REF/2005/0283

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

(1) GEORGE EDWARD BARKER

(2) JOAN BARKER

 

APPLICANTS

 

and

 

(1) JOHN TERENCE CAHILL

 

RESPONDENT

 

 

Property Address: Land forming part of the Old Coach House formerly known as The Bungalow Snydale Hall Old Snydale Acton West Yorkshire

 

Title No: WYK777717

 

Before: Mr Owen Rhys sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: AIT Phoenix House Bradford

and

Leeds Employment Tribunal

On: 13^th and 14^th September 2006, 12^th and 13^th February 2007

 

 

Applicant Representation: Mr R Le Seeleur of Counsel

Respondent Representation: Mr J Klein of Counsel instructed by the Beaumont Partnership

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

Introduction

 

1. On 18^th September 2003 the Applicants, Mr and Mrs Barker, applied to be registered as proprietors of the title to certain land at Snydale Hall, Old Snydale, Acton, West Yorkshire (“the application land”). The application was made on the basis that they had acquired title to the entirety of the application land by virtue of adverse possession. Eventually, on 26^th May 2004, the application was served on the Respondent Mr Cahill, who was the registered proprietor of the land under Title No WYK106729. Mr Cahill, through his solicitors, objected to the registration on 14^th June 2004, but the objection was limited to that part of the application land that was within his title and is shown on the Plan attached to the Case Summary and coloured blue (“the Blue Land”). Strictly, the Blue Land includes a narrow sliver of land to the west of the existing western fence (referred to below as “the NCB Fence”), but that is not claimed by the Applicants, and my use of the phrase “the Blue Land” is intended to exclude this piece. The remainder of the application land was shown on that same Plan and edged in brown and has been referred to as “the Brown Land”. As it happens, there were no substantive objections to the Barkers’ application with regard to the Brown Land and they have been registered as proprietors of that land under Title No WYK747589. Although title to the Brown Land is now settled, I have heard evidence with regard to its use by the Barkers to which I shall refer in due course. At all events, the dispute could not be resolved, and the application was referred to the Adjudicator on 14^th February 2005 pursuant to Section 73(7) of the Land Registration Act 1925.

 

2. At the hearing Mr and Mrs Barker were represented by Mr le Seeleur, and Mr Cahill by Mr Klein, both of Counsel. The hearing commenced on 9^th September 2006, and lasted for four days altogether. Unfortunately, the case went part heard after Day 2, and we did not resume until 12^th February 2007. As with all cases in this jurisdiction, however, the evidence is tape recorded, and I have been able to consider the transcript of that evidence when preparing this decision. Prior to the hearing I also had the benefit of a Site View, attended by Mr Barker and Mr Cahill and their legal representatives, which was extremely helpful.

 

The physical features

 

3. I shall now describe the salient physical features of the application land. Snydale Hall itself is a former manor house which has been divided into seven individual dwellings. It seems that this division occurred as long ago as the 1930’s. It is approached from the public highway by means of a drive which runs due south, and then turns west as it passes the property formerly known as The Bungalow and now known as The Coach House. This dwelling falls within Mr Cahill’s title, which he has owned since 1977. The Barkers live at No 3 Snydale Hall, and have done so since 1966 when they purchased it. The drive runs past the front entrances of the individual units of Snydale Hall. The easternmost units – Nos 4-7 – have small front gardens which abut the access drive. The westernmost units – Nos 2 and 3 – more or less abut directly onto the drive. Once past the most westerly unit, No 2, the drive turns back to the north and runs past No 1 Snydale Hall and into a yard at the rear. No 1 is situated directly behind No 2.

 

4. To the south of the drive, as it passes Snydale Hall, there are a number of individual gardens or plots. Immediately opposite No. 3 there is a garden which is owned by No. 1 – I shall explain the circumstances in which this was acquired in due course. Immediately opposite No 2 there is a garden owned by No 2. Immediately to the west of No 2’s garden there is a garden owned by the Barkers. The northern edge of this garden abuts directly onto the drive, as it bends round to the north. To the west of this garden area is an open piece of land with a number of buildings and derelict vehicles on it. This area is bounded on the north by a pallet fence and a line of old shrubs which in effect makes a continuous barrier between this land and the land to the north which is now occupied by the owners of No 2 Snydale Hall, the Howells. The western boundary of this land is formed by a fence. The southern boundary of the land is not defined but the area gradually merges into some woodland. The land I have just described is, more or less, the Brown Land previously referred to. Perhaps more sense can be made of this description if one looks at the Illustrative Plan dated 24^th September 2003 prepared by the Land Registry and exhibited to Mr Barker’s first Witness Statement at page 54 of the Bundle. The area marked “1” on that plan is the Brown Land. Details of the various buildings on the land, and the physical appearance thereof, can be found in the sketch plan prepared by the Land Registry’s surveyor (at page 79 of the Documents Bundle) which was prepared in, I believe, 2003 or 2004.

 

5. I shall now describe the Blue Land. This represents the north-western tip of Mr Cahill’s registered title – see the Illustrative Plan dated 14^th February 2005 at page 158 of the Bundle. This area can be divided into three distinct areas. The eastern tip of the Blue Land is, physically, incorporated into the garden area belonging to No 3 Snydale Hall and situated to the south of the bend in the drive. It is currently unfenced along its southern boundary, although prior to 2005 it was fenced off from the remainder of Mr Cahill’s registered title. The second distinct area is immediately to the west. It is a strip of land which forms part of an area sometimes described as “the Vegetable Plot”. The area is fenced to its north and west, and lies to the south of a greenhouse constructed by Mr Barker on the Brown Land. Again, until 2005 it was also fenced along its southern boundary – where it adjoins Mr Cahill’s field – but this fence has been removed. However, there are numerous photographs in evidence which show the appearance of this fence. The final portion of the Blue Land is by far the largest in area. It is situated to the south of the Brown Land, to the west of the Vegetable Plot, and to the north of Mr Cahill’s field. Prior to 2005 it was fenced off from that field. It has a fence along its western boundary – this has been referred to as the NCB fence since it was constructed by the Coal Board in the 1980s. The land consists largely of woodland, both deciduous and coniferous.

 

The conveyancing history

 

6. These are the main physical characteristics of the site. I shall now consider the conveyancing history. As I have said, Mr Barker acquired No 3 Snydale Hall on 31^st December 1966, by means of a Conveyance from a Mrs Stones. Included in the Conveyance was title to the garden land situated immediately to the south of No 3. On 31^st October 1974 Mr Barker entered into a Deed of Exchange with his neighbour Mr Patrick, the owner of No 1 Snydale Hall. He was, I think, a relative of Mr Barker. Mr Patrick owned a piece of garden ground immediately to the south of the bend in the drive by No 2 Snydale Hall. According to Mr Barker, he had already begun to occupy the Brown Land, and he wished to consolidate that land with the “official” garden land adjoining Snydale Hall. However, his designated garden was separated from the Brown Land by two other gardens, belonging to No 1 and No 2. No 1’s garden immediately adjoined the Brown Land. It was therefore agreed between the two neighbours that Mr Patrick would take No 3’s garden, and Mr Barker would take No 1’s garden. This was effected by the Deed of Exchange. Finally, Mr Cahill acquired the Bungalow (now the Coach House) in 1977 and was registered as proprietor of WYK106729 on 2^nd August 1977. This title included the dwelling house itself, together with a large field to the south and west of the house. The title also includes the Blue Land previously described.

 

The legal framework

 

7. As I have stated, Mr and Mrs Barker’s application was to be registered as proprietors of the Brown Land and the Blue Land, based on their adverse possession since at least 1976. They have succeeded in relation to the Brown Land, in the absence of any objection. As regards the Blue Land, Mr Cahill has objected. I shall now consider the legal framework within which this case must be decided. The application was made in September 2003, shortly before the Land Registration Act 2002 came into force. It is made, therefore, under the provision of the Land Registration Act 1925 (“the 1925 Act”). Section 75 of the 1925 Act provides that, where a person has been in adverse possession of registered land for a period in excess of 12 years, the registered proprietor holds the title on trust to transfer it into the name of the successful squatter. In the light of the application date, the Applicants must establish that they have been in adverse possession of the land for a period starting no later than 18^th September 1991. Furthermore, in the light of the enactment of the Human Rights Act 1998, and the decision in Beaulane Properties Ltd v Palmer [2005] 3 WLR 554, different legal tests may have to be applied for the period of adverse possession prior to 2^nd October 2000, and that falling after that date (and prior to 18^th September 2003). I shall explain this point in more detail below. Subject to this issue, however, the law on the subject can be taken from the House of Lords decision in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. This means that the Applicants have to show (a) factual possession and (b) an intention to possess, for the full period of 12 years. Although their application relates to the whole of the Blue Land, three points must be made. First, they do not lay claim to any land lying to the west of the NCB fence. It appears that the fence does not coincide with the legal boundary of Mr Cahill’s registered title as shown on the filed plan, and the Barkers are clearly not in possession of the land to the west of the fence. Secondly, there is no reason why their claim may not be partially successful. If, for example, they can show the requisite period of adverse possession in respect of the (so-called) Vegetable Plot, but not the woodland, I do not see why the application should succeed only to that extent. As a final, perhaps rather obvious point, it is the Applicants who have the burden of proving adverse possession. Mr Cahill is the registered proprietor and it is for the Barkers to prove that they have barred his legal title.

