REF 2005/1051

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
BRIAN JOHN DEEM
Applicant
and

DORSET COUNTY COUNCIL
Respondent

Property Address: Seager, Avenue Road, Lyme Regis, Dorset.
Title Number: DT325763

Before: Ann McAllister sitting as Adjudicator to HM Land Registry
Exeter Employment Tribunal
Exeter Combined Court Centre
15 and 16 January 2008

Representation:  Gavin Collett of Counsel instructed by Scott Rowe for the Applicant: Nicholas Berry of Counsel instructed by Dorset County Council Legal and Democratic Services

DECISION
__________________________________________________________________________

Application for first registration based on adverse possession – whether adverse possession established – whether land part of highway –  hedge to hedge presumption -  London Borough of Bromley v Morritt (1999) 78 P&CR D 37 -  J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 -  Hale v Norfolk County Council [2001] Ch 717 – Mayor and Burgesses of London Borough of Bexley v Maison Maurice Chief Land Registrar ordered to give effect to application as if no objection had been made

Introduction

1.	The Applicant, Mr Deem, is the registered proprietor of a property known as Seager, Avenue Road, Lyme Regis (‘Seager’). This is registered with title number DT322005. Following first registration on Mr Deem wrote to the Land Registry in September 2004 claiming that the filed plan incorrectly showed the extent of Seager. The Land Registry treated the letter as an application to rectify the title and informed Mr Deem that it would be necessary to notify Dorset County Council (‘DCC’) as the relevant highway authority.

2.	In October 2004 the Land Registry accepted that part of the land in dispute (the pink land) formed part of the land conveyed by the original conveyance dated 6 December 1937 (‘the 1937 Conveyance’) but rejected the claim to the remainder of the land in dispute (‘the blue land’) based on documentary title. The areas described as the pink and blue land lay between a footpath and a metalled carriageway in front of Seager. 

3.	In December 2004 Scott Rowe, the solicitors acting for Mr Deem, sent copies of three statutory declarations to the Land Registry. Mr Deem relies only, for the purpose of this reference, on the declarations made by him and by an elderly neighbour, Mrs Ridgewell, who was not able to attend the hearing.

4.	On 24 January 2005 DCC objected to the registration of both the pink land and the blue land as part of title number DT325763 on the ground that the land is part of the public highway. It is not, and has never been, part of DCC’s case that they have documentary title to either the pink land or the blue land. They accept (subject only to reserving their position as to the extent of the pink land)  that the pink land forms part of Seager, and accordingly, in March 2005, they confirmed that they would not object to the registration of the pink land providing a note is put on the register denoting that this is highway. In October 2005 the Land Registry altered the filed plan by including the pink land.

5.	The objection to the registration of the blue land was made on the basis that, as a matter of law, it is not possible to obtain title to adverse possession to land over which a public right of way exists. The authority for this proposition is to be found in London Borough of Bromley v Morritt (1999) 78 P&CR D 37 . There is no dispute between the parties on this point: if the blue land was subject to public rights of way before the paper owner’s title was extinguished by adverse possession, Mr Deem’s claim must fail. But if, conversely, title had been acquired by adverse possession, the then owner of Seager had a sufficient interest to dedicate the land as a highway (if this is the case) expressly, impliedly or by virtue of the statutory presumption arising under section 31 of the Highways Act 1980. 

6.	In his Statement of Case and at the hearing Mr Deem maintained that the blue land forms part of his paper title. In the alternative, this land has been acquired by adverse possession. It is his case that neither the pink land nor the blue land forms part of the highway.

7.	The issues between the parties are therefore these:

(i)	Does the blue land form part of the paper title of Seager?
(ii)	If not, has it been acquired by adverse possession?
(iii)	If yes, is that claim defeated by the fact that the blue land was, at the relevant time, part of the highway?
(iv)	In any event, does either the blue land or the pink land now form part of the highway?

