England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM The Deputy Solicitor to HM Land Registry
Mr Clive Martin

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 February 2005

Mr Justice Blackburne:

Introduction

1. This is an appeal pursuant to rule 300 of the Land Registration Rules 1925 against the decision delivered on 7 October 2004 of the Deputy Solicitor to HM Land Registry, Mr Clive Martin, on an application made on 21 October 2002 by the Trustees of the Grantham Christian Fellowship ("the Church") for first registration as freehold proprietors with title absolute of an area of land ("the disputed land") on the southeast side of Albert Street, Bottesford, Leicestershire and for the cancellation of The Scout Association Trust Corporation ("the Scout Association") as proprietors of the disputed land with a possessory title. The Scout Association, acting as trustee of the 1st Bottesford Scout Group ("the Scout Group"), had been registered as freehold proprietor of the disputed land with possessory title under title number LT 319654 on 27 January 2000.
2. The disputed land is broadly rectangular in shape and about 40 metres long and 14 metres wide. It is bounded on the north-east by a Scout Hall used by the Scout Group and other land belonging to the Scout Association, on the south-west and south-east by the back gardens of properties in Walford Close, and on the north-west by the main road, Albert Street. The disputed land is primarily a grassed area but part of the land adjoining Albert Street comprises a rockery garden.
3. The Church holds paper title to the disputed land. The question which the Deputy Solicitor had to decide was whether the Scout Association, through the Scout Group, had barred the Church's title to the disputed land by adverse possession. He decided that it had and therefore ordered the cancellation of the Church's application for first registration and for cancellation of the Scout Association's possessory title. The Church appeals against that decision.

