England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE HOLLIS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 May 2012

Lord Justice Etherton:

1. This is an appeal from those parts of the order of HHJ Hollis in the Brighton County Court dated 20 May 2011 by which he found in favour of the respondents on their claim to have acquired freehold title to land ("the compound land") at East Preston, Littlehampton, West Sussex by adverse possession and he dismissed the counterclaim of the appellant.

The Facts

2. For the purposes of this appeal, the facts may be stated quite briefly. The respondents have owned 125 North Lane, East Preston, ("No.125") since 1975. They use it both for residential and business purposes. The appellant owned adjoining land to the south of No. 125 ("the appellant's land"). The appellant's land includes, on its west side, shops with flats above. It also includes, behind the shops, an open area ("the open land"), on parts of which are a warehouse and garages. The open land is accessed from the public road to the south.
3. In the early 1980s the respondents created and then, until 2002, maintained a compound containing the compound land on part of the appellant's land adjacent to the southern boundary of No.125. The north side of the compound was formed by the southern stone boundary wall of No.125. The east side consisted of the side elevation of a row of garages on the open land. The west side was formed partly by the rear wall of the shops and partly by a gate at the end of an alley, also on the appellant's land. That gate was nailed shut by the respondents at some time between 1982 and 1984. The south side of the compound was formed by a fence erected and maintained by the respondents on the open land. The fence was originally entirely wooden, but at some point the respondents replaced part of it with wire. The fence contained an unlocked gate.
4. From the time the fence was erected until 2002 the respondents and their visitors gained pedestrian access to No. 125 by passing across the open land, through the gate in the fence, and climbing over the boundary wall by using a concrete step which the respondents had erected on the compound land.
5. In 2002 the respondents removed the fence, replaced part of the boundary wall with gates wide enough to allow vehicular access, and covered the open land at that point with tarmac. They later built a workshop on No. 125 for working on old cars, a hobby of the respondent. Since 2002 the respondents have driven across the open land and directly onto No. 125, although they have also continued to park at times on the open land.
6. From about 1975 the respondents and their visitors have also either gained pedestrian access to No. 125 from the public highway by walking across the open land and then over the boundary wall at the point where the compound was later created, or by driving onto the open land and parking there and then walking over the open land and then over the boundary wall.

The Proceedings

7. The respondents commenced these proceedings in order to obtain declarations that they have acquired ownership of the compound land by adverse possession, and that No. 125 has the benefit of a pedestrian right of way across the open land to No. 125, and the right to drive cars onto the open land in order to park there and to pass from their parked cars to No. 125 on foot, as well as a vehicular right of way onto No. 125 itself.
8. The appellants denied those claims and counterclaimed for an order that the respondents remove the gates in the boundary wall and reinstate the wall, an injunction restraining the respondents from trespassing on the appellant's land and damages.

The judgment

9. The trial took place over three days with oral and documentary evidence.
10. The judge found in favour of the respondents on adverse possession. The judge's findings of fact and conclusion on this aspect are contained in section E of his judgment. He summarised the position as follows:

"4. What the claimants did went further than the exercising of an easement. In this case the erection of the fence, the blocking off of the other entrance through the alleyway, the erection of the step (on the land and adjoining the garage) and its use over a long period, the storage of materials and the subsequent alterations that the claimants carried out, without challenge for five years, goes much further. I find that they have established that since 1982, until they were challenged in October 2007, they were exercising control over the land and had an intention to do so, on their own behalf and for their own benefit. It is a matter of degree, and it is my finding on the evidence that there was a sufficient degree of exclusive physical custody and control, combined with an intention to do so, to have gained adverse possession and I declare accordingly."

11. The judge also found that No. 125 had the benefit of the following easements over the open land: 1) a right to park up to three vehicles anywhere on the open land outlined in blue on the plan attached to the order, provided that such parking should not block access for a lorry; 2) a vehicular right of way allowing access over, across and through the open land outlined in blue on the plan for the purpose of exercising the right to park; and 3) a pedestrian right of way allowing access over, across and through both the open land outlined in blue and the compound land shown on the plan, both when going to and from vehicles and when simply gaining access on foot. There is no appeal against those findings.
12. The judge dismissed the counterclaim. His reasons for doing so are contained in paragraph 2 of section F of his judgment as follows:

