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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> (1) Lawrence Neil Tomlinson (2) Phoebe Lucy Tomlinson v Elaine Margaret Foster (Estoppel) [2012] EWLandRA 2011_1049 (20 December 2012)
URL: http://www.bailii.org/ew/cases/EWLandRA/2012/2011_1049.html
Cite as: [2012] EWLandRA 2011_1049
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REF/2011/1049
THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
LAWRENCE NEIL TOMLINSON
PHOEBE LUCY TOMLINSON
APPLICANTS
and
ELAINE MARGARET FOSTER
RESPONDENT
Property Address: Land at Bilberry Farm, Norwood, Otley, North Yorkshire
Title Number: NYK387944 (pending title)
Before: Mr Owen Rhys sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Phoenix House, Rushden Avenue, Bradford
On: 8 th, 9 th and 10 th October 2012
Applicant representation: Mr Martin Dray of Counsel instructed by Freeth Cartwright Solicitors
Respondent representation: Mr Peter Petts of Counsel instructed by Ford & Warren Solicitors
__________________________________________________________________________________
D E C I S I O N
__________________________________________________________________________________
KEYWORDS – Adverse possession – Schedule 6 of the Land Registration Act 2002 – factual possession – intention to possess – tree planting – paragraph 5 conditions – estoppel – unconscionable conduct – reasonable belief in ownership
CITATIONS
Lord St. Leonards v Ashburner (1870) 21 L.T. 595
Powell v McFarlane (1979) 38 P & CR 452
J.A Pye (Oxford) Ltd v Graham & Another [2003] 1 AC 419
Megarry & Wade’s Law of Real Property (8 th ed.) at 16-001 to 16-033.
Jourdan and Radley-Gardner, Adverse Possession (2 nd ed.) at para. 13-30 et seq
Zarb v Parry [2011] EWCA Civ 1306
IAM Group Ltd v Chowdrey [2012] EW CA Civ 505
I N D E X
SECTION 1 (The Parties and the Disputed Land) Pages 2 to 4
SECTION 2 (Events from 1997 to 2008) Pages 4 to 10
SECTION 3 (The Wind Turbine) Pages 10 to 15
SECTION 4 (Events leading to the Application) Pages 15 to 17
SECTION 5 (The Legal Framework) Pages 18 to 21
SECTION 6 (The Applicants’ Evidence) Pages 21 to 26
SECTION 7 (The Respondent’s Evidence) Pages 27 to 31
SECTION 8 (Impressions of the main witnesses) Pages 31 to 36
SECTION 9 (Issues of fact to be resolved) Pages 36 to 52
SECTION 10 (Conclusions on the legal issues) Pages 52 to 65
SECTION 11 (Summary of conclusions) Page 65
SECTION 1 – THE PARTIES AND THE DISPUTED LAND
INTRODUCTION
1. This is a dispute between neighbours, both of whom have the great good fortune to live in an area of outstanding natural beauty on the hills above Otley, in North Yorkshire, with a magnificent view of the Washburn Valley southwards towards Wharfedale. Until the unfortunate series of events that unfolded from 2008 onwards, the neighbours lived in peace and harmony. Mr Tomlinson, one of the Applicants, colourfully described their relationship as “happy campers”. Mrs Foster, the Respondent, said that “I thought they [the Tomlinsons] were the best neighbours one could have”. Leonie Foster, her daughter, said that she babysat for the Tomlinsons, and they used to come over at Christmas. One hesitates to use the word tragedy to describe what is essentially a routine property dispute, but there is no doubt that the relationship between the parties has been irrevocably poisoned. As I have said, the parties live in a remote and beautiful part of the countryside, and are understandably both very attached to their homes. However, manifestly this dispute and its consequences must seriously detract from the enjoyment of their respective homes, and of the peace and quiet that they no doubt expected when they chose the location. As I shall explain, in a sense this property dispute is the outcome of another, perhaps even more bitter dispute between them, which not only provides a background to the application referred to the Adjudicator, but also becomes relevant to the decision in a variety of ways.
THE AFFECTED TITLES
2. The two properties in question are known as Bilberry Farm and Brass Castle, Top Lane, Norwood, near Otley. Mrs Tomlinson is the owner of Bilberry Farm (Title number NYK190478) and Mrs Foster the sole owner of Brass Castle (Title number NYK165844), her former husband having transferred his share to her in February 2010. Top Lane – as the name suggests – runs along the summit of a ridge more or less directly in an east-west alignment. The southern slope of the ridge is steep towards the top, and is shown on maps as Norwood Edge. Both houses stand on flattish ground at the bottom of the steepest part of the slope. Both Bilberry Farm and Brass Castle are substantial, stone-built houses, Bilberry Farm having been extended and added to quite considerably, with formal gardens and outbuildings. They are both accessed by a hard surfaced drive that comes off Top Lane (“the Drive”), and runs south-west (diagonally) down Norwood Edge. Brass Castle is the first house to be reached, entered through large double gates on the south side of the Drive. Past Brass Castle the Drive turns sharply to the south and then forks. One section of the Drive turns west and enters the yard of Bilberry Farm itself. The other section continues south from the fork, and then turns due west to access a hard standing area and large barn or workshop which stands below and to the west of the house.
THE PHYSICAL APPEARANCE OF THE LAND
3. The general appearance and topography of the surrounding land is as follows. As one enters the drive off Top Lane, there is a relatively flat, grassed field on the right hand side, bounded on the north by a drystone wall that runs alongside Top Lane itself. This is the Respondent’s Paddock. There is a fence separating the Paddock from the Drive, and a field gate is set into this fence close to the junction with Top Lane. The fence runs parallel with the Drive to a point approximately two-thirds of the way towards the entrance to Brass Castle. Here the line of the fence changes. For a short distance it runs in a north-westerly direction, and then it turns and runs almost due west. It then turns 90 degrees to the north. Prior to 2011 the fence then continued as far as Top Lane itself, the last section of fence running up the steep bank that lies just to the south of the road. The alignment of the fence was altered by Mrs Foster in 2011, for reasons that I shall explain. Currently, the western Paddock fence turns eastwards at the bottom of the bank below Top Lane, then runs parallel with Top Lane for a short distance, and then turns north to join Top Lane. This takes a rectangular bite out of the north-western corner of the Paddock. This area is, as I have said, quite steep, but is open and covered by rough grass. To the west of the Paddock is a conifer plantation, on the south side of Top Lane, that occupies part of the area between the western fence of the Paddock (as it was before the line was varied in 2011) and another drystone wall that runs south at a right angle to Top Lane, in a line that ends up to the west of Bilberry Farm. The conifer plantation I have referred to forms a very rough “C” shape. The top of the C consists of a roughly 20 metre deep strip of woodland that occupies the area between the northern section of the western Paddock fence (as it was before 2011) and the stone wall, south of and parallel with Top Lane. The middle section of the C follows the north-south line of drystone wall to the west running from Top Lane to Bilberry Farm. The bottom of the C is a small spur of woodland that extends from the drystone wall eastwards for a short distance north of the gardens of Bilberry Farm. The northern side of this last piece of woodland is enclosed by a rabbit wire fence into which a small gate has been inserted. Although Counsel described the plantation as “C-shaped”, it might be more accurate to say that it is “E” shaped, but lacking the central bar of the “E”. This C (or E) -shaped piece of land, in Mrs Tomlinson’s ownership, is the land that will be defined as “the Screening Land” in paragraph 8 below. To the west of the drystone wall and to the south of Top Lane, is a well-established wood, formed of large, mature conifers, which since 2004 has been in the Applicants’ ownership.
4. In terms of topography, the entire area between Top Lane and the two houses in question is on a slope. The flattest area is that which now forms the Paddock (as currently fenced). To the south and west of the Paddock fence the land is quite steep, and covered in gorse and what appear to be juniper, heather and other low-growing shrubs. This land can be accessed from below, by means of a gate set into the fence running along the north side of the Drive, close to the entrance to Brass Castle. Although the land is quite steep, it is perfectly possible to walk up and down it, as was demonstrated by all those attending at the Site Visit. The land in dispute between the parties is an area at the top of the steepest part of the slope, which can be identified by the fact that it consists of a clean felled area of former conifer plantation. Its south-eastern point is the south-western corner of the Paddock fence. Its north-eastern corner is marked by the concrete base and steel tower of a wind turbine, some 18 metres in height (situated at the southern edge of the northern section of the “C”). Its northern and western boundary is marked by the outer (southern and eastern) face of the trees within the C-shaped plantation that I have described. The south-western extremity is about half-way down the central section of the C. In effect, this felled area fills in the northern part of the central section of the “C” or “E”. Apart from the western Paddock fence, there are no physical boundaries to identify this area on the ground, but it can be identified by its appearance as felled woodland. This area (“the Disputed Land”) has been allocated the provisional title number NYK387944, and is the subject-matter of the Tomlinsons’ application dated 24 th June 2011 (“the Application”) which was referred to the Adjudicator on 25 th October 2011.
SECTION 2 – EVENTS FROM 1997 TO 2008
NEGOTIATIONS BETWEEN MRS JARVIS AND MR TOMLINSON
5. It is a feature of this case that although Mrs Tomlinson is the legal owner of Bilberry Farm and the Screening Land (as defined below), all relevant dealings relating to this land have been conducted exclusively by her husband. On 16 th May 1997 Mrs Tomlinson was registered as the first proprietor of Bilberry Farm. At that time Brass Castle was registered in the name of Mrs Elizabeth Jarvis, and the Drive followed a different route. It entered Bilberry Farm from the north, rather than from the east as it does today, and for various reasons Mr Tomlinson wished to alter this. Bilberry Farm enjoyed a right of way over the original drive, which was partially owned by Brass Castle, and it was therefore necessary to obtain the Jarvises agreement to changing the route of the drive. He therefore entered into discussions, initially with Mr Jarvis, with a view to agreeing an alteration in the line of the Drive, and various ancillary matters. The discussions were referred to in a letter from Mr Tomlinson to Mr and Mrs Jarvis – undated but probably sent in late August or early September 1997 – which includes the following passages: “Please find attached plan of proposed drive alterations and the area behind Bilberry Farm that we would like to plant. I hope the plans are acceptable, from talking with Paul I understand that he would be prepared to sell a small parcel of land behind Bilberry Farm that would greatly increase our privacy from Top Lane. However, I also appreciate that Paul wishes to control the land which is overlooked from Brass Castle. As asked I have marked on a digitised version of the ordnance survey map the area outlined above…..”. It is not clear what plan was used, but it may be noted that it was Mr Tomlinson who first identified the area to be included in the sale. The agreement was embodied in written Heads of Agreement, which were probably drafted by Mrs Jarvis’s solicitors Lupton Fawcett in or about September 1997. Although Mr Tomlinson was at pains to establish that the discussions with the Mr Jarvis were informal and friendly, it is manifest that both parties instructed solicitors and formal documentation was drawn up. A number of terms were agreed, primarily relating to the route of the drive (which necessitated the variation of an existing right of way), screening the new route with trees, and further screening of Calor gas tanks close Brass Castle. Item number 8 related to the sale of “the irregular shaped plot of land on the western boundary of [Brass Castle]….”. Two plans, numbered 1 and 2, were attached to the document. The description of the plans within the document indicates that they are the two plans that were eventually incorporated into the Transfer dated 4 th June 1998 referred to below. It seems that Mr Jarvis and Mr Tomlinson agreed that the land to be transferred out of Brass Castle would be subject to restrictive covenants – this may be reflected in the reference in Mr Tomlinson’s letter to Paul Jarvis retaining control of the land to be sold.
6. As regards the land to be transferred to the Tomlinsons, the underlying purpose was to allow them to create a natural screen on the north side of their house, so that it would not be visible from Top Lane. Since both houses are situated well below the level of the road, and visible from it, it was entirely understandable that the Tomlinsons would want to increase their privacy by planting a belt of trees. This would also potentially benefit Brass Castle, for the same reason. Clearly, however, Mrs Jarvis was also concerned to ensure that nothing was built on the land to be transferred. Hence the agreement with Mr Tomlinson on the terms of a restrictive covenant, limiting the use of the land to recreational purposes, and stipulating that no building should be erected without her prior written consent. Although this term was not included in the written Heads of Agreement, it is apparent from Lupton Fawcett’s letters dated 11 th and 28 th November 1997 that this had been agreed, and was indeed subsequently incorporated in the Transfer, as will appear in due course. The re-alignment of the Drive and associated works were carried out during the Winter and early Spring of 1997/98, and, according to a letter sent by Mr Jarvis to Lupton Fawcett on 24 th April 1998, the work was completed by that date.
7. Prior to the execution of the Transfer, it appears that Mrs Jarvis and Mr Tomlinson met on site with a view to agreeing the boundaries of the screening area to be transferred. An Attendance Note dated 30 th March 1998 has been produced, recording a telephone conversation between Mrs Jarvis and her solicitor Mr Eaton (ref JCJE). The first paragraph reads as follows: “Liz telephoned to confirm that she has now “walked the land” with Laurence Tomlinson, and they have agreed the boundaries as delineated on the plan. LT has agreed to plant trees along the boundary – on the basis that the trees would be just inside the boundary line as shown on the plan. I confirmed to Liz that, in this case, it would be sensible if they would put down some form of physical markers in order to “stake out” the boundary – preferably on a permanent basis. If necessary, it might be better to have this done by a professional surveyor, if only to remove the possibility of any future uncertainty as to where the boundary line runs and whether the trees were included in LT’s land or in the remaining land belonging to Brass Castle.” The note bears some manuscript additions – “S + P to survey and mark land” and “ James Gloag to phone for survey”. “ S + P” is doubtless a reference to Strutt and Parker, who eventually handled the Sale of Brass Caste to the Fosters. The Note also shows that it was copied to Mrs Jarvis (“EMJ”) and Mr Eaton then confirmed the conversation with Mr Jarvis (“Paul”).
THE TRANSFER OF THE SCREENING LAND
8. Subsequently, by a TP1 dated 29 th May 1998 (“the 1998 Transfer”) Mrs Jarvis transferred to Mrs Tomlinson the land described as “the Property”, being “that part of the Transferor’s Land edged red on Plan 1”. This was a transfer of part of NYK165844 (Brass Castle), hence the use of a TP1. The plan attached to the 1998 Transfer is dated June 1997, and was drawn up by someone in Mr Tomlinson’s office, on his instructions. It shows both Bilberry Farm and Brass Castle, is drawn to a scale of 1:500 and is described as “Bilberry Farm Site Plan”. It shows the line of the original drive, before the alterations made in early 1998. The land subject to the Transfer is hatched, and has the following appearance. It is essentially in three, conjoined, sections, forming the rough “C” (or defective “E”) shape I have mentioned in paragraph 3 above. The northern section is a straight-sided rectangle, much longer east to west than north to south, bounded by Top Lane to the north with the southern boundary running parallel to Top Lane. The central section is also rectangular, again with straight sides, the western being the drystone wall forming the boundary with the wood to the west, with a parallel line to the east. This rectangle is much longer north to south than east to west. The third section – the southern part of the “C” – is a narrow, and irregularly shaped spike of land. Its western edge is formed by the drystone boundary wall, and it then projects eastwards tapering to a point a short distance to the north of Bilberry Farm. The southern boundary of this last piece is an irregular line which follows an existing physical feature such as a hedge or fence. It may be noted that the eastern boundary of the northern section of the “C” lines up with an identifiable point farther south, namely the entrance from the Drive into Bilberry Farm (as it existed before the agreed re-routing). The transferred land therefore follows the shape of the north-western, western and south-western boundaries of Brass Castle at this point, creating an area intended for a relatively narrow belt of planting around the perimeter. The plan does not contain full dimensions, but, as I have said, it is drawn to scale, and it shows the depth of the northern rectangle as being 20 metres, and that of the western (central) rectangle as 15 metres. I infer that this was the plan attached to the Heads of Agreement, and possibly also the plan which Mr Tomlinson enclosed with his original letter to the Jarvises. The plan was signed by Mrs Tomlinson on execution of the 1998 Transfer. I shall refer to the land transferred by the 1998 Transfer as “the Screening Land”. The Disputed Land lies to the south of the northern rectangle, and to the east of the central section of the Screening Land. The 1998 Transfer also contains (in the First Schedule) a modified right of way over the route of the re-aligned Drive, and in the Second Schedule, a covenant in these terms: “Not without the previous consent in writing of the Transferor to erect any building or buildings on the Property nor to use the Property for any purpose other than as recreational land.” This covenant is noted in the Charges Register of NYK205421, which is the Title number allocated to the Screening Land. Mrs Tomlinson was registered as the proprietor of this Title on 1 st July 1998.
