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England and Wales Land Registry Adjudicator

You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Calon Yn Tyfu Cyfyngedig v Robert Martyn John Hutton (Adverse possession) [2012] EWLandRA 2011_0722 (16 March 2012)
URL: http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0722.html
Cite as: [2012] EWLandRA 2011_0722, [2012] EWLandRA 2011_722
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REF/2011/0722/0723/0724

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

CALON YN TYFU CYFYNGEDIG

APPLICANT

and

 

ROBERT MARTYN JOHN HUTTON

RESPONDENT

 

Property Address: Land lying to the west of Cwmblaenbwlan, Newchapel, Boncat

 

Title Number: CYM428209, CYM428355, CWM430823

 

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

 

Sitting at: Haverfordwest County Court, Penffynon, SA61 2AX

 

On: 18 th, 19 th and 20 th January 2012

 

___________________________________________________________________________­

 

D E C I S I O N

___________________________________________________________________________

 

ISSUES – claimed adverse possession of unregistered land – claimed adverse possession under Schedule 6 of the Land Registration Act 2002 – effect of NAP Form – whether paragraph 5 conditions engaged – boundary agreement – estoppel

 

CITATIONS

J.A.Pye (Oxford) Ltd v Graham [2002] UKHL 30

Joyce v Rigoli [2004] EWCA Civ 79

Hopkins v Beacon & Beacon [2011] EWHC 2899 (Ch)

 

 

THE LAND IN DISPUTE – THE THREE APPLICATIONS

1.       Two adjoining parcels of land are the subject-matter of these three linked references. The first parcel is currently unregistered, and forms a long sliver of land forming part of the southern bank of the River Dulas, upstream of the buildings known as Cwm Blaen Bwlan Mill, Capel Newydd, Boncath. The Respondent purchased the Mill and its outbuildings, together with approximately 34 acres of additional land, by a Conveyance dated 25 th April 1997 from Mr and Mrs Julian Orbach, and the entire site is registered under two Land Registry titles. These are WA698957, which includes the dwellinghouse in the former Mill, and WA657298, which comprises the surrounding land. Cwm Blaen Bwlan Mill has not been operated as a water mill for many years, but the Respondent contends that this parcel is part of the mill leat which once channeled water into the mill machinery. The parcel forms a narrow spur jutting out from the north-western corner of the Respondent’s registered titles: I shall call this parcel “the Northern Parcel” for convenience. It consists of a fairly steep bank running down towards the river, which is heavily overgrown at this point with trees and bushes. It includes an area which is at the same level as the river, which no doubt floods when the river is in spate. Indeed, the parcel includes part of the stream bed, probably as far as the mid-point under the ad medium filum principle. However, the precise boundary of the proposed registered title is not known – this is a general boundary. At the site view, the Respondent pointed out some partially buried stonework within the parcel which he said was the western end of the mill leat. The opposite, northern bank of the Dulas is much steeper and higher than the southern bank.

 

2.       The Respondent Mr Hutton applied on 2 nd December 2008 to register the Northern Parcel on the basis of his and his predecessors’ adverse possession, dating back to 1964 at the latest. The application has been allocated the temporary title number CYM428355. By an application dated 22 nd December 2008 the Applicant has also applied to be registered as proprietor of the Northern Parcel. This too is on the basis of adverse possession. The Applicant’s application has been allocated provisional title number CYM430823. In fact, the area comprised in the Applicant’s application is not identical, since it excludes a small area to the extreme north-east, but the difference is not material and for the purposes of this Decision I shall treat the areas as identical, save where expressly stated.

 

3.       The second disputed parcel lies immediately to the south of the Northern Parcel, forming a wedge or triangular shape. I shall call this disputed land “the Southern Parcel”. The thin end of the wedge is the western point, where it meets the south bank of the Dulas and converges with the western end of the Northern Parcel. The southern boundary of the wedge is a straight line running eastwards from that point until it meets, more or less, the southern side of a field entrance leading into the Respondent’s title. The eastern side of the wedge or triangle is formed by taking a line northwards from this point until it meets the southern boundary of the northern parcel. There are signs of a dilapidated and largely buried wire fence running north from the field entrance to the river. Until recently this area was covered in trees. However, within the last two years the Applicant has clear felled this area, which is essentially now open and fallow.

 

4.       This area is comprised within the Applicant’s registered title CYM339753, being the area formerly known as Ffynone Woodlands and comprising in excess of 300 acres of forest. The Applicant acquired this land on 22 nd March 2007, with the aid of public grants. On 27 th November 2008 the Respondent applied in form ADV1 to alter the register by removing the Southern Parcel from the Applicant’s title, on the basis of his claimed adverse possession. This application has been allocated the provisional title number CYM428209.

 

THE APPLICANT’S COUNTER-NOTICE

5.       I must say something about the ADV1 application. In this case, the application was made on 27 th November 2008, and a letter notifying the Applicant was sent by the Land Registry on 11 th March 2009, in accordance with paragraph 2(1)(a) of Schedule 6 to the Land Registration Act 2002 (“the 2002 Act”). The letter includes this passage, in bold type: “If you object to the application or wish to give counter notice to the Chief Land Registrar, you must do so before 12 noon on 27 April 2009”. The letter was accompanied by “Explanatory notes”, which state that the purpose of the notice is to allow the Applicant to “either consent….. object, or give counter notice to the Chief Land Registrar.” The notes have a section explaining the three options further. The section headed “Counter notice” explains that in order to require the application to be dealt with under paragraph 5 of Schedule 6, the recipient must either do so by way of the NAP form, or by email, supplying all the information requested in the Form NAP. Within the time limit specified in the notice, on 2 nd April 2009 the Applicant returned the Form NAP. Panel 5 on the form contains three statements, with a box to be ticked to indicate which statement is correct. The first is: "I consent to the registration of the applicant(s)". The second is: "I require the registrar to deal with the application under Schedule 6, paragraph 5, to the Land Registration Act 2002". The third is: "I object to the registration on the grounds stated in panel 6". The Applicant ticked the third box. If one turns to panel 6 of the Applicant’s NAP Form, reference is made to the “letter of objection attached hereto”. In the letter, the Applicant’s solicitor engages in a point-by-point rebuttal of the Respondent’s application, and the facts he relies on. There is, however, no mention of paragraph 5 of Schedule 6, or the conditions contained therein. In his own ADV1 form, however, the Respondent had identified the first and third conditions of paragraph 5 as being relied upon, in the event that the Applicant invoked paragraph 5. I shall explain the potential effect of these documents in due course.