 

The Applicants’ case

8. The Applicants’ case may be summarised as follows. As I have said, they began to live at No 3 Snydale Hall in 1966. According to them, much of the land to the west of Snydale Hall was then overgrown and unused. They were unsure who the land belonged to and believed that it had been abandoned by the limited company that had originally developed Snydale Hall. In approximately 1967, they began to use some of this land, which equates to the Brown Land. From the late 1960s, they grew vegetables on the land and kept livestock. In 1974 they entered into the Deed of Exchange with Mr Patrick to which I have already referred. Their explanation was that they were already occupying the Brown Land and the garden allocated to No 1 Snydale Hall directly adjoined this land to the east. It made more sense, as they put it, for them to have No 1’s garden, so that they could amalgamate it with the Brown Land. According to them, this is exactly what they did following the Deed of Exchange. At this time, in 1974, they removed the fence separating the Brown Land from Mr Patrick’s former garden and joined the two together. They also constructed a pallet fence along the northern edge of the Brown Land, separating it from the land by now occupied by the owners of No 2 Snydale Hall. According to the Barkers, they built a number of sheds and a garage on the land. Later, in the early 1980s, Mr Barker built a greenhouse on the Brown Land, and laid out a vegetable plot to the south. The plot was defined by a low chain-link fence on its western, northern and eastern sides. The area to the east of the vegetable plot was incorporated into the Barker’s garden. At some point – in the 1970s according to Mr Barker – he constructed a substantial post and rail fence along the southern edge of the Blue Land – south of his garden and the vegetable plot – separating it from the field to the south. At some later date – 1981 according to him – he replaced the stockproof wire fence along the southern boundary of the woodland, between the end of the post and rail fence I have referred to, and the NCB fence on the western boundary of the Brown and Blue land. As regards the woodland, Mr Barker alleges that he and his son planted some 50 cupressus trees there in the late 1980s. His son had started a floristry business and the trees were planted so as to provide foliage for use in floral displays. The trees were planted in rows, and were regularly harvested thereafter. Meanwhile, the vegetable plot was used regularly for the growing of vegetables, and the garden land cultivated, throughout the period since 1974. In short, say the Barkers, they have been in exclusive possession of the Brown and Blue land since the early 1980s at the latest, they have enclosed it within their own fences, and they have used the land continuously for well in excess of 12 years.

 

The Respondent’s case

 

9. Mr Cahill disputes virtually everything relied on by the Barkers. It is probably fair to say that the principal dispute relates to the woodland section of the Blue land. According to Mr Cahill, he has continued to access this land since 1977, and has allowed others to do so. He says that he challenged Mr Barker when he erected the southern fence, but gave him permission to continue. He also challenged Mr Barker when he planted the cupressus trees, but on that occasion Mr Barker gave no indication that he was laying claim to the land, but merely said that he was trying to enhance the appearance of the wood. He noticed Mr Barker’s activities on the vegetable plot – which, according to Mr Cahill, were only relatively recent – but was content to allow him to continue. However, he said that the plot had only been cultivated on an intermittent basis. His overall intention with regard to the woodland was to retain it as a natural environment, where people could enjoy the peace and beauty of a woodland setting. The woodland has been referred to by some of Mr Cahill’s witnesses as “the Bluebell Wood” and his evidence is that he intended to leave it uncultivated as, in effect, a nature reserve. He challenged the Barkers’ contention that they had been in adverse possession of the Blue land lock, stock and barrel.

 

Alleged enclosure by the Barkers

 

10. The first main element in the Barkers’ case is their alleged enclosure of the Blue and Brown Land. I shall refer to the relevant law on adverse possession, and the effect of enclosure, later in this Decision. At this stage, however, I shall confine myself to making the point that although enclosure is not an essential or indeed conclusive element in adverse possession, if the land was enclosed within the Barkers’ possession and control, and all others (including Mr Cahill) were excluded, manifestly this would offer powerful support to their claim. I therefore propose to consider the evidence regarding enclosure. Although of course the Barkers have now been registered as owners of the Brown land, it will also be necessary to consider the evidence regarding the boundaries of the Brown land.

 

The fence to the north of the Brown Land

 

11. It is common ground that at some point a fence was erected to the north of the Brown Land, consisting of pallets. Mr Shane Howells, the owner of No 2 Snydale Hall, gave evidence. He claimed that he had erected this fence in 1981, and when the Barkers had first applied to be registered with the Brown Land, he had written to the Land Registry correcting the Barkers’ assertion that they had erected the fence. I have seen a copy of this letter. Mr Barker accepted that Mr Howell had also placed pallets along the boundary, and said that they had both contributed to this fence, although he maintained that he had originally created this fence much earlier, in the 1970’s, and Mr Howell’s activities supplemented his work. I do not need to make any finding as to who erected the fence, or exactly when. It is sufficient for these purposes that the northern boundary of the Brown land was fenced off at least from 1981 onwards. This pallet fence, combined with the caravan and line of shrubs running eastwards towards the drive, has constituted a continuous physical boundary separating the Brown Land from the open land to the north (and now occupied by the Howells family) which has existed for at least 20 years prior to the Barkers’ application. From 1974, of course, the Barkers have been the legal owners of the strip of garden land which they acquired by exchange with Mr Patrick. The northern boundary of this land adjoins the drive opposite No 2 Snydale Hall. It may be possible to enter the Brown Land from the drive without going over the Barkers’ garden land, but the gap is narrow, and there was no evidence that anyone other than the Barkers did in fact regularly enter the Brown land after the erection of the pallet fence. The entire northern boundary of the Brown Land was therefore enclosed from at least 1981 onwards.

 

The fence separating the Brown land from the Blue land (“the Northern Fence”)

12. There was some evidence that, many years ago, there was a fence separating the Brown land from the Blue land. In other words, a fence separating the open grassed area which is the Brown Land from the area of woodland just to the north of Mr Cahill’s field. For instance, passing reference to this fence is made by Mr Howell, Mrs Jinks and Mrs Buxton in their witness statements, and Mr Cahill’s solicitor’s letter dated 14^th June 2004 (page 172) also appears to make reference to this fence, at the bottom of the second page. This fence is said to have been a post and wire fence. Mr Cahill made no mention of this fence whatsoever in his principal witness statement. Indeed, the only fence he refers to – at some length – is the fence separating the Blue Land from his field. However, in cross-examination he gave quite extensive evidence with regard to it, although this evidence was extremely confused. According to him, when he bought his land (in 1977) he inspected the northern boundary (again, a fact not mentioned in his first witness statement), and there was a post and wire fence which ran along the exact same line as the paper boundary: a sort of curve running from Mr Howell’s garden in the east to the boundary with Mr Lowe’s land in the west. However, although (according to him) he was a regular visitor to the land, he was unable to say when the fence had been removed, although he thought it may have been in the early 1990s. He could not say who had removed it. He also said that the fence was dilapidated, with numerous gaps running through it, and it was overgrown by shrubs and bushes. He was unable to explain how he could reconcile this evidence with the contents of the solicitor’s letter which I have referred to above, in which it is stated (on his behalf) that Mr Cahill confronted Mr Barker about the removal of the northern fence and insisted that he should re-erect it.

 

13. Mr Barker denied that at any time during his occupation of Snydale Hall there was a fence separating the Brown and the Blue Land. Furthermore, under cross-examination none of Mr Cahill’s witnesses could recall how far east the Northern Fence extended – i.e whether it ran through the vegetable plot and the garden now belonging to the Barkers. Mr Howell was unable to say whether the fence bisected any part of the Barker’s garden when they arrived on the scene in 1979. Furthermore, with the exception of Mr Howells, none of the Respondent’s witnesses could recall when the fence had disappeared, although it was accepted that at some point it had done so. Even Mr Howell, whilst stating that he though the last bits of the dilapidated fence had disappeared in 1988, agreed that this was speculation on his part. Even those who recalled the fence – such as Mr Cahill’s daughters – accepted that it was in a very decrepit state, and substantially overgrown, and even as children they could step over it without difficulty.

 

14. Having regard to all this evidence, I conclude that (a) there may well once have been a post and wire fence separating the Blue Land from the Brown Land, but (b) this fence was already extremely dilapidated by the late 1970s and (c) had disappeared completely by the early 1980s at the very latest. I cannot accept Mr Cahill’s evidence that he inspected the full run of the Northern Fence in 1977 and that it followed the line of his northern boundary as set out on his Title plan. Nor can I accept the suggestion made in his solicitor’s letter mentioned above that he actually remonstrated with Mr Barker over his alleged removal of the northern fence. I do not accept his evidence for two reasons in particular. First, because it is largely inconsistent with the evidence of his own witnesses both as to the state of the fence, and its line, going back to the late 1970s’. Secondly, because – as explained in detail later in this Decision – I do not believe that he was aware at any material time that his legal boundary extended to the north of the southern fence.

