REF/2007/0334
REF/2008/0338

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

REF/2007/0334
BETWEEN
STEVEN JOHN BAXTER
Applicant
and

(1)	STEPHEN JAMES HUDSON
(2)	BELINDA MARIA HUDSON
Respondents

Property Address: Flat 2, Old Brewery House, High Street, Chatteris, PE16 6NP
Title number: CB148326

REF 2008/0338
BETWEEN

THOMAS FRANCIS MANNION
Applicant
And

STEVEN JOHN BAXTER

Respondent
Property Address: Land at Slade Way, Chatteris 

Before Ann McAllister, sitting as Deputy Adjudicator
Cambridge County Court
6 and 7 January 2009

Representation: Mr Andrew Gore of Counsel instructed by Hayes & Storr appeared for Mr Baxter; Tom Weekes of Counsel instructed by Stevensons appeared for  Mr and Mrs Hudson  and by Taylor Vinters for Mr Mannion.
 ___________________________________________________________________________

DECISION

Schedule 6 to Land Registration Act 2002 – Mr Baxter registered with possessory title – whether register can altered under Schedule 4 – Chief Land Registrar ordered to alter register – Right of Way – whether squatter can acquire prescriptive right of way – Chief Land Registrar ordered to cancel application

Introduction

1.	There are two matters before me. The first is an application by Mr Mannion dated 9 August 2007 to alter the register of Title Number CB304178 to be (re) registered as owner of a field at Slade Way, Chatteris (‘the Field’). The Field is to the north east of 81-89 High Street. The Field is registered in the name of Mr Baxter who was registered on 8 May 2006 as proprietor pursuant to the provisions of Schedule 6 to the Land Registration Act 2002 (‘the 2002 Act’) in place of Mr Mannion. (I will refer to this as ‘the Ownership Claim’).

2.	The second is an application by Mr Baxter dated 24 July 2006 to register a right of way on foot and with vehicles over a yard (‘the Yard’) leading from the High Street to the Field. The Yard forms part of Old Brewery House, registered in the names of Mr and Mrs Hudson under Title Number CB148326. Old Brewery House is a residential block of four flats. ( I will refer to this as ‘the Right of Way Claim’). This is, now,  the only practicable means of access on foot and the only access with vehicles to the Field. This application was made on 21 July 2007.

3.	Mr Mannion has disclaimed any right of way he might have acquired by reason of Mr Baxter’s use.  

4.	The Right of Way Claim was referred to the Adjudicator on  14 March 2007 and the Ownership Claim on 7 March 2008. I had the benefit of a site view on 5 January 2009, and heard the case over the next two days.

5.	For the reasons which I shall set out below, I will order the Chief Land Registrar to give effect to Mr Mannion’s claim to be re-instated as owner of the Field and to cancel the application in respect of the  Right of Way Claim.

The Ownership Claim

6.	The Field and the adjacent land (‘the Adjacent Land’) purchased by Mr Mannion on 19 August 1996 from the receivers of Twigate Limited  extend to approximately 1.08 acres.  As I have said, the Field  can now only be reached on foot or by car over the Yard. To the east it is bounded in part by the Adjoining Land and by a development of sheltered accommodation. To the west it is bounded by 89 High Street Chatteris, a property owned by a Mr Richardson. To the north, and beyond a wooded area,  it gives onto further housing.

7.	Mr Mannion paid £15,000 for the Field and the Adjoining Land. The property was described in the phjarcel clause as: ‘ALL THAT piece or parcel of freehold land situate to the rear of numbers 69,79 and 81 High Street, Chatteris.’ This land was registered with title number CB197366.

8.	Some 9 years later Mr Baxter applied to be registered as owner of the Field  under the new provisions relating to adverse possession set out in Schedule 6 to the 2002 Act.  The relevant statutory declaration sworn by him appears to be dated 9 November 2005.