"2. However, having reached this conclusion, it is not my view that the claimants, having exercised their right of way and right to park up to the fence of the compound land up to 2002 have thereafter been committing any actionable wrong in driving onto the land that they had by then acquired by adverse possession and thence into their own property. If I am wrong in this view there is no evidence that this is causing any danger to the defendant. They were aware of none for the first five years the drive was in use and there is no evidence that they have suffered as a consequence since. The amount of traffic involved, bearing in mind the nature of the property, is necessarily very limited. Indeed it could be argued that the defendant's position is better in that the claimants' vehicles tend to now pass over, rather than remain parked on, the defendant's land. I dismiss the counterclaims both in respect of trespass and the application for an injunction and in respect of the removal of the gates and reinstatement of the wall."

The appeal

13. As I have said, there is no appeal against the judge's findings as to the pedestrian and vehicular rights of way and the right to park for the benefit of No. 125 as stated in the order. The appellant appeals a finding that the respondents have obtained title by adverse possession of the compound land. There is also an appeal against the judge's dismissal of the counterclaim for an injunction and his order that the appellant shall pay the respondents' costs.

Adverse Possession

14. The appellant contends that, on the basis of the judge's findings of fact, the judge could not properly have found that the respondents established, for a period of 12 years prior to 2002, sufficient control or exclusivity of use or possession over the compound land to support a finding of adverse possession. It is further contended that, if there were acts of possession by the respondents, those acts were not such as clearly to demonstrate to the world at large and the true owner that the compound land was being dispossessed.
15. No criticism is made by the appellant of the judge's identification of the correct legal test, although Ms Michelle Stevens-Hoare, counsel for the appellant, has sought to expand his explanation of the law to some extent. The judge referred to the statement of Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at paragraph [40] that:

"...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')"

16. Ms Stevens-Hoare referred us to other passages in the speeches of the House of Lords in Pye, especially that of Lord Hoffmann at paragraphs [76] to [79]. She particularly emphasised those passages where it is said that, in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation, those acts will be insufficient to establish the intention to possess, and that the adverse possessor must make clear to the world at large that he or she has intended to exclude the owner as best he or she can.
17. Ms Stevens-Hoare referred us to passages in Roberts v Swangrove Estates Limited [2007] EWHC 513 (Ch) (Lindsay J) and of the Court of Appeal in Prudential Assurance Co Limited v Waterloo Real Estate Inc  [1999] 2 EGLR 85 to the same effect.
18. No challenge is made to the findings of fact of the judge. The essence of the appellant's case on this aspect of the appeal is that the judge wrongly applied the law to the facts as found by the judge.
19. Ms Stevens-Hoare emphasised that, despite the erection of the fence, the compound was not enclosed in any real sense. Anyone could access the area through the unlocked gate in the fence. She said that the step constructed by the respondents in the compound area next to the boundary wall was not a clear indication that the step was for the purpose of access to No. 125. There was no evidence of the respondents ever exercising any control over who could access the area or when it could be accessed.
20. She further submitted that such use as was made of the compound land by the respondents was more consistent with the enjoyment of a right of way than taking possession. The "storage" relied upon by the judge consisted of leaving occasional items that were being discarded until they were collected for recycling. It is said by the appellant that they were not secured in any way. The respondents made no other use of the compound area.
21. Accordingly, the appellant says, the partitioning off of the compound and the limited use made of it did not inhibit the appellant or anyone else using that part of the appellant's land other than to the extent that the respondents blocked one means of access when they secured shut the gate at the end of the side alley. Ms Stevens-Hoare did not go so far as to say that the blocking of access to enclosed land is always essential to establish adverse possession or that it would have been essential in the present case even if there had been other sufficiently manifest acts of possession by the respondents. She said, however, that, looking at the facts in the round in the present case, the absence of any real obstruction to access being gained by the appellants to the compound land was fatal in the light of the other equivocal acts of possession.
22. She also emphasised that the presence of the fence and the other matters relied upon by the respondents in support of their claim to adverse possession did not demonstrate to the world or the appellant a dispossession of the appellant or an activity that was adverse to the appellant's interest. It is said by the appellant, in that connection, that the fence presented as an internal feature of the appellant's land, which is made up of numerous elements – garages, shops and flats -- and that anyone going to the open land would have assumed that the compound land still formed part of the appellant's land available for the use of the appellant and everyone else entitled to use it. Ms Stevens-Hoare said that that was indeed the impression of the surveyor, Mr Reeves, when he inspected the appellant's land in July 1999 for the purpose of a mortgage valuation.
23. Notwithstanding everything that has been so ably argued, this ground of appeal plainly fails. I note that, when granting permission to appeal, Rimer LJ said of this aspect as follows:

"I do not regard the soundness of this ground of appeal as quite so apparently solid as that raised by grounds 2 and 3. I have however, albeit with a degree of hesitation, come to the conclusion that the points that the applicant wishes to make in support of ground 1 are sufficient to cross the low threshold for the giving of permission to appeal and that ground 1 is sufficiently arguable to justify the permission that is sought. I therefore give permission to appeal on all three grounds."

24. It is common ground that, if the acts relied upon by the respondents constituted 12 years' adverse possession from the early 1980s, then the provisions governing adverse possession in the Land Registration Act 2002 have no application since the paper title to the compound land will have been extinguished before the 2002 Act came into force.
25. It is also common ground that the judge, as I have said, correctly identified the legal principles for adverse possession for the purposes of the Limitation Act 1980, sections 15 and 17. What is required is a sufficient degree of physical custody and control (factual possession) and an intention by the adverse possessor to exercise such custody and control on the adverse possessor's own behalf and for his or her own benefit (intention to possess). In assessing those matters the court takes particular account of the nature of the land in question.
26. Bearing in mind the nature of the land enclosed within the compound, the nature of the enclosure itself and the use made of the compound by the respondents and their visitors, there was ample material on which the judge was entitled, and right, to reach his conclusion on adverse possession by the respondents. The judge was entitled and right to take into account the following matters: the respondents' construction of a fence in 1982 and its subsequent repair and partial replacement; the nailing up of the gate at the end of the alley leading to the only other open side of the compound so that no one could gain access by means of the alley; the construction of the concrete step on the compound land and using the step to climb over the wall into No. 125; maintaining the compound itself; storing items on the compound land, including items from the first respondent's business such as windows, doors and building material; and altering the compound land by removing the grass and creating a proper driveway leading up to gates.
27. It was not necessary for the respondents to establish that the compound was enclosed in such a way and to such an extent that no one could gain access save with the permission of the respondents. There is no such legal requirement for adverse possession, as Ms Stevens-Hoare accepted. The respondents only had to show that their acts were sufficient to amount to physical custody and control bearing in mind the nature of the land.
28. Further, the nature of the acts relied upon by the respondents and found by the judge -- the erection of the fence, the nailing up of the gate to the alley, the storage of materials and the creation of the step -- were sufficiently open acts of adverse possession to satisfy any requirement that they be apparent and manifest. As the judge rightly said in paragraph 4 of section C of his judgment:

"I find that none of this was done in such a way as to hide what was happening from the owners of the land…. The position could be seen by anyone who cared to get into that area and look..."

Dismissal of the counterclaim

29. Save in relation to access to the open land for parking, the judge did not accept the respondents' claim to a vehicular right of way onto No. 125. That was because such vehicular access had only been enjoyed since 2002. Nor did the judge accept the respondents' contention, in their defence to counterclaim, that the appellant was precluded by proprietary estoppel from obtaining any relief to remove the gates and reinstate the boundary wall by virtue of the appellant's acquiescence in the demolition of the wall and the erection of the gates.
30. Having reached that conclusion against the appellant, the judge's reasons for dismissing the appellant's counterclaim were expressed very briefly in paragraph 2 of section F of his judgment, which I have quoted earlier.
31. In spirited submissions for the respondents, Mr Thomas Worthen, counsel for the respondents, raised a number of further arguments in support of the judge's conclusion on the counterclaim, including various matters raised in the respondent's notice.
32. His starting point was that there is no actionable wrong by the respondents in gaining vehicular access to No.125 even though that was not an easement found by the judge. Mr Worthen's reasoning was that the easement to park, which was found by the judge, could be exercised by parking hard up to the boundary where access can currently be obtained. Proceeding from there over the boundary line would, he said, cause no harm whatsoever to the appellant. Furthermore such user, he submitted, is entirely consistent with the use of the right of vehicular access for parking for the benefit of the dominant land (No. 125). Indeed, the judge found not only that the use of the appellant's land for vehicular access to No. 125 has caused and is causing no damage to the appellant but that it could be said that it has improved the appellant's position by alleviating the need of the respondents to park on the open land.
33. Mr Worthen referred to Mills v Silver [1991] Ch 271, National Trust v White [1987] 1 WLR 907 and passages in Gale on Easements (18^th ed) at paragraphs 9-03 and 9-48. Those passages in Gale are as follows:

"9-03. …Applying the general principle that every easement is a restriction of the rights of property of a party over whose land it is exercised, the real question appears to be, on the peculiar facts of each case, whether proof had been given of a right coextensive with that amount of inconvenience sought to be imposed by the right claimed."