BRASS CASTLE IS BOUGHT BY THE FOSTERS
9. In early 1999 Mrs Jarvis put Brass Castle up for sale, and on 11 th March 1999 Strutt & Parker’s Sales Particulars were sent to the Fosters. The house and grounds are shown on a plan – an Ordnance Survey Superplan – onto which the legal boundaries of Brass Castle have been superimposed. The boundaries of the Screening Land, as identified on the Land Registry filed plan, are accurately shown and the land clearly excluded from the sale. The Fosters visited Brass Castle several times before making an offer to buy shortly afterwards. At or around this time, it seems that Mrs Jarvis and Mr Foster met on site in order to identify the area of the Screening Land. Mr Foster marked up the Land Registry title plan of Brass Castle with dimensions given to him by Mrs Jarvis. This showed the length of the northern section as 60 metres and the central section as 70 metres. The depth of the northern section (south to north) was marked as 20 metres.
THE FIRST TREE PLANTING EVENT
10. At or around this time, in or about May 1999, the Applicants planted a number of trees on the Screening Land, and also trees were planted on the Disputed Land. The size and density of these trees, and their exact location, is a matter of dispute, and I shall revert to this issue in due course. On 27 th August 1990 Mrs Jarvis transferred Brass Castle to the Fosters and they became registered as proprietors. I do not believe that I have been told the date of the contract for sale, but presumably it would have been dated not less than four weeks earlier than completion. At all events, during the summer of 1999.
THE CREATION OF THE PADDOCK AND THE FENCE
11. The Fosters had a daughter, Leonie, who was 16 years of age when they moved into Brass Castle. Leonie had been given a retired racehorse, Dino, for her 15 th birthday. It seems that Leonie was not particularly keen on the move, but she was told that a Paddock would be created for Dino at Brass Castle, which was something of an inducement for the move. In due course the Paddock was fenced off from the rest of the Brass Castle land. The difficulty faced by the Fosters was that the land was on a slope, and some of it was seriously unsuitable for keeping a horse. They therefore carved out an area which contained the flattest ground, and had less gorse and other unsuitable undergrowth. This is the area which still comprises the Paddock, apart from the “bite” taken out of the north-western corner. The fence followed the same line as it does today save for this corner. The Fosters used contractors to erect the fence. Mr Foster said in evidence that before the fence was built there was a line of stakes on the ground which echoed the line of the western boundary fence of the Paddock. This is also controversial and I shall return to the point later in this Decision. However, there is no doubt that from mid-2000 onwards, there was a fence separating the Disputed Land from the Paddock. However, the southern edge of the Disputed Land was not fenced off from Brass Castle, and it was (and still is) physically possible to enter it from the gate on the Drive opposite Brass Castle, at least until the tree screen had reached a particular density. The extent to which the Fosters did enter the Disputed Land after 1999, and the date when the trees became too thick to admit passage, are all areas of dispute between the parties.
FURTHER TREE PLANTING
12. The next material event occurred in 2002 – probably in March of that year. It seems that the initial tree planting carried out in 1999 had been only of limited success, and Mr Tomlinson estimated that one-third of all the trees had died. Accordingly, there was a second planting on the Screening Land, and also on the Disputed Land, using younger saplings contained within “Tubex” biodegradable tubes. Although the Applicants allege that they carried out other activities on the Disputed Land, essentially their claim to adverse possession is based upon these two separate planting events. I shall consider the evidence on this point in detail later in this Decision.
THE OFFER TO BUY BRASS CASTLE
13. By 2004 there were matrimonial difficulties between Mr and Mrs Foster. Mr Foster left Brass Castle in 2004 and they were divorced in 2005. The divorce was evidently acrimonious. Mr Tomlinson and Mr Foster remained friends despite this, however, and they are still friends. In October 2007 Mr Tomlinson made an offer to Mr Foster to purchase Brass Castle at a price of £1.5m, which he considered to be a very generous price. The offer was made to Mr Foster, and (according to her) communicated to Mrs Foster for the first time 25 th November 2007, by means of a forwarded text from Mr Tomlinson. The Tomlinsons were intending to carry out very substantial works of remodelling and refurbishment to Bilberry Farm, works which were likely to take a year to complete. Mr Tomlinson wanted to minimise the disruption to his family by moving into Brass Castle while the works were proceeding. Since the Fosters were involved in ancillary relief proceedings and may have been contemplating a sale of the house as a result, Mr Tomlinson no doubt thought that circumstances were propitious. Mr Foster was keen to accept the offer, but not Mrs Foster, who was either unable or unwilling to move from Brass Castle. In the event, therefore, Mr Tomlinson’s offer was rejected. He was obliged to rent another house while the work to Bilberry Farm was carried out throughout the course of 2008. According to Mrs Foster, there was considerable disruption and inconvenience caused to her by the building works at Bilberry Farm with vehicles blocking the driveway and entrance to Brass Castle. It seems that there was a particular incident in December 2008, when she asked Mr Tomlinson to instruct the builders to park on Bilberry Farm, and not to obstruct her entrance. According to her, “he simply moved his Range Rover to obstruct my drive further. I left them to it.” This evidence was not challenged. She also said that the builders caused damage to her gates and wall, and she asked Mrs Tomlinson to pay for this. According to her, Mrs Tomlinson agreed to pay £350, but this was never done. Again, this evidence was not challenged.
SECTION 3 – THE WIND TURBINE
THE WIND TURBINE – THE PLANNING APPLICATION
14. During the course of the building works to Bilberry Farm, on 1 st August 2008 Mr Tomlinson made a planning application to Harrogate Borough Council for the erection of a domestic wind turbine at Bilberry Farm. The application was in fact made by an agent, Mr Sam Dewar, who was employed by one Mr Tomlinson’s companies, LTL Construction Ltd. This company builds and operates care homes, and therefore makes numerous planning applications in the course of its business. Certain features of this application require a mention. First, it was supported by a lengthy Planning Statement, the first paragraph reads as follows: “This statement is submitted on behalf of Lawrence Tomlinson in preparation for the proposed erection of a wind turbine at Bilberry Farm, Norwood, Otley, North Yorkshire. The turbine will provide an affective (sic) renewable source of energy for “Bilberry Farm” and “Brass Castle”. The intention is that this turbine will provide enough electricity to power all facilities at both properties in addition to returning unused power back into the National Grid.” The Statement continues (on page 3) as follows: “ A turbine 18m in height is essential to be able to make full and effective use of the wind currents. This will not only provide enough electric for use at the farm but will also provide an energy source for the adjacent property “Brass Castle ”. This last sentence in printed in bold typeface in the Planning Statement. The information regarding Brass Castle was simply untrue. The scheme had not been discussed with the Mrs Foster, who at this time was one of the joint proprietors of Brass Castle, and she had not agreed to it. It may have been mentioned to Mr Foster. However, as matters stood in 2008, the electricity generated by the turbine was only intended to supply Bilberry Farm. It is also stated in the Planning Statement that “the turbine will have no detrimental impact upon neighbouring properties as the nearest property is over 100 metres away.” According to the Proof of Evidence of Barry Gill, Harrogate’s Chief Planning Enforcement Officer (at C50 onwards in the Bundle and prepared in connection with the Tomlinsons’ appeal against the Enforcement Notice), the nearest property is Brass Castle itself, some 85 metres from the turbine site. Bilberry Farm is more than 100 metres away. It seems that the minimum distance from a residence for the erection of this type of turbine, as recommended by the turbine manufacturer, is 150 metres. In the section of Mr Gill’s Proof dealing with planning harm, this statement appears : “Finally the position of the turbine, facing as it does the main access and egress to Brass Castle, serves as a constant reminder to those occupying Brass Castle of the loss of amenity suffered through the presence and proximity of the turbine”. A visit to the site confirms the detrimental effect of the turbine on the immediate rural scene.
15. Secondly, the location of the turbine, as identified on the application plan, was entirely within the Disputed Land (i.e within the Brass Castle title), some metres to the south of the southern boundary of the Screening Land. This is apparent from the report of David Howarth I Eng FIHE, who prepared a survey for Harrogate Borough Council on 25 th July 2011. The exact distance is, it seems, disputed as between Harrogate Borough Council and Mr Tomlinson. However, Mr Howarth’s detailed survey suggests a distance of some 5 metres, and it is accepted, I think, that the distance is at least 3 metres. Thirdly, Mr Tomlinson’s agent signed Certificate A on the planning application, certifying that the land subject to the application was owned by the Applicant – Mr Tomlinson. This, of course, was also untrue. The land was wholly within the ownership of Mr and Mrs Foster.
PLANNING PERMISSION AND ITS AFTERMATH
16. On 13 th October 2008 Harrogate Borough Council gave planning permission for the erection of the turbine, which was constructed over a period of some months during the Winter and Spring. It was completed by May 2009, and first put into service in June 2009. There is a dispute between the parties as to the extent to which Mrs Foster was aware of the planning application and the intention to build the turbine, and I shall consider the competing evidence in due course. However, it appears from Mr Gill’s Proof of Evidence referred to above, that Mrs Foster initially contacted Harrogate Borough Council and asked it to check the position of the turbine, since it was placed immediately adjacent to a boundary. In May 2009 Mrs Foster asked the Council to check that the turbine was built to the correct size. It is common ground that in June 2009 Mrs Foster complained to Harrogate Borough Council about the planning and notification exercise carried out by the Council in connection with the planning permission. She also made a complaint to the Local Government Ombudsman. Her solicitors, Newtons, also wrote to the Tomlinsons at Bilberry Farm, in a letter dated 19 th June 2009, in which they complained about the noise created by the operation of the turbine, and other matters, including an alleged trespass, and threatened an injunction. The relevant passage reads as follows: “ 2. Trespass due to the location of the turbine. The turbine rotates and crosses above my client’s land. When my client moved into the property, the boundary was marked by stakes and I am informed that you had bought the adjoining land from the people who sold the house to my client and her husband (now divorced). My client arranged for the current fence to be erected and in order to avoid the possibility of a future boundary dispute, gave instructions that the fence should be positioned well into my client’s land. The current position of the turbine is such that it passes over the fence. My client requires that the turbine is moved such that the trespass doesn’t occur………. 4. Trespass by workmen. Your workmen have trespassed on my client’s land during the construction of the turbine, in particular on my client’s bank/hillside, her field and land bordering Top Lane. Your workmen have also blocked my client’s access to her property…….. My client has been informed by you and your workmen that her ex-husband Nigel has given permission…… Whilst you will obviously take your own legal advice, where there are joint owners of property, one joint owner cannot give permission on behalf of the other joint owner where that other joint owner objects. In this case Nigel is and was unable to give permission on behalf of my client……….. I am also instructed that you have laid cables from the turbine across my client’s bank/hillside. This cabling will have to be removed and re-laid on your own land…” The letter suggests the instruction of joint experts in regard to the issues of noise and trespass, and concludes with the following; “In the meanwhile I would be grateful if you or your solicitors could respond with comments in relation to the above allegations.”
17. The response to this formal notification of a claim based, among things, on alleged trespass, was in the form of an email sent by Mr Tomlinson to Mrs Foster’s solicitor on 26 th June 2009. It reads as follows: “Dear Chris Thank you for your letter of 19 th June I think your client would be better taking professional medical advice rather than that of a solicitor. Since her husband left her she seems to have become mentally unbalanced, as her advisor you should perhaps consider this position, rather than running up a big bill for her. As a neighbour we have tried to help, but I think it has gone beyond that now. If however, as I think will be likely, you/she want to continue this nonsense, I look forward to the opinion of your experts and any evidence they may disclose. If necessary we will defend our legitimate position but it is all a bit sad and pathetic really”.
MRS FOSTER’S COMPLAINT TO HARROGATE BOROUGH COUNCIL
18. At this point, it seems that Mrs Foster concentrated her attention on the complaints to Harrogate Borough Council, principally with regard to noise. The council undertook an investigation, and in September 2009 concluded that the turbine created a noise nuisance. A noise abatement notice was served on Mr Tomlinson on 11 th September 2009. Mr Tomlinson lodged an appeal. In October 2009 Mr Tomlinson agreed to switch off the turbine, and to modify it to reduce the noise levels. The turbine was switched on again on 21st December 2009, producing a further complaint from Mrs Foster. There was some delay by the Council in re-visiting the site, but they did so in January 2010, and again concluded that the turbine was creating a noise nuisance. As a result of a further meeting between the Council and Mr Tomlinson’s advisers, he agreed to turn off the turbine on 19 th February 2010.
THE OMBUDSMAN’S REPORT
19. On 26 th April 2010 the Ombudsman issued a preliminary report, indicating an intention to uphold the complaint of maladministration, on the grounds that Mrs Foster’s residential amenity was not considered when planning permission was granted. This was attributable to the Council’s belief that the turbine would also serve Brass Castle, as a direct result of the statements to that effect in Mr Tomlinson’s planning submission. For the same reason, the Council had failed to serve the statutory notices on Mrs Foster. The Council had wrongly assumed (from the reference to Brass Castle in the initial submission) that the owners had been consulted and had agreed to the proposal. No doubt as a result of the Ombudsman’s views, and the noise nuisance created by the turbine, Harrogate Borough Council then took a much closer interest in the construction of the turbine. According to Mr Tomlinson, they sent a surveyor to inspect on three separate occasions. The Council’s surveys revealed that the turbine had in fact been built some 5 metres further north of the position shown on the planning application, for which permission had not been granted. Furthermore, the turbine and its concrete base actually straddles the boundary between the Screening Land and the Disputed Land and is therefore partly constructed on the Brass Castle title. The Council wrote to Mr Tomlinson on 2 nd August 2010, informing him, amongst other things, of these specific matters. A Mr Alistair Wood, the “Planning and Development Manager” of Mr Tomlinson’s group of companies, responded in a detailed letter dated 18 th August 2010. Essentially, he rejected the Council’s findings, contending that the turbine was built within the Tomlinsons’ land, since it lay within the tolerances of the general boundaries rule. Furthermore, according to him, “the land on which the turbine and all associated development is sited has been continuously used, on a wholly uninterrupted and unchallenged basis, by the Tomlinson’s over an (sic) significant period of years….”. He was also at pains to point out that “… the declaration made by Mr Tomlinson in the planning application forms in relation to land ownership was made in good faith…” The Council, having taken the advice of Leading Counsel, served an enforcement notice on the Tomlinsons on 21 st December 2010. As I understand it, that notice is still under appeal, and a local inquiry has been held. The Inspector’s decision is expected shortly. In the meantime, the turbine has ceased to be operational.
20. I have referred to the turbine and its genesis in some detail, because it has some considerable significance in this case. First, because its construction and use, and subsequent shut-down, may explain the depth of the ill-feeling that now exists between the parties. Secondly, because the Applicants rely on its initial construction without protest by Mrs Foster by way of an estoppel, as I shall explain in due course.
SECTION 4 - EVENTS LEADING UP TO THE APPLICATION
THE SURVEYS OF THE LAND
21. The Respondent saw the surveys carried out for the Council, as a result of which she became aware that the fence surrounding the Paddock was partially constructed on the Screening Land – i.e land belonging to Mrs Tomlinson. This is the section of fencing I have referred to in paragraph 3 above. Her solicitor wrote to Mr Tomlinson on 14th December 2010 in the following terms: “I have been further instructed to write to you in relation to the location of the boundary between your two properties. I understand that there have been surveys of the land as a result of which my client has discovered that some post and rail fencing (which was erected to contain my client’s horse) partially encroaches on your land. This fencing is being re-sited in accordance with the Land Registry plans. Of more importance however is the fact that your turbine and machine room actually straddle your boundary with my clients land. My clients require your proposals to move the turbine and machine room off her land.” In view of that discovery, she caused this part of the fence to be removed in early 2011, the fence being re-erected along the correct legal boundary line. On 20 th January 2011 Mr Tomlinson emailed Mrs Foster’s solicitor asserting, in effect, a claim based on adverse possession.