9.	Schedule 6 to the 2002 Act requires that the applicant must have been in adverse possession for a period of 10 years. In contrast with the provisions under the Limitation Act, a person given notice of such an application may require that the application be dealt with under paragraph 5 of Schedule 6. If this is the case, then the applicant must be able to get through one of the three specified ‘gateways’ set out in paragraph 5. If, however, the paper owner does not invoke this procedure, paragraph 4 provides that the applicant is entitled to be entered in the register as the new proprietor of the estate. 

10.	Notice was given to Mr Mannion on 1 February 2006. For a number of reasons which I shall revert to below, Mr Mannion did not serve a counter notice by the date specified, namely 8 May 2006. He did however make an application on 26 September 2006 under paragraph 5(a) of Schedule 4 to alter the register on the grounds that the registration of Mr Baxter as owner was a ‘mistake.’ It is his case that Mr Baxter was not in adverse possession for a period of 10 years ending on the date of his application (ie from 16 August 1995 to 16 August 2005). It is accepted by Mr Mannion, however, that, in the circumstances of this case, it is not necessary for Mr Baxter to show that he can get through one of the three  ‘gateways’.

11.	On 10 December 2007 Mr Baxter appears to have transferred the Field to Tudor Abbey Developments UK Limited for a consideration of £250,000.

12.	One of the points taken by Mr Gore on behalf of Mr Baxter is that, even if Mr Baxter cannot show that he was in adverse possession for the requisite period of ten years, the register should not be altered. It is said that the Registrar was satisfied with the information before him, and that, accordingly, there was no mistake. This is a point which it is said, holds good whether or not Mr Baxter can now rely on paragraph 6(2) of Schedule 4. This  provides that no alteration affecting the title of a proprietor of a registered estate in relation to land in his possession  may be made without his consent unless either (a) he has by fraud or lack of proper care caused or substantially contributed to his mistake or (b) it would be for any other reason unjust for the alteration not to be made.

13.	I have no hesitation in rejecting that argument. If, having reviewed the evidence, the Adjudicator or the court comes to the view that the applicant was not in adverse possession, an alteration of the register can plainly be made. Title is not indefeasible: Schedule 4 allows rectification in the case of a mistake. This is not to be judged on the basis of (unchallenged) evidence before the Registrar, but on the basis of all the evidence, properly tested. I am fortified in this view by the footnote at para 30.1 of Harpum and Bignell’s Registered Land: Law and Practice under the Land Registration System (2004).

14.	The sole issue which arises, therefore, is whether Mr Baxter is able to show that he was in adverse possession of the Field for the requisite period. Paragraph 11(1) of Schedule 6 to the 2002 Act provides that a person is in adverse possession if (but for section 96) a period of limitation under section 15 of the Limitation Act 1980 would run in his favour.  In other words, the law to be applied is that most recently set out in Pye v Graham [2003] 1 AC 419.

The Right of Way Claim

15.	  As stated above, Mr Baxter applied to the Land Registry on 21 July 2006 to register the benefit and noting the burden of a right of way and on foot over the Yard. This was supported by a statutory declaration sworn by Mr Baxter on 20 June 2006. This declaration showed the right of way across the Yard but not, in fact, following the driveway that is on the ground. A further statutory declaration was sworn by Mr Baxter on 22 August 2007 substituting a new plan. The claim is made on the basis of prescription or lost modern grant. It is said that the right of way has been used since 1985.

16.	Mr and Mrs Hudson, who have been the registered freehold proprietors of Old Brewery House since November 2004, opposed the application on the following grounds. First, if Mr Mannion succeeds in his application, Mr Baxter does not own any land to which the right of way could attach. I agree with this, and I do not understand Mr Gore to dissent from this proposition (it is entirely a matter for Mr Mannion whether or not he chooses to apply to register the benefit of the right of way). 

