Strand, London, WC2A 2LL
B e f o r e :
| STEVEN JOHN BAXTER
|- and -
|THOMAS FRANCIS MANNION
Mr Tom Weekes (instructed by Taylor Vinters) for the Respondent
Hearing date: 10 December 2009
Crown Copyright ©
Mr Justice Henderson:
Introduction and background
"28. [Mr Baxter] stated that his father began to use the Field for keeping horses some 7 or 8 years before he took over, in 1985. He remembered this date by reference to the age of his children, having bought Shetland ponies for them when they were small. In the course of time the children were given larger horses. His evidence is that he has always had at least one horse on the Field, and sometimes 3 or 4. He accepted that there might be the odd half day when he took the horse out, but he was clear in his evidence that there was not a day when there was not a horse in the Field or the stables."
As will appear, much of this evidence was not accepted by the Adjudicator, who found that Mr Baxter had, at times, kept one horse, and sometimes more, on the Field, but horses were not on the Field every day.
"A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application."
"After the surgery had closed down, I noticed that the field was not being used and appeared to have been abandoned. I was not able to establish who was the owner of the field and after a few months decided that I would pasture some of my horses there. I began putting my horses into the field in 1985 and have done so continuously since.
4. I was using the land daily year after year and in time I came to consider myself the owner. Until my solicitor recently made an index map search I was completely unaware that title was registered and that the land formed part of CB 197366. I had exclusive possession of the land and had assumed that the true owner had for some reason abandoned it.
5. I usually have two or three horses or ponies on the field at any time and over the years have made the boundaries (which previously consisted of trees and hedging) more secure by putting up barbed wire and have from time to time cut back the boundary trees and hedges. The horses keep the grass down and there is old stabling on the land which is used a shelter during hard weather.
6. There are no services on the land and I bring water from the house (by roller tub) together with feed. I access the field leading my horses on foot through the grounds of the former public house along the route coloured brown on the attached plan. Access to the field itself is through a gate which I keep locked and bolted.
7. As stated above I have used the field continuously since 1985 as a pasture for my horses without payment or permission from anyone. At no time has any person made themselves known to me as owner of the field nor have I been asked to leave. I have for many years now treated the field as my own and have not shared occupation or use of it with anyone else. My occupation has not been under a lease, tenancy or licence nor with the consent of any person."
(a) where there is a proprietary estoppel in the applicant's favour, and the circumstances are such that he ought to be registered as the proprietor;
(b) where the applicant is for some other reason entitled to be registered as the proprietor; or
(c) where the land in question forms part of a general boundary the exact position of which has not been determined under the Land Registration Rules.
However, paragraph 4 provides that, if an application under paragraph 1 is not required to be dealt with under paragraph 5, "the applicant is entitled to be entered in the register as the new proprietor of the estate".
"If we do not hear from you before then the application will be completed."
The notice was accompanied by detailed explanatory notes, the Land Registry's Practice Guide 4 containing additional information, and a form NAP for Mr Mannion to fill in if he wished the application to be dealt with under paragraph 5 of Schedule 6.
"[Box 1] I consent to the registration of the application(s)
[Box 2] I require the registrar to deal with the application under Schedule 6, paragraph 5, to the Land Registration Act 2002
[Box 3] I object to the registration on the grounds stated in panel 6"
Panel 6 then gives space for details of the grounds of any objection, and panel 7 has to be filled in with the signature of the person returning the form (or the conveyancer acting for him) and the date.
"We are newly instructed by Mr Mannion. Mr Mannion has advised us that he was unable to deal with the Notice within the required time and we set out his reasons below.
Our client had originally instructed a firm of solicitors to deal with various other matters and he naturally sought that solicitor's advice when he received the Notice. His solicitor advised him that he was in fact unable to deal with this matter on his behalf because it was not within his usual practice.
Before he could instruct new solicitors, our client suffered ill health. Following this, Mr Mannion's only brother died, and he had spent a few weeks in Ireland prior to his brother dying. Mr Mannion's son then had a baby boy, who sadly died at three weeks old, having contracted meningitis.
Following these rather tragic events, Mr Mannion was unwell for some considerable time. Mr Mannion then spent time convalescing in North America attending his godson's wedding.
Understandably our client was mentally unable during this period to deal with the Notice and the instruction of new solicitors.
In light of our client's grounds for delay, we sincerely hope that you are able to consider our client's request for an extension in which to deal with the Notice."