The facts

4. The Deputy Solicitor's recital of the relevant facts was as follows.
5. The Scout Association purchased its plot, on which not long afterwards it built a Scout Hut (to be replaced at a later date by a more substantial structure), on 1 February 1957. The Church, then known as the Grantham Pentecostal Church, purchased its plot, adjoining that of the Scout Association, on 11 February 1957. Both purchased from the same vendor. The Church did so with the intention of building a church on the land as permanent accommodation for worshippers living locally but this intention was never carried out.
6. At that time the disputed land consisted of overgrown grassland on which children used to play and rubbish was dumped.
7. In 1959 the then Minister of the Church, the Reverend Fredrick Mann, visited the disputed land. Finding that scouts had pitched their tents on it, he had a conversation with the Scout Leader of the Scout Group in which, on behalf of the Church, he gave consent to the Scout Group to continue to use the disputed land provided the grass was cut and it was kept tidy. This conversation was never properly recorded or, it would seem, communicated to others in the Scout Group and, with the passage of
time, was forgotten within the Group. In the meantime, the Scout Group went on using the land for activities such as games and camping and a committee made up of supporters of the Scout Group took on the responsibility of cutting the grass and otherwise taking care of the land.
8. In early 1973, by which time its plan to build a church on the disputed land had been abandoned, the Church's solicitors were advised by a firm of surveyors that a proposed purchase of the land by the local Council would not proceed. The Church was recommended, however, not to dispose of the land until an embargo on planning consents in the area was lifted pending construction of a new sewerage scheme. By then, the Church was advised, planning permission for a bungalow on the land was likely to be granted which would greatly enhance the land's value. In the event no sale of the disputed land ever took place.
9. In around 1985 two fields adjoining the disputed land were developed. Three years earlier, in 1982, the Scout Association was approached by the local Council (by then under the impression that the Association owned the disputed land as well) to enquire whether it would be willing to sell to the Council any of its land, including the disputed land, in order to facilitate the development of the adjoining land. The Scout Association, after making enquiries within the Association, made clear to the Council (in a letter in July 1982) that it did not own the disputed land but was, and had been for more than 10 years, using it "on an informal basis", paying no rent or licence fee for such use and keeping the land "tidy and under control". The writer of the letter (the Secretary of the Scout Association) then stated that he had been informed by the Scout Group that the Scout Group did not wish to consider disposing of its own land "but obviously had no claim on or control over the [disputed] land …". In an internal Scout Association letter written at the same time, reference was made to the disputed land "which we occupy temporarily". The letter enquired whether any information was available "as to who the true owner" was of the disputed land. Nothing came of the matter.
10. In the course of the development on the adjoining land in or about 1985, the builders approached the Scout Group and obtained its permission to gain access to the development site over the disputed land. The Scout Group gave its permission on the understanding that the land was restored to its original condition, levelled and re-grassed after the building work was finished. This was duly done.
11. At about the same time - 1985 - but after the disputed land had been restored to its earlier condition, the Scout Group constructed a rockery garden and a new picket fence at the north-western end of the disputed land adjacent to the road and planted ornamental trees and shrubs on the land. At a later date the Scout Group installed a commemorative bench on a concrete base on the land close to the rockery garden and road. It did so in memory of a past Scout Leader.
12. There was never a fence between the land which belonged to the Scout Association and the disputed land. The disputed land was otherwise fenced in.
13. On 8 June 1994 the then Minister of the Church, the Reverend Norman Bow, wrote to the Scout Group Leader to say that the Church thanked the Scouts "for the way you have kept our plot tidy and the grass cut" and to enquire whether, in connection with a forthcoming church function, the Church could use the Scout Hall. The letter met
with a hostile response in which a Mr Pitman, the Venture Scout Leader, standing in for the Scout Group Leader, stated that Mr Bow's letter had been read with "a great deal of surprise and considerable amazement". The letter went on to assert that the Scout Group had "exercised full rights of ownership over the [disputed] land for a period in excess of 30 years quite openly and without making any acknowledgement to any person or organisation that the Scout Group is using the land by consent". The letter stated that the Scout Group was not prepared to make its Hall available to the Church.
14. The Church did not apparently reply to that letter and three more years elapsed before the Reverend Ian Ferguson, a successor of Mr Bow, wrote a letter (dated 24 July 1997) in which he referred to the "charitable" lending of the disputed land to the Scout Group, without costs or rent, for the Group's sole use, describing the arrangement as "a simple 'verbal agreement' with the express wishes of the Reverend Mann for the Scouts to keep the plot of land tidy". He also set out the history of the Church's ownership of the disputed land and, in the course of so doing, mentioned a visit to it by the Reverend Richard Holmes in 1985, to which I will return later.
15. Further correspondence between the Church and the Scout Association followed. In the course of that correspondence, the Scout Association explained that its records did not indicate that the disputed land was occupied under licence from the Church, that no one recalled any such arrangement and that the documents produced by the Church did not establish that the Church had title to the land which had been enclosed with the remainder of the Scout Group's property for many years. In a later letter (of 22 June 1998) the Scout Association stated that if it transpired that the Scouts' use of the disputed land was with Mr Mann's consent, the Association would want proof that the Church had and retained title to the land.
16. The problem faced by the Church at that stage was that its deeds to the disputed land were missing. They subsequently came to light and on 9 June 1999 the Church's solicitors wrote a letter addressed to the Scout Association to explain that they had been found. They enclosed a copy of the relevant conveyance and added: "Whereas the Church is quite happy for the Scouts to continue using the land as hitherto they would like the position confirming and recording to avoid any possible misunderstanding in the future."
17. Mr Carey of the Scout Group (who represented the Scout Association before the Deputy Solicitor and also, on appeal, before me) suggested to the Deputy Solicitor that the Association may not have received that letter. It was a suggestion he repeated before me. But the Deputy Solicitor observed that he (Mr Carey) had produced no evidence to this effect. At all events, there was no reply to the letter and therefore no confirmation forthcoming from the Scout Association to record the basis on which the Scouts continued to use the disputed land. The correspondence came to an end at that point.
18. Although the requested confirmation was not forthcoming, the Church took no action to prevent the Scouts using the disputed land. For its part, the Scout Group decided to seek to acquire title to it based on adverse possession. The services of solicitors were engaged. This led to the making of an application to the Land Registry,
supported by various statutory declarations. As I have mentioned, on 27 January 2000, the Scout Association became registered with a possessory title to the land. The fact that there had been correspondence with the Church was not disclosed by the solicitors to the Land Registry (a matter which, since it was acting by solicitors, it would not be fair to blame on the Scout Association) with the result that the existence of the possessory title only came to the Church's attention in 2002 when the Church itself decided to apply for first registration in preparation for the sale of the land as a potential building plot.

The finding of a licence

19. Having set out the facts, the relevant statutory provisions in the Limitation Act 1980 and referred briefly to the law on adverse possession as stated in J A Payne (Oxford) Ltd v Graham [2003] 1 AC 419 ("Pye"), the Deputy Solicitor said that the first hurdle which the Scout Association had to overcome was to show the absence of the paper owner's consent to the occupation of the land granted by the Reverend Fredrick Mann on the Church's behalf in 1959. To this end he said that three main questions arose. They were: (1) Did the conversation which Mr Mann said that he had (in 1959) take place? (2) If it did, did the lack of knowledge of it on the part of later Scout Leaders affect the position? (3) What was the scope of the consent?
20. The Deputy Solicitor reached the following conclusions on those three questions: (1) He accepted the evidence of the Reverend Frederick Mann (whom he described as "a good witness") that he had a conversation with the then Scout Leader in 1959. (2) The fact that the existence of the consent was apparently overlooked or never notified to later Scout Leaders did not, in itself, mean that the Scouts' presence on the land was no longer by consent. (3) The permission given to the Scouts to use the disputed land (so long as they cut the grass and kept it tidy) included use of it for related scout activities such as games and occasional social events associated with the Scouts.

