England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Wulwik
ORM01099

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2011

Lord Justice Etherton :

Introduction

1. This is an appeal from an order of His Honour Judge Wulwick in the Romford County Court dated 28 April 2011, by which he ordered, among other things, that the defendant, Terence Chambers, deliver up to the claimant, the London Borough of Havering ("the Council"), possession of land ("the disputed land") adjacent to Willoughby Drive, Hornchurch, Essex shown marked A, B and C on the plan annexed to the Particulars of Claim ("the plan") on or before 26 May 2011. He also dismissed Mr Chambers' counterclaim that, because he had been in adverse possession of the disputed land for more than 12 years prior to the commencement of Part 9 of the Land Registration Act 2002 ("the LRA"), that is to say 13 October 2003, he is entitled to a declaration that he is the owner of the fee simple in possession of the disputed land and an order that he be registered as the proprietor of the disputed land pursuant to paragraph 18(3) of Schedule 12 to the LRA.

Factual background

2. The disputed land lies between Willoughby Drive to the south and common land known as "Bretons" to the north. A run of houses, 1-6 Willoughby Drive, lie to the west of the disputed land. 1 Willoughby Drive is at the west end of that run of houses, and 6 Willoughby Drive is at the east end. The disputed land is to the east of 6 Willoughby Drive, and is physically divided from it by a right of way. There is no physical division between areas A and B on the plan (respectively "Area A" and "Area B"), which have the appearance of one plot of land. For the purpose of this appeal there is no significance in the separate identification of those two areas on the plan. They are divided from Area C on the plan ("Area C") by a public right of way along a link-fenced pathway. To the south east of the disputed land is Castle Avenue, from the western end of which a footpath runs to the south of Area C.
3. The Council is the registered owner of the disputed land, which is undeveloped land. It acquired the disputed land in the early 1980s and was registered as the freehold owner on 9 January 1984. Mr Chambers is the registered owner of 6 Willoughby Drive. He purchased it in 2008. Before then he lived about a mile away. It appears that he has or had other land elsewhere.
4. Shortly after Mr Chambers purchased 6 Willoughby Drive the Council received complaints about his use of the disputed land, including the dumping of parts of vehicles. In September 2010 the Council commenced these proceedings against Mr Chambers for possession of the disputed land and for injunctions. In response, Mr Chambers asserted that he had been in adverse possession of the disputed land since 1981. That assertion was the basis of his Defence and Counterclaim.

The legal principles

5. Section 15 of the Limitation Act 1980 ("LA 1890") provides as follows, so far as material:

"(1) No action shall be brought by any person to recover any land after the expiration of twelve 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."

6. Schedule 1 paragraph 1 of the 1980 Act provides:

"Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of 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."

7. Schedule 1 paragraph 8 provides as follows, so far as material:

"(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 preceding 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.

…

(4) For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be 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."

8. The principal authority on adverse possession is JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. The leading speech was that of Lord Browne-Wilkinson, with whom the other members of the Judicial Committee agreed. For the purpose of this appeal, the relevant principles to be extracted from his speech may be summarised as follows. (1) In applying the statutory provisions, the question is simply 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 ([36]). In this context, the words possess and dispossess are to be given their ordinary meaning ([37]). There will be "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word ([38]). If the squatter is in possession the paper owner cannot be. (2) There are two elements necessary for legal possession: a sufficient degree of physical custody and control ("factual possession"), and an intention to exercise such custody and control on one's own behalf and for one's own benefit ([40]). Such an intention may be, and frequently is, deduced from the physical acts themselves. (3) Factual possession was correctly described in Powell v McFarlane (1977) 38 P&CR 452, 470-471, as signifying an appropriate degree of physical control. It must be a single and exclusive possession, although there can be a single possession exercised by or on behalf of several persons jointly. 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. Although everything depends on the particular circumstances, broadly 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 ([41]). (4) The requisite intention to possess means 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 ([43]). The statement of Bramwell LJ in Leigh v Jack 5 Ex D 264 that, "in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it" is incorrect: the suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong ([45]).

The trial and judgment

9. The trial took place on 11 to 14 April 2011. There was a site visit by the Judge on the first day. Four witnesses were called by the Council. None of them had personal knowledge of the disputed land prior to 2003. The Council put in evidence various documentary records of the Council and aerial photographs taken between 1981 and 2010.
10. In addition to Mr Chambers himself, four other witnesses gave evidence on his behalf. They were (1) Terence Allen who first came to Willoughby Drive in around 1999 when he started renting a stable yard at the end of the road furthest from the disputed land, and who subsequently purchased 6 Willoughby Drive in 2001 and sold it to Mr Chambers in 2008; (2) Thomas Hedges, who purchased 6 Willoughby Drive in about 1979, moved there in about 1981 and lived there until about 1994 or 1995, transferring the property in 1993 to his wife, Deborah Hedges, who remained there until 2001 when the property was sold to Mr. Allen; (3) Mrs. June Russell, who has lived at 3 Willoughby Drive since 1985; and (4) Kizzie Hedges, the daughter of Thomas Hedges, who lived at 6 Willoughby Drive between about 1981 and 1998. In addition, Mr Chambers relied on a witness statement of Paul Roworth, who had rented and occupied a yard on the opposite side of Willoughby Drive to the disputed land for about eight years from about 2002. The Council accepted Mr. Roworth's statement and did not require him to give oral evidence.
11. In a detailed and conscientious judgment, the Judge carefully summarised the documentary and oral evidence. Having referred to the relevant provisions of LA 1980 and to Powell v McFarlane [1977] 38 P&CR 452 and Pye, he said ([57]) that Mr Chambers had to show that, for at least 12 years in the period prior to 13 October 2003 when the LRA came into force, Mr Chambers and any predecessors through whom he claims had factual possession of the disputed land and had the necessary intention to possess the disputed land, and his or their possession had been without the Council's consent.
12. The Judge then considered whether each of those requirements was satisfied on the evidence. He concluded that Mr Chambers had not established factual possession for the requisite 12 year period. His reasoning was as follows:

