England and Wales Land Registry Adjudicator

 

REF/2007/0327

 

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

The Council of the City and County of Swansea

 

APPLICANT

 

and

 

Douglas Brian Wallace Tennant

 

RESPONDENT

 

 

Property Address: Land lying to the west of 17 The Bryn Derwen Fawr Swansea

 

Title Number: CYM324540

 

 

Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Swansea Civil Justice Centre

 

On: Friday 30^th May 2008

 

 

Applicant Representation: Ms Elizabeth Marshall of Counsel instructed by Legal Services Swansea

Respondent Representation: Mr Andrew Keyser QC of Counsel instructed

by Messrs Roy Thomas Begley Solicitors

 

 

DECISION

 

 

KEYWORDS – Application for first registration - Adverse possession – previous unsuccessful attempt to establish adverse possession – no dedicated access by squatter to disputed land

 

Authorities referred to:

 

J.A Pye (Oxford) Limited v Graham [2003] 1 AC 419

 

 

1. The dispute referred to the Adjudicator relates to a parcel of land (“the Disputed Land”) lying between Nos 17 and 21 The Bryn, Derwent Fawr, Swansea. The Bryn is a pleasant residential road with substantial detached houses on each side, dating back to the 1960s or 1970s. Mr Tennant, the Respondent, is the owner and occupier of No 17 The Bryn (“No 17”) and has been so since September 1978. The Disputed Land lies to the west of No 17, both areas being on the south side of The Bryn itself. The Applicant is the legal estate owner of the Disputed Land, which is an unregistered title. No 17 is registered under Title number WA106656. On 22^nd January 1997 the Respondent applied for first registration of the Disputed Land based on alleged adverse possession over a period in excess of 12 years. That application was, for reasons I shall explain in due course, rejected, but a caution against first registration was entered in the register under Caution Title WA851037 to protect his interest. On 18^th September 2006 the Applicant applied for first registration of the Disputed Land, the Respondent objected on 13^th December 2006, on the grounds that he had barred the Applicant’s title under the Limitation Act 1980 (“the 1980 Act”) prior to the application. The dispute was referred to the Adjudicator on 14^th March 2007. There is no current application by the Respondent to become registered with title to the Disputed Land. However, in order to decide whether the Respondent’s objection is valid, I must of course determine the issue of limitation and make findings of fact with regard to it. I heard oral evidence from Mr James and Mr North, who are employees of the Applicant, and also oral evidence from the Respondent himself. The Applicant was represented by Ms Elizabeth Marshall of Counsel, and the Respondent by Mr Andrew Keyser QC. I am grateful to both for their assistance in narrowing the issues.

 

2. The relevant physical characteristics and apparent boundaries of the Disputed Land are as follows. The land is basically rectangular in shape, with a depth (running south from The Bryn) approximately four times greater than the width. However, the frontage to The Bryn is greater than the width along the southern extremity of the Disputed Land: in plan view, this adds a small triangle to the rectangle at its north-eastern corner where it adjoins No 17. The boundary with No 17 is formed by a brick wall about 1.5 metres high running diagonally south-west from The Bryn for about one-sixth of the total length of the Disputed Land (creating the triangle), which then turns more or less due south at a substantial brick pillar and then runs down to the end of the No 17’s garden, which is contiguous with the southern boundary of the Disputed Land. There is a noticeable slope as the land runs south from The Bryn and this boundary wall along the western side of No 17 is built in steps – the height of the wall following the contours in the ground. Along the southern boundary of the Disputed Land the soil has been built up into a perceptible bank. This is very rough and overgrown with shrubs and bushes, and forms a natural barrier with the land to the south (also owned by the Applicant). It would no doubt be possible to enter the Disputed Land from this side, but that would involve scrambling over the bank and through the undergrowth. The western boundary of the Disputed Land is formed by the garden wall of No 21 the Bryn. The northern boundary – the frontage to The Bryn itself – currently consists of a substantial Rosacea (wild rose) hedge running from the boundary with No 17 some two-thirds or three-quarters of the way to the boundary with No 21. The last section, between this established hedge and the wall of No 21, is marked by a new planting of Rosacea, perhaps a metre or so in height, and staked with canes. It is possible to enter the Disputed Land through this section, as I did when I inspected the land at a Site View prior to the hearing. The Respondent obtained a Report from Mr Wheeldon, a Chartered Forester, primarily to give his opinion as to the age of the various trees now present on the Disputed Land. This Report, and the helpful plan attached to it, gives an accurate idea of the state of cultivation of the Disputed Land. Essentially, it is laid to grass, although in places the grass has worn or died away. There are a few substantial trees, and quite a number of small to medium size trees. From a visual point of view, the whole area looks rather like a roughly maintained section of a large garden, albeit something of a backwater.

