REF/ 2013/1088

PROPERTY CHAMBER, LAND REGISTRATION
FIRST-TIER TRIBUNAL

LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN
UMER AKRAM
APPLICANT

And

(1)	SONIA STOTT 
(2)	SHLOMIE SVIRI
RESPONDENTS

Property Address:  Land on the South side of Vine Street, Salford
Title Number: MAN212986

___________________________________________________________________________

DECISION
___________________________________________________________________________

KEYWORDS –Adverse possession

Introduction 

1.	The Applicant, Mr Akram is (so I am told, although office copies have not been produced) the registered proprietor of land known as 48 Vine Street, Salford, (“Number 48”) which, until recently he ran as a care home for the elderly.  

2.	 On 14 August 2013, the Applicant applied to Land Registry for possessory title of a parcel of unregistered land immediately opposite Number 48 (“the Disputed Land”).  In his application he claims to have been in possession of the Disputed Land since 1993 (and indeed that his parents who were his predecessors in title of Number 48 were in possession of the Disputed Land from 1985 or 1986 to 1993, and that their predecessors in title were in possession the Disputed Land in 1985).

3.	The Respondents, Ms Stott and Mr Sviri, are the registered proprietors of land immediately to the east of the Disputed Land, 47 Vine Street, Salford (“Number 47”).  They objected  to the Applicant’s application, on the basis that when they moved in to Number 47 in 2004, no-one was in possession of the Disputed Land, which appeared to form part of the Kersal Dale Nature Reserve.  There is no dispute that the land immediately to the south of the Disputed Land is part of the Kersal Dale Nature Reserve.  There is also no suggestion that the Respondents are the paper owners or have any claim to an interest in the Disputed Land.  (In fact, although there was historically a suggestion that the owners of the Disputed Land were Peel Holdings, it was later thought that this was not the case, and the matter has been argued before me on the basis that it was not known who the paper owner of the Disputed Land was).

4.	In light of the Respondents’ objection, the matter was referred to the Land Registration division of the Property Chamber of the First-tier Tribunal on 13 December 2013 for a determination of whether the Land Registry should cancel or give effect to the Applicant’s application.    

5.	I heard this matter on 2 and 3 September 2014.  Both parties had retained Counsel and solicitors to represent them, and I was assisted by submissions from Mr Varma (acting for the Applicant) and Mr Duckworth (acting for the Respondents), and by a site visit on the previous day (1 September 2014).   I heard evidence from all 3 parties.  Neither party sought to call any other evidence, but the Applicant sought to rely on 3 “To Whom it may concern” letters dating from 2008, and the Respondents sought to rely on a witness statement of Ms Joanne Regan who was unable to attend because she was on annual leave.

The Facts 

6.	The undisputed facts can be stated quite shortly: 

7.	 At all material times, black wrought iron railings bounded the north (Vine Street) boundary of the Disputed Land. Those railings had probably been erected by Salford City Council (“the Council”).

8.	The eastern boundary was defined (for most of its length) by boundary features situated on Number 47: a low brick wall and then the flank wall of the garage.

9.	In Autumn 2007, the Council replaced the railings along the northern boundary (and indeed along the south side of Vine Street to the east of Number 47 where the Nature Reserve borders Vine Street) with similar railings.  According to Ms Stott (who was not challenged on this), it took several weeks for the work to be done, and during the course of this work, the Council workmen took care not to damage plants which had been planted near the railings by other residents.   

10.	It seems from a comparison of a 2005 photograph (at page 437 of the trial bundle) and a 2008 photo (at page 440b of the trial bundle) that at least at the eastern end of  the railings, the new railings took a slightly different line than the old railings: the old railings appear to have turned a corner and continued south to meet the low wall at Number 47, whereas the new railings appear to have contained no such right angle.  It seems that the Council may have achieved this by clearing some of the scrub in the north east corner of the Disputed Land.  

11.	Immediately after those railings were installed, they ran the whole length of the north side of the Disputed Land, so that the only way to access the Disputed Land from Vine Street was over the railings.  