17.	Secondly, it was initially said that Mr Baxter could not show that he gained access over the Yard for the requisite  period of 20 years. At the conclusion of the evidence it was accepted on behalf of Mr and Mrs Hudson that there was clear evidence that the Yard was used as access to the Field on foot and with vehicles, although it was disputed that there was evidence of any vehicle having used the gate leading to the Field.  Third, it is said that Mr Baxter’s user, such as it was, could not be as ‘of right’ since his occupation of the Field (at least until he became registered as freeholder) was unlawful.

18.	There is, I am told, no authority on the question whether a squatter (whose own rights are inchoate until such time as title is barred) can acquire a prescriptive right of way over land leading to the land occupied by him. It seems, to me, however, that there can be no reason in principle why a squatter should not acquire such a right. Whilst he is not the freeholder he is acquiring the right on behalf of a freeholder: so soon as the freeholder’s title is barred, he acquires the right in his own capacity. The position is, to my mind, on all fours with the occupation of the dominant land by a tenant. In the same way, if a squatter uses a right of way for, say, 10 years, and the right is then exercised by the owner for the next ten years, the two 10 year periods would be aggregated so as to allow the freeholder to claim a prescriptive right. The sole question is whether the use of the way is as ‘of right’, that is to say, openly, without force and without permission.

19.	For the reasons I give below, I have come to the view that Mr Mannion succeeds in his application to be re-instated as owner. In the light of this, the claim for a right of way falls away. However, if I am wrong on that, the only factual issue which remains is whether Mr Baxter can establish on the facts that he used the gate as a means of access to the Field. Again, as will appear below, I am satisfied that the gate was used to allow vehicles to gain access to the Field.

Relevant background and evidence

19.	 The Field, the Adjoining Land and Old Brewery House were at one point in the same title (at a time when the Old Brewery House was a public house known as the Spade and Beckett). Sometime before 1966 the public house was closed down and the building and land bought by a vet, a Mr Jackson, who also built a bungalow in the rear garden of the building (used, as I understand it, as a surgery) to the west of the Yard.

20.	In 1987 Twigate Ltd purchased Old Brewery House and the Field, together with the Additional Land. An access way was made over the Yard. Old Brewery House was sold in August 1988.

21.	In June 1990 Lloyds Bank appointed receivers over the Field and Adjoining Land. Between 29 June 1990 and 29 August 1981 four leases for terms of 199 years from 1 January 1990 were granted by the then freeholders to flats within Old Brewery House. Each lessee has the right to park in a designated space in the Yard, to the east of the right of way. In addition there are two visitors parking spaces, one closest to the High Street, and one closest to the fence separating the Field from the Yard.

22.	On 24 June 1991 the receivers applied for planning permission for residential development of the Field and Adjoining Land. It seems to me clear from the documentation that an inspection was made by the agent  who prepared and completed the application form.  Permission was granted on appeal in on 11 June 1992. The inspector visited the site on 28 April 1992. A number of people attended, including Mr Ashby-Hoare of Abbotts. The visit lasted one hour. Access was obtained from Slade Way from the Abbey Homes site. This is a development now run by Granta Housing Association as sheltered accommodation.  The report notes that there was a horse running on the site: it was believed that this belonged to one of the adjoining properties. 

23.	 In 1994 the Field and the Adjoining Land were put on the market. Strettons were instructed: they in turn instructed Abbotts, a local estate agent. A ‘ For Sale’ sign was  erected. It is not entirely clear whether this was on the Field or the Adjacent Land,  but either way it seems clear to me that anyone investigating the position would have been told that both parcels were for sale. In a letter dated 19 December 1994 Abbotts noted that the ‘site has now become somewhat overgrown , which prevents easy inspection of the same. It may be prudent before the growing season to employ a local contractor to cut down the growth.’ The Field was then put up for auction on 20 July 1996. It is likely that the ‘For Sale’ sign was up for two years or so.  Mr Owens of Strettons inspected and noted that there were no horses or other animals on the field. There was no difficulty in gaining access but Mr Owens could not remember, some 10 years later when he was asked, how he got onto the Field.