 

THE RELATED DISPUTES

6.       Accordingly, there are in effect two separate, albeit related, disputes before me. First, rival applications for a title to the unregistered Northern Parcel based on alleged adverse possession. Secondly, the Respondent’s application for a title to the Southern Parcel based on adverse possession. The first issue, since it relates to unregistered land, will be decided by reference to the Limitation Act 1980 (“ the 1980 Act”), untrammelled by registered land considerations. The second issue, which does relate to registered land, will be decided by reference to the provisions of Schedule 6 of the the 2002 Act. Although the quality and nature of “adverse possession” is the same, whether the claim is made under the 1980 Act or the 2002 Act, there are certain differences which I shall deal with in the appropriate context.

 

7.       Although this is not directly relevant, I should perhaps point out that the Applicant’s purchase of Ffynone Woodlands, and the management plan which it is implementing, has been attended by considerable local and national controversy. The entire transaction has been publicly funded, to the extent of some £750,000, and allegations have been made about the manner in which the grant has been allocated, and the role of Forestry Commission Wales (“FCW”) has been called into question. Indeed, the Auditor General for Wales was instructed to investigate the transaction by the Welsh Assembly, and her report dated August 2010 (put in evidence by the Respondent) found that there were some serious shortcomings. In particular, although the fundamental purpose of the grant scheme was to allow woodland to be acquired by community groups for the benefit of the local community, in this case the grant was made available to a private company, without sufficient prior community consultation. The Applicant was previously a workers’ co-operative (“the Growing Heart Co-operative”) which was incorporated as a private company for the purposes of the purchase and management of the Ffynone Woodlands. Accordingly, this dispute about two small parcels of land may be seen in the wider context of a breakdown of trust between the Applicant, now owner of the woodland, and a neighbouring landowner, Mr Hutton, a member of the community and a person with strong and undoubtedly genuine views about the management and preservation of the environment.

 

THE NORTHERN PARCEL – THE RESPONDENT’S CLAIM

 

8.       I shall now summarise the grounds of the Respondent’s claim to the Northern Parcel, and the evidence in support. The story begins with the Conveyance dated 1 st June 1987 made between Charles Thomas Killick (1) and Geoffrey Douglas Whalley and Helen Elizabeth Whalley (2) (“the 1987 Conveyance”). By the 1987 Conveyance, Mr Killick conveyed to the purchasers two separately described parcels of land. The first parcel was described as “…ALL THAT dwellinghouse outbuildings land and premises known as Cwm Blaen Mill (formerly part of the farm known as Cwm Blaen-Bwlan) comprising 34.036 acres or thereabouts….”. This parcel is now registered in the Respondent’s name under the title numbers I have mentioned. The second parcel has the following description: “…ALL THAT the estate and interest of the Vendor (if any) in the area of land shown for the purpose of identification only edged in blue on the plan annexed hereto (which includes a section of the mill-leat)….”. The land edged blue on the plan is identical to the Northern Parcel as I have described it. The 1987 Conveyance was accompanied by a Statutory Declaration made by the Vendor, Mr Killick, dated 27 th May 1987. In this document, Mr Killick declared that he had been in “undisturbed possession” of the Northern Parcel since shortly after his purchase of Cwm Blaen Bwlan Mill in 1964, and occupied and used it as part of that holding since that time.

 

9.       The Respondent purchased Cwm Blaen Bwlan Mill in 1997, from Mr and Mrs Julian Orbach. I have not seen a copy of this conveyance, but the Respondent has produced a Statutory Declaration dated 22 nd April 1997, made by Mr Orbach. He states that he and his wife bought Cwm Blaen Bwlan from Geoffrey Douglas James and Helen Elizabeth James by a conveyance dated 6 th November 1992. The property comprised some 34 acres. Paragraph 2 reads as follows: “At the time of the purchase I was advised by Mr and Mrs James that the Conveyance to them dated the 1 st June 1987 included the estate and interest of the Vendor in the area of land shown for the purposes of identification only edged in blue on the plan annexed hereto, being a section of the Mill Leat. The Conveyance to me described the property conveyed to me and my wife by reference to the aforementioned Conveyance of the 1 st June 1987 but omitted to refer to the land edged in blue”. Paragraph 3 is in these terms: “Throughout my period of ownership of Cwm Blaen Bwlan I have enjoyed undisturbed possession of the area edged in blue and no adverse claim has been made against me.”. I am assuming, incidentally, that the purchasers of Cwm Blaen Bwlan in 1987 changed their name from Whalley to James at some point prior to 1992. The land edged in blue on the plan attached to Mr Orbach’s Statutory Declaration is, as the description suggests, the Northern Parcel.

 

10.   As far as the Respondent’s own possession of the Northern Parcel is concerned, his evidence was contained in his Statement of Case, and the Statutory Declaration made on 1 st December 2008, upon which he was cross-examined. Paragraph 3 of the declaration reads as follows: “Throughout my period of ownership of Cwmblaen Bwlan, I too have enjoyed undisturbed possession of the area edged in blue and no adverse claim has ever been made against me. The mill is a fundamental asset of Cwmblaen Bwlan and obviously, the full length of the leat is intrinsically necessary to its functioning. Although the original flour mill fell into disuse some eighty years ago, the eventual reinstatement of the mill has always been in my plan for the farm. To this end, I have thinned trees, commenced clearing out the leat and surveyed the land and river, preparatory to reinstatement works.” Under cross-examination, Mr Hutton insisted that he had always assumed that the Northern Parcel was part and parcel of the Mill, albeit that he was aware that “technically” it was not within the registered title. Although he did not fence the land, he never saw anyone else on it, and on some occasions he might be there for long periods up to 24 hours, watching for otters, for example. He often visited the leat, and took dead wood from it. He considered himself to be in exclusive possession of the Northern Parcel, which was easily accessible from the Mill but quite inaccessible from elsewhere, although he accepted that people could have entered it without his knowledge. Cwm Blaen Bwlan is within the Preseli Environmentally Sensitive Area (“ESA”). In 1997, when he bought the land, he entered into a Management Agreement with the Welsh Office, whereby he agreed to manage the land subject to the agreement, in return for a financial grant. The agreement was renewed annually (latterly with the Welsh Assembly). The agreement related to the land identified on a plan, which has always included the Northern Parcel. He said: “I was paid to look after it. It was part of the Riparian zone”. Interestingly, the plan also identifies particular features. An archaeological feature is identified to the west of the Mill and in the area of the Northern Parcel. Comparing the ESA plan with the Ordnance Survey, it appears that the feature in question is the mill race and leat, which is certainly the view of Mr Hutton. This appears to confirm Mr Hutton’s evidence that the leat does indeed extend into the Northern Parcel.