"58. … I find that initially Mr. Hedges kept horses and goats on the disputed land in the period 1981 to 1984 and that from about 1983 the defendant, Mr. Chambers, kept horses, goats, pigs, donkeys and chickens on the disputed land but that such user was intermittent and not continuous. The claimant Local Authority's intended use of the land was woodland or parkland. The Local Authority planted trees on the disputed land in the early 1980s, albeit that the trees did not flourish. They also, as I find, sought to mow the disputed land from time to time, albeit that the offers of their workmen appear to have been refused by the defendant or his predecessor because the animals on the land would eat the grass, thereby rendering mowing unnecessary. The fact that the use of the land initially by Mr. Hedges and then by the defendant was intermittent is shown by the aerial photographs produced by the claimant going back to 1981 with, as I find, the defendant or his predecessor having other land elsewhere available to them and no continuous adverse use being made of the disputed land until about 2002.

59. Having had the opportunity to observe the witnesses giving evidence from the witness box and to form a view as to their credibility, I prefer the evidence of the aerial photographs to the oral evidence of the defendant and his witnesses which I find sought to exaggerate the defendant's use of the land prior to the defendant purchasing 6 Willoughby Drive in May 2008. The evidence in relation to the animal shelters was that they were moveable. I find that the animals and shelters were moved from time to time and with the disputed land left unoccupied as shown by the aerial photographs in the period prior to 2002.

60. There was originally some old wire fencing which I accept the defendant repaired and replaced in part as time went on. However, I find the fencing was still at times in disrepair as evidenced by when Police Sergeant Tyler was able to obtain access through the wire fence. The fencing, as I find, was otherwise attended to by the defendant to prevent his animals and chickens, when they were there, from getting out, rather than by way of dispossession of the claimant authority as owner of the land.

61. Again, the continued existence of the link pathway between Willoughby Drive and Bretons and of the cut-through from Castle Avenue are further indications that the defendant did not have actual possession of the disputed land. Kissing gates were replaced by the claimant Local Authority on the disputed land on the Willoughby Drive side, with a barrier erected to prevent vehicular access into Bretons. The two pedestrian routes were themselves strimmed by the Local Authority. There was, as I find, no dispossession of the claimant Local Authority."

13. The reference to "shelters" in [59] was a reference to the animal shelters which Mr Chambers gave evidence he had placed on the disputed land.
14. The Judge then addressed the question whether Mr Chambers had shown the necessary intention to possess the disputed land for the requisite 12 year period. He found that Mr Chambers had not. His reasoning was as follows:

"62. … I find that the defendant's keeping of animals and the repair and replacement from time to time of fencing on the disputed land in this period was not referable to an intention to dispossess the claimant and to occupy the land wholly as his own property but merely to an intention to derive some enjoyment from the disputed land which was itself not wholly inconsistent with the claimant's intended use of the land as woodland or parkland and to provide two pedestrian routes, one a short-cut from Castle Avenue and the other the link path from Willoughby Drive to Bretons."

15. The Judge then turned to the question whether Mr Chambers' possession was adverse to the Council or was with the Council's consent. On that issue also he found against Mr Chambers, saying:

"63. … There appears to be some justification on the facts for saying that by using the disputed land in the way that he did and knowing that it did not belong to him, the defendant impliedly assumed that the claimant, as the true owner, would permit it and that the claimant owner, by not turning him off the disputed land, impliedly gave him permission for such user."

"64. This is consistent with the attempts or offers of the claimant to mow the disputed land, albeit that such offers appear to have been refused by the defendant or his predecessor because the grazing animals ate the grass."

