REF/2011/1034

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

LISA PERROTT

 

APPLICANT

 

and

 

MARK ROBERT CUTTER

 

RESPONDENT

 

Property Address: Land at Ty Golau, St. Brides Wentlooge, Newport NP10 8SR

Title Number:

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Newport Asylum and Immigration Tribunal

On: 16-18 July 2012

 

Applicant Representation: Richard Kember, counsel

Respondent Representation: Daniel Bromilow, counsel

___________________________________________________________________________­

 

 

Applicant’s claim to a possessory title succeeds on the facts. Respondent’s claim that the disputed strip is a public right of way found not to be proved.

 

Practice when a claim is made that a route is a public right of way maintainable at the public expense considered.

 

1. For the reasons given below, I shall direct the Chief Land Registrar to give effect to the Applicant’s application dated 21 January 2011.

 

2. The Applicant, Mrs. Perrott, and the Respondent, Mr. Cutter, are neighbouring farmers at St. Brides Wentlooge. Both their farms lie between the B4239, known as the Coast Road, to the south and the main Newport to Cardiff railway line to the north. Both the Coast Road and the railway line run approximately east-west, and another public highway known as Ty Mawr Lane to the north of the railway line runs roughly north east from another public highway further to the west, Broadway, which links the Coast Road with the south western end of Ty Mawr Lane.

 

3. Mrs. Perrott claims to be entitled to be registered with a possessory title to three strips of unregistered land running from east to west through her land (the disputed strips). When she and her late husband acquired her land from their predecessor in title, Philip John Scrivens (Philip Scrivens) in 2004 the transfer included whatever right title and interest Philip Scrivens had in the disputed strips. She has since farmed them with the land to which she has undisputed title, and she and her husband had farmed the same land as tenants of Philip Scrivens between 2002 and 2004. The disputed strips form part of an old lane but are divided from each other by land which had been turned into lakes or ponds by Philip Scrivens in the early 1990’s.

 

4. Mr. Cutter owns, together with other family members, land on either side of the disputed strips. He claims that the disputed strips are part of an old public highway maintainable at the public expense, the surface of which is vested in the local highway authority, Newport City Council (the council) and to which therefore neither Mrs Perrott nor her predecessors in title could have obtained a possessory title. He further asserts that, even if it was not a public highway, Mrs. Perrott and her predecessors in title had not been in adverse possession of the disputed strips (or at least of two of them) for the requisite period of 12 years.

 

5. The alleged highway, which I will refer to as the lane, and which has been blocked at other points along its route, is not shown on the definitive map of the council’s highways and the council has disclaimed any interest in establishing it to be a highway. Further, until Mr. Cutter decided that he wanted access along the disputed strip between his two pieces of land, his interest lay in keeping the public off the lane, which has long been impassable for various reasons to which I shall return.

 

The appropriate forum and parties

6. The first issue raised before me is whether I have jurisdiction to determine the question whether the disputed strip is part of a public highway at all. I have no doubt that I have such jurisdiction. The matter referred to the Adjudicator, which the Adjudicator has statutory power to determine, is or includes Mrs. Perrott’s claim to a possessory title to the disputed strips. In order to determine that question, at least if Mrs. Perrott would otherwise be entitled to succeed in her claim, I must determine whether the disputed strips are part of a public highway maintainable at the public expense, since if they are, the topsoil is vested in the council and even if Mrs. Perrott has established all the normal requirements for a possessory title, her claim must fail.

 

7. A further question is whether I should determine the question or direct court proceedings under s.110 of the Land Registration Act 2002. This question arises because a decision in proceedings only between the present parties would not bind the council and could lead to the strange result that, if I were to hold the disputed strips to be part of a public highway maintainable at public expense, although the present claim would fail nothing I decided would bind the council as against either party. Had the council wished to claim that the land was such a public highway, it would have been joined as a party to these proceedings and the matter could have been disposed of in a way that bound it as well as the parties. It made it plain, however, that it did not wish to make any such contention, and as a result it was not joined. So too, in court proceedings, if the proceedings were only between the present parties, the same position would result if the council was not to be joined. Any proceedings which I might direct would therefore have to be proceedings brought by Mr. Cutter against the council, as well as Mrs. Perrott, and possibly also against others who have obstructed the lane, including those who have erected a locked gate at the junction with Ty Mawr Lane and who would clearly prefer to have the route closed to the public.

 

8. If, moreover, the council were to be joined, whether in these proceedings or in court proceedings, it would find itself in an unenviable position. If it took no steps, it would run the risk of a finding that bound it to spend public funds maintaining an ancient and for many years disused and blocked up highway, with the prospect of further disputes with others, in addition to Mr. Cutter, who have blocked the highway (and who perhaps also ought therefore to have the opportunity of being parties to these proceedings). If it did take part in the proceedings, it would have to spend public funds fighting Mr. Cutter’s claim, despite the fact that this is essentially in its origin a private dispute between Mr. Cutter and Mrs. Perrott.