 

11.   In addition to Mr Hutton’s evidence, his partner Rowena Lightfoot and their son Ruben made witness statements on which they were cross-examined. Ruben was 13 years of age when he moved to Cwm Blaen Bwlan, was home educated and spent much of his time there. Indeed, he still lives there. In his witness statement, Ruben confirmed that he always understood that the whole of the mill leat, including the Northern Parcel, belonged to Cwm Blaen Bwlan. Various activities were carried out, according to him, particularly the clearing of leaf mould from the water channels. This was done quite intensively in the first two years of their occupation – which began in 1997 – and much less so subsequently, although it continued to happen from time to time. This leaf mould was used in their garden. Tree branches and fallen trees were from time to time cleared from the channel and used for firewood. Rowena Lightfoot confirmed this evidence.

 

12.   Both Mr Hutton and Ms Lightfoot knew Mr Dai Phillips, who was the contractor who carried out thinning and other associated woodland management activities on behalf of Mr Goodyear, to whom I refer below. Indeed, Mr Phillips used to set up a temporary sawmill in the grounds of Cwm Blaen Bwlan Mill by arrangement with them. They were adamant that he had never entered the Northern Parcel during their tenure at Cwm Blaen Bwlan, and never saw anyone from the forestry working on that land.

THE NORTHERN PARCEL – THE APPLICANT’S CLAIM

 

13.   The only direct evidence available to the Applicant as to the possession and use of the Northern Parcel (and, indeed, the Southern Parcel) prior to its purchase in 2007 was given by Mr Peter Goodyear. Mr Goodyear is a professional forestry manager, who was responsible for Ffynone Woodlands between 1981 and 2007, when the Applicant purchased the land. He was employed by a variety of management companies which managed the woodland on behalf of the owners, Cleveland Forestry Trust which, as I understand it, was a private pension fund. He made a witness statement, upon which he was cross-examined. In his statement, he said this: “As regards Area 1 [the Northern Parcel ] this area of land contains Norway spruce which was planted in 1963 and subsequently thinned and has been in constant management by Calon yn Tyfu Cyfyngedig and their predecessors in title since Planting”. He also refers to the line of dilapidated fencing running alongside the eastern end of the Northern Parcel, and suggests that this was installed by Economic Forestry Limited to enclose the Northern Parcel within the area of Ffynone Woodlands.

 

14.   Under cross-examination Mr Goodyear qualified this evidence to some considerable extent. I should say that he was a patently honest and helpful witness, who tried hard to provide an accurate recollection of the relevant matters. Essentially, the only fact of which he could be certain was that in 1963 the entire Northern Parcel was planted with Norway Spruce. I questioned him about this, and he was clear that the planting would have been made right down to the edge of the river. However, he could not be sure that there had been any management of this particular area subsequently. Certainly, there was a regular programme of thinning out the trees in the forest – at the 30 th year after planting approximately one-third of all trees would be taken out. This process was carried out by contractors, supervised by Mr Goodyear. One particular contractor, a Mr Dai Phillips, was used for this part of the forest. However, Mr Goodyear never actually saw him working on this piece of land. It is of course at the farthest reach of the forest, a long way away from the nearest usable track (until very recently) and in a wet and overgrown area that is difficult to access. He agreed that it was quite possible that no work was carried out on this particular small parcel of land. He was not therefore able to support the general statement that “this area…..has been in constant management …since planting.”.

ADVERSE POSSESSION – THE LEGAL FRAMEWORK

15.   As I have said, the relevant law in regard to the Northern Parcel is that applicable to unregistered land. I do not think that there is any real doubt about the legal criteria, although the Respondent (through Ms Lightfoot) disclaimed any knowledge of or expertise in the law and was content to rely on the tribunal’s guidance in the matter. As with all these cases, it is a question of applying the well-known principles to the individual facts found by the tribunal. The starting point is of course the leading case of J.A.Pye (Oxford) Ltd v Graham [2002] UKHL 30, in particular the following passages from the speech of Lord Browne-Wilkinson:

“Possession

    40. In Powell's case Slade J said, at 38 P & CR 452, 470:

"(1)  In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2)  If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi")."

Counsel for both parties criticised this definition as being unhelpful since it used the word being defined— possession— in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession:

1.  a sufficient degree of physical custody and control ("factual possession");

2.  an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). ……………………….

Factual possession

    41. In Powell Slade J, at pp 470-471, said this:

"(3)  Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."

I agree with this statement of the law which is all that is necessary in the present case.”

Before applying these principles, I must first make the necessary findings of fact.

 