The appeal

16. Mr Chambers says that the Judge's rejection of Mr Chambers' Defence and Counterclaim based on his adverse possession of the disputed land is fundamentally flawed both in relation to the Judge's findings of fact and in the Judge's formulation and application of the law.
17. Mr Chambers' criticisms, skilfully advanced on his behalf by his counsel, Mr Robert Harrap, can be succinctly summarised as follows. So far as concerns the Judge's findings of fact, Mr Harrap submitted that there was no proper basis for the Judge to place any significant reliance on the aerial photographs. He says that they were adduced only on the second day of the trial; there was no expert evidence to interpret them or assess their evidential value; and they were taken from far too great a height and were too indistinct to be a reliable guide to what was taking place on the disputed land. Moreover, he said, insofar as the aerial photographs do have any evidential value, the Judge did not address the respects in which Mr Harrap argued at the trial that they could be interpreted as showing features in support of Mr Chambers' case that he always kept animals on the disputed land.
18. Mr Harrap submitted that this is a case in which the Court of Appeal is in no different position to the trial judge to form a view about the evidential value of the photographs.
19. Mr Harrap further submitted that in any event there was no proper basis for preferring the aerial photographs to the oral evidence of Mr Chambers and his witnesses. Mr Harrap observed that, although the Judge concluded in general terms that Mr Chambers and his witnesses sought to exaggerate Mr Chambers' use of the disputed land prior to his purchase of 6 Willoughby Drive in May 2008, the Judge did not identify any particular parts of their evidence which he considered was untruthful.
20. Further, Mr Harrap submitted, the facts found by the Judge and other unchallenged facts lead clearly to the conclusion that Mr Chambers satisfied for the requisite 12 year period the requirements of possession in fact, intention to possess, and absence of the Council's consent. He relied on the findings of the Judge that from about 1983 Mr Chambers kept horses, goats, pigs, donkeys and chickens on the disputed land; Mr Chambers placed animal shelters on the disputed land; when the Council's workmen sought to mow the disputed land, they were persuaded by Mr Chambers not to do so because the animals on the land would eat the grass, and so make mowing unnecessary. In summary he made such use of the land as would be expected of it. Mr Chambers also relied on the evidence that, apart from planting a few trees on the disputed land in about 1983, the Council had never done anything on the disputed land since then; the only persons making use of the disputed land since about 1983 were Mr Chambers and those permitted by him; there was always a fence, which was maintained and replaced in part by him, around the disputed land and the footpath between Areas B and C; and Mr Chambers, and not the Council, removed travellers who moved on to Area C, and he then closed the opening where they had gained access.
21. Mr Harrap said that the reference in [63] of the judgment to the Council strimming the public footpaths and replacing the kissing gates was misconceived. Neither the footpaths nor the kissing gates formed part of, or were on, the disputed land.
22. Mr Harrap submitted that the Judge's distinction between "intermittent" and "continuous" use in [58] of the judgment was not the correct test, and that intermittent use could be sufficient factual possession to support a claim of adverse possession. In that connection, he referred to Bligh v Martin [1968] 1 WLR 804 at 811-812, and Generay Limited [2005] EWCA Civ 478 at [49].
23. Mr Harrap criticised the Judge's comments at the end of [62] of the judgment as coming close to the heresy of Leigh v Jack identified by Lord Browne-Wilkinson in Pye. He also criticised the Judge's analysis in [63] as the wrong test, and that it was sufficient that Mr Chambers was using the disputed land to the exclusion of all others. Paragraph [64] of the judgment was, Mr Harrap submitted, misconceived since mere offers by the Council to mow the disputed land, which were in any event declined by Mr Chambers, could not preclude Mr Chamber's possession of the land and the dispossession of the Council.

