REF/2013/0242

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

(1) JOYCE BELL

(2) TERENCE BELL

APPLICANTS

 

and

 

(1) JAMES COCHRANE MACFARLANE

(2) KAREN J MACFARLANE

FIRST RESPONDENTS

and

 

(1) R J LEAN

(2) S LEAN

SECOND RESPONDENTS

 

 

Property Address: Land on the south side of 22 Furrough Cross

Title Numbers: DN628191

 

 

Before: Judge Michell

 

Sitting at: Newton Abbot Magistrates Court

On: 8 ^th May 2014 and 18 ^th July 2014

 

 

Applicant Representation: In person

Respondents Representation: Mr Joseph Quinn of Quinn & Co., Solicitors

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

Cases referred to

Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87

J A Pye (Oxford Ltd) v Graham [2003] AC 419

R (on the application of Wayne Smith) v Land Registry [2010] EWCA Civ 200

Suffolk County Council v. Moran [1979] AC 705

Harvey v. Truro Rural District Council [1903] Ch 638.

Halsbury’s Laws of England Vol. 55 at paragraphs 110 to 127

 

 

1. Mr and Mrs Bell live at 22 Furrough Cross, Babbacombe, Torquay. On 23 ^rd October 2012 they applied to HM Land Registry to be registered with title to a small area of unregistered land on the grounds that they have been in adverse possession of the land for a period in excess of 12 years. The Respondents objected to the application. The original basis of their objection was that the Applicants had not been in possession of the land for a sufficient period or at all. That was the basis of objection appearing from the Respondents’ Statements of Case. However, the solicitor for the Respondents raised in his skeleton argument served in February 2014 for the first time the argument that the land formed part of a highway and that the Respondents could not acquire title to part of a highway by adverse possession. I allowed the Respondents to take this point of objection but directed that statements of case be served dealing with the point and that there be disclosure and inspection of documents relevant to it.

 

2. I inspected the land on the first day of the hearing in the presence of all parties. A narrow road runs south from Babbacombe Road. This narrow road is called variously Furrough Cross or Furrough Cross Lane on maps. I shall refer to it as Furrough Cross. On the east side of the road and at right angles to it there are two rows of terraced houses. The houses are single fronted and two storey. The two rows of houses each have rear yards and the yards back onto each other. The houses on the northern of the two rows are numbers 15 and 8 to 14 Furrough Cross, 15 adjoining 8 and being on the western end of the terrace and 14 being at the eastern end. The fronts of 8 to 14 Furrough Cross face north onto a roadway that runs off Furrough Cross. I shall refer to this roadway as “the northern lane”. The houses on the southern row are numbers 16 to 23. The fronts of 17 to 23 face south and a roadway runs from Furrough Cross across the fronts of these houses. I shall refer to this roadway as “the southern lane”. The southern lane terminates at a gateway into the grounds of a house called 24 Furrough Cross. Furrough Cross and the northern lane are highways maintainable at the public expense. It is common ground that the southern lane is not a highway maintainable at the public expense. To the south of the houses forming 17 to 23 Furrough Cross and on the south side of the southern lane there is a strip of land which is approximately 2 feet higher than the surface of the lane. At the back (or along the south) of that part of the strip which is to the south of 17 to 21 Furrough Cross there is a stone wall, described as a Devon hedge bank. No such bank currently exists to the rear or south side of the part of the strip which is to the south of 22 Furrough Cross. The part of the strip to the south of 22 Furrough Cross is the land the subject of the application referred to me. Along the north side of the strip there runs a low supporting wall or rather, series of walls. The wall in front of the strip where it runs to the south of 22 Furrough Cross has a smooth concrete or plaster finish. The wall along the strip in front of 21 Furrough Cross is made of stones and is not covered in concrete or plaster. There are a number of small cultivated bushes in the strip in front of Numbers 17 to 21 Furrough Cross. The area of the strip in front of Number 22 Furrough Cross is almost entirely covered with large shrubs. These comprise a laburnum bush, a very large fuchsia and two bay trees. Immediately to the south of the strip lies the garden of a house called 9 York Crescent. The owner of 9 York Crescent gave permission for me to enter his garden with the parties to inspect the land. All that can be seen from the southern side of the land is large shrubs with the sort of rough land to be expected under the lower branches of large shrubs. To the south of the roadway in front of Number 23 Furrough Cross is an area of empty land about half the width of the area to the south of Number 22 Furrough Close surrounded on the north and east sides by a low brick wall of a similar height to the supporting walls at the front or north side of the strip in front of Numbers 17 to 22 Furrough Close. To the east of this area there is a garage forming part of 7 York Crescent and owned by the Respondents, Mr and Mrs Lean. Mr Bell referred to this building as being a shed and not a garage. However, it has in its north side a door of the type traditionally used for garages and it is of the same approximate dimensions as a normal single garage.

