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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> (1) Jan Whitehurst (2) Susan Elizabeth Whitehurst (3) Richard Leslie Whitehurst (4) Victoria Jayne O' Donnell v Malcolm Dickinson (Adverse possession : Common land) [2009] EWLandRA 2008_0315 (27 July 2009)
URL: http://www.bailii.org/ew/cases/EWLandRA/2009/2008_0315.html
Cite as: [2009] EWLandRA 2008_0315, [2009] EWLandRA 2008_315
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REF/2008/0315
THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
(1) JAN WHITEHURST
(2) SUSAN ELIZABETH WHITEHURST
(3) RICHARD LESLIE WHITEHURST
(4) VICTORIA JAYNE O’DONNELL
APPLICANTS
and
MALCOLM DICKINSON
RESPONDENT
Property Address: Land Adjoining 82 Moorside Road,
Drighlington BD11 1HB
Title Number: WYK812790
Before: Stephen Jourdan QC sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Bradford Asylum Immigration Tribunal
On: Tuesday 21 And Wednesday 22 July 2009
Applicant Representation: In person
Respondent Representation: In person
___________________________________________________________________________
DECISION
___________________________________________________________________________
KEYWORDS
Applicants and their predecessors were in possession of the disputed land for 45 years or more without consent – Application to register Applicants as proprietors on the basis of adverse possession - The land in question formed part of a common subject to a 1915 management scheme made under the Commons Act 1899 – Adverse possession of such land is possible, although subject to the rights under the scheme, unless such rights are capable of abandonment and have been abandoned (which it was unnecessary to decide) – Section 194 of the Law of Property Act 1925 did not apply as no evidence that land was subject to rights of common on 1 January 1926 – Written acknowledgment of owner’s title irrelevant, as it was after the expiry of the limitation period - Application succeeded
Cases referred to
Collis v Amphlett (1917) 67 Sol Jo 37, [1918] 1 Ch. 232, [1920] A.C. 271
Countryside Residential (North Thames) Ltd v Tugwell [2000] 2 EGLR 59.
Fairweather v St. Marylebone Property Co Ltd [1963] AC 510
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
Lee v. Barrey [1957] Ch 251
Ocean Estates v Pinder [1969] 2 AC 19
Powell v McFarlane (1977) 38 P & CR 452
Re Nisbet and Potts' Contract [1906] 1 Ch 386
Re Plumstone Mountain, Camrose, Dyfed Reference No: 272/U/105 (unreported decision of the Chief Commons Commissioner, dated 25 April 1986)
Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259
Strachey v Ramage [2008] EWCA Civ 384.
Thompson v Ward [1953] 2 QB 153
Wirral BC v Smith (1983) 43 P & CR 312
This application
1. The Applicants are the registered proprietors of 82 Moorside Road, Drighlington, registered under title number WYK69084. The title plan shows the extent of the property edged red. It consists of a house and garage with a frontage on Moorside Road, close to the corner with Kingsway.
2. I will refer to all the physical features in this case as if looking at 82 Moorside Road from Moorside Road. Looked at from that direction, the house is on the right and the garage on the left. On the title plan, the right hand boundary line is at a right angle to Moorside Road. The left hand boundary on the title plan is not. It is at approximately an 85 degree rather than a 90 degree angle to Moorside Road. It runs along a black line on the ordnance survey map on which the plan is based.
3. The Respondent is the registered proprietor of Adwalton Common, Drighlington, registered under title number WYK713468. The land was first registered on 18 April 2002, with the Respondent registered as proprietor. The title plan shows the land as a large piece of open land, part of which is immediately adjacent to the left hand boundary of 82 Moorside Road. The boundary on the title plan at that point matches that shown on the title plan of title WYK9084.
4. On 12 July 2006, the Applicants applied to the Land Registry to be registered as proprietors of the small triangle of land immediately adjacent to the left hand boundary of 82 Moorside Road, as that boundary is shown on the title plans. The land in question, which I will refer to as “the disputed land”, is shown on the plan at Appendix 1.
5. The application was made on the ground that the Applicants and their predecessors in title had been in adverse possession of that land since 21 September 1964. The title plans referred to above show that triangle of land as forming part of title number WYK713468, of which the Respondent is the registered proprietor.
6. The Respondent was, therefore, notified of the application and objected to it. On 29 February 2008, the Chief Land Registrar referred the matter in dispute to the Adjudicator under section 73(7) of the Land Registration Act 2002.
7. The Respondent has acted throughout as a litigant in person. The Applicants were represented by Grahame Stowe Bateson until 11 August 2008, since when they have acted as litigants in person.
8. On 28 November and 3 December 2008, Nicola Murphy, head of civil litigation at Leeds City Council, sent an e-mail to the Adjudicator’s office. She said that the land in issue formed part of Adwalton Common. The Respondent was the proprietor of this land, but pursuant to the Commons Act 1899, the management of the land is vested in Leeds City Council. On 29 December 2008, Ms. Murphy wrote to the Adjudicator’s office, saying that changes in ownership of common land have no bearing on the right of the general public to make recreational use of that land. Unauthorised fencing off, or enclosure of an area of Common constitutes a breach of both section 194(1) of the Law of Property Act 1925, and the bye-laws made pursuant to the 1915 scheme of management that continue to operate. As the land forms part of the Common, and will continue to do so irrespective of whether the application is successful, both the Council and the land owner have the right to bring legal proceedings for the purpose of bringing the land back into public use through the removal of any unauthorised obstruction restricting public access thereto.