Discussion

24. I cannot see any proper basis for challenging on appeal the Judge's decision in so far as it relates to Area C. Not only was there material on which the Judge was entitled to come to the conclusion that Mr Chambers failed to establish possession of Area C, but that was the only conclusion to which he could properly have come. First, none of the photographs in relation to the period prior to 2002 show any evidence at all of the keeping of livestock on Area C. The 2002 photograph, which does indicate the use of Areas A and B for keeping livestock, discloses a marked contrast between, on the one hand, the worn state of the ground in Areas A and B consistent with livestock and, on the other hand, the verdant ground of Area C unchanged from the previous photographs. That contrast becomes even more marked in the 2007 photograph. Secondly, the 1998 photograph shows clearly that there was a well established track across Area C from the Castle Avenue footpath. The 2002 photograph shows that the point at which that track begins at the Castle Avenue end had moved from the south to the east, consistent with Mr Chambers' evidence that he made the fence secure after the travellers left. The evidence of that track shows that by 1998 the whole of Area C was accessible by anyone who wished to pass across it, irrespective of the public footpath between Areas B and C. Critically, it shows that Area C was not, by that date, if it ever had been, stock proof. The fact that, at one point of time, Mr Chambers removed travellers from Area C, cannot, in all those circumstances, be sufficient to establish either on its own or with any other facts a cogent case of adverse possession of Area C by Mr Chambers.
25. The Judge's conclusions in relation to Areas A and B are more problematic. The Judge addressed factual possession in [58] of his judgment. The Judge found that from about 1983 Mr Chambers kept horses, goats, pigs, donkeys and chickens on the disputed land. Although the Judge did not say so, it is plain, and Ms Muir accepts, that this is precisely the type of use that was most appropriate for the land. The Judge held that such use was "intermittent and not continuous, and that there was "no continuous adverse use being made of the disputed land until about 2002." That, however, is not the legal test.
26. It appears that the Judge, in making that distinction between intermittent and continuous use, was contrasting what he considered to be the quality of use that was and was not capable of amounting to possession. The Judge never explained, however, what he meant by "intermittent". He made a finding of fact that there was a change in the manner of usage in about 2002, but he did not describe what was involved in that change. Plainly, it was not necessary for Mr Chambers to have livestock on the disputed land 24 hours each day during every day of the year in order to have legal possession of it. Ms Nicola Muir, the Council's counsel, submitted that the Judge must have intended to convey by the word "intermittent" a series of occasional opportunistic acts of trespass in contrast to a pattern of conduct of sufficient consistency to amount to possession. She submitted that this is borne out by his statement in [65] of his judgment that he had been assisted by Powell v McFarlane. It is also consistent with the Council's case that Mr Chambers had land elsewhere on which his animals were usually kept. She may be right, but the Judge did not set out his findings of fact as to the regularity, quality and quantity of use by Mr Chambers, by reference to what was done before and after about 2002, to show how he reached his conclusion.
27. The Judge said ([58] and [59]) that he preferred the evidence of the aerial photographs to the oral evidence of Mr Chambers and his witnesses. He found ([59]) that they had sought to exaggerate Mr Chambers' use of the land prior to his purchase of 6 Willoughby Drive in May 2008. He did not explain, however, what he thought each of the photographs showed that was relevant, and in what respects what they showed was inconsistent with the evidence of each of Mr Chambers' witnesses. He did not say which particular parts of their evidence were untrue and why he came to that conclusion.
28. Mr Chambers' submission, as I have said, was that the aerial photographs cannot be relied upon as cogent evidence in support of the Council's case because they were taken from too high a height and are of too poor quality. Ms Muir, on the other hand, mentioned several matters which would have entitled the Judge to reach the conclusion that the aerial photographs showed that there was no pattern of regular use of the disputed land by Mr Chambers and, in that respect, they were more reliable evidence than the evidence of Mr Chambers' witnesses. She said that there was no sign of any animal shelter in any of the aerial photographs until the 2002 photograph, which also for the first time appears to show an animal on Areas A and B. She observed that that is also the first photograph which shows the ground of Areas A and B in a worn condition consistent with stock usage. She contrasted earlier aerial photographs which, she said, showed a difference between the verdant condition of the ground in Areas A and B, similar to that of Bretons, and the worn condition of the ground to the west of 1 Willoughby Drive and in a small circle on Bretons. She said that Mr Chambers had agreed in his oral evidence that the circle probably marked where horses had been tethered. She said that, apart from a photograph taken in about 1986 of Kizzie Hedges with a pony tethered in Area A, there were no photographs of any animals on the disputed land prior to the 2002 aerial photograph.
29. Mr Harrap did not agree with Ms Muir's interpretation of the aerial photographs. He said that, arguably, the 1994 aerial photograph did show on Area A a field shelter for animals, a pony and a worn patch of ground consistent with the presence of livestock, and the 1998 aerial photograph did show animals on Areas A and B. He pointed out that the Judge himself said in [59] of his judgment that there were animal shelters. He said that Kizzie Hedge's photographs were consistent with Mr Chambers' case.
30. The Judge did not resolve those disputed matters, and made no findings in relation to Kizzie Hedge's photographs. He did not expressly justify his reliance on the aerial photographs by reference to any of the matters mentioned by Ms Muir.
31. Ms Muir also submitted that the Judge was plainly entitled to take the view, having heard and seen the witnesses, that Mr Chambers' witnesses exaggerated Mr Chambers' use of the disputed land prior to 2008. She pointed out, as is indeed quite clear from the Judge's recitation of the evidence, the lack of clarity and many contradictions in the evidence of Mr Chambers' witnesses about the erection, maintenance and repair of fencing about the disputed land. Ms Muir also pointed out inconsistencies between Mr Chambers' Defence, his witness statement and his oral evidence.
32. Ms Muir made various other submissions about the evidence, but it is not necessary to refer to them.
33. Had the Judge expressly addressed those disputes of evidence, and, where appropriate, adopted those matters mentioned by Ms Muir which I have set out above, it seems to me that it would have been very difficult to challenge his conclusion that Mr Chambers had not been in adverse possession for the requisite 12 year period. Since the Judge did not do so, I do not consider it would be right for this Court to dismiss the appeal bearing in mind the Judge's apparent application, without further explanation and elaboration, of an "intermittent and not continuous" user test rather than the test in Pye. Further, Mr Harrap has raised other legitimate matters of concern.
34. In relation to [61] of the judgment, for example, I do not consider that the existence of either the pathway between Willoughby Drive and Bretons or the Castle Avenue pathway could, in itself, indicate an absence of possession. Neither pathway formed part of the disputed land. The strimming of them by the Council is irrelevant. Further, the kissing gates and the barrier mentioned in [61] were irrelevant because they also were not on the disputed land. Further, offers by the Council to mow the disputed land mentioned by the Judge in [58] of his judgment, which were declined by Mr Chambers and which never took place, cannot support the Council's case. The planting of trees by the Council in the very early 1980s, also mentioned by the Judge in [58] of his judgment, was too early to preclude 12 years continuous adverse possession by Mr Chambers prior to 2003.
35. I also agree with Mr Harrap that the reference in [62] of the judgment to Mr Chambers' use of the disputed land not being "wholly inconsistent with the claimant's intended use of the land as woodland or parkland" bears the hallmark of what was described by Lord Browne-Wilkinson in Pye (at [45]) as the "heretical and wrong" approach of Bramwell LJ in Leigh v Jack that "in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it". The Judge made no finding in the present case that Mr Chambers' knew of the Council's plans for the disputed land, and, in the absence of such a finding, the Council's intended use was irrelevant: cf Pye at p. 438 C-D.
36. It was not necessary for the Judge to reach the conclusion in [63] of his judgment that the defendant "impliedly assumed" that the Council, by not turning him off the disputed land, impliedly gave him permission for such user, and I am unclear about the legal basis or relevance of an "implied" assumption. It is possible that this too was a reflection of the Leigh v Jack "heresy".
37. We heard argument about the legitimacy of the Judge's statement in [60] of his judgment that Mr Chambers' replacement and repair of fencing was to prevent Mr Chambers' animals and chickens on the disputed land from getting out, rather than by way of dispossession of the Council as owner of the land. Mr Harrap pointed out that a similar argument was rejected by the Court of Appeal in Hounslow BC v Minchington (1997) 74 P&CR 221, in which Millett LJ, with whom the other two members of the Court agreed, said (at page 233):

"So far as the defendant's animus possidendi is concerned, Mr Lewison relied upon the fact that Mrs Ritter and after her the defendant or Mr Collins' enclosure of the land was in order to keep their dogs in rather than other persons out. But their motive is irrelevant. The important thing is that they were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land. They wanted to keep their dogs within the boundaries of their own land. That was a perfectly understandable usage, but the enclosure which it made necessary was inconsistent with any continuance of possession of the council. The defendant and his predecessors in title had to keep the council out if they were to keep their dogs in."