 

The fence to the south of the Blue Land: eastern section

 

15. After 1974, the eastern boundary of the garden acquired by exchange was fenced off from No 2’s garden. There is no dispute about this. What about the southern boundary of the Blue Land? According to Mr Barker, he erected a post and rail fence along what he believed to be the southern boundary of both the garden land and the vegetable plot – but stopping short of the woodland – in 1975. The nature of the fence is clear from the photographs – see for instance GB 14 at page 103 of the Witness Bundle. This is a substantial fence, consisting of planks nailed to uprights posts placed in the ground at regular intervals. This fence was removed by Mr Cahill in 2005 in the circumstances which I shall describe below, but the photographs are sufficient to identify its appearance. Mr Cahill’s evidence under cross-examination was that this fence was erected at the same time as the replacement of the post and wire stockproof fence between the field and the woodland, namely in 1988. I find as a fact that this fence was constructed in 1975, for the entire length of the southern boundary from the junction on the east with No 2’s garden, as far as the commencement of the original stockproof fence which the Becketts had constructed along the southern edge of the woodland. Mr Klein, on behalf of Mr Cahill, raised a point on the Land Registry survey plan, suggesting that this plan showed that the post and rail fence terminated half way across the vegetable plot. I do not think that this is right. It is not consistent with the photographic evidence, or with the Barkers’ evidence, and I find that the wooden fence continued up to the edge of the woodland. Further, and as a matter of inherent probability, there would seem to be little purpose in Mr Barker ending the wooden fence before the woodland started. For the same reason, it seems quite improbable that Mr Barker would have erected two different types of fence at the same time. Accordingly, from 1975 onwards there was a continuous fence running along the southern boundary of at least that part of the Blue Land which consisted of the garden and so-called “vegetable plot”. As the photographs at 10(a) and 12(a) demonstrate, the garden itself was manifestly being enjoyed and occupied by the Barkers right up to the southern boundary, from 1980 onwards.

 

The fence to the south of the woodland: “the Southern Fence”

 

16. The next section of the southern boundary which I shall deal with is that part which separates the woodland from Mr Cahill’s field. This issue, and the conflict of evidence relating to it, raises critical issues of credibility. Mr Barker and his son claim that the fence was erected in 1981. According to them, they removed the old post and wire fence, and replaced it with new posts and wire, running westwards as far as the NCB fence. They accept that they had a conversation with Mr Cahill while they were working on the fence. He was concerned that the fence should not encroach on his field. That, according to them, was his only concern. Mr Cahill and his son have a different recollection. They say that Ryan noticed the fence being constructed in late 1988, and he told his father, who then had a telephone conversation with Mr Barker that evening. In that conversation he says that he told Mr Barker that the land and fence were his, but Mr Barker said he was just tidying up the land. Ryan’s witness statement suggests that Mr Cahill was seriously displeased with the removal of the fence, since he was contemplating notifying the police and suing Mr Barker for damages. I should also point out that both Mr Cahill and his son in their original witness statements placed this event as occurring in 1987, but corrected this with statements served shortly before the hearing. There may be some significance attached to the later date, since a different legal test may apply for the period subsequent to October 1988 in the light of the Human Rights Act issue to which I have already referred. Furthermore, it may be noted that Mr Cahill’s letter of objection to the original application, dated 14^th June 2004, makes no reference to this alleged conversation. The letter refers to an alleged conversation regarding the removal of a fence, but this appears to be the so-called “Northern Fence” between the Brown and the Blue Land which I have described above. In a subsequent letter, dated 12^th November 2004, Mr Cahill’s solicitors describe another conversation which is said to have taken place, after Ryan Cahill had noticed Neil Barker on his (Mr Cahill’s) land and informed his father. The letter states that Mr Cahill was objecting to the construction of a building on “communal land”, and Mr Barker told him that he was renting the land from Mrs Stones and he would check with her. Mr Cahill was asked about this letter in cross-examination, and why the letter did not mention any conversation regarding the Southern Fence. His answer was that his solicitor must have misunderstood the instructions he gave him, and he was sure that he never told the solicitor that which was written.

 

17. I must resolve this conflict of evidence. However, one thing is entirely clear. It is an undisputed fact that Mr Barker, on any view, removed the original southern fence, and replaced it with his own. This fence created a barrier between Mr Cahill’s land to the south, and the woodland. It continued to separate the Blue Land from the remainder of the land in Mr Cahill’s title. This too is agreed. There are thus three particular issues which must be addressed. First, was there a conversation as described by the Cahills, whereby Mr Cahill could be said to have authorised the construction of the fence thus negating any “adverse” quality of the action? Secondly, when was the fence constructed? Thirdly, was the fence a complete barrier to entry from the south – did it truly enclose the Blue Land and separate it from Mr Cahill’s field. My findings are as follows.

 

The alleged conversation regarding the fence

 

18. I do not accept the Cahills’ account of the alleged conversation for a number of reasons. First, if such a conversation took place, it is very surprising that it was not mentioned in any of the correspondence from Mr Cahill’s solicitors that I have referred to. I am not impressed by Mr Cahill’s suggestion that his solicitor simply misunderstood his instructions. These are detailed letters, setting out and arguing the case against Mr Barker, and I find it hard to believe that Mr Cahill and his solicitor would not check the letter carefully before allowing it to be sent out. The letters dated 14^th June and 12^th November 2004 contain a number of allegation regarding fences, and alleged objections made to the Barkers’ activities on the land, but nothing about the replacement of the Southern Fence. If in fact Mr Cahill had authorised the construction of the southern fence, this would obviously have been an issue of critical importance and one which the correspondence would have dealt with.

 

19. Secondly, it is quite improbable that such a conversation occurred at all. I must explain. It is my view that Mr Cahill was completely unaware that he owned any part of the Blue Land as claimed by the Barkers at any time until receiving notice of the Barkers’ application or shortly beforehand. His actions with regard to the Blue Land would simply be inexplicable if he was aware that he owned it. On any footing, he stood by and allowed Mr Barker to maintain the post and rail fence to the south of the vegetable plot and the garden land (Mr Cahill in fact stated that this fence was erected after he became the owner of the land), and to use this land for cultivation of vegetables and as a garden. Of course, the fence (as I have found) was already in existence when he bought the Coach House: no doubt he simply assumed that it marked the legal boundary. As explained above, I reject his evidence that he actually inspected the boundary to the north of his land and identified a fence in the correct position. He gave a highly significant answer in the course of his cross-examination. He was asked about the vegetable plot and when he first noticed it being fenced. He said that the first time he saw it was when he noticed Mr Barker putting up the fence around the vegetable plot, in the late 1980s (although he subsequently changed this to a date in the early 1990s). Mr Cahill told me: “Here he goes again I thought…..I just watched…nothing happened…...I knew this was my land at the time..”. When I asked him whether he was content with a stranger building a fence on his land – as Mr Barker was doing with the vegetable plot – he said that he did not take it down or even object because it was on the other side of the southern boundary fence. However, he said that if the fence had been on the field to the south he would have behaved differently and would have removed it. He suggested that he was prepared to stand by and allow Mr Barker to carry out activities on his land because he was not a “vindictive or belligerent person” and did not realise that Mr Barker could acquire a possessory title by that means. This is not a convincing explanation. It seems to me that his acquiescence in Mr Barker’s activities on the Blue Land only makes sense if he did not realise that he could assert his own title. That is why he accepted that he would have intervened if Mr Barker had erected a fence, or carried out any activity, on the field to the south of the fencing which encloses the Blue Land. He may well have thought “Here he goes again”, but as an observer, not a “victim”, of Mr Barker’s actions. If he had thought for one moment that he was in a position to prevent Mr Barker from acquiring additional land or using his land, I have no doubt that he would have done so. Whether or not he was aware of the intricacies of the law of adverse possession, any landowner would assert his rights in the face of a trespasser’s open occupation of his land. This conduct in relation to the Barkers’ fencing of the vegetable plot is indicative, to my mind, of his entire state of mind with regard to the Blue Land. If, as I find, Mr Cahill was unaware that he owned the Blue land, the conversation regarding the Southern Fence would have been as Mr Barker recalls it – Mr Cahill’s only concern would have been that the fence did not encroach on the field, which obviously he knew belonged to him.

 

20. The inherent improbability of Mr Cahill’s evidence with regard to the Southern Fence does not end there. According to him, prior to Mr Barker’s erection of the Southern Fence he could obtain easy access into the woodland through a gap in the old fence. However, according to him this gap was closed by Mr Barker. This is challenged by Mr Barker – he says there never was a gap – but even on Mr Cahill’s evidence he accepts that the Southern Fence erected by Mr Barker prevented him from directly accessing the wood. However, he maintains that he continued to get into the woodland by stepping over the end section of the NCB fence – that is, the fence delimiting the western boundary of the Blue Land. Mr Barker’s fence, it is agreed on all sides, was tied into the NCB fence. Mr Cahill’s evidence is that he removed the top rail of this fence as soon as it was constructed: although this is denied by Mr Barker. This enabled him to continue accessing the woodland, approaching the fence through a gap between the two large trees shown in the photograph produced by Mr Greenwood, for instance. The NCB fence can be seen in Photograph 1 taken by the Land Registry surveyor (page 187). It is approximately 1.2 metres high, as measured by the Land Registry surveyor. It has four bars. Removing the top bar would still leave a 3 foot fence to hurdle. The actual appearance of the end panel of this fence cannot be verified now since Mr Cahill has removed the end post, and the fence has collapsed. Mr Cahill and his son also stated that the southern end of the NCB fence, as originally erected by the contractors, extended into the field to the south of the Blue Land, but they removed this part of the fence altogether.

