REF/2013/0259

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

EDWARD PEARCE

APPLICANT

 

and

 

REGINALD ALBERT PHILLIPS

RESPONDENT

 

 

 

Property Address: Land on the west side of Leek Road, Burbage

 

Before: David Holland QC sitting as Judge of the First-tier Tribunal

 

Philip Byrne (Direct Access) appeared for the Applicant

 

Serena Gowling (Harrison Clark Shawcross) appeared for the Respondent

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

KEYWORDS-interpretation of transfer-whether tract of land not lined in red on plan nevertheless included-adverse possession of grazing land.

 

LEGISLATION CITED-Limitation Act 1980 sections 17, 29 and Schedule 1.

 

TEXTBOOKS CITED- ADVERSE POSSESSION: JOURDAN AND RADLEY GARDNER (2 ^nd edition)

 

AUTHORITIES CITED- PENNOCK V HODGSON [2010] EWCA Civ 873; TAYLOR V LAMBERT [2012] EWCA Civ 3; ALAN WIBBERLEY V INSLEY [1999] 1 WLR 894; WIGGINTON & MILNER V WINSTER [1978] 1 WLR 1462; FREEGUARD V ROGERS [1999] 1 WLR 375; PYE V GRAHAM [2003] 1 AC 419; SMART V LAMBETH [2014] HLR 7.

 

 

 

1. This case arises from an application made by the Applicant on 6 ^th September 2012 for first registration of a tract of land having an area of approximately ¼ acre and sometimes referred to as “Burbage Old Reservoir” (“the application land”). The Respondent objected and the matter was, on 5 ^th April 2013, referred to what is now the Land Registration Division of the Property Chamber to the First-tier Tribunal.

 

2. I had a site visit on 10 ^th February 2014 and held a hearing on 11 ^th and 12 ^th February 2014. I heard evidence from the following witnesses: the Applicant; the Respondent’s son, Robert Philips; the Respondent himself and Mr Gordon Grindey. The Applicant was represented by Mr Byrne and the Respondent was represented by Ms Gowling. I had submissions from them, both written and oral, for which I am very grateful.

 

3. Overall, there are two main issues which I have to decide:

                                                        i.             Whether a transfer of land to the Applicant dated 29 ^th November 1999 (“the 1999 transfer”) included the application land. In other words: does the Applicant have paper title to the application land?

                                                      ii.             If the Applicant can otherwise show paper title, whether that title has been extinguished by adverse possession.

 

The geography

 

4. There are various tracts of land to which I will have to refer. I shall now seek to describe them.

 

5. The area with which I am concerned is situated just to the north of the A54 road from Buxton to Macclesfield just south of the village or townland of Burbage which in turn is just on the outskirts (and to the southwest) of the town of Buxton in Derbyshire. If one leaves Buxton heading towards Leek and Macclesfield, just to the south of Burbage, the A53 heads off to the south towards Leek. If one keeps to the right on the A54 towards Macclesfield, one will immediately encounter the relevant area which is situated on one side and to the north of the road. It is on the edge of the Peak District National Park.

 

6. The land slopes from south to north down towards the river Wye and some housing along the Macclesfield Old Road and Anncroft Road to the north. Sitting above the level of the road, and immediately to the south of it, is a substantial dwelling, Bridgehouse Farm, which is owned and occupied by the Respondent. He also owns and farms tracts of the farmland to the south of the road. As we shall see, he also occupies and farms the application land and the field in which it is situated.

 

7. The application land is a roughly rectangular tract of land. It is situated roughly in the middle of a large field (referred to in this case as “the northern land” but also sometimes referred to as “Canholes”). The northern land totally surrounds the application land which is not in any way fenced off from, or demarcated within it. There is no defined path or track leading from the field gate into the northern land from the road towards the application land. Thus to the untutored eye, standing at the road and looking northwards down the slope towards the river Wye, the northern land presents itself as a large undulating field used for grazing sheep. There is nothing which would currently indicate that there is a separate tract of land within the middle of the field which is in separate ownership.

 

8. However, it is clear that the application land is the site of a small and long-disused reservoir. If one walks into the northern land one can, if one is looking for it, make out a rectangular area which is lower and flatter than the immediately surrounding land. At the southern end one can see a low stone wall. This must have been one of the walls of the reservoir. It now protrudes no more than one foot or 18 inches above the ground and acts as a retaining wall for the land above it to the south. Neither party produced any surveyed plans or measurements of the area. My estimate is that this wall runs for about 20 feet or so in a roughly east-west direction. Virtually on top of this wall there is situated what is clearly an old metal pipe which runs the length of the wall before disappearing into the ground at either end. On the site visit this pipe appeared to me to be leaking water. To the south of this rectangular flatter area, the land falls away more steeply and one can imagine that this was the retaining structure or banking of the original reservoir.

 

9. Thus if one knows that there is a former and now filled-in reservoir there, one can readily discern its location within the northern field. However neither party purported to try to identify its exact dimensions or boundaries.

 

10. The northern land and the application land within it are currently unregistered. The northern land is itself enclosed by a stone wall.

 

11. Situated immediately to the west of the northern land, and on higher ground, is the other tract of land with which I am principally concerned. This is the land which is currently registered in the name of the Applicant under title number DY316336 (“the reservoir land”). This is the site of another, much larger, former reservoir which was drained in 1994 and filled in by the Applicant over a number of years until 2010. I assume that before the reservoir on this land was constructed, it sloped from the south down in a northerly direction towards the river on the same gradient as the northern land. However construction of the reservoir resulted in a level area at the southern end (the reservoir itself) and a steep bank (being the retaining structure) to the north.

 

12. At its south western point, the reservoir land has a vehicular entrance from the northern side of the road almost directly opposite Bridgehouse Farm to the south. However, although its southern edge runs roughly alongside the road, it does not border it. Between the southern edge of the reservoir land and the road there is a thin strip of land which is the site of a former railway line which crossed the road via a (now demolished) bridge just to the north of Bridgehouse Farm. This strip of land which runs along the southern boundary of the reservoir land and then broadens into the field to its western boundary is part of the Bridgehouse Farm lands and is now owned by the Respondent.