24.	I should also add that a number of photographs were kept by Grant Thornton, the receivers. These show the Field as being uneven and unkempt, and no horses or other animals can be seen.

25.	The advertisement in the Estate Gazette for the auction was noticed by Amanda Hedges who acted as a consultant for Mr Mannion. They both visited the Field. Following the transfer on 19 August 1996, a number of visits to the Field were made by Mr Mannion and agents on his behalf between August 2006 and January 2005. I deal with this evidence more fully below. Mr Brinton of Grounds & Co, estate agents in Chatteris, wrote to the Mr Mannion in March 2006. In this letter he stated that :’The Baxters and others have a habit of putting horses on any piece of spare land they can find, and indeed we have recently had to chase them off another parcel of land in Chatteris which has been sold for residential development.’

26.	In October 2004 Mr and Mrs Hudson purchased Flat 1, Old Brewery House. In November 2004 they purchased Flat 2 and the freehold.

27.	I  turn now to the oral evidence. Mr Baxter was born in 1957 and has lived all his life in Chatteris, in the vicinity of the Field. He is a self employed lorry driver who, for many years, has kept horses and ponies. Currently he has only one horse which is used for weddings. At one time he had a lease of a field from the council in Chatteris, and a 20 acre field near Wisbech, and at that time had many more horses. To this day he breaks horses in for others.

28.	 He stated that his father began to use the Field for keeping horses some 7 or 8 years before he took over, in 1985. He remembered this date by reference to the age of his children, having bought Shetland ponies for them when they were small. In the course of time the children were given larger horses. His evidence is that he has always had at least one horse on the Field,  and sometimes 3 or 4.  He accepted that there might be the odd half day when he took the horse out, but he was clear in his evidence that there was not a day when there was not a horse in the Field or the stables.

29.	As for the fencing across the Field, Mr Baxter’s evidence is that the fence closest to the Yard was erected by his father. There was always a gate in the same position, albeit that it was once made up of a pallet and wooden gate. The gate that is now there was installed 5 or 6 months ago. A water trough has been in the Field for over 20 years, as has been a feed box. The horses are fed twice a day; early in the morning and in the evening. There is no water supply to the Field, so water is brought in dustbins in his pick up truck. Feed is delivered in the same way. The truck is driven backwards to the fence and the food and water tipped into the trough and feed box.

30.	There is a second fence in the Field which has been there some 5 or 6 years and which was erected by a Mr Beaney. He had a horse for his daughter which was broken in by Mr Baxter, and in return Mr Beaney erected the secondary fence. Before that fence was erected, the horses were free to use the entire Field, down to the wood or spinney at the far end.

31.	There are two structures on the Field, used as stables. They were there before Mr Baxter or his father began to use the Field. The building on the eastern side has been used, it is said, as a stable and has been repaired by Mr Baxter over time (there was one time when one of the horses pushed the wall down, and it had to be rebuilt). The smaller building on the other side was used for keeping chickens, and occasionally ponies. 

32.	Mr Baxter’s evidence was also that the Field was overgrown in 1985: the horses could only use the middle ground. He had to cut down trees, seed and spray the grass. The spraying is done 4 or 5 times a year; seeding once a year. 

33.	The western boundary is maintained by the neighbouring owner, Mr Richardson. Before he bought the property Mr Baxter patched up the existing fence with pallets and barbed wire. On the eastern side the fencing consisted, over time, of metal sheeting, barbed wire, a gate, and a hedge : in short a variety of features. Mr Baxter denied that there were large gaps in the hedge.

34.	A number of dates were put to Mr Baxter in cross examination to show that, on those occasions, there were no horses or other animals on the Field.  Mr Owens of Strettons stated that when he visited just before the auction in 1996 the land might have been used for grazing (and indeed there was no other real use it could be put to) but that he saw no horses there.  Notwithstanding the evidence that was put  as to the position in July/August 1996 Mr Baxter maintained  that there were horses on the land at this time, and that the land was well grazed.