9. On 7 January 2009, the Adjudicator’s office wrote to Leeds City Council, with a copy of directions made by the Adjudicator on that date, which imposed a final deadline for service of the Respondent’s statement of case. The letter said that it was still open to the Council to apply to be joined, and concluded: “The proceedings before the Adjudicator are of a judicial nature. He will therefore not take any account of your submissions unless you are either a party to the proceedings before him or you are called as a witness by another party.” After that, the Council wrote again, on 9 April 2009, saying that it did not wish to be made a party.
The site visit
10. On 22 July 2009, I visited the disputed land. 82 Moorside Road is a house at the left end of a terrace of three houses, numbers 82, 80 and 78. To the immediate left of the house is a driveway surfaced in tarmac. To the left of that there is a driveway surfaced in concrete, running up to a small garage. Behind the garage is a small garden. To the left of the concrete driveway is a privet hedge, which has clearly been growing for a long time. To the left of that hedge is a fence, running along the left edge of the hedge. To the left of that fence is open ground, which was heavily overgrown. The fence, hedge, concrete driveway and garage all appear to belong to 82 Moorside Road, while the land to the left of the fence has the appearance of abandoned land. The position as I saw it is the same as that shown in photographs taken by a Land Registry surveyor on a site visit in December 2006, a copy of which was included in the Applicants’ bundle.
11. The exact extent of the disputed land is difficult to ascertain on the ground. However, the base of the triangle of the disputed land probably starts with the fence, and extends to the right to about a third of the way along the concrete driveway. The disputed land thus comprises all the fence, most of the hedge, and a small part of the concrete driveway.
The hearing
12. At the hearing on 21 July 2009 I heard oral evidence from the First and Second Applicants and the Respondent. All three witnesses were clearly seeking to tell the truth, and to assist me to arrive at the correct conclusion. I read a number of statutory declarations and letters, and other documents, which I will refer to below.
The facts
13. I find the following facts.
The early history of Adwalton Common
14. Adwalton Common, also known as Adwalton Moor, was the site of the battle of Adwalton Moor, during the English Civil War, on 30 June 1643. The Common is registered as a historic battlefield site. This may be a relevant consideration for the local planning authority when considering planning applications, but it does not give it any special protection in respect of adverse possession claims.
The Respondent’s acquisition of the Common
15. In the 19th century, the Common was vested in the Respondent’s ancestors as Lord of the Manor of Drighlington. He inherited the Common, and that led to him being registered as proprietor of it on 18 April 2002. Since then, he has complained to Leeds City Council about a large number of encroachments on the Common, but they have done nothing about them.
The Scheme
16. On 14 April 1915, the Adwalton Common Scheme was made under the Commons Act 1899. It provided for the management of the Common by the Urban District Council. I set out the most relevant provisions in an Appendix to this decision. The management of the Scheme is now vested in Leeds City Council.
17. The plan referred to in the Scheme shows the land coloured green extending right up to the left wall of 82 Moorside Road. The plan does not show any hedge or fence to the left of the three houses at 78-82 Moorside Road. Thus the green colouring extends not only over the disputed land, but also over the land where the concrete driveway, the tarmac driveway, the garden and the garage now stand.
18. The Respondent produced a certificate of an official search under the Commons Registration Act 1965 dated 8 July 2002 but no copy of the plan referred to in that search. The search said that, in relation to the register of common land, “the land edged green on the plan herewith” was finally registered under unit no. CL67; that none of that land was subject to rights of common; that the land was the subject of final ownership registration; that none of the land was stated to be registered under the Land Registration Acts 1925 to 1971, that none of the land was exempt from registration under section 4 of the 1965 Act, and that there were no entries in the register of town or village greens.
The 1964 conveyance
19. By a conveyance dated 21 September 1964, 82 Moorside Road was conveyed by William Hepworth as vendor to Lilian Davey as purchaser, for a price of £750. The property conveyed was described as:
“All that piece of land situate in Moorside Road Drighlington in the County of York together with the messuage or dwellinghouse erected thereon or on some part thereof and known as 82 Moorside Road aforesaid All which said property is by way of identification only more particularly delineated on the plan hereto annexed and thereon in part coloured brown and the whole surrounded by a red line”.
20. The conveyance granted the purchaser a right of way on foot over the land coloured brown on the plan, reserving to the vendor, or other the owners or occupiers for the time being of 87, 80, 84, 86, 88 and90 Moorside Road a right of way on foot only over and along so much of the brown coloured land on the plan as was included in the property conveyed.
21. The copy of the attached plan produced in evidence was not coloured. However, there is a black line surrounding 82 Moorside on the plan, which is in the shape of a rectangle, with both the left and right boundaries running at 90 degrees to Moorside Road. It is reasonably clear that this is the red line referred to in the conveyance. The conveyance plan has no scale, and when it was drawn, the garage which I saw at the property had not yet been built. It is not possible, therefore, to tell, purely from the plan, whether the boundary line on the plan included or excluded the disputed land. It was, however, clearly at 90 degrees to Moorside Road.