 

13. It is important to note that there is a distance of well over 100 metres between the eastern boundary of the reservoir land and the nearest possible boundary of the application land.

 

The history up to 1999

 

14. The first relevant event of note is a conveyance dated 13 ^th August 1894 between the Duke of Devonshire and the Buxton Local Board. This is one of the three conveyances mentioned in the 1999 transfer. I was provided with a copy of this. It appears to convey the bulk of the reservoir land. On the plan annexed to it one can clearly see the application land marked as “Reservoir Buxton Local Board” in a rectangular shape with pipes shown leading off it. The railway line is shown crossing the road and running between it and the southern part of the land conveyed.

 

15. In the trial bundles there was a copy of the 1898 OS map. The northern land is marked as “Canholes”. The application land is clearly marked in a rectangular shape as “Reservoir”. There is now on the reservoir land another larger reservoir marked as “Burbage Reservoir”. This to my mind is important. Both the Respondent and Mr Grindey told me that, so far as they were concerned, the reservoir on the reservoir land was always known locally as “Burbage Reservoir”. Mr Grindey is 69 years of age and has lived very close to this area for the entirety of his life. The Respondent’s first memories of the area date back to 1963. Indeed the Respondent’s evidence was that there was at one stage a sign at the road entrance to the reservoir land (which I have described above) and which had “Burbage Reservoir” on it. I accept the evidence of the Respondent and Mr Grindey which was not challenged in this regard.

 

16. The next important matter is a conveyance dated 18 ^th January 1905 made between the Duke of Devonshire as transferor and The Urban District Council of Buxton as transferee (“the 1905 conveyance”). A copy of this conveyance was in the trial bundles. The land conveyed is thus described:

“all that piece of land partially covered in water situate at or near Burbage in the Township of Harlington Upper Quarter in the said County of Derby and known as the Burbage Old Reservoir containing a superficial area of one rood one pole and sixteen square yards or thereabouts as the same is more particularly delineated and described in the plan drawn in the margin of these presents and thereon coloured yellow and blue Secondly all those two pieces of land situate at or near Burbage aforesaid and adjoining the new Burbage Reservoir also more particularly delineated and described on the said Plan and coloured green the larger of which contains a superficial area of thirty five poles and eleven yards or thereabouts and the smaller plot seventeen poles sixteen yards or thereabouts”.

The area coloured yellow and blue on the plan is the application land. The separate areas coloured green are on what is now the eastern edge of the reservoir land towards the south western edge of the northern land.

 

17. The 1905 conveyance also includes the following rights granted to the transferee:

“By way of Conveyance and not of exception wayleave rights of laying maintaining examining repairing and relaying lines of supply and service pipes not exceeding four inches in diameter to and from the said Reservoir such lines of pipes to be laid through the lands of the Duke in the lines and directions shewn by red lines upon the said plan And also together with a right of entering with Inspectors Workmen horses and carts laden or unladen at the point marked A upon the said plan upon the lands of the Duke fifteen feet in width in the course and direction shewn by purple colour on the said plan for the purpose of obtaining access to the said Old Burbage Reservoir from the Macclesfield Road. And also together with a right of entering as aforesaid with Inspectors Workmen horses and carts laden and unladen upon the lands of the Duke within a limit of five feet on either side of the course or direction in which the said lines of pipes are hereinbefore expressly permitted to be laid for the purpose of examining repairing and relaying the said lines of pipes as may from time to time be necessary the Council hereby covenant with the Duke that they the Council upon every occasion of entering upon the lands of the Duke under which the said lines of supply and service pipes are or may be laid as aforesaid will not do nor cause to be done any unnecessary damage to the said land so entered upon And also will make full compensation to the Tenant or Tenants Occupier or Occupiers of the said lands for any damage that mat be occasioned to the said lands or any of the crops or the herbage thereon”.

 

18. The plan shows two red lines each marked “4 inch C.I. pipe” running into the application land from the northeast and the northwest. There is also a band of purple colouring running in a straight line from the south western corner of the application land to the road whereon there is an “A” marked. I note that, from my recollection of the site visit, there is now no gate or entrance at that point. Nor, as I have stated, is there now any defined track from the road to the application land.

 

19. The 1905 conveyance is important as it the basis for the Applicant’s claim to have paper title to the application land and thus to be registered as the freehold proprietor of it.

 

20. It is however important to note in my view that, in the text and on the plan in the 1905 conveyance, the application land is referred to as “Burbage Old Reservoir” whilst, on the plan, the reservoir on the reservoir land is referred to as “Burbage Reservoir”.

 

21. The next relevant matter is a conveyance dated 1 ^st December 1943 made between the London Midland and Scottish Railway and Buxton Corporation. This is the third conveyance referred to in the 1999 transfer. I have not seen a full copy of this but it appears to be agreed that it would have transferred the southernmost part of what is now the reservoir land. I have been provided with a copy of the conveyance plan. The land marked as being conveyed appears to coincide with what is referred to on the plan to the 1999 transfer as OS parcel 6214. In any event nothing appears to turn in this case on the exact terms of this conveyance.

 

22. As I have stated, the Respondent first became acquainted with the area in 1963 when he first arrived at Bridgehouse Farm to work for Robert Joseph Braddock who then owned it. Mr Braddock also owned the northern land.

 

23. The evidence of both Mr Grindey and the Respondent is that, from at the latest, the early 1960s and probably from much earlier, the application land has not been a reservoir. Mr Grindey tells me, and I accept, that he remembers playing in the application land as a boy. He said at that time it was not a reservoir. It had no water in it. It was rather a dip in the middle of the field he knew as Canholes. It was at that time enclosed by a dry stone wall and it was about 15 feet lower than the surrounding field. It contained trees. These were removed over time and the land was partially filled.

