005.  In granting permission, the Lord Justice noted as his reasons that:
"It was arguable that, for the reasons set out in the applicant's skeleton argument, the judge erred in his application of the relevant legal principles to the facts which he had found when concluding that the claimants had established title by adverse possession to the disputed strip."
There was no challenge in the appellant's notice to paragraph 2 of the judge's order - that is the paragraph which directed that the disputed strip be removed from its title, SY563632 - and it is plain that Jonathan Parker LJ did not regard that as a matter which was before him.
19.	The appellant now seeks permission to appeal from paragraph 2.  He does so, I think, in order to provide a foundation that his client is the registered proprietor with possessory title of the disputed strip over which the Chapmans claim to have established adverse possession.  The application was made at the commencement of the hearing.  It was opposed by counsel for Mr and Mrs Chapman; and we refused it.  Not only is the application made at a very late stage, without prior notice to the respondents - there is simply no material upon which an appeal from that part of the judge's order could be said to have any real prospect of success.
20.	The issue, whether the registration had been obtained in 1986 by misleading statutory declarations, was fairly raised by paragraph 16 of the amended particulars of claim and by paragraph 5 of the prayer for relief.  I have already read paragraph 5 of the prayer for relief.  Paragraph 16 of the amended particulars refers to the registration with possessory title on 24th September 1986; and asserts that Mr and Mrs Frost were not in fact entitled to such registration, for the reasons thereinafter set out.  Those reasons include the assertion that the facts and matters deposed to in the statutory declarations made in support of the application were incorrect and untrue.  In the face of that pleaded challenge it was perhaps surprising that the defendant did not call Mr Frost or the farm manager Mr Featherstone to give evidence at the trial; nor did Mr or Mrs Stirling give evidence at the trial.  There was simply no evidence to contradict the judge's view, formed by looking at the driveway and its verges, that the assertion that Mr Frost had done anything to the verges adjoining Hillyfields was plainly untrue.
21.	Had permission to appeal been sought in relation to paragraph 2 at an earlier stage, I, for my part, have no doubt that it would have been refused.  In those circumstances, it seemed to me right that it should be refused when made at this late stage.
22.	The question, therefore, is whether the Chapmans have established, first, that they were in possession of the disputed strip as a matter of fact.  As to that, it is important to have in mind the nature of the disputed strip, which the judge had the benefit of seeing for himself and of which we have seen photographs.  As I have said, the strip comprises the two entrances, some worn grass verge and banks leading up to the close boarded fence which are densely covered with self-sown and some planted shrubs.  It is not land in relation to which the owner, or the person in possession, could be expected to do more than tidy up and to maintain the two entrances.  Keeping the land tidy involves mowing the grass and cutting back the shrubs from time to time.  Maintaining the entrances no doubt involves filling in the holes and some maintenance work.
23.	Paragraph 36 of the appellant's skeleton argument sets out in a convenient summary form the findings of fact which the judge made.  They were these: 
"(a) The Strip comprises verges and steep banks.
 
(b) The most obvious act of possession on the Strip was the building by the [Claimant's] predecessor, Mrs Johnson, of the walls which flank the main entrance to 'Hillyfields'.
 (c) The 2 entrances to 'Hillyfields' which cross the Strip have been maintained.
 (d) Those entrances are 'made up'.
 (e) The verges and banks have been cut repeatedly, not regularly.
 (f) There has been some planting and some 'nurturing' of plants on the banks.
 (g) Fallen leaves have been swept up each autumn."
To that list could be added the facts that, as the judge found, the grass, such as it is, had been mown from time to time; and, perhaps more importantly, that the secondary entrance giving access to the stable block was in fact constructed by the Chapmans, and the hardcore and access way made up by them.