35.	Mr Dyer’s evidence is that, when he visited the Field again twice between July 2003 and January 2004, there were no animals. Again Mr Baxter insisted that there were. Mr Lucas, a chartered town planner, visited the Field on Mr Mannion’s instructions in February 2004, April 2004 and October 2004, and took a number of photographs. These show an empty field with an open gate. There appears to be some rubble in the middle of the field, but otherwise the field appears to be in reasonably good condition.   During these visits he saw only one horse on one visit. Mr Kirkham, a partner in Acorn Homes, attempted to visit the Field in January 2005 with a view to deciding whether to purchase the Field. His evidence was that the Field was so overgrown as to make a visit very difficult but that in any event he saw no horses and did not believe that anyone was using the Field.

36.	Faced with this evidence as to various visits to the Field over the years Mr Baxter remained firm in stating that there have always been horses on the Field. He did not accept the proposition that, whilst there may have been horses on the land on occasion, there were also substantial periods of time when there were no horses. Asked about Mr Brinton’s letter in March 2006 he denied that he or any member of his family were in the habit of putting horses on any spare piece of land they could find.

37.	The boundary on the eastern side consists to a large extent of hedging. There are gaps in the hedge. The evidence on behalf of Mr Mannion, which I accept, is that it was always possible to gain access through gaps. At various times there  may well have been pieces of timber, corrugated iron, an old gate, and low level barbed wire but there is no doubt in my mind that access was possible. There is no doubt that the fencing has recently been improved. Mr Baxter denied that it was ever possible, from 1985 until recently, to gain access from Slade Way and the sheltered housing, to the Field. I do not accept this. I have no doubt that access was possible, and was gained, from Slade Way to the Field by Mr Mannion and others

38.	Mr Baxter’ s case is also that he has regularly maintained the Field, by mowing the grass, chain harrowing it, removing fallen trees and hedges, and seeding the grass. He denied that he has only recently improved the overall appearance of the land.

39.	In relation to the gate, Mr Baxter’s evidence  is that there has always been a gate in the same position, and that this was always kept locked and bolted. I accept that there was always a gate, but I do not accept that it has at all times been kept locked and bolted. I accept the evidence given by and on behalf of Mr Mannion on this point.

40.	Mr Baxter also produced a number of photographs during the hearing. He had dated these as best as he could. They show horses on the Field at various times, some with Mr Baxter, some not. They also show Mr Baxter putting feed in over the first fence, and work being done, with Mr Bennion, to  the second fence. There is also a fork lift truck on the Yard owned by Mr Baxter.

41.	 Another set of photographs taken between 30 July 2008 and 10 December 2008 clearly show that the access way to the gate over the Yard was not obstructed. Indeed, one photograph shows the car belonging to Flat 1 parked in such a way as to allow access to the gate. Mr Hudson’s evidence was tht the car was parked in this position because it had been damaged by Mr Baxter going in and out of the Field.

42.	Mrs Baxter also gave evidence. She confirmed what her husband had said, and added that she can remember horses before 1981, as well as going to the Field with Mr Baxter’s father in law. She also maintained that there were horses on the Field every day. For a while, she said, she had a few chickens in the shed and some goats, but this was not for long.

43.	I have read the statements of a number of witnesses on behalf of Mr Baxter.  In the main these witnesses are either neighbours or relatives of Mr Baxter. These all attest to the fact that Mr Baxter has had horses on the Field and that access was gained over the Yard. The Respondents were content to accept this evidence other than the evidence of Mr Smith. No explanation was given as to why he could not attend.

44.	 Mr Mason states that he has seen Mr Baxter take a pick up truck loaded with carrots or feed to the boundary fence. Mr Smith (Mr Baxter’s son in law) states that he has helped Mr Baxter from time to time fix or replace fences, break in horses, carry out repairs to the sheds and takes bales of hay from Mr Baxter’s own yard on the other side of the High Street to the Field. He also states that he has driven the fork lift truck to the Field and a tractor onto the Field to trim down the grass. He says he has done so some 10 or 20 times without any difficulty.