THE LETTER BEFORE ACTION
22. The Applicants evidently then instructed solicitors, and Freeth Cartwright wrote a long letter to the Respondent’s solicitors on 11 th March 2011. In this letter they take the point that the Council’s survey is not accepted as accurate, given that the filed plan boundaries are general boundaries only. In the alternative, they put forward the following claim: “….our clients are able to demonstrate they have had an intention to occupy and have been in factual occupation of the land in question without any consent since 1998…..The writer has attended the land in question. It is quite clear that our clients have had sole and exclusive possession of the land in question for a significant period of time. They have planted trees on the whole of the land which are substantial and mature, they have used the land for recreational purposes such as providing cover for game birds and shooting and their employee has maintained the land as part of our clients’ estate. We also note that your client and her predecessor in title historically erected a fence separating the land in question from her own land. This would appear to be an admission that our clients have had factual possession of the land since 1998.” Mrs Foster was invited to concede either that the land on which the turbine was built falls within the registered title of the Screening Land, or alternatively that the Applicants have obtained a title by way of adverse possession thereto. In the same letter, the Applicants notified Mrs Foster of a claim against her for damages in the region of £50,000, based on the allegation that she hindered the erection of the turbine by refusing access to her field, and this caused additional construction costs “ of around £50,000”. The letter stated that it was a formal letter before action. On 29 th March 2011 Freeth Cartwright wrote personally to Mrs Foster, stating that in the absence of any concession as to the title to the land, or agreement to pay £50,000 to the Tomlinsons, “ …we are instructed to issue proceedings against you without further notice.”
THE APPLICATION
23. On 24 th June 2011 the Applicants applied to Land Registry in Form ADV1, seeking registration with possessory title of the Disputed Land under the provisions of Schedule 6 of the Land Registration Act 2002 (“the 2002 Act”). Mrs Foster, acting in person, objected in Form NAP – solely on the grounds that adverse possession was denied. In early October 2011 Mrs Foster caused all the trees on the Disputed Land to be felled. On 25 th October 2011 the Chief Land Registrar referred the dispute to the Adjudicator. On 31 st October 2011 Mrs Foster – now acting by solicitors – served a further Form NAP, requiring the registrar to deal with the application by reference to the more onerous provisions of paragraph 5 of Schedule 6. The Applicants accept that this second NAP was validly served, and that they must therefore fulfil one or more of the conditions of that paragraph.
SECTION 5 – THE LEGAL FRAMEWORK
24. The legal framework applicable to the dispute is, in summary, as follows. First, the Applicants must prove that they have been in adverse possession of the Disputed Land for a continuous period of ten years with the requisite intention to possess. The legal principles relating to the doctrine of adverse possession have been definitively expounded by the House of Lords in the leading case of J.A Pye (Oxford) Ltd v Graham & Another [2003] 1 AC 419 which largely applied the first instance decision of Slade J in Powell v McFarlane (1979) 38 P & CR 452. It is necessary to establish both exclusive factual possession and an intention to possess, as those phrases have been judicially explained. Although of course there are any number of decided cases on adverse possession, all of which turn on their own facts, reference to these two decisions is normally sufficient for an understanding of the underlying principles. Both Counsel have referred me to a number of authorities on adverse possession and the other issues arising in this reference. Where appropriate, I shall deal with these when I come to consider the specific issues concerned.
25. Because this is an application made under the new regime established by the 2002 Act, and even if they can establish ten years’ adverse possession, the Applicants must also satisfy one of the three conditions contained in paragraph 5 of Schedule 6. They rely both on the first and third conditions prescribed by paragraph 5.
(2) The first condition is that—
(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and
(b) the circumstances are such that the applicant ought to be registered as the proprietor……………………………………………...
(4) The third condition is that—
(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application.
As regards the third condition, the material element that the Applicants must prove is that Mrs Tomlinson has for at least ten years of the period of adverse possession ending with the date of the application, reasonably believed that the Disputed Land belonged to her. The wording of paragraph 5 (4) means that it is only Mrs Tomlinson – as proprietor of adjacent land – who is entitled to rely on it. There is no such limitation with regard to the first condition.
26. Even if satisfied that an estoppel has arisen, the Adjudicator has a discretion as to how to give effect to it – see section 110 (4) of the 2002 Act, in the following terms: “(4) If, in the case of a reference under section 73(7) relating to an application under paragraph 1 of Schedule 6, the adjudicator determines that it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, but that the circumstances are not such that the applicant ought to be registered as proprietor, the adjudicator— (a) must determine how the equity due to the applicant is to be satisfied, and (b) may for that purpose make any order that the High Court could make in the exercise of its equitable jurisdiction.” This indicates that some lesser remedy may be available which would, in appropriate circumstances, satisfy the estoppel.
THE HEARING BEFORE ME
27. This case came on for hearing on 8 th October 2012, and lasted some two and a half days. On the morning of the first day I attended a Site View, in company with the Applicants’ Solicitor and Counsel, Mr Gray, the Applicants’ estate manager, Mrs Foster, her tree expert Mr Park, and her Solicitor and Counsel. At the hearing, the Applicants were represented by Mr Martin Dray of Counsel, and the Respondent by Mr Peter Petts, also of Counsel. Oral evidence for the Applicants was given by Mr and Mrs Tomlinson, Mr Gray, Mr Foster and Mr Blakely, who had assisted in the 1999 tree planting. For the Respondent, evidence was given by herself, and her daughter Leonie. She also relied on witness statements by a Mr and Mrs Smith, and Mrs Jarvis herself. However, these witnesses were not called for a variety of reasons, and although the evidence was admitted, it necessarily carries less weight than it would if they had attended for cross-examination. In addition, the parties’ experts in the field of arboriculture, Mr Whitehead for the Applicants and Mr Park for the Respondent, were cross-examined on their reports.
THE APPLICANTS’ PLEADED CASE ON ADVERSE POSSESSION
28. The acts of factual possession relied on by the Applicants, and set out in their Statement of Case, are as follows. “6. Shortly after the acquisition of the [Screening Land], the Applicants cultivated both the [Screening] Land and the [Disputed Land] by densely planting trees over the entirety of it………… 8. Since planting the trees in 1998, the Applicants have tended them, and have re-planted them as and when required. 9. Since 1998, the Applicants have also used the [Disputed Land] for other purposes, including for recreation, for shooting, and for taking Christmas Trees……. 12. In 2008, the Applicants felled a small number of trees on the [Disputed Land], and they erected a wind turbine and an associated machine house at the approximate points marked “X” on the annexed plan marked “Plan 3”. The wind turbine and associated machine house straddle the boundary between the [Screening] Land and the [Disputed Land], or, alternatively they are situated wholly on the [Disputed] Land, close to its boundary with the [Screening] Land”.
29. In the Statutory Declaration made by Mr Tomlinson on 26 th June 2011 in support of the Applicants’ ADV1, the following acts of possession were relied on: “6.1. Shortly following the Acquisition Date, I and some labourers employed by me and my wife planted trees all over the [ Disputed] Land and on the majority of the [Screening] Land to provide screening for Bilberry Farm. 6.2. My wife, I and persons employed by us have regularly tended the trees on the [Screening] Land and the [ Disputed] Land and re-planted them when necessary. 6.3. I have also shot rabbits on the [Screening] Land and the [Disputed] Land and used it for other recreational purposes such as providing cover for the game birds. 6.4. Brian Gray, who is employed as the Estate Foreman of Bilberry Farm has, on my and my wife’s instructions, cut the weeds back, cut down trees to use as Christmas trees, cleared out pheasants and caught magpies on the [Screening] Land and the [Disputed] Land. 6.5. In around 2000, the owners at the time of Brass Castle, who were Nigel and Elaine Foster, erected a post and rail fence. I understand this fence was erected by Mr and Mrs Foster so they could use part of Brass Castle as a paddock for horses. Although part of this fence has now been removed, part of it remains in situ on the whole of the eastern boundary of the [Disputed] Land and is marked p/r on the plan marked “LT2”. The erection of the fence further evidences that the relevant parties considered that the [Disputed] Land formed part of the Screening Land. 6.6. In 2008, I applied for and obtained planning permission to erect a wind turbine and associated machine house on the [Screening] Land and/or the [Disputed] Land. The owners of Brass Castle at the time did not object to the positioning of the turbine and the associated machine house, presumably on the basis that they considered my wife and I were the owners of the [Disputed] Land and the [Screening] Land. 6.7. I have always used and allowed friends and family onto the [Disputed] Land and [Screening] Land without seeking the consent of anyone else.” Mrs Tomlinson made a Statutory Declaration in virtually identical terms.
SECTION 6 – THE APPLICANTS’ EVIDENCE
MR AND MRS TOMLINSON
30. Both Mr and Mrs Tomlinson have also made witness statements, which they verified on oath. In his witness statement dated 25 th April 2012, he gave further details of his discussions with Mr and Mrs Jarvis prior to the acquisition of the Screening Land. He also said that he put stakes in the ground to indicate the position of the boundary between the Screening Land and Brass Castle, said to have been agreed with Mrs Jarvis at around the time of the sale. He gives further details of the tree planting in March 1999, and describes a conversation in 2000 with Mr Foster regarding the erection of the paddock fencing as follows: “In or around 2000, we were approached by Mr Foster, who jointly owned Brass Castle with the Respondent at the time. He explained that he and his wife wished to erect a paddock on their land for horses and that he proposed to erect a post and rail fence along the line of the stakes. He told us he would erect the fence on the Brass Castle side of the stakes so there would be no dispute as to whether the fence was on their land or ours.” He states that he has never seen Mrs Foster walk her dog on the Disputed Land “and would be very surprised if she ever did as in order to do so she would either have had to climb over the [Paddock] fence or scramble up a very steep bank with gauze (sic).” In paragraph 18 of the witness statement, Mr Tomlinson repeats, virtually word for word, the acts of possession set out in paragraph 6 of his Statutory Declaration, quoted above. Mrs Tomlinson’s witness statement echoes that of her husband, save that she is unable to speak of the direct meetings with Mr and Mrs Jarvis, or Mr Foster, referred to by her husband, and was not personally involved in the tree planting exercise.
31. Mr Tomlinson was cross-examined on his statement. I draw attention to certain aspects of his evidence. He accepted that he did nothing on the Disputed Land prior to the initial tree planting in 1999. He said that he was “ not bothered” about the boundaries of the Screening Land – it was only intended for screening and was a small part of the overall transaction in 1998, the primary aim of which was the re-routing of the driveway to Bilberry Farm. He said that he did not walk the land with Mr Jarvis, but the initial conversation about the land was with him. He said he could “ vaguely remember” walking the land with Liz. He said that they walked the “ C shape” and they put some stakes in; “no-one was particularly bothered”. He said that “I think I had put in stakes. I remember being with Liz on the slope. I put the stakes in, she agreed it. I can’t remember how many stakes – about 18” high. I’m struggling to remember. I can remember looking at one stake. I believe I put stakes in. My main concern was where to put the driveway. I can recall one stake, on the left as you go up the hill, about 15 metres in….The stake was roughly half way up the hill, somewhere in the region of the 15 metre mark [on the plan at B142 of the Bundle]. All I can say is I believe I staked it out. Not sure of the timing of it, whether before or after purchase. I had no involvement with Strutt and Parker marking it out. I think I marked it out.” In relation to the wind turbine, he said “ I don’t remember anything about the application. I’m not familiar with the planning application form. We weren’t at the property when this was being done.” When he was asked about the reference to Brass Castle in the planning application, he said: “I’m not sure why he’s put this in. I have no responsibility for this document. I don’t believe I saw much of the documentation. I don’t have the time. The statement was made by Dewar. It wasn’t my application. We were looking to purchase Brass Castle. Same may have been uncertain as to what was going on.” Sam Dewar, I should say, was the Tomlinson employee who was instructed as agent to make the planning application. When Mr Tomlinson was asked to comment on the Ombudsman’s findings in favour of Mrs Foster’s complaints of maladministration – at C47 of the Bundle – he replied: “ Mrs Foster’s complaints are never-ending.” In relation to the tree planting in 1999, he said that the soil on the slope was sandy and poor, and something like one-third of the trees originally planted had died off by 2002, hence the need for a second planting. He said that Bilberry Farm was screened “instantly” once the trees had been planted, but accepted Mrs Foster’s evidence that it was still visible from the road in August 1999 – “ but less clear”.
32. Mrs Tomlinson was cross-examined on her witness statement. She said that she was not herself involved in any discussions with Mr Jarvis concerning the Screening Land: it was entirely her husband’s project. She did not walk the land at the time with Mr Jarvis or anyone else. The inserting of the stakes were nothing to do with her, and indeed she never saw any stakes in the ground. She was pregnant in 1999, and the events were a long time ago. She was asked about paragraph 11 in her statement, in the following terms: “At the time we put these stakes in the ground and thereafter, both I and my husband believed that they were on the boundary between the Land and Brass Castle. Mr and Mrs Jarvis (and Mr and Mrs Foster) knew of this belief and did not correct it.” Her comment was: “ It was more my husband’s belief.” She was asked about paragraph 16 of her witness statement. In this she stated that in or around 2000 she and her husband were approached by Mr Foster in connection with the construction of the fence around the Paddock. Her response was that she was not involved with the construction of the fence, and “ It was nothing to do with me”. Her only use of the Disputed Land, according to her, was to choose a Christmas tree from it “ on the odd occasion”. She recalls signing the documents relating to the Screening Land at her home. She assumed that Mr Tomlinson would have seen all the legal documents before she did. She confirmed that her husband instructed people who worked for him to progress the planning application.
MR GRAY AND MR BLAKELEY
33. Mr Brian David Gray, who was employed as the Applicants’ estate foreman since 2001, made both a Statutory Declaration and a witness statement, which he verified on oath. His evidence is to this effect. When he arrived at Bilberry Farm the trees on the Disputed Land (and the Screening Land) were well established and generally around 6 feet in height. He says that he regularly tended and re-planted the trees on both parcels of land, And also “cut the weeds back, cut down trees to use as Christmas trees, cleared out pheasants and caught magpies on the Disputed Land….”. He also says that “I have never seen anyone other than Mr and Mrs Tomlinson or people with their permission on the [ Screening] Land and [Disputed] Land. I certainly have never seen the Respondent walking her dog on the [Disputed] Land.” Mr Timothy Mark Blakeley also made a witness statement and verified it on oath. He states that he was part of the team that carried out tree planting on the Disputed Land and the Screening Land in March 1999. Rather picturesquely, he refers to a pregnant Mrs Tomlinson bringing tea and bacon sandwiches to the tree planting team, and “resting the bacon sandwiches on her bump.” He was also involved in the construction of the wind turbine in 2008/2009, but did not return to the Disputed Land or the Screening Land between 1999 and that time.
34. Mr Gray was cross-examined on his statement. He readily accepted that the Screening Land and the Disputed Land was never his main priority, since he had responsibility for over 100 acres in all. He recalled planting trees in 2002, mainly, he thought, in the North-western and north-eastern corners of the hillside. He did one place traps at the top, by the wind turbine. Pheasants were released in adjoining land (the wood to the west of the dry stone wall), but not on the Screening Land or Disputed Land. He asked for permission from Mrs Foster to cross Paddock. He said he had a conversation with her about the wind turbine: according to him, she said she wasn’t happy about it. He was asked if he had seen Mrs Foster going through the bottom gate. His reply was: “Yes, not regularly. I’ve seen her on the field, can’t say how often. That’s her land. The land at top is not suitable for walking.”
35. In cross-examination Mr Blakely said that they were working without any plan of the site . He recalled a few stakes in the ground. He was shown the 1998 Transfer plan, on which the Screening Area around the perimeter is hatched. His evidence was that the larger trees were planted within the hatched area: i.e within the Screening Land, as opposed to the Disputed Land. He said the smaller trees were planted in the middle.. (plan shown). In re-examination, Mr Dray put an aerial photograph to him, and asked him whether he stood by his original evidence. He then said that he had planted the larger trees al over the area, and not just along the edges as he had previously stated.