The evidence about the boundary features
22. There was an issue about whether there had always been a fence and hedge in the position of the existing fence and hedge, as the Applicants maintained, or whether there was, until 2002, a fence and/or hedge at an angle to Moorside Road, in the position shown on the title plans, as the Respondent submitted.
23. The Respondent relied on:
(a) A statutory declaration by Arthur Thornton dated 15 January 2007. Mr Thornton said that the disputed land: “was not within the boundary of this property prior to 2002. I have lived in Drighlington for 40 years and have a good knowledge of the locality in my position as Drighlington Conservation Group Chair”.
(b) The fact that the ordnance survey map on which the title plans were based showed a black line at an angle of approximately 85 degrees to Moorside Road.
24. Against that must be set the following evidence.
25. First, the 1964 conveyance plan, which shows the boundary of 82 Moorside Road as being at a 90 degree angle to Moorside Road.
26. Second, the oral evidence of the Second Applicant. The Second Applicant said she had lived in Drighlington all her life. As a child, she was friendly with Mary Hepworth, who lived at 80 Moorside Road, next doors to 82 Moorside Road, and used to play there. She also played with John Davey, who lived at 82 Moorside Road, and his sister, Brenda. Her earliest recollections go back to about 1968, when she was 11. The garage now at 82 Moorside Road was not there at that time, but she thought there was an old shed. As far back as she can remember there was a hedge growing where the hedge now is, although it was less thick – she can remember hiding between the garage and the hedge. To the left of the hedge there was an old lattice fence, in the same place as the current fence, but lower.
27. She was told by the Hepworth family that the land to the left of the fence, and the land behind the houses, belonged to Carol Hepworth, who was Mary Hepworth’s sister; that it had been left to Carol Hepworth by Carol Hepworth’s grandfather. The grass on the land to the left of the fence was, from time to time, cut by people paid by Carol Hepworth. She did not think that land formed part of the Moor. What she thought of as the Moor was a large area of open land further along Moorside Road, which tapered to a point and then came to an end. She had no idea, until this dispute, that the land to the left of the fence was part of the Moor. When they purchased 82 Moorside Road, their solicitor did not tell them that part of the property was a registered common. The hedge had always been trimmed by the owners of 82 Moorside Road, not Carol Hepworth. The hedge had always been on the 82 Moorside Road of the fence.
28. She was shown the statutory declaration by Arthur Thornton. She disagreed with that declaration. The location of the fence and hedge had not changed since she first remembered the property in the 1960s. They had always been at a 90 degree angle to Moorside Road.
29. Third, the oral evidence of the First Applicant, although he did not claim the same detailed knowledge as his wife, and he had only known the property since 1975. He said that he had not been aware of any change in the position and direction of the boundary in the time he had known the property.
30. Fourth, the following written evidence:
(a) A statutory declaration made by John Davey dated 3 January 2006. In it, he said that his mother, Lilian Davey, purchased 82 Moorside Road on 21 September 1964, and occupied that property with his late father continuously from 1964 until her death in 2000. John Davey said that he also lived at the property from 1958 to 1979. He said that there was a privet hedge which forms the left boundary to the property, which had been in the same position for the last 40 years and had always been at a 90 degree angle to the road. He said that the property should consist of a greater area than shown on the filed plan, and he indicated on a plan the extent of the small triangle of land that he said his mother enjoyed as part of the property, which is the disputed land in this case. He said that his mother never made any payment for the use of the land or receive any objection from any other person about her use and occupation.
(b) A declaration made by Rebecca Helen Strutt dated 20 October 2004. She said she was the freehold co-owner of 82 Moorside Road. She did not identify her co-owner. She said their title was registered on 8 May 2002, completion having taken place on 28 March 2002. It was apparent when they purchased the property that it consisted of a greater area than shown on the filed plan. She produced a plan showing the disputed land, and said that they had enjoyed this as part of the property. She said: “When we moved into the property, the Eastern boundary comprised of a well established hedge. We have since added a fence to the outside of the hedge. The property on this side bounds onto open common land”.
(c) A letter from Mr P Marlow of 78 Moorside Road, which is the house two doors along from no. 82 on the right. He said he had lived at no. 78 since 1968, and: “the privet hedge which forms the left hand side boundary to 82 Moorside Road has in all the time I have lived here, been at a 90 degree angle to the pavement and road”.
(d) A letter from Leslie Glennon, saying that he had lived in Drighlington since 1934, and was the local postman there from 1959-1971. He said that, back in 1959, when delivering mail there, the side boundary to 82 Moorside Road ran parallel to the house. At that time it was bounded by a privet hedge and subsequently a fence was built. On visiting the property now he could confirm that the boundary had not changed.