12.	Shortly thereafter, the Applicant retained Bramley Pate and Partners (a firm of surveyors) to advise him.   I have not seen the instructions, but it seems that Bramley Pate and Partners were instructed to advise the Applicant as to who had erected the railings, and what, if anything, he could do about them.  The Applicant told me, and I accept, that Mr Bramley came out and inspected the Disputed Land. He produced a report dated November 2007, a copy of which was shown to me.  The report suggests that the Applicant should “look for evidence of previous boundary fencing on the land and consider erecting new fencing along the established lines and try to establish ownership”.   Mr Bramley did not suggest that there was any visible evidence of fencing, particularly on the southern or western boundaries of the Disputed Land.  Nor does his report suggest that he observed any other visible signs that the Disputed Land had been used by the Applicant or the care home residents.     

13.	Shortly after receiving this report, the Applicant instructed contractors to fence the southern and western boundaries of the Disputed Land.  They carried out this work in December 2007.  

14.	Sometime after February 2008, the Applicant removed a section of railing (being the second one from the eastern boundary), and installed a wooden gate which he padlocked closed.  In April 2008, the Applicant instructed contractors to fence the northern boundary too, immediately inside the Council’s railings.  This was done.  He did not fence the eastern boundary.  It seems to me likely that it was in April 2008 that the section of railing was removed and the gate erected.      

15.	In May 2008, the Applicant made an application for first registration of the Disputed Land (with absolute title, I note), on the basis of adverse possession.  Although the Applicant failed to produce all of the documents relating to that application, despite me making an order that he should do so by 5.30pm on the first day of the hearing, from the documents which were produced, it is clear that a Land Registry surveyor inspected the Disputed Land, and concluded that “much of the land was derelict or only partially used and there was little evidence of maintenance.  It was not at all obvious how the residents of a residential care home could make use of the land for the purpose of relaxation.”  It therefore seems that the application was rejected as “substantially defective” under Land Registration Rules 2003, r16(3), before the application was served on anyone else.    

16.	Following that decision, the Applicant set about trying to bolster his claim, as he frankly admitted.  He created wooden pagodas and benches on the land, and erected keep out notices.   He also put down wood chippings.  

17.	In about October 2011, the Applicant decided to pave part of the Disputed Land.  Paved paths and hand rails were constructed.  It was this action which prompted the Respondents to write to the Council to complain that trees were being cut down on the Disputed Land.  This resulted in the Council making tree preservation orders on the remaining trees on the Disputed Land.  

18.	In April 2012, the Applicant applied to the Council for a certificate of lawful use in respect of the use of the Disputed Land as a garden, following a visit from some Council officers.  That application was refused by the Council on the basis that the Applicant’s evidence did not demonstrate that the Disputed Land had been in use as a garden associated with Number 48 for 10 years without significant interruption or material change in scale.   

19.	Following that decision, the Applicant erected further wooden structures on the Disputed Land, including raised wooden flower beds.  

20.	In September 2013, the Care Quality Commission inspected the Applicant’s nursing home at Number 48, and produced a report indicating that action was needed in a number of areas in order to meet the standards of care required.  In part, this was because too few staff were on duty.  The Applicant indicated that he felt that this report was unfair, but, as a result of it, he determined to close the care home in November 2013, and his since marketed Number 48 (but not the Disputed Land) for sale.    

The Issues 

21.	The Respondents do not dispute that the Applicant is now, and has been since the end of 2007, in possession of the Disputed Land.  I asked Counsel at the outset of the trial whether it was being suggested that a period of less than 12 years possession would justify registration with possessory title, and Mr Varma indicated that he accepted that he would need to show a complete period of 12 years’ possession in order to succeed.  There is some doubt as to that (see the discussion in Jourdan and Radley-Gardner on Adverse Possession at paragraph 21-30 – 21-37), but since the effect of registration with possessory title might be to stop time running, there are good reasons why an Applicant might prefer not to be registered at all than to acquire a possessory title on the basis of a shorter period of possession than 12 years.  