8.	The last question is relevant, if, on the facts, the blue land was not part of the highway by the time the paper title was extinguished (if it was) but it has since become part of the highway. I have put the questions in this order even there is a sense in which the first (and in any event the real) issue is whether or not the pink and blue lands are part of the highway. 

9.	I should at this stage say something of the topography of the disputed land and its surroundings. There is no doubt that this has changed significantly since 1902 (which is the date of the first ordnance survey plan relied on by DCC) and indeed it is a key part of Mr Deem’s case that there have been significant changes to the blue and pink land since his father purchased Seager in 1951. I will deal with these points below.

10.	 As at today, however, the position can be described as follows. Avenue Road is an L shaped road leading off Woodmead Road. Just beyond the point where it bends sharply there is, on the south side of the road, an old, single storey building now used as a garage. This building appears to be marked on all the relevant plans. I will refer to it as ‘the garage’.  At some point, this part of the road, and possibly the area as a whole, was known as Hatchett.

11.	Immediately to the east of the garage and set back from the road itself is a row of 5 houses (and 6 dwellings) called Avenue Close. There is footpath which fronts onto the road (leaving a gap by the garage) and runs down to the bottom of the road. For these purposes I am using ‘road’ to indicate the area where it is possible to drive or turn without driving onto any raised or kerbed areas.

12.	Opposite numbers 1 and 2 Avenue Close there is an area of land which is tarmaced and kerbed and on which there is a street light. This area effectively juts out onto the road. The road then widens and extends to the footpath. At this point the road begins to fall away steeply to the hammerhead or turning circle at the end of the road.  

13.	On the same side of the road as Avenue Close and the area described above (the right hand side as one drives down) there are three properties, St Lucia, Seager and Doryse. In front of these properties is an area of land extending some 5 metres towards the road (that is to say, extending more or less to the same point as the area outside 1 and 2 Avenue Close). The area in front of St Lucia is partially covered in grass. This area is separated from the land in front of Seager (the pink and blue land) by large blocks of wood and some shrubs.

14.	The pink land is a narrow strip of land running parallel to the footpath. It is not separated by any physical feature from the blue land which is itself separated from the road by a dropped kerb. Two thirds of the pink and blue land is covered in rough gravel: one third has been tarmaced. This is the area closest to the next property, Doryse.  The pink and blue land measure, in total, some 41 feet by some 15 feet in depth. It is possible, without any difficulty, to park three cars on this land, and, I imagine, four with some difficulty.

15.	As I have said, the road falls away steeply towards the turning circle. The footpath, on the right hand side, continues past another property and turns right, allowing pedestrian access to the River Lim. On the left hand side of the footpath, at the bottom of the road, is a stepped retaining wall. The footpath itself has a number of steps as it reaches the bottom of the slope.  There are a total of 6 properties on the other side of the road, separated from the road itself by a footpath.   

16.	Thus the configuration of the road and the area between the road and the houses on the right hand side is, undoubtedly, somewhat unusual. Mr Deem accepts that (now)  there is a public right of way over the footpath.

Conveyancing history of Seager

17.	The 1937 Conveyance was made between Robert Alfred Rattenbury and William John Boalch who, it seems, was living at the time in one of the houses on the other side of Avenue Road, Bincleaves. The parcel clause is as follows: ‘ALL THAT piece or parcel of land being part of a field or close of land known or formerly known as Hatchett or Hatchett’s Close Lyme Regis in the County of Dorset and having a frontage of forty one feet or thereabouts to a road there called Avenue Road and a depth on the east side thereof of ninety feet or thereabouts only shown and delineated on the nap or plan drawn thereon and coloured pink and green TOGETHER with full right and liberty in common with all others having the like right to pass and repass on foot only over the strip of land coloured violet on the said plan…. SUBJECT to the right of the Vendors and the owners or occupiers for the time being of the cottages adjoining other property of the Vendor and his or their tenants to pass and repass on foot only over the strip of land coloured green on the said plan….’