 

24. The Respondent worked for Mr Braddock at Bridgehouse Farm from 1963 until 1981. The farm included both the northern land and that field on the western side of the reservoir land. During that time, it would appear that sheep would use the reservoir land to cross to and from the northern land.

 

25. In late 1981 (it would appear from a letter dated 28 ^th July 1987 to be 31 ^st December 1981) Mr Braddock effectively retired from farming and moved out of Bridgehouse Farm. He let the farm to the Respondent on a series of tenancies under what became the Agricultural Holdings Act 1986. The Respondent has occupied and farmed the land (latterly in partnership with his son) ever since.

 

26. The land let to the Respondent and occupied by him included and includes the northern land. The Respondent gave evidence that, although there was not (until much later) an express exclusion of the application land from these tenancies, nevertheless he always knew, because Mr Braddock had told him, that the application land was not owned by Mr Braddock and could thus not be part of the land demised. He believed that the application land belonged to the “Buxton Waterworks”. It was referred to as an old reservoir.

 

27. Despite this, the Respondent tells me, and I accept, that from the outset of his tenancy of the northern land in 1981 he took steps effectively to incorporate the application land into the rest of the field. At that time the application land was still enclosed (and separated from the rest of the northern land) by the old dry stone wall. It was still at a lower level than the surrounding field (although the trees that Mr Grindey has told me were there previously had gone by that time). The Respondent removed the dry stone wall using the stones as infill for the existing depression. He then filled the remainder of the dip with soil and spread topsoil over the entire area seeding it with grass. From that time the application land has effectively been incorporated into and used as part of the northern land for the grazing of sheep. It has thus for many years been in the same condition as when I saw it on the site visit.

 

28. The reservoir on the reservoir land was decommissioned in 1994. It was drained and the brick lined structure left as a large void. I have seen a number of photographs of the area prior to its infill. That at page 257 of the bundle prepared by the Respondent (which photograph was disclosed by the Applicant) clearly shows the reservoir after decommissioning but before infilling. It appears to have been lined on the sides and bottom with brick or concrete. It was topped on its eastern, northern and western sides by a stone wall. At the southern end (running parallel with the A54 road) there was, atop the reservoir side, a narrow flat strip of grass on the southern side of which was a separate stone retaining wall atop which in turn was a strip of old railway land the southern part of which (abutting the road) was part of the land in the ownership of Mr Braddock.

 

29. The Respondent told me, and I accept, that in 1995 the form of tenancy which he obtained from Mr Braddock of the northern land was altered specifically to exclude “the reservoir area shown shaded yellow on the plan annexed”. The plan (which appears to be based on a very old OS map) shows the application land marked off as “Reservoir”. However, by that time of course the application land had not been a reservoir for at least 40 years and had long since been incorporated into the rest of the northern land by the Respondent.

 

30. By this time the reservoir land was in the ownership of Severn Trent Water Limited (“STW”). I have no doubt that this company was the statutory successor to the transferees named in the conveyances dated 13th August 1894, 18 ^th January 1905 and 1 ^st December 1943 (“the Buxton Local Board”, “the Urban District Council of Buxton” and “Buxton Corporation” respectively). There is no chain of conveyances which would show this. Although, in his Statement of Case, the Respondent effectively puts the Applicant to proof, at the hearing I did not understand him seriously to challenge this. Indeed, since the date of the hearing I have been sent a copy of the “Epitome of the Devolution of Title” provided to the Applicant by his vendors in the 1999 transfer. This sets out how paper title devolved to STW and, as I have stated, I accept that it did.

 

31. In 1995 STW advertised the reservoir land for sale. The Respondent told me that he saw a “For Sale” sign at the road entrance to the Burbage Reservoir stating that 2.92 hectares of land was for sale. This caused him to instruct his agents, Davis Meade and Partners, to write to STW’s selling agents, Frank R Marshall & Co, and then to STW itself, alleging that the Respondent in fact had an agricultural tenancy over the reservoir land.

 

32. There are 12 letters in total in this period. The first is dated 31 ^st July 1995. The last is dated 18 ^th February 1997. They are contained at pages 131 and pages 193 to 204 of the bundle prepared for the hearing by the Respondent. I have read them all. I shall not recite the text of all of them in this decision.

 

33. The first letter is dated 31 ^st July 1995. In it the Respondent’s agents state as follows:

“We act for Mr R A Phillips of Bridge House Farm, Ladmanlow and understand that you have recently put on the market the reservoir and land adjoining his farm. We understand from our client that he has a tenancy on this land and are wondering if that is being mentioned in a copy of the particulars.”

 

This was responded to in a letter dated 8 ^th August 1995 from STW. It is headed “Burbage Reservoir Buxton” and states:

“As owners of Burbage Reservoir we are perplexed by your allegations. We have no knowledge of your client Mr Phillips, still less any evidence documentary or otherwise that he has at any point in the time past had a tenancy on our land. If your client is serious in his contention, he should write immediately to the Area Solicitor at this address setting out the full details to evidence the claim.”

 

Thus the position of STW was that it had no knowledge of any tenancy. This was the position it maintained throughout the remaining correspondence.

 

 

34. The position then adopted by the Respondent is best encapsulated in a letter dated 11 ^th September 1995 from his agents to STW. It is again headed “Burbage Reservoir Buxton”. In it they state:

“Further to our earlier correspondence we have now taken further instructions from our client and he informs us that originally Buxton Waterworks were unable to stop a leak back in 1963 from the Burbage Reservoir (presumably that was why it was closed) and also from another reservoir adjoining which we believe he names as Old Terrick (this may not be quite the correct name). Accordingly in exchange for our client not making an (sic) claim on an annual basis for the damage being caused to our clients land by the leaks our client has been able to graze that land from 1963 onwards. We do not have any documentary evidence of this because it was purely verbal but clearly if you are going to deny that our client was paying rent by not claiming compensation then presumably our client has prescriptive rights for not acknowledging that there was a landlord at all. We can however confirm that our client has used that land since 1963 without interruption.”

