Mr Justice Henderson:
Introduction and background
- This is an appeal by Mr Steven John Baxter from the decision of a deputy adjudicator to HM Land Registry, Ann McAllister, dated 5 February 2009 ("the Decision") in which she acceded to an application by Mr Thomas Francis Mannion dated 9 August 2007 to rectify the registered title to a field at Slade Way, Chatteris, near Ely, Cambridgeshire ("the Field") and to re-register Mr Mannion as the owner of the Field. Mr Baxter had been registered as proprietor of the Field on 8 May 2006 pursuant to the provisions of Schedule 6 to the Land Registration Act 2002 ("the 2002 Act"), which together with sections 96 to 98 introduced a new regime relating to adverse possession of registered land.
- Mr Mannion was first registered as proprietor of the Field, and a small piece of adjoining land at its south west corner ("the Adjoining Land"), under title number CB 197366 when he purchased it at auction from the receivers of a company called Twigate Ltd in August 1996 for £15,000. The Field and the Adjoining Land together formed an L-shaped parcel of land at the rear of Old Brewery House, a residential block of four flats converted from a former public house and situated in a yard leading to Chatteris High Street. Access could be gained to the Field, either on foot or with vehicles, through the yard, but there was no clearly established right of way for that purpose. The freehold of Old Brewery House has been registered in the names of a Mr and Mrs Hudson since November 2004. They also acquired long leases of two of the flats in the same year.
- The Field is long and narrow, and approximately rectangular in shape. Its long and straight north-western boundary measures about 250 metres, and its width is about 25 metres. The opposite, south-eastern, boundary is more irregular, and now fronts onto a small housing estate. The Adjoining Land is roughly 25 metres square, and forms the short limb of the L-shape immediately behind and to the south of Old Brewery House. The land was in a dilapidated and neglected state when Mr Mannion bought it. He had no immediate use for the land, and bought it for its development potential.
- Mr Baxter was born in 1957 and (as the Adjudicator found) 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. He now has only one horse which is used for weddings, but there was a time when he had many more horses and owned or had the use of a 20 acre field near Wisbech, as well as a field in Chatteris which he leased from the Council. The Adjudicator went on to say, recording Mr Baxter's oral evidence:
"28. [Mr Baxter] 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."
As will appear, much of this evidence was not accepted by the Adjudicator, who found that Mr Baxter had, at times, kept one horse, and sometimes more, on the Field, but horses were not on the Field every day.
- In August 2005 Mr Baxter, through his then solicitors, made an application to the Peterborough District Land Registry for registration of the Field in his name. The application was made under paragraph 1(1) of Schedule 6 to the 2002 Act, which provides that:
"A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application."
- In the statutory declaration which he lodged in support of the application, apparently dated 9 November 2005, Mr Baxter stated his belief that the Field had formerly belonged to a veterinary surgeon, Mr Jackson. He continued:
"After the surgery had closed down, I noticed that the field was not being used and appeared to have been abandoned. I was not able to establish who was the owner of the field and after a few months decided that I would pasture some of my horses there. I began putting my horses into the field in 1985 and have done so continuously since.
4. I was using the land daily year after year and in time I came to consider myself the owner. Until my solicitor recently made an index map search I was completely unaware that title was registered and that the land formed part of CB 197366. I had exclusive possession of the land and had assumed that the true owner had for some reason abandoned it.
5. I usually have two or three horses or ponies on the field at any time and over the years have made the boundaries (which previously consisted of trees and hedging) more secure by putting up barbed wire and have from time to time cut back the boundary trees and hedges. The horses keep the grass down and there is old stabling on the land which is used a shelter during hard weather.
6. There are no services on the land and I bring water from the house (by roller tub) together with feed. I access the field leading my horses on foot through the grounds of the former public house along the route coloured brown on the attached plan. Access to the field itself is through a gate which I keep locked and bolted.
7. As stated above I have used the field continuously since 1985 as a pasture for my horses without payment or permission from anyone. At no time has any person made themselves known to me as owner of the field nor have I been asked to leave. I have for many years now treated the field as my own and have not shared occupation or use of it with anyone else. My occupation has not been under a lease, tenancy or licence nor with the consent of any person."
- I will need to describe the statutory scheme for registration of an adverse possessor in more detail later in this judgment. For now, it is enough to say that notice of an application under paragraph 1 of Schedule 6 must be given by the registrar to the proprietor of the estate to which the application relates (paragraph 2(1)), and the notice must include notice of the effect of paragraph 4 (see below). The recipient of the notice may require that the application be dealt with under paragraph 5, in which case the applicant is only entitled to be registered as the new proprietor if one of the three conditions specified in paragraph 5 is satisfied. Those conditions are very limited in extent, and in broad terms confine the right of registration to cases:
(a) where there is a proprietary estoppel in the applicant's favour, and the circumstances are such that he ought to be registered as the proprietor;
(b) where the applicant is for some other reason entitled to be registered as the proprietor; or
(c) where the land in question forms part of a general boundary the exact position of which has not been determined under the Land Registration Rules.
However, paragraph 4 provides that, if an application under paragraph 1 is not required to be dealt with under paragraph 5, "the applicant is entitled to be entered in the register as the new proprietor of the estate".
