first-tier tribunal 					    Ref 2013/0499 & 501
property chamber  
LAND Registration act 2002

IN the matter of a reference from hm land registry

B E T W E E N:

(1) MARGARET PATRICIA HOPKINS
(2) CLIVE HOPKINS
Applicants

and

(1) BARBARA ROSE HAYNES
(2) GERALD HAYNES
Respondents

Property Address: Land at Wellmeadow, Lydney Road, Bream, Lydney, Gloucestershire GL15 5HD
Title Numbers: GR367454 & GR368281

Before: Mr Max Thorowgood sitting as Judge of the First-Tier Tribunal

Sitting at: Bristol Magistrates Court 
On: 29th & 30th July 2014

Applicants’ representation: Robert Welch of Counsel
Respondents’ representation: Glyn James a Surveyor

1.	Introduction
1.1.	Two small parcels of land were in question in the proceedings before me. They were referred to as ‘the Triangle’ and ‘the Rectangle’ and I adopt that terminology for the purposes of this decision. Both are labelled for the purposes of identification only on the plan annexed hereto (“the plan”).
1.2.	The Triangle is strictly a quadrilateral described by the points ‘A’, ‘B’, ‘C’ and ‘D’ where: A is the north western corner of the outbuilding marked ‘X’ on the plan; B is the point on the concrete block wall erected by the Applicants on their land immediately to the west of A; C is the party wall between the two outdoor toilets; and D is the south western corner of the corrugated iron shed erected by the Respondents on their land and marked ‘Y’ on the plan.
1.3.	I had the considerable advantage of inspecting the site at some length on Monday, 28th July 2014, in company with the parties and the Applicants’ solicitor and counsel and my decision is informed by the observations which I was able to make on that occasion.

2.	The application and the parties
2.1.	Two applications have been referred. The first in time is the Applicants’ application dated 10th October 2012 for first registration of their paper title including both the Triangle and the Rectangle. They initially sought also to include the whole of the toilet block within their title but that aspect of their claim was not pursued at the hearing.
2.2.	The Respondents countered by applying on 12th November 2012 for first registration of the two parcels on the grounds that they had acquired title to that land by adverse possession.

3.	The conveyancing history
3.1.	Wellmeadow House is a substantial, probably Victorian property with a large garden to the rear. The ground slopes quite steeply from south to north, that is to say, down from the garden towards the frontage with the Lydney Road. 
3.2.	On 25th November 1952 Wellmeadow House and Wellmeadow Bungalow were conveyed to Maud Mary Skidmore. 
3.3.	On 2nd May 1957 Mrs Skidmore conveyed the property known as No. 2 Wellmeadow to Mr Desmond Patrick Cassidy. So far as I am aware this was the first occasion on which the titles to No’s. 1 & 2 Wellmeadow had been separated but the properties probably had been separately occupied for some time before that.
3.4.	It is a notable feature of the title at this point that vehicular access to No. 1 Wellmeadow passed via the rear of No. 2. 
3.5.	Following Mrs Skidmore’s death, by a conveyance dated 24th November 1967 No. 1 Wellmeadow was conveyed by her son, Graham Skidmore, to the First Applicant Miss Margaret Thomas. Miss Thomas later married the Second Applicant Clive Hopkins on 24th May 1980 and on 14th December 1981 she agreed to release Mr Cassidy’s land from the burden of the rights reserved to her over his land in respect of access by the conveyance of 1967.
3.6.	The same day Mr Cassidy conveyed No. 2 to the Respondents. The plan to that conveyance referred to the plan to the 1957 conveyance to Mr Cassidy.