31. In my judgment, the correct conclusion on the evidence is that, at least as far back as 1959, there has been a hedge in the position of the existing hedge, and that at some point, in the mid to late 1960s or earlier, the Davey family put a lattice fence up to the left of the hedge. It is clear from the evidence of the Second Applicant that there was a fence there by the late 1960s, and it is probable that it was erected by the Daveys. The hedge was always maintained by the owners of 82 Moorside Road and treated as forming part of that property, unlike the land to the left of the hedge, which was cut from time to time by people working for Carol Hepworth. In 2002, Ms. Strutt and her co-owner replaced the lattice fence with the taller fence which stands there today. Mr Thornton’s statutory declaration is, therefore, incorrect. There is no explanation for how the ordnance survey map came to show the line at an 85 degree angle to 82 Moorside Road, but in my view, the proper conclusion is that the map did not show the position accurately, at least in respect of the position from 1959 onwards.
The garage
32. The garage at the property was put up in about 1973. The Applicants produced a copy of an order with Garages By Grimston placed by M Davey of 82 Moorside Road, for the erection of a garage on 12 May 1973. The garage shown on the order form was to be 16 feet long by 8.5 feet wide. It is likely that the concrete drive was laid at about the same time.
The registration of 82 Moorside Road
33. Following the death of Lilian Davey, on 5 April 2001, her personal representatives executed an assent of 82 Moorside Road to her children, John Davey and Brenda McIntosh (née Davey). The assent described the property as being more particularly described in the 1964 conveyance. An application was made to the Land Registry to register them as proprietors. On 11 May 2001, they were registered as proprietors under title number WYK693084. The title plan, unlike the plan to the 1964 conveyance, showed the left boundary at an angle to Moorside Road.
The transfer of 82 Moorside Road to the Strutts
34. On 28 March 2002, John Davey and Brenda McIntosh executed a transfer of 82 Moorside Road to Paul Anthony Strutt and Rebecca Helen Swain. They were then registered as proprietors.
The transfer of 82 Moorside Road to the Applicants
35. In October 2004, when the Applicants were going to sign the papers relating to the acquisition of 82 Moorside Road, they noticed that the plan did not show the garden at the same 90 degree angle that they had always observed. Their solicitor then asked for and obtained the statutory declaration from Rebecca Strutt, dated 20 October 2004, referred to above.
36. On 21 October 2004, Christopher J Greaves, solicitor, wrote to the Land Registry on behalf of his clients, Paul Anthony Strutt, and Rebecca Helen Strutt (previously Swain). He said problems had arisen as a result of the filed plan not reflecting the area of land occupied by his clients: “The area of land actually occupied on the ground accords with the plan attached to the Conveyance dated 21 September 1964, which appears to have been the root of title which will have induced the registration. We should be pleased if you would examine your file to see why the full extent of the property was not reflected on the filed plan.”
37. On 28 October 2004, the Land Registry replied. They said:
“The plan to the Conveyance dated 21 September 1964 was for identification purposes only, not to a recognised scale, and also hand drawn. The mapping was therefore completed to the fenced extent as shown on the Ordnance Survey map detail. Please also note these boundaries are currently shown by the Ordnance Survey and have been in this position since 1970”.
38. The Second Applicant said that they were told by the sellers, Mr and Mrs Strutt, that if they did not complete then the sale would go off, as the Strutts would lose the property they were hoping to buy. It was a matter of great urgency for the Applicants to complete, as the Third and Fourth Applicants (who are the son and daughter-in-law of the First and Second Applicants) were about to be made homeless. They were told by their solicitor that they could apply for title by adverse possession to the land which physically formed part of 82 Moorside Road but which was not included in the title plan.
39. On 29 October 2004, Mr and Mrs Strutt executed a transfer of 82 Moorside Road to the Applicants.
The request to purchase the disputed land
40. In November 2004, the Applicants made enquiries as to who owned the land to the right and rear of 82 Moorside Road, as it had been overgrown for a number of years, and had mice, stray cats and weeds. They believed that it belonged to Susan Hepworth, as that is what the Second Applicant had always been told. They telephoned the Council, who said it was nothing to do with them, and suggested that they telephone the Land Registry, who told them it was owned by the Respondent.
41. On 29 November 2004, the First Applicant wrote to the Respondent, asking if the Respondent would be interested in selling the land to the right of 92 Moorside Road and the rear of 82 Moorside Road. When she wrote that letter, the Second Applicant did not think the land was part of the Common as it had never been maintained by the Council.
The issues
42. The issues I have to decide are as follows:
(a) Were the Applicants and their predecessors in possession of the disputed land for more than 12 years?
(b) What is the effect of the letters from the Applicants offering to buy the disputed land?
(c) Does section 194 of the Law of Property Act 1925 apply and, if so, with what effect?
(d) What is the effect of the 1915 Scheme of Management on the application?
(e) In the light of my decision on the above issues, what order should be made?
Were the Applicants and their predecessors in possession of the disputed land for more than 12 years?
The law
43. Section 15(1) of the Limitation Act 1980, re-enacting earlier provisions, states: “No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
44. Section 17 provides: “Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”
45. Schedule 1 includes a number of provisions as to when a right of action to recover land is to be treated as accruing. Paragraph 8(1) then provides: “No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession”)”. Time will generally run in favour of a person in possession of land without the consent of the owner; the possession of such a person is therefore normally “adverse” possession.