18.	The area coloured pink or red on the plan clearly extends beyond the area coloured green (the footpath) which continues to the east and is coloured violet to the point where the footpath turns sharply southwards towards the river. The plan also shows that the width of the plot at the southern end is 31’ 6’’, even though no reference is made to this dimension in the parcels clause.

19.	By a conveyance dated 27 October 1951 Leslie William Robert Bloatch conveyed the land together with the Property (which had been built by then) to Mr Deem’s father, Percy Tom Deem. The property is conveyed by reference to the 1937 Conveyance. A further measurement of 31 feet 6 inches is given for the width of the rear of the plot, tying in with the plan to the 1937 Conveyance. The parcels clause also describes the plan attached to the 1937 Conveyance as being ‘for the purpose of better identification only and not by way of conveyance’.

20.	Finally, by a deed of gift dated 3 October 1994, Percy Deem conveyed the Property to Mr Deem.

Evidence as to extent of St Lucia and Doyse

21.	In support of his argument that the 1937 Conveyance included the blue land Mr Deem placed some reliance on the evidence of the extent of the properties on either side, Doryse and St Lucia. It seems to me that no reliance can sensibly be placed on this evidence and, moreover, as DCC have rightly pointed out, the fact that the title to these properties appears to extend to include the equivalent of the blue and pink lands does not, in any event, assist in deciding whether this land is or is not subject to public rights of way.

22.	St Lucia is registered with title number DT222808, and was first registered in January 1995. The filed plan clearly shows that the property extends to include the area of land on the other side of the footpath to the point where it meets the road (ie the equivalent of the blue and green land). It seems that the original conveyance is dated 15 June 1936 and was made between Henry William Hallett and Robert Alfred Rattenbury. This means that St Lucia and Seager were, for a while, in the common ownership of Mr Ratternbury. But this fact of itself is, as I have said, of no relevance in construing the extent of the land conveyed either to or, more relevantly, by Mr Ratterbury by the 1937 Conveyance.

23.	The evidence in relation to Dorsye consists of a letter from the Borough Surveyor of Lyme Regis Council dated 17 April 1968 which encloses a plan showing the extent of the land in the ownership of Dorsye following the completion of the private street works. The letter is signed by Donald Boalch. This shows the house, the footpath and beyond it, the area fronting the road (again, the equivalent to the blue and pink land). The road is marked as ‘Hatchett.’

The first issue: is the blue land part of Seager’s paper title?

24.	I can deal with this point shortly. In the Statement of Case it was argued that the paper title includes the blue land by virtue of the fact that the land has always been in the possession of Seager. In his skeleton argument Mr Collett argued that the blue land was conveyed with Seager and that the omission to include it is merely an error. The first point, if made out, goes, it seems to me, to whether title has been acquired by adverse possession. The second point, is, in effect, a claim for rectification, and no evidence was put forward in support of such a claim.

25.	Mr Deem gave evidence that he measured 90 feet on the eastern side of the property and marked this by a bamboo stick which was visible on the site inspection. This accords, it seems clear, with the measurements taken by the Land Registry surveyor in September 2004. Mr Berry, for DCC, objected to this evidence, but I allowed it. The effect of this evidence (and that of the Land Registry) is to demarcate, on the ground, the point where the pink land meets the blue land.

26.	There is no doubt as to the extent of the land conveyed by the 1937 Conveyance. This is a plot of land having a frontage of 41 feet or thereabouts and a depth on the east side of 90 feet or thereabouts (the use of the qualification ‘thereabouts’, in my judgment, adds little or nothing in a case such as this to the description of the plot). The plan is not for identification purposes only (notwithstanding what is said in the later conveyance)  and this gives a further measurement on the southern side. It is therefore possible to measure, with accuracy, the size of the plot. There is accordingly no need, and no reason to, refer to any extrinsic evidence as an aid in the construction of the conveyance.

27.	In short, the blue land was not conveyed in 1937 and does not form part of the paper title of Seager. As I have said, DCC make no claim to be the paper owners of this land, and there is simply no evidence as to who the paper owner might be.