"(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor."
There can be no doubt that the alteration sought by Mr Mannion would, if granted, involve rectification, because it would involve the correction of a mistake and would also prejudicially affect the title of Mr Baxter as the recently registered proprietor of the Field.
"(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless –
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration."
Accordingly, there now being no dispute that the Field was in Mr Baxter's possession after his registration as proprietor, the registrar had no jurisdiction to accede to Mr Mannion's application unless one of the specified conditions in paragraph 6(2) was satisfied.
"I usually have two or three horses or ponies on the land at any time and over the years have made the boundaries more secure by putting up barbed wire. I have also put in a gate 12 feet wide and 5 feet high at the point where the land joins the former car park of the Old Brewery House …
4. Since 1985 when I started keeping horses on the [Field] I have continually used the access way shown hatched blue on the attached plan across the car park of the Old Brewery House from the High Street to gain access to the [Field] both on foot and with a hand barrow for the regular feeding of my horses which is done twice daily on a seven day a week basis.
5. I have also used the drive way for access by vehicles on average about once a month. This is primarily for the delivery of hay and straw to the [Field] but also from time to time to transport horses to and from the [Field].
6. I have used the access way continuously since 1985 as a right of way with or without vehicles for access to the [Field]. At no time has any person made themselves known to me and objected to my use of the right of way. I have not at any time been called upon by any person to make any payment for this user."
(a) Ms Amanda Hedges, a property consultant (now retired) who acted for Mr Mannion in connection with the purchase of the site in 1996, and visited it with him shortly before the auction;
(b) Mr Mark Dyer, a civil engineer and contracts manager employed by Mr Mannion's building company, T Mannion & Co Ltd, who inspected the whole of the site with Mr Mannion in August 2006, and also visited it on two subsequent occasions between July 2003 and January 2004; and
(c) Mr Stephen Lucas, a chartered town planner, who was retained by Mr Mannion to review the planning potential of the site and visited it three times in 2004 and took photographs.
(a) Mr Robert Kirkham, a property developer who visited the site at Mr Mannion's request in January 2005 to consider the possibility of purchasing it;
and for Mr Baxter,
(b) a number of neighbours and relatives, including his son in law Mr Brian Smith. The evidence of these witnesses is summarised in paragraphs 43 to 47 of the Decision. Counsel appearing for Mr Mannion and the Hudsons, Mr Tom Weekes, who has also appeared for Mr Mannion on this appeal, was content for this evidence to be admitted without challenge, with the exception of Mr Smith's evidence. No explanation was given why Mr Smith could not attend for cross-examination (paragraph 43 of the Decision).
The Decision of the Adjudicator
"I have no hesitation in rejecting that argument. If, having reviewed the evidence, the Adjudicator or the court comes to the view that the applicant was not in adverse possession, an alteration of the register can plainly be made. Title is not indefeasible: Schedule 4 allows rectification in the case of a mistake. This is not to be judged on the basis of (unchallenged) evidence before the Registrar, but on the basis of all the evidence, properly tested. I am fortified in this view by the footnote at para 30.1 of Harpum and Bignell's Registered Land: Law and Practice under the Land Registration Act 2002 (2004)."
"If an applicant was registered under the scheme provided by the LRA 2002 and it then transpired that he had not in fact been in adverse possession for 10 years, his registration would be a mistake, and there would, therefore, be grounds for an application for rectification of the register …"
"In the light of this, the claim for a right of way falls away. However, if I am wrong on that, the only factual issue which remains is whether Mr Baxter can establish on the facts that he used the gate as a means of access to the field. Again, as will appear below, I am satisfied that the gate was used to allow vehicles to gain access to the field."
"59. I have no hesitation in accepting the evidence given by and on behalf of Mr Mannion. The Field was visited on a number of occasions by him and others before and after the purchase in 1996 and at no time did anyone (other than on the occasion of the planning inspector's visit, and during one visit by Mr Lucas) see either horses, animals, or anything else which would have indicated that the Field was being occupied by someone else. It was at all times possible (until very recently) to gain access to the Field through gaps in the hedges.
60. The oral evidence is supported by the documentary evidence (I refer in particular to the correspondence at the time of the planning application, the attempts to sell the property, and the photographs taken by Grant Thornton). It is also inherently likely that Mr Mannion and his agents would have been alert to any sign of occupation or possession by anyone else, and would have taken action if this had been the case.