 

21. It seems to me that Mr Cahill’s account is quite inconsistent with a belief that he owned the woodland. First, he would never have allowed Mr Barker to close the gap in the fence (if it existed as his own evidence suggests). Secondly, he would not have allowed himself to be effectively excluded from his land. It beggars belief that he would permit a trespasser such as Mr Barker to construct a fence around the woodland, obliging Mr Cahill and his invitees to push their way through the undergrowth and between the two large trees, and then to climb over the NCB fence, in order to access his own land. In any event, one could not simply step over the fence as Mr Cahill and a number of his witnesses contended. He and they gave the impression that the fence was no barrier at all. However, as the photographs show the fence was a substantial structure, and it would represented a barrier even with the top rail removed.

 

22. In this connection I need to say something about Mr Cahill’s conduct in relation to this dispute, which does have a bearing on his credibility. As I have said, there is a hotly contested issue as to the height of the end section of the NCB fence and whether the top rail had been removed. There is also a dispute as to the length of the post and rail fence built by Mr Barker – did it extend along the entire southern boundary of the vegetable plot or only half way? Both these issues could have been easily resolved by inspecting the fence, if it remained in situ. However, Mr Cahill chose to remove the fence along the entire southern boundary of the Blue Land, shortly before the witness statements in this case were served and well after the matter was sent for adjudication. Such an action may be explained in a number of ways. It could simply represent annoyance and frustration on the part of a paper owner, who is faced (as Mr Cahill was) with a claim to “legalised theft” as the law of adverse possession has notoriously been called. Equally, it could amount to a deliberate attempt to destroy evidence, and to make it more difficult for the tribunal to make findings of fact as to the enclosure of the Blue Land which might otherwise assist the Applicant. There may be other explanations, but these seem the most likely.

 

23. In the present case, there are, I regret to say, strong indications that the latter explanation is the correct one. Mr Barker made a second witness statement shortly before the hearing. This deals with the destruction of the fence by Mr Cahill and also with two other matters. Mr Barker produced video footage, taken by a covert security camera placed on the Blue Land, which he refers to in his statement. The first piece of film refers to an occasion in September 2005 when Mr Cahill is filmed entering the vegetable plot and planting two shrubs in the tilled soil. Having planted the shrubs, he photographed them and then left. Secondly, he was filmed in July 2006 planting grass seed in the vegetable plot. I have seen the video footage myself and the description of Mr Cahill’s actions given by Mr Barker is accurate. It was put to Mr Cahill in cross-examination that he was demonstrably attempting to alter the appearance of the vegetable plot, first by planting shrubs in it, and secondly by sowing grass. The second incident took place two months before the Site Visit in this case, and the presence of grass growing through the alleged vegetable plot would obviously affect the adjudicator’s perception of its use. Mr Cahill’s response was as follows. He said that Mr Barker had been altering the appearance of the site and he thought he should have a taste of his own medicine. In any case, he was perfectly well aware that Mr Barker had a camera trained on the area and therefore he was doing it to provoke him and not with any expectation that Mr Barker would be deceived. He also said that the grass seed was of very poor quality, and he did not think the grass would grow. He attempted to laugh off both incidents. I have to say that I do not believe his explanation for one moment. My impression, having viewed the video, is that Mr Cahill shows no signs whatsoever of being aware that his actions are being filmed. If he did know about the concealed camera, these would be utterly pointless acts, which would achieve nothing. If he wanted to annoy Mr Barker, one might have expected him to make some sort of gesture or other indication that he knew he was being filmed. He does not. The only plausible explanation is, I regret to say, the one put forward by Mr Barker. If one couples these actions with the demolition of the fence, it seems to me that Mr Cahill’s credibility is seriously damaged. He has attempted to destroy evidence that harms his case, and to concoct evidence to support it. If (as I find) he is prepared to do this, I am unable to accept his evidence on other issues at face value unless it is clearly corroborated by some other, reliable, document or witness.

 

24. In conclusion, I accept the evidence of the Barkers that the only conversation with Mr Cahill regarding the replacement of the Southern Fence was as they described. Mr Cahill was simply concerned that they should not re-erect the fence so as to encroach on his field to the south. He did not challenge the Barker’s right to re-erect the fence in any way. This is entirely consistent with my finding that he did not realise that the boundaries of his title extended to the north of the Blue land.

 

 

When was the fence re-erected?

 

25. In one sense, this issue is unimportant, since it is accepted by the Cahills that the fence was reconstructed by the Barkers no later than 1988 – more than enough to give 12 years’ possession. However, there is the possible significance of the November 1988 date, and it would be safer to make a specific finding on this issue. The period in issue is some 7 years: between 1981, contended for by the Barkers, and 1988, as contended for by the Cahills. I am slightly suspicious of the Cahill’s alteration in their evidence, whereby they both recalled the conversation with Mr Barker as occurring in 1988 as opposed to 1987. It rather conveniently fits in with the argument that part of the period relied on by the Barkers falls after the commencement of the Human Rights Act. The one fact which I think is tolerably clear is that the so-called NCB fence was already in place when the Barkers’ fence went up. I say this because the Barkers’ fence was tied into the western fence (adjacent to the Lowes’ land), and that fence has not been replaced since the NCB fence was built. The NCB fence was built between 1984 and 1988 according to the Cahills, and prior to 1981 according to the Barkers. Making the best that I can out of the evidence that I have heard, I conclude that the Barkers replaced the southern fence no later than 1985. I am marginally influenced in this conclusion by the view of the Land Registry surveyor, who noted the age of the southern fence as being “20 yrs+”. Although obviously I have not heard evidence from him, and I cannot assume that it is correct, nevertheless such surveyors are very experienced and it would be surprising if he were to mistake a 15 year old fence (if the Cahills are right) for a fence older than 20 years. Accordingly, on the balance of probabilities, I hold that the Barkers replaced the Southern Fence no later than 1985.

 

Access to the woodland after Mr Barker erected the southern fence

26 The next question which I must deal with – and this is closely related to the enclosure issue – is the extent to which Mr Cahill and his invitees continued to access and use the Blue Land after the erection of the Southern Fence by Mr Barker in 1985. Of course, the burden is entirely on Mr Barker to show that he was in adverse possession of the woodland for the necessary period, and I shall consider his evidence in due course. In deciding this issue, however, inevitably I must have regard to the Respondent’s evidence to the effect that he and his invitees have regularly used the woodland, even within the last 12 years. Obviously, if this is correct, Mr Barker could not have been in exclusive possession of the land and the claim would be bound to fail.

 

27. Mr Cahill gave evidence, along with his son Ryan, his daughters Jacqui Grayson and Helen Louise Buxton, Mr and Mrs Howell, Mrs Howell’s sister Jaqueline Anne Jinks, and Mr John Greenwood. I shall summarise their evidence below with regard to their use of the Blue Land. This is not an exhaustive summary of their evidence, but merely an outline thereof.

27.1 Mr Cahill.

His evidence was that he used to access the woodland regularly, by means of a gap in the stockproof fence which had marked the northern limit of his field – i.e the fence replaced by Mr Barker in the 1980s. It has to be said that his evidence regarding the means of access into the woodland between his purchase of the land in 1977, and the replacement of the fence by Mr Barker, was vague in the extreme. Initially, he stated that he entered the woodland by going round the two large trees at the end of the NCB fence (visible in the photographs at 194, for instance). It was only at the culmination of a lengthy cross-examination on this point that he eventually stated that he had originally entered the woodland through a narrow gap in the wire fence constructed by Mr Beckett. This gap was indicated by him as being a short distance to the east of the existing NCB fence, and east of the two large trees I have referred to. He said that this gap was 1 foot or so in width. According to him, however, this gap had been completely closed by the Barkers when they had replaced the Southern Fence. From that time onwards, the woodland could only be accessed over the end of the NCB fence, the top rail of which (according to Mr Cahill) he had removed. There was some confusion about when the top rail had been removed. Ryan Cahill said that this happened as soon as the fence had been constructed. His father, however, suggested that this happened some years afterwards, when the Barkers had replaced the fence. At all events, once Mr Barker had erected the new fence, Mr Cahill insisted that he continued to go into the woodland, through a gap in the trees and then over the NCB fence as described above. Mr Cahill stated that he had planted some conifers in the wood in 1984/5, which were conifers left over from the planting of a hedge along the eastern boundary. He referred to the woodland as “the bluebell wood” and stated that in early springtime the wood was still covered in bluebells. He said that his intention was to leave the area as a nature reserve.