 

3. As I have said, the application which gave rise to this reference was the Applicant’s application to be registered with title to the Disputed Land. It is accepted by the Respondent that the Applicant has a paper title, and the only substantive issue to be determined is whether that paper title has been barred by operation of the 1980 Act. There is no dispute between the parties as to the law to be applied. As regards the 1980 Act itself, it is common ground that if the Respondent has been in adverse possession of the Disputed Land for the required period, the Applicant’s title will have been extinguished by virtue of Section 17. Although Mr Keyser was not over-enthusiastic in identifying the precise period during which his client claimed to be in adverse possession of the Disputed Land, if the evidence he relies on is accepted (and subject to satisfying the applicable legal tests) the limitation period must have expired long before the Applicant’s application was made, indeed long before the Land Registration Act 2002 came into force. The legal test for adverse possession has been comprehensively re-stated in the leading case of J.A Pye (Oxford) Limited v Graham [2003] 1 AC 419. For a squatter to bar the title of a paper owner, he must establish both

3.1 a sufficient degree of physical custody and control (“factual possession”) and

3.2 an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”),

as those phrases are explained in the judgments, particularly in the speech of Lord Browne-Wilkinson. Although there is obviously considerable scope for argument as to whether any particular acts or intentions fall within these two requirements, they provide the basic legal framework for a consideration of adverse possession.

 

4. Before I consider the evidence adduced on each side, I would draw attention to one slight curiosity. This arises out of the Deed of Exchange dated 22^nd December 1965 (“the Deed”), and made between the Mayor Aldermen and Burgesses of the County Borough of Swansea (“the Corporation”) (1) and Estateways Builders Limited (“EBC”) (2) whereby the Corporation – the Applicant’s legal predecessor - became the paper owner of the Disputed Land. The land conveyed by EBC (coloured and hatched blue on the plan attached to the Deed) included the entirety of the Disputed Land, with a small additional triangle at its north-western corner, exactly matching the existing triangle at the opposite corner. The shape of the land suggests an access with visibility splay onto The Bryn. This impression is reinforced by the provisions of clause 4 of the Deed:

“It is hereby agreed and declared that pending the making up by the Corporation of the land coloured blue and the land hatched blue on the said plan as a road into the adjacent estate of the Corporation the Company shall, subject to the payment to the Corporation of an annual acknowledgment of five shillings ….. be permitted to retain possession thereof and to grant licences to its successors in title and/or lessees of the lands adjoining the east and west sides of the said land …... to use the same as part of the gardens and/or forecourts of the dwellinghouses abutting thereon….”

The clause then makes provision for the termination of any licences granted by EBC and the delivery up of possession to the Corporation once those licences had been terminated. No evidence was adduced as to whether EBC ever granted any licences, but Mr North’s evidence indicated that EBC paid the annual fee referred to until 2007. The curiosity is that the paper title owner does not appear to have been in possession of the Disputed Land under the Deed. Possession was left with the vendor, EBC. Furthermore, the terms of the Deed make it clear that the land was earmarked for a specific purpose, namely as an access road into the land to the south of the Disputed Land. Despite the unusual terms of the Deed, neither party wished to rely on it. It seems that there may have been a late attempt by the Applicant to argue that the occupiers of the Disputed Land were there with the consent of the paper owner, but this was not explained or pursued by the start of the hearing. The Statements of Case do not take any point regarding the terms of the Deed. In the circumstances, I do not think it is necessary for me to consider whether and to what extent the Deed might have affected the issues, if at all.

 

5. The evidence adduced by the Applicant consisted of statements by two of the Applicant’s Valuers, namely Mr Alun James and Mr Andrew North. Both were cross-examined on their statements. Mr North set out the history of the land, as far as he was able to based on the records available to him. He produced a letter dated 8^th September 1978, from the Respondent’s then solicitors Peter Hughes & Co to the Chief Executive of Swansea City Council. It is in these terms:

“We enclose a plan showing edged red land which we think you own. We act for Mr D.B.W.Tennant who is shortly to purchase 1 The Bryn. Our client would like to keep your land tidy and free from weeds and would like to cut down a tree which he says threatens to fall down. Are you prepared to give our client some sort of licence to permit him to look after it. At present it is an eyesore and we understand that a bit of fly tipping has taken place there.