61. I accept that Mr Baxter has, at times, kept a horse, and sometimes more, on the Field. For the reasons given above I reject the assertion that the horses were on the Field every day. Mr Baxter had access to other fields which were no doubt used for his horses. I accept that some work was done to the boundary fences, and to the internal fences, and that water and feed was brought to the Field. The work done to the boundary fences was done, primarily, with a view to ensuring that the horse(s) did not escape, and not to keep people off the Field. It was the minimum work which could be done to this end.
62. Whilst some work may have [been] done to the Field over the years to keep the grass down and the land levelled, I have come to the conclusion that most of the improvements were done recently, and that, in the past, the Field was, if not neglected, certainly not well maintained. I do not accept that Mr Baxter seeded the land every year or that he sprayed it regularly. I accept that anyone visiting the Field on behalf of Mr Mannion would not have been alerted to the possibility of the Field being in the possession of someone else.
63. It is of course right to say that the relevant period is 1996 to 2006, and accordingly that the evidence of user prior to this date is not directly relevant. It is relevant, however, in assessing the credibility of Mr Baxter and his witnesses."
"71. In my judgment Mr Baxter was not in factual possession during the relevant period, namely August 1996 to August 2006, and furthermore I do not find that he had the necessary intention to exclude the world at large, including Mr Mannion. The use made of the Field for grazing was discontinuous and infrequent. The Field was poorly maintained. There was nothing preventing access. It is plain that access was had to the Field by a number of people, including the visits in 2003/4 connected with Mr Mannion's plans to redevelop the Field. The gate was not locked. No signs had been put up indicating that the field belonged to Mr Baxter (I do not say that this is an essential or determining factor, but it is of some significance). There was nothing to indicate to Mr Mannion, even in his most recent visits, that the Field was in the physical possession of someone else.
72. I should also add that even if it is the case, contrary to the view expressed above, that Mr Baxter is now in possession of the Field, it seems to me that it is appropriate that the order sought by Mr Mannion should be made under both limbs of paragraph 6 of Schedule 4 to the Act. Accordingly I will order the Chief Land Registrar to give effect to Mr Mannion's application …"
The issues on the appeal
(a) the Adjudicator misdirected herself in relation to the burden of proof on the ownership claim, holding that it was for Mr Baxter to show that he had been in adverse possession for ten years, not for Mr Mannion to show the contrary;
(b) she also misdirected herself in holding that Mr Baxter was not in possession of the Field even after his registration as proprietor; and
(c) following on from (b), her treatment of the preconditions for rectification in paragraph 6(2) of Schedule 4 was cursory, unreasoned and unsupported by appropriate findings of fact.
Was there a mistake?
(a) A squatter who has been in adverse possession for the requisite ten year period may apply to be registered as the proprietor of the land: paragraph 1(1). For this purpose, adverse possession has the same meaning as in relation to unregistered land: paragraph 11(1).
(b) The application is then followed by the procedure of notice and counter notice which I have already described. The proprietor may require the application to be dealt with under paragraph 5, in which case the applicant is only entitled to be registered if one of the three specified conditions is satisfied. Those conditions are very limited in nature, and in the vast majority of cases none of them will apply. It follows that the registered proprietor will normally have a complete and unassailable answer to the application. However, if the proprietor fails to exercise his right to require the application to be dealt with under paragraph 5, by giving a counter notice within the stipulated 65 day period (for which see Rule 189 of the Land Registration Rules 2003), the applicant is entitled to be registered as the proprietor of the land under paragraph 4. No jurisdiction to extend the 65 day period is conferred either on the registrar or on the court.
(c) Where an application under paragraph 1 is rejected, paragraphs 6 and 7 (which I have not so far mentioned) come into play. Their broad effect is that the proprietor has a period of two years from the date of rejection of the application within which to obtain possession of the land from the squatter, by judgment or eviction following a judgment, or to begin possession proceedings against him. If the proprietor fails to act in one of these ways, the squatter may then make a second application to be registered, but only if he has been in adverse possession of the land from the date of the original application until the last day of the two year period. Since the original application could only be made after ten years' adverse possession, and since a further period of at least three months will normally have elapsed before the original application is rejected, it follows that the second application can only succeed where the squatter has been in undisturbed adverse possession of the land for a period of at least 12 years before the second application is made. If, however, such an application can be made, registration of the applicant as the new proprietor is then automatic, whether or not anybody opposes it: paragraph 7.