FINDINGS – THE NORTHERN PARCEL

16.   The Applicant’s direct evidence of user does not precede 1981 – when Mr Goodyear began to manage the Ffynone Woodlands. The Respondent’s own evidence does not precede 1997, when he bought Cwm Blaen Bwlan and began to live there with his family. As regards Mr Goodyear’s evidence, the only fact that he is confident about is the initial planting of Norway Spruce in or about 1963. Beyond that, he never actually saw any forestry activity on the Northern Parcel. It is true that it might be inferred that thinning took place on the land in accordance with the company’s normal practice, but in my view it is equally likely that this small area was neglected due to its remoteness and difficulty of access. I am quite satisfied that no such activity took place after 1997, because the Respondent and his family would have been aware of it, since it is so close to the Mill where they lived. Furthermore, I am satisfied that such limited activities that did take place on the Northern Parcel, namely the clearing of leaf mould and the removal of dead and damaged trees, were carried out exclusively by the Respondent and his family. The nature of the land is such that it is only suited to minimal activity or use. Furthermore, I am in no doubt that the Respondent regarded himself as entitled to deal with the land as an occupying owner would. Although on one level aware that the land was “technically” outside his registered title, he genuinely believed that in some way he owned the entirety of the mill leat, which starts within the Northern Parcel, as I so find. This belief was no doubt founded on the fact that the Northern Parcel had actually been sold to his predecessors in title, the Whalleys, and he had the two Statutory Declarations from Mr Killick and Mr Orbach. The fact that he signed up to the ESA agreement for a period of nine consecutive years – receiving public money for the express purposes of maintaining the Riparian Area within his control, including the Northern Parcel – demonstrates a genuine belief that he was entitled to deal with the land as an owner would. On any view, this conduct is sufficient to establish animus possidendi. Even ignoring the declarations of the Respondent’s predecessors in title, the owners of Cwm Blaen Bwlan, I find that the Respondent has been in exclusive factual possession of the Northern Parcel since 1997 with an intention to possess it. He has therefore been in adverse possession for more than 12 years at today’s date. I should add that although there are signs of a wire fence in the position identified by Mr Goodyear, this fence is so dilapidated and buried in the ground, that it cannot be regarded as continuing to enclose the Northern Parcel or to separate it from the remainder of the Respondent’s land. It may well have done so once, perhaps at the time of the planting in 1963, but has clearly not done so for many years.

 

17.   There is of course other evidence available to me, in the form of two Statutory Declarations dealing with the undisturbed possession of the Northern Parcel since some time in 1964. First by Mr Killick, and then by the Orbachs, covering the period from 1964 to 1997. Indeed, not only did Mr Killick state that he had been in undisturbed possession of the Northern Parcel since 1964, but he actually purported to sell it as part and parcel of Cwm Blaen Bwlan by the 1987 Conveyance. Given the fact that Mr Goodyear could only really speak as to the initial planting of the Norway Spruce in 1963, and was unable to point to any actual possession of the land subsequently, there is no inconsistency between his evidence and that of the Respondent’s predecessors in title. Although of course evidence given by way of Statutory Declaration, untested by cross-examination, is hearsay evidence that will be given less weight than that of a witness who attends the hearing, I am still entitled to have regard to it. In my judgment, the absence of any forestry activities on the Northern Parcel since 1997 and probably since the initial planting, supports the evidence of Mr Killick and Mr Orbach to the effect that the owners of Cwm Blaen Bwlan have been in uninterrupted exclusive possession of the land since 1964. It is also of significance that the Orbachs were parties to the ESA management agreement (including the Northern Parcel) prior to the Respondent’s purchase – see Exhibit 4 to Mr Hutton’s Statutory Declaration (page 156).

 

18.   I also note the Applicant’s own description of the Ffynone Woodlands as “neglected” in its 2006 Cydcoed funding bid. Although the Applicant’s Mr McDowell tried to persuade me that this had some technical meaning in regard to forestry – a sort of “light touch” management – I do not agree. In the context of the funding bid, and the specific question “How will your project improve the condition of the woods in your project”, it seems to me the word “ neglected” was intended to bear its primary, non-technical, meaning. This is entirely consistent with other statements made in connection with the Applicant’s Better Woodlands for Wales (“BWW”) funding bid. For example, in the Foundation Plan generated in July 2007, Mr Bridges (who gave evidence before me and was the Applicant’s management planner) wrote that: “Access is very limited at present with the main forest track in need of upgrading to allow any future felling that is needed from now on. Some areas are inaccessible at present and will need new access routes.” He also stated: “The woodlands have been kept on a low maintenance regime and only light thinning has been carried out on this site where access has been suitable” (my emphasis). In a report on the condition of the woodland, Mr Simon Mead, the local Woodland Officer of FCW, who gave evidence at the hearing, described the existing road system in the forest as “60s standard and has been neglected since then….”. In my judgment, these statements, made by forestry professionals, mean what they say, namely that the woodland had been neglected and some areas of it were inaccessible for all practical purposes. This is entirely consistent with the evidence given by and on behalf of the Respondent as to the position since 1997, and also with the Statutory Declarations dealing with the land since 1964.

 

CONCLUSIONS REGARDING THE NORTHERN PARCEL

19.   Accordingly, I find that at a date prior to the 1987 Conveyance, title to the Northern Parcel had vested in Mr Killick by virtue of the Limitation Acts. The title of the “paper” owner had become barred. No-one – whether the Applicant or its predecessors in title – subsequently dispossessed Mr Killick and his successors in title. Even if this had not been the case, I would have found that the Respondent had barred the “paper” title, for the reasons explained above. Either way, the Respondent is entitled to be registered as proprietor of the Northern Parcel, and I shall direct the Chief Land Registrar to give effect to his application accordingly.

 

THE SOUTHERN PARCEL – THE RESPONDENT’S CLAIM

 

20.   I shall now turn to the Southern Parcel, registered land to which the Respondent claims a title by adverse possession. The evidence in support of this claim is to be found in the Respondent’s Statutory Declaration dated 23 rd November 2008, and in the witness statements of Ruben and Rowena Lightfoot that I have already referred to. This is what Mr Hutton declared: “On the plan RMJH01 I have identified the approximate position of an entrance at the far western end of field OS no. 1091, part of my property title no. WA657298. Land Registry title no. CYM339753 was entirely forested land and this entrance opens onto an area of it, which is shown, for identification purposes only, edged in green on plan RMJH01. The entrance is a gap 12ft wide in the bank that forms the field boundary. ……..The nearest forest track was overgrown and had not been used by vehicles for decades. Throughout my period of ownership of Cwm Blaenbwlan Mill, I have used this area of land to access the length of the leat and its inlet, and I have thinned the trees planted there. I have always considered this to be a natural part of the leat land because the field entrance has always been open and has provided the only safe way to access the leat with machinery, because the land to the north slopes steeply down towards the river. It would be impossible to undertake reinstatement and maintenance of the leat from the riverbank side only. The field entrance is directly opposite the far western end of the mill leat and the southern boundary of the land marked in green is the shortest route to the end of the leat. Until I received the solicitor’s letter mentioned below, I enjoyed undisturbed possession of the land edged in green and no adverse claim had ever been made against me.” The land edged in green is the Southern Parcel.