27.2 Ryan Cahill.

In his witness statement he also referred to a gap in the fence leading to “the copse”, and also to the removal of the top rail of the NCB fence to give easier access into “the copse”. He insisted under cross-examination that he still regularly went into the copse for recreation.

27.3 Janice Howells

Mrs Howells is the wife of Shane Howells, and lives at 2 Snydale Hall. She said that she was last in the wooded area in December 2003, when her youngest son went in. However, she did not enter the woodland from the south – i.e from Mr Cahill’s field. It follows, I think, that in December 2003 she must have entered over Mr Barker’s land at the bend in the drive, since there was a solid pallet fence to the north of the brown land. She said that when she was a child she used to play in the field (now owned by Mr Cahill) and surrounding woods owned by Mr Beckett. She also referred to a barbed wire fence having been erected around the Blue Land by Mr Beckett, to keep livestock out. She was married in 1979 so her childhood memories necessarily relate to a period substantially prior to that.

27.4 Shane Howells.

He recalled his children playing in the woodland – the Blue Land. The last time was, I think, the occasion referred to by his wife, in December 2003, when his son went onto the land.

27.5 Mrs Jinks

 

She is the sister of Janice Howells. She moved to Yorkshire in 1971, and said that she used to visit Snydale Hall up until the early 1980s. She said she could recall being allowed to play in “the copse”. There had been a fence along its northern side (at the south of the brown land) but over the years it had been trodden down and eventually completely disappeared. Again, it seems that she accessed the wood from the north.

27.6 Mr Greenwood

 

This gentleman said that he was a friend of Ryan Cahill, and had visited the wood many times for picnics, and to enjoy the scenery. Although he had some physical disability, and walked with a stick, he had no problem entering the wood through a gap between the two large trees shown in the photographs that he produced, and then “stepping over” the NCB fence whose top rail had been removed. He had also planted some conifers with Ryan Cahill in about 1997, in the eastern corner of the copse.

27.7 Mrs Jacqueline Grayson

 

She is one of Mr Cahill’s daughters, and recalled playing in the field and wood when she was a child. However, she accepted under cross-examination that she had stopped playing in the wood in about 1982 – when she would have been some 14 years of age. In 1992 she moved abroad, but occasionally returned to Snydale with her children and encouraged them to play in the fields and woods. She recollected that access to the wood was obtained through the gap between the two large trees that Mr Greenwood mentioned. She would use the gap as a short cut to the pigsty that was on Mr Lowe’s land, whose children she played with. This land is to the west of the Blue Land.

27.8 Mrs Helen Buxton

 

She is another of Mr Cahill’s daughters, having been born in 1965. Her evidence was that she and her sister were each given a horse when she was about 14 years of age – in 1979 or thereabouts. She recalls that she and her sister checked the fences to the field, and in particular the fence to the north which partitioned off the woodland. This was the fence replaced by Mr Barker. She also recalled entering the woodland through a gap in the trees which was about a foot wide, which also allowed her to access the tree house and as a shortcut to Grange Cottage which was, I believe, owned by Mr Lowe. When she first became familiar with the land the NCB fence was not there – the only fence she recalls is that which separated the wood from the field.

 

28. The Applicants vehemently and consistently denied that anyone, to their knowledge at least, obtained access to the woodland after the date when Mr Barker and his son had replaced the Southern Fence. It seems to me that the issues are as follows:

(a) how was the woodland accessed prior to the replacement of the Southern Fence?

(b) was the woodland accessed after the replacement of the Southern Fence, and if so, how and by whom?

(c) what if any activities were carried on in the woodland after the replacement of the fence?

 

29. My findings, in relation to the Cahills’ use of the woodland after 1985, are as follows:

29.1 It is perfectly possible that Mr Cahill, members of his family, and his invitees, obtained access to the woodland prior to the replacement of the Southern Fence. However, I must consider the situation over the twelve years preceding this application, and since 1985.

29.2 The Southern Fence was replaced, as I have stated, no later than 1985. Once the Southern Fence was replaced it was no longer possible for people to enter the woodland over this fence: this seems to be agreed. The only method of access from the south was by climbing over the NCB fence.

29.3 I am not satisfied on the evidence that the top rail of the NCB fence was removed when Ryan Cahill says it was, or at all. This crucial point was not even mentioned by Mr Cahill in his first witness statement. He only raised the point in his second witness statement, which was actually served on the second day of the hearing as I recall. Indeed, none of the witnesses, in their written statements, ever referred to obtaining access to the woodland over the NCB fence. Those entering from the south say that they entered the woodland by a narrow gap in the fence. This strongly suggests that the access they are referring to is the access which was closed by Mr Barker in or around 1985. I appreciate that Mr Barker denied that there was any means of access into the woodland from Mr Cahill’s field, prior to his reconstruction of the Southern fence, but I think he must be mistaken in this. It is also possible, if somewhat surprising, that the NCB contractors continued the fence southwards into Mr Cahill’s field, and that he removed this length. However, this does not support the evidence as to the removal of the top rail. If anything, it undermines it, since there would be absolutely no reason for Mr Cahill to stop short of the Blue Land, since the NCB fence was now restricting his access into it. If he was prepared to remove some fencing, why not also remove a sufficient amount to enable him to walk into “his” woodland?

29.4 I do not accept that there was free and open access to the woodland after 1985 as Mr Cahill suggested. It is of course always possible that people entered the woodland, for whatever reason, but they would have done so clandestinely. The NCB fence had a height of 1.2 metres and was manifestly a barrier to entry. I have already held that Mr Cahill was unaware that he owned the land, and his actions were undoubtedly influenced by that fact. Nor do I accept that – as Ryan Cahill and John Greenwood said – they also entered other parts of the Blue Land. Mr Greenwood, for instance, insisted that he regularly entered the vegetable plot. This is simply incredible.

29.5 It appears to me that by far the largest part of the evidence as to the use of the woodland related to an earlier period, prior to the time (1985) when the Southern Fence was reconstructed. Mr Cahill’s daughters, for instance, would have been much more likely to play in the woods when they were children and teenagers: they were already 17 and 20 years of age when the fence was re-built.

29.6 I believe that there is a strong likelihood that evidence of access into the woodland subsequent to the reconstruction of the Southern Fence refers only to the strip of woodland between the NCB fence and the boundary with the land on the west. At one stage Mr Cahill believed that Mr Barker was claiming all the land up to the western boundary with Grange Cottage. In fact, Mr Barker was only claiming adverse possession up to the line of the NCB fence, which did not exactly coincide with the legal western boundary of Mr Cahill’s land. Mr Cahill has in fact now erected a fence parallel with the NCB fence marking the true boundary. This corridor of land was not closed when the Barkers built their fence: it remained possible for the Cahills and others to obtain access to the Lowe’s property, for instance.

29.7 Furthermore, I believe that a great deal of the evidence relating to the alleged use of the woodland in fact related to use of the field and areas of woodland outside the blue land. For example, Mr Cahill in his witness statement referred to a number of deciduous trees within the Blue land, including some Elms which he had felled after they fell victim to Dutch Elm disease. He accepted in cross-examination, however, that these elms were all situated in his field to the south of the Blue land. Other witnesses refer indiscriminately to use of the field and the woodland: it is perfectly possible that they were referring to areas outside the Blue Land altogether.

29.8 I do not accept that the Blue Land was the rustic idyll that was the picture painted by Mr Cahill. He produced a number of photographs (see 202 for instance) to support the evidence in his witness statement that the wood was known as “the bluebell wood” and was a nature sanctuary. In fact, all these photographs showed areas outside the Blue Land. Mr Cahill had to accept that there were no bluebells in the wood, although he blamed the Barkers for killing off the flowers with their conifer plantation. I think that this evidence was exaggerated, in order to bolster the contention that Mr Cahill wanted to leave the woodland unspoiled, as a nature reserve. By the same token, it is clear that Mr Cahill’s field was not simply left as natural haven for the benefit of his family and neighbours. The field was manifestly used at least for several years as a track for racing vehicles.

29.9 I do not accept that Ryan Cahill and John Greenwood planted trees in the woodland as they both suggested. I reach this conclusion for a number of reasons. First, there is a serious and unexplained – indeed inexplicable – discrepancy in their evidence as to where the trees were planted. Ryan states that they were planted in the far west of the land: Mr Greenwood that they were planted in the east of the land. It is difficult to see how one of them could have forgotten such an important detail, of an event that allegedly occurred relatively recently. Secondly, there is no evidence of the existence of these trees. The Lawson cypress trees that are visible on the land are those which are laid out in rows, which the Barkers claim to have planted. In this connection, it is also worth recalling that Mr Cahill originally stated that in 1984/5 he had planted some conifers “which I had left over after planting on his eastern boundary..”. However, he was unable to identify any of these trees on the ground and was driven to accept that they had all disappeared (see the letter at pages 78-81 of the Bundle). However, in this same letter, he refers to the fact that he and Ryan planted the trees – no mention of Mr Greenwood. Thirdly, the inherent probabilities must also be considered. Once again, I must make the point that Mr Cahill was, in my judgment, unaware that he owned the Blue Land, and would not therefore be likely to plant trees in the area which was, in any event, fenced off from his other land.