 

This letter was answered most substantially on 5 ^th December 1996 by a letter again headed “Burbage Reservoir, Buxton”. In it STW states:

“The grassed areas around the reservoir cover the banks which were constructed to buttress the reservoir and as such are an integral part of the reservoir structure. The reservoir was decommissioned in October 1994 and has been used by Severn Trent Water and its statutory water undertaking predecessors in title up to that time. In these circumstances, your client cannot successfully claim title by adverse possession and his claim to an agricultural tenancy would fail as he has not had exclusive possession.

As regards the question of compensation for damage caused as a result of leaks from Burbage Reservoir and what you refer to as Old Terrick (presumably Old Terret) Reservoir, the Company and its statutory predecessors have a statutory obligation to pay compensation for such damage. However no trace can be found in the Company’s records of any such claim having been made, nor can any reference be found to an arrangement whereby your client and his predecessor were permitted to graze the grassed area of Burbage Reservoir in lieu of compensation for damage caused to their land by the two leaks.”

 

 

35. It is worth pointing out that the “Old Terret” Reservoir is shown on various of the plans as being situated further to the south of what is now the A54 and to the north of a bend on what is now the A53. Thus it is not a reference to either the reservoir land or the application land.

 

36. As is clear from this correspondence, no agreement was reached on whether or not the Respondent had the tenancy which he alleged. However, it appears that the assertion was sufficient to deter any potential purchasers who might have been interested at that time.

 

37. The parties are in dispute as to whether, in this correspondence, the Respondent was asserting that he had a tenancy of the application land as well as the reservoir land. As this impacts on any potential claim for adverse possession, I must deal with it later in this decision.

 

38. However in 1999 STW made another attempt to sell the land. This was when the Applicant became interested. He told me in evidence that he was interested in purchasing the land for his business. He had at the time a construction equipment and excavations and ground work business and he wanted to use the old reservoir on the reservoir land for industrial infill. Thereafter he intended to rent out the land. As a result of his interest, he received a letter dated 7 ^th September 1999 from STW which enclosed the 1995 to 1997 correspondence with the Respondent’s agents. The letter was headed “Burbage Reservoir: Subject to contract”. It continued:

“Your offer is one of a number which have been submitted to us. Because of the problems which arose following a previous agreement to sell this site due to an unresolved claim presented by a neighbour for adverse possession/tenancy rights to part of our land, I want to provide all those have made an offer as full a picture (sic) as I can of the nature of the claim that was being made against us to avoid a repeat of the withdrawn offer last time round. For the avoidance of doubt it will also be a condition of sale that the reservoir shall not be used in the future for water supply purposes other than for the purchaser’s own domestic or agricultural purposes should he so wish…

In response to the points raised in your 9th August letter I can respond as follows:

I. The reservoir was decommissioned around October 1994.

2. There are no services connected to the site.”

 

 

39. The Applicant told me in evidence that this was the extent of the documentation which he personally received prior to completion of the 1999 transfer. He engaged a solicitor who dealt with the matter. In particular, he did not see before completion any of the three conveyances set out in the 1999 transfer. He did not see the Epitome of Title. He never saw the 1999 transfer plan prior to completion. He never walked the boundaries of the land he was proposing to buy. Indeed he never inspected the land.

40. He told me that he paid £16,000 for the land which was considerably less than the original asking price of over £100,000. The price had been reduced because of the allegations previously made by the Respondent.

 

41. What is quite clear to me, for what it is worth, is that it was only after completion and after receipt of the documentation from his solicitor, that the Applicant had any idea that he might have purchased the application land along with the reservoir land.

 

The 1999 transfer

 

42. This is between STW as Transferor and the Applicant as Transferee. It is in Land Registry Form TR1. The land transferred is described in panel 3 as follows:

“Freehold property comprising approximately 2.97 hectares or thereabouts and shown for identification purposes only on the plan attached hereto and thereon edged red known as Burbage Reservoir, Buxton, Derbyshire more particularly mentioned in the three following documents: 1. A Conveyance dated 13th August 1894 between the Duke of Devonshire (1) and Buxton Local Board (2) 2. Conveyance dated 18th January 1905 made between the Duke of Devonshire (1) and Buxton Urban District Council (2) and 3. Conveyance dated 1st December 1943 made between London Midland and Scottish Railway Co (1) and Buxton Corporation (2).”

 

43. The plan annexed is based on an OS map. It states that it was prepared on 30 ^th March on a year in the 1990s (the copy in the bundles is cut-off at this point). I surmise that it is either 1995 or 1999. The plan shows the reservoir land edged in red. No other parcel of land is edged in red. Part of the northern land, including at least part of the land on which the application land is situated, is shown on the plan to the east of the land edged in red. The application land is not shown edged in red. There is no indication on the plan that the application land is in any way separate from the northern land.

 

44. The reservoir land is shown on the plan as being made up of four separate OS parcels with areas as follows:
1. OS 6921: 1.918 hectares, 4.74 acres. This is the area of grass banking surrounding the actual reservoir to the east north and west.
2. OS 6816: .860 hectares, 2.13 acres. This is the reservoir.
3. OS 6819: .109 hectares, .27 acres. This is the wall surrounding the reservoir and the strip of land immediately to the south.
4. OS 6214: .085 hectares, .21 acres. This is the area on top of the retaining wall to the south which borders the old railway land immediately to the south (and appears to have been conveyed in 1943).

Of course the total area of these four parcels as marked is 2.972 hectares.

 

 

Subsequent correspondence

 

45. Following completion, the Applicant fenced the reservoir land.

 

46. On learning of the transfer, the Respondent again instructed his agent (now AG Bowcock & Co) to write to STW and subsequently to the Applicant again asserting that he had a tenancy of the reservoir land, The correspondence commences with a letter to STW dated 29 ^th December 1999 which is headed “Burbage Reservoir Buxton” and continues:

“I am instructed by Mr Phillips in connection with land that he occupies adjacent to Burbage Reservoir, Buxton. Mr Phillips has since 1963, or thereabouts, occupied about five acres of pasture land immediately adjacent to Burbage Reservoir (now decommissioned). The land has been used for grazing of sheep and in particular, lambing of ewes in the spring. The land also provides a valuable access between two parcels of land owned by Mr Phillips. Mr Phillips originally entered into a verbal arrangement with Buxton Waterworks Company for the occupation of the land. Whilst no money rent was charged it was agreed that the water company would not be obliged to repair damage to Mr Phillips’ land that was caused by the leaking reservoir. Approximately 7 acres of Mr Phillips’ land lay very wet when the reservoir was operational.”