22.	I therefore proceed on the basis that in order to succeed, the Applicant must prove that he had an uninterrupted period of 12 years’ possession.  

23.	Mr Varma also confirmed that he did not rely on any period prior to 1993.  It follows that the Applicant must show that he was in possession by no later than 2001 and retained it, or that he was in possession from 1993 and retained possession until at least 2005.  It follows that if the Applicant was not in possession in 2004 when the Respondents moved in to Number 47, he cannot succeed.

The Legal Framework 

24.	The Applicant must prove that he was in possession of the Disputed Land for the relevant period without the consent of the paper owner.  Possession has 2 elements: 

(a)	Factual possession, which requires that the Disputed Land was in the Applicant’s exclusive physical control, and that he dealt with it as an owner would.   Enclosure is good evidence of adverse possession, but it is not indispensable, nor is it necessarily conclusive.  Simply using the land from time to time is not sufficient to establish factual possession. 

and 

(b)	An intention to possess, meaning an intent to exclude the world at large, including the paper owner in so far as the processes of law allow, manifested to the world at large.
  
25.	The leading case is J A Pye (Oxford) Ltd v Graham [2003] 1 AC 413.   

	The Applicant’s case and his evidence 

26.	The Applicant said the following: 
(1)	When his parents purchased Number 48 in 1986, they were told by their predecessors that the Disputed Land went with Number 48 and they were given a key to a gate in iron railings which then existed opposite the west drive in Number 48.  That gate was of wrought iron construction, like the railings;
(2)	There were no fences demarcating the southern or western boundaries at that time, but his father erected such a fence in 1987; 
(3)	His father had to re-erect the fence in 1988 and 1991 due to “vandalism”;
(4)	His father did not re-erect the fence after 1991.  
(5)	When fence panels became dilapidated, the Applicant or his father would remove them and place them on the eastern boundary, against the garage of Number 47.  The Applicant then placed rails across the gap;
(6)	The contractors responsible for the upkeep of the grounds of Number 48 always also maintained the Disputed Land (but not the fences); 
(7)	The Disputed Land was used as a garden for the care home residents throughout the period, and was used on a daily basis by them (apart from the period between the erection of the new railings by the Council and the removal of a section of the railings by the Applicant).   The residents would be accompanied across the road to the garden by a member of staff.  
(8)	Since the closure of the care home in November 2013, the Applicant and his mother have continued to use the Disputed Land as a garden on a daily basis.
(9)	His father and subsequently he erected signs on the fencing on the Disputed Land.  Although the content of these signs varied over time, they always indicated that the land was private land.  

27.	The Applicant also relied on letters dating back to 2008 from a local resident, Mr Potterton; his gardening contractor, Mr Hillary; and a former employee, Ms Wallace.   No explanation was provided as to why these individuals had not made witness statements or attended to give oral evidence, which was, as Mr Duckworth pointed out,  surprising in light of the fact that the Applicant had relied on 2 of these letters in his application for a certificate of lawful use and little weight had been attached to them.  

The Respondents case and evidence 

28.	The Respondents say that when they arrived in 2004, there was no gate in the railings nor was there any sign that anyone was using the Disputed Land – other than members of the public treating it as part of the Kersal Dale Nature Reserve, who exited to Vine Street, from time to time, by trespassing onto Number 47 via a low wall forming the northern part of the boundary between the Disputed Land and Number 47, rather than scaling the railings bounding the northern side of the Disputed Land.   I should say that it is perfectly possible to see over that wall from Number 47 into the Disputed Land.   

29.	As I have understood the evidence, when the Respondents first acquired Number 47 there was a kennel run along the Number 47 side of the boundary between the Disputed Land and Number 47, behind their garage, enclosed by high fence panels.  They demolished the kennel run and fence as part of garden landscaping works in April 2006, and thereafter they could see into the Disputed Land from their rear garden.  It was not clear to me whether there was anything marking or securing the boundaries of Number 47 from the Disputed Land after this, or when the assorted panels and trellises which I saw in this position were erected.  Ms Stott explained that after the Disputed Land was cleared (which I understood to mean sometime around 2008), their garden became exposed to the Disputed Land, so she planted some brambles and roses in the garden of Number 47 along that part of the boundary.  Once those became established it was no longer possible to see into the Disputed Land from the rear garden of Number 47 without pulling foliage aside.    