 

9. In the end, I have come to the conclusion that I should only consider joining the council (and possibly others whose land would be crossed by the alleged highway, or who had obstructed it with the gate at the junction with Ty Mawr Lane) if I were to conclude that, on the evidence before me, in the absence of further evidence or submissions, Mr. Cutter would succeed in his claim in respect of the disputed strips on the basis that the lane is a public highway maintainable at public expense.

 

The history of the land 1757-1910

10. The lane, together with both Mrs. Perrott’s and Mr. Cutter’s farms and other land, used to form part of the Tredegar Estate. Mr. Cutter’s researches go back as far as 1757, at which point there was a plan of the Wentlooge levels now held by the National Library of Wales with the title “An exact map of the lower level of the Hundred of Wentlough”. A road is shown on the plan called Summerway Lane which is in the position of the lane. It runs from close to the western end of Ty Mawr Lane in the north. It goes south east across where the railway was subsequently built, and through land now owned by Mr. Cutter and his family. It is then shown as turning more or less due east and running first across the land that is now Mr. Cutter and his family’s and then across what is now Mrs. Perrott’s land ending in what is now the middle of a field to the east of Mrs. Perrott’s land. It does not link at that or any other point after Ty Mawr Lane with any public highway or indeed any marked way at all.

 

11. The lane again appears in a plan of 1760 entitled “A plan of the level of Wentloogh etc.” and Mr. Cutter says that it is shown there as a highway. It is apparent from the plans and from the estate book of the Tredegar Estate of 1760 that for its entire length the road in question was within the Tredegar Estate. A further plan of 1765 of the Tredegar Estate in the Peterstone Parish again shows the lane, again called Summerway Lane, ending at a point where the land immediately beyond is referred to as Glebe Land. A further map of Peterstone, said to date from 1776, and to be from the estate of T. Edwards, again shows Summerway Lane and the Glebe Land.

 

12. The next plan in point of time is a 1790 plan entitled Farms in Marshfield and Peterstone Wentlooge parishes, where the Respondent contends that the road is shown as a road in common with all other roads in the area. Summerway Lane again appears in a plan of the reens and drains in the Parish of Peterstone where it is again shown as a road. An 1831 plan of the Wentlooge Levels, and accompanying schedule, commissioned by the Commissioner of Sewers for the levels, and prepared by Thomas Morris, shows the lane in the schedule as a “Road and Waste” under the heading “Public Roads and Waste”.

 

13. The railway was first constructed pursuant to the South Wales Railway Act 1845. Mr. Cutter contends that the lane is shown as a road numbered 41 in section 33 of the Act, is shown on the plans attached to the Act as a road and is described as a Parish road in the reference book for the plans. At that stage, it would appear that there would have been a level crossing across the railway when it was built. However, when the railway was to be expanded in 1895, the Great Western Railways No1 Act, which provided for the expansion, described the land as a field and occupation road, and included it in land stated to be owned by Lord Tredegar.

 

14. At that stage, when the railway was widened, a bridge was provided over it by the railway company in place of the old level crossing.

15. In 1910, a field officer’s notebook for the Finance Act of that year shows a deduction from the assessment of the value of Court Farm, Marshfield (Ref 211), of £30 for “Public Rights of Way or User” and a further deduction from the assessment of the value of Land near Ty Coch, Peterstone (Ref 532 and 533), of £20 in respect of such rights. It is said that these deductions relate to this alleged highway. The references appear to relate to OS numbers on the 1901 Ordnance Survey plan. OS532 is shown on that plan as straddling a road in the position of the alleged highway which ends at a field OS594 which abuts OS532. It is not shown as part of OS532. OS211 is two fields to the west of OS532 and abuts but does not straddle the alleged highway. A note at the foot of the OS plan states that it was surveyed in 1881 and revised in 1900.

 

16. I was also referred to what is said to be an extract from a work by Professor Stephen Rippon “The Gwent Levels: landscape evolution and wetland evolution”. I have been unable to find the work referred to on the internet, from which the extract was taken, but the extract corresponds precisely with pp.41-42 of a revised draft for a work by Professor Rippon entitled “Historic Landscape Analysis: Deciphering the Countryside”. The draft is dated October 2003 and the final version cannot have had the same pagination as the draft includes instructions for the insertion of illustrations.