29.10 With regard to the evidence of Mrs Grayson, her recollection is primarily that of the situation when she was a child. She moved to Snydale Hall in 1977, when she was 9 years of age. This preceded the erection of the NCB fence, and Mr Barker’s replacement of the Southern Fence. Furthermore, her emphasis was very much on using the gap which she referred to – in the extreme south-western corner of the wood – as an access to the Lowe’s land. Once the NCB fence had been built, she could of course continue to enter the portion of the wood which lay to the west of that fence – still on Mr Cahill’s land – and continue northwards to Mr Lowe’s land. Her reference to playing in the field and woodland could refer equally to the woodland situated outside the Blue Land itself. As the photographs make clear, there are numerous large trees dotted around the edge of the field and these could well have been the areas recalled by Mrs Grayson. It is a matter of very considerable significance, in my judgment, that this witness did not in her statement refer to accessing the woodland over the NCB fence. In cross-examination, however, she repeated the line which Mr Cahill had taken, namely that she “stepped over” the NCB fence and into the woodland.

29.11 Mrs Buxton’s evidence was to similar effect. She is some two years older than her sister. She said that in about 1979 her father bought her and her sister two horses, and at that time she and her sister checked the southern fence to ensure that the animals could not stray into the woodland. She said that there was a gap in the fence “about a foot wide near to Mr Lowe’s land which we used as an access to the copse of trees and the tree house…..The fenced off area of our land and land adjacent to it was frequently used by my friends and I as a play area and a short cut to a friend’s house, Grange Cottage.”

29.12 Again, her emphasis is very much on the extreme south-western end of the copse. It is perfectly possible that she is referring to the small area – perhaps four yards wide, according to Ryan Cahill – that lies to the west of the NCB fence and to the east of the boundary with Mr Lowe’s land. The tree house was not in the woodland itself, but on Mr Lowe’s land. Again, Mrs Buxton did not make any reference in her witness statement to accessing the copse over the NCB fence. I believe that she is actually referring to the wooded areas around the edge of her father’s field, or to the small area of woodland to the west of the NCB fence. Her statement then makes perfect sense.

 

30. My conclusion, therefore, with regard to the Southern Fence is as follows. Once it was built, and tied into the NCB fence, Mr Cahill was effectively and actually excluded from the woodland. He was already excluded from the other parts of the Blue Land by means of the post and rail fence further east. I do not accept his evidence that he continued to access the woodland by going over the NCB fence. If he did so, he must have considered that he was trespassing. To all intents and purposes, Mr Barker effectively excluded the paper title owner from the Blue Land once he erected the Southern Fence, which occurred no later than 1985. Whether Mr Barker actually occupied the land after that date is of course for him to prove: but I reject the evidence adduced on Mr Cahill’s behalf that he and his invitees had free access into the woodland after the Southern Fence had been replaced. I have not referred to each and every item of evidence adduced by or on behalf of Mr Cahill in support of his contention that he and those authorised by him continued to use the woodland as a sanctuary or nature reserve. I have, however, indicated that in general terms I do not accept it. Insofar as witnesses, Mr Cahill’s daughters for example, recollect continued access to the woodland, I think they must be referring to the strip of Mr Cahill’s land along the western side of the NCB fence. Insofar as witnesses refer to accessing the woodland by “stepping over” the NCB fence, I regret to say that this is a fiction.

 

31. I must now consider the evidence adduced by Mr Barker as to his use of the Blue Land, from which, as I have found, Mr Cahill had been effectively excluded from the date of his arrival (1977) in relation to the garden areas and Vegetable Plot, and from 1985 in relation to the woodland. As I have said before, the burden is fairly and squarely on the Barkers to prove their case. I shall consider each area in turn. Before doing so, I must refer once again to the credibility of the witnesses, and, in particular, of the two main protagonists, namely Mr Barker and Mr Cahill. I have already indicated that, in my view, Mr Cahill has consistently exaggerated or even concocted evidence, in order to improve his position in the case. I have no doubt he feels very strongly about the situation and the prospect that he might lose some of his land to Mr Barker through “legalised theft”. Whatever the motivation, however, I cannot ignore the fact that I must treat his evidence with considerable caution. On the other hand, although Mr Barker was also on occasions inclined to exaggerate, by and large I consider him as a truthful and reliable witness in all substantial respects. He was subjected to a very lengthy, thorough and competent cross-examination, but I do not consider that the substance of his evidence was shaken in any material respect. Accordingly, where there is a direct conflict between these two, and in the absence of some reliable support for Mr Cahill elsewhere in the evidence or the documents, I prefer the evidence of Mr Barker. Although the only witnesses who supported Mr Barker were his wife and son, I do not think there were any truly independent witnesses on the Respondent’s side. They were either members of his family, or members of the Howell family, with whom (it is accepted) the Barkers have been on very poor terms for many years.

 

The garden area

32. By this, I mean the southern end of the piece of land occupied by the Barkers as their garden. As is apparent from an inspection of the plan attached to the Deed of Exchange, its southern boundary falls short of the actual boundary as delineated by the fence erected by Mr Barker in the 1970s and removed by Mr Cahill in 2005. The Deed of Exchange appears to show the southern boundary as formed by a hedge which follows a curve from east to west. However, the fence erected by Mr Barker in the 1970s, and enclosing the southern end of the garden, is to the south of the apparent line of the hedge. I have seen a number of photographs of the garden, taken over the 1970s and 1980s, and I have heard evidence from Mr Barker as to the fact that he incorporated into his garden this easternmost segment of the Blue Land. The photographs show a well-kept lawn running southwards more or less as far as the boundary of the Blue Land. There is a round flowerbed in the middle, with a post in its centre in Photograph 10(a) and a flowering standard rose in Photograph 12(a). Mr Barker’s evidence was that the first photograph was taken in 1981, and the second in about 1990 or 1991. The rose was planted in 1981, according to him, to commemorate the death of his wife’s dog: Mr Barker said that the post in Photograph 10(a) was the post supporting the new rose. Although he was heavily pressed on the dates in cross-examination, his evidence was not shaken to any great extent, and in my judgment the first photograph shows the garden land in 1981 – some 7 years, of course, after the Barkers had acquired it from Mr Patrick. In any event, since this garden was on the other side of the fence apparently bounding the Cahill’s property, Mr Cahill knew little about the use made of the land and was not really in a position to challenge Mr Barker’s evidence on this score. In all the circumstances, therefore, I find that Mr Barker has been in factual possession of this piece of land for more than 12 years, probably from 1974 but certainly from 1981 onwards.

 

The vegetable plot.

33. There was more dispute on the evidence with regard to this section of the Blue Land. Mr Barker’s evidence was that he designated as a vegetable plot the section of the Blue Land between the garden on the east, and the woodland and southern edge of the Brown Land on the west. According to him, he built a greenhouse – just within the Brown Land, in all probability – in the early 1980s, and created a vegetable plot to its south. According to him, this was fenced on two sides and has been consistently used for cultivation ever since. Before considering the conflict of evidence, I should make this point. The vegetable plot was on the northern side of the post and rail fence constructed by Mr Barker. It was also more or less concealed from the shared drive situated to the north, by the garages and greenhouse constructed on the garden land and the Brown Land. As I have already held, Mr Cahill was unaware that this land was within his ownership: hence his relaxed reaction when Mr Barker fenced in the vegetable plot. Furthermore, the vegetable plot was already in effect fenced within the area under Mr Barker’s control, since it could not be accessed at all from land not otherwise owned or occupied by Mr Barker. This must inevitably affect the ability of witnesses such as Mr Cahill to give a detailed account of the use made of the land by Mr Barker.

 

34. Mr Barker’s use of the land was challenged by Mr Cahill and some of his witnesses. In cross-examination Mr Cahill accepted that Mr Barker originally fenced the vegetable plot in the late 1980s, although he changed this subsequently to a date in the early 1990s. He could not be more specific about the date. However, he insisted that Mr Barker did not consistently cultivate the vegetable patch, but only used it on an intermittent basis over the years. At an earlier stage he had produced some photographs (see page 72 of the Bundle) which appeared to show the plot in an overgrown state. However, as Mr Barker pointed out, these had been taken from Mr Cahill’s side of the post and rail fence, and it was virtually impossible to see the vegetable plot itself past the nettles and other plants which grew along the boundary. This typified the difficulty facing Mr Cahill, namely that he had no access to or means of clearly seeing the vegetable plot, the existence of which had never exercised him until this dispute arose in 2004. I think that the lack of his direct recollection of the appearance of the vegetable plot – hence his reliance on recent photographic evidence, apparent from Paragraph 13 of his first witness statement – is a product of this difficulty.

