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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> T Bourne & Son Limited v (1) Katherine Anne McGann (2) Melvyn McGann (Adverse possession) [2012] EWLandRA 2011_0993 (21 September 2012)
URL: http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0993.html
Cite as: [2012] EWLandRA 2011_993, [2012] EWLandRA 2011_0993
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The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
APPLICANT
and
Katherine Anne McGann and Melvyn McGann
RESPONDENTS
Property Address: Land at Bridge Point, Rock Channel, The Strand, Rye, East Sussex
Before: Mr Edward Cousins sitting as the Adjudicator to HM Land Registry
On: 17 th April 2012 and Thursday 5 th July 2012
Applicant Representation: Mr Grant Armstrong, of Counsel, instructed by Messrs Heringtons Solicitors
Respondent Representation: Mr Stephen Goodfellow, of Counsel, instructed by Messrs Gepp & Sons Solicitors
DECISION
KEYWORDS: documentary title; claim for adverse possession of land part of which formerly constituted a right of way; alteration of the dominant and servient tenements; abandonment of right of way; Limitation Act 1980 section 15, schedule 1.
Cases referred to: Re Yateley Common [1977] 1WLR 840; J A Pye (Oxford) v Graham [2003] AC 419; Powell v McFarlane (1977) 38 P and CR 452.
THE APPLICATION
1. T Bourne & Son Limited (“the Applicant”) is the registered proprietor with title absolute of land and premises at Rock Channel, The Strand, Rye, registered at HM Land Registry under title number ESX276010, as shown edged red, and tinted red, purple and blue on the official copy of the title plan. This title is shown tinted yellow on the Land Registry’s illustrative plan (“the Illustrative Plan”) prepared for the adjudication. The title was first registered on 29 th April 2004. Mrs Katherine Anne McGann, and her husband Mr Melvyn McGann, (“the Respondents”) are the registered proprietors of neighbouring land and premises known as Bridge Point, also known as Bridge Point Bungalow, and situate at Rock Channel, aforesaid (“Bridge Point”). Bridge Point is registered under title number ESX251252, as shown edged red on the official copy of the title plan thereto. This title is shown tinted blue on the Illustrative Plan. This title was first registered on 6 th June 2001. Between the land and premises registered under title number ESX276010 and title number ESX251252 lies a parcel of land which was registered on a first registration with possessory title in favour of the Respondents on 14 th September 2001 under title number ESX253428. This parcel of land is shown edged red on the official copy of the title plan and tinted pink on the Illustrative Plan (“the Disputed Land”). It will be noted that on the Illustrative Plan there are also two wedge shaped parcels of land at the northern and southern extremities of the Disputed Land shown tinted brown but these are not the subject matter of this dispute.
2. The Applicant has applied to alter the register by closing the possessory title of the Disputed Land on the ground that it was mistakenly registered in favour of the Respondents. It is asserted by the Applicant that
(1) the Applicant holds the paper title to the Disputed Land;
(2) By its then managing director and principal shareholder Mr Eric Bourne (now deceased) a verbal licence was granted in 1979 to the father of the second Respondent Mr Ronald Francis McGann (also deceased) to occupy the Disputed Land;
(3) It is further contended by the Applicant that since the death of Mr McGann senior, in December 2000, the Respondents have not been in possession for the requisite period of 12 years thereby enabling them to assert a claim in adverse possession.
As part of the Application to alter the register the Applicant has also applied for the Disputed Land to be included in title number ESX276010 together with the two areas tinted brown, to which I have made reference above.
3. For their part the Respondents reject the Applicant’s claim to hold the paper title to the Disputed Land. They also reject the assertion that the occupation of the Disputed Land by Mr McGann, senior, was the subject of a licence granted by Mr Eric Bourne senior. They further assert that the occupation by Mr McGann, senior, of the Disputed Land was for a period from 1979 to 2000 and that such occupation had the sufficient degree of factual possession and intention to possess. Accordingly, they contend that the requirements for a claim in adverse possession have been manifestly demonstrated, and that such adverse possession of the Disputed Land has been maintained for the requisite period of time so as to have extinguished the Applicant’s documentary title (which claim is denied in any event). Further it is asserted by the Respondents that as the Applicant had been granted a right of way by virtue of certain historic deeds and documents over much of the Disputed Land, therefore the Applicant cannot successfully claim title to that part over which the right of way is exercisable.
THE ISSUES
4. There are two principal issues, and one sub-issue to be determined in this case.
(1) First, it is necessary to determine the exact extent of the land owned by the Applicant by virtue of its documentary title, and whether or not the Disputed Land, or part of it, falls within the historic documentary title of the Applicant;
(2) Having established the precise extent of the documentary title, it is then necessary to address the claim made by the Respondents as to adverse possession over the Disputed Land;
(3) As a sub-issue of the adverse possession claim it is also necessary to consider the assertion made by the Applicant whether or not verbal permission was given to the first Respondent’s father to occupy the whole or part of the Disputed Land.
THE ROOTS OF TITLE AND OTHER RELEVANT DEEDS
The Applicant’s root of title
5. Despite the fact that the Applicant’s title has been registered under title number ESX276010 since April 2004 (i.e. the land edged red on the title plan which excludes the Disputed Land from within its perimeter), it is submitted, in effect, by the Applicant that the historic documentary title extends further to the west of its registered title, and does indeed include most of (if not all) of the Disputed Land. It is therefore necessary to turn to the historic conveyances and attached plans prior to registration, together with other plans and documents, in order to identify the precise extent of the land conveyed.