- There is no dispute that notice of Mr Baxter's application was duly served on Mr Mannion as the registered proprietor of the Field, and that it gave him the requisite period of 65 business days' notice (or approximately three months) within which to respond. The notice was dated 1 February 2006, and it stated in bold type that if Mr Mannion objected to the proposed application, or wished to give counter notice to the Chief Land Registrar, he must do so before 12 noon on 8 May 2006. The notice went on to say:
"If we do not hear from you before then the application will be completed."
The notice was accompanied by detailed explanatory notes, the Land Registry's Practice Guide 4 containing additional information, and a form NAP for Mr Mannion to fill in if he wished the application to be dealt with under paragraph 5 of Schedule 6.
- The form NAP could hardly be simpler. It is headed "Notice to the Registrar in respect of an adverse possession application". The first four panels on the form have to be filled in with the title number of the property affected by the application, the address or description of the property, the name of the applicant (i.e. in the present case Mr Baxter), and the name and address of the person returning the form. Panel 5 contains three boxes, with the instruction "Place "X" in the appropriate box or boxes". The wording opposite the boxes is as follows:
"[Box 1] I consent to the registration of the application(s)
[Box 2] I require the registrar to deal with the application under Schedule 6, paragraph 5, to the Land Registration Act 2002
[Box 3] I object to the registration on the grounds stated in panel 6"
Panel 6 then gives space for details of the grounds of any objection, and panel 7 has to be filled in with the signature of the person returning the form (or the conveyancer acting for him) and the date.
- Unfortunately, Mr Mannion failed to return the form NAP within the specified time or at all. Nor was any written communication made by him or on his behalf with the Land Registry until 8 September 2006, four months after the expiry of the stipulated period, when solicitors newly instructed by him, Messrs Taylor Vinters, wrote to the Peterborough District Land Registry explaining why the form had not been returned in time and asking for an extension:
"We are newly instructed by Mr Mannion. Mr Mannion has advised us that he was unable to deal with the Notice within the required time and we set out his reasons below.
Our client had originally instructed a firm of solicitors to deal with various other matters and he naturally sought that solicitor's advice when he received the Notice. His solicitor advised him that he was in fact unable to deal with this matter on his behalf because it was not within his usual practice.
Before he could instruct new solicitors, our client suffered ill health. Following this, Mr Mannion's only brother died, and he had spent a few weeks in Ireland prior to his brother dying. Mr Mannion's son then had a baby boy, who sadly died at three weeks old, having contracted meningitis.
Following these rather tragic events, Mr Mannion was unwell for some considerable time. Mr Mannion then spent time convalescing in North America attending his godson's wedding.
Understandably our client was mentally unable during this period to deal with the Notice and the instruction of new solicitors.
In light of our client's grounds for delay, we sincerely hope that you are able to consider our client's request for an extension in which to deal with the Notice."
- The Land Registry replied on 11 September 2006, saying that since no response had been received to the notice dated 1 February 2006, the matter had been completed on 8 May 2006, and the Field had been removed from Mr Mannion's title and registered in Mr Baxter's name under title number CB 304178. In those circumstances, no extension of time could be offered. The writer went on to say that, if Mr Mannion wished to pursue the matter, he would need to lodge an application for rectification against Mr Baxter's new title.
- Mr Mannion followed this advice, and on 26 September 2006 he made an application under paragraph 5(a) of Schedule 4 to the 2002 Act, which provides that the registrar may alter the register for the purpose of "correcting a mistake". There is no definition or statutory guidance on what constitutes a "mistake" for this purpose. Mr Mannion's case, in essence, was that the registration of Mr Baxter as proprietor of the Field pursuant to paragraph 4 of Schedule 6 was a mistake, because he had never in fact been in adverse possession of the Field for the period of ten years ending on the date of his application under paragraph 1 of Schedule 6 on 16 August 2005.
- It is convenient at this point to note the provisions of paragraph 6 of Schedule 4, which applies to the power of alteration of the register under paragraph 5 "so far as relating to rectification". By virtue of paragraph 1 of Schedule 4, "rectification" in this context means an alteration which:
"(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor."
There can be no doubt that the alteration sought by Mr Mannion would, if granted, involve rectification, because it would involve the correction of a mistake and would also prejudicially affect the title of Mr Baxter as the recently registered proprietor of the Field.
- In these circumstances, sub-paragraphs (2) and (3) of paragraph 6 applied. They read as follows:
"(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless –
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration."
Accordingly, there now being no dispute that the Field was in Mr Baxter's possession after his registration as proprietor, the registrar had no jurisdiction to accede to Mr Mannion's application unless one of the specified conditions in paragraph 6(2) was satisfied.
- Meanwhile, Mr Baxter had not been idle, and soon after his registration as proprietor of the Field he made a further application, dated 21 July 2006, to register a right of way on foot and with vehicles over the yard of Old Brewery House, for the purpose of gaining access to the Field. In his statutory declaration in support of this application, dated 20 June 2006, Mr Baxter said that he was the registered proprietor of the Field, and continued:
"I usually have two or three horses or ponies on the land at any time and over the years have made the boundaries more secure by putting up barbed wire. I have also put in a gate 12 feet wide and 5 feet high at the point where the land joins the former car park of the Old Brewery House …
4. Since 1985 when I started keeping horses on the [Field] I have continually used the access way shown hatched blue on the attached plan across the car park of the Old Brewery House from the High Street to gain access to the [Field] both on foot and with a hand barrow for the regular feeding of my horses which is done twice daily on a seven day a week basis.