MR FOSTER
36. The final witness for the Applicants was Mr Nigel Foster, the Respondent’s former husband, who lived at Brass Castle until around January 2005. He has not returned to the property since. This may be indicative of the relationship that seems to exist between him and Mrs Foster – according to Mr Tomlinson, they had an acrimonious divorce. In his statement, upon which he was cross-examined by means of a video link, he gave the following evidence:
a. Prior to the acquisition of Brass Castle, Mrs Jarvis told us that she had sold part of Brass Castle to the Tomlinsons for them to plant trees on for screening purposes;
b. “I understand that the extent of the land sold by Mrs Jarvis is shown edged in green on the plan annexed to this statement at GNAF2 ”
c. Prior to exchange of contracts for the purchase of Brass Castle, Mrs Jarvis told Mrs Foster and me that stakes had been put in the ground to show the boundary between Brass Castle and the Screening Land. The stakes were positioned along the line marked A-B on the plan annexed to the statement as GNAF1. The line A-B coincides with the fenced western boundary of the Paddock (prior to the alteration of the fence line in 2011).
d. When he walked around Brass Castle prior to the purchase he could recall seeing the stakes and the trees planted on the Disputed Land.
e. Within two years of purchase, he and Mrs Foster wished to create a paddock on their land for their daughter’s horse. They decided to erect a post and wire fence along the line of the stakes, which they thought was the boundary. Prior to erecting the fence, he spoke with Mr and Mrs Tomlinson and told them what they were doing. He said they would erect the fence on the Brass Castle side of the stakes, which they did.
f. He checked with Mrs Foster that she was happy with the location of the fence, which she confirmed.
g. Mrs Foster was well aware of the Tomlinsons’ proposals for the wind turbine from 2007 onwards.
h. He gave permission for Mr Tomlinson to cross Brass Castle land with machinery, in connection with the erection of the turbine. He discussed this with Mrs Foster over the telephone, and she was happy with this, provided that any damage to Brass Castle was made good.
37. Under cross-examination, Mr Foster qualified much of this evidence. First, he accepted that Mrs Jarvis gave him specific measurements for the Screening Land, being the dimensions noted by him on the 1998 Transfer plan. He was unable to remember whether this happened before or after the purchase – as he said, “ I am not good at remembering things that didn’t concern me at the time”. However, he did recall walking the ground with Mrs Jarvis. From Top Lane it was possible to see down into Bilberry Farm, although it was difficult to see it was possible to see builders working there. He could not recall seeing any stakes in the ground, however, because there were “saplings” in the way. It was also possible to see the drystone wall running along the western boundary of the Screening Land. It was put to him that he knew little about horses, and it was his wife and daughter who were the keen equestrians. He agreed with this. For the same reason the choice of site for the Paddock was determined – mainly by his wife and d daughter – by reference to the flattest and most suitable available ground, and for no other reason. He agreed with this, and said that the remainder of the land around Brass Castle was unsuitable as it was very marshy. The purpose of fencing the area was to make it suitable for equestrian use. He said that before the fence was installed, there was a line of stakes which ran down from the top of the bank. He assumed that these stakes represented the boundary and instructed his contactor Morrell to keep the stakes on the Tomlinsons’ side. He said that they installed a gate at the bottom of the field so that they could retain access to the land they retained to the west of the Paddock. Otherwise they could only get into the field by climbing the Paddock fence. It was put to him that his wife and daughter took the dog through the gate into the field. He agreed that this happened occasionally, but the dog-walking mostly took place around the Reservoir or in the Paddock because the terrain was “difficult”. However, he was in work, so was not at Brass Castle much of the time. He recalled having discussions with Mr Tomlinson in 2008 in which he explained that he wanted to build a wind turbine as part of the redevelopment of Bilberry Farm. He would make the turbine big enough to supply Brass Castle. Mr Foster thought this was a good idea, since he thought it would enhance the value of the asset. He also said that Mrs Foster’s solicitors sent him a letter in which they “rapped my knuckles” for not informing them of the discussions with Mr Tomlinson. He was at this time involved in settlement negotiations with regard to her claim for ancillary relief in the divorce. He did say that Mrs Foster was made aware of the proposal for the wind turbine. As far as he was concerned, everyone assumed that the stakes in the ground represented the boundary. No-one questioned it, according to him.
SECTION 7 - THE RESPONDENT’S EVIDENCE
MRS FOSTER
38. Mrs Foster made a witness statement, which she verified in the witness box and upon which she was cross-examined. In the statement, she confirmed that she and her husband were told by Mrs Jarvis that she had sold a “C-shaped” piece of land to Mrs Tomlinson, and that her husband walked the land with Mrs Jarvis. She gave him the dimensions of the Screening Land which he noted on a plan – this is the annotated copy of the 1998 Transfer plan which is in evidence. She confirmed that he also walked the land with Mrs Jarvis and noted the presence of stakes marking the boundary, which she subsequently observed herself, although these were no longer visible when they moved in to Brass Castle in September 1999. She said that she and her daughter used to walk the dog in the field above Bilberry Farm, including the area occupied by the Disputed Land. In 2000 they decided to fence off part of the field to create a paddock for her daughter’s horse, Dino. She said that the area which they chose was simply the most suitable area for keeping a horse, avoiding the steeper slopes and areas covered in gorse. The fences that were erected had nothing to do with legal boundaries but were simply designed to enclose the paddock area. When the fences were built, a gateway was inserted into the fence to the north of the driveway, leading into the field to the west of the Paddock. According to her, when the fence around the Paddock was erected, no trees had been planted on the Disputed Land or the Screening Land, and the stakes were no longer present. She did recall small trees being planted in 2002 by the Tomlinsons. She knew that they wanted to screen their property. She never saw either of the Tomlinsons on the Disputed Land, although she herself would be there to walk her dog, usually twice a day. The trees planted by the Tomlinsons did not create any barrier to entry until approximately 2006. According to her, relations with the Tomlinsons began to deteriorate in 2008, when significant building works were being carried out at Bilberry Farm. Prior to this she became aware that Mr Tomlinson had been offering to buy Brass Castle from her former husband – they were divorced in 2005 – and in late 2007 Mrs Tomlinson came to see her and said that they wanted to buy the house and move in within the next two weeks. They had been talking to Mr Foster. Mrs Foster says that she was astonished by this, and in the event the offer was not accepted. The Tomlinsons moved out while the work was carried out to Bilberry Farm. It seems that there were some ill-feeling generated by these works, since Mrs Foster complained that her access was being obstructed by builders’ vehicles, and her gate and wall were damaged. Relations between her and the Tomlinsons began to deteriorate. She recalled an incident in December 2008 when according to her Mr Tomlinson deliberately obstructed her driveway, after she complained about his builders. She says that after December 2008 she refused to allow the Tomlinsons access over land to carry out building works. She saw Mr Tomlinson in the area now occupied by the turbine, and saw that some digging or ground works were in progress. She then contacted the local authority to find out what was happening. She then discovered that planning permission had been granted. She says that she had no prior knowledge of the construction of the wind turbine, and that it was never discussed with her by the Tomlinsons. If she had known about, she would have objected. Mrs Foster also produced a number of colour photographs of Brass Castle, taken during the period 1999 to 2003. She was able to date the photographs by reference to the colour of the cars that the Fosters owned. She was of the opinion that these photographs demonstrated that there was no real sign of the conifer plantation either on the Screening Land or the Disputed Land.
39. Mrs Foster was subjected to a very thorough cross-examination. She said that she had had a conversation with Mr Tomlinson about the line of the Paddock fence – she recalled telling him that she had fenced off a bit of the Screening Land. It was put to her that she knew about the proposed wind turbine all along. Her response was as follows: “I didn’t know about the wind turbine. It is the cause of the dispute, more than anything. I went to the Council before the turbine went up. I didn’t speak to the Tomlinsons about it. I went to the Council offices and looked at the application. I realised that they had been given planning permission. Initially I thought: Oh my goodness – how could this happen? It was a question of: Oh my goodness. I wrote to the Council saying: is this in the right place? They had been out. I looked at the documentation. I was amazed to see I was supposed to receive power from it. At that stage I was just blown over by the fact that neighbours could do this. I was annihilated. I just continued writing to the Council.”
40. She said that when the Fosters first viewed Brass Castle Mrs Jarvis had described the land sold to Mrs Tomlinson as a “sliver of land” intended for tree planting. She recalled seeing a few stakes in the ground when they first visited, close to the northern boundary along Top Lane. As far as she could recall, these stakes had disappeared by the time they moved in, and were not there when the Paddock fence was erected in 2000. Not surprisingly, the following passage in her solicitor’s letter of June 2009 was put to her: “ My client arranged for the current fence to be erected and in order to avoid the possibility of a future boundary dispute, gave instructions that the fence should be positioned well into my client’s land. The current position of the turbine is such that it passes over the fence.” She was asked how this was consistent with her evidence in these proceedings that no stakes were in the ground when the fence was constructed. He reply was that Mr Newton, her solicitor, had never visited the site and had in effect misunderstood his instructions. She repeated that the line chosen for the Paddock fences – along the west and south – was dictated by the nature of the terrain. The fence delineated the maximum usable area available to them. The remainder of the land was too steep or too covered in gorse. She reiterated that she had always known that part of the Paddock fence (the section at the north-west of the original Paddock) incorporated a piece of the Screening Land, but said that the precise amount was unknown. The fence line was straight because that was the simplest way of constructing it.
41. She accepted that she had seen Mr Gray planting trees to the west of the Paddock, including on the Disputed Land. She said “ I was perfectly happy with the trees, they shielded both properties, including Brass Castle.” She was not concerned about the precise location of the trees. “They were on the hill. It’s not a thing that occupied my thoughts.” It is possible that trees had been planted before the fence was built in 2000, but she was unaware of them. The trees must have been insignificant, since she had a clear view of the drystone wall along the western boundary of the Screening Land and of the gorse on the slope of the hillside. She repeated the evidence from her witness statement, to the effect that she used to walk up the slope with her dog Charlie. She said that she walked him three or four times a day when he was a puppy, although not always on the hillside. They used to walk in the wood (to the west of the Screening Land) and also farther afield, by the Reservoir. From 2004 onwards she was at home less than before – but from 1999 to 2004 she was mostly at home. She would always be there to look after the dog. She sometimes took him out first thing or after dark if he needed it, although she would not go up the bank after dark. She was able to go onto the Disputed Land without difficulty until the trees grew too dense, probably in 2005 or 2006. She said “ the dog was always racing around. He liked the smell of rabbits. He loved it up there.” She agreed that she did not complain to the Tomlinsons when the trees on the Disputed Land grew to such a size that she was unable to get into the land. It was put to her that she had been asked by Mr Gray if he could have access over her land in connection with the construction of the turbine. She accepted that she had agreed to give access, but she had not been told the purpose of the work, and not told that it was in order to build the turbine.
LEONIE FOSTER
42. Leonie Foster, Mrs Foster’s daughter, made a witness statement upon which she was cross-examined. She lived at Brass Castle until she went to University, then she came back occasionally during term time and during the holidays. She returned to live full time at Brass Castle in mid-2005 to mid-2006. She recalled moving to Brass Castle. She recalled the creation of the Paddock, and the fact that there were no trees planted on the Screening Land or the Disputed Land. When the paddock was fenced off, she remembers that the small gate on the Drive was created, to allow access onto the hillside from beneath. She recalled walking her mother’s dog on all parts of the hillside, including on the Disputed Land, until such time as the trees became too dense to admit passage.
43. In cross-examination, she said she knew there was a strip of land between the Paddock and the woodland. She used to send the dog in there for rabbits. He could squeeze through below the rail. With regard to the area at the north-west of the Paddock (formerly fenced within it) she said: “ I thought I had my own Derby bank”. She was adamant that there was no dense row of trees behind the Paddock fence in the Disputed Land. In late 1999 “there was nothing like established Xmas trees on the ground”. Occasionally she would go in there. You could get through the gate at the bottom of the hill. She though relations with her mother worsened after Mr Tomlinson was rude to her mother. That is what caused the breakdown in relations. She could not say exactly when it happened, but it was during the building work to Bilberry Farm. She confirmed that her mother planted rhododendrons on the left side of the hillside (below the Disputed Land).
THE HEARSAY STATEMENTS
44. The Respondent relied on the hearsay statements of Mr Phillip Johnson Smith, his wife Karen Elizabeth Smith and Mrs Jarvis, the previous owner of Brass Castle. Mr and Mrs Smith were occasional visitors to Brass Castle, and did not recall seeing trees or saplings on the Disputed Land when they visited shortly after the Paddock fence was built in 2000. They also confirmed that Mrs Foster used to walk her dog on the hillside. In paragraphs 4 to 6 of Mrs Jarvis’s statement, she says this: “4. Prior to the land transfer between myself and Mrs Phoebe Tomlinson I can confirm that I “walked the land” with Lawrence Tomlinson in order to agree the boundaries in relation to the plot which was being sold so he could plant conifer trees to screen his property from the view of passers by on Top Lane. 5. The agreed boundaries were as per the plan attached to the transfer dated 4 June 1998. 6. At the time of the transfer there were no trees planted in the area of land that was sold to Mrs Phoebe Tomlinson and I cannot recall any saplings or trees prior to moving out of Brass Castle in September 1999.”
SECTION 8 - IMPRESSIONS OF THE MAIN WITNESSES
THE APPLICANTS
45. As a general comment, it is evident from the passages quoted above that the Applicants’ evidence “in chief” – in the form of the witness statements – bore little relation to the evidence that emerged in cross-examination. As regards Mrs Tomlinson, it was quite apparent that she had no material belief in the position of the boundary of the Screening Land, contrary to the very specific passage in Paragraph 11 of her witness statement. That sentence was no doubt inserted with the third condition of Schedule 6 paragraph 5 very much in mind. Indeed, she frankly accepted that she left everything to do with the Screening Land and the tree planting to her husband. Her only involvement in the tree planting was the supply of bacon sandwiches and tea to the workers – but, as Mr Blakeley explained, these were delivered by her at the bottom of the hill, by the gate through the rabbit wire fence. Hardly surprising that she should not venture up the steep bank, given that she was six or seven months pregnant at the time. Contrary to the specific evidence of having been in constant exclusive possession of the Disputed Land, she accepted that she very rarely went up the hill, but on the odd occasion she cut down a tree for Christmas. I do not see how she could possibly say whether these came from the Disputed Land or the Screening Land. Essentially, she never concerned herself with the precise details and boundaries of the Screening Land. It was bought in order to create a natural screen for Bilberry Farm, and her involvement was merely to sign the legal documentation.
46. I have already explained how Mr Tomlinson’s very specific evidence of agreeing the line of the boundary with Mrs Jarvis, and installing a line of stakes to mark it out, was diluted in cross-examination to a vague recollection of one stake being in the ground, and no recollection of actually putting it there. The Statement of Case and witness statement itemise a detailed list of activities allegedly carried out on the Disputed Land. In cross-examination, Mr Tomlinson’s activities (apart, obviously from the tree planting) amounted to his shooting of or at rabbits some years ago. Even then he accepted that the rabbits would be shot facing northwards, up along the stone wall (the western boundary of the Screening Land) or into the north-western corner. Neither of these areas are in point of fact within the Disputed Land at all. A less gentlemanly cross-examination than was conducted by Mr Petts might have focussed more vigorously on the gulf between the evidence in the statement – served some five months before the hearing – and the evidence elicited under cross-examination. At the very least, it amounted to a gross exaggeration.