The second issue: has the blue land been acquired by adverse possession?

28.	Where a squatter has remained in adverse possession of unregistered land for the limitation period the true owner’s title is extinguished (section 17 of the Limitation Act 1980). The law has recently been restated in J A Pye (Oxford) Limited v Graham [2003] 1 AC 419. In essence, it is necessary to establish both factual possession and an intention to possess. To establish factual possession the squatter must show absence of consent, single and exclusive possession and such acts as demonstrate that (having regard in particular to the nature of the land and the way it is commonly used) he had deal with it as an occupying owner might normally be expected to and that no-one else had done so. The requisite intention is not to own but , so far as reasonably practicable, to exclude the world at large, including the paper owner. In many cases it will be possible to infer intention from the acts of possession themselves. 

29.	Mr Deem gave evidence. I found him an entirely truthful witness, doing his best to recollect events going back to his family’s move to Seager 1951. He was 3 years old at the time. He has lived at Seager all (or at least most of) his life.

30.	At that time the family moved into the property Mr Ratternbury was living at St Lucia, and the Boalch family lived opposite. Mr Deem’s recollection was that Avenue Road ended at the bend in the road (where the street light now is) and that the remainder of the track, and the area generally, was known as Hatchett. The 1937 Conveyance plan refers to the road in front of Seager as ‘Avenue Road’ but I also note that the letter dated 17 June 1966 from Lyme Regis Council regarding the private street works clearly refers to two streets,  Avenue Road and Hatchett. 

31.	Mr Deem described the pink and blue land as being a bank, rising fairly steeply from the footpath (to the extent that his father cut steps in it) then levelling off before falling steeply at the point where the kerb now meets the metalled road. The steepness of the bank on the northern side meant that no-one attempted to get up it on this side. Access was either by the steps which had been cut in, or from beyond  St Lucia. This bank extended past St Lucia (but not as far as garage) and, the other way, to the steps leading, ultimately to the river. It was roughly 3 feet high. No part of the blue or pink land was ever fenced in. Mr Deem was clear that there was no hedge either at the bottom of the slope to the bank or on the top: he recalls a tree but not a hedge. 

32.	 Mr Berry made much of the fact that his statutory declaration did not describe the pink and blue land in this detail. The declaration states that he recalls his father, Percy Deem, cultivating the pink and blue land and maintaining the hedge on the other side of the footpath. The land was used by his father for growing vegetables. He cut the grass that was there and on the bank. I do not consider that the brevity with which the evidence was dealt with in the statutory declaration (prepared for the purpose of first registration of the pink and blue land) can in any way cast doubt on the evidence he gave at the hearing. 

33.	His father initially cultivated the entirety of the top of the bank, growing sprouts, broccoli, cauliflowers and peas. He was a keen gardener. No-one else used the pink and blue land, nor asked to use it. This remained the position until 1968/1969 when the Council (then Lyme Regis) undertook private street works. These works involved the removal of the bank. Percy Deem asked the contractors if they could create a hard standing for one car to park and paid them £24.00. This is the area closest to Doyse. I have seen an invoice dated 10 April 1967 for this amount.

34.	Percy Deem continued to cultivate the remainder of the blue and pink land up to the kerb. Mr Laurie, who has been responsible for the maintenance of highways in Lyme Regis since 1980, recalled visiting the land in 1980 and noting that part was laid to grass with beans growing on it, and part was a parking area.

35.	In 1994 Percy Deem was taken ill. At this point Mr Deem dug up the soil on the remainder of the blue and pink land and put down rough gravel which is still there to this day. In 1997 Mr Deem wanted to put a drop kerb along the entirety of the blue land. To do this it was necessary to move a street light to the other side of the street. There is a letter from the lighting engineer dated 20 January 1977 which states that, having inspected the deeds, he was satisfied that the street lamp was on Mr Deem’s land. This view was mistaken, but nonetheless the street lamp was moved and the dropped kerb constructed. No other work has been by Lyme Regis Council or DCC to the blue or pink land since the street works were completed.