5. I have also used the drive way for access by vehicles on average about once a month. This is primarily for the delivery of hay and straw to the [Field] but also from time to time to transport horses to and from the [Field].
6. I have used the access way continuously since 1985 as a right of way with or without vehicles for access to the [Field]. At no time has any person made themselves known to me and objected to my use of the right of way. I have not at any time been called upon by any person to make any payment for this user."
- Notice of this application was duly given to Mr and Mrs Hudson, and on 12 September 2006 their solicitors wrote to the Land Registry recording the Hudsons' firm objection to it on a number of grounds. The grounds were partly based on the route of the alleged right of way as shown on the plan annexed to Mr Baxter's application, which was said to be physically impossible, but the Hudsons also took issue with the alleged nature and frequency of the acts of user relied upon by Mr Baxter as entitling him to a prescriptive right of way. At a later stage, Mr Baxter made a supplementary statutory declaration correcting the position of the claimed right of way from a straight line to a line with a curve in it, thereby skirting the parking places and other obstacles which were said (no doubt correctly) to make the original claim impossible.
- Mr Mannion supported the Hudsons in their opposition to the right of way claim, and for their part the Hudsons relied on Mr Mannion's claim to regain his title to the Field, because if the latter claim succeeded Mr Baxter would no longer own the dominant tenement for the benefit of which the prescriptive right of way was claimed. In that event, it would be clear that Mr Baxter's claim could not succeed. I should add that it was not necessary for Mr Mannion to rely on the access to the Field through the yard, because I was told that he also owns some adjoining land to the south which permits access to the Field from Slade Way, next to the housing estate. For these reasons, Mr Mannion and the Hudsons joined forces to oppose Mr Baxter, and (as the Adjudicator recorded in paragraph 3 of the Decision) Mr Mannion disclaimed any right of way he might have acquired by reason of Mr Baxter's use.
- On 10 December 2007 Mr Baxter apparently transferred the Field to a developer for a consideration of £250,000 (paragraph 11 of the Decision).
- In due course both Mr Mannion's application ("the ownership claim") and Mr Baxter's application ("the right of way claim") were referred to the Adjudicator, and directions were given for them to be heard together. The parties exchanged statements of case and witness statements, and the hearing took place at Cambridge County Court on 6 and 7 January 2009, following a site view on the previous day. The Adjudicator heard oral evidence from a number of witnesses, including (in the ownership claim) Mr and Mrs Baxter and Mr Mannion, all of whom were cross-examined. I was told that the other witnesses in the ownership claim who gave oral evidence and were cross-examined were:
(a) Ms Amanda Hedges, a property consultant (now retired) who acted for Mr Mannion in connection with the purchase of the site in 1996, and visited it with him shortly before the auction;
(b) Mr Mark Dyer, a civil engineer and contracts manager employed by Mr Mannion's building company, T Mannion & Co Ltd, who inspected the whole of the site with Mr Mannion in August 2006, and also visited it on two subsequent occasions between July 2003 and January 2004; and
(c) Mr Stephen Lucas, a chartered town planner, who was retained by Mr Mannion to review the planning potential of the site and visited it three times in 2004 and took photographs.
- Apart from the witnesses who gave oral evidence, there were a number of witnesses on each side whose statements were read and taken into account by the Adjudicator, but who were not required to attend for cross-examination. They included, for Mr Mannion:
(a) Mr Robert Kirkham, a property developer who visited the site at Mr Mannion's request in January 2005 to consider the possibility of purchasing it;
and for Mr Baxter,
(b) a number of neighbours and relatives, including his son in law Mr Brian Smith. The evidence of these witnesses is summarised in paragraphs 43 to 47 of the Decision. Counsel appearing for Mr Mannion and the Hudsons, Mr Tom Weekes, who has also appeared for Mr Mannion on this appeal, was content for this evidence to be admitted without challenge, with the exception of Mr Smith's evidence. No explanation was given why Mr Smith could not attend for cross-examination (paragraph 43 of the Decision).
- For completeness, I should say that Mr Baxter was also represented at the hearing by counsel, Mr Andrew Gore.
The Decision of the Adjudicator
- The Adjudicator began by considering and rejecting an argument of law advanced by Mr Baxter, to the effect that the register should not be altered even if he was unable to show that he was in adverse possession of the Field for the requisite period of ten years. It was submitted that the registrar must have been satisfied with the information before him when Mr Baxter was registered pursuant to paragraph 4 of Schedule 6, and accordingly there was no "mistake" within the meaning of paragraph 5(a) of Schedule 4.
- The Adjudicator said in paragraph 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 Act 2002 (2004)."