 

17. The extract relied on, from p.42, reads: “ The Gwent levels are an example of a discrete physical pay that in part was occupied by communities whose territories (ie manors/parishes) were restricted to the marshland, although parts of the lower-lying backfens were exploited by communities living on the fen-edge and whose territories/estates embraced both wetland and dryland. During the post medieval period large amounts of land on the Levels was owned or leased by farmers living elsewhere and used as ‘accommodation’ land to fatten up livestock over the summer, and this seasonality is reflected in field-names such as ‘Summerlease’ , and droveways such as ‘Summerway’. If the GLHLS had been a purely past-oriented research project then the wetlands themselves would have to have been part of a far wider study area that to a certain degree explored these wider socio-economic themes (see Rippon 1997a).” The origin of the name may indicate how the lane was first used, but it does not assist me in the present case in determining whether it was at some later date dedicated as a public highway.

 

18. At some point, it would appear from the various OS plans a footpath began to be marked running north from the Coast Road to approximately the eastern terminus of the alleged public highway. The path is shown on the 1901 Ordnance Survey plan, but not on any earlier plan before me. There is nothing on the plan to designate its status or that of the road now alleged to be a highway. The aerial photographs in evidence show that at least since 1946 the footpath was across open fields, and seemed to be little used except at the southern end.

 

19. Section 32 of the Highways Act 1980 provides that in “determining whether a way has or has not been dedicated or the date on which such dedication if any took place shall take into consideration any map plan or history of the locality or other relevant document which is tendered in evidence and shall give such weight thereto as the court or other tribunal considers justified by all the circumstances including the antiquity of the tendered document the status of the person by whom and the purpose for which it was made or compiled and the custody in which it has been kept and from which it is produced.”

 

20. There is no further evidence of user prior to the end of the 19 ^th century. It is clear from the documentary evidence that has been produced that the road known as Summerway was a road through the Tredegar Estate, and it is clear from the Great Western Railways No.1 Act 1895 that it was being treated as part of the Tredegar Estate at that time. It did not lead beyond the middle of that estate, and it appears to me that it was probably constructed by the owner of that estate to provide access for its tenants and others to the various parts of the estate. There is no evidence of any user for any other purpose than to access those parts of the estate.

 

21. In Katherine Austin’s Case, 2 Vent.186, Baron Hale stated “If a way lead to a market, and were a way for all travellers, and did communicate with a great road, &c. it is a highway; but if it lead only to a church, to a private house or village, or to fields, ther it is a private way. But ‘tis a matter of fact and much depends upon common reputation. If it be a publick way of common right, the parish is to repair it, unless a particular person be obliged by prescription or custom.” As late as the middle of the 19 ^th century, the need for a public terminus at each end was considered as a necessary characteristic of a highway ( Campbell v Lang, (1853) 1 Eq Rep 8; Young v Cuthbertson, (1854) 1 Macq.455). This way ended at a private field and passed wholly through the Tredegar Estate.

 

22. It appears to me to be inherently improbable that the local inhabitants would have contributed to the repair and upkeep of the road, or that there would have been any intention on the part of the Tredegar Estate to dedicate it as a public highway, or that the public at large would have regarded it as a public highway. On the other hand the 1831 plan and schedule clearly indicate that Thomas Morris was treating it as a public road, and it would appear from the catalogue of documents relating to the Monmouthshire Court of Sewers in the Gwent Record Office that Thomas Morris had been commissioned to measure and map the whole of the level lands in 1827 and that a clerk was to enquire and report whether an Act of Parliament could be obtained to regulate the practice of the Court of Sewers for Caldicot and Wentlooge. There is, however, no evidence before me as to the status of Thomas Morris’s report or of any charge actually being levied on the basis that this was a public highway, or any explanation why there is no evidence of any record of any charges being paid in respect of the road despite the extensive public records in the Gwent Record Office Catalogue.

 

23. While the road is described as a parish road in the 1845 Act, it is described in 1895 as an occupation road owned by Lord Tredegar. The 1910 documents show an allowance being made in valuing adjoining land for public rights of way or user along the road, but I am unclear why such a deduction should have been made in respect of 211 and whether it would make any difference to the deduction if the route was an occupation road with no public rights of way. What must have been extensive research into old public records has produced only three indications over more than 150 years that this lane was a public highway, and at least one indication that it was not. It has failed to produce a single example of the lane being maintained at public expense and, until the creation of the alleged footpath running south to the Coast Road, no basis on which any member of the public could access the lane except to get to adjoining properties within the Tredegar Estate. Further while the physical presence of a footpath is recorded from 1901, it appears to have been across open fields, and there is no evidence or allegation of its use by the public until after the Second World War.

 

24. I also note that the local highway authority, in carrying out its survey of all lands in its area over which a public right of way existed, pursuant to section 27 of the National Parks and Access to the Countryside Act 1949, which would have been done in the early 1950’s and would have been available first as a draft map, and would have been available at the time for inspection by the public, must have had no record of the lane as a public highway, although one would have expected there to have been continuing records had the lane been correctly designated as a public highway in the old records that I have referred to. Nor is there any suggestion of any claim by anybody at any time for its inclusion despite claims by Mr. Cutter’s witnesses, to which I shall come in more detail, that the lane was being used at the time by the local hunt and by local farmers and others as a public right of way.