36.	The entirety of blue and pink land is now used for parking. Again, this use has been exclusive to Seager. On occasion, when other people have attempted to park there, they have been asked to move. 

37.	Before the private street works were carried out the road on the other side of the bank was not metalled, but consisted of hard core and grass. Mr Deem described it as a ‘rough old track’. Because of the difficulty of turning at the end of the track, it was not usual for anyone to drive past the street light by the garage.

38.	In addition to the evidence of Mr Deem, I have read the statutory declaration and statements of Norah Ridgwell, who has lived at 6, Avenue Close since 1955, and the statement of Donald Boalch who was Deputy Borough Surveyor at Lyme Regis Council from the 1960s until he retired. Both were too old and too infirm to attend the hearing. 

39.	Mrs Ridgewell said this in her statement: ‘I watched Mr Percy Deem who lived at Seager plant and harvest his produce all the years from when I moved into Avenue Road until Mr Deem became old and frail. The area he cultivated was from the hedge of his bungalow right down to the verge of the road and is shown edged red on the plan’. The area shown red is the pink and blue land.

40.	DCC indicated that they would accept her evidence if she was able to show, on the plan, the position of the hedge. For some reason this was not done, but Mrs Ridgewell made a further statement in which she says that she recollects most strongly that Mr Percy Deem always gardened the pink and blue areas and that she thinks it was mainly vegetables that he grew there. In front of the blue land was an unmade road in poor condition. Following the works to the road (in, she believes, 1969) Mr Percy Deem continued to garden the pink and blue land. He was a keen gardener and she often chatted to him. This only stopped when he went into a home. Finally, she confirms that Mr Deem, visitors and family, now park on the entirety of the pink and blue land. 

41.	Notwithstanding the fact that Mrs Ridgwell was not available for cross examination, there seems to me to be no reason not to accept this evidence. The only point in issue, as far as DCC is concerned, is, as I have said, the position of the hedge. Since Mrs Ridgwell has stated that all the pink and blue land was used as a garden it seems to me  that the hedge she referred to could not have been on this land. The hedge, as I read the statutory declaration, was on the south side of the footpath. There is simply no evidence, in my judgment, to support DCC’s case that the hedge was on the pink land.  

42.	Mr Boalch is not the same Mr Boalch who conveyed Seager to Mr Percy Deem in 1951.  Mr Laurie’s evidence was that he believed, based on what he had been told when he joined the Council, that Mr Boalch’s family lived in Avenue Road. The name is certainly unusual. But even if this is the case, it does not, it seems to me, affect any of the relevant evidence given by Mr Boalch. 

43.	Mr Boalch was involved with the private street works.  I will come back to his evidence on this point below.  He recalls that the pink and blue land was used as a garden for growing vegetables. He also says that he believes that Percy Deem’s predecessors used it for growing vegetables certainly in the 1940s if not earlier. The difficulty with this evidence is that there is no clear evidence as to when Seager was built. 

44.	DCC are not in a position to, nor do they, challenge the evidence set out above. Their case, as I will explain below, is that the pink and blue land has formed part of the highway since at least 1929 and that, in any event, the acts relied on to found the claim for adverse possession are insufficient. Principally they point to the fact that the land has never been enclosed.

45.	Enclosure is, of course, often the best evidence of physical occupation. But the test in all cases is whether the squatter has treated the land as is own. How he has done so will depend on the nature of the land in question. In my judgment, the absence of enclosure in this case is irrelevant. Given the lay out of the land, in particular the fact that it consisted of a bank, it is not surprising that it was not enclosed. All the evidence is clear as to the fact that the area cultivated by Percy Deem was easily identifiable as being bounded by the footpath on one side, the track on the other, and extending, in length, no further than the frontage of Seager.