6. The root of the Applicant’s title appears to commence with a conveyance dated 25 th August 1903, which is unavailable. However, this conveyance is referred to in the schedule to the conveyance made on 1 st December 1950 between (1) Geo. and Thos. Smith Limited and (2) Eugene James McEntee (“the December 1950 Conveyance”). The parcels clause defines the land conveyed as:-
“ALL THOSE pieces or parcels of land situate at Rock Channel Rye in the County of Sussex TOGETHER with all buildings now erected thereon or on some part thereof and being part of premises known as Rock Channel Shipyard Rye aforesaid all which said land and buildings with the dimensions boundaries and abuttals thereof (for the purpose of better identification only and not by way of assurance) and more particularly delineated in the plan annexed hereto and thereon coloured Pink and Green TOGETHER with a right of way for all purposes whatsoever over the strips of land coloured brown on the said plan but in common with all other persons now or hereafter entitled to the like right the Purchaser bearing and paying from time to time his fair proportion with others using the same of the cost of keeping such strips of land in proper repair.”
It is necessary to have regard to the plan annexed to the conveyance in order to try and establish to the parcels conveyed together with the rights of way granted. It is to be noted that the phrase in the parcels clause refers to the land being “…more particularly delineated in the plan annexed hereto…”
7. I have been provided with several different copied versions of the plan attached to the December 1950 Conveyance contained in the bundle of documentation for the case (“the Bundle”) none of which is particularly satisfactory in establishing the true boundaries of the Applicant’s land. The reason for this is that as colours delineating the property and a right of way leading to it from the north have been overdrawn in a thick manner thereby obscuring the detail. The original of this Conveyance has not been provided. It is therefore necessary for me to have regard to a number of other deeds and documents to make an overall assessment of the true boundaries of the land conveyed.
8. However, it does seem from the manner in which these various plans annexed to December 1950 Conveyance have been coloured (and some are more precise than others) that the right of way coloured brown (“the Brown Land”) lies on a north/south trajectory until it turns in a south-easterly direction towards the southern end of Bridge Point and is shown as falling outside the area coloured pink. In other words it would appear that the Brown Land did not fall within the ownership of the land conveyed to the Applicant’s predecessor in title where it lay in the vicinity of Bridge Point. This is at direct variance with the case presented on behalf of the Applicant who contends that the Disputed Land (i.e. the land directly in front of Bridge Point much of which comprised the Brown Land) falls within its paper title. It is also to be noted that the land referred to in the December 1950 Conveyance as the land coloured green bisects the land coloured pink and is a long rectangular shaped area of lying in on a west/east trajectory. It is land over which other rights of way had been granted or acquired in favour of Rye Yacht Club Limited (“Rye Yacht Club”), to which I shall make reference again, below.
9. The second conveyance of relevance insofar as the Applicant’s title is concerned is that dated 31 st December 1970 (“the December 1970 Conveyance”) and made between (1) Eugene James McEntee, and (2) the Applicant. This repeats verbatim the parcels clause contained in the 1950 Conveyance, and the plan appears to be a reproduction of that attached to the December 1950 Conveyance. The plan has similar disadvantages to that mentioned above in relation to the overdrawing of colours, and again the original was not available.
10. I also refer to title number ESX42867 which is freehold land owned by the Rye Yacht Club. This title was first registered at HM Land Registry on 10 th December 1979 when it was first registered. The official plan indicates that Rye Yacht Club had a right of way over the centre of the Applicant’s land running to its premises at the side of the River Brede. By a conveyance dated 24 th March 1943 (“the March 1943 Conveyance”) Rye Yacht Club was granted a right of way over the land coloured green. This would appear to be the same area of land coloured green referred to in the December 1950 and 1970 Conveyances. On the official plan this area of land is tinted brown. I have not seen a copy of the conveyance dated 24 th March 1943 which renders it difficult to be precise as to making a comparison as to the land coloured green on the various conveyances.
11. By a Deed of Variation dated 15 th October 1984 Rye Yacht Club surrendered to the Applicant the rights of way or otherwise it held over an area of land and described as the “Old Roadway” coloured green on the plan annexed thereto. The Old Roadway appears to be the same long rectangular area coloured green on the plans to the March 1943, the December 1946 and December 1950 Conveyances which runs west to east across the Applicant’s land, and to which I have made reference above. In effect what appears to have happened is that in consideration of the surrender of such rights, if any, held by Rye Yacht Club over the Old Roadway in substitution for such rights the Applicant granted to it a right of way with or without vehicles over a roadway referred to as “the New Road” as coloured brown on the plan annexed to the Deed of Variation. This grant of such new rights of way was subject to certain conditions, as set out in the Deed.
12. It will be noted from the plan attached to this conveyance that by this stage there had been a substantial re-figuration of the whole of the south western area of the Applicant’s land. This involved the creation of the New Road which gave effect to construction of an entirely new roadway, pavement and wall situated some distance away from the front of Bridge Point to the east. This followed the grant of planning permission on 26 th August 1981 for the “re-alignment of private road and diversion of public footpath” in accordance with an amended plan apparently date stamped 27 th July 1981. A coloured plan bearing the date of 23 rd July 1981 which appears to have been drawn by Malcolm Tree (a chartered structural engineer) for the Applicant entitled “proposed road re-alignment and site layout” is included in the Bundle, but again the various features are difficult to distinguish. I should add that the creation of this new roadway was within the curtilage of the Applicant’s land, and did not follow the line of the Brown Land on the December 1950 and December 1970 Conveyances which in effect seems to have thereafter served no useful purpose and fallen into desuetude save for access purposes to Bridge Point. There is some dispute as to precisely when these works of re-configuration occurred but it would seem that these were completed by 1982.