 

25. Further, I can see no sensible reason why Lord Tredegar or the Tredegar Estate should have dedicated this route as a public highway, or what circumstances can have led to such a dedication being inferred. Neither they nor their tenants can have had any interest in the public at large using the route, nor is there any basis on which any member of the public would have used this route except to visit one of the properties that adjoined it, which properties all formed part of the Tredegar Estate.

 

26. On balance, therefore, and bearing in mind that it was described as belonging to Lord Tredegar in 1895, I am not satisfied that this road was dedicated as a public highway either expressly or by inference from its user by members of the public in or prior to 1910. Indeed there is no evidence of actual user by members of the public prior to that time. While it may have been possible to infer such user if the lane had regularly been described in public documents as a public highway, or if it provided access from the Coast Road to Ty Mawr Lane, there are only two or three indications over a period of nearly 80 years between 1831 and 1910 that it may be a public highway, and there was also the counter-indication in the 1895 Act.

 

The history since 1910

27. There is, as I have indicated, no evidence of user by the public until after the Second World War beyond inferences which might have been drawn from the documentation to which I have referred. Mr. Cutter included in his papers a witness statement from Mr. Godfrey Ivins, who was born in 1912 and who stated in the statement that he remembered seeing a tractor in the lane when 14 or 15 years old – he had never previously seen a tractor – and he also stated that he remembered a big steam engine getting stuck in the lane to the south of the railway bridge a year or two later, although he simply speculated as to how it came to be there. An attempt was made following the site view to take Mr. Ivins evidence at his home. Unfortunately, he proved to be very deaf and had very poor eyesight. Also, he was not having a good day. He was not able to understand the questions put to him and while I can accept that on two occasions in the 1920’s he saw vehicles in the lane, this does not assist me to decide whether they were there for purposes connected with the adjoining fields or because they were using the lane as a public highway. In addition, there is no evidence as to where on the lane the tractor was and the big steam engine was to the south of the railway bridge and there is nothing to suggest that it could have used the lane as a shortcut at least along the part with which Mr. Cutter is concerned, since it led nowhere except to a footpath.

 

28. The only other evidence as to user by the public, as opposed to use by farmers on adjacent land and those wishing to go to and from that land, was limited evidence to which I shall come that it was used by locals going shooting or fishing, that it was used by the local hunt and that when there was a cattle market at Marshfield, just to the north of Ty Mawr Lane, farmers bringing cattle along the Coast Road would use the road as a short cut to the market. There was no evidence as to when the market began. There is some limited evidence that it had ceased around the early 1950’s.

 

29. It is clear that the lane has not been usable by members of the public for at least 20 years. There is a high locked gate across the entrance from Ty Mawr Lane which has been there for many years. There is another high gate across the lane at the southern side of the railway line, which Mr. Cutter stated he had installed in 1991 to stop trespassers, gypsies and fly tipping. It does not appear to have concerned him that he was also preventing the public from using what he claims to have been a public highway. It used to be able to open by 18 inches to squeeze through on foot but could not be opened further because of a concrete bollard which Mr. Cutter placed there in about 1994. More recently he has chained the gate to prevent any access at all.

 

30. The culvert across a reen on Mr. Cutter’s land fell into disrepair and was dug up by Mr. Cutter’s father, Mr. William Cutter. By taking it out, Mr. William Cutter again interfered with any right of the public to use the lane, and it plainly did not occur to anybody to suggest to the highway authority that it should repair the culvert at public expense. In the early 1980’s, Philip Scrivens, the then owner of Mrs. Perrott’s land on either side of the lane, took down the fencing on either side, and erected gates at either end. In the early 1990’s he dug up large parts of the lane to form parts of three lakes which he created at the time as part of a planned golf course which in the event was never completed. Again, this development, which appears to have been carried out with planning permission, was wholly inconsistent with the lane being a public right of way.

 

31. In the process of digging the lakes, that part of the lane between the lakes was cut off from rest of the lane to the west of the lakes, and to a more limited extent it was cut off from the land to the east of the lakes. It was only accessible with vehicles from Philip Scrivens’ land. The remaining two parts, between the lakes and the western and eastern gates were accessible through the gates, but by erecting the gates and taking down the fences separating the lane from his fields, Philip Scrivens made it plain to the world that he was taking possession of that part of the lane, was treating it as his own and was excluding anybody else from it so far as he was able to do so. That position was re-inforced by the creation of the lakes.