45.	Mr Cox has made a statement saying that as long as he can remember the Baxter family have kept horses on the Field and that he assumed that the land belonged to Mr Baxter. It is for this reason that he asked him for permission to shoot pigeons on the land. Mr Mousley is the owner of the bungalow in the Yard. He has lived there since July 2004. He too states that he has seen Mr Baxter on a number of occasions gaining access to the Field over the Yard with or without vehicles, and without difficulty. 

46.	Finally, I have read the statements of Mr Fryer, a farrier, and Mr Richardson, who lives in the adjoining property, number 89 High Street. Mr Fryer states that for the past 20 years he has shod horses for Mr Baxter and trimmed mares’ and foals; feet. He did so both on Mr Baxter’s own yard at Number 94A High Street, but also on the Field.

47.	Mr Richardson bought his property in 1992. The two properties were divided by an old post and wire fence which he replaced with a sturdier panel fence along the boundary to prevent horses getting into his land, and his dog escaping. He states that he has seen Mr Baxter on the Field, feeding his horses and generally working there, sometimes mowing the land and sometimes repairing the fences and carrying out general maintenance.

48.	Mr Weekes was content to accept this evidence, other than the evidence of Mr Smith. It his case that it does not in any event descend into sufficient detail. 

49.	Mr Mannion’s evidence is that he visited the Field 6 to 8 times before Mr Baxter obtained title to it, and that on no occasion did he see horses or other animals. At times he gained access via the gate at the end of the Yard, and at other times he did so through gaps in the hedge by the sheltered housing.  There was one strand of barbed wire, he said, but this was no more than 18 inches off the ground, and easy to step over. He never believed that anyone was in occupation of the land or was making use of it. The Field was overgrown; there was a heap of rubble towards one side, and over the years when he visited it never looked as it now does. 

50.	In cross examination he stated on the occasion of his first visit, which was in the summer time, he inspected the Field from top to bottom having gained access through a gap in the fence. This gap was some 5 or 6 feet wide. There were possibly as many as 3 or 4 gaps. Miss Hedges accompanied him. The land was overgrown. He recalls that there were two fences across the field. The first, as he approached it, was made up of pallets and was easy to walk through. The second had a gate which was not locked. He saw the horse trough, but did not notice the feed box. He looked into the larger stable building and recalls that there was no door. He did not consider any of these features odd, since he knew that the vendors had owned the land for some time.

51.	He visited again once or twice in 1996 after the purchase with Miss Hedges, and then with Mr Dyer. Again he used the gaps in the hedge. The land was in much the same condition.  Thereafter he did not visit for another 3 or 4 years. The land was, again, in much the same condition. No horses were visible on any of these visits. On the second visit, after he bought the land, he also inspected the spinney.

52.	In 2003 he visited again with Mr Dyer. By this stage he was considering making a planning application and needed to consider the layout of any possible development. He was on the Field for half an hour or 45 minutes. So far as he can recall he probably gained access through the hedge. Again, there were no horses. He then made a further visit with Mr Lucas and was there for over an hour. He did not notice that the state of the land had changed, in contrast with the visit the day before the hearing when the land was in a totally different condition.

53.	He accepts that he received the notice relating to Mr Baxter’s application but did not fully realise the importance of responding. His only brother became seriously ill in Ireland in February 2006 and died in April 2006. In late April his son’s baby boy died of meningitis aged three weeks. As a result he did not take legal advice until several months later, although he did contact Mr Brinton in March 2006.

54.	Mr Dyer gave evidence. He is a civil engineer employed by Mr Mannion’s building company. He visited the site in August 1996 with Mr Mannion and then again on two other occasions between July 2003 and January 2004. On the first visit the gate was open; the grass was high and there was nothing else of note there. On his second and third visits the grass was also high. There were no horses. On one of the later two visits access was gained through a gap in the hedge, stepping over one strand of barbed wire. He noticed makeshift boundary features. He did not notice the feed box or the through. On being asked to look at photographs taken by Mr Lucas, he said that he remembered the grass being higher than appears there.