 

21.   In his witness statement Ruben Lightfoot stated that he and his brother used to thin out the trees on the Southern Parcel and use the poles to build various structures. Evidence to similar effect was given by his mother, Rowena. She also confirmed the use of the Southern Parcel as the usual access to the mill leat.

 

22.   The Applicant’s evidence as to its possession of the Southern Parcel is essentially the same as the evidence in regard to the Northern Parcel. Only Mr Goodyear could speak of the planting in 1963, and the subsequent acts of management. There is no physical barrier between the Northern Parcel and the Southern Parcel, and they are equally remote and inaccessible from the remainder of the forest. There is in reality nothing to distinguish between the two parcels of land from a forester’s point of view, and accordingly Mr Goodyear could not point to any actual user or maintenance of the Southern Parcel other than by inference.

 

THE EVENTS PRECEDING THE RESPONDENT’S APPLICATION

23.   I shall now describe the sequence of events that led to the Respondent’s application. As I have said, the Applicant purchased the Ffynone Woodlands in early 2007. According to Rowena Lightfoot, in April 2007 a note was delivered to the Respondent, stating that the Applicant had bought the Ffynone Woodlands with the aid of a “Cydcoed” grant – a type of grant administered by FCW and intended to promote community ownership and enjoyment of local woodlands. Ms Lightfoot then went to Henparcau Farm to see Mr McDowell (who is also known as “Willow”), one of the directors of the Applicant, to discuss the proposals for the forest. She was shown a plan of Ffynone Woodlands, which, in her words “ failed to acknowledge the boundary of the leat land and showed the woodlands extending northwards to the Dulas riverbank. I drew this error to the attention of Mr McDowell.” As a result of this discussion, the Respondent marked out, on the ground, using baler twine, the boundary he contended for, which included both parcels. Mr McDowell, under cross-examination, said that he was aware of a line marked out on the ground, because he had seen it, but the line made no sense to him and did not mark any consistent boundary. I do not accept this evidence. It is quite improbable that Mr Hutton, having been alerted to the potential dispute, and going to the trouble of marking out a boundary, would not have marked the correct line. It is a very simple route, running in a straight line along the southern end of the Southern Parcel, from the field entrance to the river. No doubt the line was not dead straight, since the twine was attached to existing trees, but I am satisfied that the general line of the boundary was perfectly clear and, therefore, that the Applicant was aware from an early stage of the area of land claimed by the Respondent.

 

24.   Following on from this initial meeting, it appears that there was no subsequent direct contact between the Applicant and the Respondent. However, the Respondent did contact FCW and obtained a copy of the Applicant’s Funding Bid, which included a plan which also comprised land which the Respondent claimed. Mr Hutton informed FCW by letter and over the telephone that the plan should be amended to reflect the true boundary. FCW officers assured the Respondent that the plan had not been finalised, and he would be given an opportunity to comment on the BWW Management Plan before it was finalised. I should explain that the BWW Management Plan was the second stage in the grant process. Having bought the woodland with the aid of a “Cydcoed” capital grant, the Applicant then applied for further funding for the purposes of implementing a management plan for the forest.

 

25.   Eventually, in January 2008, the Applicant submitted its draft BWW Management Plan for the purposes of statutory public consultation. Mr Mead provided the Respondent with a copy of this document. The plan attached once again included both the Northern and Southern Parcels, which were included in “compartment 7a” of the woodland with a total area of 10.63 hectares. Once again the Respondent drew the dispute to FCW’s attention, as a result of which – and, it must be said, to a number of other issues raised by the Respondent in relation to the draft plan – a meeting on site was arranged for 18 th February 2008. The meeting was attended by Mr Hutton, Ms Lightfoot and one of their sons on the one side, and Mr Bridges and Mr Mead on the other. Mr Bridges was employed as the Applicant’s agent to draw up and negotiate the BWW funding bid. Mr Mead was, as I have mentioned, employed by FCW and was closely involved in the BWW process. It is agreed that the meeting lasted several hours, in the course of which the parties actually walked the full length of the mill leat. The meeting continued at Cym Blaen Bwlan Mill, where, according to Ms Lightfoot, she took Mr Bridges and Mr Mead to the Land Registry plan which showed that the Northern Parcel was excluded from the Applicant’s title. I do not think that this is or could be challenged, having regard to item 10 of the note of meeting prepared by Mr Mead (page 163).

 

26.   It is common ground that, following this meeting, the BWW plan was amended, to exclude both the Northern and Southern Parcels from the land subject to the Final Proposal dated 29 th March 2008, thereby reducing the area of compartment 7a from 10.63 hectares to 10.24 hectares. It is also common ground that the deadline for submitting the funding application was 31 st March 2008. The Management Agreement was signed in the form of the Final Proposal, thereby triggering the release of the grant monies to the Applicant. The final agreement, and plan, were accessible to the public on the FCW website and were of course seen by the Respondent. Unsurprisingly, he and Ms Lightfoot believed that his claim to both parcels of land had been conceded. The Respondent contends that, under the rules governing the funding application at that date, the BWW Management Plan must include the entirety of the applicant’s land holding. I did not understand the Applicant to dispute this.

 

27.   Following on from the meeting, and the revision of the plan, there was no further meeting or contact between the Respondent and the Applicant until the events of September and October 2008. It seems that the Applicant had begun to improve the forest tracks as soon as the grant monies were available. In particular, the track leading to compartment 7a required very substantial work, and according to the Respondent it took many hours of chainsaw work to clear the overgrown track, and tonnes of crushed rock had to be laid to create a passable vehicular route through boggy ground. Based on the sums mentioned in the grant application, he estimates that some £70,000 was spent to create a suitable track to service compartment 7a. Indeed, that this level of work was required is not disputed by the Applicant. In September 2008 the Applicant began clear felling parts of the forest – essentially, cutting down every tree in a given area to create open land. Mr Hutton had ascertained from the contractor that the clear felling was scheduled to extend right to the river – i.e to include both disputed parcels. He expressed his objection to the contractor, and then erected a post and wire fence along the southern boundary of the Southern Parcel, to prevent further encroachment. This resulted in a letter from the Applicant’s solicitors, complaining that the fence had damaged approximately 20 trees by stapling the fence to them, and advising that the Applicant intended to demolish the fence and “fell the trees up to the unfenced boundary. They will however leave a buffer zone of trees around the current unfenced boundary so as to avoid any complaint on your part of transgressing the boundary.” They also threatened to involve the police. I may add that the reference to damage to 20 trees is clearly disingenuous since it was always the Applicant’s intention to fell these trees, but it perhaps gives a flavour of the position adopted by the Applicant.