 

35. The most specific evidence from the Respondent’s side regarding the vegetable plot came from Mr Shane Howell, who lives next door to the Barkers. In cross-examination he was very contemptuous of Mr Barker’s horticultural efforts. He insisted that the most he ever saw growing on the vegetable plot were four onion plants, which he thought was rather curious. According to him, most of the plot was overgrown and uncultivated. When challenged as to how he was able to see anything on the plot, he said he was able to look into the vegetable plot from his upstairs window, and it was on the basis of this observation that he gave his rather damning view of Mr Barker’s horticulture. He also accepted that he had a personal animus against Mr Barker, for a number of reasons – as he put it: “There’s been bad feeling between the families…….for 25 years.” Although he insisted that he had buried the hatchet, I am afraid that his demeanour, and the contemptuous way in which he spoke of Mr Barker, suggested that his ill-feeling towards Mr Barker had not abated. Furthermore, it appears to me that his view of the vegetable plot from his upstairs window was necessarily restricted. In the light of these matters, I am not prepared to regard his evidence concerning the vegetable plot as reliable.

 

36. Mr Barker was cross-examined at length on the use to which he put the Vegetable plot, and the length of time over which that use took place. I do not think that this made much of an impression on him, certainly as regards the substance of his evidence. It seems to me that the “objective” facts largely speak for themselves. It is common ground that he built a greenhouse, and fenced in a piece of land as a vegetable plot. Even Mr Cahill accepted that the fence was built in the early 1990’s (having resiled from his earlier answer that it was constructed in the late 1980’s). The Land Registry surveyor noted the age of the fencing as being “5/10 years”, but on any footing this would not seem to be right. The greenhouse itself – which is somewhat dilapidated - appears to be of quite an age, certainly more than 10 years old, in my view. In the light of the evidence from Mr Barker, and his wife and son, I conclude that there has been consistent use of the vegetable plot for at least 13 years prior to this application being made. In my judgment, the greenhouse and fencing were present no later than 1990. There seems little point in building a greenhouse, and laying out a piece of land as a vegetable plot, unless some use is going to be made of them. Thus the inherent probabilities support the unequivocal evidence of the Barkers, and I find that there has been at least intermittent cultivation of the plot by Mr Barker since that time. Of course, the entire area was enclosed within land controlled by the Barkers no later than the erection of the post and rail fence to the south, in 1975. From that point on, the predecessors in title of Mr Cahill, and Mr Cahill himself, were excluded from entering the vegetable plot from the south. Having regard to the enclosure of the Brown Land, and the existence of the Barkers’ garden at the point of access from the common drive, in practice everyone was also excluded from entering the vegetable plot from the north.

 

The woodland area

37. In respect of this area of the Blue Land, the extent of the user claimed by Mr Barker was quite limited. According to Mr Barker, in the late 1980s he and his son decided to plant some conifer trees in the woodland area. Neil Barker had started a floristry business in 1985, supplying wholesale and retail customers. Evergreen foliage was used as part of the floral tributes which he made up for customers. The foliage was originally bought in, but Neil realised that it would be cheaper if he could have access to his own trees. Accordingly, so the Barkers say, they purchased some 50 Cupressus trees which they planted in rows within the woodland in the late 1980s. Since that time, they have “harvested” the trees, by removing foliage for the purposes of the business, and generally pruning and managing the trees. It is undoubtedly true that an inspection of the site does reveal a section of conifer trees, which do have the appearance of having been planted in uniform rows. The photograph at page 109 of the Bundle gives an idea of this. Although no expert evidence was adduced as to the age of these trees, they are clearly well established. For what it is worth, the Land Registry surveyor noted the conifers as 10-15 years of age – consistent with having been planted around 1990.

 

38. Mr Cahill’s evidence was as follows. He recollected that Mr Barker did indeed plant conifers in the woodland, but he said that this occurred in 1994 or 1995. He gave evidence that he had a conversation with Mr Barker while he was planting the trees, and asked him what he was doing. Mr Barker replied that he was doing it to “enhance” the woodland, according to Mr Cahill. Mr Cahill did not object, since he thought that “it would add to the area remaining wild” (see Paragraph 19 of his witness statement). Curiously, Mr Cahill also gave evidence that the Barkers planted some additional trees at the same time, namely 39 Norway Spruce trees. His evidence therefore was that the Barkers planted nearly 80 trees. However, he denied that they were planted in rows, and said that the Barkers had “manufactured” the evidence to make it look as though the trees were in rows. This answer was, I think, referring to the photograph at page 109 of the Witness Statement bundle which appears to show uniform rows of conifer trees. The point of his evidence, I think, was to demonstrate that even though it was accepted that Mr Barker had planted trees in the woodland, this was done with his express consent.

 

39. In essence, these are the conflicting items of evidence, which I must resolve. Once again, I must choose between Mr Barker’s and Mr Cahill’s version of events. Not for the first time, I prefer Mr Barker’s evidence on this point. There are two particular reasons, apart from Mr Cahill’s credibility generally. First, as already explained, I do not believe that Mr Cahill knew that he owned the land. He would not therefore have considered himself entitled to give or withhold permission. Secondly, even within its own terms, his evidence does not make sense. It is not credible that he could have believed that a plantation of commercial conifer trees could possibly have enhanced the charm of a deciduous “bluebell wood”. The trees, as he himself recognised, are not attractive specimens, and are quite out of character with the native trees. If, as he maintained, he was a keen lover of the natural environment, and wished to preserve the wood as a sanctuary, this plantation would have been anathema to him. His evidence is inherently improbable. Accordingly, I find that Mr Barker planted these trees without any discussion with Mr Cahill and, it follows, without any consent from Mr Cahill. I have no reason to doubt the evidence of Mr Barker and his son that the trees were planted in the late 1980s – I shall hold, for these purposes, that they were in place by 1989. Although Mr Cahill said that they were planted in the mid 1990s, I have no more reason to accept that he was telling the truth about this date than about the conversation itself. I also find that the Barkers did take foliage from these trees on a regular basis, for the purposes of Neil Barker’s business, and probably did some minor clearing and pruning thereafter.

 

Factual possession - summary

40. My findings with regard to the Blue Land are, therefore, as follows:

40.1 The garden land has been occupied as part of the Barkers’ garden since at least 1980;

40.2 The vegetable plot has been enclosed since 1990 and cultivated to a greater and lesser extent since that date;

40.3 The woodland area was planted with conifers, for commercial purposes, no later than 1989, and Mr Barker or his son have harvested and maintained the trees since that date;

40.4 The entire southern boundary of the three areas of land referred to were fenced off from Mr Cahill’s land by 1985;

40.5 The Blue Land in its totality (apart from the area to the west of the NCB fence which is not claimed by the Barkers) has since 1985 been enclosed within the boundaries of the land either owned or occupied by the Barkers.

 

The legal test

41. The next question which I must address is whether the activities carried out by Mr Barker on the Blue Land amount to “factual possession” as that phrase has been judicially interpreted. As I indicated earlier in this Decision, the Respondent has taken a point with regard to any period of adverse possession that falls after 1^st October 2000, being the date when the Human Rights Act 1998 came into force. This point is derived from the decision in Beaulane Properties v Palmer (a case which began in this jurisdiction). However, before I come to consider this issue, I need to decide whether the Barkers have, by reference to the law existing prior to that date (if different), established factual possession. It is impossible to improve upon the following definition of factual possession given by Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470-71, as expressly approved by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 436:

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

42. Applying that test to the garden land and the vegetable plot, I have no hesitation in saying that the Barkers have established factual possession. They incorporated the garden area of the Blue Land within their garden and fenced it off from the Cahill land and thereafter treated it as part of their garden. With regard to the vegetable plot, they enclosed it as a separate area and have cultivated it, on and off, since 1990. However, they had already excluded Mr Cahill’s predecessor in title (and subsequently Mr Cahill) from both areas since the erection of the post and rail fence since 1975 and had been in sole occupation thereof since that date. They have been in sole physical control of the land and have used it for their own purposes: since 1990 in the case of the vegetable plot. Accordingly, I find that the Barkers have been in adverse possession of both areas since 1975. Alternatively, in the case of the vegetable plot, they have been in adverse possession since a date in 1990. The position with regard to the woodland is slightly less clear. Although of course it was enclosed by the Barkers, and Mr Cahill excluded – as I have found – the acts of user were less regular and consistent than in relation to the other areas of the Blue Land that I have referred to. Essentially, all that Mr Barker did was to plant trees in one part of the woodland, and thereafter take cuttings from those trees, coupled with some management of those trees. The remainder of the woodland was, however, left in its pristine state. Can these activities, without more, constitute factual possession?

 

43. In my judgment, the Barkers can establish factual possession of the woodland. It seem to me that the key lies in this passage in the definition of Slade J quoted above: “The question whether acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed.” This area of the Blue Land is woodland. It has never been used for any particular purpose. It would be arguable, I think, that mere enclosure of the land within the Barkers’ control would satisfy the test of “an appropriate degree of physical control”. In this case, however, the Barkers have gone beyond this, by planting 50 (or 80 according to Mr Cahill) trees on the land and using those trees for the purpose of Neil Barker’s business. Given the nature of the land, it is my view that the twin acts of enclosure and actual use of the land for planting, are sufficient to constitute factual possession for these purposes. The enclosure took place in 1985: the tree-planting no later than 1989.

 

44. Accordingly, I find that the Barkers have been in factual possession of the entirety of the Blue Land (a) since 1975 in the case of the garden land, (b) since 1985 or 1989 in the case of the woodland and (c) since 1975, alternatively 1990, in the case of the vegetable plot.