55.	Miss Hedges visited twice, once before and once after the auction. She was quite clear in her recollection that there was no sign of any occupation. She walked around the Field, and recalls rubble, pallets, uneven and overgrown land. On the first visit access was gained through a gap in the hedge, and the exit was through the gate; on the second the gate was used. On neither occasion was the gate locked. There were several gaps in the hedge. Her evidence was that if she had noticed that the gaps were all blocked she might have been concerned that the Field was occupied.

56.	Flats 1 and 2 of Old Brewery House have entrances from the High Street and from the Yard. Mr Hudson was aware of the bungalow in the Yard, and gave no thought to the Field when he purchased the flats and the freehold. He saw the fence, but did not notice whether there were horses on the Field or not. He assumed there were other entrances to the Field. When Flat 2 was purchased a great deal of renovation work had to be carried out, so that he and his wife were at the premises very frequently.

57.	Mr Hudson took photographs of the Field in May and June 2007 to show that there were no horses there on those occasions. He accepted that he has seen a horse on the Field near the fence a number of times, and that he had seen someone walking over the Yard to the Field, but never going through the gate and never with a vehicle. He also stated that the Field looked different on the site visit before the hearing:; the vegetation had been cut back and the land and structures generally tidied.  

58.	Mrs Hudson confirmed her husband’s evidence. She recalled seeing a horse and foal on one occasion. She saw Mr Baxter possibly three times. She did not give the matter a great deal of thought, but assumed there was another way of gaining access to the Field. 

Conclusions on the evidence

59.	 I have no hesitation in accepting the evidence given by and on behalf of Mr Mannion. The Field was visited on a number of occasions by him and others before and after the purchase in 1996 and at no time did anyone (other than on the occasion of the planning inspector’s visit, and during one visit by Mr Lucas) see either horses, animals, or anything else which would have indicated that the Field was being occupied by someone else. It was at all times possible (until very recently) to gain access to the Field through gaps in the hedges.

60.	The oral evidence is supported by the documentary evidence (I refer in particular to the correspondence at the time of the planning application, the attempts to sell the property, and the photographs taken by Grant Thornton). It is also inherently likely that Mr Mannion and his agents would have been alert to any sign of occupation or possession by anyone else, and would have taken action if this had been the case. 

61.	 I accept that Mr Baxter has, at times, kept a horse, and sometimes more, on the Field. For the reasons given above I reject the assertion that the horses were on the Field every day. Mr Baxter had access to other fields which were no doubt used for his horses.  I accept that some work was done to the boundary fences, and to the internal fences, and that water and feed was brought to the Field. The work done to the boundary fences was done, primarily, with a view to ensuring that the horse(s) did not escape, and not to keep people off the Field. It was the minimum work which could be done to this end.

62.	Whilst some work may have done to the Field over the years to keep the grass down and the land levelled, I have come to the conclusion that most of the improvements were done recently, and that, in the past, the Field was, if not neglected, certainly not well  maintained. I do not accept that Mr Baxter seeded the land every year nor that he sprayed it regularly.  I accept that anyone visiting the Field on behalf of Mr Mannion would not have been alerted to the possibility of the Field being in the possession of someone else. 

63.	It is of course right to say that the relevant period is 1996 to 2006, and accordingly that the evidence of user prior to this date is not directly relevant. It is relevant, however, in assessing the credibility of Mr Baxter and his witnesses.