46. In relation to an estate in land, the title to which is registered, no period of limitation under section 15 of the Limitation Act 1980 shall run against any person, on or after 13 October 2003, when the Land Registration Act 2002 came into force: see section 96(1). It follows that, if title to the disputed land had not been acquired by adverse possession by 13 October 2003, the application must fail.
47. However, if a person was in adverse possession of land, the title to which was registered, for more than 12 years prior to that date, then under section 75(1) of the Land Registration Act 1925, the land was deemed to be held by the proprietor for the time being in trust for the possessor. Under Schedule 12 paragraph 18 of the Land Registration Act 2002, where a registered estate in land was held in trust for a person by virtue of section 75(1) of the Land Registration Act 1925 immediately before the coming into force of the 2002 Act, he is entitled to be registered as the proprietor of the estate. Thus if a person was in adverse possession of registered land for 12 or more years prior to 13 October 2003, they are entitled to be registered as proprietor of the land.
48. There are two elements necessary for legal possession by a squatter i.e. someone in possession without the consent of the true owner, namely factual possession, and the intention to possess: see JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, approving the decision of Slade J in Powell v McFarlane (1977) 38 P & CR 452.
49. Factual possession requires a sufficient degree of physical custody and control. It must be a single and exclusive possession, so that if a squatter shares control of the disputed land with others, he will not be in possession. What acts are sufficient to constitute factual possession depends on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Broadly, what must be shown is that the squatter dealt with the land as an occupying owner might have been expected to deal with it and that no-one else did so: Powell at 477-8, Pye at para 41.
50. The intention to possess is the intention to exercise such physical custody and control on one's own behalf and for one's own benefit; it has been defined as the “intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow,” Pye para 43. The intention to possess must be made manifest by the possessor’s actions. If it is unclear whether the squatter has demonstrated the intention to possess, rather than merely intending to make use of the disputed land without exercising exclusive control, his claim will fail. If his acts are open to more than one interpretation and he has not made it perfectly clear to the world at large by his actions or words that he has intended to exercise exclusive control as best he can, he will be treated as not having had the requisite intention. Clear and affirmative evidence is required to prove that the squatter, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world: Powell at 472 and 476. One of the classic ways of manifesting the intention to exercise exclusive control is erecting a fence where there was not one previously, so as to enclose previously unenclosed land, with the obvious intention of controlling access to the land: Powell at 478.
The position here
51. The location of the boundary features has not changed since before 1959. Although the plan to the 1964 conveyance, taken by itself, is not clear, when interpreted in the light of the evidence about the boundary features, it is clear that it purported to convey the whole of the disputed land at least up to, and perhaps including, the hedge. Where a person executes a conveyance of land, there is a presumption that the person executing the conveyance had title to the land conveyed: Ocean Estates v Pinder [1969] 2 AC 19, at 25.
52. At some point thereafter, but before the late 1960s, Lilian Davey, or someone on her behalf, put up a lattice fence on the left side of the hedge. That was a clear act manifesting the intention to possess. It made it clear that Lilian Davey was asserting control of all the land between the fence and the left wall of 82 Moorside Road. The Daveys maintained the hedge, while the land to the left of the fence was maintained, insofar as it was maintained at all, by Carol Hepworth. In 1973, the Daveys built the garage, and laid the concrete driveway leading to it.
53. In my view, it is clear that Lilian Davey acquired possession of the disputed land no later than 1968, and retained possession thereafter. There is no suggestion that she held possession with the consent of any third party. Were it not for the issues which I consider below, it would be clear, on the evidence, that any paper title which any third party may have held to the disputed land was extinguished by adverse possession by 1980.
54. On Lilian Davey’s death, her title, including that to the disputed land, vested in her children, John Davey and Brenda McIntosh, and they were registered as proprietors. Were it not for the issues which I consider below, it would be clear, on the evidence, that the title plan is in error, and should be altered under Schedule 4 to the Land Registration Act 2002 to show the extent of the property included in the title to 82 Moorside Road as including the disputed land: see Lee v. Barrey [1957] Ch 251 and Strachey v Ramage [2008] EWCA Civ 384. However, as I explain below, the effect of the Scheme needs to be considered and may require a different result.
What is the effect of the letters from the Applicants offering to buy the disputed land?
55. As explained above, if title to the disputed land had not been acquired by adverse possession by 13 October 2003, the application must fail. Accordingly, the letter written in 2004, offering to buy the disputed land, is of no importance. If the limitation period had expired by 13 October 2003, any subsequent written acknowledgment would be of no effect: section 29(7) of the Limitation Act 1980. If it had not, the application would fail in any event.
If the disputed land is part of the Common, does section 194 of the Law of Property Act 1925 apply and, if so, with what effect?
56. The Respondent submitted that section 194(1) of the Law of Property Act 1925 applied. That sub-section provided that: “The erection of any building or fence, or the construction of any other work, whereby access to land to which this section applies is prevented or impeded, shall not be lawful unless the consent of the Minister thereto is obtained…”.
57. That section was repealed on 1 October 2007 by the Commons Act 2006, section 53 and Schedule 6 part 2. However, that did not affect the operation of section 194 up to that date: see section 16(1)(b) of the Interpretation Act 1978.
