REF/2005/1274

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Marketa Beck

APPLICANT

and

The London Borough of Wandsworth 

RESPONDENTS

Property Address: Land adjoining South Lodge Putney Park Lane, London SW15 3BB
Title Number: TGL234241

Before: Mr Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Procession House
On: Monday 4 June 2007

Applicant Representation:	Khaliq Nasir
Respondent Representation:	Mr Steven Gasztowicz, of Counsel, instructed by Legal Services Wandsworth Council

DECISION

KEYWORDS:  public highway – “once a highway always a highway” - Section 32 Highways Act 1980 – Definitive Map – Sections 53 and 58 Wildlife and Countryside Act 1981 – 
	
Cases referred to: Dawes v Hawkins (1860) 8 CB (ns) 848 at p. 858; A-G v Watford RDC [1912] 1Ch 417; London Borough of Bromley v Morritt (FC2 98/5577/2 20th July 1998, (unreported); CCRTF 1998/0481/2, CCRTF 1998/0956/2 21st June 1999 (unreported); Haigh v West [1893] 2 QB 19 at p 31

THE APPLICATION
1.	The issue before the Court concerns a dispute over the ownership of a wedge shaped area of land (the “Disputed Land”) which adjoins South Lodge, Putney Park Lane, London SW15 3BB (“South Lodge”) on its western boundary.  South Lodge is registered at HM Land Registry under tile number TGL129166. The London Borough of Wandsworth (“the Respondent”) is the registered proprietor of the Disputed Land. This forms part of an area of land known as Putney Park Lane (“the Lane”) and the Respondents are the freehold registered proprietors of the whole (including the Disputed Land) under title number SGL66577.  At its southern end the Lane bifurcates at South Lodge into western and eastern forks, the western fork being the Disputed Land. 

2.	On 25th July 2003 an application was made in form FR1 pursuant to paragraph 18 of Schedule 12 of the Land Registration Act 2002 for registration of title to the Disputed Land based upon a claim for adverse possession.  The date of the application was treated as 17th March 2004 by HM Land Registry following reconsideration of an initial rejection of the application by them.  Mr Khaliq Nasir originally made the application on the basis that he had acquired a beneficial interest in the adjoining title number which comprises South Lodge itself.  It should also be noted that on 21st November 2002 Mr Nasir had originally registered a caution against dealings on the basis that the Disputed Land was being used as an accretion to South Lodge.

3.	On 3rd September 2004 the title to South Lodge was transferred by Mr Nasir to the Applicant and was subsequently registered at HM Land Registry on 15th November 2004.  Following that registration Mr Nasir transferred his interest in the title to Ms Marketa Beck by a transfer dated 1st December 2004 which has not yet been registered.  Thus, the claim made by Mr Nasir to the beneficial interest in the title to the Disputed Land passed to Ms Beck as a consequence of which she has been substituted as the Applicant to this application.  For his part Mr Beck appeared at the hearing as the Applicant’s representative, she herself not attending. 

4.	Notice of the application was served on the Respondent who objected to it on a number of grounds.  These comprised the following – that adverse possession had not been established as a requisite Limitation Act period had not expired; that public rights of way had been acquired and exercised over the Disputed Land; and that use of the Disputed Land by the Applicant was with the consent of the Respondent.  There were a number of other grounds which the Registrar rejected on the basis that they were groundless.

THE ISSUES
5.	The issues before the Court are within a narrow compass in that the Adjudicator previously determined that certain matters could be heard as preliminary issues pursuant to Rule 31 of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003.  The preliminary issues to be determined are as follows: -

(i)	Whether the Disputed Land is a public highway;
(ii)	In the event that the answer to (i) above is in the affirmative, whether such a determination precludes a claim being made to the Disputed Land by adverse possession.

6.	It was on that basis that the issues were the subject of detailed submissions at the hearing which took place on 4th and 5th June 2007.  The hearing was preceded by a   view of the locus in quo.