30.	The Respondents say that they never saw any resident of the care home using the Disputed Land as a garden (or at all), and categorically denied that monthly maintenance of the Disputed Land was carried out by the Applicant’s gardener.   

31.	Ms Stott explained that after they had purchased Number 47, they started exploring the area, in particular by walking the dog through the Kersal Dale Nature Reserve.  She said they mainly stuck to the paths, but they did occasionally go to the Disputed Land in winter when it was not too overgrown.  She was confident that there was no fence separating it from the Nature Reserve at that time, nor any other indication that it did not form part of the Nature Reserve.  

32.	The Respondents contended that the fence panels lying on the east of the Disputed Land were the remnants of the old kennel run on Number 47, although they did not know how they got there.  

33.	The Respondents also invited me to rely on Ms Regan’s witness statement.  Ms Regan is a Senior ranger in the employ of the Council.  Her statement indicated that during the period 2004-2008 she regularly visited the Nature Reserve and thought that the Disputed Land formed part of it, since there was no fencing or anything else to separate it.    I was informed by Mr Duckworth that although Ms Regan had expected to attend when she prepared her statement, in the event she could not, as the hearing was listed during her annual leave.  I was not told how this came to happen, bearing in mind that the parties are given an opportunity to provide dates to avoid on the listing form.  Notwithstanding, I am prepared to attach some weight to Ms Regan’s evidence, because there is a formal statement containing a statement of truth, though I do of course bear in mind that her evidence has not been tested by cross examination.

Findings 

34.	Mr Duckworth (counsel for the Respondents) criticised the Applicant severely for failing to give proper disclosure and for failing to mention matters in written documents (his witness statement, statement of case, statutory declaration and replies to pre-contract enquiries).  The Applicant’s response was to assert that this was the fault of his solicitor, Mr Mohammed of Messrs Mohammed & Co.  I accept what the Applicant says in this respect.  It is clear that the Applicant and his family had retained Mohammed & Co as their solicitor for many years (since 1999), and the firm had acted on the previous application for adverse possession.  It seems to me perfectly normal for the Applicant to rely on his solicitor to ascertain whether these matters were matters which needed to be mentioned or disclosed.  Furthermore, I have to say that Mr Mohammed did not impress me during the course of the hearing.   He had failed to provide coloured copies of the photographs in the trial bundle, despite a request well in advance from the Respondents’ solicitor that this be dealt with (and indeed, it being a complaint which the Respondents’ solicitor had been making since disclosure); I then adjourned in order that this should be done, and for reasons which I do not fully understand, photocopying and compiling bundles of these photographs (91 pages) took him 3 ½ hours.  Furthermore, during the course of this adjournment, it emerged that the Tribunal had not received a witness bundle.   It seems that Mr Mohammed procured from the clerk and without my knowledge my copy of the trial bundle (which had been left in the hearing room), and copied that.  It seems to me that it ought to have been perfectly obvious to any competent legal representative that it was inappropriate for a bundle containing the judge’s markings to be used for this purpose.  When I asked Mr Mohammed why he had done this, he suggested that he did not know that it was my bundle – but when he had returned from doing the copying, he had come straight into Court and handed that bundle directly to me.  I do therefore accept the Applicant’s answer to the Respondents’ criticisms in relation to the way in which his case was prepared and presented and about the contents of other documents.   

35.	However, that does not mean that I accept the Applicant’s evidence in all respects.     

Issue 1 - Was there a gate prior to 2007?

36.	As regards the existence of the first gate, the only direct evidence (other than the parties’ oral evidence) was a photograph dating from the 1980s.  Mr Varma suggested that this showed a gate.  It is not clear that this was in fact a gate, but doing the best I can from the original of the photograph it seems to me more likely than not that this was a gate.     