- The footnote to which the Adjudicator referred, in the monograph by Charles Harpum and Janet Bignell on the 2002 Act, reads as follows:
"If an applicant was registered under the scheme provided by the LRA 2002 and it then transpired that he had not in fact been in adverse possession for 10 years, his registration would be a mistake, and there would, therefore, be grounds for an application for rectification of the register …"
- The Adjudicator then said that the "sole issue" which arose was "whether Mr Baxter is able to show that he was in adverse possession of the Field for the requisite period". She referred to paragraph 11(1) of Schedule 6, which 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, and said that the law to be applied was that most recently set out in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419. It is common ground that the Adjudicator here correctly directed herself on the meaning of "adverse possession" in the 2002 Act, and the need to answer that question by reference to the principles applicable to unregistered land under section 15 of the 1980 Act.
- Before coming on to the evidence, the Adjudicator next dealt briefly with the right of way claim. She pointed out that, if Mr Mannion succeeded in the ownership claim, Mr Baxter did not own any land to which the right of way could attach. She recorded that, at the conclusion of the evidence, it was accepted on behalf of the Hudsons that there was clear evidence that the yard was used as access to the Field both on foot and with vehicles, although it was disputed that there was evidence of any vehicle having used the gate leading to the Field. She rejected an argument that Mr Baxter's user could not be as "of right" during the period when his occupation of the Field was unlawful. She then said, anticipating her conclusion on the ownership claim, that Mr Mannion succeeded in his application to be reinstated 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."
- It seems reasonably clear from this that, if the Adjudicator had decided the ownership claim in Mr Baxter's favour, the right of way claim would also have succeeded. Counsel now appearing for Mr Baxter, Mr Alan Steinfeld QC leading Ms Helen Galley, submitted that this was the position, and I did not understand Mr Weekes to disagree.
- In the next section of the Decision (paragraphs 19 to 58) the Adjudicator set out the relevant background and reviewed the oral and written evidence before her. She then set out her conclusions on the evidence in a passage which I should quote in full:
"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 [been] 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 or 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."
- In the final section of the Decision, headed "The Law" (paragraphs 64 to 73), the Adjudicator correctly summarised the relevant legal principles, as they had been recently re-stated in Pye v Graham, and recorded the main submissions made by counsel on each side. She then stated her conclusions on the ownership claim:
"71. In my judgment Mr Baxter was not in factual possession during the relevant period, namely August 1996 to August 2006, and furthermore 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 …"
The issues on the appeal
- In his Appellant's Notice Mr Baxter challenges the Decision both on the law and on the facts. By virtue of section 111 of the 2002 Act, an appeal against a decision of the Adjudicator lies to the High Court, and subject to one immaterial exception lies on questions of fact as well as issues of law.
- On the law, Mr Baxter's essential submission, as clarified by Mr Steinfeld QC in oral argument, is that there was no "mistake" within the meaning of paragraph 5(a), because Mr Baxter was registered as proprietor of the Field in accordance with the statutory procedure, and Mr Mannion was fully aware of Mr Baxter's application. His registration was not the result of any mistake, but rather of Mr Mannion's failure to serve a counter notice in good time. If that contention is rejected, Mr Steinfeld advanced three further arguments, none of which was foreshadowed in the Appellant's Notice but to which no (or only muted) objection was taken on that score by Mr Weekes:
(a) the Adjudicator misdirected herself in relation to the burden of proof on the ownership claim, holding that it was for Mr Baxter to show that he had been in adverse possession for ten years, not for Mr Mannion to show the contrary;
(b) she also misdirected herself in holding that Mr Baxter was not in possession of the Field even after his registration as proprietor; and
(c) following on from (b), her treatment of the preconditions for rectification in paragraph 6(2) of Schedule 4 was cursory, unreasoned and unsupported by appropriate findings of fact.
- On the facts, Mr Baxter's principal contention is that the Adjudicator's finding that he was not in adverse possession was against the weight of the evidence when considered in the light of the relevant authorities. An alternative way of putting the point was that, if she had not misdirected herself on the burden of proof, the undisputed facts, taken together with the findings that she either made or ought to have made on the facts in dispute, were insufficient to justify her conclusion.
Was there a mistake?
- I will begin with the crucial question whether there was a mistake within the meaning of paragraph 5(a), for without such a mistake the registrar had no jurisdiction to alter the register in Mr Mannion's favour. I will assume, for the purposes of testing this argument, that the Adjudicator's findings of fact are unchallenged, and in particular that she was correct in her conclusion that Mr Baxter was not in adverse possession of the Field during the relevant ten year period. (I note in passing that the Adjudicator was clearly wrong to say in paragraph 71 of the Decision that the relevant period ran from August 1996 to August 2006, because the period ends on the date of the application for registration, and there is no dispute that the application was made in August 2005, not 2006. However, nothing turns on this minor slip.)
- In support of his argument that no mistake had been made, Mr Steinfeld relied on the statutory scheme of the 2002 Act. He pointed out that, by virtue of section 96, the periods of limitation in sections 15 and 16 of the Limitation Act 1980 (which enable a squatter to obtain title to land after 12 years' adverse possession) are disapplied in relation to registered land, with the result that section 17 of the 1980 Act "does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him": section 96(3). Instead, registered land is subject to the new regime set out in Schedule 6.
- The salient features of that regime may be summarised as follows:
(a) A squatter who has been in adverse possession for the requisite ten year period may apply to be registered as the proprietor of the land: paragraph 1(1). For this purpose, adverse possession has the same meaning as in relation to unregistered land: paragraph 11(1).