 

32. On 3 December 2002, Philip Scrivens also made a statutory declaration that since 1979 he had treated and used the land forming the lane within his title in exactly the same way as, and as part of, his adjoining land, that it was bounded by ditches and that no access or egress had been exercised throughout his period of ownership by any other party. The land had been farmed by Mrs. Perrott and her late husband as Philip Scrivens’ tenants together with the adjoining fields into which it had been absorbed. Most of the lane had disappeared and it is now simply parts of various fields or lies overgrown. There is no longer any sign of the footpath from the Coast Road at least where it used to join the lane. Mr. and Mrs. Perrott bought the land from Philip Scrivens, as I have already indicated, in 2004, and their title plainly included his possessory title to the three remaining parts of the old lane divided by the two lakes which had been dug across it.

 

33. In those circumstances, it is surprising to find in the trial bundle an unsigned statement of Philip Scrivens which had been sent to the Applicant’s solicitors under cover of a letter from Mr. Cutter’s solicitors dated 6 June 2011 in which Philip Scrivens was to state that his statutory declaration made on 3 June 2002 was inaccurate. No such statutory declaration was in evidence, only that of 3 December 2002 to which I have referred. Philip Scrivens had stated in December 2002 that “no access or egress has been exercised throughout my period of ownership by any other party over [that part of the alleged road on his land which he later sold to Mr. and Mrs. Perrott]”. Also, the lakes which he dug in one area, close to the eastern end, covered the whole of the lane, and in another area covered about half of it. Yet in his draft statement, presumably prepared on instructions and sent to Mrs. Perrott’s solicitors as evidence of the lane being a public highway, it is said that “It was always a public road” and that Philip Scrivens “expected and intended that it should remain as such when I sold the lakes and other land to the Cutters on 13 ^th May 2010”. It is not surprising that Mr. Philip Scrivens was not included amongst Mr. Cutter’s witnesses at the hearing. His actions and his statutory declaration of December 2002 were wholly incompatible with the belief alleged in the draft statement.

 

34. While there is access to what is left of the lane across tracks belonging to Mr. Cutter and other farmers over which the public have no rights of access, Mr. Cutter at least made a point in his evidence of explaining that when he found walkers coming down his track, after access the lane from another private track to the south of the railway line, he would turn them round and send them back the way they came, to trespass again over the other farmer’s land and without any suggestion that there was a public road they might use as an alternative.

 

35. The oldest witness, apart from Mr. Ivins, was Mr. Cutter’s father, Mr. William Cutter, who was born in 1941. His evidence in his witness statement was that he used to farm most of the land which Mr. Cutter now farms. When he bought that land, he claimed, he was told by the vendors that the lane was a public road and he could not stop people from using it. He referred to the lane and similar roads as drovers’ roads. He stated that when he was younger he and others used to hunt along all the drovers’ roads. In oral evidence, he stated that he had ridden with the local farmers’ hunt between about 1953 and 1959 and that he understood that the drovers roads had been constructed when Marshfield Station and the market were going to enable farmers and other people to get stock to market etc. without going along the Coast Road and up Broadway and also for people farming up the track. Marshfield Station would not have been constructed before the railway in the late 1840’s, and it closed in 1959. The only evidence there was as to when the market to the north of the station was operating was the evidence of Mr. John Mostyn Scrivens, that the market ended some time in the early 1950’s and that the pens were still there in the 1950’s.

 

36. Part of the lane where it ran across Mr. Cutter’s land crossed a reen or ditch using what was referred to in the witness statements as a bridge. In fact, as became clear both from the site view and the oral evidence, the ditch was simply culverted at that point and the crossing was over the culvert. Mr. William Cutter stated that he used to take hay off the fields between the reen and another lane to the east, Hawse Lane, and used the lane to get access to those fields for that purpose. He also stated that he used to get access to the lane and the fields by driving up the footpath from the Coast Road to the eastern end of the lane. He claimed in the witness statement to have carried on doing this until about 2004, but in examination in chief at the hearing he corrected this to about 1994. Bearing in mind that the lane had been cut off by Mr. Philip Scrivens’ lakes from the early 1990’s, I am satisfied that his witness statement must have been wrong in this respect.

 

37. I also note that when he did, as he claimed, drive up the footpath from the Coast Road to reach the lane, this was not on the basis that he thought that he was entitled to do so, at any rate without permission of the farmer whose fields he drove across, and indeed he confirmed that he had the permission of the tenant farmer, a Mr. Rees. Further, he confirmed that if he did use the lane before the lakes were constructed, at least from the time that Mr. Philip Scrivens owned the land, he always asked his permission. I note that in that context he regarded Mr. Philip Scrivens as being the owner and occupier of the lane, which also suggests that it was at a very early stage after Mr. Philip Scrivens bought the adjoining land that he removed the fences cutting off the lane and incorporated it into his land in a way that made it clear to Mr. William Cutter that he was treating it as his land in his occupation.