 

Intention to possess

45. In order to constitute adverse possession sufficient to bar the paper owner’s title, a squatter must establish both factual possession and an intention to possess. As to this latter requirement, it has been said that such an intention may be, and frequently is, deduced from the physical acts of possession themselves – see Lord Browne-Wilkinson in the Pye case at page 435H. Slade J, in Powell v McFarlane (at page 472), formulated the requirement as being an:

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

Lord Browne-Wilkinson added a further gloss on these words. First, it is not necessary for the squatter to have an intention to own the land – merely to possess it in the normal sense of the word. Secondly, the need to exclude the world at large including the paper owner is qualified, since a squatter will be aware that the paper owner can recover the land if he brings proceedings within 12 years of the squatter’s entry.

 

46. Mr Barker’s evidence was that he believed that the Blue Land – as well as the Brown Land – had been abandoned by the paper owner. He said that he had made enquiries from the son of Mrs Stones – who had sold the property to him – who had told him that the company which had divided up Snydale Hall was no longer in existence. Nor did he realise that the Blue Land was registered at HM Land Registry. It is certainly true that there was quite a large area of vacant land around Snydale Hall – particularly to the west – which does not appear to have been included in any of the individual conveyances. Apart from the Brown Land, for example, the area immediately to its north has been occupied by and now registered to the Howells family. Furthermore, it would have been far from obvious on the ground that any part of the Blue Land belonged to Mr Cahill. Although there once seems to have been the remains of a fence between the Brown Land and the Blue Land, the obvious boundary with the field would have been the fence replaced by Mr Barker in 1985. Furthermore, Mr Cahill himself was not aware that he owned the Blue Land. Having regard to all the evidence, and particularly (but not exclusively) the evidence of enclosure by Mr Barker, I conclude that he and his wife did have a sufficient intention to possess the Blue Land from the respective dates when factual possession commenced.

 

The post October 2000 position.

47. Mr Klein, for the Respondent, argued that any “adverse” possession occurring after 1^st October 2000 had to be assessed in the light of the decision of Mr Nicholas Strauss QC in Beaulane v Palmer [2005] 3 WLR 554. His submission was mainly tied in to the date on which the Southern Fence was reconstructed by Mr Barker, which, Mr Cahill contended, was in “late 1988”. Since I have found as a fact that the fence was reconstructed no later than 1985, on this aspect the Barkers do not need to rely on any adverse possession subsequent to the commencement of the Human Rights Act 1998. It is just possible, however, that there is some material post-October 2000 possession. This might be the case if the relevant date for the commencement of factual possession with regard to the vegetable plot was 1990, or 1989 for the woodland, or indeed if I am wrong about the dates on which factual possession commenced in relation to the other parts of the Blue Land. I must therefore consider this argument.

 

48. According to Mr Klein, the Beaulane test requires me to consider whether any use by Mr Barker subsequent to the cut-off date in 2000 is truly “adverse” to Mr Cahill. He correctly submits that the decision in Beaulane has revived the doctrine enunciated in Leigh v Jack (1879) 5 Ex D 264 (CA), namely that a squatter’s possession of land is only to be regarded as “adverse” to the paper owner if the squatter’s use is inconsistent with the intentions of the paper owner. Leigh v Jack itself was in effect overruled by Schedule 1 paragraph 8(4) of the Limitation Act 1980, and has been heavily criticised in a number of cases, not least by the House of Lords in the Pye case itself. Lord Browne-Wilkinson described the Leigh v Jack line of authority as “heresy”, with which description I respectfully agree. However, it was by a revival of this doctrine that Mr Strauss QC sought to satisfy the requirements imposed on him by the Human Rights Act 1998.

 

49. Fortunately, I do not have to consider how far I must apply Beaulane in this case, and whether I should apply the full rigour of the revived heresy in considering the Barkers’ possession. I shall simply assume for the purposes of this Decision that Mr Klein is right, and that the Barkers’ post-October 2000 possession has to be regarded as inconsistent with Mr Cahill’s intentions with regard to the Blue Land before it can be relied on as barring his title. However, and even on that assumption, I find that:

49.1 With regard to the Blue Land generally, Mr Cahill had no intentions whatsoever since he was not aware that he owned any part of it.

49.2 If I am wrong about his knowledge of his ownership of the Blue Land:

49.2.1 Even on his own evidence, his only intention was to retain the woodland area as a natural “bluebell wood”. He expressed no intention with regard to the remaining parts of the Blue Land.

49.2.2 I do not accept that he did have this intention with regard to the woodland. I believe that his characterisation of the land as a “bluebell wood” is a retrospective construct and there is no reliable evidence that he had any specific purpose in mind for the woodland.

49.2.3 Even if he did have such a purpose, the activities of the Barkers in (a) enclosing the woodland and excluding him from it and (b) planting non-native trees in rows for commercial purposes, were clearly inconsistent with such an intention.

Accordingly, whether or not Beaulane applies to any period of the Barker’s possession of any part of the Blue Land, it makes no difference. The quality of their possession is sufficient to bar Mr Cahill’s title

 

50. At this point, I propose to consider some further issues of law which were raised by Mr Klein on behalf of the Respondent.

50.1 First, it is submitted that the planting of trees on one part only of the Blue Land – in the western section – is insufficient to amount to possession of the whole of the land. Clearly, this submission can only apply to the woodland area, since separate and different acts of user are relied on in relation to the two other sections. Furthermore, it is said that tree planting does not sufficiently manifest an intention to exclude the true owner. This submission goes both to factual possession, and to intention to possess. Mr Klein referred me to three cases on this point: Lambeth LBC v Blackburn [2001] EWCA Civ 912 per Clarke LJ at paragraph 18, Inglewood Investment Company v Baker [2003] 2 P & CR 23, and Tennant v Adamczyk [2006] 1 P & CR 485.

50.2 The answer to this submission is that the totality of the activities relied on by the Barkers are sufficient. Not only did they plant and harvest trees on the woodland, but they also enclosed it to the exclusion of the paper owner, Mr Cahill. These acts together are, as I have found, sufficient acts of possession. Furthermore, the whole of the woodland was enclosed (and the significance of the Southern Fence is that this cut the land off from the remainder of the paper owner’s land). In the circumstances it would be artificial, and plain wrong I believe, to conclude that the whole of the woodland was not in the possession of the Barkers. Furthermore, these acts – of enclosure and planting – are overt manifestations of an assumption of control of the land. The true owner was actually excluded and was clearly aware of that fact.

50.3 It is submitted that the Barkers concealed their true intentions, by pretending that they were planting the conifers for the common good, as opposed to their own benefit. Since I have concluded that this conversation never took place, the legal argument does not of course arise.

50.4 At paragraphs 35 to 38 of his Skeleton Argument, Mr Klein referred me to three cases which, he says, supports his argument. These cases all turn on their own facts and, having regard to the findings which I have made, they do not in my judgment take the matter any further.

50.5 Mr Klein also referred me to an authority, namely Lord St Leonards v Ashburner (1870) 21 LT 595, which Mr Le Seeleur had relied on in connection with the planting of trees. However, this was more concerned with the means by which a landowner is obliged to prove his title against a squatter, and is not, I think, very much in point here.

 

51. A claim to title based on adverse possession is almost invariably resolved on the findings of fact that are made. The legal principles, as conveniently summarised by the House of Lords in the Pye case, as potentially modified by Beaulane v Palmer in relation to the period after October 2000, are well known. In the light of my findings in this case, there is no factual support for Mr Klein’s ingenious arguments as set out in his Skeleton Argument and closing submissions.

 

52. I shall therefore direct the Chief Land Registrar to give effect to the Barkers’ application to be registered as proprietors of the land comprised in their application dated 18^th September 2003, but excluding that part of the land which lies to the west of the NCB fence, namely the fence which currently marks the western boundary of the part of the Blue Land occupied by the Barkers. It may be that the best practical solution would be for the Land Registry to prepare a new filed plan of the Title which accurately reflects the fact that the western boundary of the land occupied by the Barkers stops short of the apparent legal boundary between Mr Cahill’s title and the land to the west. In fact, Mr Cahill has already erected a fence along the “true” western boundary of his land, which is of course some distance to the west of the line of the NCB fence.

 

53. I have not heard arguments as to costs. It would be usual to direct the unsuccessful party, the Respondent in this case, to pay the successful party’s costs. Costs normally follow the event in the absence of special circumstances. I therefore direct the Applicants to file and serve within 21 days of the date of this Decision a detailed breakdown of their costs incurred since the commencement of the adjudication. I shall then allow the Respondent the opportunity of making written submissions both as to the principle on which costs should be awarded, and as to the quantum. Such submissions should be filed and served 14 days after the bill of costs is served on him. The Applicants will then have 7 days in which to reply. When all this material is to hand, I shall make an order with regard to the costs. If I am persuaded that the Applicants should pay the Respondent’s costs, I would of course give them the opportunity of commenting on quantum.

 

 

 

OWEN RHYS

DEPUTY ADJUDICATOR TO HM LAND REGISTRY

DATED THIS 3^rd DAY OF APRIL 2007