The land is the Disputed Land (with the addition of the north-western triangle). This letter does not appear to have been replied to. Certainly, there is no evidence that a licence was granted. Mr North stated that he had visited the site on a number of occasions. In cross-examination he accepted that these visits occurred after 2003, and that he accessed the site from The Bryn, through the rose hedge which he said was not in place at least at the western end. He thought that the land appeared to have been the subject of some limited mowing of the grass but there was no other form of activity visible to him. He did not give evidence of any actual use of the land by the Applicant, or indeed any presence on the land other than the limited occasions he visited the land in recent years.

 

6. Mr Alun James referred to a visit to the Disputed Land in February 2007, when he took some photographs. He produced some additional photographs at the hearing, which he said had been taken in October 2006. These seem to have been his only visits to the land, albeit that he has worked for the Applicant and the City of Swansea since 1981. His photographs show that the western end of the rose hedge at the northern end of the Disputed Land has ceased to exist, other than some small shoots which clearly do not provide any sort of barrier. Like Mr North, he thought that the land appeared to have been the subject of some limited mowing of the grass but there was no other form of activity visible to him. Again, he did not refer to any use of the Disputed Land by the Applicant or its predecessors. My conclusion from their evidence is that the Applicant and its predecessors have not been in physical possession of the Disputed Land for many years. Although it is said that the paper title owner does not need to do much on his own land in order to retain possession of it, the Applicant was unable to provide evidence of any user between 1978 and 2003.

 

7. Mr Tennant, the Respondent, gave evidence in the form of a witness statement dated 1^st August 2007 upon which he was cross-examined before me. The evidence contained in his witness statement was to the following effect. When he moved into the property in 1978 he noticed the Disputed Land, which was overgrown and it was apparent that items of rubbish had been dumped there. It was unsightly. He did not know who owned the land. In the Spring of 1979 he began to clear the land in order to tidy it up. Most of the items that he removed were placed at the southern end of the Disputed Land, creating the raised bank that I have referred to. Once the area was cleared, he planted grass seed, and various trees and shrubs. Along the northern extremity, on the frontage to The Bryn, he planted a rosebush hedge to prevent entry. Apart from a small section that “recently” died, and has been re-planted, the hedge was intact for over 25 years. He also planted bushes to the south of the bank at the southern end. Since the early 1980s he has used the land exclusively as his own, treating it as an extension to his garden, and allowing his children to play in it. He did not however make a permanent access into the Disputed Land from his property – access was obtained by jumping over his garden wall, and when required lifting his lawnmower and other garden tools into the Disputed Land. No-one challenged his occupation or used the area apart from himself and his family. He refers to the application he made to the Land Registry in 1997, to be registered as proprietor of the Disputed Land on the basis of adverse possession. According to his evidence, the Land Registry surveyor attended the site and prepared a plan. Due to the absence of any direct means of access, however, the Land Registry declined his application, but according to him he was content at that stage to enter a Caution against first registration. In cross-examination, he added to his evidence in some respects. First, he said that the land had been cleared using a JCB borrowed from a friend – a rather more substantial activity than had appeared from his witness statement. He denied that he knew who owned the Disputed Land, and claimed that he did not instruct his solicitor to write the letter of September 1978 to the City Council, asking for a licence. He was unable to explain how the letter came to be written, other than by saying that he left all legal matters to his solicitor and did not get involved. He explained the reason for the failure of the rose hedge along the north-western end of the Disputed Land. Apparently the owners of No 21 decided to build a new wall in or about 2000, and somehow the ground became contaminated which caused the hedge to die back at this point. He accepted that when Mr North visited the land in 2003 and 2005, and when Mr James did so in 2006 and early 2007, access from The Bryn at this point would have been possible. He has since re-planted this section of hedge. He clarified also his evidence to this extent. Although he confirmed that he began to clear the land in 1979, he had to wait for the ground to “settle” before carrying out any planting, which he put at about 1980 or 1981. He added that the cherry tree was planted in about 1985, and his neighbour at No 21 asked him to plant trees to screen a new swimming pool built adjacent to the south-western corner of the Disputed Land. This screen of trees is shown on Mr Wheeldon’s plan and in the photographs.

 

8. In the course of cross-examination, Ms Marshall (for the Applicant) put his Statutory Declaration dated 22^nd January 1997 to the Respondent. This, it will be recalled, was made in support of his application for first registration in 1997. Manifestly, the contents of this Statutory Declaration are not entirely consistent with the evidence he gave in this adjudication. Indeed, some of facts stated therein are obviously wrong. In particular, it includes the following statements:

“The strip of land which abuted [sic] on my property [i.e the Disputed Land] is shown coloured blue on the above mentioned plan. I erected the western and northern boundaries of this blue land in or around the date of my said purchase of my property and since then the said blue land has remained so fenced as to the northern and western boundaries……I have received no adverse claim in respect of the said blue land since I fenced it in with my property in the year 1978…..”