4.	Adverse possession
4.1.	It was agreed between the parties that it was the effect of the conveyances that both the Triangle and the Rectangle were within the paper title conveyed to Mrs Hopkins by Mr Skidmore in 1967. 
4.2.	That title was at all material times unregistered from which it follows that if the Respondents are to succeed in their objection to the registration of the Applicants as the proprietors of that land they must show that either they or Mr Cassidy dispossessed the Applicants during a continuous period of 12 years so that the paper title has now been extinguished and that they are entitled to be registered as the proprietors by virtue of their adverse possession. 
4.3.	The test which I have to apply in considering whether the Respondents dispossessed the Applicants is set out in the decision of the House of Lords in J.A. Pye (Oxford) Limited v Graham [2003] 1 AC 419 approving the decision of Slade J in Powell v MacFarlane (1977) 38 P & CR 452. There are two elements to the dispossession of the owner of a paper title by an adverse possessor, first, factual possession and, second, an intention to possess. As to factual possession, Lord Browne-Wilkinson approved this statement of Slade J:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.” 

	The necessary intention to possess, he said, was:

“… an “intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.”

4.4.	Mr Welch also drew my attention to a passage from the judgment of Slade J in Powell concerning the question of intention to the following effect:

“An owner or other person with the right to possession of land will readily be assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acted done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will … require clear and affirmative evidence that the trespasser … not only had the requisite intention to possess, but made such intention clear to the world.”

However, as Clarke LJ explained in LB Lambeth v Blackburn (2001) 82 P & CR 494 in a passage specifically approved by the House of Lord in Pye it will not generally be necessary or appropriate to strain to hold that a person who had demonstrated the necessary factual possession over a period of 12 years had the necessary intention to possess. It is important also to appreciate that it is not necessary that the intention should be directed consciously to the exclusion of the true owner, all that is necessary is that the “intention to occupy and use the land as one’s own,” be actual and manifest.

5.	The Triangle
5.1.	At the time of the Respondents’ purchase of No. 2 Mr and Mrs Hopkins had already demolished the stone outbuilding to the rear of their property but that to the rear of No. 2 remained. At some point in the early 1980’s, the precise date is uncertain and unimportant, Mr Hopkins planted a row of leylandii cypress along the boundary between the south western corner of the shed marked Y on the plan and the toilet block.
5.2.	It is probable and I find that those trees were planted just to the west of a row of scaffolding poles which were set into the ground and against which were rested some panels of corrugated iron sheeting.
5.3.	In the mid 1990’s Mr Hopkins decided that the leylandii had become too large and were too intrusive so he removed them. Over the course of the following year or so he proceeded to construct a blockwork wall (some 8’ high) which remains in position and which runs from point B to a point some 6’ or so from the northern wall of the toilet block before turning in a westerly direction. The purpose of this was to create a sheltered terrace and sun area. Again the date of this work is uncertain but I conclude that it was completed not later than the summer of 1995.
5.4.	The north/south arm of the blockwork wall was located at a distance of approximately 2’ from the steel piping and along the same line as the leylandii had been planted.
5.5.	One feature of Mr Hopkins’ initial installation, although he has now removed it, was a fish pond. The pump and filter were located in the passageway between the western arm of Mr Hopkins’ new wall and the toilet block in front of a wall of blocks 4-5 block high which Mr Hopkins placed between the end of the north/south arm of the wall and the toilet block but did not cement in and covered with some corrugated iron sheeting which was placed on top of the blocks. 
5.6.	Mr Hopkins’ evidence was that despite this obstruction, which would I conclude have made it impossible for him to access the Triangle, he used regularly (the precise frequency varied in the course of his evidence but he settled on every 4-6 weeks) to climb on a ladder and lean over the wall in order to spray weedkiller on the small triangle of ground on the other side. Mr and Mrs Haynes denied ever seeing him do this and they were not challenged on this point. Indeed it was Mr Hopkins’ case that they never saw him. I have no hesitation in completely rejecting Mr Hopkins’ evidence on this point and conclude that from the point at which he completed the erection of the wall and installed his pond and associated equipment until the dispute arose in relation to the Rectangle in 2007 Mr Hopkins did not access the Triangle.
5.7.	However, I also conclude that Mr Hopkins deliberately did not cement in the blocks behind the pump in order that he could get access to the back of the wall and that he also deliberately did not build the wall hard up against what he perceived to be the boundary for the same reason. That boundary line being the line passing from point D to the wall of the toilet block, that is to say, broadly a continuation of the line of the wall of the outbuildings.
5.8.	Ordinarily, where an owner of land creates a situation in which only an adjoining owner can enjoy that land and the adjoining owner does so and a sufficient period of time elapses, a claim of title to that land on the basis of adverse possession is likely to be made out. The position here is different in important respects. The first is that the Respondents, even though they were the only people who could realistically have enjoyed any meaningful possession of this land whilst the leylandii were in place and after that whilst the walls effectively excluded the Applicants, they were unable to point to any substantial use or possession of it by them. At best they said that they had stored some chimney pots in the area between points A and B although even the nature and extent of that use was not very clear. The galvanised gate which was carefully rested against the roof of the toilet block from at least 1984 did not intrude into that area but even if it did, it would not have evidenced an intention on the part of the Respondents to occupy and possess the Triangle. The Respondents could show clearly that they had used the land up to the scaffolding poles and corrugated iron but not the land beyond it. It is thus impossible for them to show either any unequivocal acts of factual possession of the Triangle or any intention to possess it. The second point is that, as I have found, Mr Hopkins did intend to retain possession of the Triangle and it might be said, although I would not wish to base my decision solely on this point, that his failure to cement in the block work behind the pumping apparatus sufficiently evidenced his continued possession of the land. In the face of unequivocal acts of dispossession, the lack of cement might not be significant, but in the absence of any other manifestation of interest in the land I find that the Applicants were not dispossessed by the Respondents.
5.9.	I therefore conclude that the Applicants’ claim in respect of the Triangle is made out.