THE HISTORICAL BACKGROUND
7.	Putney Park Lane is approximately one mile in length and runs between Putney Heath at its southern end and Upper Richmond Road at its northern end.  It is of some antiquity in that appears to have been in existence from about 1626 its historical origins being unclear.  One of the documents contained in the Bundle is a document prepared by Arcady Architects entitled “Putney Park Lane Historical Landscape Management Plan”.  This report sets out in some detail the history of Putney Park itself and the Lane.  It states that the origin of the Lane is a mystery.  It is stated that the extract from the John Rocque Survey of 1748 offers a possible explanation in that it shows the Lane as a great avenue of trees leading from Putney Heath to a large building that was approached from Upper Richmond Road by another avenue along the line of Briar Walk.  A subsequent Survey by John Corris of 1787 shows that by that stage the Lane had extended around that building to the Upper Richmond Road. These surveys appear to demonstrate that the current course of the Lane follows its historical route. 

8.	It is also apparent from more recent evidence provided that apparently in the 1920s the London County Council purchased the freehold of the Lane and thereafter it built the adjacent housing estate and maintained it until its property interests were transferred to the Greater London Council in the 1960s.  In 1980 the Greater London Council was dissolved and its property interests were, inter alia, transferred to the London boroughs.  Thus whatever may be the historical explanation the Lane seems to have been in use for several centuries as an access route between Putney Heath and what is now the Upper Richmond Road.

9.	I should state that the Lane currently has the appearance of a green rural lane and is used by joggers, walkers and others in pursuit of leisure activities.  

THE EVIDENCE
Mapping
10.	Enclosed in the bundle of documentation (“the Bundle”) are copies of a number of Ordnance Survey maps of the Lane dated 1916, 1951, 1961 and 1991.  These indicate that the Lane at its southern end has bifurcated at South Lodge for many decades.  There is also enclosed in the Bundle a number of other documents one of which is a map which is contained in the Wandsworth and District Development Plan 1930.  This indicates that the Lane is classified either within the categorisation of “roads and footways not repairable by the Local Authority”, or as “other roads repairable by the Local Authority”.  Unfortunately the shading on the Legend is difficult to differentiate precisely, although the copy I was subsequently shown during the course of the hearing by Counsel for the Respondent seemed to demonstrate that the Lane fell into the former rather than the latter by reference to the Legend.

11.	Also enclosed in the Bundle is a copy map forming part of the Administrative County of London Development Plan 1951. This indicates that the Lane was classified in this Plan as “new open space links and parkways”.

The witness evidence
12.	I have had regard to the witness evidence in the case.  Although it was originally intended that such evidence would not form part of the hearing for the purposes of the determination of the Preliminary Issues, in fact Mr Nazir sought to cross-examine Mr John Horrocks on various matters contained in his witness statement.  I permitted this course of action and Mr Horrocks was tendered for that purpose.  The other witnesses were also tendered but Mr Nazir chose not to cross-examine them. The oral evidence of Mr Horrocks is of some importance in the case. Mr Horrocks is a member of the Putney Society which was formed in 1959.  He has lived in the area near to the Lane for the last 40 years and knows it well. Both forks of the Lane at South Lodge have always been regarded as a public right of way and have been used by him as such.  The western fork is a natural cut to the bus stop.  Mr Horrocks stated that this fork has not always been as clear as it is now, and sometimes in past history it was a bit of a “scramble” to pass along it.  At one stage (in about 2004) a fence had been erected but about a year later it was removed. The point, however, of importance is that according to his evidence (and that of Mr Dailey) historically both forks have been used as public rights of way and have been treated as such by members of the public for decades. I accept this evidence.

13.	As is demonstrated in the witness statement of Mr Cooper-Grundy (who is the Head of Parks responsible to the Director of Leisure and Amenity Services) responsibility for the maintenance of the Lane was passed to the Respondent’s Director of Technical Services who was then responsible for highways. This event occurred shortly after the transfer of the Lane and the neighbouring housing estate by the GLC to the Respondent in 1980.  More recently this responsibility was transferred from the Technical Services Department to the Director of Leisure and Amenity Services in 1997.  The Lane has been described by the Council as a “green corridor” managed by this Department.  This view is recorded in the Committee Report 97/20 of the Technical Services Committee dated 8th January 1997 and also in a decision minute of the Leisure and Amenity Services Committee dated 14th January 1997.  It has also more recently been described as a “Linear Park”.  