13. Noted in the Charges Register of the Applicant’s title is a Deed of Grant dated 11 th March 1985 made between (1) the Applicant, and (2) The South Eastern Electricity Board by which the Applicant granted an easement in favour of The South Eastern Electricity Board to pass and repass with or without vehicles at all times and for all purposes along the land coloured blue and land coloured brown and hatched black, together with the right to retain, lay and maintain electric lines under the land coloured yellow on the plan number 5913/193/18 annexed to the Deed. The rights granted included full right and liberty to break up the surface of the brown land and the yellow land so far as may be necessary from time to time. It is apparent from the plan that bounding the land hatched yellow on its south west side is a long rectangular feature which presumably represents a wall. It is also to be noted that Bridge Point lies at some distance to the west of the blue land and the yellow land. The blue land clearly graphically represents the New Road following the road re-configuration created within the curtilage of the Applicant’s land, to which I have made reference above.
The Respondents’ root of title
14. Insofar as the Respondents’ root of title is concerned, this commences with a Conveyance dated 19 th December 1946 (“the December 1946 Conveyance”) made between (1) Grace Odell and (2) the Rother and Jury’s Gut Catchment Board (the predecessor to the Kent River Authority) whereby:-
“ALL THOSE pieces or parcels of land situate at the Rock Channel Rye in the county of Sussex TOGETHER with the Hall or Studio and all other buildings erected thereon or on some part thereof…. as the same are (for the purpose of better identification only and not by way of assurance) more particularly delineated in the plan drawn hereon being thereon coloured pink and green TOGETHER with the right (in common with any other person now or hereafter entitled thereof) for the Purchasers and their successors in title to pass and repass at all times hereafter and for all purposes with or without horses and other animals cars carriages and other vehicles (however propelled) over and along the strip of land coloured yellow to hold the same unto the purchasers in fee simple subject to a similar right for the owner or owners from time to time of the adjoining property on the North and East sides of the property hereby conveyed and his her or their tenants and all other persons authorised by him her or them over and along the said strip of land coloured green on the said plan.”
The strip of land coloured yellow (“the Yellow Land”) over which the right of way was granted lay on a north/south/south east trajectory for the most part situated immediately in front of Bridge Point. The Yellow Land appears to conform with the Brown Land where it passes to the east of Bridge Point on the December 1950 and December 1970 Conveyances. It is to be said that the plan attached to the December 1946 Conveyance does not share the same disadvantage as to over-zealous colouring affecting the earlier conveyances and is clear in its depiction of the land sold and the right of way.
15. It transpires that the first Respondent’s parents, Mr Ronald Francis McGann and his wife Eleanor Ruby McGann moved into Bridge Point Bungalow in 1965. By a Deed of Assignment dated 2 nd August 1965 and made between (1) William George Street and Raymond Sydney Branch and Frances Patricia Gearing and (2) Ronald Francis McGann and Eleanor Ruby McGann the residue unexpired of the term of a Lease dated 26 th March 1947 and made between (1) the Rother and Jury’s Gut Catchment Board and (2) the Rye Bay Trawler Company Limited which demised the “land and buildings at Rock Channel, Rye, Sussex” for the term of 99 years from 25 th March 1947 was further assigned to Mr and Mrs McGann. There is no plan attached to this Deed of Assignment.
16. Thereafter, by a Conveyance dated 21 st February 1973 (“the February 1973 Conveyance”) and made between (1) the Kent River Authority (as successor in title to the Rother and Jury’s Gut Catchment Board) and (2) Mr and Mrs McGann agreement was reached for the sale of the freehold reversion of the property expectant upon the determination of the Lease. The February 1973 Conveyance accordingly conveyed
“ALL THAT piece or parcel of land situated at Rock Channel Rye in the county as the same is (for the purpose of better identification only and not by way of assurance) more particularly delineated and coloured pink on the plan (Drawing No R.J.A 596/1) attached hereto TOGETHER with the dwelling house and premises erected thereon and known as “Bridge Point” Rock Channel Rye aforesaid TOGETHER ALSO with full right and liberty for the Purchasers their servants and licences (in common with the Authority and all other persons having the like right) with or without vehicles and animals at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed to pass and repass to and from the property hereby conveyed or any part thereof over and along the strip of land coloured brown on the said plans SUBJECT to the Purchasers paying a fair proportion (to be ascertained by the Engineer to the Authority) of the expense of maintaining and keeping the strip of land in repair until shall be taken over and become repairable by the Highway Authority.”
This is a detailed plan drawn by the Engineer to the Authority, a Mr J I Taylor MBE and it is signed by Mr McGann, senior, together with another person who was probably a representative of the Kent River Authority. It is to be noted that this plan was traced and reproduced by the Kent River Authority from the Ordnance Survey sheets TQ92SW, 91NW. It will also be noted that the right of way referred to in the parcels clause shown coloured brown is immediately alongside Bridge Point and it is only towards the southern extremity of the building that it curves away leaving a small triangular area of land within the curtilage of Bridge Point at its southern end. This seems to conform to the Brown Land as portrayed on the plans forming part of the Applicant’s title.
17. The owner of the Brown Land over which the right of way was granted is undefined. However, it is possible to presuppose that Kent Water Authority owned land to the point where it turns in a south easterly direction towards the southern end of Bridge Point and therefore had the necessary power to grant the right of way.
18. As a matter of historical analysis the Kent River Authority came into existence in 1964. In 1974 it became the Land Drainage Division of the Southern Water Authority. On 1 st September 1989 it became the Kent Division of the National Rivers Authority, and finally from 1 st April 1996 it has become the Environment Agency (Kent Area).