 

28.   This produced a written response from the Respondent and Ms Lightfoot, who drew attention to the amended BWW plan, which, they believed, had recognised the Respondent’s boundary - i.e recognising that the Respondent owned or was entitled to the Northern and Southern Parcels. In the event, on 15 th November 2008, the Applicant’s contractor did remove the fence, and continued the clear felling right up to the very edge of the Northern Parcel. Although the Respondent asked the police to attend on site, which they did, unsurprisingly they took the view that this was a boundary dispute and did not regard it as within their responsibility. On the following day there was another confrontation on site between Mr Hutton and Ms Lightfoot on the one side, and Mr McDowell on the other. On this occasion, Mr McDowell informed them that the BWW plan had been re-amended, to include the Southern Parcel. According to Mr Hutton, this was not true at that time. However, it is a fact that the BWW plan was subsequently amended, in December 2008, according to the evidence of Mr Mead of FCW. I shall come back to this point in due course. However, at the date of the felling in November 2008, it appears that the Applicant was clear felling within an area which fell outside the agreed BWW management plan.

 

29.   In the event, therefore, the entirety of the Southern Parcel has been cleared, but no clearing of the Northern Parcel has taken place. The effect of the clear felling, however, has been to expose the trees within the Respondent’s adjacent land to serious wind damage, and many trees along the river towards the Mill have been blown down.

 

THE LEGAL FRAMEWORK

30.   Before I make any findings of fact as to the alleged adverse possession by the Respondent, it is necessary to consider the specific requirements of an application under Schedule 6 of the 2002 Act. Although of course the basic requirement on an applicant is to establish a ten-year period of adverse possession – which has the same meaning for these purposes as it does in relation to unregistered land – there are, or may be, some additional hurdles to overcome. The statutory scheme contained in Schedule 6 is as follows. By paragraph 1(1) “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”. By paragraph 2(1)(a) it is provided that the registrar must give notice of the application to the proprietor of the estate to which the application relates. The notice must inform the recipient of the effect of paragraph 4 of the Schedule. Paragraph 3 provides as follows: “(1) A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5. (2) The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide.” Paragraph 4 is in these terms: “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.” The critical paragraph in this case is paragraph 5, which provides as follows:

“(1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met.

(2) The first condition is that—(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and (b) the circumstances are such that the applicant ought to be registered as the proprietor.

(3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate.

(4) The third condition is that—(a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application .

 

31.   The Land Registration Rules 2003 provide a procedure both for the making of an application under Schedule 6 and for any objection thereto, and I have described the process in paragraph 5 of this Decision. In the present case, the Applicant returned the NAP Form to the Land Registry, but only ticked this box: “I object to the registration on the grounds stated in panel 6”. In panel 6, the Applicant has written: “Please see letter of objection attached hereto”. The letter of objection dated 2 nd April 2009 which accompanies the form is a detailed rebuttal of the application, over three pages, written by the Applicant’s solicitors. The effect of the objection was to cause the Chief Land Registrar to refer this disputed application to the Adjudicator. However, there is an argument as to the effect of the NAP Form as returned by the Applicant. The argument arises because the Applicant failed to tick the box expressly requiring the registrar to deal with the application under paragraph 5 of Schedule 6. Clearly, paragraph 5, if invoked, requires the squatter to prove not only that he has been in adverse possession, but that he is able to satisfy one or more of the conditions specified. It makes the application a more onerous one. On the other hand, if paragraph 5 is not engaged, the registrar is obliged to register the squatter with a title provided that he can establish adverse possession for ten years – see paragraph 3(2) of Schedule 6. If the Applicant has failed to invoke paragraph 5 in this case, the Respondent’s task is, potentially at least, easier. I may add that the Land Registry’s Case Summary – sent to the Adjudicator with the reference notice – does not refer to the paragraph 5 conditions having been invoked.

 

32.   Fortunately, there has been recent and comprehensive judicial guidance on this issue, in the form of Hopkins v Beacon & Beacon [2011] EWHC 2899 (Ch), a decision of Mr Justice Vos. This was an appeal from the Adjudicator in relation to a NAP Form, whereby the title owner failed to tick the paragraph 5 box. He held that the failure to tick the paragraph 5 box did not necessarily deprive the objector of the right to rely on the paragraph 5 conditions. In the course of a careful consideration of the authorities on notice, in particular the well-known decision in Mannai Investment Co v Eagle Star Life Insurance Co Ltd [1997] AC 749, Vos J formulated the test in this way: “….the form NAP in this case must be such that a reasonable registrar would have been left in no reasonable doubt that it was a notice invoking paragraph 5.” That, therefore, is the question which I must answer. In doing so, I must have regard not only to the NAP Form itself, but also to the letter of objection referred to in panel 6 of the form. If, reading the NAP Form and the letter together, I conclude that a reasonable land registrar would have been left in no doubt that the paragraph 5 conditions were being invoked, then the conditions will have been invoked.

 

33.   In my judgment, there is nothing either in the NAP Form itself, or in the accompanying letter of objection, from which the land registrar would be bound to conclude that the paragraph 5 conditions were being invoked. The form itself makes no reference to paragraph 5, and of course the relevant box is not ticked. The detailed letter of objection primarily, indeed almost exclusively, concentrates on a rebuttal of the factual basis for the Respondent’s claim to adverse possession. The Applicant seeks to rebut, one by one, the Respondent’s allegations as to his exclusive and uninterrupted possession of the disputed land. There is, it is true, a reference to the alleged acknowledgment of his title to the unregistered land – the buffer zone said to have been retained by the Applicant around the unregistered land – but this does not relate to the registered title and, in any event, makes no reference to the paragraph 5 conditions. Of course, the registered proprietor might reasonably be expected to invoke paragraph 5, but the NAP form only gives him the option of doing so. It is his choice whether to tick the box, and he may have good reason not to do so. In my judgment, the reasonable land registrar, presented with this NAP Form and the accompanying letter, would reasonably conclude that the Applicant’s objection consisted of a challenge to the allegations of exclusive possession. I cannot see that he “….. would have been left in no reasonable doubt that it was a notice invoking paragraph 5.” Accordingly, I conclude that the Respondent, assuming that he could establish a sufficient period of adverse possession, is not obliged to satisfy any of the paragraph 5 conditions.