 

History

3. The houses forming 4 to 23 Furrough Cross appear to be Victorian houses. There was reference in the hearing to an Indenture made on 11 ^th March 1852 by Samuel Fox to Jonathan Thomas but no copy was included in the hearing bundle and no legible copy was produced at the hearing.

 

4. The Ordnance Survey County Series First Edition map for the area shows the two rows of terraced houses, an area in front of 17 to 23 Furrough Cross and then a solid line and a field to the south of that line. To the east of Furrough Cross Lane a road is shown running south of Babbacombe Road. At the northern end of this road on the western side there is shown a row of terraced houses called York Terrace. To the south of York Terrace there is a row of 4 larger houses. Between the rear gardens of the southern two of these and the eastern end of the two terraces forming 4 to 23 Furrough Cross there is a wedge-shaped piece of land, the point of which is at the northern end. The tip of the wedge is shown as meeting the north east corner of 16 Furrough Cross. The base of the wedge adjoins the northern boundary of the field to the south of 17 to 23 Furrough Cross. The wedge is divided by a solid line which is a continuation of the line showing the northern walls of the houses at 17 to 23 Furrough Cross. The eastern end of the strip or road to the south of 17 to 23 Furrough Cross adjoins the western side of the southern part of the wedge.

 

5. In the Second Edition of the County Series map surveyed in 1904 some building is shown at the northern tip of the wedge. In the Third Edition of the County Series map surveyed in 1933 the wall dividing the wedge into two parcels is no longer shown.

 

6. 9 York Crescent was built in about 1953 by Mr and Mrs Launder, who lived there until 1982.

 

7. Mrs Lean’s father, Mr Charles Gray had 7 York Crescent built and he lived there with his family, including his daughter, Mrs Lean from 1952. In 1963 Mr Gray built a garage to the rear of 7 York Crescent, removing part of the hedge bank immediately to the south of 23 Furrough Cross in the process to gain access to the garage. Mr and Mrs Lean purchased 7 York Crescent in 1973 and they have lived there since then.

 

8. The wedge was conveyed by Eileen Moxhay to Charles Gray of “Bylands”, York Crescent, Babbacombe by a conveyance dated 7 ^th September 1959. The land conveyed was described as being

“All That piece or parcel of land situate at the rear of Numbers 9 and 10 York Road, Babbacombe … and lying also to the rear of the Purchaser’s property known as “Bylands” York Crescent Babbacombe … and now used as part of the garden in connection therewith which said piece of land is for the purpose of identification only more particularly delineated on the plan annexed hereto and thereon coloured Pink”.

The land was conveyed with a right of way on foot only

“over and along the yard coloured Brown on the said plan (in common with the Vendor and all others having the like right) for the purpose of gaining access to and from the road marked “Back Road” thereon”.

9. Mr and Mrs Lean applied for planning permission for the erection of a dwelling on the wedge in 1977, which application was refused on appeal on 20 ^th June 1978.

 

10. Mr and Mrs Lean applied in 1987 for planning permission to build a house on the wedge. On the consideration of that issue, the planning committee sought confirmation as to whether Mr and Mrs Lean had a legal right of access over Furrough Lane to the wedge. Their planning consultants, Metcalfe, Hambleton & Co. wrote to the Council on 7 ^th October 1987 stating

“We would confirm that our clients state categorically that they have unrestricted right of both vehicular and pedestrian access to the land in question across Furrough Cross Lane”.

The planning application was refused on 30 ^th October 1987.

 

11. There were produced in evidence a number of letters written in the context of the application for planning permission to build a house in the wedge and the dispute which they arose as to whether there was any right of way in favour of the wedge over Furrough Cross Lane.