19. Noted as a memorandum endorsed on the December 1946 Conveyance is a Deed of Grant dated 1 st May 1985 and made between (1) The Southern Water Authority, and (2) The South Eastern Electricity Board whereby the South Eastern Electricity Board were granted rights in fee simple to lay and maintain electric lines through the land shown coloured yellow and brown and brown hatched black on the plan attached to the Deed. It will be noted from this plan that the area of land the subject of the grant lies to the north of the New Road.
20. Finally, I also refer to title number ESX327898 and the official plan thereto which demonstrates that the whole of the area formerly owned by Grace Odell and sold to the Rother and Jury’s Gut Catchment Board by the December 1946 Conveyance is now owned by the Environment Agency, other than that part which was conveyed by the Kent River Authority (as successor in title) by the February 1973 Conveyance to the Respondents.
Summary
21. Thus it seems from an analysis of the plans to the December 1946, December 1950, and February 1973 Conveyances that the Brown Land on the plans to the 1950 and 1973 Conveyances conform with the Yellow Land on the plan to the 1946 Conveyance. However, the issue to be addressed is whether the Disputed Land over which the Brown Land forms part ever fell within the ownership of the Applicant or its predecessors in title. It is necessary also to have regard to other relevant documents.
THE RESPECTIVE CASE FOR EACH PARTY
The Applicant’s case
22. Mr Bourne in his evidence referred to both the December 1950 and the December 1970 Conveyances and contended that the plans annexed to both clearly indicated that the land conveyed to the Applicant passed directly in front of and very close to Bridge Point. It is on this basis that he claims on behalf of his company the legal title to the Disputed Land. However, as I have indicated above, it is difficult to establish from the plans themselves the precise extent of the land conveyed to the Applicant, but it does seem that the Brown Land was not included as part of the land coloured red, and therefore did not form part of the land falling within the ownership of the Applicant.
The 2003 Statutory Declaration
23. I have already set out above a summary of the basis of the Application made by the Applicant. Mr Bourne, the Applicant’s Director, made a Statutory Declaration on 29 th May 2003 which appears to have been made in support of the registration of the Applicant’s title in April 2004, although in his evidence he was somewhat unclear as to whether this was correct. He did, however, accept that the first registration of the Applicant’s land occurred after the first registrations of the Disputed Land and the Respondents’ land, although he did state that when he embarked upon the registration of the Applicant’s land he was unaware that the Disputed Land had been registered with possessory title by the Respondents. He stated that it was only in 2005 or thereabouts when he became aware of this and after the Applicant’s land had been registered and that the solicitors (Dawes) had never informed him of this fact. This was despite the fact that this firm was instructed by the Applicant and was also acting for the first Respondent.
24. In his Declaration Mr Bourne made reference to two plans. The first of these is a copy of the plan attached to the December 1970 Conveyance, and the second is a copy of an unreferenced Land Registry plan. On the second plan the Applicant’s land is shown edged red the lines being drawn by Mr Bourne, as he acknowledged during the course of his evidence, On its western side the red line is drawn in a straight line from north to south in order (so he stated) “to create simplicity”. In his Declaration he makes reference to an area coloured green on the plan to the west of this red line which he contended lies within the boundaries of the land conveyed by the December 1970 Conveyance, although outside the red line. In his evidence he said that he did not know why this colouring was there. However, in paragraph 6 of the Declaration he accepted that part of this area had been incorporated with the Bridge Point and as he stated “…it is accepted that that property has had title by adverse possession to the area in question”. This statement as to the acceptance of the Respondents’ claim to adverse possession was later retracted by Mr Bourne, both in writing and during the course of his evidence. When asked why he had accepted that the area had been adversely possessed this he stated that he did this in order “to make the boundary non-disputable”.
The alleged licence agreement with Mr McGann, senior
25. In his subsequent witness statement made on 24 th June 2011 Mr Bourne stated that it was in 1982 when his company re-aligned the roadway and created the New Road, and constructed the retaining wall along the edge of a footpath. Both in this statement and in his evidence given during the hearing, Mr Bourne stated that there was a verbal agreement with Mr Ronald Francis McGann, senior, that he could have use of the land on the west side of this wall until such time as Mr Bourne indicated a contrary intention. Mr Bourne asserts that at no time did title pass nor was it ever intimated that he would grant title to Mr McGann. The basis of the arrangement seems to have been that, according to Mr Bourne, the use by Mr McGann of the land could continue as far as he was concerned up to his death unless terminated earlier for any reason. However, he acknowledged that he never discussed the question of what would happen on Mr McGann’s death with him. At one point it was suggested that the agreement was for an “indefinite” period. The arrangement arose on a “shake of the hand”, and was on the basis that Mr McGann could have “use of the land, but not have it”. Mr Bourne said that he was not a liar, but he accepted that there were no contemporaneous documents in support. The date of this alleged agreement is also somewhat uncertain as in his evidence Mr Bourne stated that it was in about 1979 when this conversation took place.
26. In this context I shall refer to correspondence passing between the Applicant and the first Respondent, and their solicitors, between December 2004 and July 2006 where various contentions are raised (paragraph 33 ff).
27. Enclosed in the Bundle at page 144 is an aerial photograph taken, so I am informed, in about May 1974. A better copy was provided during the hearing. The Applicant relies upon this photograph as indicating the area prior to the construction of a lorry park and the later construction of the New Road, and the lack of any walls or fencing around the Disputed Land. The point is also made that it shows that the area in front of the house had not at that time been incorporated as a garden. However, although this was taken at a time when the New Road had not been constructed and the land immediately in front of Bridge Point had not been enclosed at that stage, there seems to be no indication of any continuing access route emanating southwards and then south eastwards from the front of Bridge Point. In other words any right of way as represented by the Brown Land seems to have terminated just south of where the blue car is parked at the front of the house and was no longer in use.