47. In other respects, I found Mr Tomlinson to be a less than entirely candid witness in a number of respects. For example, he suggested in cross-examination that the restrictive covenant – imposed in the 1998 Transfer to prevent any building on the Screening Land – had been slipped into the document without any prior discussion. He claimed not to have been aware of it ant any time until raised recently in connection with this dispute. It is, however, quite apparent from the letter at C5 of the Bundle – dated 28 th November 1997 and sent to Mr Tomlinson’s solicitors – that the restrictive covenant was always an integral part of the deal from the Jarvises’ point of view. Indeed, even Mr Tomlinson’s initial letter (at C9) says; “I appreciate that Paul wishes to control the land.” Furthermore, I think he was evasive when it came to the planning application for the wind turbine. Notwithstanding that Mr Dewar, the agent, was his employee, and the application was stated to be made on behalf of Mr Tomlinson, he was at pains to distance himself from certain aspects of the application. In particular, the very clear statement that Brass Castle was an intended recipient of the power to be generated. He refused to take responsibility for this statement, or indeed for the certificate of ownership of the land subject to the application. However, it is inconceivable that Mr Dewar would or could have put together the proposal without specific instructions from Mr Tomlinson. By August 2008 Mrs Foster had made it clear that she was not prepared to leave Brass Castle, and the Tomlinsons’ offer the buy the house had been refused. There could be no legitimate basis for Mr Dewar to have included the reference to Brass Castle unless he was instructed to do so. Equally, it was ultimately Mr Tomlinson’s responsibility to satisfy himself that the subject land was within his ownership. In fact the Screening Land was in his wife’s ownership, so the certificate could never properly have been signed, albeit that this might seem a technicality. But I did not find impressive his refusal to accept responsibility for the misleading statements in the planning proposal and application. I consider that he has a considerable personal animus against Mrs Foster which colours his evidence. This may partially be a result of his failure to induce her to sell Brass Castle – a deal which he had initiated with her estranged husband rather than with her – which meant that he and his family had to leave the area during the remodelling of Bilberry Farm in 2008. No doubt it is also partially explained by the difficulties resulting from Mrs Foster’s complaints to Harrogate Borough Council and the Ombudsman, resulting in a series of enforcement notices and a possibility that the turbine may have to be removed. As he sees it – “Mrs Foster’s complaints are never-ending”. Although he was careful not to appear too disparaging of the Respondent when he gave his evidence, his true attitude towards her may be gauged from his response to her solicitor’s letter in June 2009. This pointed out that the turbine was a noise nuisance, that it constituted a trespass, and that the planning process had been flawed. All these allegations were true, as events since 2009 have made clear. Mr Tomlinson’s response is revealing: “ I think your client would be better taking professional medical advice rather than that of a solicitor. Since her husband left her she seems to have become mentally unbalanced, as her advisor you should perhaps consider this position, rather than running up a big bill for her. As a neighbour we have tried to help, but I think it has gone beyond that now.” The contemptuous and dismissive attitude to Mrs Foster speaks for itself. Mrs Foster’s evidence of the occasion in late 2008, when Mr Tomlinson deliberately moved his car in order to obstruct her driveway – an allegation not challenged by him – also speaks for itself.
48. Mrs Tomlinson, by contrast, was a straightforward witness, who candidly accepted that she had very little knowledge or understanding of the purchase of the Screening Land, its boundaries and the tree planting. If any criticism can be made, it is that she was prepared to sign, and verify on oath, a witness statement that she was unable to support under cross-examination.
49. Mr Foster found himself in the awkward position of giving evidence against his former wife, after what Mr Tomlinson described as an acrimonious divorce. Again, I have already pointed out that in cross-examination he retracted some material elements in his written evidence. Overall, my impression is that he had a very poor recollection of matters and events which only now have assumed any importance. In his own words, as he very candidly accepted: “I am not good at remembering things that didn’t concern me at the time.” I do not think he demonstrated any particular animus towards Mrs Foster, but the reliability of his evidence is compromised by his inability to remember much about the events of more than ten years ago.
THE RESPONDENT
50. There were some curious features of Mrs Foster’s evidence. Two points in particular need to be mentioned. First, her inconsistency regarding the positioning of the Paddock fence. In her witness statement, at paragraph 15, she said “ I recall that the pegs which had been placed in the ground to delineate boundaries were no longer present at that time”. She repeated this evidence under cross-examination. Mr Dray put to her that this evidence was inconsistent with the following statement in her solicitor’s letter of 19 th June 2009: “ When my client moved into the property, the boundary was marked by stakes and I am informed that you had bought the adjoining land from the people who sold the house to my client and her husband (now divorced). My client arranged for the current fence to be erected and in order to avoid the possibility of a future boundary dispute, gave instructions that the fence should be positioned well into my client’s land.” Secondly, she mentioned for the first time, in cross-examination, an alleged conversation with Mr Tomlinson regarding the siting of the Paddock fence. According to her, she told Mr Tomlinson that they had taken some of the Screening Land when they erected the fence. This is because the fence lies to the west of the true legal boundary between the Screening Land and the Brass Castle land. However, it was put to her that she was unaware of this fact until much later, after the Council’s surveyors had carried out a survey of the land and identified the true boundary line. The following passage from her solicitor’s letter dated 14 th December 2010 was also put to her: “I understand that there have been surveys of the land as a result of which my client has discovered that some post and rail fencing (which was erected to contain my client’s horse) partially encroaches on your land. This fencing is being re-sited in accordance with the Land Registry plans”. Her response to this point was that she had always known that the fence created a trespass, but it was not until the detailed surveys were prepared that the exact extent of the trespass became known.
51. Mr Dray, for the Applicant, submits that Mrs Foster simply invented this evidence. There was never any conversation with Mr Tomlinson regarding the “taking” of the small piece of land, and it was simply untrue that she had any inkling of the true boundary line before the various surveys carried out in 2010. On these grounds, he invites me to reject all Mrs Foster’s evidence as being unreliable. I am not sure of the scope of the inconsistency between her evidence and the contents of the letter of 19 th June 2009. She has always maintained that the fence was not intended as a boundary fence, so the suggestion that it was erected “ well into my client’s land” might be not be regarded as inconsistent. However, there is also a reference to stakes being on the land when she moved in to Brass Castle, which is contrary to her oral evidence (which is that the stakes she had seen earlier had disappeared by that time). I do not think that the contents of this letter are sufficiently inconsistent with the remainder of her evidence so as to call her veracity into doubt. On the other hand, the letter of December 2010 does strongly suggest that Mrs Foster was not aware of the exact line of the boundary until the surveys had been carried out, and that there had not been any previous discussion with Mr Tomlinson concerning the line of the fence. This is not consistent with the alleged conversation with Mr Tomlinson as to the position of the boundary fence. I cannot therefore accept her evidence on this particular issue. Does my rejection of this evidence justify me in rejecting all her evidence, where it conflicts with other testimony, as Mr Dray robustly invites me to do? Weighing up the entirety of her evidence, the manner in which she answered the questions put to her, and her conduct throughout Mr Dray’s lengthy and robust cross-examination, I have no difficulty in concluding that she was a reliable witness in all other respects. Her answers in cross-examination were largely consistent with her witness statement, and she had every appearance of telling the unvarnished truth. I characterise her evidence as to the alleged discussion with Mr Tomlinson as an aberration, in the heat of the moment, and not as indicating a general lack of truthfulness.
SECTION 9 - THE ISSUES OF FACT TO BE RESOLVED
52. It seems to me that there are a number of individual factual issues which I must resolve. These all feed in to the overarching issues of factual possession and intention to possess, together with the sub-issues of (a) estoppel and (b) reasonable belief. Before being in a position to make any findings as regards the principal legal issues, I must first make these findings as follows:
i. What was the agreement reached between the Mr and Mrs Jarvis and the Applicants with regard to the extent of the Screening Land?
ii. Were the boundaries of the Screening Land staked out, and, if so, by whom?
iii. What line did the stakes follow?
iv. Were the stakes still in place when the Fosters bought Brass Castle?
v. Was the Paddock fence intended or agreed to demarcate the boundary?
vi. When did the Applicants first plant trees on the Disputed Land, and to what extent?
vii. What was the extent of the second planting of trees on the Disputed Land?
viii. When did the trees on the Disputed Land become too dense to walk through?
ix. Did the Respondent retain possession of the Disputed Land after 1999?
x. What, if any, other activities did the Applicants carry out on the Disputed Land, and when?
xi. Did the Respondent actively or passively encourage the Applicants to construct the wind turbine on her land?
ISSUES (i) to (iv) – AGREEMENT AS TO THE BOUNDARIES OF THE SCREENING LAND
53. The first group of issues which I must resolve relates to whether there was any agreement between Mr Tomlinson and Mr and/or Mrs Jarvis as to the position of the boundary of the Screening Land. Also, as an associated issue, whether the boundary was marked by stakes and, if so, what was their position. The only live evidence on this issue comes from Mr Tomlinson himself, as regards the position in 1998 and 1999. Mrs Jarvis’s evidence is in the form of a hearsay statement only, and Mrs Tomlinson accepted that she played no part in the negotiation of the purchase of the Screening Land. However, Mr Tomlinson’s Statutory Declaration, dated 21 st June 2011 and made in support of the Application, makes no reference to any boundary agreement, or to placing stakes to mark the boundary. At paragraph 5, he says this: “ It was always our understanding that the [Disputed] Land formed part of the [Screening] Land and my wife, I and our neighbours have treated it as such from since the Acquisition Date.” The Applicants’ Statement of Case was served on 14 th December 2011. It is pleaded at Paragraph 5 that “…the Second Applicant believed that the land which she had acquired under the 29 May 1988 transfer included the [Disputed] Land…..”. In Paragraph 6 it is pleaded that: “Shortly after the acquisition of the Land, the Applicants cultivated both the land and the [Disputed] Land, by densely planting trees over the entirety of it. No objection was ever made to this by the then paper owners of the [Screening] Land, Mrs Jarvis.”
54. In his witness statement, Mr Tomlinson says the following, at paragraph 8: “I have now been shown a File Note dated 30 March 1998 disclosed by the Respondent….. This File Note confirmed that Mrs Jarvis and I had walked the land and agreed the boundaries. It also confirmed that I agreed to plant trees along the boundary on the basis that the trees would be inside the boundary line. It appears that the solicitor suggested to Mrs Jarvis that stakes be put in the ground to mark out the boundary…..10. Following on from that meeting and after the purchase of the Land by my wife, I put stakes in the ground to indicate the position of the boundary agreed by me and Mrs Jarvis between the [Screening Land/Disputed Land] and Brass Castle. The stakes were put in the ground along the line marked A-B on the plan annexed to the witness statement at LNT1…….11. At the time I put these stakes in the ground and thereafter, both I and my wife believed that they were on the boundary….” I have already recorded the evidence he gave in cross-examination (see Paragraph 30 above).
55. Mr and Mrs Foster also deal with the issue of the stakes, at least from 1999 onwards. I have summarised their evidence as given in their witness statements and under cross-examination. Mrs Jarvis’s evidence is that the boundary that she identified with Mr Tomlinson on site was the same as the boundary identified in the plan to the 1998 Transfer.
56. It has to be said that much of the evidence regarding the stakes is inconsistent and contradictory. It would be fair to say that none of the witnesses has a clear recollection of them. I think it can be safely concluded that the stakes in the ground, wherever situated, were far from forming an obvious and identifiable boundary line. I shall begin by reviewing Mr Tomlinson’s evidence. The first reference by him to any stakes being inserted to delineate the boundary is in his witness statement dated 28 th April 2012. There is no such reference in any of the correspondence from him or his solicitors from June 2009 onwards, nor in the Statutory Declaration which he filed in support of the ADV1, nor even in the Statement of Case. Clearly, the contention that the line of the boundary was staked, as allegedly agreed with Mrs Jarvis, was not in Mr Tomlinson’s mind when he was first asked to recall the material events regarding the boundary. The evidence in his witness statement is prefaced by a reference to the File Note supplied by the Respondent. In the witness statement he says in terms that he inserted the stakes along the boundary line in the position A-B on the annexed plan. However, under cross-examination he did not maintain this evidence. His evidence regarding the stakes was quite different, and tentative in the extreme, as this passage demonstrates: “I think I had put in stakes. I remember being with Liz on the slope. I put the stakes in, she agreed it. I can’t remember how many stakes – about 18” high. I’m struggling to remember. I can remember looking at one stake. I believe I put stakes in. My main concern was where to put the driveway. I can recall one stake, on the left as you go up the hill, about 15 metres in….The stake was roughly half way up the hill, somewhere in the region of the 15 metre mark [on the plan at B142 of the Bundle]. All I can say is I believe I staked it out. Not sure of the timing of it, whether before or after purchase. I had no involvement with Strutt and Parker marking it out. I think I marked it out.” These answers, taken in conjunction with the failure to mention the insertion of the stakes at any time prior to the Respondent’s disclosure of the Attendance Note, strongly suggest to me that Mr Tomlinson has no recollection of placing the stakes, and virtually no recollection of actually seeing them. It is his own evidence that he can only remember seeing one stake. This stake, according to him, was close to the eastern boundary of the western, central, section of the “C shape”, near where the dimension “15.0” is placed on the 1998 Transfer plan. This is just to the south of the northern section of the “C shape”: well to the west of the boundary line A-B. His evidence does not therefore establish that the line of stakes A-B was inserted by him, with Mrs Jarvis’s agreement, to delineate the boundary. Indeed, the position of the one stake that he does actually recall suggests quite the opposite. This stake would have been on correct legal boundary of the Screening Land as shown on the 1998 Transfer plan. If the line A-B had been marked out at this time as he suggests, to delineate the eastern boundary of the Screening Land, why would there be a stake in the ground at a substantial distance to the west?
57. Although Mr Foster said, in his witness statement, that there were stakes on the ground when he first saw Brass Castle, and when he walked the boundaries with Mrs Jarvis, in cross-examination he said that he could not recall seeing any stakes “ because there were saplings in the way”. This appears to relate to the line A-B. It must be inferred, I think, that there cannot have been any physical delineation of the boundary at that stage, by means of stakes in the ground or otherwise, which was inconsistent with the boundary line shown on the 1998 Transfer. I say this because the stakes in the line A-B – referred to by Mr Tomlinson in his witness statement – are manifestly not on the true boundary line as marked by Mr Foster on the 1998 Transfer plan. It is improbable that Mr Foster would not have queried an apparent physical boundary feature which was so different from the dimensions given to him by Mrs Jarvis. Mrs Foster did recall, in her witness statement, seeing stakes at around the time of the purchase, which subsequently disappeared. However, these stakes were close to the southern boundary of the northern section of the “C shape” – in other words, along the legal boundary delineated on the 1998 Transfer plan. This, too, is consistent with Mr Tomlinson’s own recollection, that there was stake on the western edge of the Disputed Land.
58. Furthermore, leaving aside the witnesses’ flawed recollections, there are certain accepted facts which have a bearing on this issue. First, the initial suggestion for the sale of the Screening Land emanated from Mr Tomlinson. It was he who procured the plans – drawn in his own office – which eventually formed the basis of the 1998 Transfer. These plans were provided to both sets of solicitors from the time of their initial instruction on September 1997 and do not appears to have been altered. The configuration of the land is quite distinctive, forming the “C shape” which has been mentioned, the northern and western arms of the “C” being narrow rectangles of different widths. On the ground, this configuration can clearly be identified by reference to existing physical features, namely the edge of Top Lane to the north, the stone wall to the west, and the edge of the Bilberry Farm land to the south. The area set aside for screening purposes is therefore relatively easy to identify, and this was also the case in 1998. Secondly, Mr Tomlinson and Mrs Jarvis actually walked the land and agreed the boundaries “ as delineated on the plan”. It must be inferred, I think, that the plan is the 1998 Transfer plan. It is apparent from the terms of the Attendance Note that no physical features – such as a line of stakes – existed at that time to mark the boundary. That is why Mrs Jarvis’s solicitor suggested that the boundary should be staked out, and according to the manuscript notes on the document it seems that there may have been some discussion with Strutt and Parker to that end. There is certainly no evidence that there was a subsequent meeting between Mrs Jarvis and Mr Tomlinson at which the boundary was staked out. Thirdly, the 1998 Transfer plan was incorporated into the document within a matter of two months of the meeting on site. Fourthly, Mrs Tomlinson signed the Transfer plan, which was the same plan as had been prepared at her husband’s request. Fifthly, when Mrs Jarvis came to point out the dimensions of the Screening Land to her buyers, the Fosters, she made reference to the same 1998 Transfer plan. In fact, she must have obtained some surveying assistance by this date, since she was able to provide Mr Foster with more precise measurements than the plan itself contains. Mr Foster noted these dimensions on his copy of the Land Registry plan. The top rectangle was shown as 60 metres long on the southern boundary, 70 metres long on the northern boundary with Top Lane, and 20 metres in depth south to north. The western and central section of the “C” is shown as having a length of 70 metres.
59. Taking all this evidence together, I conclude that there was no agreement between Mr Tomlinson and Mrs Jarvis to vary the line of the boundary away from that which was clearly marked in the plan to the 1998 Transfer. I also conclude that the stakes along the line A-B (referred to by Mr Tomlinson and Mr Foster) were not in place at the time of the Fosters’ purchase. However, there is evidence that at some time between the date of the meeting between Mrs Jarvis and Mr Tomlinson, and the time when the Fosters first saw Brass Castle, some stakes had been placed in the ground. These stakes were in a position consistent with the true legal boundary. It is not clear who installed these stakes, but the only positive evidence for their existence prior to the erection of the Paddock fence in 2000 is that of Mr Tomlinson and Mrs Foster, both of who located the stakes in positions consistent with the legal boundary line, as opposed to the line A-B (being the line of the Paddock fence). On any footing, the witnesses’ vagueness regarding the position of the stakes strongly suggests that the stakes in the ground did not form a clear and identifiable boundary marker.