37.	There was a straight dispute between the Applicant and the Respondents as to whether the gate (if it had existed at all) had been removed prior to 2004.  There was very little documentary evidence which bore on this question.  However, what does seem clear is that the railings that existed in the mid 1980s had already been replaced prior to 2004.   In the 1980s  photograph (at page 209 in the bundle) the railings appear to have been a continuous run for a considerable distance to the east of the gate.  However, the 2005 photograph (at page 437 in the bundle) shows railings in short sections.  It therefore seems to me that it is possible that the removal of the gate occurred during an earlier fence replacement by the Council, and not when this occurred in 2007.    

38.	On the other hand, it is also possible that the gates were there in 2004, and the Respondents simply did not notice or attach any significance to them at the time (there being another entrance, a turn-stile, from Vine Street to the Nature Reserve from further east along Vine Street).   Furthermore, I accept Mr Varma’s submission that, psychologically, it was consistent with the Applicant’s position for him to have instructed a surveyor to advise when the Council erected their railings if prior to that he had had access through a gate.  

39.	On the other hand, that response would also have been consistent with the Applicant believing that he had paper title to the Disputed Land, and seeking to protect it from being adversely possessed by someone else even if he had not been using it previously.

40.	And, perhaps most tellingly, what I cannot understand is why, if there had been an access in the location of the 1980s gate in 2007, the Applicant did not, in 2008, remove the section of railing that was in the same position as the 1980s gate.  On his case there must have been an area of cleared land inside the Disputed Land permitting the gate to open, and presumably a path leading from that point deeper into the Disputed Land, until Autumn 2007.  So it would have been easier, one would think, for the 2008 access to have been made in the same place, rather than the Applicant having to clear a different area, and create a new path in a different location.    Overall, I am not persuaded that there was any gate into the Disputed Land in 2004. 

Issue 2 - Fencing and Use

41.	The Applicant’s evidence as regards the fencing and use of the Disputed Land was not supported by live evidence from any other witness, or any useful documentary materials.  If the Applicant’s account were correct, it ought to have been possible for him to call a member of staff and/or a contractor to corroborate his account.  Given that 2 previous attempts to secure the land or the use of it failed for want of evidence, it is, as Mr Duckworth says, surprising that a corroborating witness was not produced.  I do not think that the Applicant can blame his solicitor for that – he clearly understood why his previous applications had failed, and that he needed additional evidence of use of the Disputed Land in order to succeed this time.  

42.	Furthermore, it seems to me that what little material I have been provided with is either neutral or suggests that the Applicant’s account is not correct:
(1)	The Bramley Pate report suggests that there was no remaining fencing in 2007 – in its text, but also because a scale plan was annexed providing dimensions for the plot, which appears to have been provided so that the Applicant could set out the boundaries in accordance with earlier OS plan divisions;
(2)	The Applicant’s own statutory declaration dated 9 May 2008 suggests that his father had given up attempting to fence off the Disputed Land (ie suggests that the fencing had become intermittent even before 1993).  
(3)	The photographs do not show anything like the quantity of fence panels which would have been necessary to fence the southern and western boundaries remaining next to the Respondents’ garage.  If, as the Applicant contended, when these panels deteriorated, they were left there, there should have been many more.  The volume is far more consistent with the Respondents’ suggestion that they were the remnants of a kennel run on their land – and a photograph in the trial bundle (at 441b) corroborates the Respondents’ evidence on this point.  However, what is something of a mystery is how and why they were placed in their current location, next to the garage.  What seems most likely is that when the Respondents garden works were done in April 2006, either the contractors thought that as they were in good condition they would put them aside for reuse, or after they had thrown them into the skip or onto the Nature Reserve, someone else took them and put them against the garage for future use.   Incidentally, the fact that at least some of the panels appeared to be in good condition is, of course, also inconsistent with the Applicant’s case that these were part of the boundary fence which had been removed as they deteriorated.
(4)	The Care Quality Commission Inspection report produced following inspections in September 2013 suggests that there were insufficient members of staff to devote time to taking residents to the Disputed Land.  Although the Applicant told me that he was unhappy with that report, and felt that it was unfair generally, I am not prepared to accept that a report of this nature was so inaccurate.   
(5)	The 2008 letter from Ms Wallace (who was a manager of the care home) indicated that the residents enjoyed the view over the Disputed Land.  That letter singularly fails to suggest that she or other members of staff ever took any resident over to the Disputed Land, or that they used it themselves.   (Rather, she says that they walked them to the road, along the footpath at the front and back to the nursing home.  This gives some insight into how mobile the residents were, and makes it unlikely in my view that they would have been able to cross the road and enter the Disputed Land, even when a gate was in place).  This is particularly surprising when one appreciates that the letter was prepared immediately after the Applicant’s first application for adverse possession failed.