(b) The application is then followed by the procedure of notice and counter notice which I have already described. The proprietor may require the application to be dealt with under paragraph 5, in which case the applicant is only entitled to be registered if one of the three specified conditions is satisfied. Those conditions are very limited in nature, and in the vast majority of cases none of them will apply. It follows that the registered proprietor will normally have a complete and unassailable answer to the application. However, if the proprietor fails to exercise his right to require the application to be dealt with under paragraph 5, by giving a counter notice within the stipulated 65 day period (for which see Rule 189 of the Land Registration Rules 2003), the applicant is entitled to be registered as the proprietor of the land under paragraph 4. No jurisdiction to extend the 65 day period is conferred either on the registrar or on the court.
(c) Where an application under paragraph 1 is rejected, paragraphs 6 and 7 (which I have not so far mentioned) come into play. Their broad effect is that the proprietor has a period of two years from the date of rejection of the application within which to obtain possession of the land from the squatter, by judgment or eviction following a judgment, or to begin possession proceedings against him. If the proprietor fails to act in one of these ways, the squatter may then make a second application to be registered, but only if he has been in adverse possession of the land from the date of the original application until the last day of the two year period. Since the original application could only be made after ten years' adverse possession, and since a further period of at least three months will normally have elapsed before the original application is rejected, it follows that the second application can only succeed where the squatter has been in undisturbed adverse possession of the land for a period of at least 12 years before the second application is made. If, however, such an application can be made, registration of the applicant as the new proprietor is then automatic, whether or not anybody opposes it: paragraph 7.
- Mr Steinfeld also relied on the fact that registration under paragraph 4 is by no means a foregone conclusion, even in cases where no counter notice is served, because the registrar will still need to be satisfied that the evidence submitted by the applicant is prima facie sufficient to satisfy the test in paragraph 1(1), namely that he has been in adverse possession of the land for the period of ten years ending on the date of the application. This appears from the Land Registry's Practice Guide 4, which explains that the outcome of an application depends on an assessment of all the evidence produced by the applicant, and will usually be supplemented by a report from a surveyor appointed by the Land Registry to inspect the land. Each application is examined on its own merits, and notice will only be given to the registered proprietor under paragraph 2 of Schedule 6 "[i]f, from the evidence we have seen, we believe it to be more likely than not that the squatter is entitled to apply to be registered" (paragraph 6.3 of the Guide).
- Against this background, Mr Steinfeld submits that the provisions of Schedule 6 are carefully designed to maintain a balance between the interests of the squatter and those of the registered proprietor, and that the consequences of failure to serve a counter notice are clearly spelt out. The registration of Mr Baxter involved no mistake, because the registrar must have been satisfied that the evidence in his statutory declaration met the threshold referred to in the Practice Guide, without the need to appoint a surveyor to inspect the Field. Notice of the application was duly served on Mr Mannion, and admittedly came to his attention. Nevertheless, he neglected to serve a counter notice within the generous time allowed, even though he was sent a blank form NAP together with detailed explanatory material. In these circumstances, says Mr Steinfeld, Mr Mannion's failure to respond was tantamount to consent, and he has only himself to blame for what has happened.
- The kinds of mistake at which paragraph 5(a) of Schedule 4 is directed, according to Mr Steinfeld, are mistakes of a procedural nature, for example where by an oversight notice of the application is not given to the proprietor pursuant to paragraph 2 of Schedule 6, or where the notice is validly served in accordance with the detailed provisions on service of notice in Rule 199, but the notice does not in fact come to his attention, e.g. because it is lost in the post, or because he is no longer living at the address for service which every registered proprietor is required to provide under Rule 198(1).
- These submissions were attractively advanced by Mr Steinfeld, but I am unable to accept them. I can see no good reason to confine the jurisdiction of the registrar under paragraph 5(a) to the correction of mistakes of a procedural nature. In my judgment there is a mistake in the register, which the registrar has power to correct, if any statutory condition which is a prerequisite for registration is shown not to have been satisfied. Thus, in the present context, Mr Baxter's registration was a mistake if it can be shown that he was not in fact in adverse possession of the Field for the ten year period ending on 19 August 2005, because if that is the case he never satisfied the precondition in paragraph 1(1) of Schedule 6, and was therefore never entitled to apply for registration in the first place. The precondition refers to a factual test (ten years' adverse possession) which has to be satisfied, and upon which a squatter's right to apply for registration is predicated. The paragraph does not say that a squatter may apply for registration if he can produce prima facie evidence of adverse possession during the ten year period, or if he can persuade the registrar that his claim to have been in adverse possession is more likely to succeed than not. Those may be appropriate threshold tests for determining whether the application should be allowed to proceed at all, and I certainly wish to cast no doubt on the Land Registry's practice set out in Practice Guide 4; but it is important not to confuse a procedural filter of that nature with the substantive test, which is clear and unqualified.