38. A different view was taken by the Court of Appeal in Inglewood Investments Company Limited v Baker [2002] EWCA Civ 1733. Dyson LJ, with whom the only other member of the Court agreed, referred at [23] to the following passage in the judgment of Laddie J in Batt v Adams [2001] 2 EGLR 92 at page 95:

"34. The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired the fence separating the disputed land from Rushymead. … A fence is a barrier. It keeps things in and it keeps things out. No doubt it is reasonable to assume in many cases that a person who maintains a fence is doing so for both purposes, but that is not necessarily so. Having read all the evidence and the transcript of the cross-examination, there is nothing in this case that suggests that Mr Higgs was doing anything other than putting up a sufficient barrier to keep his livestock in. This also is not unequivocal evidence of an intention to exclude others."

39. Dyson LJ then said at [30]:

"In this particular case, the purpose of the fence appeared to be, and Mr Baker said it was, to keep sheep in. It does not seem that he would have put that fence up if he had been grazing cattle rather than sheep. In those circumstances it was open to the judge to conclude that there was no intention of Mr Baker to possess the land."

40. The judgment of Laddie J in Batt was delivered before the House of Lords' speeches in Pye. Furthermore, Minchington was not cited in Inglewood Investments. I do not consider, however, that Minchington and Inglewood Investments are inconsistent with one another on the significance of fencing and show a different approach in principle. Each case turns on its own particular facts. In a case of adverse possession, where the defendant relies upon the existence of fencing, the Judge will plainly have to consider its significance. In some cases, it will be cogent evidence, perhaps the most cogent evidence, of adverse possession where its effect is wholly to exclude the paper owner, even if it was erected to keep animals inside rather than to exclude people, including the paper owner. In other cases, when considered in the context of the evidence as a whole, fencing may be not be inconsistent with the absence of actual possession and of an intention to possess on the defendant's part, even where the fencing physically excludes the paper owner. So for example, in the present case, if the Judge's view was that Mr Chambers' user of the disputed land was, in the light of all the evidence, properly characterised as opportunistic occasional acts of trespass rather than legal possession, Mr Chambers' repair and replacement of fencing which was objectively consistent with an intention purely to prevent the escape of his livestock, if and whenever they happened to be on the disputed land, would not be inconsistent with the absence of possession by Mr Chambers. If, on the other hand, the Judge in [60] was saying that Mr Chambers' repair and replacement of fencing was, as a matter of law, incapable of constituting evidence in support of Mr Chambers' assertion of adverse possession, merely because he repaired and replaced the fencing to keep his animals from escaping from the disputed land as opposed to excluding the Council, then that was incorrect. I do not myself think he was saying the latter.
41. As I have said, there was material on the basis of which the Judge could properly have come to the conclusion that Mr Chambers had failed to establish that he was in factual possession of the land and intended to possess it. The Judge was plainly attempting conscientiously to deal with the dispute fairly and properly after a lengthy trial with many witnesses and historical evidence. I have come to the conclusion, however, that, in view of all the doubts and difficulties about the judgment that I have mentioned, the matter ought to be remitted for a further hearing as regards Areas A and B. In reaching that conclusion, I also bear in mind that we have not had the benefit of a Site visit, and we do not have transcripts of the evidence. In all the circumstances, I cannot presently rule out the possibility that, when all the facts are examined and the correct legal principles are applied, other judges might properly reach a different view from that of the Judge.

Conclusion

42. For the reasons I have given, I would dismiss the appeal as regards Area C, but allow the appeal as regards Areas A and B, and I would remit the dispute over Areas A and B for a re-hearing.

Lord Justice Lewison

43. I gratefully adopt Etherton LJ's account of the facts.
44. The judge made the following express findings of fact (§§ 58 - 60):

i) Mr Hedges kept horses and goats on the disputed land between 1981 and 1984 and from about 1983 Mr Chambers kept horses, goats, pigs, donkeys and chickens on the land, but that use was intermittent rather than continuous;

ii) He placed moveable animal shelters on the land, which were moved from time to time;

iii) There was some old wire fencing which Mr Chambers repaired and replaced from time to time;

iv) The Council offered to mow the land from time to time, but Mr Chambers always refused.

45. It was common ground that there was more than one fence separating the disputed land from Bretons; and that the disputed land itself was fenced on all sides.
46. As we now know from J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419 (§ 40):

"… there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess")."

47. The judge directed himself correctly (§ 57) that what Mr Chambers had to show was that: (1) he had factual possession of the land; (2) he had the necessary intention to possess the land; and (3) that his possession had been without the Council's consent. He then considered these three questions one by one.
48. What is a sufficient degree of physical custody and control will obviously vary according to the nature of the land in question and the manner in which land of that nature is commonly used or enjoyed. Broadly, 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: J A Pye (Oxford) Ltd v Graham § 41, approving Powell v Macfarlane (1978) 38 P & CR 470. Although the judge posed this question, he did not in terms answer it.
49. When the judge came to consider whether Mr Chambers had a sufficient degree of physical custody and control he did not ask himself how an occupying owner might have been expected to use the land. Nor did he ask himself for what use the land was suitable. Historically, before the land was acquired by the Council, it was used for keeping chickens. Low intensity grazing appears, on the evidence, to have been the kind of use that an occupying owner would have been expected to make of the land. As I understood it Ms Muir, who appeared for the Council, accepted that in the course of argument. Thus the kind of use that the judge found Mr Chambers had made of the land is the kind of use one would have expected an occupying owner to have made of it.
50. The judge seems to have relied on six factors in reaching his conclusion that Mr Chambers did not have factual possession. They were:

i) The Council's intended use of the land was woodland or parkland;

ii) The Council planted trees on the land in the early 1980s albeit that the trees did not flourish;

iii) The Council tried to mow the land from time to time, although Mr Chambers refused their offers;

iv) Mr Chambers' use of the land was intermittent as shown by the aerial photographs and was not continuous use;

v) The fencing was at times in disrepair and was maintained in order to stop animals getting out, rather than to prevent the Council from getting in;

vi) The presence of the link pathway and the cut through were inconsistent with Mr Chambers having possession of the land.

51. The first of these reasons is in my judgment a manifestation of the Leigh v Jack heresy (see Leigh v Jack (1879) 5 Ex D 264), which was finally extirpated in J A Pye (Oxford) Ltd v Graham (§ 45). As Lord Browne-Wilkinson put it:

"The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. …The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases."

52. The second of these reasons relies on the Council's actions before the date on which Mr Chambers claimed to have taken possession. It cannot undermine his claim to have taken possession after the trees were planted. Moreover the judge did not in terms deal with Mr Hedges' evidence that he objected to the initial planting of trees, which caused the Council to pull them up. Nor did he deal in terms with Mr Hedges' evidence that he himself fenced off the disputed land in 1981. That was a critical piece of evidence because, if accepted, it would be clear evidence of taking possession. It would show that Mr Hedges dispossessed either Mr Blake or the Council (depending on when the fencing was erected); and that he passed possession to Mr Chambers when Mr Chambers took over from him. It is well settled that a squatter who takes over from a previous squatter (whether with or without the latter's consent) is entitled to aggregate periods of possession both by him and his predecessor: see Megarry & Wade Real Property (7^th edition) §§ 35-021, 35-022. As I have said the judge's comment on the evidence was that Mr Chambers and his witnesses had exaggerated Mr Chambers' use of the land. He did not say that he disbelieved Mr Hedges' evidence about fencing. It is fair to say that Mr Hedges' evidence about fencing was not consistent. Nevertheless in my judgment the judge should have made findings of fact one way or the other.
53. The third of the judge's reasons is, if anything, a pointer in favour of Mr Chambers' case. If he refused entry to the Council's workmen, surely that reinforces his claim to have had exclusive possession.
54. The fourth reason takes little account of the nature of the land. If as seems to be the case the land is suitable only for rough grazing and the exercise of horses, one would not expect the use to be continuous. As Pollock and Wright pointed out in their classic work Possession in the Common Law (1888) (p 30):

"… it is not possible, as a matter of fact, to possess a house, a wood, or a field in the same manner as we possess the money in our pockets, or the owner of a cart and horse possess them when he is driving the horse in the cart. There can only be a more or less discontinuous series of acts of dominion. What kind of acts, and how many, can be accepted as proof of exclusive use, must depend to a great extent on the manner in which the particular kind of property is commonly used."

55. If the use of the land was very occasional, that might well not be enough. But simply to say that the use was "intermittent" does not say much about the actual frequency of use. The catalogue of different kinds of animal that the judge found Mr Chambers kept on the land does not immediately suggest only a series of "one off" acts of trespass. Ms Muir analysed the aerial photographs in great detail. She made cogent submissions on what could be deduced from those photographs. The deductions related to such matters as the colour of the grass, various rather indistinct blobs on the photographs, contrasts between the appearance of the disputed land and neighbouring land and so on. Mr Harrap, appearing on behalf of Mr Chambers, also made spirited submissions on possible deductions from that evidence. He said that photographs from the 1990s showed both animals and an animal shelter on the land. Mr Harrap also pointed out that in addition to the aerial photographs there had been five photographs of the land during the critical period showing animals on the land, both in winter and in summer. The judge had not considered these at all when weighing the evidence.
56. Ms Muir also referred to a number of documents mostly dating from the late 1980s (although one dated from the late 1990s). These she said demonstrated that the Council was aware of what was happening in the area surrounding the disputed land; and if there had been regular grazing on the disputed land it would have been recorded at the time. The judge referred to this material in the course of his narrative summary; but he did not draw from it the inference that Ms Muir said was the correct one. Indeed he did not mention it at all in reaching his conclusions.
57. Although the judge said that he preferred the evidence of the aerial photographs to the oral evidence of Mr Chambers and his witnesses, he did not explain what he deduced from the photographs or why they led him to the conclusion that Mr Chambers' use of the land was "intermittent". In addition at this point in his judgment he seems to have been looking for "continuous use". But in my judgment continuous use is not the test. It is the taking of possession that is critical. If possession passed to Mr Chambers at any point then he would not have needed continuous use to have maintained possession: Bligh v Martin [1968] 1 WLR 804, 811; Generay Ltd v The Containerised Storage Company Ltd [2005] EWCA Civ 478 § 49.
58. The judge went on to consider the animals and animal shelters. He commented that they were moved from time to time "with the disputed land left unoccupied as shown by the aerial photographs in the period prior to 2002." This seems to be little more than a repetition of the fourth reason, although I would have thought that the very fact that animal shelters (even if moveable) were placed on the land lent added strength to Mr Chambers' claim. The judge attached significance to the year 2002. He seems to have held that after 2002 Mr Chambers' use of the disputed land would have amounted to factual possession. But the judge did not explain why he found a watershed to have occurred in 2002. One can conjecture that it was a combination of a photograph taken in 2002 and Mr Roworth's unchallenged evidence, but that is conjecture.
59. Next the judge turned to the fencing. As mentioned, he accepted that Mr Chambers repaired and replaced the fence in part as time went on. It is important to note that the judge found not merely that Mr Chambers repaired fences, but also that he replaced them in part. The reason why he discounted the fact of repair and replacement of the fencing was that Mr Chambers did that to prevent his animals and chickens getting out, rather than "by way of dispossession" of the Council. At this point in his judgment the judge was considering the question of factual possession (i.e. whether Mr Chambers had a sufficient degree of physical custody and control of the land). In J A Pye (Oxford) Ltd v Graham itself the principal use of the land was for grazing cattle. In considering the question whether the Grahams had factual possession of the land Lord Browne-Wilkinson said (§ 41) simply that the paper owner was physically excluded from the land by the hedges and the absence of a key to a locked gate. Why the hedges were there and why the gate was locked were not mentioned at all. In my judgment Mr Chambers' motive in repairing and replacing fencing cannot be relevant to the question whether he had sufficient physical custody or control of the land. Whether his motive is relevant to his intention to possess is something to which I will return.
60. The judge also commented that the existence of the link pathway between Willoughby Drive and Bretons and the cut-through from Castle Avenue were further indications that Mr Chambers did not have factual possession of the land. As far as the link pathway is concerned, this is not part of the disputed land: it is between areas B and C. One of Mr Chambers' witnesses (Mr Hedges) had said that there was a fence "to the left of the footpath". I take this to mean that there was a fence separating area B from the footpath. The judge did not say whether he accepted or rejected that evidence; and indeed made no findings about whether the footpath was or was not fenced off from the adjacent parcels. However, we were told that it was common ground that both sides of the footpath were fenced. So this footpath was outside the enclosed area. Moreover, the mere fact that a public right of way runs through land will not necessarily prevent a squatter from taking possession of the land itself. In J A Pye (Oxford) Ltd v Graham itself one of the fields to which the Grahams obtained title by adverse possession (Hill Field) was subject to a public right of way (see § 8). The House of Lords approved the decision of Neuberger J that the exclusion of the whole world from access to the disputed land except on foot amounted to factual possession (see § 48). In the present case the judge also found that the Council replaced the kissing gates at the Willoughby Drive side and that the Council strimmed the path. However, the strimming was confined to paths outside the disputed land. Although the judge did not pinpoint the location of the kissing gates, it was common ground that one was at the mouth of the footpath between areas B and C where it debouched onto Willoughby Drive, and the other was at the point where the footpath met Bretons. Neither was on the disputed land. Taking the cut-through next, this seems from the plan to have run through area C. For the public to have used the cut-through it is unlikely that area C was fully enclosed (or at least enclosed in a way that was stockproof). Thus the evidence of custody and control of area C was weaker than the evidence relating to areas A and B. I agree also with Etherton LJ that the aerial photographs did show a marked contrast between the state of the land in areas A and B on the one hand and area C on the other. The photographs to which Mr Harrap referred only showed areas A and B, so can have no bearing on area C.
61. In my judgment in considering whether Mr Chambers established that he had factual possession of the land the judge made a number of errors of law which I have identified. The combination of those errors, the lack of findings of fact on important matters and the sketchiness of the reasoning underpinning his factual conclusions have led me to conclude that as regards areas A and B his conclusions cannot stand. Although there was material on which he could have found for the Council on this question I cannot be confident that he would have done so if he had applied the law correctly. So far as area C is concerned, the evidence was more equivocal. Given that it was for Mr Chambers to prove his case, I am not persuaded that the judge was wrong to find that Mr Chambers did not have sufficient custody and control of area C.
62. As the judge said, the next question was whether Mr Chambers had the necessary intention to possess. He held that Mr Chambers did not have the necessary intention because he merely had "an intention to derive some enjoyment from the disputed land which was itself not wholly inconsistent with the [Council's] intended use of the land as woodland or parkland and to provide two pedestrian routes…". As mentioned, Lord Browne-Wilkinson said that such an inference would be possible but improbable, and would be properly drawn in few cases. However, as Lord Browne-Wilkinson himself explained, this inference will not be a possible one unless "the squatter is aware of a special purpose for which the paper owner uses or intends to use the land." The judge made no finding that Mr Chambers was aware of the Council's intended future use of the land. In my judgment, therefore, the judge's inference was not correct. However, as I have said the judge also found that Mr Chambers' actions in repairing and replacing the fencing was to prevent his animals and chickens getting out, rather than "by way of dispossession" of the Council. So the question arises: what is the relevance of the squatter's motive in maintaining (or for that matter erecting) a fence?
63. In London Borough of Hounslow v Minchinton (1997) 74 P & CR 221 the dispute concerned a piece of ground which had been incorporated into the squatters' garden. One of the arguments concerned the significance of a fence which they had erected. Counsel (me as it happens) argued that the fence had been erected to keep the squatters' dogs in rather than to keep the paper owner out, and that consequently it did not demonstrate the necessary intention. This court roundly rejected that argument. Millett LJ said:

"So far as the defendant's animus possidendi is concerned, Mr Lewison relied upon the fact that Mrs Ritter and after her the defendant or Mr Collins' enclosure of the land was in order to keep their dogs in rather than other persons out. But their motive is irrelevant. The important thing is that they were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land. They wanted to keep their dogs within the boundaries of their own land. That was a perfectly understandable usage, but the enclosure which it made necessary was inconsistent with any continuance of possession of the council. The defendant and his predecessors in title had to keep the council out if they were to keep their dogs in."

64. There are, however, cases that point the other way. The first of these is Batt v Adams [2001] 2 EGLR 92, a decision of Laddie J. It is important to point out that this case was decided between the decision of the Court of Appeal in J A Pye (Oxford) Ltd v Graham and the subsequent reversal of that decision by the House of Lords. So Laddie J was proceeding on the basis of an underlying view of the law that later turned out to be wrong. Laddie J said of a fence that the squatter had maintained and repaired (§ 34):

"The only factor which appears at first sight to point in the direction of an intention to exclude anyone, is the fact that Mr Higgs maintained and repaired the fence separating the disputed land from Rushymead. This was not relied on by the Deputy Solicitor to support his finding of intention to possess. The fence had been erected before Mr Higgs acquired his tenancy, but he repaired it from time to time and put up barbed wire when gaps appeared. Mr Higgs' evidence was that he "maintained the stock-proof fencing". On analysis, this really takes the issue little further. A fence is a barrier. It keeps things in and it keeps things out. No doubt it is reasonable to assume in many cases that a person who maintains a fence is doing so for both purposes, but that is not necessarily so. Having read all the evidence and the transcript of the cross-examination there is nothing in this case which suggests that Mr Higgs was doing anything other than putting up a sufficient barrier to keep his livestock in. This also is not unequivocal evidence of an intention to exclude others."

65. These observations were picked up in the subsequent decision of the Court of Appeal in Inglewood Investments Co Ltd v Baker [2002] EWCA Civ 1733 [2003] 2 P & CR 23, a decision of Aldous and Dyson LJJ. However, it appears to have been accepted by counsel in that case that Laddie J had correctly stated the law (see § 24), so the point was not argued. Moreover in neither Batt v Adams nor Inglewood Investments Co Ltd v Baker was London Borough of Hounslow v Minchinton cited. If it had been there must be considerable doubt whether either case would have been decided as it was on this point. To revert to J A Pye (Oxford) Ltd v Graham I quote again the second part of Lord Browne-Wilkinson's description of what in law amounts to possession:

"an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess")."

66. There is nothing here about a positive intention to exclude the paper owner. Lord Hope also discussed what had to be shown to establish the necessary intention. He said (§ 71):

"The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor….The only intention which has to be demonstrated is an intention to occupy and use the land as one's own…. So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough." (Emphasis added)

67. Lord Hutton said (§ 76):

"I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess."

68. In Generay the question arose whether the squatter had excluded himself from possession by the erection of a barrier cutting off part of the land. Neuberger LJ said (§ 55) that the essential question was:

"… whether Generay, whatever its reasons for the erection of the fence, actually discontinued its factual possession and/or its intention to possess the land to the east of the tape fence…" (Emphasis added)

69. In the light of these passages I would hold that the view expressed by Millett LJ in London Borough of Hounslow v Minchinton is the better view. In my judgment therefore, the judge's conclusion on the question of intention was not correct.
70. The last element that the judge considered was whether Mr Chambers was occupying the land with the implied licence of the Council. Whether a licence should be implied is a question of fact: R (Beresford) v Sunderland City Council [2003] UKHL 60 [2004] 1 AC 889 § 5, per Lord Bingham of Cornhill. An implied licence must be distinguished from mere inaction by the land owner with knowledge of the use relied on: Beresford § 6, per Lord Bingham of Cornhill). It is quite wrong to treat a land owner's silent acquiescence in persons using his land as having the same effect as permission communicated to those persons: Beresford § 79 per Lord Walker of Gestingthorpe. Even encouragement of the activity by the land owner will not necessarily amount to an implied licence: Beresford § 60 per Lord Rodger of Earlsferry. But there must be some overt act (which may be a non-verbal communication) which is intended to be understood, and is understood, as permission to do something which would otherwise be an act of trespass (Beresford § 75 per Lord Walker of Gestingthorpe).
71. In this case the judge said that by not turning Mr Chambers off the disputed land the Council impliedly gave him permission to be there. In my judgment this amounted to no more than acquiescence. If the judge's conclusion were correct then whenever a person dispossessed the paper owner he would not acquire title by adverse possession if (a) the paper owner knew that he had been dispossessed and (b) did nothing about it. This would go even further than the earlier heresy embraced in Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94, and reversed by the Limitation Act 1980 Schedule 1, paragraph 8(4). In my judgment there is no material upon which an implied licence can properly be inferred.
72. I would therefore hold that Mr Chambers might well have had factual possession of areas A and B but did not have factual possession of area C. In so far as he had factual possession of areas A and B he had the requisite intention to possess; and did not do so by virtue of any implied licence. However, like Etherton LJ, I see no alternative than, reluctantly, to order a new trial as regards area A and B.

Lord Justice Rix

73. To some extent there are differences of emphasis between my Lords, Lord Justice Etherton and Lord Justice Lewison. It seems to me, however, that it is unnecessary and, given the need for a new trial, undesirable for me to resolve them. I agree that the appeal should be dismissed with regard to area C, but allowed with regard to areas A and B so far as requiring a new trial. I come to the latter conclusion with regret, seeing that the parties have already had a four day trial, and the judge found Mr Chambers and his witnesses wanting in their credibility upon which, after all, depended proof of adverse possession. However, at the same time the judge made important findings in Mr Chambers' favour, and despite his conscientiousness, has failed to explain or reason his findings sufficiently. In sum, for the reasons explained in my Lords' judgments above, the outcome of a new trial concerning areas A and B is necessary.