"9-48 It would seem, also, that user of an authorised kind, for example with vehicles, may be had, at least if that particular kind of user is expressly authorised, to any increased extent which the physical state of the locus in quo will for the time being allow."

34. Mr Worthen submitted that National Trust v White shows that diversion of a right of way does not necessarily mean an excessive or wrongful use of a right of way.
35. Despite those well-presented arguments, I am clear that an actionable wrong has been committed by the respondents in using the appellant's land to gain vehicular access directly onto No. 125. This case is not analogous to the cases cited by Mr Worthen or the situation contemplated in the passages from Gale which I have quoted. This is not an issue of excessive or otherwise improper use of the right to park on the appellant's land. This is a quite different use of the appellant's land for which no right has ever existed. The point can be demonstrated quite simply. As Maurice Kay LJ observed in the course of submissions, if Mr Worthen's argument is correct the respondents would be entitled both to park three vehicles on the appellant's land, so exhausting the easement of vehicular access for parking, and in addition use the appellant's land for vehicular access. Moreover, after 20 years that right of vehicular access onto No. 125 itself would have fructified into a legal easement for the benefit of No. 125 so that that property would then enjoy two easements, the right to drive on to the open land and park three cars there and the right of vehicular access to and from No. 125. There is no authority or justification in principle for such an outcome.
36. I would nevertheless not interfere with the judge's refusal of an injunction. Relying on Shelfer v City of London Electric Lighting Company (1895) 1 Ch 287, Ms Stevens-Hoare argued, for the appellant, that it cannot be said that the damage to the appellant by the vehicular use of the appellant's land for access to No. 125 is nil or negligible, and so the court should not effectively permit the respondents to buy off the appellant with a money payment in lieu of an injunction. She submitted, moreover, that there has been no improper delay by the appellant in advancing the claim for an injunction since the appellant was not aware of the vehicular access to No. 125 until long after that vehicular use had begun and the work to the compound land and the boundary wall by the respondents had been completed. She relies on the judge's rejection of the respondents' claim based on proprietary estoppel.
37. The amount of any damages in lieu of an injunction is not clear on the material before us. Evidence was given at the trial as to the extent to which the vehicular access would interfere with the development potential of the open land, but we do not have a transcript of the cross-examination on that point. On the basis of the submissions of Ms Stevens-Hoare as to what the appellant might do to regularise the parking of the respondents, for example putting the three parking spaces to which the respondents would be entitled directly in front of the access across the boundary, I am rather sceptical that the damages in lieu of an injunction would be substantial. It is fair to observe, however, that she reserved her client's right to work out in the future what was legally and physically feasible.
38. For those reasons, I cannot accept Mr Worthen's submission that this court should conclude that the damages would be nil or negligible and should assess them ourselves and not put his clients to the stress, trouble, delay and expense of remitting the issue of damages to the county court.
39. On the other hand, I consider that the appellant's delay in taking proceedings for an injunction, and the considerable amount expended by the respondents in the meantime on creating vehicular access across the boundary to No. 125 and building at the rear of their property, are such as to make an injunction inappropriate in the present case. The force of those matters is not undermined by the judge's rejection of the respondents' case on proprietary estoppel. The reasons given for that rejection in paragraph 1 of Section F of the judgment turn on the absence of the appellant's knowledge of what had taken place on the open land prior to 2007. That is a different point from pure laches, and the effect of the laches on the conduct of the respondents, in the context of the exercise by the judge of his discretion as to whether or not to grant an injunction or to make an order for damages in lieu or indeed in the context of the exercise by the court of our own discretion.
40. For those reasons, I would allow the appeal on the counterclaim, to the extent only of ordering damages in lieu of an injunction and remitting the assessment of such damages to the county court.

Lord Justice Aikens:

41. I agree

Lord Justice Maurice Kay:

42. I also agree.

Order: Appeal allowed in respect of counterclaim only