14.	The Lane is maintained under a parks managed maintenance contract extracts of which are enclosed in the Bundle.  The funding is provided from the Parks and Leisure Department’s budget on the basis that it is a privately owned unadopted highway maintained by the Respondents as such.  It is the Respondents’ case that the rights of the public do not extend beyond the right to pass on foot, although there may be private rights of way for vehicular access to enable the adjoining house owners to gain access to their various properties.  The extent of the management activity as described by Mr Langridge (who is a chartered civil engineer employed by the Respondent in the Technical Services Department) is that there is periodic repair of the surface, including pothole filling, general grading and gulley cleaning to maintain a surface that is suitable for walkers whilst at the same time discouraging use by motor vehicles.  There is also cutting of grass verges, pruning shrubs and trees, maintenance of lighting and maintenance of gates at the north and south entrances to the Lane.  Other activities include the removal of dumped rubbish and the removal of any unauthorised obstructions in the Lane.  It is said that the whole purpose is to enable the public to enjoy the benefits of the Lane and to pass and repass along it.

The Video Evidence
15.	An issue arose during the course of the hearing as to the apparent existence of video evidence provided by Mr Nasir on behalf of the Applicant.  On file there is an e-mail from the Applicant herself dated 9th May 2006 but written by Mr Nasir.  The e-mail makes reference to a CD-Rom containing photographs and video footage.  Mr Nazir considered this evidence to be relevant to the case.  This e-mail apparently followed an Unless Order made by a Deputy Adjudicator dated 21st April 2006 requiring the Applicant to serve on the Respondents two items contained in the Applicant’s list of documents described as “Site Photographs 2001 and Video Footage 2001” on or before 5pm on 5th May 2006 otherwise the Applicant would be debarred from producing any such evidence at the hearing without the Adjudicator’s permission.  These were apparently taken in June 2001 and on the 21st April 2001, respectively. No such CD appears in the file although Mr Nasir stated in court that he sent it on 6th May 2006 to the Office.  If the CD was sent as is asserted, there is no covering letter on file referring to it, although reference is made to it in the e-mail dated 9th May 2006.  I should also state that the Applicant subsequently to this de-barring order was given a period of grace in a letter from this Office dated 18th May 2007 allowing such evidence to be produced by 25th May 2007. Neither the Respondents nor this Office have ever received the CD.

16.	Having heard submissions on the matter from both sides as to whether permission should be granted to rely upon such evidence, I cam to the conclusion that it should not be admitted. The reason for this is that not only had a debarring order been made but also the applicant had been given the period of grace to which I have referred above. I accordingly made a ruling to this effect.

THE APPLICANT’S CASE
17.	The essential point that Mr Nasir makes on behalf of the Applicant is that it is necessary for the Respondents to prove that the Lane, and more particularly that the Disputed Land is a public right of way.  In his written submissions Mr Nasir states that he has repeatedly requested evidence of this status from the Respondent but has received no written evidence confirming such status.  In his written submissions sent to this Office, and in his oral submissions made during the course of the hearing, Mr Nasir asserts that there has never been any dedication of the Lane as a public right of way nor any acceptance as such by members of the public.  He says that the evidence provided indicates that its status is that of a “permissive path” and not that of a public highway.  Reliance is placed upon signs fixed I (apparently in 1981) to the gates at each end of the Lane which contains the following wording – 

“Putney Park Lane
No public right of way except on foot.
There is no intention to dedicate any part of the Lane as a highway.
Wandsworth”.

	A photograph of one of the signs appears in the Bundle.

18.	The Applicant asserts that the wording of these notices indicates an intention not to dedicate the Lane as a highway when reference is made to the provisions of section 31 of the Highways Act 1980.

19.	The Applicant also asserts that in accordance with the Countryside and Rights of Way Act 2002 and Defra policy the Council should have shown the Lane on the Definitive Map as being a public highway if it had that status.

20.	Mr Nasir made a number of further submissions based upon the various maps and also a number of photographs contained in the Bundle to the effect that none of these demonstrates any such dedication of the Lane (and more particularly the Disputed Land) nor any acceptance by the public that there is a right of passage by them along the Lane.  At one stage it was asserted that a footpath is not necessarily a public highway.  As I have said above, the thrust of the submissions were that the use by various members of the public is over a “permissive path” or a “linear path” from one highway to another, namely Putney Heath in the south and Upper Richmond Road in the north.  In short it is asserted that the evidence of a “permissive path” or a private road is not evidence of a public highway.

THE RESPONDENTS’ CASE
21.	The essence of the Respondents’ case, based upon the evidence to which I have made reference above, is that the Lane is an unadopted highway owned by them.  It has been made available for the public to pass and repass along it on foot as a matter of right for very many years and this could well have been the position for decades if not centuries. It is also asserted that the Disputed Land has always been part of the area so used. These rights of the public do not extend beyond the right to pass on foot, although there may be private rights of way for vehicular access to enable the adjoining house owners to gain access to their various properties. I shall deal with the status of the Lane and the question of highway rights below.

The signs
22.	Counsel on behalf of the Respondent states that the terms of the signs are clear (although perhaps not felicitously worded). Their purpose is to state that there is no intention on the part of the Respondents to extend the dedication of the Lane further than that currently used by members of the public, namely as a right of way on foot.  In other words, the signs are intended to prevent any use of the highway by vehicles, thereby restricting it to rights of way on foot.  There is therefore no demonstration of any intention not to dedicate the Lane as a highway.  There is nothing detrimental to the case put forward by the Respondents that the Lane has been dedicated as a public right of way on foot, although it is conceded that there may well be private rights of way for vehicles for the purposes of gaining access to the frontages of various houses situate along its length.  I agree with this submission.

The Definitive Map
23.	As to the point that the Lane is not shown on the Definitive Map as a public highway, Counsel for the Respondents contends that London local authorities are not required to produce definitive maps which they would normally have to do under Part 3 of the Wildlife and Countryside Act 1981, and in particular section 53.  The relevant section of the Act dealing with this point is section 58, subsection (1) of which provides as follows: -

	“Subject to subsection (2) the foregoing provisions of this Part shall not apply to any area to which this subsection applies; and this subsection applies to any area which, immediately before 1st April 1965, formed part of the Administrative County of London.”

Subsection (2) provides that a London borough council may by resolution adopt the provisions of Part 3 in respect of any part of their area specified in the resolution being a part to which subsection (1) applies and those provisions should thereupon apply accordingly.  

24.	Thus, in short, insofar as the Respondents are concerned they contend that they are under no duty to keep a definitive map, and indeed do not do so.  It is therefore asserted that the point made by Mr Nasir on behalf of the Applicant is not well founded. I agree with that submission.

The highways point
25.	A number of points are made by Counsel for the Respondents in answer to the submissions made on behalf of the Applicant as to the status of the Lane.  First, the basic principle as set out in the case of Dawes v Hawkins (1860) 8CB(ns) 848 at p. 858 is that the mere obstruction of the highway or the failure of the public to use it will not destroy the rights of public for “once a highway always a highway”.

26.	Secondly, section 32 of the Highways Act 1980 is of particular relevance to the position.  This provides as follows: -

“A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced.”

	Is therefore submitted that I am therefore entitled in considering this case to have regard to those maps and other documents which have been compiled by the Respondents in the Bundle in order to determine the status of the Lane and the Disputed Land.

27.	As to the question of the necessary inferences that need to be made and proof of dedication, reference is made by the Respondents to Halsburys’ Laws of England, Fourth Edition, Volume 21, paragraphs 118-129 as to the relevant principles (and see the leading case of A-G v Watford RDC [1912] 1Ch 417.  Reference is also made to paragraph 1 of the same volume of Halsburys’ Laws of England as to the meaning of “highway” at common law.  For present purposes it must be remembered that a highway may be dedicated subject to certain restrictions or obstructions and it also may be limited to a recognised class of traffic.  In other words, a highway does not necessarily have to be a way for vehicles. Footpaths, bridleways and drift ways are highways provided that they are open to the public and the necessary evidence can be provided indicating that they are public rights of way.