- It follows, in my view, that the procedure set out in paragraphs 2 to 5 of Schedule 6 is not necessarily conclusive of the applicant's entitlement to be registered. It is true that the applicant will automatically be registered under paragraph 4 if no counter notice is served requiring the application to be dealt with under paragraph 5; but it will still be open to the former proprietor to argue that the registration was a mistake, on the ground that the applicant did not satisfy the test of ten years' adverse possession. I therefore agree with the view expressed by Charles Harpum and Janet Bignell in their book on the 2002 Act (see paragraph 24 above), and with the Adjudicator's conclusion on this point in paragraph 13 of the Decision.
- If further support is needed for this conclusion, it may be found in three arguments advanced by counsel for Mr Mannion, each of which I accept.
- First, the general policy of the 2002 Act was severely to limit the circumstances in which a squatter could acquire title to registered land, and to offer greater security of title for a registered proprietor than existed under the previous law. See generally the joint paper of the Law Commission and HM Land Registry, Land Registration for the Twenty-First Century: a Conveyancing Revolution (2001, Law Com No. 271), chapter 14, and compare the observations of Lord Bingham of Cornhill in Pye v Graham at paragraph 2. In the light of this policy, it would be very strange if a registered proprietor could, for the first time, be at risk of irrevocably losing his land to a squatter who had never in fact been in adverse possession. It would also be a wholly disproportionate penalty for failure to serve a counter notice, especially where (as in the present case) there are extenuating circumstances which help to explain, even if they do not fully excuse, the failure.
- Secondly, Mr Baxter's interpretation of the 2002 Act would be an invitation for fraud. It would potentially reward a dishonest applicant who succeeded in persuading the registrar that he had been in adverse possession by telling lies about the nature and extent of his use of the land. Once the registrar had been persuaded to allow the application to proceed, the applicant would then be entitled to registration if, for whatever reason, no counter notice was served by the registered proprietor.
- Thirdly, if the registration under paragraph 4 of a squatter who is unable to satisfy the adverse possession test does not involve a mistake which can be rectified, it seems that the former proprietor would be precluded from claiming an indemnity for his loss pursuant to section 103 and Schedule 8 to the 2002 Act. So far as material, all of the circumstances set out in paragraph 1(1) of Schedule 8 in which a person is entitled to claim an indemnity depend on a mistake having been made. In the absence of a mistake, no right to an indemnity can arise. Such an interpretation of the 2002 Act would fail to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the former owner's fundamental rights, and so would breach Article 1 of the First Protocol of the European Convention on Human Rights: see J A Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 at paragraph 53. Accordingly, section 3 of the Human Rights Act 1998 would require the court, if possible, to adopt an interpretation of the 2002 Act which enabled the register to be rectified in such circumstances. This could easily be achieved by construing the concept of "mistake" in paragraph 5(a) so as to include a case where the adverse possession test in paragraph 1(1) of Schedule 6 had not been satisfied, but the applicant had nevertheless been registered under paragraph 4.
The Facts
- It will be convenient to defer consideration of the subsidiary points of law raised on Mr Baxter's behalf until after I have considered his challenge to the Decision on the facts.
- In my judgment this challenge can be disposed of quite shortly. There is no suggestion that the Adjudicator misdirected herself on the law relating to adverse possession. She had the benefit of a site visit, and she heard the oral evidence of a number of witnesses, including Mr and Mrs Baxter, during a hearing which lasted for two days. Even though it is said that her conclusions, or some of them, were against the weight of the evidence, no transcript of the hearing has been obtained, and the short appeal bundle provided for this court did not even include the witness statements. The skeleton argument of junior counsel in support of the appeal concentrated mainly on legal issues, and made only a few general criticisms of the Adjudicator's findings of fact.
- Building on these unpromising foundations, Mr Steinfeld nevertheless argued that the Adjudicator was wrong to conclude that Mr Baxter had not been in adverse possession of the Field. He submitted that she ignored the impact of the uncontested evidence of those of Mr Baxter's witnesses who were not required to attend for cross-examination, that this evidence was sufficient to establish a prima facie case of adverse possession, and that the evidence of what Mr Mannion's witnesses had seen on their sporadic visits to the Field, even if accepted at face value, was insufficient to rebut that case.
- The Adjudicator clearly had the evidence of Mr Baxter's witnesses well in mind, because she summarised it in paragraphs 43 to 47 of the Decision. In view of the significance which Mr Steinfeld attaches to it, I will quote those paragraphs:
"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 …
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 take 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 ten or twenty 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, No. 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 No. 94 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."
- However, this was only part of the evidence before the Adjudicator, and as I have already pointed out she rejected much of Mr Baxter's own evidence about his use of the Field, including in particular his repeated assertion that horses were on the Field every day. She also made important findings of fact about the boundaries of the Field:
(a) In paragraph 37 she accepted Mr Mannion's evidence that it was always possible to gain access to the Field through gaps in the long eastern boundary, which consisted to a large extent of hedging. She said that 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". She also rejected Mr Baxter's evidence that it had been impossible, until recently, to gain access to the Field from Slade Way: "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".
(b) In paragraph 39, she accepted Mr Baxter's evidence that there had always been a gate in the same position, but did not accept his evidence that it had always been kept locked and bolted.
(c) In paragraph 59, she found that it was at all times possible, until very recently, to gain access to the Field through gaps in the hedges.
(d) In paragraph 61, she found that the work done by Mr Baxter 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".