"43. I have read the statements of a number of witnesses on behalf of Mr Baxter. In the main these witnesses are either neighbours or relatives of Mr Baxter. These all attest to the fact that Mr Baxter has had horses on the Field and that access was gained over the Yard. The Respondents were content to accept this evidence other than the evidence of Mr Smith …
44. Mr Mason states that he has seen Mr Baxter take a pick-up truck loaded with carrots or feed to the boundary fence. Mr Smith (Mr Baxter's son-in-law) states that he has helped Mr Baxter from time to time fix or replace fences, break in horses, carry out repairs to the sheds and take bales of hay from Mr Baxter's own yard on the other side of the High Street to the Field. He also states that he has driven the fork lift truck to the Field and a tractor onto the Field to trim down the grass. He says he has done so some ten or twenty times without any difficulty.
45. Mr Cox has made a statement saying that as long as he can remember the Baxter family have kept horses on the Field and that he assumed that the land belonged to Mr Baxter. It is for this reason that he asked him for permission to shoot pigeons on the land. Mr Mousley is the owner of the bungalow in the Yard. He has lived there since July 2004. He too states that he has seen Mr Baxter on a number of occasions gaining access to the Field over the Yard with or without vehicles, and without difficulty.
46. Finally, I have read the statements of Mr Fryer, a farrier, and Mr Richardson, who lives in the adjoining property, No. 89 High Street. Mr Fryer states that for the past 20 years he has shod horses for Mr Baxter and trimmed mares' and foals' feet. He did so both on Mr Baxter's own yard at No. 94 High Street but also on the Field.
47. Mr Richardson bought his property in 1992. The two properties were divided by an old post and wire fence which he replaced with a sturdier panel fence along the boundary to prevent horses getting into his land, and his dog escaping. He states that he has seen Mr Baxter on the Field, feeding his horses and generally working there, sometimes mowing the land and sometimes repairing the fences and carrying out general maintenance."
(a) In paragraph 37 she accepted Mr Mannion's evidence that it was always possible to gain access to the Field through gaps in the long eastern boundary, which consisted to a large extent of hedging. She said that at various times there may well have been pieces of timber, corrugated iron, an old gate, and low level barbed wire, but "there is no doubt in my mind that access was possible". She also rejected Mr Baxter's evidence that it had been impossible, until recently, to gain access to the Field from Slade Way: "I do not accept this. I have no doubt that access was possible, and was gained, from Slade Way to the Field by Mr Mannion and others".
(b) In paragraph 39, she accepted Mr Baxter's evidence that there had always been a gate in the same position, but did not accept his evidence that it had always been kept locked and bolted.
(c) In paragraph 59, she found that it was at all times possible, until very recently, to gain access to the Field through gaps in the hedges.
(d) In paragraph 61, she found that the work done by Mr Baxter to the boundary fences "was done, primarily, with a view to ensuring that the horse(s) did not escape, and not to keep people off the Field".
The burden of proof
"(a) The situation in which the court finds itself before it can despatch a disputed issue by resort to the burden of proof has to be exceptional.
(b) Nevertheless the issue does not have to be of any particular type. A legitimate state of agnosticism can logically arise following enquiry into any type of disputed issue …
(c) The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has striven to do so, it cannot reasonably make a finding in relation to a disputed issue."
The conditions in paragraph 6(2) of Schedule 4
(a) Mr Baxter was never entitled to be registered as proprietor of the Field.
(b) He only achieved registration by providing misleading evidence to the registrar that he had been in possession of the Field, including at least one statement that was plainly untrue (namely that there were horses on the Field every day).
(c) Accordingly, his status as a proprietor in possession of the Field since 2006 itself depended on, and was a consequence of, the same misleading evidence.
(d) Mr Baxter then sought to retain his title by giving evidence to the Adjudicator which to a large extent was disbelieved.
(e) There were extenuating circumstances (his own illness, and two deaths in the family) which to a large extent explain and excuse Mr Mannion's failure to serve a counter notice in good time.
(f) Although, if rectification were refused, Mr Mannion would be entitled to seek an indemnity for his loss pursuant to paragraph 1(1)(b) and (3) of Schedule 8, it is uncertain whether he would be compensated in full, because the registrar (or the court) might consider that he was partly responsible for his loss: see paragraphs 5(1) and (2) and 7 of Schedule 8.