 

FINDINGS – THE SOUTHERN PARCEL

34.   The only question, therefore, is whether the Respondent is able to prove that he has been in adverse possession of the Southern Parcel for a period of ten years prior to the date of his application on 1 st December 2008 –or possibly for a continuous ten-year period expiring before that date. I have concluded that he has not been in adverse possession. The activities he relies on, and which were described by himself and his partner and son, fall far short of “exclusive factual possession”, in my view. It may well be that the Applicant and its predecessors in title did little or nothing on or to the Southern Parcel. It is essentially no less inaccessible than the Northern Parcel, and there is a similar lack of evidence on the part of the Applicant as to possession of this area. However, the fact is that the Applicant is the registered proprietor, and the Respondent must establish that he dispossessed the true owner within the last ten years. This he has failed to do, in my judgment. Certainly, he has used the Southern Parcel as an access to the end of the mill leat during this period, in addition to the other acts mentioned. It may well be the case that his predecessors in title did the same, although there is no direct evidence of this. However, whilst these acts may be sufficient to establish a prescriptive easement over the Southern Parcel, there is no sufficient exclusive factual possession to support a claim to adverse possession.

 

35.   If I am wrong about this, and the facts proved by the Respondent do amount to exclusive factual possession of the Southern Parcel, with the necessary intention to possess, the Respondent would be entitled to be registered with a possessory title, since, if my understanding of the law is correct, the paragraph 5 conditions have not been invoked. Should the matter go any further, however, I propose to make findings of fact with regard to the paragraph 5 conditions, in case it should be found that the Applicant is entitled to rely on the conditions, and my application of the Hopkins v Beacon decision is incorrect.

 

THE PARAGRAPH 5 CONDITIONS – IF APPLICABLE

 

36.   In my judgment the first condition is clearly engaged. It will be recalled that the condition is in these terms: “(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and (b) the circumstances are such that the applicant ought to be registered as the proprietor.” The meaning of this condition is open to interpretation. There is no established body of case law on the subject, although there are a few decisions published on the Adjudicator’s website from which some guidance may be taken. The ingredients of an estoppel are of course well known – generally requiring some representation by the landowner, coupled with detrimental reliance by the squatter, such as to make it unconscionable for possession to be recovered. It is possible that the situation envisaged would be the classic one, where a landowner has encouraged a squatter to spend money on land in the belief that he would acquire a title to it. However, I do not see that the condition is necessarily limited in this way. In my judgment, the circumstances outlined below are sufficient to engage the first condition.

 

37.   My findings of fact are as follows.

a.        One of the purposes of the meeting on site on 18 th February 2008 was to agree the boundary between the Respondent and the Applicant in the area of the mill leat, since both parties were aware that the boundary was in dispute;

b.       Mr Bridges had actual and ostensible authority to reach such an agreement – he was the Applicant’s agent for these purposes;

c.        The Applicant was already aware of the area claimed by the Respondent due to the presence of the twine fence erected in 2007, which Mr McDowell agrees that he saw. I do not accept Mr McDowell’s evidence that the line marked by the Respondent “ made no sense” – it roughly delineated the disputed area, including the Southern Parcel albeit that it could not be exactly straight since it was tacked on to existing trees.

d.       The area claimed by the Respondent was also pointed out to Mr Bridges and Mr Mead at the site meeting.

e.        The fact that the Applicant understood perfectly well what was being claimed by the Respondent is consistent with the line drawn on the BWW plan submitted in March 2008 – which mirrors the claim to the Southern Parcel;

f.        From the Applicant’s point of view, it was essential to agree the boundary prior to 31 st March 2008, since the BWW funding bid had to be lodged by that date. Mr McDowell actually said that “we thought you would not allow us to move ahead with the Better Woodlands for Wales [bid ] unless the boundary was sorted”.

g.       As far as the Applicant and the Respondent were aware at that time, the Applicant’s entire landholding had to be included within the BWW bid to comply with the statutory regulations. It was necessary, therefore, to resolve the true boundary line.

h.       In the witness box, Mr Bridges refused to concede that the line eventually chosen for the BWW plan – which coincided with the southern boundary of the Southern Parcel – amounted to acceptance of the Respondent’s claim. I do not accept that the line chosen was simply a random line, designed to create a “ buffer zone” around the Northern Parcel. The parties to the meeting were well aware that the Respondent’s claim included the whole of the Southern Parcel;

i.         The Applicant’s purpose in amending the draft BWW plan to exclude the Northern and Southern Parcels was to demonstrate to the Respondent that the boundary issue was resolved. The publicly available documents even showed that the total area of the disputed land had been calculated and omitted from the area to be subject to the management plan. This ensured that no further objections would be made to the BWW funding bid, which was lodged in late March 2008 and was successful.

j.         Subsequently, after the BWW grant had been made, and without further reference to the Respondent, Mr McDowell requested that Mr Mead amended the BWW plan to include the Southern Parcel. This seems to have been done in or around December 2008. Mr Mead seemed a little unclear as to whether he had the legal authority to do this, but that is certainly what occurred.

 

38.   Taking all these facts together, I conclude that the parties reached an agreement as to the line of the boundary between the Applicant’s title and the land claimed by the Respondent. The Respondent, rightly or wrongly, had laid claim to the Southern Parcel, and for reasons of its own the Applicant decided to compromise the dispute by agreeing the boundary line. The agreement was reached by means of the notification of the Respondent’s claim, coupled with the amendment of the BWW plan after the site meeting. Looking at the matter from the point of view of the objective bystander, I cannot see that there is any other reasonable explanation. The line of the boundary is made sufficiently clear by the amended BWW plan – see page 109 of the Bundle. As I have said, there was every incentive for the Applicant to do this, since the continued opposition of the Respondent would prejudice the BWW funding application, and it was imperative to resolve the issue by the end of March 2008. In the overall scheme of things, the area of the Southern Parcel is a mere fraction of the total area of the forest. The omission of the Northern and Southern Parcels caused a reduction in the BWW area of some 0.4 hectares out of a total of more than 120 hectares. Counsel for the Applicant was unable to explain to me why this area was of any particular significance to the Applicant. I conclude that it had no particular significance, and by conceding ownership of the Southern Parcel the Applicant lost nothing, but ensured that its amended BWW proposal would not be opposed by the Respondent. Whether this agreement meets the criteria for the existence of a binding boundary agreement – as explained in cases such as Joyce v Rigoli [2004] EWCA Civ 79 – is outside the scope of this reference, since a boundary agreement as such was not alleged.