- In addition, the Adjudicator expressly rejected Mr Baxter's evidence that he seeded the land every year and sprayed it regularly: paragraph 62. She also made the important finding 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" : ibid. It should be recalled that the visits to the Field of which Mr Mannion's witnesses gave evidence included visits both at the beginning and at the end of the ten year period for which Mr Baxter claimed to have been in uninterrupted adverse possession: see paragraphs 19 and 20 above.
- In the light of this evidence, it seems to me impossible to fault the Adjudicator's conclusion that Mr Baxter was not in factual possession of the Field during the relevant period, and that he also lacked the necessary intention to exclude the world at large. It was her duty to review and evaluate all the evidence before her, both written and oral, and I can find no indication that she failed to discharge this duty. Her conclusions were ones which were open to her on the evidence, and she had the great advantages, denied to an appellate court, of a site visit, and of seeing and hearing the witnesses who gave oral evidence. She plainly found Mr Baxter to be an unreliable witness, and her comment at the end of paragraph 63 shows that she was alert to the need to assess the credibility of Mr Baxter and his witnesses.
The burden of proof
- I come now to Mr Steinfeld's argument that the Adjudicator misdirected herself on the burden of proof. There can be no doubt, to my mind, that the burden lies on an applicant for rectification to show, on the balance of probabilities, that there is a mistake in the register. This follows from the general principle that the burden of proof lies on the party who has to establish a proposition in order to succeed in his claim; and Mr Weekes did not seek to argue the contrary. Accordingly, the burden lay on Mr Mannion to prove that Mr Baxter had not been in adverse possession of the Field for the ten year period, not on Mr Baxter to prove the contrary. The position is therefore different from an application by a squatter for registration under paragraph 1(1) of Schedule 6, where the burden lies on the applicant to satisfy the adverse possession test.
- I agree with Mr Steinfeld that the Adjudicator appears to have lost sight of this distinction, and by implication to have misdirected herself on the burden of proof, when she said in paragraph 14 that the sole issue arising on Mr Mannion's application was "whether Mr Baxter is able to show that he was in adverse possession of the Field for the requisite period". A similar error is arguably apparent at the beginning of paragraph 12, when she said that one of the points taken by counsel on behalf of Mr Baxter was 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". However, in this context I suspect that counsel was referring, correctly, to the burden that lay on Mr Baxter in relation to his application for registration under paragraph 1(1).
- The question which I have to consider is whether the error arguably invalidates the Adjudicator's conclusion on the issue of adverse possession. If it did, I think the appropriate course would be to remit the case for her to reconsider her findings of fact. Mr Steinfeld submitted that this would be the right thing to do, if I felt unable to decide the appeal in Mr Baxter's favour myself, because the error must have coloured the Adjudicator's whole approach to the evidence, and in particular may have encouraged her to attach insufficient weight to the uncontested evidence of Mr Baxter's witnesses. Mr Weekes submitted that, viewed realistically, the issue of adverse possession did not turn on the burden of proof, and there is no indication anywhere in the Adjudicator's discussion of the evidence that she fell back on the burden of proof in order to resolve a disputed point. She had to decide the question one way or the other, in the light of the ample evidence before her, and the error made no practical difference to the outcome. Mr Weekes supported his submission by referring me to the decision of the Court of Appeal in Stephens and another v Cannon and another [2005] EWCA Civ 222, [2005] CP Rep 31, where Wilson J (with whom Arden and Auld LJJ agreed) reviewed the authorities on the question when a court is entitled to decide a disputed issue of fact by resort to the burden of proof and derived a number of propositions from them (pages 506 to 507), including the following:
"(a) The situation in which the court finds itself before it can despatch a disputed issue by resort to the burden of proof has to be exceptional.
(b) Nevertheless the issue does not have to be of any particular type. A legitimate state of agnosticism can logically arise following enquiry into any type of disputed issue …
(c) The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has striven to do so, it cannot reasonably make a finding in relation to a disputed issue."
- I accept the submissions of Mr Weekes on this point. It is easy to understand how the error came to be made, especially as the Adjudicator was also hearing the right of way application at the same time, in respect of which the burden of proof lay on Mr Baxter. However, the error was a significant one, and if I felt that it might have made a real difference to the result I would not hesitate to remit the matter to the Adjudicator for reconsideration. But I can find no indication that the burden of proof played any part in her review and evaluation of the evidence, and I am satisfied in all the circumstances that she would have come to exactly the same conclusion.
The conditions in paragraph 6(2) of Schedule 4
- I have already set out the relevant provisions of paragraph 6 of Schedule 4: see paragraphs 13 and 14 above. These provisions afford an important additional protection to a proprietor who is in possession of land in respect of which an application for rectification is made. Unless the proprietor consents, no alteration to the register may be made unless one of the conditions in paragraph 6(2) is satisfied, that is to say unless he has by fraud or lack of proper care caused or substantially contributed to the mistake, or it would for any other reason be unjust for the alteration of the register not to be made.