46.	I find that it was at all times, since 1951, the blue land was treated as part of the garden of Seager. It was not used by anyone else. It was clearly recognised as being Mr Percy Deem’s land, as is evident from the statement of Mrs Ridgewell. The acts were not, in my judgment, transient or insufficient in nature. The pink and blue  land was reached by crossing what was, at least at first, a private footpath serving only adjoining houses.  The evidence as to the extent and degree of user puts this case into a very different category from those cases where the owner of a property  keeps a road side verge tidy or mowed. I bear in mind the evidence as to the road itself before 1968/69. This was a rough steep track, infrequently used, and leading to a dead end (at least for cars).  I also find that Mr Percy Deem had the necessary intention. This is an inference which can readily be drawn from all the evidence set out above. It is significant that Mr Deem told me that, even today, it is made clear to anyone attempting to park on the blue land that they cannot do so. 

47.	It follows, therefore, that subject to the question whether the blue land formed part of the highway, title to this land was extinguished by adverse possession by October 1963.

The third issue: was the blue land part of the highway at any time before October 1963?

48.	I start by a number of general observations.  The first is that a highway is a public right to pass over a defined route. Specifically, the way must be open to the public at large; the public use must be as of right; the public right must be primarily for passage and the public right of way must follow a defined route. A road or path serving occupiers of adjoining land and their invitees is not a highway but roads which begin as private rights of way may, over time, become public highways. This is the position with the footpath outside Seager. It is also important to note that a road may often consist of both a metalled portion and a part which is left unmetalled, such as a verge.  

49.	Second, once a highway has been created, the public right cannot be lost save by operation of law (by statute or an extinguishment order): hence the maxim ‘once a highway always a highway.’

50.	Third, in this case, DCC rely on creation of a highway over or including the blue (and pink) at common law. This involves two elements: the dedication by the landowner of a public right of way and acceptance by the public of that right.  There is no evidence of express dedication. The extent of a highway dedicated  by long usage or by virtue of  the statutory presumption set out in 31 (1) of the Highways Act 1980 is a question of fact to be proved by evidence of the extent of public user. 

51.	Fourth, it is common ground that the burden is on DCC to establish that the blue land (and the pink land) forms part of the highway. The Council seek to discharge this burden by relying on a number of plans (including the plan to the 1937 Conveyance) and by the presumption known as the ‘hedge to hedge presumption’.

The plans

52.	Section 32 of the Highways Act 1980 requires that the court or tribunal determining the issue of whether the land in question is a highway is to take into account any map, plan or history of the locality or other relevant documentation tendered in evidence and is to give such weight to this as is justified by the circumstances. Most plans will only provide evidence as to the existence on the ground of a road or path and will not deal with the status of that road or path. Ordnance survey maps, for example, are not, by themselves, evidence of the status of the road but merely of what the surveyor found on the ground.

53.	DCC do not rely on the earliest plan they could find (1902). Mr Green, DCC’s Environmental Director dealing with highways, stated that he believes that this simply shows a private right of way. The 1902 plan shows the garage, and, running eastwards, a path or road bounded on each side by a solid line, running to the point where the path dog-legs south towards the river. There is a building at this point, and a larger building close to the garage. Otherwise, the area (marked as Hatchet) consists of fields. There is a footpath running from the easternmost point of the path referred to above across a field to the north of the footpath and for some considerable distance westwards until it reaches another road or footpath. Mr Green’s evidence is that path shown with solid lines might have been wide enough for a horse, but probably not for a carriage. The width of the path is shown as the same as the width of the garage. 

54.	 The situation on the ground had changed considerably by 1929, the date of the next ordnance survey plan. Extensive development has taken place and a new road created (Woodmead Road, which for at least part of the way, appears to take the place of the old foot path across the fields). Four dwellings are shown on the north of what is now Avenue Road. There is no change, however, to the lay out on the south side of what is now Avenue Road. The road is shown as running to the garage and beyond, and turning sharply northwards to meet Woodmead Road. Parallel to the southern limit of the road, but stopping short of the garage at the western end and short of the dog leg at the eastern end, is a straight line. Mr Green’s interpretation is that this line marks the old footpath (and it is indeed the same width as the garage).  He believes that developer, who developed the field on the north side, created the road as a highway to allow access. The road is not named on this plan.

55.	The next plan relied on by DCC is the plan attached to the 1937 Conveyance. This describes the road as Avenue Road and refers to the plot having a frontage to the road. What it does not show is any further feature, such as a bank or grass covered verge, between the pink land and the road. It also shows that the pink land is not part of the road. DCC’s case is that this land, just as much as the blue land, has always been part of the highway (at least since 1929).

56.	 In my judgment it is not surprising that no feature, such as a verge or bank is shown on the conveyance plan. It was not the purpose of the plan to mark out the extent of the highway or to give any indication as to its status. The plan (which was not to scale) was intended to show the extent of the plot conveyed. As far as the draftsman was concerned, it was important to show the footpath (since private rights of way were granted over it) and to show that the land extended some little way beyond the footpath. Further than this the plan had no relevance. It does not seem to me that this plan provides any basis for me to conclude that the entirety of the  area marked ‘Avenue Road’ was a public highway in 1937. 

57.	The 1959 Ordnance Survey plan was used as the base plan to record highways maintainable at public expense when responsibility for the highways was handed over by Lyme Regis Council to DCC in 1974. It is common ground that the fact that this plan has been coloured to show various classes of road does not, of itself, prove conclusively that these are highways.  Mr Laurie said that he could not say with what degree of accuracy it had been marked up, but that, so far as DCC were concerned, it was treated as their bible.

58.	Avenue Road is now named as such. The development on the south side of the road is shown. The footpath visible on the 1929 plan can still be seen, as well as path (marked by a dotted line) on the northern side of the road.  By 1974 Avenue Road is coloured in blue for the entirety of its width (blue shows unclassified roads) including the area set back from the road, in front of Avenue Close. The 1959 plan shows nothing which can be identified as a bank, even though the evidence is clear that such a bank was clearly in existence.

59.	Mr Green speculated that the bank may have been an old field bank raising to the level of the field which extended northwards. By 1929, when houses were built on the other side of what is now Avenue Road, the developer had to open a way to the houses by creating a rough track over the field and reducing the level, thus leaving a raised bank. This may or may not be right. Mr Green does not hold himself out as an expert on plans, and accepts that plans are open to interpretation. But if it is the case then the position in 1929, until the bank was levelled in 1969/69, was this: a private footpath ran in front of Seager and the other houses, then a large flat topped bank, and, on the other side, a rough steep track cut at a lower level to allow access to the houses on the other side. There is nothing to suggest that the bank itself was ever used, as of right, by members of the public as means of getting from one point to another.

60.	In conclusion it seems to me that, by 1963, the footpath outside Seager may have become a highway by long user (it is accepted that it is now, in any event). The rough track which was created by 1929 also, at some point, became a highway. But in my judgment the pink and blue land simply never formed part of the highway. This was not land which could be used, as verges are, in any way connected with the use of the track itself. The plans relied on by the Council do not establish, in my judgment, that this land was ever land over which the public had a right to pass.   The evidence relating to the road works in 1968/69 (set out below) seems to me to confirm, clearly, that the pink and blue land were not treated by the Council as part of the highway .

The hedge to hedge presumption

61.	The law relating to this presumption has recently been considered in Hale v Norfolk County Council [2001] Ch 717 and Mayor and Burgesses of the London Borough of Bexley v Maison Maurice [2006] EWHC 3192.  The legal position is summarised at paragraph 44 of the judgment in Maison Maurice. The mere fact that a road runs between hedges or fences does not give rise to any presumption. If, as a matter of fact, it can be shown that the hedge or fence was erected to separate land enjoyed by the landowner from land over which the public had rights of way the presumption might arise, but may be rebutted.

