REF/2007/1537

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A

REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

(1)   RICHARD GARWOOD

(2)   MARGARET ISOBEL GARWOOD

 

Applicants

and

 

 

RUTLAND COUNTY COUNCIL

Respondent

 

Property Address: Land at the rear of 2 Summerfield, Oakham

 

Title Number: LT392135

 

 

Before Ann McAllister, sitting as Deputy Adjudicator

Leicester Employment Tribunal

 

26 October 2009

 

 

 

Representation: Mr Jarand instructed by Paul Browne Solicitors appeared for the Applicants; Mr George instructed by Head of Legal Services, Rutland County Council District Council appeared for the Respondent.

 

 

 

 

 

 

Application to be registered as owners on grounds of adverse possession – effect of fact that land in question subject to provision of Open Spaces Act 1906 – application given effect to

 

 

 

DECISION

 

 

 

 

Introduction

 

 

1.                    The Applicants, Mr and Mrs Gardwood, are the registered owners of 2 Summerfield, Okham (‘the Property’). The Property was transferred by the developers, Persimmon Homes (Midlands) Limited to their predecessors in title, Mr and Mrs Davidson, on 31 October 1988, who in turn sold it to Mr and Mrs Garwood on 4 July 2006.

 

2.                    This dispute concerns an additional piece of land (‘the Land’) which was enclosed with and has formed part of the Property since December 1988. The Land is part of the garden of the Property running down to a stream. It is inaccessible to anyone other than the owners or occupiers of the Property. This is not in dispute.

 

3.                    The Land (together with a number of other parcels of land) was transferred by the developers to the Respondent (‘the Council’) on 6 July 1995 (‘the 1995 Transfer’) pursuant to the provisions of the Open Spaces Act 1906 (‘the Act’). By clause 6 the Council declared that it would hold the Land upon trust for perpetual use and enjoyment by the public under Section 10 of the Act. By clause 7 the Council covenanted with the developer that it would not erect any building or structure on the Land other than in connection with its use as a public open space. The Land is registered with title number LT278434.

 

4.                    In so far as it is relevant, it is also common ground that at the time of the 1995 Transfer neither the developers nor the Council were aware of the Davidsons’ occupation, and, conversely, that neither Mr and Mrs Davidson, nor Mr and Mrs Garwood at the time of their purchase, were aware that the Land was held pursuant to the provisions of the Act. This state of affairs continued, as I understand it, until the application referred to below was made by Mr and Mrs Garwood.

 

5.                    By an application dated 15 November 2006 Mr and Mrs Garwood applied to be registered as owners of the Land on the basis of adverse possession.

 

6.                    The Council accept that, but for the provisions of the Open Spaces Act 1906, title to the Land would be extinguished by the provisions of the Limitation Act 1980 as preserved by the transitional provisions set out in paragraph 18 of Schedule 12 to the Land Registration Act 2002.

 

7.                    The point at issue is therefore a short one. The Council contends that time stopped running in favour of Mr and Mrs Davidson as at 6 July 1995 and that, as from that date, occupation of the Land has not been adverse but, to the contrary, in accordance with the provisions of the 1995 Transfer, ie as members of the public. Mr and Mrs Garwood state that their occupation and that of their predecessors in title has been as trespassers, and their enjoyment of the land has not been as members of the public but as private owners of the Property. It therefore follows that their possession is adverse. There is no provision in the Limitation Act or in the Act which prevents time running against a local authority who holds land as an open space.

 

8.                    For the reasons which I set out below, it seems to me plain that the Applicants are correct in their analysis. Accordingly I will order the Chief Land Registrar to give effect to the application. Mr and Mrs Garwood accept that the restrictive covenant will appear on the register. This covenant may or may not be enforceable: I am not concerned with that point.

 

The relevant legislation and authorities

 

9.                    By section 10 of the Act:

 

‘ A local authority who have acquired any estate or interest in or control over any open space or burial ground under this Act shall, subject to any conditions under which the estate, interest or control was so acquired:-

(a)   hold and administer the open space or burial ground in trust to allow, and with a view to, the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation and for no other purpose: and

……………………

And may inclose it or keep it inclosed with proper railings and gates, and may drain, level, lay out, turf, plant, ornament, light, provide with seats and otherwise improve it, and do all such works and things and employ such officers and servants as may be requisite for the purposes aforesaid or any one of them.’

 

10.                ‘Open Space’ is defined in section 20 as ‘any land, whether inclosed or not, on which there are no buildings or of which no more than one-twentieth part is covered with buildings, and the whole of the remainder of which is laid out as a garden or is used for the purposes of recreation, or lies waste and unoccupied.’

 

11.                Section 15 of the Act empowers the local authority to make byelaws for the regulation of the open space, the days and times of admission, and for the preservation of order and prevention of nuisances therein and may impose penalties recoverable summarily. It is common ground that no such byelaws were made in respect of the Land.

 

12.                Mr George referred to a passage in Lord Walker’s speech in R (Beresford) v Sunderland City Council [2004] 1 AC 889 at paragraph 87 in which he said this: ‘Where land is vested in a local authority under a statutory trust under section 10 of the Open Spaces Act 1906, inhabitants of the locality are beneficiaries of a statutory trust of a public nature, and it would be very difficult to regard those who use the park or other open space as trespassers (even if that expression is toned down to tolerated trespassers. The position would be the same if there were not statutory trusts in the strict sense, but land had been appropriated for the purpose of public recreation.’

 

13.                Paragraph 9 of Schedule 1 to the Limitation Act 1980 provides that where any land subject to a trust of land is in the possession entitled to a beneficial interest in the land, no right of action to recover the land shall be treated for the purposes of the 1980 Act as accruing during that possession to any person in whom the land is vested as tenant for life, statutory owner or trustee or to any other person entitled to a beneficial interest in the land.

 

14.                Earnshaw and others v Hartley [2000] Ch 155 illustrates how this section operates. The case turned on whether it could be said that an estate, which had vested in the President of the Family Division pending the grant of letters of administration, could be said to be held on a trust for sale. This argument was rejected. Nourse LJ said the broad effect of the section was the reintroduction of the doctrine of non adverse possession amongst beneficial co-owners of land. The case has no bearing, in my judgment, on the present situation.

 

 

The Council’s case

 

15.                Mr George’s submissions can be summarised as follows: first, the Land was open space (within the meaning of the Act) at the time of its acquisition by the Council; second Mr and Mrs Davidson was a ‘member of the public’ and therefore within the category of statutory beneficiaries contemplated by the express trust declared in the 1995 Transfer; third (and most importantly) occupation by Mr Davidson and Mr and Mrs Garwood thereafter could not be adverse.

 

16.                The fact that only the Davidsons and the Garwoods occupied the Land, and that it was and is not otherwise open to or accessible by the public, is irrelevant. Their occupation can only have been qua beneficiaries. As Mr and Mrs Davidson had only been in occupation for some 7 years prior to the 1995 Transfer, title was not barred.

 

17.                It is not Mr George’s case that there is authority, either statutory or otherwise, which precludes adverse possession of open spaces land. Rather his case depends on the assertion that anyone occupying such land must be doing so under the provisions of the Act, and therefore not adversely. There is no definition of the ‘member of the public’ in the Act, and Mr George accepted that if a corporation were occupying the land to the exclusion of all others then time would run against the paper title owner, since a corporation could not be a ‘member of the public’.

 

 

 

Analysis

 

18.                The fallacy in, and the answer to, Mr George’s argument, in my judgment, is this. Neither Mr and Mrs Garwood nor their predecessors in title occupied the Land as members of the public. They did so as owners of 2 Summerfield, Oakham, incorporating the Land into the property. In the nature of a claim made by way of adverse possession, they did so as trespassers, having no more than an inchoate right to bar the right to recover the land once 12 years had expired.

 

19.                It is, in my judgment, almost fanciful to suggest that where part of open space land is fenced off and is inaccessible to anyone other than the occupier, such occupation is not adverse. The Land was not used by Mr and Mrs Garwood or their predecessors as beneficial owners under a statutory trust, but as individuals keeping all others out. Their occupation was not with the consent of the Council, nor is it suggested that it was. If it was not with consent, it can only have been (initially at least, and until such time as title was barred ) as trespassers. The Land, too, ceased being an open space. Accordingly, it seems to me that Mr Jarand is correct when he says that the provisions of paragraph 9 of Schedule 1 to the 1980 Act have no application in this case.

 

20.                The Council’s case can also be tested this way. If they are right, then it would follow that even in cases where individuals had fenced off and exclusively occupied part or all of the open land they could not be treated as trespassers, thereby depriving the Council of their right to take possession.

 

 

Costs

 

21.                As I indicated at the end of the hearing, the usual principle is that the successful party is entitled to its costs. I am limited to the costs incurred since the date of the reference. The Applicants, if they wish to pursue such a claim, are to file and serve a schedule in form N260 or the like by 10 November 2009. The Council may then make such objections or representations as it deems fit by 24 November 2009. I will then consider what order to make.

 

 

BY ORDER OF THE ADJUDICATOR

 

 

ANN McALLISTER

 

Dated this 2^nd day of November 2009