Re-configuration of the roadways and the construction of the New Road
28. In paragraph 9 of his witness statement dated 24 th June 2011 (re-dated with some changes made on 4 th January 2012) Mr Bourne makes reference to the re-positioning of the roadway around the edge of the Applicant’s land along the land coloured brown on the plan. He goes on to say that “where the said roadway passed in front of Bridge Point bungalow, however, we took the opportunity just to straighten it up. It will be observed that the actual boundary of our property sweeps much closer to the front of Bridge Point than the roadway does.” There is some discrepancy as to the date when the New Road was constructed. In his evidence Mr McGann stated that it was in 1979 and the fence erected on top of the wall then and the Disputed Land was enclosed from that point in time. Other information from Mr Bourne seems to suggest that it may have been in 1982, or thereabouts. I do not consider that much turns on this.
29. However, this does seem to be a misinterpretation by Mr Bourne of the plans when seen in the context of the plan produced by the Applicant’s expert (David Foster & Partners – drawing number 07-023 dated August 2007 (“the Foster Plan”)). This plan does not in fact support the Applicant’s case when regard is had to the legend and the tracing of the plans of the December 1946 Conveyance, together with other tracings overlaid on the Foster Plan. The Brown Land is shown as lying directly in front of Bridge Point Bungalow as traced from the December 1946 Conveyance, but the maximum extent of the western boundary of the land conveyed lay at some distance to the east of Bridge Point and certainly did not include the former right of way lying immediately in front of Bridge Point Bungalow. Indeed, this western boundary lies virtually along the same line as shown on the title plan the Applicant’s title as noted on the Foster Plan. Thus although the Brown Land originally provided the means of access from the north to the Applicant’s land immediately in front of Bridge Point Bungalow it is clear that access to the Applicant’s land was achieved at the point where the Brown Land turned in a south easterly direction at some distance from the south east corner of Bridge Point Bungalow. In other words the Foster Plan demonstrates the land over which the former right of way ran did not lie within the ownership of the Applicant. Furthermore the whole of what now comprises the Disputed Land is not marked on the Foster Plan as falling within the confines of the December 1946 Conveyance.
30. In letter dated 22 nd March 2010 sent by the Applicant to the Land Registry Mr Bourne makes various representations with regard to finalising the registration of the boundary and to record a right of way across title number ESX251252. Mr Bourne also refers in this letter to correspondence which took place between 1982 and 1984 following a claim that the Environment Agency had a right of way across the parking area which the Applicant had developed between 1980 and 1984 on the Applicant’s land, and the subsequent New Road which had been the subject of the 1981 planning application. He states in this letter that it was agreed that a “commercial” right did not exist but that the Environment Agency would be able to exercise their statutory right for flood defence and river maintenance purposes. Mr Bourne also makes reference to having had a discussion with Mr McGann, senior, in order to allow him to use the land between the retaining wall and the front of his bungalow. Again, this is made on the basis that the Applicant actually had title to the Disputed Land. In the event the Land Registry did not register a right of way across the Disputed Land.
The Respondents’ case
31. As I have indicated above, in their case the Respondent reject the Applicant’s contention that the Disputed Land and the Brown Land fall within the ownership of the Applicant. Reference is made to earlier correspondence and in particular to a letter dated 10 th February 2006 sent by the Applicant to the Respondents’ former solicitors which confirms that the Applicant at no stage owned the Brown Land over which it merely had a right of way (see below). The first Respondent also denied that there had been any conversation or discussions with his father relating to a licence agreement with Mr Bourne allowing his father to occupy the Disputed Land.
32. Insofar as occupation of the Disputed Land is concerned, the Respondents indicate that the Respondents and their predecessors in title have been in occupation of the Disputed Land for a period in excess of twelve years prior to registration on 14 th September 2001. indeed it is claimed that Mr McGann, senior, had treated the disputed Land as his own since at least 1979. They point to the fact that the Disputed Land was in effect totally enclosed by the road works which were undertaken by the Applicant at some stage in the early 1980s. They assert that they and their predecessors in title have not only occupied the Disputed Land for the relevant period, but also have had the relevant intention to do so. Their case is supported by the fact that there is no means of access into the Disputed Land except from the north since the New Road was constructed. They also rely upon the statutory declaration of Mr Bourne, to which I have referred above, which actually accepts that at least part of the Applicant’s land has been incorporated within Bridge Point, and that he has acknowledged that there has been adverse possession of it.
33. In support of their case the Respondents also rely upon a Land Registry survey of the Disputed Land undertaken in July 2001 the survey being made on 26 th July 2001. This preceded the registration of the Disputed Land with possessory title. In answer to 6 requisitions made, the surveyor confirmed that the Disputed Land did appear to be occupied by Bridge Point, but noting that the shape was different. It was also noted that it formed part of the garden, and that access was only from Bridge Point. Unfortunately it would appear that the subsequent page may not have been copied. There is, however, a survey sketch upon which various features have been drawn and reference points indicated for the various photographs taken by the surveyor. A trellis is noted erected on a “low concrete wall” situated on the east side of the Disputed Land. There is no evidence of any right of way being exercised over the Brown land/Disputed Land at that stage, and that in effect the area was completed enclosed.