 

 

47. This allegation was repeated in a letter to the Applicants solicitor dated 5 ^th January 2000 and in one direct to the Applicant dated 24 ^th January 2000. The first of these letters is headed: “Sale of Burbage Reservoir Buxton”; the second is headed “Agricultural Tenancy of Land at Burbage Reservoir”.

 

48. These elicited a response from the Applicant in a letter dated 28 ^th January 2000. It in turn was headed: “Burbage Reservoir Buxton”. The letter states:

There is no “5 acres of’ pasture land immediately adjacent to Burbage Reservoir” and there is no “agricultural land”, and never was. The whole site of approximately 7 acres known as Burbage Reservoir consists of a complete purposely designed complex, for the retention of thousands of tonnes of water. The 5 acres your client refers to is in actual fact a totally man-made structure rising high above the natural ground level, and is a critical and integral part of the mechanics of the complex. Therefore your client did not have “exclusive possession of the land for over 30 years”, as Severn Trent Water Ltd., the legitimate owners and occupiers of the complex, were the primary users until it was decommissioned in 1995.

You should be aware, on reading the exchanges of letters between your client’s former agents and Severn Trent Water Ltd., between 31.7.95 and 18.2.97 that

S.T.W.Ltd. did not acknowledge any verbal or written tenancy or occupation of the land and that no rent or “wet land” compensation took place. In fact the first letter to S.T.W.Ltd. from your client’s former agents was the first indication they had of your client’s claims (if any) and they promptly stated that he was “trespassing” and “that any such use should terminate immediately” on the complex. Therefore his use of the complex before 24.7.95 was unauthorized and largely unnoticed, and his use of the complex after 24.7.95 was in open defiance and against the will of the owners.

Nobody denies that for many years, your client, and his predecessor Mr. Braddock, on occasions nudged their sheep onto the Burbage Reservoir complex to “snatch some free grazing”, but it is clear an agricultural tenancy has never existed on this non-agricultural property. Severn Trent Water Ltd. sold me the property freehold, with no tenancy to anyone, and like S.T.W.Ltd. before me, I do not acknowledge your clients assumed rights as a tenant under the Agricultural Holding Act, 1986.”

 

 

49. Thus the Applicant effectively adopted the same position as STW and denied that the Respondent had a tenancy of any part of the land.

 

50. There followed further correspondence (all of which I have read but which I will not recite at length in this decision). This lead to the Respondent through his agent applying for arbitration under the 1986 Act for a tenancy of “Agricultural Land at Burbage Reservoir…Ordnance Survey Numbers 6921 and 6214”. Eventually he discontinued the arbitration and starting on 23 ^rd May 2001 the Applicant and the Respondent entered into a series of four “Grazing Licences”. These are dated 23 ^rd May 2001, 25 ^th November 2001, 30 ^th May 2002 and 1 ^st December 2002. The land the subject of each of these is described as

“The grass bankings approx. 4 acre 6921 at Burbage Reservoir Buxton”

Following these, the Respondent ceased to use this land and the Applicant has disposed of it elsewhere.

 

51. At the same time, the Applicant and the Respondent entered into a total of 19 separate “Grazing Licences” of another tract of land referred to as “0.4 of an acre 8800 triangular field, Burbage Buxton”. The first of these is dated 23 ^rd May 2001 and the last is dated 1 ^st December 2010. This land is on the other side and to the south of the A54 and is not therefore relevant to any issue I have to decide.

 

52. At no stage until 2012 did the Applicant take any specific steps in relation to the application land which continued to be occupied by the Respondent as part of the northern land.

 

53. In the meantime Mr Braddock, from whom the Respondent had rented Bridgehouse Farm, had died and left his property to his son. In 2006 the Respondent purchased most of the farm from Mr Braddock Junior. However the latter retained and retains ownership of the northern land which the Respondent continues to rent from him pursuant to a succession of Farm Business Tenancies governed by the Agricultural Tenancies Act 1995 which (as set out above) have specifically excluded the application land.

 

54. There are in the trial bundles a series of five further “Grazing Licences” apparently between the Applicant and the Respondent. These relate to land described as follows:

“Land around Burbage Old Reservoir Buxton”.

These are said by the Applicant to relate to the following periods: 1 ^st December 2010 to 31 ^st May 2011; 1 ^st June 2011 to 30 ^th November 2011; 1 ^st December 2011 to 31 ^st May 2012; 1 ^st June 2012 to 30 ^th November 2012; 1 ^st December 2012 to 31 ^st May 2013.

 

55. It seems quite clear that the land the subject of these documents is intended to be the application land. The Applicant asserts that these were all signed by or on behalf of the Respondent. The Respondent denies that he entered into the first four of these. He asserts that the fifth one was signed by his son but only on the basis of a misrepresentation by the Applicant as to the land to which it related.

 

56. What seems clear is this. On 13 ^th December 2011, the Applicant received a letter from solicitors acting for Mr Braddock Junior. This letter referred to the application land and suggested that, as it was not owned by the solicitors’ client, then the Applicant might own it. This clearly caused the Applicant to focus on the application land. He told me in evidence that he had had a conversation in 2010 with the Respondent’s son who asserted that he did not want to rent the reservoir land. The Applicant told me that he then stated that the Respondent would have to give him something for the application land. This, he said, elicited no response. He was mindful of the potential expiry of the 12 year period since he first owned the reservoir land. On 25 ^th March 2012, he says, he went round to Bridgehouse Farm as he normally did with such grazing agreements, with the first four of the agreements already prepared. He handed them in at the door and they were returned with signatures. As I have stated, the Respondent denies signing the first four of these. He points out that the signature of the person who has purported to witness the Grazing Agreements (who turns out to be the Applicant’s partner Martine Armitt) is different on these four disputed agreements than it is on all of the others which she has purported to sign. Whilst this might appear to a layman to be true, I heard no expert handwriting evidence.