58. S.194(3) of the Law of Property Act 1925 provides that section 194 applies to any land which at the commencement of the 1925 Act (on 1 January 1926) is subject to rights of common. There is no evidence that the disputed land was subject to any rights of common on that date. The Commons Registration Act 1965 certificate produced by the Respondent says that none of the land was finally registered as subject to rights of commons. The Respondent said he believed there were no rights of common over the disputed land. Accordingly, there is nothing to suggest that section 194 ever applied to the disputed land.
59. The Respondent also referred to the Commons Act 2006. Section 38 of that Act does impose restriction on works that can be carried out on any land registered as common land. However, section 38 came into force on 1 October 2007 and is not retrospective. It has no bearing on the issues in this case.
What is the effect of the 1915 Scheme of Management on the application?
The Commons Act 1899
60. S.1 of the Commons Act 1899 (prior to its amendment by the Commons Act 2006) said:
“(1) The council of a district may make a scheme for the regulation and management of any common within their district with a view to the expenditure of money on the drainage, levelling, and improvement of the common, and to the making of byelaws and regulations for the prevention of nuisances and the preservation of order on the common in the public interest.
(2) The scheme may contain any of the statutory provisions for the benefit of the neighbourhood mentioned in section seven of the Commons Act 1876.
(3) The scheme shall be in the prescribed form, and shall identify by reference to a plan the common to be thereby regulated, and for this purpose an ordnance survey map shall, if possible, be used.
(4) Regulations under subsection (3) may
(a) prescribe alternative forms;
(b) permit exceptions or modifications to be made to any prescribed form.
61. S.2 provided for the procedure for making a scheme. S.3 provided:
“The management of any common regulated by a scheme made by a district council under this Part of this Act shall be vested in the district council.”
62. S.6 provided for compensation for any estate, interest, or right of a profitable or beneficial nature in, over, or affecting any common which was taken away or injuriously affected by any scheme
63. S.7 provided that a council might acquire the fee simple or any estate in or any rights in or over any common regulated by a scheme by gift or by purchase by agreement, and hold the same for the purposes of the scheme.
64. S.15 provided that the expression “common” shall include any land subject to be inclosed under the Inclosure Acts 1845 to 1882, and any town or village green.
The effect of the Scheme on an adverse possession claim
65. There is no authority, so far as I am aware, as to the effect of a scheme made under the 1899 Act on an adverse possession claim. The issue is one of some difficulty. The Respondent’s argument is that, by virtue of the Scheme, only the Council can bring an action in respect of trespasses on the Common. He, as owner, cannot do so. Accordingly, it would be unfair and wrong for time to run against him, under the Limitation Acts. If the Council neglect their duty under the Scheme to protect the Common from encroachments, trespassers should not be rewarded by acquiring title to the Common; there is a strong public interest in keeping the Common free from encroachments. There have been a number of encroachments on the Common, which he has complained to the Council about, but they have done nothing. Although he had sympathy with the Applicants, he felt that a line must be drawn, and the law observed, in order to protect the public interest in maintaining the Common as open land, available for public use.
66. The effect of a scheme made under the 1899 Act on an adverse possession claim is not discussed in Gadsden: The Law of Commons (1988), nor in Halsbury’s Laws (4th ed), nor in Ubhi and Denyer Green: Law of Commons and of Town and Village Greens (2nd ed).
67. A recent publication by the Department for Environment, Food and Rural Affairs (“DEFRA”) entitled: Guidance note on adverse possession of common land and town or village greens (May 2009) does discuss the issue. It says:
“21. Some registered common land, particularly common land which is primarily important for public recreation, is subject to a scheme of regulation made by the local authority under Part I of the Commons Act 1899. The effect of a scheme is that the local authority becomes responsible for managing the land. It is usual for such schemes to contain a clause which requires the managing local authority to keep the common free of encroachment. Again, while this means that any encroachment on the common should be resisted by the local authority, it is possible that no action may be taken, and the squatter may be able to show the necessary factual possession.”
68. In the absence of any special statutory provisions, common land (i.e. land subject to rights of common, or land forming part of the waste of a manor) can be the subject of adverse possession, like any other land.
69. Where there is a statutory provision, such as s.194 of the Law of Property Act 1925, which prohibits enclosure of a common without a specified consent, it is possible that time will not run against the owner if the land is enclosed, although the position is not clear.
70. In Collis v Amphlett (1917) 67 Sol Jo 37, Younger J held that the defendant, who had enclosed part of a common, could not claim the benefit of the Real Property Limitation Act 1833 and the Real Property Limitation Act 1874, because his possession was contrary to the Commons Act 1876, section 36, which provides: “Where an Act of Parliament has been passed confirming a provisional order under this Act for the regulation of a common, then, subject to and without prejudice to the provisions of that order, such common shall not, nor shall any part thereof, be inclosed without the sanction of Parliament subsequently obtained.” The grounds of his decision are not reported in the very brief note of the case in the Solicitor's Journal, which simply says: “Having regard to the Commons Act, 1876, s.36, the Statute of Limitations is not applicable.