(1) Mrs Tirest of 11 Furrough Cross wrote to Mr Bell a letter dated 3 ^rd November 1987 stating that she had lived at 11 Furrough Cross since 1933, that the land fronting 17-23 Furrough Cross was made up in the late 1960s, that the wedge was used by Mr Moxley as a builders yard and that his vehicles regularly used the lane to access the land via a gateway, that Mr Gray purchased the yard in 1959 and transformed it into a garden, creating a hardened strip immediately in front of the gate; that Mr Gray constructed a garage opposite 23 Furrough Cross in 1962 and that the garage and the hardened strip was used regularly until 1973 when the wedge was acquired by Mr and Mrs Lean; that Mrs Tirest rented a piece of the wedge at the north end from Mr Gray from 1959, accessing it from the lane in front of 11 Furrough Cross.

(2) Mr and Mrs Eales wrote to Mr Bell an undated letter in which they said that they had visited Mr and Mrs Lean at 7 York Crescent from 1974 and that during the summers of 1978, 1979 and 1980 they drove a car towing a caravan into the back garden by way of the gate in the southern lane.

(3) Mr Barker wrote a letter dated 2 ^nd November 1987 addressed to “To whom it may concern”, in which he stated that in 1981 he drove into and out of the wedge.

 

(4) Mr Charles Gray wrote a statement dated 4 ^th November 1985 addressed to “To whom it may concern” in which he said that the double gates giving access to the builders yard at the rear of 7 York Crescent owned by Mr Moxhay were in regular use for many years prior to his building 7 York Crescent in 1950 and that the access was via the “southern side of Furrough Cross”, that is the southern lane.

 

12. At this time, Mr and Mrs Lean brought proceedings in the High Court Chancery Division against Mr and Mrs Bell and a Mr Barraclough for an injunction to prevent the obstruction of access over the southern lane to and from the site of 24 Furrough Cross. On 1 ^st December 1987 Mr Bell wrote to Mr and Mrs Lean’s solicitors stating

“I agree Mr and Mrs Lean have a proper right to use Furrough Cross Lane. I do not own the road and would not wish to take their rights away from them. If this impression has been given it is incorrect. We are not responsible for any obstruction across the top of Furrough Cross Lane. We cannot understand why legal proceedings are in process against the above address”.

Mr and Mrs Lean had sought interim injunctive relief by motion in the Chancery Division proceedings but on 18 ^th December 1987 the motion was stood over until trial or further order. Mr and Mrs Lean disclosed an Advice written for them by counsel, advising that if Mr and Mrs Bell and the other defendant, Mr Barraclough made affidavits stating that they believed they did not own the surface of Furrough Cross Lane, accepting that Mr Lean had a right of way on foot and with vehicles over the lane to access the wedge and agreeing not to dispute Mr Lean’s right of way then Mr Lean could withdraw his action. There was no evidence that any such affidavits were made. It would appear that nothing was done in relation to the action following the order made standing over the motion to trial. A member of the administrative staff of the District Registry of the High Court at Torquay wrote to Mr Bell a letter dated 8 ^th March 1989 stating that according to the file, the last thing that happened in the action was the making of the order of 18 ^th December 1987.

 

13. Mr and Mrs Lean made a new application for planning permission in August 1988. In a letter dated 8 ^th August 1988 accompanying the planning application, Mr and Mrs Lean’s planning consultants wrote

“our clients have now obtained legal confirmation through their solicitors and the High Court that their land, and the dwelling proposed, has unrestricted right of pedestrian and vehicular access along Furrough Cross Lane”

and

“As we state above, our clients have now received confirmation from their solicitors … following matters being determined in the High Court that their property does enjoy a right of way along Furrough Cross Lane for vehicular and pedestrian purposes. Therefore, although not strictly speaking a Town Planning issue we can categorically confirm that unrestricted access exists to this site to serve such a proposed dwelling”.

 

14. On 19 ^th October 1988 Mr and Mrs Lean were granted planning permission to erect a house on land adjoining 23 Furrough Cross Lane and at the rear of 7 York Crescent. It was a condition of the grant of planning permission that the dwelling should be constructed “as a complete extension to the existing end terrace property (No 23 Furrough Cross Lane)”. Mr and Mrs Lean appealed against the imposition of that condition so as to enable the new dwelling to be constructed physically independent of the end terrace wall albeit in all other respects giving the appearance of the continuation of the terrace. On 26 ^th July 1989 Mr and Mrs Lean were granted planning permission to erect a dwelling on that land but without the condition that it be built as an extension to 23 Furrough Cross Lane. On 16 ^th November 1989 Mr and Mrs Lean were granted conservation area consent to demolish “part boundary wall to permit access to building plot”. On 24 ^th November 1994 a further planning permission was granted to Mr Lean for the erection of a dwelling on the land. The house which is now 24 Furrough Cross was then constructed.

 

Evidence as to use

15. Mr Bell purchased 22 Furrough Cross in 1985. He said that when he bought Number 22, there was a low wall at the front of the disputed land and that he erected a wire fence at the back, consisting of chicken wire on wooden pegs. There were then some small plants and shrubs on the land. There was a laburnum tree about 6 feet high which the previous owner’s son had started to remove but which Mr Bell replanted. He said that he and his wife bought a fuchsia and a bay tree which they planted in the land. About 4 or so years after moving in, he and his wife bought some small ground cover plants and planted them in the land. Subsequently, he hung a birdfeeder in the tree on the land. Subsequently, he and his son maintained the land by weeding the ground before the ground cover plants were put in and by trimming the sides of the bushes but not the tops.

 

16. Mrs Bell said that she and Mr Bell purchased a fuchsia and a privet bush from the son of the previous owner and that Mr Bell and their son planted these on the land. Mrs Bell also said that in about 1985 or 1986 her mother on a visit to Torbay, brought 2 bay trees which were planted in the land. Mrs Bell also said that she bought some ground cover plants which she planted on the land to stop weeds from growing. Mrs Bell said that she and her family had cut the hedge on the land and repaired the pointing in the wall at the front of the land when necessary.

 

17. Mr Jon Bell is the son of the Applicants. He lived with his parents at 22 Furrough Cross from 1984 until 1995. He said that when the Bells first moved into 22 Furrough Cross the land was a garden. His parents added to the garden but the land was in the form of a garden when they moved there. He had trimmed the bushes on the land using secateurs and a large pair of shears and in the last 6 or 7 years, an electric hedge cutter.

 

18. Mr Lean gave evidence that he had never seen the Bells maintain the land.

He first came to live at York Crescent in 1970. He could not recall there having been low walls at the base of the hedge bank. He had a vague recollection of Mr Rook starting to build the walls around 1973 or 1974. He could not recall where the walls were in relation to the bottom of the hedge bank.

 

19. Mrs Lean gave evidence. She lived at 7 York Crescent from when the house was built in 1951 until 1970 and from 1973 until the present day. Her evidence was that vehicular access to the yard (the site of 24 Furrough Cross) when it was a builder’s yard was gained over the southern lane and also to the garage built by her father at the rear of 7 York Crescent. She had not seen Mr or Mrs Bell carrying out any maintenance work on the disputed land.

 

20. Karen McFarlane lived at 23 Furrough Cross with her mother from about 1999 to 2010 and again from 2012 to the present day. Her evidence was that there had always during her time at Furrough Cross been a fuchsia and a bay tree on the land. She had only once seen Jon Bell trim the bushes on the land and that was after his parents had made the claim to be registered with title to the land based on adverse possession. She said that the land never looked as if the bushes had been trimmed. It was always overgrown.

 

21. James McFarlane is the (husband) of Karen McFarlane. He has lived at 23 Furrough Cross since 2002. His evidence was that he had never seen Mr Bell doing any work on the land. He had on one occasion seen Jon Bell taking some branches off a tree growing on the land. He works at night from 10 pm until 6 am so he thought it was unlikely that he would not have noticed if someone was working on the land.

 

Law – Adverse Possession

22. Paragraph 18(1) of Schedule 12 to the Land Registration Act 2003 provides as follows

“Where a registered estate in land is held in trust for a person by virtue of section 75(1) of the Land Registration Act 1925 immediately before the coming into force of section 97, he is entitled to be registered as the proprietor of the estate”.

Section 75(1) of the Land Registration Act 1925 provided

“ The Limitation Acts shall apply to registered land in the same manner and to the same extent as those Acts apply to land not registered, except that where, if the land were not registered, the estate of the person registered as proprietor would be extinguished, such estate shall not be extinguished but shall be deemed to be held by the proprietor for the time being in trust for the person who, by virtue of the said Acts, has acquired title against any proprietor, but without prejudice to the estates and interests of any other person interested in the land whose estate or interest is not extinguished by those Acts”.

 

23. Section 15 of the Limitation Act 1980 provides as follows:

“15(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

(6)    Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

 

24. Section 17 of that Act provides E+W

“Subject to—

(a) section 18 of this Act; .

at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished”.

Section 18 deals with settled land and land held on trust and is not relevant.

 

25. Schedule 1, paragraph 1, provides as follows:

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession or discontinuance.”

 

26. Schedule 1, paragraph 8, provides:

“(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

(2)          …..…..

(3)          ………

(4) For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.

This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”

27. Thus, the right of action to recover the land is barred whenever 12 years have elapsed

from the time when any right of action accrued. It does not have to be a period immediately before an action is brought. When the right of action to recover the land is barred, the title of the person formerly having the right to bring the action is extinguished.

 

28. The question to be answered when considering whether a person occupying land is “in adverse possession” for the purpose of Schedule 1 paragraph 8 to the Limitation Act 1980 is

“…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.”

(per Lord Browne-Wilkinson in J A Pye (Oxford Ltd) v Graham [2003] AC 419 at paragraphs 36, 37).

 

29. Legal possession is comprised of two elements:

(1)                  A sufficient degree of physical custody and control (“factual possession”); and

(2)                An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” ( ibid paragraph 40).

 

30. Factual possession has been described as follows:

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

(per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham).

 

31. What is required for the intention to possess is the intention to exclude the whole world, including the true owner of the paper title, from the land so far as is reasonably practicable and so far as the processes of the law will allow – see per Slade J. in Powell v. McFarlane above. The intention must not only be the subjective intention of the squatter but the squatter must also show by his outward conduct that he has such an intention. The intention must be manifested by unequivocal action – see Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87. The use of the land must be such that the true owner, if he took the trouble to be aware of what was happening on his land, would know that the squatter was in possession

“It would plainly be unjust for the paper owner to be deprived of his land where the claimant had not by his conduct made clear to the worlds including the paper owner, if present at the land, for the requisite period that he was intending to possess the land” – per Peter Gibson LJ in Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87

 

Have the Applicants been in possession of the Land

32. I find that when Mr and Mrs Bell acquired 22 Furrough Cross, the disputed land was being used to some degree as a garden. The wall edging the disputed land along its northern side had been built and some plants had been planted, including a laburnum. The purpose of constructing the low wall and the low walls in front of the strips opposite numbers 17 to 21 Furrough Cross must have been to create small gardens. The walls were built in the early to mid 1970s. When Mr and Mrs Bell purchased 22 Furrough Cross the vendors were in the process of removing plants from the disputed land, including the laburnum. Mr and Mrs Bell then purchased the laburnum and re-planted it. They also planted a fuchsia and two bay trees. These trees and bushes when planted occupied almost the whole area of the disputed land, which is a quite small area. The planting of these trees and bushes constituted possession of the disputed land and showed an intention to use and occupy the land – see Lord St. Leonards v. Ashburner (1870) 21 LT 595 at 596. Having planted these trees and bushes, Mr and Mrs Bell were not then later dispossessed. Mr and Mrs Bell carried out some minor maintenance work by trimming occasionally the north of the bushes, planting some ground cover plants and carrying out minor repairs to the wall along the northern edge of the disputed land. I do not find on the evidence that anyone else has ever carried out any significant work of maintenance to the disputed land. I am satisfied that they have demonstrated that they have had factual possession of the disputed land and the intention to possess for a period in excess of 12 years prior to the date of their application to HM Land Registry to be registered with possessory title to the disputed land.

 

33. It was submitted that Mr and Mrs Bell did not have the intention to possess but only the intention to protect their privacy from houses to the south of the disputed land. Mr and Mrs Bell did say that they allowed the trees to grow tall in order to protect their house from being seen from houses to the south but this is does not mean they did not have the intention to possess. Protecting their privacy involved controlling what happened on the disputed land, that is, controlling what happened to the trees on that land. Their intention to protect their privacy is rather an indication of why they intended to possess the disputed land than something inconsistent with an intention to possess.

 

Highway

34. The Respondents argued that the land was part of Furrough Cross lane and that the lane is a highway. They submitted that as part of a highway, title could not be obtained by adverse possession.

 

35. In R (on the application of Wayne Smith) v Land Registry [2010] EWCA Civ 200, the Court of Appeal held that the public right of way over a highway maintainable at the public expense could not be barred by possession by a squatter and that the statutory title of a highway authority to a highway could be extinguished by adverse possession. The case turned on the provisions of section 263 of the Highways Act 1980, which Elias LJ called “the critical feature”. His Lordship said

“44. I agree with Mummery LJ that the critical feature in this case is section 263 of the Highways Act. That section vests title to a highway which is maintainable at public expense in the highway authority responsible for its maintenance, namely Cambridgeshire County Council. Absent this provision, it would in principle be possible for title to land to be acquired by adverse possession notwithstanding that it is a public highway: see J A Pye (Oxford) Limited v Graham [2003] 1 AC 419 where title to a large tract of land was acquired by adverse possession, notwithstanding that it was subject to a public footpath. However, since the public right to use a highway runs with the land, a new owner would take subject to the public right of way, as the Pye case makes clear. He cannot get a better title than the person whose title he is displacing.

 

46. … the effect of section 263, as Mr Watkinson recognised, is that whilst the highway remains maintainable at public expense, no title can be obtained by adverse possession. Title is at all times automatically vested in the highway authority. Accordingly, if title to the land is to be acquired, it can only be if the land ceases to be a highway. If that were to occur then section 263 would no longer bite since there would be no public right of way being maintained. Furthermore, the Council would cease to have title at that point, and any claim to title by adverse possession would be asserted as against their successor or successors in title.

 

48. Mr Watkinson has not been able to identify any statutory provision, nor any authority, to support the principle that the right of the public to use land as a highway can be defeated by adverse possession. The Limitation Act merely sets a 12 year limit to bringing an action to recover land. It has no application to rights of way. Nor could the principles readily apply to such public rights, given that the right can be exercised by a large and amorphous body of individuals none of whom may have sufficient interest or inclination to uphold the right as against the squatter”.

 

36. Mummery LJ said

“57. In principle the existence of a right of way over land, whether it is a private right of way or a public highway, does not necessarily prevent a person from claiming adverse possession of that land under the Limitation Act 1980. See for example, Roberts v. Swangrove Estates Ltd [2007] 2 P & CR 326 at 341; affirmed [2008] Ch 439; and JA Pye (Oxford) Ltd v. Graham [2003] 1 AC 419 in which part of a large expanse of land, the title to the whole of which was extinguished by adverse possession, was subject to a public footpath.

58. In the case of highways maintainable at public expense section 263 of the Highways Act 1980 is critical. It expressly vests a highway maintainable at the public expense in the authority who are for the time being the highway authority for the highway. In the face of that statutory vesting of title it is accepted on behalf of Mr Smith that he can only succeed if he can establish that the public right of way has been extinguished over that part of the land to which he claims adverse possession: in other words that there is no longer a public highway over that land to be vested by force of statute in the highway authority. In my judgment it has not been shown that that has occurred by operation of law either under statute or at common law.

59. First, statute. The Limitation Act 1980, on which Mr Smith relies to bar any claim that the Cambridgeshire County Council might have as the relevant highway authority, is precise on the point of what is extinguished on the expiration of the limitation period i.e. the period prescribed by that Act for any person to bring an action to recover the land. Section 17 provides that "the title of the person to the land shall be extinguished." Nothing is said in that section or in the rest of the 1980 Act about extinguishing the rights of the public or of anyone else over that land at the expiration of the prescribed period. Further, no procedure under the Highways Act 1980 or other statutory provision has been invoked to extinguish the public right of way over the land.

60. Second, common law. None of the cases cited supports the proposition that a public right of way is extinguished at common law in consequence of the expiration of the statutory limitation period and the statutory extinction of title of the person seeking to recover possession on the basis of a better title. In fact the trend of the authorities is that the person acquiring a new title by adverse possession takes subject to an existing and continuing public right of way.”

 

37. Section 263 of the Highways Act 1980 provides

“Subject to the provisions of this section, every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway” .

 

38. R (on the application of Wayne Smith) v Land Registry [2010] EWCA Civ 200 was concerned with a highway maintainable at the public expense . It will have application here only if the land is part of a highway and the highway of which it is part, is a highway maintainable at the public expense. Mr Quinn, who appeared for the Respondents, did not seek to argue that the lane is a highway “maintainable at the public expense”. Indeed, he submitted expressly that the lane is not a highway maintainable at the public expense. Mr Quinn did not refer me to any authority as to whether land over which a highway not maintainable at the public expense runs can be acquired by adverse possession. This point did not arise for consideration in R (on the application of Wayne Smith) v Land Registry but both Elias LJ and Mummery LJ expressed the view that it would in principle be possible for title to land to be acquired by adverse possession notwithstanding that it is a public highway not maintainable at the public expense. In J.A. Pye (Oxford) Ltd v. Graham [2013] 1 AC 419 part of the large area of land title to the whole of which was extinguished by adverse possession, was subject to a public footpath. In the absence of detailed argument or authority, I am not prepared to hold that the Applicants claim would fail if the disputed land was part of a highway not maintainable at the public expense. The case of J.A. Pye (Oxford) Ltd v. Graham indicates that land that is a highway can be adversely possessed.

 

39. Having rejected the argument that the disputed land could not be adversely possessed if it is part of a highway, it is not strictly necessary for me to determine whether it is a highway but since the point was argued and some evidence was given, I shall consider the point.

 

40. I should state firstly that I reject the argument put forward by Mr and Mrs Bell that the disputed land does not extend further north than the former line of the base of the northern side of the hedge bank prior to construction of the low walls in front of the disputed land and the strips in front of 17 to 21 Furrough Cross. Mr and Mrs Bell produced no evidence as to where the base of the hedge was. The best evidence I have is the Ordnance Survey map based on a survey made in 1975 and the Ordnance Survey map based on a survey made in 2009. When those two plans are compared, it is clear that the Ordnance Survey considered the disputed land was part of the southern lane and not part of the hedge bank. The disputed land is shown clearly to the north of the hedge bank. The southern lane was wider than the northern lane and also wider than Furrough Cross Lane itself. It is clear to me that the disputed land and the other gardens along the south side of the southern lane were created by building the low wall some distance to the north of the base of the hedge bank and not adjacent to the base of the hedge bank. It follows that the disputed land is to the north of the hedge bank. If the southern lane is a highway then the public right of passage will extend to the hedge bank and thus over the disputed land – see Harvey v. Truro Rural District Council [1903] Ch 638.

 

41. As to whether the lane is a highway at all, Mr Quinn referred me to the case of Suffolk County Council v. Moran [1979] AC 705 and to the following passage in the judgment of Lord Diplock at p. 709H to 710B

“The law of highways forms one of the most ancient parts of the common law. At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them. A full highway or “cartway” is one over which the public have rights of way (1) on foot, (2) riding on or accompanied by a beast of burden and (3) with vehicles and cattle. A “bridleway” is a highway over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of driftway i.e., driving cattle, while an footpath is one over which the only public right of passage is on foot.

At common law too a public right of way of any of the three kinds has the characteristic that once it has come into existence it can be neither extinguished nor diminished by disuse, however long the period that has elapsed since it was last used by any member of the public – a rule of law that is the origin of the brocard “once a highway, always a highway”.

Whilst the passage is a useful and concise statement of the kinds of highway which may exist, it provides no assistance as to how it is to be determined whether land is subject to any public rights of passage so as to be a highway of some kind. In Suffolk County Council v. Moran, there was incontrovertible evidence that the lane in question was originally a public highway leading to an ancient port from which the sea had since receded and had continued to be used by the public as a cartway until the middle of the 19 ^th century when such use ceased. The question for the House of Lords was as to the effect of the lane being shown on the definitive map and statement prepared in 1956 under section 32 of the National Parks and Access to the Countryside Act 1949 as a “footpath”. The House of Lords held by a majority that the effect was that the only purpose for which the lane could be used by the public was as a right of way on foot only. The wider public rights of passage could not be exercised while the definitive map remained unamended. The case provides no guidance as to how it is to be determined whether the lane is a highway or if the lane is a highway, as to the extent of the land subject to public rights of passage.

42. Some useful guidance as to the relevant law is to be found in Halsbury’s Laws of England Vol. 55 at paragraphs 110 to 127. I take the following propositions of law from that volume.

(1) A public right of way can be created either by dedication and acceptance at common law or by statute.

(2) A way becomes a highway by reason of a dedication by the owner of the soil ¹ of the right of passage to the public and of an acceptance, generally by actual use of the way ², of the right by the public .

(3) Dedication may be express or may be inferred from use of the way by the public

(4) For dedication to be inferred the land in question must have the physical attributes which enable it to be categorised as a highway

(6)     T he fact that a way has been used by the public is evidence from which a dedication may be inferred if the way has been used for so long and in such circumstances that the proper inference is that the owner of the soil had said, or so conducted himself as to imply, that he had granted the right of passage to the public .

(7) Twenty years’ user will give rise to a statutory presumption of dedication under S. 31(1) and (2) of the Highways Act 1980 (a statutory presumption that was first enacted by the Rights of Way Act 1932 s. 1(6).

 

(8) At common law, the question of dedication is one of fact to be determined on all the evidence .

 

(9) User by the public for so long and in such a manner that the owner of the way must have been aware that members of the public were acting under a belief that the way has been dedicated may raise a presumption of dedication but any presumption raised by that user may be rebutted.

 

(10) The nature of the place in which the road or way is situated may support the presumption of dedication, particularly where a new street is constructed between existing highways to serve new houses. If a way leads nowhere, this is a point for consideration and may rebut the presumption of dedication, but an inference of dedication may be drawn in the case of a cul-de-sac, for a highway need not be a thoroughfare

 

(11) In order for a dedication to be inferred, user of a way by the public must be as of right, i.e. open, not by force and not by permission given from time to time. However, it is for the party seeking to show that a way is not subject to public rights of way to establish that the user was by force or by permission given from time to time – see Jones v. Bates [1938] 2 All ER 237 at 245-246 C.A..

 

(12)   If a number of persons have a private right of way over the land, evidence of user by others will not tend to show dedication as a public right of way. If there is no way at all, everyone should be recognised as a trespasser, whereas if there is a private way persons not really entitled to use it may easily pass unnoticed. On the other hand, if a large number of persons are entitled as of right to use a way, it may be argued that it is not worth the owner's while to exclude the general public: see Grand Surrey Canal Co v Hall (1840) 1 Man & G 392.

(13) The Highways Act 1980 provides that where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years before the public right to use the way is brought into question, it is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate.

 

Evidence as to User by the Public

43. The evidence of user of the lane was principally of user by the owners of property adjoining the lane. In addition to evidence of user by the inhabitants of 16 to 23 Furrough Cross, there was evidence of user to gain access to and from the land which is now the site of 24 Furrough Cross and the garage built at the back of 7 York Crescent. Mr Brian Grey gave evidence of his father using the lane from 1959 to access the yard that is now the site of 24 Furrough Cross, through double gates and to access the garage he built at the rear of 7 York Crescent. Mrs Lean gave similar evidence. Evidence of use by others was given by Karen McFarlane and by Mrs Lean. Karen McFarlane said that members of the public had walked down the lane over the years. Mrs Lean gave evidence that she had seen members of the public walk up the lane who then said to Mrs Lean that they thought the lane went somewhere.

 

44. The Respondents produced a number of written statements from individuals in which they describe use of the lane. Some of the statements date from between 1985 and 1987 when Mr and Mrs Lean were seeking to establish a right of way over the lane to access what is now the site of 24 Furrough Cross. A further four witness statements were prepared for the present proceedings. However, none of the makers of these statements attended to give oral evidence and to be cross-examined. In those circumstances, it would not be just to place any weight of their evidence where it is controversial.

 

Is the southern lane a highway not maintainable at the public expense?

45. The southern lane has the physical attributes of a highway. It is a lane or road and it connects to the public highway. There is nothing to prevent its use by the general public. It has been used by a number of people over the years, being the occupants of 17 to 23 Furrough Cross and the yard, now 24 Furrough Cross and by Mr Gray and Mr Lean to access the garage at the rear of 7 York Crescent. It has also been used by visitors to those properties. It has been so used for a period in excess of 20 years. No evidence has been produced to establish that the owners of those properties have a private right of way over the southern lane. Mr Bell has referred to a predecessor in title being granted a right of way by a deed made between Samuel Fox and Mr Thomas dated 11 ^th March 1852 but no copy of that deed was produced. Had it been necessary for me to decide if the southern lane was a highway I would on balance have found that it was. The position might have been different had evidence been produced of the grant of private rights of way over the southern lane in favour of the owners of 17 to 23 Furrough Cross.

 

Conclusions

46. The Applicants have established that they have been in adverse possession of the disputed land for a period in excess of 12 years. The disputed land is not part of a public highway maintainable at the public expense. If it is part of a highway not maintainable at the public expense, this will not prevent title being obtained by adverse possession. I shall direct the Chief Land Registrar to give effect to the application of the Applicants to be registered with possessory title to the disputed land.

 

Costs

47. My preliminary view is that the Respondents must pay the Applicants’ costs of the proceedings, to be assessed. The Applicants have succeeded. It would be just for costs to follow the event. Any party who wishes to submit that some different order should be made as to costs should serve written submissions on the Tribunal and on the other party by 5pm on 29 ^th October 2014.

 

 

BY ORDER OF THE TRIBUNAL

 

 

 

Dated this 13 ^th day of October 2014