 

38. Mr. William Cutter also stated in his statement that Mr. Philip Scrivens used to use the culvert over the reen on Mr. William Cutter’s land to bring silage from Mr. William Cutter’s land onto his own land. He claimed that the lane was always known as a public road. The culvert over the reen on Mr. Cutter’s land is now long gone, and Mr. William Cutter stated in his witness statement that he believed he knocked it down to stop his stock straying onto Mr. Philip Scrivens’ land. He thought in his statement that this was in about 2004. I would observe that this was a surprising thing to do if he believed that the lane was a public road as it would stop the public from using it. By contrast, in cross-examination, Mr. William Cutter stated that he had demolished the culvert because it had fallen in through lack of repair and he had instructed it should be pulled out because it was a danger to cattle who could try to cross it and break their legs. He still thought it was in about 2004 that he had pulled the culvert up, but he could have been wrong about the date. He did not know why he had got the reason for removing the culvert wrong in the witness statement. Before he pulled it up, you could still walk across it, but he did not feel any need for it once Mr. and Mrs. Perrott had acquired their farm. He could not remember how long it was after the culvert fell in before he pulled it up, although if it was really a danger to cattle and he or his neighbours had cattle, one would have expected him to have taken early steps to avoid the danger.

 

39. Mr. William Cutter went on to say that he and his son had bought further land from Philip Scrivens in 2010 and that one of the two means of access to it was via the lane, which he calls “the public road”. He was unable to remember when the railway bridge had been blocked off, although he did at one point say that the gate by the railway bridge had been put there by his son.

 

40. Finally with regard to Mr. William Cutter’s evidence, I note that most of his evidence, like that of other witnesses, regarding user of the lane in recent memory, concerned user in connection with work being done at one or more properties adjoining the lane, and as such provide no evidence of general public user from which it is possible to infer its dedication as a public highway.

 

41. The next oldest witness for Mr. Cutter was John Mostyn Scrivens, the brother of Philip Scrivens. He stated in his witness statement that he was 63 years old. He had hunted with the local farmers’ hunt between the ages of about 8 and 10, which would have been about 1957-1959. They would “go down through the drove roads.” However, in cross-examination he could not recall whether the lane was a drove road.

 

42. In his witness statement he stated that he had lived in the area all his life and was familiar with the roads and tracks. He stated that when he was young there was still a loading bay at Marshfield Station as well as a bay for loading cattle onto railway tracks and a cattle market – the Black Town Market. There were 37 milking farmers on the moor. They used to come up from the Coast Road to Brynglas and then take the track up from there to the lane, which he called the public road, and so on to Marshfield and they would bring anything they bought back with them.

 

43. However, in cross-examination, he stated that he could not remember the cattle market but could remember the pens. He had done research to arrive at the number of about 37 farmers. He stated that the market had closed some time in the 1950’s. It is apparent therefore that he had no personal knowledge at all of anybody using the lane to get access to a market that he could not remember and no source of his alleged knowledge was given. Further, in paragraph 4 of his witness statement, he states that he first knew the lane, or at least that part of it now occupied by Mrs. Perrott, in the mid-1960’s, which would appear to rule out his having hunted along it in the 1950’s.

 

44. He further stated that people continued to use the lane at least on foot until the 1980’s. In his witness statement he referred to members of the public parking their cars and walking their dogs, although it was never made clear where they parked the cars or where on the footpath or lane he saw them walking their dogs. Given that he was living at the time close to the southern end of the footpath on the Coast Road, it appears to me most likely that if he did see this happening, it was on the Coast Road and what he saw was people walking on the footpath across Mr. Rees’s land, although I note that he also used to help the farmer at Ty Coch, a farm close to the Coast Road, before his brother acquired the lease from the University of Wales in 1979 and then bought it (I note that according to Philip Scrivens, he bought the land in 1979). People stopped walking their dogs about the time his brother bought Ty Coch.

 

45. When his brother acquired his land, the lane was segregated with barbed wire on either side as it had been since John Mostyn Scrivens first knew it in the mid-1960’s. His brother took the barbed wire down so that his cattle could range freely on his land. There were gates at the western and eastern ends of the lane at points he marked on the plan annexed to his witness statement which prevented the cattle getting out onto Mr. William Cutter’s land to the west. I note that one of the gates would have had that effect but the other prevented access to the land to the east.

 

46. In paragraph 6 of his witness statement, John Mostyn Scrivens stated that Peter Rees used to graze stock on the land to the north of Mrs. Perrott’s land. Other farmers called Parks would not allow him to move his animals across their land to the loading pens in the old market at Marshfield, so they had to be driven along the lane over the now removed culvert and then down to the Coast Road where there was another loading pen. This, he stated, carried on until his brother dug out the ponds. In his evidence in cross-examination, however, he stated that Mr. Rees did not graze on that land, and that he did not have to go over the Parks’ land to reach Ty Mawr road and the Marshfield Pens. I also note that whoever did use that land, if they came onto the lane to the north of the removed culvert could reach the pens by going north along the lane to the Ty Mawr road more easily that by going along the lane and down the footpath to the Coast Road, provided always of course that that route had not already been closed off.