62.	DCC’s case is that there was a hedge on the north side of the footpath or possibly on the top of the bank. The difficulty is that there simply is no  evidence of such a hedge. It seems to me, therefore, that the factual basis for the presumption to come into play is missing.  Moreover, there is no evidence (nor could there be) as to whether this hedge was intended to demarcate the highway. To the contrary, all the evidence, as I have set out above, is that the entirety of the pink and blue land was part, in effect, of the garden of Seager.

63.	In conclusion  DCC have not, in my judgment, established either by reliance on the plans or by any presumption, that the pink and blue land formed part of the highway prior to 1963, 12 years after Percy Deem began to use it as part of his garden. This then leaves the final question, namely whether this land has since become part of the highway.

The fourth issue: does either the pink land or the blue land form part of the highway?

64.	Lyme Regis Borough Council  resolved, in May 1966, to carry out private street works under the Code of 1892 set out in Part IX of the Highways Act 1959 and notified the frontagers of this. The covering letter and the notice clearly distinguish Avenue Road from Hatchett.  The provisional cost to Seager was some £284.00.  The final cost was a little lower.

65.	The Code applied to private streets. Once the works have been completed the authority may declare the street to be maintainable at public expense. I have seen no documentation on this point, nor, as I have said, have the plans relied on at the time by the Council been found. Mr Green was not able to say when Avenue Road was adopted.

66.	By letter dated 9 December 1966 Scott Rowe (then acting for Percy Deem) wrote to him in these terms: ‘In order that there may be no misunderstanding would you please let me have your written confirmation that you will have no objection to the embankment being levelled provided that you still retain ownership of the land. The Council do not wish to start on the lower section of the work until agreement has been reached with the various owners.’

67.	Mr Green stated that the Council would not have levelled the embankment unless either those works were part of the scheme or were essential accommodation works. Statute allows the authority to include in street works any other works it believes necessary for bringing the street as regards a number of factors, including levelling, into conformity with other streets. 

68.	Mr Boalch, together with a Mr Prescott, undertook the task of surveying the site and preparing the plans as well as the specifications and bill of quantities.  The work took 3 to 6 months. The road was so steep that it was necessary to raise the level of part of the road and to build a retaining wall and steps.  He goes on to say that when the road was made up, the owners of the properties gave permission for the contractors to dig up the embankment so that the existing footpath could be made up and resurfaced. 

69.	Mr Boalch also says that he can say with certainty that the pink and blue land belong to Seager. I attach little weight to this, but it does seem to me relevant that he also says that, as he drew up the plans for the road works, that this land was part of Seager. I take this to mean (and this is entirely consistent with his other evidence and the letter from Scott Rowe) that the Council did not consider the pink and blue land to be part of the highway. Work was necessary to remove the embankment in order to assist with other works.

70.	Mr Laurie stated in evidence that, to his knowledge, no works have ever been carried out to the pink and blue land by DCC. The evidence from Mr Deem is that this land has continued to be treated as part of Seager.

71.	In conclusion therefore it seems to me that there is no evidence of dedication and acceptance of the pink and blue land as a highway at any time.  Accordingly I will order the Chief Land Registrar to give effect to Mr Deem’s application for first registration of the land coloured blue on the notice plan as if no objection had been made by DCC. It also follows, given my findings of fact, that no note should be made on the title to Seager denoting the pink land as part of the highway.

 Costs

72.	As I indicated at the conclusion of the hearing, the successful party, Mr Deem, may seek costs from the date of the reference. In this case, subject to any representations made by DCC, it seems to me that the relevant date is 30 June 2005 (albeit that a further corrected summary was sent in September 2005). In the first instance, the claim for costs should be set out in a form appropriate for summary assessment and  should be served and filed by 8 February 2008. DCC may then respond by 22 February 2008, and if so advised, Mr Deem may reply by 7 March. I will then consider what order to make. 

BY ORDER OF THE ADJUDICATOR

ANN McALLISTER

Dated this 25th day of January 2008