ISSUE (v) - THE ERECTION OF THE PADDOCK FENCE
60. It is common ground that a fence was erected by the Fosters in 2000 around the Paddock, and that the western fence line coincides with the line A-B shown on the plan attached to Mr Tomlinson’s and Mr Foster’s witness statements. In the light of all the evidence that I have heard, conflicting and inconsistent as it is, what conclusions can I draw with regard to the Fosters’ erection of the Paddock fence in 2000, and their dealings with Mr Tomlinson? First, I make the obvious point that the erection of the fence was not driven by any need or desire to mark the legal boundary. There were no boundary fences at all between the Screening Land and Brass Castle when the Fosters arrived. Neither the Tomlinsons nor Mrs Jarvis had thought it necessary to erect any, nor had any obligation been imposed by Mrs Jarvis on the Tomlinsons to do so. This reflects, no doubt, the understanding that this was an open hillside with a fairly steep slope, of little practical use, and intended to be left in its natural state apart from the planting of trees for screening purposes around the perimeter. Indeed, the existence of the restrictive covenant, limiting the use of the Screening Land to recreation, reinforced this understanding. Furthermore, the configuration of the Screening Land, forming three strips of land parallel with existing and obvious physical features, would make it relatively easy to identify the land on the ground. All three Fosters explained that the purpose of the fence was to create a safe environment for the daughter’s horse. They – in fact Mrs Foster and her daughter, being the equestrians, as Mr Foster entirely accepted – had identified an area sufficiently flat to create a Paddock. According to Leonie Foster, they walked the ground to see where it was flattest, and chose the area which is now the Paddock for that reasons. She was worried about the gorse and rabbit holes, to the west of the Paddock fence (i.e where the Disputed Land is). To the south, towards Brass Castle, lay a steep slope, hence the need to erect a post and rail fence at the top of this slope. To the west, towards the Screening Land, lay an area of gorse and marshy ground which was equally unsuitable, indeed dangerous, for the grazing of a horse. Mr Foster confirmed this in cross-examination. Hence the need to erect a fence along the western edge of the area designated as the Paddock. Manifestly, it was not the Fosters’ intention or purpose to erect a boundary fence. Secondly, I make the further point, equally obvious, that the fence as erected did not even remotely coincide with the legal boundary with the Screening Land. The Screening Land, as identified on the 1998 Transfer plan, on the annotated plan given to Mr Foster by Mrs Jarvis, and on the Brass Castle Sales Particulars, shows a configuration quite different from the line of the western Paddock fence. Not only is the western fence too far west by a considerable distance, but the depth of the Paddock north to south is probably double the depth as shown on the legal plans. Even a cursory glance at any of these plans would have revealed a serious discrepancy. Indeed, it is not credible that a fence intended to mark the legal boundary would have been erected without any reference to the legal plans. Thirdly, if the intention had been to create a boundary fence, there is no explanation for the failure to fence the southern extent of the Screening Land. Even after the Paddock fence was erected, there was no physical boundary between the Screening Land and Brass Castle in the area between the south-western corner of the Paddock Fence and the stone wall marking the western extent of the Screening Land. As Mr Foster said, that was the purpose of creating a gateway in the fence at the bottom of the slope, opposite the main entrance to Brass Castle, in order to retain access to the land west and south of the Paddock fence. The only purpose of the gate was to allow the Fosters to retain access to that part of their land that lay to the west and south of the Paddock. Mrs Foster’s evidence was that she would regularly enter the field through this gate with her dog and walk up the slope towards the Screening Land. This is disputed, but the fact remains that there was and still is no physical demarcation of the southern legal boundary of the Screening Land. All these factors indicate, and I so find, that the erection of the Paddock fence was solely intended as a safety measure for the protection of the equine inhabitant of the Paddock.
61. Mr Foster states in his witness statement said that he discussed the position of the fence with Mr and Mrs Tomlinson. In cross-examination, however, he said on several occasions that there was a line of stakes in the ground along the line A-B (just to the west of the Paddock fence) and he “ assumed” that this was the boundary with the Screening Land. He did not himself put the stakes in the ground, but assumed that Mrs Jarvis had. Mr Tomlinson, but not his wife (in cross-examination she accepted that she had nothing whatsoever to do with any discussions about the Paddock fence), said that the fence line was “ agreed” with the Fosters, but he also said that “we assumed it was a boundary fence”. In addition, there is the curious sentence in the letter dated 19 th June 2009 – Mrs Foster’s letter before action, in effect – when her solicitor wrote as follows: “My client arranged for the current fence to be erected and in order to avoid the possibility of a future boundary dispute, gave instructions that the fence be positioned well onto my client’s land.” What am I to make of this confused and contradictory evidence? In my judgment, I find that there were stakes in the ground close to the line of the western fence of the Paddock, when the fence was installed. It is not clear who put them there, save that it was not the Fosters. It may have been put there by someone acting on behalf of Mr Tomlinson, or even perhaps by the fencing contractor employed by the Fosters. It must also be borne in mind that Mr Tomlinson had carried out an extensive planting of trees on the Screening Land and on the Disputed Land prior to the erection of the fence. It may be that the stakes were inserted in connection with the tree planting. What is undeniable is that the stakes do not remotely coincide with the legal boundary , but they do reflect the extreme western extent of the usable land available for the Paddock. In other words, it seems much more likely that the stakes reflected and were intended to reflect the physical boundary between the usable paddock land and the non-usable land to the west – or even, the eastern extent of the conifer plantation – rather than any legal boundary. This is particularly so since no-one recalls actually checking the plans at this point to verify the boundary line. In my judgment, there was no express agreement about the line of the boundary, as Mr Tomlinson and Mr Foster suggest in their respective witness statements. I think it highly significant that this allegation was not made by Mr Tomlinson in his Statutory Declaration made as recently as June 2011. This, taken together with the equivocal evidence given in cross-examination by both Mr Tomlinson and Mr Foster, leads me to believe that the fence was erected without any discussion as to boundaries, albeit that Mr Foster may simply have assumed that the stakes in the ground represented the boundary. Mr Tomlinson also said that he “assumed” that the fence was on the boundary line. Neither party was in the slightest bit concerned about marking the boundary. As Mr Foster put it: “ I am not good at remembering things that didn’t concern me at the time”. As I have already explained, I do not accept the evidence of Mrs Foster in cross-examination, to the effect that she told Mr Tomlinson that she had “taken” a piece of his land, being the north-western corner of the original Paddock.
ISSUES (vi) AND (vii) - THE TREE PLANTING EVENTS
62. As the case wore on, one of the main factual disputes became resolved. The Respondent had denied that there had been any tree planting earlier than 2002 or 2003 – see her Statement of Case at paragraphs 8(6) and (7). However, in his closing submissions, Mr Petts for the Respondent accepted that, having heard the evidence, the Respondent accepted that trees were planted as early as May 1999. Mr Tomlinson described how he had bought all or part of a plantation of Christmas Trees from a local nursery, and how this had been planted by him and his employees over a period of several weekends in 1999. He produced a letter from Joe Maiden, the nurseryman, who confirmed this. Mr Blakely was one of the employees who assisted with the tree planting and also confirmed that this took place in May 1999. Mrs Foster was obliged to accept that her recollection was incorrect, and that there was an initial planting in May 1999. As she put it in cross-examination, if indeed trees had been planted in 1999, when they first saw Brass Castle, and at the time of the erection of the fence, the trees were insignificant. At all events, I find as a fact that Mr Tomlinson and his employees carried out the first planting in May 1999. The trees were young Christmas trees – more accurately, Picea abies – of varying maturity, up to 7 years old. These trees were planted over the Screening Land, and a number were also planted in the Disputed Land. This was something of an amateur operation, in that the trees were planted far too late. The growing season has already begun in May, and trees stand a much better chance of survival if planted during the dormant season, according to the experts. According to Mr Tomlinson himself, about one-third of the trees died, a combination of late planting and the poor quality of the soil on this hillside. It was also common ground that there was a second tree planting event, which took place in 2002. On this occasion, much younger trees were planted, probably three to four years old, and protected by 600mm “Tubex” tubes, which degrade over the years as the tree stems thicken. These trees were used to infill the gaps in the earlier planting.
63. The trees originally planted in 1999 and 2002 – those which survived until 2011, that is – have all been felled by Mrs Foster. However, there is some evidence as to the likely size and density of the trees as originally planted. Mr Whitehead, the Applicant’s expert, took samples of two trees immediately to the south of the wind turbine, being trees felled on the instructions of Mr Tomlinson prior to construction of the turbine. Apart from that, however, he does not seem to have carried out any more comprehensive sampling of the felled trees on the Disputed Land. Indeed, it appears that his instructions were deficient, in that he was not told that the initial planting consisted of young mature Christmas trees. Mr Park, the Respondent’s expert, did carry out a more comprehensive survey of the Disputed Land. His conclusions, in the form of a Report dated 12 th July 2012, are summarised at Appendix 1. He divided the Disputed Land into three areas. Area 1 to the east – presumably adjacent to the Paddock fence; Area 2 is the central section; and Area 3 is the area “along the western edge with the standing trees”. He found a total of 22 trees in this area which appeared to have been part of the initial 1999 planting. Of these 22 trees, 11 were situated in Area 3, along the western boundary, 6 trees were in the central section, and 5 trees in the section closest to the Paddock fence. He also identified a further 10 trees which were of later origin.
64. There is a dispute as regards the size of the trees, their density, and their appearance – i.e whether they provided an instant screen for Bilberry Farm, or whether it took a period of years before they grew into such a continuous screen. First, I shall consider the evidence of the lay witnesses. Mr Gray, the estate manager or foreman at Bilberry Farm, began work there in 2001, some two years after the initial planting. It was his evidence that at this time the trees were approximately 6 feet in height. Mr Foster stated that he could not see any stakes in the ground in 1999, when he first saw Brass Castle, because there were “ saplings” in the way. Leonie Foster said that at the time when the Paddock was created, it was still possible to see the rear windows of Bilberry Farm from Top Lane, and she denied that there were dense rows of trees planted either on the Screening Land or the Disputed Land. She could remember the second tree planting event, because her horse was spooked by the sound of the digger used for planting. Mr Tomlinson himself accepted that Bilberry Farm was still visible from the road in August 1999. Mr Foster said that the stone wall at the western boundary of the Screening Land was visible when they bought Brass Castle. Mrs Foster said the stone wall remained visible for several years. Indeed, this is quite apparent from the photograph [C 103] taken on 14 th May 2003, in which the stone wall and gorse is clearly visible.
65. Mr Whitehead and Mr Park were also asked to give their views on the likely size and density of the trees from the time of the two separate planting events. They were, however, unable to reach agreement, as their Joint Statement dated 13 th September 2012 makes clear. Specifically, they were unable to agree on the likely size of the original Christmas trees, when planted. Mr Park was of the view that a seven year old tree would have a likely height of 1.5m to 2.0m, and a canopy radius of 0.75m. Mr Whitehead opined that this understated the likely size by the order of 50%. In other words, the height was more likely to be 2m to 3m in height, and have a crown radius of 1m. Clearly, the height and width of the planted trees would have an impact on the extent to which the Disputed Land could be regarded as impenetrable to the ordinary person such as Mrs Foster. It seems to me that the balance of the lay evidence supports Mr Park’s opinion, rather than that of Mr Whitehead. If, as Mr Gray (a professional estate worker) recalled, the Christmas trees were approximately 6 feet in height in 2001, Mr Whitehead’s estimate of their size when planted in 1999 is clearly wrong. Furthermore, the fact that the tree screen was thin enough to permit clear sightings of Bilberry Farm, and of the stone wall as late as 2003, is more consistent with the lower estimate of Mr Park. If the conifer plantations had indeed formed an “ instant” screen – as Mr Tomlinson suggested – this would not of course have been possible. This conclusion is also consistent with the evidence of Mrs Foster and her daughter that the first planting of trees was insignificant and certainly did not create an obvious and identifiable plantation. My impression is that the trees were lost against the background of a large, relatively steep hillside, and did not remotely have the appearance of a formal conifer plantation that that can be seen in the photographs taken in 2010 and 2011, after an additional 10 or 11 years of growth.
ISSUE (viii) - THE DENSITY OF THE TREES
66. The other issue that the experts were asked to address was to estimate the point at which the density of the trees would prevent “normal” users (i.e not forestry workers) from entering the plantation. They were unable to agree. Based on the size of the trees in 2001, the evidence of Mrs Foster, and the photographic evidence (not including the Google photograph, which is indistinct), I conclude that the conifer plantation could be entered without difficulty until around 2006. From that time on, it would be necessary to push oneself past the trees, and I do not understand Mrs Foster to contend that she even attempted to do this.
ISSUE (ix) - THE RESPONDENT’S USE OF THE DISPUTED LAND AFTER 1999
67. Mrs Foster’s evidence is that after buying her dog, Charlie, in 2000, she regularly took him up onto the hillside above Brass Castle, including the area defined as the Disputed Land. According to her, she did this until the trees planted by Mr Tomlinson became too dense to walk through comfortably. She put this event at 2006/7. Leonie Foster also said that she let the dog run into the area by getting under the Paddock fence. She said in her witness statement that she would go up onto the Disputed Land, but was less certain about this in cross-examination. Mr Foster agreed that on occasions his wife and daughter would take the dog onto the hillside through the gate on the Drive at the bottom of the hill. Mr Tomlinson challenged this evidence. He said it would be “ very surprising” if Mrs Foster did walk the dog there, since it was very steep and covered in gorse. He said that he never saw her there. Mr Gray, the Tomlinsons’ Estate Foreman, also said that he never saw her there in his witness statement, but rowed back form this categorical statement in cross-examination. There is clearly a conflict of evidence, which I must resolve.
68. In resolving this conflict, I have regard to the following matters. First, on any footing the Fosters owned the entire hillside between Brass Castle and Top Lane, with the exception of the perimeter area which formed the Screening Land. Secondly, they fenced the Paddock for reasons unconnected with the demarcation of the boundary. Therefore, there remained a large area of the hillside within their ownership to the west and south of the Paddock, accessible by means of the gate from the Drive below which they had installed for the purpose of accessing the hillside. Thirdly, although the area immediately below the southern Paddock fence is very steep, the area to the west, leading up to the site of the wind turbine itself, is perfectly walkable in ordinary footwear by a person of average fitness – even by a London barrister in city shoes, as Mr Petts unwittingly demonstrated. Fourthly, once a dog was loose on the hillside, there would be nothing to prevent it from entering the Disputed Land, there being no physical feature preventing access, until such time as the trees grew too dense (for a human, if not a dog). Fifthly, Mrs Foster owned a dog, Charlie, which she had acquired as a puppy. She took him out several times a day on average, even, on occasions, after dark. Sixthly, according to Leonie Foster, it was her practice to let the dog run around on the hillside, which he would enter from beneath the Paddock fence. Seventhly, the dog liked to forage on the hillside and loved the smell of rabbits which were present there. It is against the background of these facts that I come to consider the “live” evidence that I have heard. I conclude that Mrs Foster did, on regular occasions, walk her dog on the hillside and into the Disputed Land and, in all probability, into parts of the Screening Land. Her evidence is entirely in accord with the inherent probabilities of the situation. Once she was through the Brass Castle gate to the north of the Drive, inevitably there would be occasions when she would enter the Disputed Land with the dog. Indeed, the contrary suggestion – that she never entered the Disputed Land – is highly improbable, not to say impossible. An occupant of Brass Castle, wanting or needing to take out the dog for a short walk, would have no reason to avoid the hillside just on the other side of the Drive and, therefore, the Disputed Land. The fact that Mr Tomlinson and Mr Gray (initially) say that they never saw Mrs Foster on the Disputed Land carries no weight. First, Mrs Foster lived full-time at Brass Castle from 1999 to 2004, did not go out to work, and was there every day. By contrast, Mr Tomlinson would be out during the working week, and Mr Gray had responsibility for 100 acres of land and had no cause to be on the Disputed Land. There would be no reason, and precious little opportunity, for them to monitor Mrs Foster’s use of the land.