71. The issue of whether section 36 prevented adverse possession was not argued when the case was appealed to the Court of Appeal (where it was expressly conceded by the appellant, acting in person: see [1918] 1 Ch. 232 at 237) and the House of Lords ([1920] A.C. 271). The decision itself is of limited application because, according to paragraph 23 of the DEFRA publication, there are only about 30 commons which are subject to orders made under the 1876 Act.
72. A different approach was taken in relation to s.194 of the Law of Property Act 1925 in an application under the Commons Registration Act 1965, Re Plumstone Mountain, Camrose, Dyfed Reference No: 272/U/105, an unreported decision of Peter Langdon-Davies, the Chief Commons Commissioner, dated 25 April 1986. He held that s.194 did not prevent an adverse possession claim. Mr Langdon-Davies said:
“Now all this fencing in of common land, done as it was without the consent of the Secretary of State, was in flagrant breach of section 194 of the Law of Property Act 1925. Mr Chapman rightly concedes that this land … was subject to rights of common on 1 January 1926 and so, by virtue of section 194(3) of the 1925 Act was not only common land for the purposes of the Commons Registration Act 1925 but was land to which section 194 applies.
He however submits that the fact that these enclosures were unlawful under section 194 has no effect on the operation of sections 15 and 17 of the Limitation Act 1980. He does not claim that the fencing in of this land extinguishes the rights of common which have been registered over it or prevents it from being common land. He merely claims that enclosure of the land for more than 12 years extinguishes the title of the true owner and confers on the person in possession at the expiration of the period a possessory title capable of registration in the register of common land. The object of section 194; he says, is not to protect the title of owners against squatters but to prevent interference with access to common land. In this I think he is right. These fences, erected in obstruction of rights of common and contrary to section 194, may remain vulnerable at common law to anyone whose rights they obstruct and under section 194(2) to an application by the council of any county or district concerned or by the lord of the manor or by any other person interested in the common, but, by standing there for 12 years, they have extinguished the title of the true owner of the land they enclose.”
73. In my view, the operation of part I of the Commons Act 1899 is quite different to section 36 of the Commons Act 1876 or section 194 of the Law of Property Act 1925. Unlike those sections, the 1899 Act does not provide that a common subject to a scheme under the Act is not to be enclosed; it simply provides that such a common is subject to the management of the council under the scheme. Under the Scheme, the Council is given the power and duty to maintain the common free from all encroachments, and not to permit any trespass on or partial or other enclosure of any part thereof. There is no statutory prohibition on enclosure of the kind found in the 1876 and 1925 Acts. Accordingly, it is unnecessary for me to decide whether Collis v Amphlett and Re Plumstone Mountain, Camrose can be reconciled and, if not, which is to be preferred, and to what extent I would be bound to follow the decision in the former case, as a decision of the High Court.
74. As it seems to me, the crucial question is whether, after the Scheme was made, a right of action to recover land subject to the Scheme could accrue to the freehold owner of Adwalton Common, if a person took possession of the land without the consent of the owner. If not, then time could not run against the owner under section 15 of the Limitation Act 1980 and its predecessors (section 2 of the Limitation Act 1833, section 1 of the Real Property Limitation Act 1874, and section 4 of the Limitation Act 1939).
75. The Scheme could be read as vesting exclusive possession of the Common in the Council for so long as the Scheme is in existence. Paragraph 4 of the Scheme provides that the Council shall maintain the common free from all encroachments, and shall not permit any trespass on or partial or other enclosure of any part thereof. An action in trespass, or to recover land by an order for the possession of land, can only be brought by a person in possession, or entitled to the immediate possession of the land in question: Halsbury's Laws of England (4th ed) volume 45(2) (re-issue) title “Tort,” para 517, Thompson v Ward [1953] 2 QB 153 at 158-9, Wirral BC v Smith (1983) 43 P & CR 312, Countryside Residential (North Thames) Ltd v Tugwell [2000] 2 EGLR 59.
76. If the Scheme does vest exclusive possession of the Common in the Council, then I think that Schedule 1 paragraph 4 of the Limitation Act 1980 would apply. This provides (re-enacting section 3 of the Real Property Limitation Act 1833 and section 6 of the Limitation Act 1939):
“The right of action to recover any land shall, in a case where -
(a) the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest; and
(b) no person has taken possession of the land by virtue of the estate or interest claimed;
be treated as having accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest.”
77. That provision applies to the interest of a landlord under a lease, so that, if a squatter takes possession of land held under a lease, time does not run against a landlord until the lease comes to an end: Fairweather v St.. Marylebone Property Co Ltd [1963] AC 510 at 536.
78. If the Council is given exclusive possession of the Common by the Scheme, then the freehold title of the owner of the Common, subject to the scheme, is an estate “in reversion” on the right of possession given to the Council by the Scheme. The Scheme was brought into existence through the exercise of statutory powers, and could be brought to an end in the same way. If that happened, the owner of the Common would then be entitled to possession of the Common. The concept of an estate in reversion on a statutory right of possession vested in a council under a scheme made pursuant to statutory powers is an unusual one. Nonetheless, if the Scheme vests possession of the Common in the Council, it would be appropriate to describe the rights of an owner of the Common, subject to the Scheme, as being in reversion on the rights of the council under the Scheme.