6.	The Rectangle
6.1.	The position in respect of the Rectangle is quite different. 
6.2.	The area in dispute is bounded to the north by the southern edge of the path to the toilet block, to the east by the edge of the path to the rear of the Respondents’ garden and to the west by a substantial hazel bush/tree. It is the position of the southern boundary which is disputed.
6.3.	What is not disputed is that from the early 1980’s and certainly by 1984 the southern boundary was defined (in large part at least) by the roof of the shed which had stood to the rear of the Applicants’ property but which they demolished. That roof was leaned up against the hazel bush in order to get it out of the way and to create a barrier between the Applicants’ and the Respondents’ land in order to stop the Respondents’ dog getting into their garden. It is also common ground that before the Applicants placed the roof across this area it was a piece of rough waste ground on which a concrete blockmaker had been stored by Mr Cassidy.
6.4.	The Respondents contend that the base of that roof was aligned with the end of the Applicants’ blockwork wall whereas the Respondents contend that the base was significantly nearer to the path to the north; albeit not precisely aligned with it. 
6.5.	It was the Respondents’ evidence that when they moved into 2 Wellmeadow it had appeared to them that the Rectangle was part of their land and that this impression had been reinforced by the placing of the roof across the gap between the hazel bush and the wall. They treated the land accordingly and placed a number of items associated with Mr Haynes’ work as a miner on the land for the purpose of storage. Mr Haynes also cut down a Victoria plum tree which was growing on the land in order to create more space. 
6.6.	I have seen a number of pictures of this area, none of them is enormously illuminating because they do not give a clear impression of depth, but they do show that a substantial part of the Rectangle was covered with heavy pieces of machinery, bricks and other assorted items which, although they have disobligingly referred to as ‘rubbish’, clearly are potentially useful/valuable items being kept against the possibility that they may be required at some point in the future. It also appears that some railings have been placed around the back edge of the area.
6.7.	The question to which much of the evidence in this regard was directed was the extent to which the back of this area was used by the Respondents. I conclude that the material was stored principally within 3’ or so of the front/side edge. However, the impression gained from the enclosure of the area within the Respondents’ garden and the use which they were making of it is clearly that it formed part of their land and I have no doubt that they used it as they did with that intention or that an objective observer would have concluded that they were using it like that because they owned it.
6.8.	I also conclude that the base of the roof was aligned moreorless with the end of the blockwork wall. There are several pieces of evidence which point in this direction. The first is the height of the roof and the bushiness of the hazel tree both of which would have made it difficult in my view to lean the roof as close to the path as the Applicants contend. Second, there is the photograph of Mrs Haynes to which I have already referred. Third, there is the fact that part of the purpose of placing the roof across the gap was to prevent the Respondent’s dog getting into the Applicants’ garden. That purpose would most easily have been achieved by the foot of the roof being aligned with or even back from the end of the wall.
6.9.	It is established that the use of land for the purpose of storage, without more, may be equivocal as to the intention or purpose with which the alleged acts of possession were done and, as such, a factor of very little weight in assessing whether a squatter has been in adverse possession, see Treloar v Nute [1976] 1 WLR 1295. However, the Court of Appeal’s very brief remark in Treloar must be kept in context and evaluated through the prism of the law as stated by the House of Lords in Pye; particularly in relation to the question of intention to possess and the remarks of Lord Hope to which I have referred above. That is to say, the important point to have in mind is whether it was manifest from the use which the Respondents made of the land that they were in exclusive factual possession of it and that they were occupying and using it as if it were their own. 
6.10.	In my judgment that is what the Respondents did. The land appeared to be part of their land when they went into possession and from then until 2007 they behaved as if it was. It was only after relations between the parties broke down in the course of 2007 on account of Mr Haynes pruning branches off the hazel bush and throwing them onto the Applicants’ land that it occurred to the Applicants to think otherwise. Accordingly, I conclude that the Respondent have established their title to the Rectangle on the grounds of adverse possession.