43.	Furthermore, I did not find the following parts of the Applicant’s evidence convincing: 
(1)	The Applicant’s description of the old fence as “intact” in 2007 is inconsistent with his evidence that it was “piecemeal”.
(2)	The Applicant accepted that prior to the creation of the benches and structures in or after 2008 there would have been nothing for the residents to sit on in the Disputed Land, but suggested that they nonetheless used it on a daily basis.  I do not think it likely that an elderly person would go into a small area of woodland, with uneven ground, where there was no opportunity to sit down, often if at all – nor that the staff would have encouraged them to do so.  
(3)	For what it is worth, I also consider that even after the works carried out by the Applicant subsequently, the Disputed Land was not suitable for use by elderly people.  The Applicant told me that the paving slabs were laid in 2011 to provide access for a particular wheelchair user that had his own motorised chair, but the paving was uneven, and would not have been easy for elderly people to walk on.  Furthermore, the benches which were present at the time of the site visit did not, with all due respect to the Applicant, look suitable for elderly people – they had no backs, and, in the case of one, was placed upon a raised platform which required a considerable step up to mount.  The platform itself appeared to be rotting as some of the planks “gave” under pressure, and I therefore think it unlikely that the residents were making use of the Disputed Land as a garden when the care home closed in November 2013.    
(4)	The Applicant said that he maintained the fences on the Disputed Land prior to 2007, and that he did not do a good job of this which was why he had the fence replaced in 2007 by his gardener.  However, he also said that he was paying his gardener to do monthly maintenance on the Disputed Land from 2002.  If the gardener was there on a monthly basis, and the Applicant himself was not good at repairing fences, I do not know why the gardener did not take up this task sometime earlier than 2007.  

44.	On the other hand, the Respondents’ evidence was to some extent corroborated by documentary evidence:  there was a photograph showing the fence panels (which the Applicant contends were his father’s and previously lay along the south and west boundaries of the Disputed Land) forming the western boundary of Number 47; and there is also a satellite photograph showing that in 2005 the Disputed Land did not appear (from the air at least) to be cleared.  Furthermore,  although I bear in mind that Ms Regan’s witness statement was untested by cross-examination, I do attach some weight to the fact that she agrees that there was no fence in place in 2004 and the Disputed Land appeared to be part of the Nature Reserve.  

45.	However, one matter which did trouble me about Ms Stott’s evidence was her explanation of a particular sentence in an email she wrote to the Council dated 11 October 2011.  In that email, Ms Stott said “an older neighbour told us that the land had once belonged to the old people’s home across the road”.   In her evidence, she said that in fact what he had said was that they were in the process of trying to do a land grab, but she had not wanted to put the matter in those terms in her letter to the Council.  She confirmed that he had not mentioned any historic use by the care home.  It emerged that the neighbour referred to was Mr Potterton, who had provided a letter in support of the Applicant’s 2008 application.  In that letter, he suggests (although it is not wholly clear) that previous occupiers of Number 48 used to occupy the Disputed Land, but does not suggest that the Applicant or residents of the care home had made use of the Disputed Land.   It therefore seems to me most likely that Mr Potterton told Ms Stott that historically (ie before the period relevant to this application), the Disputed Land had been used with Number 48 and the Applicant was now trying to acquire it by adverse possession, but he did not suggest that it had been so used in the Applicant’s time.     

46.	I therefore find that there were no fences on the southern or western boundaries of the Disputed Land by 2004.  I also reject the Applicant’s evidence as regards the use of the Disputed Land by the residents of the care home. 

Issue 3 - Maintenance 

47.	Ms Wallace’s 2008 letter does, as Mr Varma pointed out, corroborate what the Applicant said about regular maintenance of the Disputed Land.  Mr Varma also relied on the monthly invoices from Mr Hillary dating back to 2002, and his 2008 letter.  However, it seems to me that the invoices are entirely neutral – they simply refer to grounds maintenance and might well have related to the maintenance of Number 48.   Furthermore, both Ms Wallace and Mr Hillary’s letters are vague as to what exactly was done on the Disputed Land and how often.  It may be that Mr Hillary did, in the period prior to 2008, sometimes cut back branches that were overhanging the railings, and clear weeds from the roadside verge to the north of the railings – just as, according to Ms Stott, the owners of other properties on the north side of Vine Street planted flowers against the railings in the roadside verge opposite their properties.     

48.	However, I cannot accept that Mr Hillary (or anyone else on behalf of the Applicant) was regularly entering the Disputed Land to maintain it prior to 2008 – not least because there was not, as I have found, a gate in the railings to enable the contractor to have easy access to the Disputed Land.  The Respondents’ evidence and that of Ms Regan was that the land appeared to be in the same condition as the rest of the Nature Reserve – namely wild and overgrown in summer.  I accept the Respondents’ evidence, and reject the Applicant’s evidence on this point.  

Issue 4 - Notices 

49.	As for the notices: there was no dispute that notices were erected from 2008 onwards.  It was asserted by the Applicant that the signs had been erected from the outset -although both his witness statement, and his statutory declaration, prepared in 2008, appear to read as though it was only being asserted that notices were erected in / after 2008.  There was no documentary evidence of any earlier notices, and had any such signs been present when Mr Bramley reported, I cannot believe that he would have said that the “current owners have apparently never tried to establish this ownership in the past”.  I therefore reject the Applicant’s evidence in this regard.  

Summary and conclusion  

50.	I have found that, by 2004, the southern and western boundaries of the Disputed Land were not fenced off from the Nature Reserve, and that there was no gate (or other means of access) in the northern boundary.  I have found that the care home residents were not then using the Disputed Land (and probably never did so) and that their contractors were not maintaining the Disputed Land at that time.  In the circumstances, I do not consider that the Applicant has discharged the burden of proving that he was in possession for a full period of 12 years.   The Applicant was not exercising any control over the land, or even using it, for a full period of 12 years.  Furthermore, even if he had an intention to possess the land, he was not, as I have found, manifesting that intention.   In the circumstances, the application should be cancelled. 

51.	It follows that I do not need to consider Mr Duckworth’s submission that even if I accepted the Applicant’s evidence in its entirety, the application should nonetheless fail because the acts were insufficient to amount to factual possession.  However, I permit myself to say that I am somewhat doubtful about that because on the Applicant’s case, he controlled the only gate giving access to the Disputed Land.     

52.	For the same reason, I need not consider a further point I raised during closing speeches – namely the significance of the fact that for a period of about 6 months in 2007-2008, on the Applicant’s own case, he was ousted from possession when the Council erected the new railings.  It seems to me that although the law is not certain on this point (see Jourdan and Radley-Gardener at paragraph 6-53 et seq for a summary) the better view is that this would not matter - unless the Council were the paper owner of the land.  Mr Duckworth did not run this case (and in fact the evidence suggested that the Council accepted that they were not), so it seems to me that the Applicant would not be precluded from succeeding, if he had been in possession, by the fact that there was a 6 month interruption in his use of the Disputed Land.   

53.	But, for the reasons I have already given, I find that the Applicant was not in possession in 2004, and accordingly he cannot demonstrate a full period of 12 years’ possession.  I will therefore direct the Chief Land Registrar to cancel his application. 

Dated this 25th day of September 2014

JUDGE STEPHANIE TOZER
By Order of The Tribunal