 

57. Finally, as I have stated, the Applicant’s application in Form FR1 was made to HM Land Registry on 6 ^th September 2012.

 

The interpretation of the 1999 transfer: did it include the application land?

 

58. The parties agreed that this is the first point I have to decide: did the 1999 transfer include the application land such that the Applicant can show that he has paper title? If it did not then, as the parties also agreed, his application for first registration must fail.

 

59. The principles applicable to the interpretation of a transfer of land are not in any doubt and were not in dispute before me. They are nicely summarised in two comparatively recent Court of Appeal cases which were extensively cited to me: PENNOCK V HODGSON [2010] EWCA Civ 873 and TAYLOR V LAMBERT [2012] EWCA Civ 3.

 

60. As Mummery LJ points out in Pennock, the starting point is the speech of Lord Hoffmann in ALAN WIBBERLEY V INSLEY [1999] 1 WLR 894 in which he says:

“The first resort in the event of a boundary dispute is to look at the deeds. Under the old system of unregistered conveyancing, this means the chain of conveyances and other instruments, going back beyond the period of limitation, which demonstrates that the owner's title is in practical terms secure against adverse claims. These conveyances will each identify the subject matter in a clause known as the parcels which contains the description of the land. Sometimes it is no more than a reference to the land conveyed by an earlier conveyance, which will then have to be consulted. Older conveyances of farm property often describe the property as being the house and land in the occupation of the vendor or his tenant. The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed”

 

 

61. Drawing on this, Mummery LJ in Pennock continues with a statement of principles (at paragraphs 9 and 10):

“(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.

(2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.

(3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.

(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.

The long standing general principles of how to construe a conveyance underpin those points…

“We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.”

 

62. He then continues, rather graphically (at paragraph 12):

“Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction.”

 

 

63. Thus it seems to me that the modern authorities emphasise that the principles applicable to the interpretation of a transfer of land are the same as those applicable to the construction of any other commercial contact. In particular, it will be a rare case in which the terms of the transfer are so exact as to enable one precisely to define the position and boundaries of the land conveyed without recourse to extrinsic evidence. As Lloyd LJ states in paragraph 25 of the Lambert case:

“…it is inevitable that the document should be read and understood in the light of the situation as it is on the ground at the relevant time. The point of the conveyance, after all, is to transfer to the purchaser a legal estate or interest in relation to a given area of land. What the extent of that land is has to be determined by reference to the conveyance but it is at least difficult, and probably impossible, to imagine a conveyancing document which could define the physical extent of the relevant land without some cross-reference to at least one or more points to be identified by inspection of the site.”

 

64. There are a number of other specific points mentioned by way of citation in the cases which are potentially relevant to the case before me.

 

65. As with the interpretation of any other contract, the parties’ subjective beliefs as to the position of any boundaries and (by extension) the exact area of land conveyed, are irrelevant-se Pennock at paragraph 13.

 

66. A plan said to be “for identification purposes only” is not to be ignored unless it conflicts with the wording of the parcels.

“So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but insofar as the plan does not conflict with the parcels I can see no reason why, because it is described as being ‘for identification only’, it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be ‘for the purposes of identification only’ does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel.”

 

WIGGINTON & MILNER V WINSTER [1978] 1 WLR 1462 at 1473-4 (cited at paragraph 31 of Taylor v Lambert ).

 

67. When land is described in a conveyance as being land “known as…” it will almost always be permissible to pay heed to extrinsic evidence as to what land, at the date of the conveyance, was “known as” the particular tract identified.

“In my judgment, when a property, the subject matter of a conveyancing document, is described as “the property known as …” it is permissible, indeed inevitable, that recourse will be had to extrinsic evidence to identify the property so known.”

 

Peter Gibson LJ in FREEGUARD V ROGERS [1999] 1 WLR 375 (cited in paragraph

 

32 of Taylor v Lambert).

 

 

68. Finally the task for the court of construction has been described several times by appellate courts as seeking to answer the question:

“what would the reasonable layman think he was in fact buying?”

Per Butler-Sloss LJ in Toplis v Green cited in paragraph 33 of Taylor v Lambert).

 

69. As stated, the issue before me is whether the application land was included in the 1999 transfer. I have come to the clear view that it was not. My reasons are as follows.

 

70. If one looks at the parcels clause in the 1999 transfer, it identifies the land to be transferred in four different ways as follows. It is the freehold property:

 

1. comprising approximately 2.97 hectares or thereabouts and
2. shown for identification purposes only on the plan attached hereto and thereon edged red
3. known as Burbage Reservoir, Buxton, Derbyshire
4. more particularly mentioned in the three following documents: 1. A Conveyance dated 13th August 1894 between the Duke of Devonshire (1) and Buxton Local Board (2) 2. Conveyance dated 18th January 1905 made between the Duke of Devonshire (1) and Buxton Urban District Council (2) and 3. Conveyance dated 1st December 1943 made between London Midland and Scottish Railway Co (1) and Buxton Corporation (2).”

 

71. The Applicants case is that the application land was clearly transferred by the 1905 conveyance and thus must fall within the land transferred by the 1999 transfer. To the extent that the plan annexed does not show it: it was a mistake by the parties that the application land was not shown edged in read; the plan conflicts with the reference to the 1905 conveyance and therefore must be ignored to this extent.

 

72. I do not accept this line of argument. It seems to me that the plan is consistent with the other forms of descriptions within the parcels clause and with the situation on the ground at the date of the conveyance.