 

47. He then stated in cross-examination that the reference to Mr. Rees was a mistake and he should have referred to Dick Atkins, but stated in addition that Mr. Atkins had stopped taking his cattle along the route he had previously said Mr. Rees had used well before his brother dug out the ponds, which he said was about 1992/3. Mr. Atkins could have stopped in 1977 and probably stopped farming in the area before 1979/80. He did not know whether Mr. Atkins had permission to use the lane as he had. He also said that everything stopped once the culvert was dug out but he did not know who had done this or when.

 

48. It became plain in the course of his evidence that John Mostyn Scrivens was motivated by considerable hostility towards Mrs. Perrott for reasons which he elected not to divulge and given that and the considerable inconsistencies and contradictions in his evidence, I am unable to attach any weight to it.

 

49. Mr. Philip James Ward is 58 years old and has lived in the area since he was an infant. He gave evidence mainly of his use of the lane for about 5 years in the 1970’s when he was renting grass keep from Mr. Atkins immediately to the north of the lane. His user of the lane was what one would expect if it was an estate road for the benefit of adjoining owners and tenants on the estate. I note that he appears to have gained access to the lane by crossing the fields from the Coast Road with cattle and a tractor and trailer using the line of the old footpath, despite there being no suggestion that that was a public highway or anything more than a footpath at best. He thought, he said, that he was using a public right of way because other people used it and because Mr. Atkins told him that was the way to go.

 

50. Mr. Andrew Meakin is 41 years old. He runs a timber business where the lane north of the railway line joins the Ty Mawr road. He had been involved in the business since 1985. He had used the lane, alone or with others, to go fishing below the Coast Road as a child in about 1983/84. After that he had hardly ever gone down, if at all. He remembered the old culvert, although he thought of it as a bridge. He said it was gone in the early 1980’s. He would see land rovers tractors and trailers going up and down the lane. He would also see them from the timber yard, although he did not know how far down they went. The people going down would be land owners or going shooting for ducks and rabbits. He did not know who they were or where they were going. He knew of the gate to the south of the railway bridge which blocked access which had been there from at least the mid-1990’s. While I accept Mr. Meakin’s evidence, it does not assist Mr. Cutter. The fact that he and others had used the lane when he was a child, apparently on foot, to get to the Coast Road, using an apparently undedicated footpath from the lane to the Coast Road, for at most 2 years in the 1980’s is not evidence of dedication of the lane as a public highway. Use by adjoining landowners is consistent with its status as an estate road, as is user to go shooting for ducks and rabbits on that land, which I would infer would be with the permission of the landowner.

 

51. Mr. Ernest Cousins gave evidence in his witness statement that he used to work in the 1970’s and early 1980’s for the local drainage board, which dredged the reens, including Summerway Reen and deposited the spoil on the banks. When it was dried out, he was employed to spread the spoil around the nearby fields. He also did a lot of private work for local farmers. While Mr. Rees rented Mrs. Perrott’s land, from the late 1960’s he used to work for him and he was later employed by Philip Scrivens, in about 1991 he said, to assist with the excavation of the lakes and to raise humps on the uncompleted golf course on what is now Mrs. Perrott’s land, as well as on another golf course in the area. He would gain access from the Ty Mawr road and also from the Coast Road. He also shot rabbits in the area including what became Philip Scriven’s land and Mrs. Perrott’s land and he had the duck shooting on the lakes of the uncompleted golf course. He always believed, he said in his witness statement, that the lane was a public right of way, a belief which seems hard to reconcile with his digging it up to create lakes for Philip Scrivens.

 

52. Mr. Cousins confirmed that everything he did was with the permission of the landowners or tenants. Again, I can see nothing in this evidence to suggest that the road was being used by him as anything other than an estate road for the benefit of the adjoining owners and tenants.

 

53. Mr. Richard Hugh Crouch also gave evidence as to his use of the lane in the early 1980’s, gaining access over the railway bridge, but this was also to get to and from an adjoining property. He thought that both the route from Ty Mawr road and that from the Coast Road were public rights of way, but nobody told him that was the case. Mr. Howard Henry Turner also provided a witness statement to the same effect, but did not attend for cross-examination. Again his evidence of user relates to user to get to and from an adjoining property. It also involves taking a tractor and trailer along the route between the Coast Road and the lane, which was not a route over which it was suggested that there was any public right, unless perhaps as a footpath, despite Mr. Turner’s apparent belief to the contrary.

 

54. Finally, the Respondent, Mr. Cutter, gave evidence. He is 45 years old and has lived in the area all his life. He is clear that Philip Scrivens rented his farm from 1979 to 1980 and then bought it in 1981. He confirms that the farm was split by the lane which was fenced off with barbed wire. It was from around this time that Mr. Cutter first knew the lane. Philip Scrivens took down the barbed wire fence so that his cattle could roam freely. He also confirmed the presence of gates in the positions described by John Mostyn Scrivens, which prevented cattle from escaping.

 

55. He then repeats in his witness statement the evidence of John Mostyn Scrivens that Peter Rees used to graze stock on the ground to the north of what is now Mrs. Perrott’s land, although John Mostyn Scrivens has now confirmed that this was not the case. He continues by stating that he had been told by his father the same story that John Mostyn Scrivens recounted in his witness statement about the Parks not allowing Mr. Rees to take his cattle over their land to the Marshfield loading pens. I note that his father does not give evidence as to this and that John Mostyn Scrivens has changed his account as set out above. Although Mr. Cutter asserted that he was wrong and it was Mr. Rees, not Mr. Atkins, he also made it clear that Mr. Rees was gone by the mid-1980’s and that he was relying in this respect and in many others on what others had told him. I can only express surprise that a solicitor preparing a witness statement should fail to ensure that his client distinguished in his evidence between what he knew and what he had been told.

 

56. Again, in contrast to John Mostyn Scrivens’ new evidence but in his statement, Mr. Cutter states (by this time seemingly from his own knowledge as he was working on his father’s farm, and was using the lane and the path from the Coast Road, from the age of 15) that Mr. Rees continued to act in this way until the ponds were dug by Philip Scrivens. This was despite the fact that he also stated in cross-examination that Mr. Rees was gone by the mid-1980’s. Mr. Cutter went on to give evidence of his own use of the route from the Coast Road to the Ty Mawr road to get from a farm to the south of the Coast Road to one off the Ty Mawr road, and also of the use of the route by members of the public until his father removed the culvert.

 

57. Mr. Cutter had used the lanes as he described them to drive a tractor when he was only 15 years old. He used them, as he said, because he did not have a driving licence, suggesting either that he was prepared to break the law where he could not be found out or that he did not regard the lanes he drove on as public highways. Once he had his driving licence in 1984 or 1985 he stopped using them except when he needed to when mowing and bailing 3 to 4 times a season. In 1991 he had put the gate at the south side of the railway bridge to stop trespassers. He also put a concrete bollard by the gate in the mid-1990’s which prevented it opening more than 18 inches. The aim had been to restrict and block the public. More recently he had also chained the gate. Despite having done all this, he claimed to have been told by his father from the time he acquired the farm in about 1994 that it was a public right of way.

 

58. In the end, I do not find credible the evidence given by and on behalf of Mr. Cutter as to the way in which the lane was regarded as a public right of way and was used as such together with the track from the Coast Road. That evidence is full of inconsistencies to which I have already referred. The lane has been blocked off by Mr. Cutter and his father, by Philip Scrivens and by others without any apparent objection by anybody. It had been made impassable in several places and has disappeared elsewhere. The alleged user by the hunt and by the 37 farmers coming to market from the Coast Road would have involved the hunt and the farmers also using the footpath across open fields from the Coast Road to the lane, or some other route to and from the undisputed highway. There is no support for such extensive user from the aerial photographs in evidence which were taken on 13 May 1946 and 25 August 1947. Further, such regular user across the open fields through which the footpath ran would have destroyed crops in the fields if they were arable, or, if there were used for cattle, would have meant that on market and hunt days the cattle would need to have been removed from the fields in question.

 

59. It is probable that the footpath was occasionally used with the consent of the farmer owning or letting the fields over which it ran, to enable those wishing to access the lane to get to properties adjoining it from the Coast Road with vehicles, and it may be that on odd occasions it was also used without seeking the farmer’s consent. There may even have been the odd occasion when a farmer took cattle along the footpath and the lane to the market with the consent of the owner or tenant of the fields across which the footpath ran. It is also possible that on odd occasions a few local residents would simply use the lane and the footpath to go shooting or fishing to the south of the Coast Road or to walk their dogs. I am not satisfied, however, that such user was remotely sufficient to enable any presumption to be made of dedication of the route as even a public footpath, let alone a public highway to be used with livestock and vehicles.

 

60. I conclude that the lane has never been dedicated as a public right of way, still less one maintained at the public expense, and that the public have no rights over it.

 

Possession of the disputed strip

61. In my judgment Philip Scrivens took possession of the disputed strip in the early 1980’s when he took down the barbed wire which separated the disputed strip from his fields on either side and incorporated the disputed strip into his fields. If there was any doubt about that, it was removed when he dug the lakes in the early 1990’s. His possessory title and possession were transferred to Mr. and Mrs. Perrott. They and Philip Scrivens before them have been in adverse possession of the disputed strip for about 30 years and Mrs Perrott has clearly established that she has a possessory title to the disputed strip.

 

By Order of The Adjudicator to HM Land Registry

 

 

dated the 18 ^th day of October 2012