ISSUE (x) - THE APPLICANTS’ USE OF THE DISPUTED LAND
69. Having heard the evidence, I conclude that the only use made of the Disputed Land by and on behalf of the Applicants was the planting of trees on the two occasions mentioned – in 1999 and 2002. The other activities referred to in the Statement of Case, Statutory Declarations and witness statements, simply evaporated under Mr Petts’s cross-examination. There was no tending of trees, once planted. There was no rearing or feeding of game birds. There was the occasional collection of Christmas trees, which may or may not have been on the Disputed Land as opposed to the Screening Land. There was the occasional shooting of rabbits by Mr Tomlinson many years ago, but he shot along the drystone wall to the west of the Screening Land. Mr Gray accepted that he had virtually nothing to do with the Disputed Land (or the Screening Land) once the second tree planting event had taken place. He had 100 acres of land to deal with, including land to the west where he would breed and rear game birds. The Disputed Land and Screening Land had no ongoing maintenance whatsoever, and no reason for Mr Gray to be there. Once the trees had been planted, there was nothing further to do on the land.
ISSUE (xi) - THE INSTALLATION OF THE WIND TURBINE
70. I shall now consider the evidence relating to the installation of the wind turbine. My findings are as follows. First, I reject any suggestion that Mrs Jarvis in some way led Mr Tomlinson to believe that the Disputed Land formed part of the land agreed to be transferred in 1998. I have already considered, at some length, the evidence of the dealings between Mr Tomlinson and Mrs Jarvis prior to the 1998 Transfer. I have concluded that they did walk the boundary – or at least some of it – at a time when the land was not staked out. Within two months of this site meeting, the parties executed the 1998 Transfer which showed the Screening Land as occupying the same area as it was intended to from the beginning of the entire transaction. Less than a year later, when Mrs Jarvis came to point out the boundaries of the Screening Land to Mr Foster, she was able to provide him with accurate and detailed dimensions of the land as shown on the Transfer plan. The Sales Particulars prepared on her instructions clearly identify the true legal boundaries of the Screening Land. Mr Tomlinson’s suggestion that he was in some way misled as to the true boundaries – a suggestion now made in the context of the Applicants’ Schedule 6 paragraph 5 estoppel claim – is entirely inconsistent with the documentation and the established facts, and is entirely improbable. It is also contradicted by Mrs Jarvis’s witness statement. I have found that Mr Tomlinson and Mrs Jarvis identified the correct boundaries when they walked the land.
71. Secondly, was Mr Tomlinson misled by Mr and Mrs Foster, as he now suggests, as to the true boundary line of the Screening Land? I have found that there was no express discussion between Mr Foster and Mr Tomlinson as to the line of the Paddock fence. I have found that Mr Foster assumed that the line of stakes A-B represented the boundary line. The origin of the line A-B is unclear, although it is clear that Mr Foster himself did not insert the stakes. Mrs Foster was not directly concerned with the boundary at all, although she chose the line of the Paddock fence with her daughter. She never had any dealings with Mr Tomlinson regarding the fence and the boundary. The purpose behind the Paddock fence was, as I have held, to delineate and enclose the area considered suitable for equestrian use. It was not, and was not intended, as a boundary fence and it must have been clear that it did not fulfil that function. Accordingly, I find that no express or implied representations were made by Mr and Mrs Foster, or either of them, as to the boundary with the Screening Land.
72. Thirdly, although the installation of the turbine was probably mentioned by Mr Tomlinson to Mr Foster at some point prior to the construction, it was not mentioned to or discussed with Mrs Foster. It is not clear exactly when the proposal was discussed with Mr Foster. In his solicitor’s letter dated 14 th January 2009 this statement appears: “The parties’ neighbour, Lawrence, asked our client early in 2008 whether he could have access over the land at Brass Castle in order to erect a wind turbine. The proposal was made on the basis that Lawrence was, at that time, seeking planning permission from the local authority and he confirmed that he would make good any damage caused in using the accessway. Our client informs us that your client was fully consulted about this and he wrote her a letter about the proposals that Lawrence had made and at no time did your client object.” The letter referred to, if it exists, has not been produced. The response to this letter by Mrs Foster’s solicitors, dated 20 th April 2009, is a denial that Mrs Foster knew about the planning application or location of the turbine, and complains that the discussions with Mr Tomlinson did not involve Mrs Foster. It must be said that Mrs Foster’s reaction in January 2009, when the turbine began to be constructed, does not suggest any pre-warning of it. Furthermore, Mr Foster’s letter of 14 th January 2009 contains an obvious inaccuracy. The planning application for the wind turbine was not made until August 2008. It seems unlikely that Mr Tomlinson would be asking for access for the construction of the turbine in early 2008, when he had not even applied for planning permission, and had no means of knowing if it would ultimately be granted. It seems much more likely that the discussions related to access generally for the purposes of the extensive rebuilding of Bilberry Farm which began in early 2008. Indeed, this is more or less what Mrs Foster’s solicitors say in their letter. Mr Foster’s own evidence is that he was informed at some point about the turbine, and indeed thought that it might well enhance the value of Brass Castle, which he described as an “asset”. Of course, it had long since ceased to be his home, and he had been divorced from Mrs Foster since 2005. It appears that there were some tensions between Mrs Foster and Mr Tomlinson with regard to the alleged damage caused to Brass Castle property by his workmen during 2008, culminating in the incident on the Drive in December 2008. He may also have been irritated that Mrs Foster had thwarted his plan to buy Brass Castle. All or some of these factors may explain why he chose not to discuss the turbine with her, as opposed to her husband, with whom he remained (and evidently remains) on very good terms. At all events, I am satisfied that at least until the turbine began to be built, Mrs Foster had no idea of the proposal and, of course, she never received any formal notice from the planning authority. Additionally, and following on from that finding, she had no advance notice that the turbine was being built – or intended to be built – on Brass Castle land. Even if Mr Foster was aware of the proposal for the turbine, he too had no reason to be informed of the exact location and I find that he was unaware of the exact location.
73. Fourthly, did Mr Tomlinson rely on anything said or done by Mrs Jarvis, Mr or Mrs Foster in applying for planning permission to locate the wind turbine on the Disputed Land? He applied for planning permission in August 2008. He did not consult either Mr or Mrs Foster at the time, although at some point he probably discussed the proposal with Mr Foster. In making the application, it was necessary to certify ownership of the subject site. There are a variety of different certificates, including Certificate A, to the effect that the applicant is the owner of the land to which the application relates. Mr Tomlinson instructed one of his employees, Mr Dewar, to complete the application and to prepare the Planning Statement. It was Mr Dewar who signed Certificate A. However, Mr Dewar was acting as the agent of the applicant, who was Mr Tomlinson himself. Clearly, Mr Dewar was acting on the basis of the instructions received from his principal which, it must be inferred, included the instruction to Mr Dewar to sign Certificate A. In this regard, Mr Tomlinson either failed to check the dimensions of the land which his wife owned, or, alternatively, knew that the land was not owned by him. In fact, on any footing the certificate was inaccurate, since Mr Tomlinson has never owned the Screening Land – his wife owns it. It seems unlikely that Mr Tomlinson actually bothered to check the filed plan before submitting the application, and I so infer. His failure to do so was not the result of any express or implied representation made by Mrs Jarvis or the Fosters. It was purely the result of his failure to take this elementary precaution.
74. In this regard, it is instructive to see how Mr Tomlinson conducted himself even after it was pointed out to him that the turbine created a trespass on Brass Castle land. I am referring to Newtons’ letter dated 19 th June 2009. At this time, it was alleged that the turbine was in effect oversailing the legal boundary. No boundary survey had been carried out at this time, but nevertheless the allegation was made quite clearly. Mr Tomlinson’s response was as follows: “ I think your client would be better taking professional medical advice rather than that of a solicitor. Since her husband left her she seems to have become mentally unbalanced, as her advisor you should perhaps consider this position, rather than running up a big bill for her”. In other words, Mr Tomlinson was not concerned in the slightest to verify whether, in fact, the turbine was causing a trespass. He took no steps at this stage, so it appears, to check whether the turbine had been correctly sited (it had not been), nor indeed where the legal boundary lay. He simply brushed off the allegation. He does not give the impression of a person who relies much on others when taking decisions, and I do not consider that he relied on any third party representations or conduct in placing the turbine in the position that he did. In this connection, it is also worth bearing in mind that he placed the wind turbine on the very edge of his wife’s land. The turbine was placed immediately adjacent to the Paddock fence, and the turbine actually oversailed it. If Mr Tomlinson actually believed that the boundary of the Screening Land followed the line of the Paddock fence, it seems extraordinary that he would locate the turbine so close to his neighbour’s land, without actually verifying the line of the boundary, or obtaining a detailed survey.
SECTION 10 – CONCLUSIONS ON THE LAW
THE RELEVANT PROVISIONS OF SCHEDULE 6
75. Before I try and relate the findings of fact to the Applicants’ claim, I shall recapitulate the provisions of Schedule 6 of the 2002 Act that the Applicants rely upon. In view of the terms of the Respondent’s (second) NAP counter-notice, the Applicants accept that they must not only prove adverse possession for a period of at least ten years ending on the date of the application (June 2011), but they must also satisfy the specified conditions under paragraph 5 of Schedule 6, namely the first and third conditions, which are as follows:
(2) The first condition is that—
(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and
(b) the circumstances are such that the applicant ought to be registered as the proprietor……………………………………………...
(4) The third condition is that—
(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application.
76. The Applicants must therefore establish, in addition to adverse possession itself, that “…. it would be unconscionable because of an equity by estoppel….” for the paper title owner to obtain possession, and (b) “….. the circumstances are such that the applicant ought to be registered as the proprietor..”. Alternatively , that “ for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”, the other elements of the third condition being satisfied . In relation to the first condition, it is worth making the point that the squatter is presented with a number of separate hurdles to overcome. First, an estoppel must be established – as to which the general principles are well-known (see Megarry & Wade’s Law of Real Property (8 th ed.) at 16-001 to 16-033. This means, in broad brush terms, that the representor has encouraged the representee to act to his detriment, or has acquiesced in the representee’s actions in the knowledge that he has a mistaken belief as to his rights. The representation, and the detriment has to be proved. Secondly, the recovery of possession by the paper title owner must be “unconscionable”. It might be thought that proof of an estoppel necessarily imports a degree of unconscionability, but under paragraph 5 clearly this is a separate matter to be proved. Finally, even if these two elements are proved, the squatter must also establish that “…. the circumstances are such that the applicant ought to be registered as the proprietor..”. This indicates that there is a discretion whether to confer title on the squatter, even where an estoppel and unconscionable conduct is proved. This ties in with the power given to the Adjudicator under section 110(4) of the 2002 Act to give effect to the estoppel by some remedy other than vesting the title in the squatter.
PRINCIPLES OF ADVERSE POSSESSION
77. I have briefly stated the legal principles underlying the doctrine of adverse possession at Paragraph 23. In deciding whether adverse possession has been established, the fact that this is a claim brought under Schedule 6 of the 2002 Act – the new regime – does not alter the relevant tests as established under the old law. Exclusive factual possession for a continuous period of ten years must be shown, together with the necessary intention to possess. At paragraph 41 of J.A Pye (Oxford) Ltd v Graham, Lord Browne-Wilkinson expressly approved the following passage from the first instance decision in Powell v McFarlane (1977) 38 P & C 452 . “Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”. This oft-quoted passage highlights some fundamental points. First, the squatter’s possession must be single and exclusive – the paper title owner and the squatter cannot both be in possession at the same time. In this regard, another passage from Slade J’s judgment (at page 470) is germane: “In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession … to the paper owner…”. Secondly, what acts constitute a sufficient degree of “exclusive physical control” must depend on the nature of the land and the manner in which it might be expected to be used. As to the required “intention to possess”, this was discussed by Lord Browne-Wilkinson in Pye as follows: “ This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell's case 38 P & CR 452, 471 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. 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." .
78. The following passage in Slade J’s judgment at page 472 provides further assistance in regard to intention to possess: “ An owner or other person with the right to possession of land will be readily assumed have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently not having dispossessed the owner”.
FACTUAL POSSESSION
79. As I have found, the only acts of possession that the Applicants are able to prove consist of the two separate tree planting events, in May 1999 and March 2002. The simple question, therefore, is whether these two activities, taken together or separately, amount to “….. a sufficient degree of exclusive physical control……” in the “…….circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.” Mr Dray refers me to Lord St. Leonards v Ashburner (1870) 21 L.T. 595, per Bramwell B at page 596, and the statement that planting trees is one of the most cogent pieces of evidence of possession that can possibly be given. He reinforces this with a passage from Jourdan and Radley-Gardner, Adverse Possession (2 nd ed.) at para. 13-30 et seq., to the effect that the cultivation of land involving the breaking up of its surface amounts to complete physical control of the land and is an unambiguous act of possession. Of course, there may be situations where the planting of trees amounts to a taking of exclusive factual possession. The Ashburner case itself was perhaps slightly off the point, in that it was a claim by a paper title owner for possession against an alleged trespasser. The Defendant denied the Plaintiff’s title, which was based on conveyance in which the parcels description and plan was ambiguous. The Plaintiff had planted trees on what he believed to be his side of the legal boundary. The Judge, in his address to the jury (this being an Assize case) instructed them that the tree planting was evidence of actual enjoyment of the disputed land. From this evidence they could infer that the land belonged to the party claiming paper title. In effect, this was a case on the admissibility of extrinsic evidence (of subsequent conduct) in the construction of a conveyance. This is not to say that the case cannot provide some guidance, but it cannot be treated as laying down any general principle material in the instant reference. Similarly, if a squatter takes possession of an enclosed field, ploughs it up and plants a crop, it would be difficult to argue that this was anything less than an unambiguous act of possession.
80. In the present case, however, the situation is markedly different. The hillside above Brass Castle is rough, open land, with a noticeable gradient. The areas around the perimeter were for the express purpose of creating a natural wooded screen for the benefit of both Brass Castle and Bilberry Farm. In their evidence Mr Tomlinson, Mr Foster and Mrs Foster all said that they had no interest in identifying the exact boundaries of the land. It simply did not concern them. When they bought Brass Castle, the Fosters identified the only usable piece of land on the hillside, fenced it and turned into a Paddock. The remainder of the hillside was left open, to be enjoyed for its contribution to the rural scene, for the exercising of Mrs Foster’s dog and, it would seem, for the planting of trees for screening purposes for the benefit of both parties. No fences were in place preventing free access to the entire hillside from the gate at the bottom of the Drive, deliberately installed by the Fosters in order to retain access to the areas outside the Paddock fencing. In May 1999 trees were planted inside the Screening Land, and some trees were also planted outside the unmarked legal boundary, on the Disputed Land. Mrs Jarvis, according to her witness statement, albeit one untested by cross-examination, did not even notice these: “ I cannot recall seeing any saplings or trees prior to moving out of Brass Castle in September 1999.” More trees were planted in 2002. The likelihood is that the trees planted within the Disputed Land were unobtrusive, and as I have held were not for many years large or dense enough to form a screen. They were not harvested, and no work was done to them. Mrs Foster continued to access the Disputed Land whenever she wished to do so, at least until 2006. The Tomlinsons never erected a fence or other barrier outside the Disputed Land, which was itself open to the Screening Land, and there were no notices or other indications that the land belonged to them. Essentially, this was an open, uncultivated hillside on which trees were growing. In my judgment, the Tomlinsons did not have exclusive factual possession of the land until, at the earliest, 2006, when the tree screen grew too dense for dog walking. To the extent that the wind turbine and associated machine house are situated on the Disputed Land, they do amount to exclusive factual possession of land enclosed within the footprint, but this will have occurred in late 2008 or early 2009.
INTENTION TO POSSESS
81. Nor do I consider that ever had an intention to possess, until the erection of the wind turbine. Mrs Tomlinson had no material intention whatsoever. She did not give the Disputed Land and its boundaries a second thought. She left everything to her husband. As for Mr Tomlinson, the mere act of planting trees on the Disputed Land, given the character of the site, and the relaxed attitude of all relevant parties to the boundary line, without more, does not begin to meet the necessary requirements, as follows: “ the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently not having dispossessed the owner”. Until the erection of the turbine, Mr Tomlinson did not have the requisite animus possidendi.