The events of 1985 and the Deputy Solicitor's conclusions

21. The Deputy Solicitor then went on to express the belief that nothing happened on the disputed land that was not within the contemplation of the parties to the 1959 arrangement until around 1985. He then came to consider what he described as "the events in around 1985" which, in his view, fundamentally changed the relationship between the parties.
22. He found that the actions of the Scout Group in 1985 (or thereabouts), following the development of the adjoining land, in fencing most of the disputed land in with the Scout Group's own property, building a rockery, planting ornamental trees and shrubs and (later) erecting a commemorative seat set in concrete were not within the contemplation of what the parties had in mind as permissible when the consent was granted so that the Scouts were no longer acting in accordance with the arrangement that had been made but were treating the disputed land as their own, unrestricted by any licence or consent. He found that the Scout Group's response to a visit in 1985 by the Reverend Richard Holmes to the disputed land amounted to a repudiation of any then existing or future consensual relationship between the parties.
23. He concluded that, given those circumstances, the elements required for adverse possession were present from 1985 onwards (or at the most a year or so later) in that,
from that time, as a result of the events in 1985, the Scout Group, acting on behalf of the Scout Association, "took over possession from the Church". He found that, at that point, the Scout Association "commenced" the process of adverse possession, "a right of action accrued in favour of the Church" and twelve years had since passed. He therefore ordered that the Church's application for first registration be cancelled.

The Church's challenge

24. Mr Jones, appearing for the Church, while accepting the Deputy Solicitor's findings of primary fact, challenges his conclusion. Although the Church's grounds of appeal and his skeleton argument raise a number of matters, before me Mr Jones confined his attack to just one matter: the conclusion that, although the Scouts' occupation of the disputed land had been with the Church's consent from 1959 to 1985, it ceased so to be from and after 1985 or thereabouts as a result of the events of 1985 with the result that the ingredients of adverse possession were thereafter present so as to give to the Scout Association by 1997 (or 1998 at the latest) a possessory title to the land.
25. Mr Jones accepts, rightly in my view, that but for the existence of the Church's licence to the Scout Group's continued use of the disputed land, the Scout Association is able to demonstrate that by the early 1980s - the precise date does not matter given the Church's failure so far to bring any action to recover the disputed land - it was (through the Scout Group) in adverse possession of the land in the sense in which, as a result of the decision in Pye, the necessary ingredients of adverse possession are now to be understood. He also accepts that, by its 5 July 1994 letter, the Scout Association was making it abundantly plain to the Church that the Scout Group's occupation of the disputed land was not by the licence of any other person or organisation.
26. The question, however, which is critical to the Scout Association's right with effect from 27 January 2000 to be registered with a possessory title to the disputed land is whether by the end of 1987, if not earlier, its occupation through the Scout Group of the disputed land was no longer by the Church's licence. For it is fundamental to the acquisition of title to land by adverse possession that the possession relied on is not with the paper owner's consent.
27. The Deputy Solicitor's finding, which the Scout Association has not formally challenged - although from Mr Carey's submissions and the skeleton argument of the Association which carries Mr Carey's name it is evident that this is a finding which the Association finds hard to, but nevertheless, accepts - was that for some 26 years (between 1959 and 1985) the Scouts' occupation of the disputed land was with the Church's consent. This was notwithstanding that by the late 1960s, which is when one of the Scout Group's Leaders who gave evidence to the Deputy Solicitor first joined the Group, none of the Scout Group's Leaders had any knowledge of the existence of any such consent.
28. The difficulty was that the licence was oral and did not require any payment to be made for the right to use the disputed land. It merely required the Scouts to keep the land neat and tidy, which they did. The fact therefore that very many years passed without there being any contact between the Church and the Scout Group over the latter's use of the disputed land, much less any acknowledgement of the continuing existence of the licence, did not mean that somehow the licence ceased to be
operative. In this respect the licence is in marked contrast to the grazing agreement in Pye which was for a fixed term which expired and which the landowner refused to renew.
29. Mr Jones' criticism of the Deputy Solicitor's finding that the events in around 1985 brought the licence to an end focuses on two aspects of those events which, in the Deputy Solicitor's judgment, led to that conclusion. They are the actions of the Scout Group carried out on the disputed land and the circumstances of a reported visit to the land by the Reverend Ian Ferguson (on behalf of the Church) in 1985.
30. As to the first of those matters, the Deputy Solicitor said this: "Following the use of the land by the builders and its reinstatement by them, the Scout Group fenced most of the disputed land in with their own property, built a rockery fronting the road, planted ornamental trees and shrubs and later erected a commemorative bench set in concrete - all acts of a permanent or semi-permanent nature. I do not think these acts would have been remotely within the scope of what the parties had in mind as permissible when the consent was granted. In fact, the only reasonable conclusion to be drawn was that the Scouts were no longer acting simply in accordance with the arrangement that had been made. Instead, they were treating the land as their own, unrestricted by any licence or consent."
31. It is difficult to see why some at least of those actions should be regarded as outside the scope of the 1959 licence. The fencing in of the land which, according to the unchallenged evidence of the Scout Association's witnesses, had occurred years earlier, so far from being inconsistent with the licence, seems to me to be entirely consistent with keeping the land neat and tidy given that, at the time that the land was purchased by the Church in 1957, it had been used as a place on which to dump rubbish. It is likewise a little difficult to see why the planting of ornamental trees or shrubs should be outside the scope of the consent.
32. Be that as it may and assuming that the activities (or some of them) referred to by the Deputy Solicitor were outside the scope of the licence and that as a result the Scouts "were treating the land as their own, unrestricted by any licence or consent", I do not see that it follows that the Scouts' licence to use the disputed land thereby came to an end. In an earlier passage in his Decision, the Deputy Solicitor seems to suggest that the continued existence of the licence was dependent upon the Scouts not stepping outside the range of activities on the land permitted by the licence. Thus he observes that:

"As long as they [the Scouts] go on using the land in accordance with the original consent, the permissive nature of their occupation must, I feel, continue to subsist."

And, elsewhere, that:

"There must, I think, come a time when a licensee strays sufficiently beyond the terms or implied terms of their licence that they can no longer be said to be acting by consent."

33. Whilst it is of course possible to agree a term of a licence that the licence will automatically end on the occurrence of a particular event and while, if the circumstances of the case justify it, it may be possible to imply such a term, I cannot think that, in a licence as vague as this (to have the use of the land in return for cutting the grass and keeping it neat and tidy), it would be remotely right to imply a term that so soon as the Scouts stepped outside the terms of their permitted user, for example by failing for a period to keep the land neat and tidy or by allowing an activity to take place on the land which was outside the range of activities contemplated by the parties when the licence was granted, the licence automatically ended and thereafter the Scouts became trespassers on the land. The obvious consequence of a breach of the terms of the licence, just as it usually will be of a breach of the terms of a tenancy, is to give to the licensor a right to terminate the licence and, if damage has been occasioned to the licensor by the breach, to claim damages. Of course, in the case of a licence of indefinite duration, as the Deputy Solicitor in effect held this one to be, it would in any event be open to the Church as licensor to bring it to an end upon reasonable notice.
34. I am therefore unable to accept the Deputy Solicitor's conclusion that the carrying out by the Scouts on the disputed land of the activities to which he referred brought about, without more, a termination of the licence. In my judgment, in so concluding, the Deputy Solicitor was in error.
35. What then of the second of the two matters, the reported visit to the disputed land of Mr Holmes in 1985 and the Deputy Solicitor's conclusion that the visit resulted in "a repudiation of any then existing or future consensual relationship between the parties"?
36. Of that reported visit, the Deputy Solicitor said this: "Furthermore, according to the letter dated 24 July 1997 from the Reverend Ian Ferguson to the Scout Association, the Reverend Richard Holmes visited the Scout Leader in 1985 'to cordially establish our responsibility for the land in Albert Street but was met with a certain amount of hostility' which I take to mean the Church's claim was actively denied. The date of 1985 may be an approximation but I believe that such a visit did take place. It was, of course, around that time that the housing development and the later incorporation of the land fully within the Scouts' own property occurred and one might well have expected one or other of these events to be a trigger for a visit by someone from the Church, to the land."
37. It is important to appreciate what the evidence was of Mr Holmes' visit. The only reference to it is in the sentence of Mr Ferguson's lengthy letter of 24 July 1997 which the Deputy Solicitor quoted. Neither Mr Holmes, the person who was said to have made the visit, nor Mr Ferguson, the writer of the letter in which the quoted
sentence appears, gave evidence. It is not apparent from the letter what was meant by cordially establishing responsibility for the disputed land, what the nature was of the hostility which Mr Holmes is reported to have met and, not least, from whom precisely, except that it was reportedly the "Scout Troop Leader", the hostility came. What is more, as the Deputy Solicitor himself observed:

"The Scout Leaders have said they know nothing of this visit either. And again, I suppose, there could have been a lack of communication somewhere along the line. However, I will be surprised if an incident of its apparent seriousness was not widely discussed within the Group …"

Yet none of those who gave evidence before the Deputy Solicitor on behalf of the Scout Association - and they included two persons who were Scout Leaders at the time and one who, at the time, had joined the Scout Group and was on its "Supporters' Committee" - recalled the incident. All were adamant that, to quote Mr Kitchener who was one of the three, "from 1982 to 1994 no contact was made with the Scout Group by anyone claiming the land".

38. It is therefore with some surprise that, on that evidence (or lack of it so far as first-hand witnesses are concerned), the Deputy Solicitor felt able to say of that visit not only that "the Church's claim was actively denied" but also that: "…the Scout Leader rejected the suggestion that the Group's occupation was with the Church's consent and sent the Reverend Holmes away."

so as to justify his conclusion that: "This … amounted to a repudiation of any then existing or future consensual relationship between the parties."

39. In my judgment that was a conclusion by the Deputy Solicitor which the evidence before him - the single sentence of Mr Ferguson's letter unsupported, indeed contradicted, by the evidence of those who might be thought to be in a position to know about the matter - did not justify.
40. In any event, assuming that Mr Holmes was told that the parties' consensual relationship was being repudiated, it is not apparent from the Decision whether the Church, through Mr Holmes or anyone else, accepted that repudiation so as to bring the licence to an end. The Deputy Solicitor merely says that Mr Holmes was "sent away". If anything, the evidence before the Deputy Solicitor indicated that the repudiation, if such it was, was not accepted. Relevant to this is the evidence of the Reverend Frederick Mann who was a trustee of the Church until around 2000 and whom, as I have mentioned, the Deputy Solicitor regarded as a good witness. He said that, so far as he was concerned, the arrangement with the Scouts continued until he learnt that the Scout Association had a registered possessory title to the land. He also stated (I am quoting from the Decision) that he used to pass the site frequently until 2002 and that he did so "to ensure that the site was being looked after and was being kept in a clean and tidy condition". Such evidence was scarcely consistent with an acceptance of the repudiatory conduct (assuming that it occurred). It is trite law that a repudiation which is not accepted has no consequence: the contract remains in being.
41. It follows that on the primary facts as he found them the Deputy Solicitor was not correct in concluding that from 1985 (or thereabouts) onwards the Scout Group was in adverse possession of the disputed land. There was nothing to indicate the Church's consent to the Scouts' occupation of the land did not continue. Accordingly it was not open to the Deputy Solicitor to conclude that by January 2000 the Scout Association had acquired a title by adverse possession so as to bar the Church's paper title.

Result

42. The appeal succeeds. I shall make an order expunging title number LT 319654 so as to cancel the Scout Association's possessory title. I am asked by Mr Jones to make a declaration that the Church is entitled to be registered as freehold owner with title absolute in respect of the land shown on the file plan attached to title number LT 319654. Although it might be thought that that follows, I have not myself seen evidence of the Church's title although, of course, the Decision has proceeded on the footing that the Church is the paper owner of the disputed land. I propose instead to set aside the order of the Deputy Solicitor cancelling the Church's application for first registration. It will then be for the Registrar to consider whether to accede to that application. On what I have seen, there is no reason why he should not.

Costs

43. I invited both sides to address me on costs so as to avoid a further hearing. Mr Carey said that, even if successful, the Scout Association would not seek its costs. For the Church, Mr Jones submitted that, if successful, there was no reason why the Church should not recover its costs, both of the appeal and of the hearing before the Deputy Solicitor. The Deputy Solicitor had, I should say, made no order as to costs.
44. In my view, cost should follow the event so far as the appeal to me is concerned. I do not propose to disturb the order for costs made by the Deputy Solicitor. To a large extent, the Church brought this whole unfortunate dispute upon itself through its absence of contact with the Scouts over many years, beyond the few letters to which I have referred. It could have saved itself much trouble if it had made its interest in the disputed land clearer at an earlier stage. As regards its costs of the appeal which I am ordering the Scout Association to pay, I would only add that, since both parties are charities and neither I suspect is particularly well endowed, the Church may feel that, having succeeded, to the extent that it has, in vindicating its title to the disputed land, costs should lie where they have fallen. But that must be a matter for the Church. I shall direct a detailed standard basis assessment of its costs of this appeal in default of agreement.