The Law

64.	The relevant legal principles have been recently re stated in Pye v Graham [2003] 1 AC 419, and in particular at paragraphs 40-42. The starting point is that the law will, ‘without reluctance’ ascribe possession to the paper owner or to persons claiming through the paper owner. If the law is to ascribe possession to a person who is not the paper owner (or someone claiming through him) that person must be able to show (1) a sufficient degree of physical custody and control (‘factual possession’) and (2) an intention to to exercise such custody and control on one’w own behalf and for one’s own benefit (‘intention to possess’)

65.	It is also clear that factual possession must be single and exclusive, and the determining factor will often be the nature of the land and the manner in which it is commonly used. The necessary intention is an intention to possess, and not to own.

66.	Mr Weekes submitted that Mr Baxter did not and does not ‘exclusive custody and control’ so as to be in factual possseion and that in any event he did not have the necessary intention. His primary submission is that merely putting horses or other animals on someone else’s land is not unequivocal conduct showing that the squatter has entered into possession. Three cases in particular are relied upon; Hollinshead v Wheawell (1956) 167 EG 278, Tecbild v Chamberlain (1969) 20 P&CE 633 and Powell v McFarlane (1977)  38 P&CR 452. 

67.	At page 477 of Powell Slade J  listed the activities carried on by the squatter. These were extensive albeit that at the time Mr Powell was only 14. Slade J concluded, however, that the activities were equivocal in the sense that they were not necessarily referable to an intention to disposses and to occupy the land wholly as his. Any informed objective observer would have concluded that the land was being used for the benefit of his animals, during such periods as the absent owner took no steps to stop him, without any intention to appropriate the land as his own.

68.	 Mr Gore made the point that once a squatter has taken possession a mere entry onto the land by a paper owner does not interrupt that possession. He also  referred to Bligh v Martin [1968] 1 WLR 804 and Paradise Beach Ltd v Price-Robinson [1968] AC 1072.  It is of course right that in many cases possession cannot be continuous from day to day. What is required, he submitted, is a reasonably degree of continuity.

69.	I agree that the use made of any particular parcel of land very much depends on the nature of that land, and that it would be possible to be in adverse possession in cases where there were periods when no animals were grazing. It is also of course correct to say that if a squatter is in possession, the occasional visit by the true owner will not stop time running.

70.	I do not however accept that the visits made by Mr Mannion and his agents can be characterised as minimal. In any event, the issue is whether Mr Baxter was in factual possession and whether he intended to exclude all others, including Mr Mannion.

71.	In my judgment Mr Baxter was not in factual possession during the relevant period, namely August 1996 to August 2006, and further more I do not find that he had the necessary intention to exclude the world at large, including Mr Mannion. The use made of the Field  for grazing was discontinuous and infrequent. The Field was poorly maintained. There was nothing preventing access.  It is plain that access was had to the Field by a number of people, including the visits in 2003/4 connected with Mr Mannion’s plans to redevelop the Field.  The gate was not locked. No signs had been put up indicating that the Field belonged to Mr Baxter (I do not say that this is an essential or determining factor, but it is of some significance). There was nothing to indicate to Mr Mannion, even in his most recent visits, that the Field was in the physical possession of someone else. 

72.	I should also add that even if it is the case, contrary to the view expressed above, that Mr Baxter is now in possession of the Field,  it seems to me that it is appropriate that the order sought  by Mr Mannion should be made under both limbs of paragraph 6 of Schedule 4 to the Act. Accordingly I will order the Chief Land Registrar to give effect to Mr Mannion’s application to alter the register of Title Number CB304178 and to cancel Mr Baxter’s application to register a right of way over Title Number CB148326.

73.	This leaves the question of costs. In principle it seems to me that Mr Mannion and Mr and Mrs Hudson are entitled to their costs. A schedule is to filed and served by Friday 20th February. Mr Baxter may then make such representations or objections as he deems appropriate by Friday 13th March. Subject to any reply Mr Mannion or Mr and Mrs Hudson may make, I will then either asses the costs on the basis of the information before me or order a detailed assessment to be carried out by a Costs Judge.

BY ORDER OF THE ADJUDICATOR

ANN McALLISTER

Dated this 5th day of February 2009

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