 

73. The first facet of the description is that the land is “2.97 hectares or thereabouts” in area. This description of the area is not said to be “for identification purposes only”. As I have already pointed out, if one adds up the areas of each of the four OS parcels which are within the re-lined area on the plan, they total 2.972. Whereas the word “thereabouts” is somewhat protean, an actual area of 2.972 is well within the degree of latitude accorded by that word when used with the figure 2.97. This is particularly when one can see that these measurements are taken from the red-lined area of the plan. As Ms Gowling points out, in the 1905 conveyance, the application land is described as having an area of “one rood one pole and sixteen square yards or thereabouts”. There were 4 roods to an acre and 40 poles to an acre. Thus this equates to just over ¼ of an acre or .111 hectares. Whereas an area of 2.972 hectares will fall within the definition of “2.97 or thereabouts” an area of 3.08 hectares will not, in my view, easily fit within that definition.

 

74. Further, the description of the land as that “known as Burbage Reservoir, Buxton, Derbyshire” in my view also clearly excludes the application land and is only apt to convey the reservoir land. One has to analyse what land was known by that title in 1999. In my view it can only have been the reservoir land. As I have already set out, the 1898 OS map refers to the reservoir land as “Burbage Reservoir” with the application land being referred to as simply “Reservoir”. In the plan annexed to the 1905 conveyance, the application land was referred to as “Burbage Old Reservoir” whilst the reservoir land was referred to again as “Burbage Reservoir”. The plan to the 1999 transfer, which was itself prepared from a later OS map again refers to the reservoir land as “Burbage Reservoir”. The evidence of both the Respondent and Mr Grindey is that the name “Burbage Reservoir” was always given to the reservoir on the reservoir land. The Respondent stated that there had been a sign to that effect at the road entrance to the reservoir land. The term “Burbage Reservoir” was used constantly throughout the correspondence between 1995 and 1997 which correspondence (as I find below) can only refer to the reservoir land.

 

75. In short, I find that the land “known as Burbage Reservoir, Buxton, Derbyshire” was in 1999 the reservoir land. It was not a reference to the application land which, by that date, had not been a reservoir for at least 40 years and, so far as I can tell, had never been known by that designation in any event. Nor was it a reference to the application land and any other land.

 

76. So far as the plan is concerned, it clearly does not show the application land as being included in the transfer. As Mr Byrne points out, the plan is said to be “for identification purposes only”. I accept that this means that it cannot be used either to identify the precise boundaries of the land conveyed or to contradict clear words in the parcels clause. However, I do not think that the plan does contradict the clear words of the clause. In my view when properly analysed, the wording of the clause is not apt to include the application land, even if one ignores the plan. Secondly, even if (contrary to my view) one has to read the reference to the 1905 conveyance in the parcels clause as including the application land, then there is a contrast between that part of the description and the other two elements which, as I have set out above, are not apt to include the application land within the land transferred. Thus the parcels clause is unclear to that extent and one can refer to the plan which clearly shows that the application land is not included.

 

77. Finally in this regard, it seems to me that only very rarely can one completely ignore a plan even one said to be “for identification purposes only”. It is one thing to say that any such plan is not intended to identify the exact boundaries of the land conveyed. It is however quite another to say that a plan which was clearly intended to serve the purpose of identifying the land conveyed can be ignored to the extent that it has failed to identify an entirely separate tract of land ¼ acre in area in the middle of another field over 100 metres or so to the east.

 

78. Thus it seems to me that the plan cannot be ignored to the extent that Mr Byrne would urge upon me.

 

79. Finally the land is described as “more particularly mentioned in” the 1905 conveyance. The application land formed the bulk of the land conveyed in 1905. However, as Ms Gowling points out, there were two other smaller tracts of land also conveyed. These were to the west of the application land and clearly are within the reservoir land as shown within the red lining on the plan to the 1999 transfer. In those circumstances it seems to me that the words “mentioned in” are key. The parties could have used the conventional wording “more particularly described in”. They did not. Mr Byrne urges me to hold that the words “more particularly mentioned in” are the equivalent to these words. I reject this contention. I hold that the words “mentioned in” were chosen to indicate that not all of the land the subject of the 1905 conveyance was necessarily intended to be transferred in 1999. Indeed, it is very obvious from even a brief perusal of the 1905 conveyance that it transfers the application land. Given that the parties have expressly referred to it in the 1999 transfer one is entitled to assume that they had its terms well in mind when drafting that transfer. It would thus seem extraordinary that the parties, by error, omitted any reference to the application land in the 1999 transfer if they had genuinely intended it to be transferred. In my view they did not fall into any such error. The omission of any reference to the application land in the 1999 transfer, whether on the plan or otherwise, and the use of the words “mentioned in” are consistent with an intention to transfer only the reservoir land and not, in addition, the application land.

 

80. Thus, in my view, there is no inconsistency between the plan and the rest of the descriptions of the land conveyed in panel 3 of the 1999 transfer.

 

81. Mr Byrne, in addition asks me to hold that there is, in effect, a hierarchy of descriptions in the parcels clause in panel 3. The description by reference to the three conveyances is the most significant and is to be given the most weight, whilst the others are to be given less weight in descending order of importance: the description by the words “known as”; the plan; the area. Whereas the words “for identification purposes only” go some way to indicating that the plan may be of subsidiary importance, I reject this argument in relation to the other descriptions. There are no grounds, it seems to me, for preferring one over the other. Besides, as I have just indicated, there is in my view no contradiction or ambiguity.

 

82. Finally, it seems to me that it is legitimate here to step back and contemplate the topography in 1999. The reservoir land was a clearly delineated and recognisable tract of land which had been a reservoir until drained some 4 to 5 years before. The land still contained the empty reservoir structure. The application land was a separate tract of land some 100 metres or so distant from the easternmost boundary of the reservoir land. It had not been a reservoir for at least 40 years. It was not divided off from the rest of the northern land. It had been incorporated within the northern land since 1981. Indeed, it could only be roughly identified by a careful search in the middle of the field. This topography would suggest that it would take clear words in any transfer before STW could be said to intend to transfer the application land.