7.	Conclusions
7.1.	My conclusions are therefore as follows:

7.1.1.	The Applicants are entitled to be registered as the proprietors of the Triangle on the basis of their paper title to that land.
7.1.2.	The Respondents are entitled to be registered as the proprietors of the Rectangle on the basis of their adverse possession of it.

6.4	I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ application insofar as it relates to the Triangle but otherwise to dismiss it and similarly I shall direct that he should give effect to the Respondents’ application insofar as it relates to the Rectangle but not otherwise.
6.5	It is the ordinary rule in relation to cases before the Land Registration Division of the Property Chamber that the losing party should pay the successful party’s costs of the reference. In this case, on the face of it, both parties have been equally successful or unsuccessful. For that reason I am minded to make no order as to costs but will invite the parties to make submissions in that regard.

ORDER

UPON hearing counsel for the Applicants and the Respondents by their representative, Mr Glyn James

IT IS ORDERED THAT:

1.	The Chief Land Registrar give effect to that part of the Applicants’ application dated 10th October 2012 which relates to the land defined in this judgment as ‘the Triangle’ as if the Respondents’ objection had not been made. Save as aforesaid the Applicants’ said application be dismissed.
2.	The Chief Land Registrar give effect to that part of the Respondents’ application dated 12th November 2012 which relates to the land defined in this judgment as ‘the Rectangle’ as if the Applicants’ objection had not been made. Save as aforesaid the Respondents’ said application be dismissed.
3.	If the Applicants wish to contend that any other order than that there should be no order as to the costs of this reference they must file and serve their reasons in writing, together with any supporting documents, by 4 pm on 6 November 2014.
4.	If the Applicants file and serve reasons in accordance with paragraph 3 above, the Respondents have permission to file and serve such submissions and supporting documents as to the order which should be made in respect of the costs of this reference as they may wish or be advised, by 4 pm on 27 November 2014.

Dated this 16th day of October 2014

By Order of The Tribunal

PLAN