Earlier correspondence and the role of William Dawes & Co
34. At an earlier stage William Dawes & Co (“Dawes”) were retained by the Applicant. Some correspondence has been disclosed between the Applicant and this firm, and also the First Respondent and this firm. The first letter of note is a letter dated 28 th October 2004 from the Applicant to Dawes the background to which seems to have been the proposed first registration of the Applicant’s title. The relevant extract is as follows:
“The Western Boundary is a little more complex, in the 1980s as we developed the site and extended its use we put in new road-way around the perimeter. To help make the position more acceptable to Mr McGann in Bridge Point we moved it away from his property and built a low wall with a fence above to provide him with some privacy. This is still to be found under the bramble hedge which runs beside the footpath. As can be identified from the 1970 Conveyance the track leading on to the site was around 11 feet wide and passed along side Bridge Point, which had been a commercial premises before conversion a few years earlier. To simplify the situation we took the view it would be logical to site the boundary in a straight line from point “A” to point “E” which remains inside the original conveyancing plan boundary. Similarly as there are no existing measuring markers for point “D” we have followed the line of boundary fence and gated access to the river bank to locate the remaining western boundary, all of which is within the original conveyancing plan boundary.
Unfortunately, when I signed the statutory declaration in May 2003 I did not pay sufficient detail to these boundaries as the reason for the declaration was in relation to the Rye Yacht Club encroachment.”
The points A to E to D conform with the “more or less” straight red line upon the plan drawn by Mr Bourne, to which I have made reference above in paragraph 19.
35. In a letter dated 7 th December 2004 from Dawes to the first Respondent reference is made to the Respondents’ land (title number ESX251252), and the land registered with possessory title (ESX253428). Mr McGann is reminded that the Disputed Land had no documentary title and was registered with a possessory title on the basis of the first Respondent, Dawes apparently having the conduct of such registration. A request is also made to the first Respondent to check whether the plan he received from the Land Registry showing the area now being registered by the Applicant is correct. The writer also reminds the first Respondent that his client is in fact the Applicant and that the first Respondent would appreciate that if in the event of any dispute Dawes would be unable to act for either party. The letter also states as follows:
“I am aware that in making the Land Registry application whilst the garden land at Bridge Point was in fact on the title deeds for the [Applicant] and the Land Registry were advised that it was accepted that this had always been used as garden land with Bridge Point and they [the Applicant] were not seeking to register any title in relation to this land.”
36. There is then a gap in the disclosed correspondence until December 2005. On 16 th December 2005 Mr Bourne wrote a letter to the first Respondent which he disclosed to Dawes under cover of a letter dated 16 th December 2005 (which does not appear in the Bundle). In the letter to the first Respondent, Mr Bourne raises with the first Respondent (apparently for the first time – no assertion to this effect is made in his statutory declaration made on 29 th May 2003) that whilst the Applicant was more than happy to for them to continue to have use of the Disputed Land currently used as the front garden to Bridge Point, it wished to retain ownership of its land and the right of way in accordance with the December 1970 Conveyance. In a letter dated 20 th December 2005 Dawes in their response to a letter from Mr Bourne stated that if agreement could not be reached between the Applicant and the First Respondent, then Dawes could no longer continue to act.
37. The first Respondent responded to Mr Bourne in his letter also dated 20 th December 2005. Here he stated that when the Applicant applied to the Land Registry to register its land in about December 2004, the land in fact registered did not include the Disputed Land. It was on this basis that the first Respondent concluded that there was no claim being made by the Applicant to it. He also stated that as the garden had been used for at least thirty years it did not seem unreasonable for the registration of the Disputed Land to have occurred in 2001. He also stated that the Land Registry had found no objectors. This later proved to be inaccurate as the Land Registry in a later communication dated 25 th April 2012 to the Respondents’ current solicitors stated that they had served no notices of the Application on adjacent land owners, or any other person.
38. In his letter dated 5 th January 2006 in response to the First Respondent’s letter, Mr Bourne stated that they did not include the Disputed Land
“…because we believed that at some point we may wish to dispose of the land separately. It was not our intention to hand over the land or the right of way without recompense. As I previously explained, when we altered the site during 1979 we made an informal arrangement with your father that he could have use of our land immediately in front of Bridge Point, by way of compensation for the inconvenience of having us as a neighbour…. Our view remains that the land in question belongs to [the Applicant]. We are however willing for you to continue your use of it but it would be sensible for us to have a formal agreement if you choose this way forward.”
39. The first Respondent then instructed new solicitors (Duffield Stunt). In their letter dated 6 th February 2006 to Mr Bourne reference is made to the December 1970 Conveyance, and it is contended that:-
“Although you have a right of way over the strips of land coloured brown that land was not transferred to you under the December 1970 Conveyance. Therefore the fact that you claim that you gave our client’s father permission to use the same, which is not admitted, it is irrelevant as you are not able to grant permission to use something which you do not own.”
Reference is also made to the statements made in the letter dated 7 th December 2004 (see paragraph 31 above).
40. In his response dated 10 th February 2006, Mr Bourne makes the following statement:-
“We are aware that we do not own but do have a right of way over [the Brown Land] on the plan attached to [the December 1970 Conveyance]. We do however own the land coloured pink and green on that plan. We have not and do not dispute this. The area we gave permission for the late Mr McGann to use was the land coloured pink and green on the [December 1970 Conveyance].”
41. In their response dated 13 th March 2006 Duffield Stunt state as follows:-
“We note your first paragraph [to the letter dated 10 th February 2006] and are pleased to see that you accept that you do not own the [Brown Land] on the plan attached to the [December 1970 Conveyance]. Likewise we do agree that you do own the land coloured pink and green on that plan and have not and do not dispute. We do not agree however that the land that our client is using is coloured pink or green. We believe that most of the land if not all of the land that our client is using is the [Brown Land] and the fact that you may or may not have given our client’s father permission to use this land, which we deny in any event is irrelevant as it is obviously impossible to give permission to use something which you do not own.