It is obviously inaccurate to claim to have “erected the western and northern boundaries” and to claim to have “fenced” the Disputed Land with his property. First, the western boundary was created by No 21’s garden wall – nothing to do with Mr Tennant. Secondly, he did not erect any fences, although he claims to have planted a hedge along the northern boundary. Thirdly, on any footing the Disputed Land was not enclosed as part of No 17, which is the clear implication of the statement. Not surprisingly, Ms Marshall challenged the overall reliability of his evidence based upon this obvious inaccuracy and inconsistency. She also challenged him with regard to some (relatively minor) discrepancies between his evidence before me as to when he entered into possession of the Disputed Land, and the dates given in his Statement of Case and Statutory Declaration.

 

9. Before coming to an assessment of the evidence which I heard and making findings of fact, I must also mention two other pieces of evidence. First, the Land Registry survey carried out in 1997. Secondly, the report from Mr Wheeldon which I have already mentioned. The Land Registry carried out a survey as a result of the Respondent’s application in 1997. As is usual with such surveys, the report contains both a plan and some photographs. The plan contains annotations by the surveyor, which express an opinion about the age and condition of various physical features. In the absence of any cross-examination of the surveyor, I must be very cautious indeed about accepting these opinions into evidence, for obvious reasons. However, the photographs (which largely speak for themselves) can be very useful, and of course the survey does capture the physical appearance of the land at a specified point in time. To my mind, the photographs establish that in 1997 the Disputed Land included a well maintained garden area, grassed and planted with trees and shrubs, as the plan records. Furthermore, photograph 4 shows in the background the western section of the rose hedge adjacent to The Bryn – this appears to be a thick, well-established boundary feature. The surveyor records an age of “5-10 years” – this is of course merely his opinion. Broadly, the survey is consistent with Mr Tennant’s evidence. Mr Wheeldon’s report contains estimates of age for a number of trees and shrubs inside the Disputed Land. Again, Ms Marshall pointed to a number of apparent discrepancies between Mr Wheeldon’s expert opinion as to age, and Mr Tennant’s actual recollection of when these trees were planted. In particular, this related to the screen of Leyland cypress. According to Mr Tennant this was done in the early 1980s. According to Mr Wheeldon, this planting took place not before 1990. However, it is apparent from the report that there has been extensive planting on the land over a number of years.

 

10. As the above summary of the evidence doubtless suggests, the Applicant is not in a position directly to challenge the evidence of Mr Tennant. It does not contend that it has itself been in occupation of the Disputed Land – the only evidence of actual entry onto the land since 1978 was in the form of Mr North’s two brief visits in 2003 and 2005, and Mr James’s in 2006 and 2007. As is often the case where paper title owners are trying to fight off a claim to adverse possession, the only direct evidence is that of the squatter himself. Ms Marshall was therefore obliged to cast doubt on the reliability and credibility of Mr Tennant as a witness, based on the inconsistencies which I have already alluded to. She invited me to find that because Mr Tennant’s evidence cannot be relied upon in certain specific instances, his entire evidence is infected. I entirely understand this line of attack. There are inconsistencies in the evidence. I was not impressed by Mr Tennant’s excuse for the inaccuracies in his Statutory Declaration, although he accepted, as he was bound to, that the Statutory Declaration was misleading. I am also baffled by his evidence that he did not instruct his solicitor to write the letter dated 8^th September 1978. There are other, relatively minor, points where the totality of the evidence adduced on his behalf reveals a degree of internal inconsistency. Notwithstanding these reservations, however, I am entirely satisfied that the central thrust of his evidence is accurate and truthful: I do not accept the submission that the defects in the Statutory Declaration are so grave as to cast doubt on all his evidence. The inconsistencies are troubling because my overall impression of him as a witness was a very positive one. However, apart from some minor discrepancies in dates – hardly surprising after some 30 years – Ms Marshall was unable to make any real impression on him with her cross-examination. Furthermore, the Land Registry survey does, in my view, provide support for his claim to have maintained the Disputed Land as part of his garden for many years prior to the date of the survey in 1997. I am therefore able to accept his evidence and make the following findings:

10.1 When the Respondent bought No 17 the Disputed Land was unoccupied, overgrown and rubbish had been dumped on it;

10.2 Mr Tennant entered the Disputed Land some time in 1979 and cleared it using a JCB. He created the bank at the southern end of the land which forms a partial barrier into the field beyond.

10.3 Some time later, in 1980 or 1981, he began to plant shrubs and sowed grass seed to create a rough lawn. At or around this time he planted a wild rose hedge across the entire northern frontage of the Disputed Land, where it abutted The Bryn.

10.4 Probably by 1984 at the latest, the Disputed Land was fully enclosed for all practical purposes, with access from The Bryn impossible due to the presence of the rose hedge.

10.5 The only people who entered the Disputed Land between 1979 and 2003 (other than the Land Registry surveyor in 1997) were the Applicant and members of his family. The land was treated as an extension to No 17’s garden.

10.6 Since the early 1980s the Applicant has carried out routine acts of maintenance, such as cutting grass and trimming and pruning trees and shrubs.

10.7 It was only some time in the early years of this century that the rose hedge fronting The Bryn became damaged and allowed access from the road. Prior to that time – a period in excess of 15 years – the land was effectively enclosed on all sides.

 

11. Based on these findings, I have no hesitation in holding that the Applicant was in factual possession of the Disputed Land for more than 12 years prior to 2003, when Mr North entered the land for a routine inspection. I use the expression “factual possession” as shorthand for the requirements which I have described under Paragraph 3.1 above. It was submitted on behalf of the Applicant that Mr Tennant cannot have been in factual possession because the quality of his occupation was insufficient. The fact that he did not have a dedicated means of access was also relied upon. It seems that the Land Registry, when rejecting his application for first registration in 1997, was exercised about this issue. However, the Land Registry’s letter dated 10^th December 1997 states as follows:

“Given that the land was clearly not part of the premises occupied by the declarant the credibility of the information given in the Statutory Declaration was undermined.”

As I have explained, the Statutory Declaration states that the land was fenced within the boundaries of No 17, which was manifestly not the case. The reason for rejecting the application, based entirely on the Statutory Declaration, which does not make any mention of access to the land, is obvious. However, I am satisfied that, as a matter of fact, the Respondent did actually obtain access to the Disputed Land over a number of years by climbing over the garden wall. The wall is not particularly high and indeed I witnessed Mr Tennant entering the land by this means on my Site Visit. It may be a slightly inconvenient method of entry, but it is not particularly difficult. The western wall of No 17 is quite a substantial structure, and I accept Mr Tennant’s explanation, namely that he was reluctant to spend money on making a permanent entrance through this wall into the Disputed Land. Nevertheless, he and his family were the only people who actually entered, used and maintained the Disputed Land.

 

12. Factual possession is not of course sufficient if there is no corresponding intention to possess – the requirement referred to in Paragraph 3.2 above. I do not think there can be much doubt that Mr Tennant has had the necessary intention to possess since 1997. In that year he actually made a claim to the Disputed Land, albeit an unsuccessful one. I see no reason to doubt that he had acquired the necessary intention to possess at the same time as he entered upon the Disputed Land and began to use it. The only practical public access was from The Bryn, and he blocked this access by planting a think wild rose hedge. Whilst he did not actually enclose the Disputed Land within his own boundaries, he did the next best thing, by excluding the public and indeed the true owner by means of the northern hedge. He himself had free access to the land, over his garden wall, and was in practice the only person (together with his family members) to enter the land from that time onwards. Judging his intention by his actions, I think that there is little doubt that he intended to possess the Disputed Land to the exclusion of all others from 1980 or so. In my judgment, therefore, he will have barred the Applicant’s title to the land by 1996 at the latest, having been in factual possession, with the necessary intention to possess, for a period in excess of twelve years. Accordingly, I shall direct the Chief Land Registrar to cancel the Applicant’s application dated 18^th September 2006. Since there is no application by the Respondent before me, I cannot make any order that he should be registered with title to the Disputed Land. However, if he were to make such an application, and in view of the findings made in this Decision, it is likely that any further objection by the Applicant would be regarded as groundless.

 

13. I am also minded to order the Applicant to pay the Respondent’s costs of this adjudication on the standard basis. Before making such an order, and deciding whether a detailed assessment is appropriate, I direct the Respondent to serve a costs breakdown on the Applicant and on the Adjudicator on or before 18^th July 2008. The Applicant may respond in writing, with regard to the quantum and with any arguments it may have why it should not pay the costs. This response should be filed and served no later than 25^th July 2003.

 

 

Dated this 4^th day of July 2008

 

 

 

 

By Order of The Adjudicator to HM Land Registry