24.	The appellant criticises the judge's reliance on what the judge described as the most obvious act of possession, namely, the building of the two walls which flank the main entrance.  It is pointed out, correctly, that at the time when those two walls were built, both Hillyfields and the driveway were in the common ownership of Mrs Johnson.  As it happens, for the reasons which the judge explained, the disputed strip was not then in Mrs Johnson's ownership.  That may be seen to be the result of incompetent conveyancing.  It must be likely, however, that, since she owned Hillyfields and the driveway, Mrs Johnson thought that she did own the disputed strip also.  There was no obvious reason why she should not do so.  So it is said that the building of the walls cannot be regarded as acts of adverse possession because she was herself the owner of the driveway.  However, if the question were asked, "Were the walls built for the benefit of Hillyfields or for the benefit of the driveway?" the answer would be obvious: they were built for the benefit of Hillyfields.
25.	But, more pertinently to my mind, is the fact that the walls were there.  In particular, they were there when the Chapmans acquired the property.  The two splayed walls define in a physical, if not a legal, sense, the forward boundary of the land which is occupied with Hillyfields.  They make it clear that the land over which the owner of Hillyfields is claiming to exercise rights of control does not end with the close boarded fence; but goes up to the edge of the metalled road.  Why else were the walls there?  And that is reinforced, in my view, by the construction of the stable entrance, made up across the disputed strip by placing hardcore over the land without consent sought and without objection.
26.	In my judgment, the judge was entitled to reach the conclusion which he did as to the existence of sufficient factual possession of the disputed strip by Mr and Mrs Chapman.  I would hold, also, that he was entitled to reach the conclusion which he did as to intention to possess.  The question in cases of this nature is whether the claimant who has established factual possession has demonstrated by his acts an intent to exclude all others.
27.	We were referred to the observations of Slade LJ in Buckinghamshire County Council v Moran, in particular to the passage at page 642, where he said this:
"If the defendant had stopped short of placing a new lock and chain on the gate, I might perhaps have felt able to accept these submissions."
The submissions made on that appeal were that the defendant was, in effect, doing nothing which would have indicated to the world an intention to exclude land for which the paper owner, the County Council, had no current use.  On the facts of that case, it might well have been that, but for the placing of a new lock and chain on the gate, the decision would have gone the other way.  But Slade LJ did not say that that would have been the result.  As often happens on an appeal, where this court identifies a determinative fact, the court will decide the point before it on the basis of that fact; without deciding what it would have done if the fact had not been established.  The court's decision is no guide as to what would have happened if the court had been deciding the appeal on different facts which did not include that determinative fact.
28.	But each case must turn on its own facts.  In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this kind.  What would such a person be expected to be doing in order to demonstrate his intention to exclude the world at large.  The judge held that these claimants, Mr and Mrs Chapman, were doing all that they could be expected to do, in relation to this land, to make their intentions unambiguously clear to the world at large.  The judge had the advantage of seeing the land.  As he put it in paragraph 43, in the passage to which I have already referred:
"The walls were at all times there clearly to be seen and to the owners of Shamley Wood House the maintenance of the entrances, the banks and verges should have been obvious."
In my judgment, that was a conclusion which the judge was entitled to reach.  For those reasons, I would dismiss this appeal. 
29.	The appeal then is dismissed.  That leaves the question whether, in the light of the changes made by the Land Registration Act 2002 and the bringing into force of the relevant sections in that Act, the declaration made by the judge in paragraph 1 of his order is now in the most appropriate form to meet the circumstances.  The judge directed at paragraph 3 that all further issues between the parties (and in particular issues as to costs) should be adjourned to a date to be fixed before him, with a time estimate of half a day.  For my part, I would remit to the judge for consideration the question whether, in the light of his own judgment and of the judgment of this court, the declaration made in paragraph 1 ought to be reviewed, so that it more closely accords with what is now needed under the 2002 Act.
30.	LORD JUSTICE RIX:  I agree. 
31.	LORD JUSTICE CARNWATH:  I also agree.  I would add that one of the purposes of the remitter is to enable the parties to obtain up-to-date guidance from the Land Registry as to the appropriate form of wording under the current law.  One would hope they would then be able to agree a form of wording without needing to trouble the judge.
ORDER:  Appeal dismissed with costs assessed summarily in the overall figure of £6,750, to include VAT. 
(Order not part of approved judgment)