Even if land which has now been registered by our client does not include parts of the land coloured pink or green (which is denied) our client has been able to establish his long time user of the same and is therefore able to rely on a Statutory Declaration as he has done to have the land registered in his own name.”
42. In his response in a letter dated 28 th April 2006, Mr Bourne states that the First Respondent has only been using the land as his garden since 2001 as he was clearly aware from the title deeds of the property that the land did not form part of his father’s estate.
43. In a further letter from Mr Bourne dated 20 th June 2006 to Duffield Stunt in response to a letter dated 25 th May 2006 (which has not been included in the Bundle) he states that the agreement with Mr McGann, senior, “was made verbally between ourselves in 1979 when we altered the site to provide additional parking spaces.” This was undertaken by a hand-shake and Mr McGann honoured this agreement until his death. Mr Bourne then goes on to state that in 1981 after obtaining planning permission to realign the roadway around the outside of the site they moved the existing right of way which ran through the centre of the site to follow the edge of the new roadway. “Neither of these actions had any bearing on Bridge Point as it was to the west of this area and was not involved.” He also makes reference to the original roadway constructed on the site in 1972 where the drop-down kerbs set from the side of right of way to retain access still remain.
44. Further correspondence then ensued between Duffield Stunt and the Applicant, to which I do not propose to refer.
45. Distilling these various points made during the course of the correspondence, it does appear that Mr Bourne was under some misapprehension as to the precise circumstances relating to the western boundary of the Applicant’s land. On the one hand he appears to be suggesting in correspondence that the Disputed Land/Brown Land in fact forms part of the land coloured pink and green and therefore falls within the ownership of the Applicant. On the other hand, however, at the same time Mr Bourne accepts that the Applicant did not own the Brown Land – its rights being restricted to a right of way (see e.g. the letter dated 10 th February 2006). Mr Bourne also apparently raises (for the first time) the contention that there had been some form of “gentleman’s agreement” made in 1982 between himself and Mr McGann, senior, as to the latter’s occupation of the Disputed Land.
THE PRINCIPLES OF LAW
Extinguishment of a right of way
46. It is trite law that abandonment of an easement will not be likely inferred. Thus mere non-user will not of itself be sufficient (see Re Yateley Common [1977] 1WLR 840 at p 845) it must be proved that the person having the right intends to abandon it and the onus lies on the party asserting abandonment. That means that neither he nor any of his successors in title intends to exercise it thereafter. It is a question of fact whether an act was intended to constitute an abandonment, and the court will be reluctant to find such an intention unless there has been some fundamental change to the dominant tenement (see Re Yateley Common, ibid at p848). Alterations to the dominant tenement may make the enjoyment of an easement impossible or unnecessary and may therefore demonstrate an appropriate intention to abandon the right. Also an alteration to the servient tenement may well bring about an extinguishment of the easement if it is acquiesced in by the dominant owner, or if it is made to give effect to an agreement between the dominant and servient owners to replace the existing right with a new one.
Adverse possession
Limitation of actions – the legal framework
47. Section 15 of the Limitation Act 1980 provides as follows:
“15(1) No action shall be brought by any person to recover any land after the expiration of 12 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.”
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”
48. Schedule 1, paragraph 1, provides as follows:
“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession order discontinuance.”
49. Schedule 1, paragraph 8, provides:
“(1) 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’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
(2) …..…..
(3) ………
(4) For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”
50. Thus, the right of action to recover the land is barred whenever 12 years have elapsed from the time when any right of action accrued. It does not have to be a period immediately before action brought.
51. The question, therefore, is simply “…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” (per Lord Browne-Wilkinson in J A Pye (Oxford) v Graham [2003] AC 419 [36, 37]).
52. Legal possession is comprised of two elements:
(a) A sufficient degree of physical custody and control (“factual possession”); and
(b) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” ( ibid [40]).
53. Actual possession has been described as follows:
“It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…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.” (per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at [41] in J A Pye (Oxford) v Graham): -
“The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own …If the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough”, (per Lord Hope in J A Pye (Oxford) Ltd v Graham, [71]).
54. As to intention to possess, reference should be made to the words of Lord Browne-Wilkinson in Pye where he states:-
“In Powell’s case …Slade J reformulated the requirement (to my mind correctly) as requiring an “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.” [43]
55. Thus, in short, what is required is the intention to exclude the whole world from control of the land, not the use of the land. If the squatter has and manifests the intention to exercise exclusive control of the disputed land, and pursuant to that control the owner permits him to make limited use of it, then he will have the intention to possess. There must be a deliberate intention to exclude the owner. He has to demonstrate an intention to occupy and use the land as his own.
THE DECISION
56. Having regard to the various deeds and other documents to which I have referred above, and the oral and written evidence provided by the parties, and drawing together the various strands, I have come to the conclusion that the Application must fail. Accordingly. I shall direct the Chief Land registrar to cancel the original application.
57. My reasons are as follows:-
(1) I have indicated, it is somewhat difficult to establish the precise position and extent of the Brown Land, and the Disputed Land, from the various deeds owing to over-zealous colouring, but it is apparent from the December 1950 Conveyance (and I so find) that the Brown Land lay outside the land conveyed to Eugene James McEntee, and itself formed part of an accessway from the northern end of Rock Channel thereby enabling Mr McEntee to gain access to the land conveyed subsequently to the Applicant. It is to be noted from the plan to the December 1950 Conveyance that the land edged pink and coloured pink lies to the eastern and south-east of the Brown Land. A similar position can be seen when regard is had to the plan attached to the December 1970 Conveyance.
(2) I am fortified in this interpretation when regard is had to the February 1973 Conveyance and the land coloured brown marked thereon. That parcel of land would seem to conform to the Brown Land on the December 1950 and December 1970 Conveyances. The plan to the February 1973 Conveyance is considerable clearer in its definition and indicates the sweep of the Brown Land in a south easterly direct towards the southern end of Bridge point Bungalow, leaving a triangular gap between it and the house.
(3) This means that the Applicant (and I so find) did not and does not hold the paper title to the Brown Land as Mr Bourne himself acknowledged in his letter dated 10 th February 2006.
(4) It has been suggested that the Brown Land may well have fallen within the ownership of the Rother and Jury’s Gut Catchment Board and consequently its successor in title, the Kent Water Authority, and now the Environment Agency (Kent Area). It is to be noted in this regard that much of the land surrounding Bridge Point to the north, west and south of Bridge Point still remains within the ownership of the Environment Agency (Title Number ESX327898). However, in the context of the fact that there is no definitive evidence as to the original paper title ownership of the Brown Land I cannot make a finding in this regard.
(5) As to the remaining part of the Disputed Land not being the subject of the right of way (i.e. the Brown Land) similar considerations apply. It is clear in my judgment based upon the various deeds and documents, to which I have referred, that the paper title thereto does not, and did not fall within the ownership of the Applicant, nor its predecessors in title. There is no definitive evidence as to the identity of the ownership of the paper title thereto, and it is possible (but I make no findings in this regard) that it may have been held by the predecessors in title to the Environment Agency.
(6) It has been submitted that in some way the land immediately to the east of the Brown Land marked in green and yellow on the plan produced by Mr Bourne annexed to his Statutory Declaration somehow lies within the ownership of the Applicant as it falls within the pink land as coloured on the plans annexed to the December 1950 and 1970 Conveyances. I reject this interpretation on the basis that the various plans, to which I have made reference above, indicate that the land coloured pink lay to the east of the Disputed Land.
(7) I am fortified in this interpretation when regard is had to the Foster Plan which clearly indicates, in my judgment, that no part of the Disputed Land falls within the land conveyed by the December 1946 Conveyance.
(8) Further, historically, the physical circumstances on site were altered as a result of planning permission having been obtained on 25 th August 1981 by the Applicant for the realignment of what is described as the “private road and diversion of public footpath”, and the October 1984 Deed of Variation whereby the Old Roadway was surrendered by Rye Yacht Club Limited to the Applicant, and there was a re-grant of a right of way with or without vehicles over the New Road.
(9) It is clear, in my judgment, from the detailed plan annexed to the October 1984 Deed of Variation that the grant of the right of way lay well outside and to the east and south east of the Disputed Land, and clearly lay within the ownership of the land owned by the Applicant. It was at this point in time that the New Road was constructed by the Applicant together with a retaining wall within the boundaries of its land. I also refer to the March 1985 Deed of Grant entered into between the Applicant and the South Eastern Electricity Board. The plan annexed to that Deed clearly indicates that this newly constructed right of way conforms to the New Road, and the Disputed Land is bounded by a stone wall to its east constructed at the time.
(10) In effect, in 1984 or thereabouts, and I so find, that the area lying to the front of Bridge Point i.e. the Disputed Land (and the Brown Land) was physically separated from the Applicant’s land, there being no method of entry along its perimeter save for an entrance gate to Bridge Point lying to the north. This is made clear by the Land Registry surveyor in July 2001. In effect this resulted in the Brown Land no longer serving any purpose as a right of way beyond the immediate access to Bridge Point itself.
58. I therefore find that based upon the various deeds, together with the other documents to which I have referred, at no stage, in my judgment, did any part of the Disputed Land (including the Brown Land) ever lie within the ownership of the Applicant or its predecessors in title. It may have lain within the ownership of the Kent River Authority, as it was the predecessor in title to the Kent River Authority who granted the right of way in favour of Bridge Point, and also to the Applicant’s predecessor in title enabling him to access his land to the south east.
59. I also find that since the early 1980’s and probably from about 1982 (although it may have been a year or two earlier) not only has there has been no physical access between the New Road and the area in front of Bridge Point, but also the former right of way has in effect been moved to the New Road. I therefore find that since that date there have been such alterations in both the dominant and servient tenements to demonstrate that the right of way formerly exercised over the Brown Land has been extinguished. I also find that the wall as constructed on the eastern boundary of the Disputed Land has since that date constituted the legal boundary.
60. I further find that the owners of Bridge Point for the time being have exercised full dominion over the Disputed Land since at least about 1982 (it may be a year or two earlier) and also they have had the necessary intention to possess the land sufficient to satisfy the principles of acquiring title by adverse possession. The Land Registry, therefore, were correct in registering the Respondents with possessory title of the Disputed Land. I therefore do not accept the evidence of Mr Bourne that there was some form of licence agreement entered into between himself and Mr McGann, senior, in the early 1980’s. The details of any such arrangement as portrayed by Mr Bourne were so vague and lacking any documentary evidence in support so as not to constitute, in my judgment, any legally enforceable agreement in any event.
61. As the Applicant has failed in the Application costs must follow the event. I therefore order that the Applicant do pay the Respondents’ costs of and occasioned by the Application. Both parties have supplied me with Statements of Costs. I shall direct that the Applicant has 14 days from decision to make representations on the Respondents’ Statement, if so advised.
Dated this 21 st day of September 2012
By Order of The Adjudicator to HM Land Registry