28.	Further, once established as a highway the only method by which the land can cease to be a public highway (unless there has been some physical destruction) is for a stopping-up order to be made.  No such order has been made in the present case.

29.	In such circumstances the essential submission made by the Respondents is that the Disputed Land forms part of the Lane the status of which is a public highway, albeit that it is in the nature of a footpath used by the public. There are no public rights of way for vehicles although there may be private rights of way.

30.	It is also submitted that when South Lodge was sold to Mrs Freeth (who had previously been a tenant) in 1980 she was not given title to the western fork (i.e. the Disputed Land) which was retained by the Respondents.  The respondents find support for such propositions in the evidence provided in the Bundle in the form of the maps and other documents to which I have made reference above. 

31.	The Respondents also pray in aid the witness statements and the oral evidence given by Mr Horrocks. 

THE DECISION
The first issue
32.	It is absolutely plain, in my judgment, that the Lane has had as a physical feature from early times two forks at its southern end including a fork to the west of South Lodge.  Although it is recognised that the Ordnance Survey maps only show the physical position on the ground, they do demonstrate that there has for the past many decades, if not centuries, been in existence a western fork to the Lane which is indistinguishable from the eastern fork on the ground.  The maps also indicate the enclosure to South Lodge to be enclosed within a small triangular area which can be seen at the tip of the title plan.  Further, the Ordnance Survey maps demonstrate that the Disputed Land was not in fact enclosed as part of South Lodge at either of the dates of the 1961 or 1991 surveys as is asserted by the Applicant.

33.	In such circumstances, despite the fact more recently it has been difficult for members of the public to access the Disputed Land, there is no doubt that the western fork forms part of the Lane which is a public right of way in the nature of a footpath connecting Upper Richmond Road to Putney Heath.  

34.	In my judgment therefore I consider that I am entitled to have regard to those maps and other documents which have been compiled by the Respondents in the Bundle and to make the necessary inferences based upon that evidence and the evidence of the witnesses in order to determine the status of the Lane and the Disputed Land. I am also entitled to have regard to the principle “once a highway always a highway”. On this basis I find that the Disputed Land forms part of the public highway known as Putney Park Lane, albeit restricted so as to prevent vehicular use by members of the public. There may be extant limited private rights of way for the passage of vehicles along the Lane serving residential properties, but I am not concerned with that aspect.

35.	Accordingly the answer to the first issue is that the Disputed Land is a public highway.

The second issue
36.	It has been stated that it is not possible to acquire a title by adverse possession to land over which a public right of way exists.  This has been so said by Nourse LJ in London Borough of Bromley v Morritt (FC2 98/5577/2 20th July 1998, unreported). This was a case where highway land had been enclosed. Leave to appeal was given to argue other grounds.  The matter was heard on appeal before a differently constituted court where Mummery LJ reiterated the point made by Nourse LJ (CCRTF 1998/0481/2, CCRTF 1998/0956/2 21st June 1999 unreported).  I should state, however, that this does appear to be at variance with dicta in Haigh v West [1893] 2 QB 19 at p 31 (Lindley LJ) where it was held that the churchwardens and overseers as trustees of lands belonging to the parish had gained title to lanes but subject to the public rights of way. 

37.	Thus it would appear that although it might theoretically possible to acquire title to the sub-soil of a public highway e.g. by documentary title or to have acquired title to it before the highway had come into existence, the land would have no value unless and until the highway rights ceased, which, as has been stated above, must be of considerable rarity.  As to acquiring title by adverse possession to a highway there does seem to be some conflict on the authorities.  One view is that this could never arise as possession of the sub-soil could never be acquired or maintained for the requisite period. 

38.	I do not, however, need to consider this as on the evidence before the Court as to long user from Mr Horrocks and Mr Dailey (the evidence of the former having been subject of cross examination, and Mr Dailey having been tendered for cross examination) on the facts a title to the Disputed Land had not been acquired by adverse possession.

39.	Accordingly I reject the submissions of the Applicant and I shall order the Registrar to cancel the original application.

Dated this 13th day of July 2007

By Order of The Adjudicator to HM Land Registry