79. However, in my view the Scheme does not give exclusive possession of the Common to the Council. Rather, it gives the Council certain specific powers of management in respect of the Common. The Scheme, read as a whole, is concerned with securing to the public the right to use and enjoy the Common, and the powers given to the Council are with a view to securing that use and enjoyment. Paragraph 11 of the Scheme provides that the Scheme does not prejudice or affect any right of the owner “in connection with game, or with mines, minerals, or other substrata or otherwise.” The title of the freehold owner of the Common is subject to the rights under the Scheme, but is otherwise unaffected. Thus I consider that, if the Council erected upon the Common a building, without the consent of the owner, in breach of paragraph 3 of the Scheme, the owner could bring an action in trespass against the Council.
80. Accordingly, I agree with the view expressed by DEFRA, that adverse possession of land subject to the Scheme is possible. A person in adverse possession of such land will acquire title to it subject to the rights of the Council under the Scheme, unless those rights are capable of being abandoned, and have been abandoned. A person who acquires title to land by adverse possession generally takes the land subject to any third party rights over the land: Re Nisbet and Potts' Contract [1906] 1 Ch 386.
81. It is not necessary for me to decide whether it could ever be possible for the rights of the Council under the Scheme to be extinguished by abandonment. Non-statutory rights to make use of land, which fall short of possession, such as easements and profits à prendre, are not affected by adverse possession, but can be lost through abandonment, although it is difficult to prove abandonment: see e.g. Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259.
82. I do not need to decide whether abandonment of the Council’s rights, and those of the inhabitants of the district and neighbourhood, under the Scheme is possible as a matter of law. Nor do I need to decide whether, if abandonment is possible as a matter of law, they have in fact been abandoned in respect of the disputed land. That is an issue which will only need to be considered if the Council ever seek to assert their rights under the Scheme against the Applicants. That is something which, so far, the Council have not sought to do. No doubt, before doing so, the Council would carefully consider the question of whether it was right to attempt to disturb the possession of the Applicants, who bought the property in good faith, wholly unaware of the fact that part of it had been included in the Scheme.
In the light of my decision on the above issues, what order should be made?
83. In the light of my decision above, I will direct the Chief Land Registrar to give effect to the original application in whole as if the objection to that original application had not been made.
Costs
84. If any party wishes to apply for an order for costs, they must make an application in writing, accompanied by a schedule of costs, and copies of any invoices for any costs incurred, no later than 31 August 2009. If such an application is made:
(a) A copy of the application must be sent, at the same time that it is made, to the other party.
(b) The other party will then have 28 days to respond to the application by way of written submissions sent to the Adjudicator’s office, copying any submissions to the applying party at the same time.
(c) Any response to such submissions should be sent to the office and the other party within 14 days of receipt of the submissions.
Dated this 27 day of July 2009
By Order of The Adjudicator to HM Land Registry
APPENDIX 1 – plan showing the disputed land
APPENDIX 2 – extracts from the Scheme
On 14 April 1915, the Adwalton Common Scheme was made under the Commons Act 1899. It provided for the management of the Common by the Urban District Council of Drighlington. I set out the most relevant provisions below:
Description of Common and Management by District Council
1. The piece of land with the ponds, streams, paths, and roads thereon, commonly known as Adwalton Common, situate in the parish of Drighlington in the County of York and hereinafter referred to as “the common,” as the same is delineated in a plan deposited at the office of the Urban District Council of Drighlington, hereinafter called “The Council,” and thereon coloured green, being a “Common” within the meaning of the Commons Act 1899, shall henceforth be regulated by this scheme, and the management thereof shall be vested in the Council.
Protection and Improvement of common
3. The Council may execute any works of drainage, raising, levelling or other works for the protection and improvement of the common, and shall preserve the turf, shrubs, trees, plants and grass thereon, and for this purpose may, for short periods, enclose by fences such portions as may require rest to revive the same, and may plant trees and shrubs for shelter or ornament, and may place seats upon and light the Common, and otherwise improve the Common as a place for exercise and recreation; but the Council shall do nothing that may otherwise vary or alter the natural features or aspect of the Common or interfere with free access to every part thereof, and shall not erect upon the Common any shelter, pavilion or other building without the consent of the person or persons entitled to the soil of the Common.
Against Encroachment.
4. The Council shall maintain the common free from all encroachments, and shall not permit any trespass on or partial or other enclosure of any part thereof.
Public Right of Access and Recreation
5. The inhabitants of the district and neighbourhood shall have a right of free access to every part of the Common and a privilege of playing games and of enjoying other species of recreation thereon, subject to any byelaws made by the Council under this Scheme.
Saving of Rights, etc. in the soil and Highways
11. Nothing in this Scheme or any byelaw made thereunder shall prejudice or affect any right of the person entitled as lord of the manor or otherwise to the soil of the common, or of any person claiming under him, which is lawfully exercisable in, over, under or on the soil or surface of the common in connection with game, or with mines, minerals, or other substrata or otherwise, or prejudice or affect any right of the commoners in or over the common, or the lawful use of any highway or thoroughfare on the common, or affect any power of obligation to repair any such highway or thoroughfare.”