 

39.   What is harder to explain is the Applicant’s change of stance in Autumn 2008, leading to its request to FCW to amend the area comprised within the BWW plan. Of course, by this stage it had begun its programme of clear felling, and perhaps saw the need to justify its actions. At all events, it reneged on the boundary agreement. I do not suggest that the Applicant deliberately deceived the Respondent – by amending the plan in March 2008 with the intention of including the disputed land at a later date – but it was opportunistic in applying for an amendment of the BWW plan when it did. I also find it surprising that FCW allowed this to happen without any further reference to the Respondent. Indeed, it is unclear whether there is any legal basis for this amendment – Mr Mead seemed a little unsure. Mr Mead had actually attended the site meeting at Cwm Blaen Bwlan with the Respondent and Ms Lightfoot and was obviously aware both of the claim to the land, and of the earlier agreement with the Applicant and the consequent amendment of the BWW plan. I do not think it is to Mr Mead’s credit that he facilitated this sleight of hand. Indeed, I found both Mr Mead and Mr Bridges to be evasive and tendentious as witnesses. Mr Mead tried to establish as much distance as possible from the Applicant, but his conduct – particularly the re-amendment of the BWW plan – suggest otherwise. Mr Bridges tried to persuade me that he had no authority to negotiate over boundaries, and gave an explanation for the amended BWW boundary – a “buffer zone” – that was simply incredible.

 

40.   Even if the agreement reached between the parties was not binding, there was in my judgment an unequivocal representation by the Applicant by conduct, to the effect that the Respondent’s claim to the two disputed Parcels was conceded, with the express purpose of inducing the Respondent to withdraw his objection to the BWW proposals. As such, this would satisfy the first condition of paragraph 5 of Schedule 6 of the 2002 Act, assuming (a) that the Respondent could establish adverse possession and (b) the paragraph 5 conditions were engaged.

 

THE SUBSTANTIVE ORDERS

 

41.   In the light of my findings, what orders should I make? As regards the Northern Parcel, I shall direct the Chief Land Registrar to give effect to the Respondent’s application dated 2 nd December 2008 as if no objection had been received. It follows that I will also direct that he cancels the Applicant’s application in regard to the same land. The position as regards the Southern Parcel is more difficult. The Respondent’s application is made under Schedule 6 of the 2002 Act and is based on his alleged adverse possession. However, I have found as a fact that the Respondent has not been in exclusive factual possession of the land for the requisite period, or indeed at all. On the other hand, in the light of the events of 2008, I have found as a fact that a boundary agreement was made whereby the Applicant accepted that the Southern Parcel lay outside its ownership. Alternatively, the events might give rise to an estoppel in favour of the Respondent, preventing the Applicant from asserting a title to the Southern Parcel. However, that is not the way in which the Respondent’s case has been put.

 

42.   In the circumstances, it seems to me that I have two options. I could simply cancel the Respondent’s application relating to the Southern Parcel, on the basis that he has failed to make out his claim for adverse possession. The problem with such a course of action is that the issue of the boundary agreement and/or estoppel – as to which I have heard all the available evidence – remains unresolved and potentially a matter for future litigation. Having regard to the overriding objective, and with a view to bringing finality to the dispute relating to the Southern Parcel, the better course might be to stay the reference for the time being, without making a final order. If the Respondent were to apply to the Land Registry for alteration of the register based upon the facts that I have found, I could extend the stay pending any further reference by the Chief Land Registrar.

 

43.   However, although it is tempting to keep the reference alive until such time as the boundary agreement/estoppel issues have been finally resolved, I have come to the conclusion that this would not be the right course to follow. The Respondent’s application was based solely on the allegation of adverse possession, and, having failed, the Applicant is entitled to have the application cancelled. If the Respondent does wish to pursue the matter further, he could make a further application to the Land Registry or indeed to the courts. I must stress, however, that I can only deal with the issues as they are advanced before me, and it is up to the parties to pursue such claims as they might have.

 

COSTS

44.   I am minded to make no order as to costs on the basis that each party has won and lost in equal measure. The Respondent, as a litigant in person, is only entitled to out-of-pocket expenses in any event. I shall give the parties the opportunity of persuading me otherwise – by written submission to be lodged with the Adjudicator and served on the other party within 14 days of the date of this Decision. Before leaving the subject of costs I should add this. As explained above, the Applicant has resisted the Respondent’s claim to both parcels, and has made its own application with regard to the Northern Parcel. These parcels of land represent a fraction of the area of the forest and have no particular value to the Applicant. Indeed, the Southern Parcel has been completely cleared, and the Northern Parcel includes part of a disused mill leat. The Applicant purchased the forest, with substantial sums of public money, for community purposes. I find it very surprising that it should have considered it an appropriate use of that public money to litigate against a neighbour over this peripheral area of the forest, using solicitors and Counsel throughout, no doubt at considerable expense. I appreciate that the Respondent, and Ms Lightfoot, may have been a thorn in the Applicant’s flesh, initially objecting to their BWW proposal, invoking scrutiny by the Wales Audit Office of the purchase transaction and allocation of the Cydcoed grant, and generally conducting a hostile campaign against its proposals for the woodland. As far as I can tell, this campaign appears to be motivated by genuine concerns about the management of the woodland, and not by any personal motives. However, it is in my view regrettable that the guardians of the Ffynone Woodlands, in receipt of substantial public monies, could not have adopted a more conciliatory attitude, perhaps more consistent with the community ethos which the Cydcoed funding is intended to foster.

 

Dated this 16 th day of March 2012

 

 

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY

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