- The Adjudicator dealt with this part of the case very briefly in paragraph 72 of the Decision. She seems to have taken the view that, because Mr Baxter had not been in adverse possession of the Field for the ten years up to August 2005, it followed that he was not in possession of it as at the date of Mr Mannion's application for alteration of the register. On that footing, paragraph 6(2) would not apply; but if it did apply, she clearly considered that "both limbs" of the subparagraph were satisfied, although she did not differentiate between the four possible permutations under the first limb (the test will be satisfied if either fraud or lack of proper care has either caused or substantially contributed to the mistake).
- The reference to "land in possession" in paragraph 6(2) has to be construed by reference to section 131(1), which provides (so far as material) that land is in the possession of a registered proprietor "if it is physically in his possession". It was common ground before me that Mr Baxter has indeed been in physical possession of the Field since he was registered as its proprietor in May 2006, and it was no part of Mr Mannion's case before the Adjudicator that Mr Baxter was not in possession of the Field for the purposes of paragraph 6(2). The Adjudicator was therefore clearly wrong to proceed on the basis that paragraph 6(2) did not apply, and in order to accede to Mr Mannion's application she had to be satisfied that one of the stated conditions was met.
- Mr Steinfeld was in my view rightly critical of the Adjudicator's brief reasoning in paragraph 72, because it is impossible to tell which of the alternative tests under the first limb she considered to be satisfied, and also what "other reason" she relied upon under the second limb. Mr Steinfeld submitted that the Adjudicator could not properly make a finding of fraud or lack of proper care without identifying the offending conduct of Mr Baxter's and explaining how it either caused or substantially contributed to the mistake. In particular, he submitted that findings of fraud require both particularity and a solid evidential foundation. With regard to the second limb, he submitted that it was again incumbent on her to identify the "other reason" she relied upon, and that the reason must as a matter of logic be something other than the mere existence of the mistake, because in that case the requirement would be emptied of all content.
- While not conceding that the Adjudicator's conclusion on the first limb could not stand, at any rate without the question being remitted to her for fuller findings of fact, Mr Weekes wisely concentrated his submissions on the second limb. He argued that it would be unjust for the register not to be rectified, for the following main reasons:
(a) Mr Baxter was never entitled to be registered as proprietor of the Field.
(b) He only achieved registration by providing misleading evidence to the registrar that he had been in possession of the Field, including at least one statement that was plainly untrue (namely that there were horses on the Field every day).
(c) Accordingly, his status as a proprietor in possession of the Field since 2006 itself depended on, and was a consequence of, the same misleading evidence.
(d) Mr Baxter then sought to retain his title by giving evidence to the Adjudicator which to a large extent was disbelieved.
(e) There were extenuating circumstances (his own illness, and two deaths in the family) which to a large extent explain and excuse Mr Mannion's failure to serve a counter notice in good time.
(f) Although, if rectification were refused, Mr Mannion would be entitled to seek an indemnity for his loss pursuant to paragraph 1(1)(b) and (3) of Schedule 8, it is uncertain whether he would be compensated in full, because the registrar (or the court) might consider that he was partly responsible for his loss: see paragraphs 5(1) and (2) and 7 of Schedule 8.
- In his submissions in reply, Mr Steinfeld took issue with these points both singly and collectively. He argued that they boiled down to no more than an assertion that the acts of user relied upon by Mr Baxter were insufficient to amount to adverse possession. He reminded me that the proximate cause of Mr Baxter's registration was Mr Mannion's failure to serve a counter notice, and that the Adjudicator had accepted much of the evidence relied upon by Mr Baxter. The period of about three months allowed for service of the counter notice is a generous one, and Mr Mannion should have been well aware of the importance of complying with the statutory timetable because he could read the explanatory guidance for himself, and he anyway consulted both his regular solicitor and an estate agent in connection with the application during the three month period.
- In my judgment the Adjudicator's brief treatment of this topic was flawed and inadequate, for all of the reasons given by Mr Steinfeld. In particular, I think it is important that any finding of fraud or lack of proper care under the first limb of paragraph 6(2) should be clearly articulated, and that no such finding should be made unless the alleged fraudulent or negligent conduct has been clearly pleaded (or otherwise drawn to the attention of the registered proprietor) and he has had a proper opportunity to respond to it. Natural justice and procedural fairness require nothing less.
- In these circumstances it is necessary for me to consider the question afresh. On the basis of the limited material now before me, I am in no position to make a finding of fraud. I would also be most reluctant to make a finding of lack of proper care against Mr Baxter; and if that were the only ground potentially available under paragraph 6(2), I would feel obliged to remit the question to the Adjudicator for further consideration. However, I am satisfied that in all the circumstances it would be unjust for the register not to be rectified, with the result that the second limb of paragraph 6(2) applies. In the light of the Adjudicator's unassailable findings of fact on the issue of adverse possession, it is clear that Mr Baxter was never entitled to be registered as proprietor of the Field, and in my view simple justice requires that, in the absence of strong countervailing factors, Mr Mannion should now be able to regain title to his property. I can discern no countervailing factors which would make it unjust for Mr Baxter to be deprived of his adventitious title to the Field, and on the contrary I see every reason why he should. If he thinks that he has suffered loss as a result, it will be open to him to claim an indemnity under paragraph 1(1)(a) of Schedule 8, and if necessary the question of fraud or lack of proper care on his part can be examined in that context.
Conclusion
- For all these reasons, the appeal will be dismissed.