THE PARAGRAPH 5 CONDITIONS
82. Mr Dray, in his closing submissions, put the case on the Paragraph 5 conditions in this way. He relied on the following matters, namely:
a. An alleged agreement with Mrs Jarvis in 1998 as to the true boundary line, which amounts to a continuing representation that the line A-B constituted the legal boundary. In reliance on that representation, coupled with her failure to object to the first tree planting event, Mr Tomlinson incurred expense when he planted the Christmas trees in or about May 1999. The planting of trees amounts to detrimental reliance.
b. As soon as the trees were planted, a court would have satisfied the estoppel by ordering that the Disputed Land should vest in Mr Tomlinson.
c. A further representation was made by Mr Foster in 2000, in that he erected the Paddock fence along the line A-B. This amounts to an express or implied representation that the boundary was other than as shown on the legal title.
d. The second tree planting event in 2002 constitutes further detrimental reliance.
e. Mr Tomlinson was induced or encouraged to site the wind turbine on the Disputed Land by reason of the Fosters’ acquiescence in its construction. The turbine was placed on the Disputed Land in the mistaken belief, encouraged by the Fosters, that the land was his.
f. Mrs Foster is also estopped from relying on the restrictive covenant in the 1998 Transfer, that would have prevented the erection of the turbine without her written consent. Her inaction now prevents her from relying on it.
g. The only just way of satisfying the estoppel is to register Mr and/or Mrs Tomlinson as proprietors of the Disputed Land. It would be unconscionable for Mrs Foster to insist on her strict rights, and to retain the Disputed Land in her title.
h. Mrs Tomlinson believed that the Disputed Land belonged to her. This belief was the result of the representations made by Mrs Jarvis and the Fosters.
i. This belief was at all material times a reasonable belief, given that she was encouraged to believe it by the acquiescence and inaction of the successive owners of Brass Castle, when they failed to challenge the tree planting.
j. All parties in fact shared the same belief as to the true line of the boundary. Therefore the belief cannot be said to have been unreasonable.
83. With regard to Mr Dray’s submission at 81(a), I would note that the Applicants have not applied to the Adjudicator (under section 108(2) of the 2002 Act), or to the Court, to rectify the 1998 Transfer. The whole thrust of the Applicants’ case, as originally framed, was that in some way Mrs Jarvis had agreed to vary the boundaries of the Screening Land to accord with the line A-B. That comes close to a claim that the 1998 Transfer did not accord with the true intentions of the parties to it. For their own reasons, the Applicants have not put their claim in this way. However, for their allegation of estoppel to succeed, they must persuade me that the clear terms of the 1998 Transfer and plan were varied, orally, in a conversation between the vendor Mrs Jarvis, and the purchaser’s husband that took place within a short period of the execution of the document. The court or tribunal is entitled to require cogent evidence to support such an allegation, whether the case is put in rectification or estoppel.
CONCLUSIONS - ESTOPPEL
84. In the light of the findings of fact which I have made, my conclusions with regard to the Applicant’s case on the first and third conditions of paragraph 5 of Schedule 6 are as follows:
a. Mrs Jarvis never agreed or otherwise represented that the legal boundary was anywhere other than as shown on the 1998 Transfer plan. If there was any misunderstanding, it was attributable to Mr Tomlinson alone.
b. When Mr Tomlinson planted the trees on the first occasion, he did not so in reliance on any agreement with or representation by Mrs Jarvis. He did so because he was careless where the true boundary was, and did not take the trouble to verify its position by reference to the filed plan or more detailed scale drawing which he himself had commissioned.
c. Mrs Jarvis did not, it is true, object to the planting of the trees. However, it must be borne in mind that she had already put Brass Castle on the market, and had sold the property subject to contract to the Fosters. I infer this from the timescale, and the Fosters’ evidence that they made an offer for the house in the Spring. The planting would not have been of any interest to her. In any event, the planting took place in the general area of the Screening Land, towards the top of Norwood Edge, and, given the relatively small size of the trees, would have been fairly unobtrusive. Her own witness statement suggests that she had not even seen the trees.
d. It is true that Mr Foster erected a fence along the line A-B. He may have done this in the erroneous belief that it marked the boundary. However, it was never intended as a boundary fence, for the reasons I have explained. Furthermore, he did not have any discussion with the Tomlinsons as to the true line of the boundary. At most, he had an erroneous assumption about the boundary. Nor did he place any stakes in the ground.
e. For the same reasons as I have given in relation to the first tree planting, on the second occasion Mr Tomlinson did not rely on anything said or done by the Fosters.
f. When Mr Tomlinson came to consider the idea of a wind turbine, gave instructions for the Planning submission, and made an application for planning permission, he did not consult or involve Mrs Foster in any way. This is notwithstanding that the Planning submission states emphatically that the power generated by the wind turbine was for the benefit of both properties. Although at some point Mr Tomlinson mentioned the proposal to Mr Foster, he does not seem to have told him the details, and the likelihood is that he told him after he had obtained planning permission. Mr Tomlinson was well aware that Mr and Mrs Foster had divorced, that relations between them were acrimonious, and that Mr Foster had ceased to reside at Brass Castle. It seems that there might be one or more explanations for his failure to mention the wind turbine to Mrs Foster. First, he was on poor terms with her. There is evidence that he was rude when she complained about his builders damaging her property, and blocking her access. His reaction to her solicitor’s letter before action suggests that he had developed considerable animus towards her by that date (June 2009). It may be that he did not tell her because he knew that she would have a negative reaction. Either way, she never had a proper opportunity of objecting to the wind turbine and its location.
g. As to the location of the turbine, Mr Tomlinson’s planning application placed the turbine some 5 metres south of its position as constructed. It was located there in the scale plan BIL-100-009 (dated 23 rd July 2008) submitted with the application. The plan was prepared in-house by one of Mr Tomlinson’s employees. It shows the turbine as being situated immediately to the north of a thick black line that runs west from the Paddock fence and then curves around in a C shape to end up at a point farther east, on the Drive close to the gated entrance into Bilberry Farm. This line bears no relation to the legal boundary shown on the filed plan, nor to any fence or other physical boundary feature. Nevertheless, it certainly gives the impression that the turbine is situated within Mr Tomlinson’s land. If this plan had been compared with the filed plan relating to the Screening Land, it would have been immediately apparent that the proposed turbine was situated on Brass Castle land. Given that the planning application required the applicant, Mr Tomlinson, to give the formal Certificate of ownership, the failure to take any elementary steps to ascertain whether the turbine was within Mr (or rather Mrs) Tomlinson’s land is simple carelessness. It was not the result of anything that Mrs Foster did or failed to so.
UNCONSCIONABILITY
85. Even if the bare bones of an estoppel had been made out, I do not consider that it would be “ unconscionable” for Mrs Foster to seek to dispossess the Applicants. At worst, Mrs Foster would have been guilty of an unwitting representation as to the boundary. Essentially, both Mr Tomlinson and the Fosters would have been mistaken as to the true boundary line. The Fosters did nothing active to encourage Mr Tomlinson to do anything on the Disputed Land, nor could they be said to have knowingly acquiesced in his mistaken belief (if proved) in the boundary line. In relation to the wind turbine, it seems to me that the following factors militate against any finding of unconscionability on the part of Mrs Foster;
a. Mr Tomlinson obtained planning permission in the first place by reason of a clear misrepresentation, namely that the turbine was intended to benefit Brass Castle. This was quite untrue. It matters not whether the misrepresentation was deliberate or merely careless. The effect is the same.
b. The direct and foreseeable result of this misrepresentation was to deprive Mrs Foster of the opportunity to object to the proposal. Unsurprisingly, Harrogate Borough Council assumed that the reference to Brass Castle in the planning documents meant that the owners of Brass Caste supported the application. The consequences have been disastrous for her – see the Proof of Mr Barry Gill quoted above.
c. Mr Tomlinson would not have obtained planning permission if he had not instructed his agent to sign Certificate A in the planning application form, certifying his ownership of the subject land. A basic check of the legal title would have revealed the error. A planning application is a formal process with legal consequences, and a certificate of ownership should not be completed carelessly.
d. It was never intended that a structure such as the wind turbine should be constructed on the Disputed Land or Screening Land. It was intended for screening purposes only, as evidenced by the imposition of a restrictive covenant limiting its use to recreational purposes. Mr Tomlinson, through his Counsel, indicated that he does not consider himself bound by the restrictive covenant, and will argue that Mrs Foster has lost the ability to enforce it through acquiescence. It seems scarcely conscionable that Mr Tomlinson could rely on the equitable doctrine of estoppel to achieve this singularly inequitable consequence.
e. The Planning Statement states that “… the turbine could be removed as easily as it is installed and could potentially be classified as a temporary structure…” This is in line with Mr Tomlinson’s email dated 3 rd August 2010, sent to Mrs Foster’s solicitor in connection with an abortive attempt to settle the dispute just after Harrogate Borough Council threatened Enforcement proceedings. “ I am happy with the position regarding the wind turbine, in the fullness of time it will be re-commissioned and we are currently being paid compensation by the wind turbine manufacturer whilst its use has been prohibited by the local authority….The exact positioning of it is a matter for debate and should it require moving we can move it a metre or two at very little cost.” If these statements are to be taken at face value, this suggests that there would be no difficulty in re-siting the turbine elsewhere in Bilberry Farm if necessary, subject of course to planning permission.
f. Mr Tomlinson’s behaviour towards Mrs Foster with regard to the wind turbine has been arrogant and provocative throughout. He has refused to take responsibility for the misrepresentations made to Harrogate Borough Council. He has never accepted that the turbine constitutes a trespass. His reaction to Mrs Foster’s entirely justified complaints have been contemptuous and aggressive. He has never once acknowledged that the erection of the wind turbine, in a position which dominates Brass Castle and compromises its rural surroundings, might have caused justified distress to Mrs Foster.
I do not consider that any owner of Brass Castle has acted unconscionably towards the Tomlinsons or either of them.
APPLICATION OF SECTION 110(4)
86. Even if the Applicants had been able to satisfy the requirements of paragraph 5(2)(a), this is not a case in my judgment where the Applicants ought to be registered as the proprietors of the land, for all the reasons given above. Under section 110(4) of the 2002 Act the Adjudicator may decide on the most appropriate method of giving effect to the estoppel. In my judgment, the correct outcome in this case (if the condition had been satisfied) would be to allow the Applicants a limited period within which to dismantle and remove the wind turbine and re-erect it elsewhere if they are allowed to. I have heard no evidence on this point, but in view of the statements referred to in Paragraph 80(e) of this Decision, I would imagine that a period of three months would suffice. However, in view of my rejection of the Applicants’ case on the first condition, this is academic, unless the matter should go further.
CONCLUSIONS – THE THIRD CONDITION
87. As to Mrs Tomlinson’s “ reasonable belief” in her ownership of the Disputed Land, my findings are as follows. Her witness statement was quite specific (see paragraphs 8 to 11) in supporting her husband’s recollection as to the site meeting with Mrs Jarvis, the insertion of the stakes, and that “both my husband and I believed that they [the stakes] were on the boundary between the Land and Brass Castle…”. In paragraph 16 she states that she was involved in discussions with Mr Foster about the Paddock fence, and they agreed that the fence line would run on the Brass Castle side of the stakes. Under cross-examination, she could not maintain this evidence. She accepted that the negotiation and purchase of the Screening Land was her husband’s “ project”, albeit that the land was put into her name (as was Bilberry Farm itself). She accepted that she was not involved in any discussions with Mr and Mrs Jarvis. She accepted that she was not involved in any site meeting, or walking the land with Mrs Jarvis. She accepted that the insertion of the stakes were nothing to do with her. When the statement “ both my husband and I believed that they [the stakes] were on the boundary between the Land and Brass Castle…”, she said that “ it was more my husband’s belief”. She was asked about the first tree planting episode in 1999. Her answer was “I was pregnant. It was a long time ago. I would have walked up to the gate at the bottom of the “C”..” She accepted that the erection of the Paddock fence and the alleged discussion with Mr Foster was “nothing to do with me”. She did not recall signing the 1998 Transfer, although she could remember buying the land. The whole tenor of her evidence was that she had nothing to do with the purchase of the Screening Land, nor with any discussions concerning the boundaries, or with the demarcation of them. Her husband dealt with all these matters – she merely supplied a signature on the documentation, and (according to Mr Blakely), tea and bacon sandwiches at the bottom of the slope, far away from the Disputed Land itself, when the trees were first planted. On the basis of this evidence, I conclude that she never had any material belief that she owned the Disputed Land. Of course, she believed that she owned the Screening Land, but she never had occasion to direct her mind to the precise extent of that land.
88. If I am wrong about this, and she did believe that she owned the Disputed Land, I conclude that this belief was unreasonable. I have regard to the test propounded in the recent case of IAM Group Ltd v Chowdrey [2012] EWCA Civ 505 per Etherton LJ at para. 27, which is in the following terms: “In my judgment, the issue is not the knowledge of a reasonably competent solicitor acting for the respondent in 1993. We are not here concerned with knowledge in the context, which frequently arises, of imputing an agent’s knowledge to the principal. We are here concerned with the requirement as to the reasonable belief of a particular person. In this case, it is the respondent, but generally it is the person who is seeking to apply for registration of title by virtue of adverse possession. What is in issue therefore is not imputed knowledge but rather whether that particular person – here the respondent – was reasonable in holding the belief that he or she did in all the circumstances. That can involve a question as to whether the respondent should have made enquiries of his solicitors or elsewhere as to whether, notwithstanding his purchase of the freehold of No. 26a in 1993, the disputed property was in fact comprised within his paper title.” In the present case, there were no clear boundary features present on the hillside above Brass Castle. The Paddock fence manifestly did not mark the boundaries of the Screening Land: at best, it might have marked the eastern boundary of the northern rectangle alone. There was no other feature which might reasonably be relied upon as marking the boundary. If she did believe that she was entitled to more than the Screening Land, the belief was unreasonable, given that she had executed the 1998 Transfer and signed the plan. If she was in any doubt, she could easily have checked her own filed plan to ascertain the true position.
89. Even if Mrs Tomlinson did have a reasonable belief in the ownership of the Disputed Land, she could not have held that reasonable belief for the required period. Following the recent decision of the Court of Appeal in Zarb v Parry [2011] EWCA Civ 1306, Mrs Tomlinson must prove that she reasonably have held the belief at all times up to the making of the application for adverse possession, in June 2011. Mrs Foster, through her solicitors, had raised the issue of trespass in June 2009 in a detailed letter. In August 2010 Harrogate Borough Council had surveyed the area, and notified Mr Tomlinson that the turbine had been built on the Respondent’s land. In April 2011 the Applicants’ own survey had confirmed this. Any belief in the ownership of the Disputed Land must have become unreasonable, on an objective test, by the middle of 2009. Although there may be some criticisms of the Zarb decision – albeit that it was decided by a three judge court presided over by the Master of the Rolls – for present purposes it is clearly binding on me and I must therefore apply it.
SECTION 11 - SUMMARY OF CONCLUSIONS
90. My conclusions with regard to the Applicants’ referred application dated 24 th June 2011 are as follows:
a. The Applicants are unable to establish exclusive factual possession of the Disputed Land for a continuous period of ten years terminating on or before 24 th June 2011. The earliest arguable date for entry into exclusive factual possession would be approximately 2006 when the trees became too thick to allow easy entry by Mrs Foster.
b. The Applicants cannot establish an intention to possess until 2008/2009, and then only in relation to the area covered by the wind turbine and associated structures.
c. The Applicants are unable to establish the first condition under paragraph 5 of Schedule 6.
d. Mrs Tomlinson is unable to establish the third condition under paragraph 5 of Schedule 6.
91. I shall therefore direct the Chief Land Registrar to cancel the Applicants’ application dated 24 th June 2011. I see no reason why the Applicants should not bear the Respondent’s costs on the standard basis, to be subject to a detailed assessment. If the Applicants wish to contend for a different order, they must serve written reasons on the Respondent and the Adjudicator on or before Friday 11 th January 2013, which should allow ample time notwithstanding the intervening holidays. The Respondent may respond in writing within 7 days thereafter.
Dated this 20 th day of December 2012
BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY