European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15642/05
by TOPPLAN ESTATES LTD
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 29 April 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 26 April 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

The applicant, is a limited company registered in London. It is represented before the Court by Bude Nathan Iwanier, a firm of lawyers practising in London. The respondent Government are represented by Ms A. Sharif, Foreign and Commonwealth Office.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In March 1992, the applicant purchased, from the liquidators of an insolvent company, 13 acres of land consisting of open fields in Lancashire and was registered as proprietor of the land at HM Land Registry. A neighbouring farmer, whose father had held a grazing licence over the land, had been using the land for grazing and for harvesting hay, without any right to do so, since 1 January 1983, but the applicant was unaware of this at the time of purchase.

On 23 October 2003, the High Court dismissed the applicant’s claim to possession in respect of all but a very small portion of the land which had been used by the local council during roadworks. The High Court found that the farmer had been in adverse possession from 1 January 1983 and had remained so for 12 years from that date, except in the case of the working area. As such, it considered itself bound by the decision in J. A. Pye (Oxford) Ltd v Graham & Another [2003] 1 AC 419 to order that the farmer be registered as proprietor of the land other than the working area.

The Court of Appeal dismissed the applicant’s appeal on 27 October 2004 for essentially the same reasons as those given by the High Court. It held, inter alia, that there was no obligation in law for a squatter to draw the true owner’s attention to the fact that time was running against him and concluded, as had the High Court, that the farmer’s activities on the land had been open and apparent.

The Court of Appeal refused the applicant leave to appeal to the House of Lords on 19 November 2004. The House of Lords refused the applicant leave to appeal on 16 March 2005.

B.  Relevant domestic law

The domestic law on limitation and adverse possession is set out in J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, §§ 24-35, ECHR 2007,-

THE LAW

The applicant submitted that the loss of ownership of its land because of twelve years’ adverse possession upset the fair balance required by Article 1 of Protocol No. 1 to the Convention and was a disproportionate interference with its property rights in violation of that Article. Article 1 of Protocol No. 1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The applicant company emphasised that, as far as it was aware at the time of purchase, the land was vacant. Moreover, the farmer had deliberately sought to conceal his occupation of the land because he hoped to gain ownership of it through adverse possession. The applicant purchased the land, having carefully inspected it, from the liquidators of the selling company, and would have had no remedy against that vendor because it was insolvent. Legislation which permitted a party deliberately to conceal the fact of possession and thereby mislead the title owner, resulting in the title owner being deprived of his possessions, could not be in the public interest and was in breach of Article 1 of Protocol No. 1.

The Government submitted that the complaint under Article 1 of Protocol No. 1 should be declared inadmissible for non-exhaustion of domestic remedies, since the limitation period had started running in favour of the farmer nine years before the applicant company acquired the land. It had therefore had a remedy against the vendor, which it had not used, for breach of the obligation to give vacant possession. Further, and in any event, the Grand Chamber’s judgment in Pye led to the inevitable conclusion that the present application must be dismissed.

The Court does not consider that it is necessary to determine the Government’s preliminary objection about non-exhaustion of domestic remedies. It notes that the national courts examined, and rejected, the applicant’s contention that the farmer had concealed his possession of the land. For the reasons set out in the Grand Chamber’s judgment in J.A. Pye (Oxford) Land Ltd, the law applicable at the relevant time (the Land Registration Act 1925 and the Limitation Act 1980) allowing a person to obtain title to property through twelve years’ adverse possession pursued a legitimate aim and did not upset the fair balance required by Article 1 of Protocol No. 1 to the Convention. There can be no ground for reaching a different conclusion in the present case.

The application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki Registrar President