 

83. If one stood with the 1999 transfer on the site and asked oneself the question: “what would the reasonable layman think he was buying” the answer in my view was clearly: the reservoir land and only the reservoir land.

 

84. Mr Byrne points to a letter dated 30 ^th October 2012 from STW in which it states:

“Regardless of any documents retained in the 1999 conveyance, I confirm that Severn Trent water intended to transfer the land as a whole with no retained land being kept by the company.”

 

 

85. Insofar as Mr Byrne urges me to use this evidence as an aid to the construction of the 1999 transfer, I reject his argument. This seems to me to be an assertion by one party (made some 13 years after the event) of its subjective intent. Thus, even if one could attribute a specific subjective intention to an entity such as STW, that intention is not admissible as an aid to construction.

 

86. Mr Byrne was perhaps on stronger ground when he urged upon me the commercial absurdity of an interpretation of the 1999 transfer which would attribute to STW the attention to retain the application land whilst ridding itself of every other tract of land it then retained. I see some force in this. However, it seems to me that it is at least as likely that, in 1999, STW recognised that any paper title to the application land had long since been extinguished by adverse possession (as to which see below). Given the circumstances, it might also be the case that STW simply forgot about whatever paper tile it might then have had to the application land. Thus I do not think that this submission can change my views as to the clear meaning and effect of the 1999 transfer.

 

87. In those circumstances, as the parties agreed, I must order HM Land Registry to dismiss the Applicants application for first registration. I need not consider whether any paper title that the Applicant might have had has been extinguished by adverse possession. My finding means that he never has had any paper title to the application land. However as the points were argued before me and as I have come to a clear view, then I will deal with this aspect of the case albeit more briefly tan I otherwise would have done.

 

Adverse possession

 

88. The parties were ad idem as to what had to be shown in order for a party to succeed in a claim to have acquired title to unregistered land by adverse possession. They are authoritatively stated by the House of Lords in PYE V GRAHAM [2003] 1 AC 419: factual possession for at least 12 years; an intention to possess. As Lord Browne-Wilkinson described each of these elements:

“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."

 

And:

"not an intention to own or even an intention to acquire ownership but an intention to possess"…Once it is accepted that in the Limitation Acts, the word "possession" has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess”

 

 

89. It is clear beyond peradventure that the Respondent (whether on his own behalf or on behalf of his landlord) has had the necessary factual possession of the application and since 1981. Mr Byrne conceded as much and his concession seems to me to have been an entirely correct one.

 

90. As to having the necessary intention to possess, the Respondent told me in paragraph 5 of his witness statement that:

“I have had exclusive occupation of the Northern Land and the Application Land since 1981. In that time, no one else has occupied the Application Land or had access to the Application Land nor have we ever requested permission from anyone to use the Application land nor has anyone objected to our occupation of the Application land.”

 

He then describes in paragraph 6 what he did to the land in 1981 which evidence he elaborated upon in oral evidence before me. I have recited it above. It is also important to note his evidence that he was always aware that the application land did not belong to Mr Braddock. Thus he must have been aware in 1981 that he was incorporating someone else’s land into the northern land

 

91. As Lord Hutton says in the Pye case:

“I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess.”

 

It seems to me that, unless the points made by Mr Byrne on behalf of the Applicant (which I now turn to discuss below) are good ones, then this is one of those cases in which I can find that the Respondent (whether on behalf of himself or his landlord) has established the requisite intention to possess from the acts which constitute his factual possession over the years.

 

92. However Mr Byrne makes three separate points. He submits that, in fact at all material times, the Respondent asserted that he was, and regarded himself as, a tenant of the application land from the paper title holder: firstly STW and then the Applicant. He relies on this to negative the requisite intention, by proving that there was possession with consent of the landowner (see e.g. SMART V LAMBETH [2014] HLR 7). He also relies on paragraph 5 (2) to Schedule 1 of the Limitation Act 1980. Finally he relies on there being an acknowledgement of title to the application land under section 29 of the 1980 act.

 

93. Mr Byrne firstly submits that, when properly construed, the correspondence (which I have described above) in 1995 to 1997 between the Respondent’s agent, on the one hand, and STW on the other, includes an assertion by the Respondent that he has a tenancy of the application land as well as the reservoir land. I reject this submission. This correspondence cannot sensibly (or at all) be construed as anything other than an assertion by the Respondent that he had a tenancy of the reservoir land alone. There is nothing in any of it which comes close to an assertion of a tenancy of the application land. It is for the most part headed “Burbage Reservoir”. I have found that this designation referred to the reservoir land alone. The assertions and discussion clearly relate only to the reservoir land and (apart from the reference to Old Terret reservoir) the reservoir on it.

 

94. Mr Byrne next points to the correspondence between the Respondent’s agent and the Applicant in 1999 and 2000. He again asserts that there is an assertion that the Respondent is the tenant of all of the former STW land including the application land. I reject this assertion essentially for the same reasons. This correspondence cannot either sensibly (or at all) be construed as anything other than an assertion by the Respondent that he had a tenancy of the reservoir land alone. There is nothing in any of it which comes close to an assertion of a tenancy of the application land. It is for the most part headed “Burbage Reservoir” and refers to the land as such. It speaks volumes that the application for arbitration made by the Respondent, through his agent, referred to the land in respect of which the tenancy was sought by OS numbers 6921 and 6214. These are of course two of the four OS parcels which make up the reservoir land. They cannot and do not comprise the application land.

 

95. Finally, Mr Byrne attempted to persuade me that one ought to construe the four Grazing Licences dated 23 ^rd May 2001, 25 ^th November 2001, 30 ^th May 2002 and 1 ^st December 2002 as including the application land. The land the subject of each of these is described as

“The grass bankings approx. 4 acre 6921 at Burbage Reservoir Buxton”.

I reject this contention. The land so described can only refer to that part of the reservoir land (clearly identified in the plan annexed to the 1999 transfer) which comprised of OS parcel 6921. No part of that description is apt to indicate that the application land was intended to be included. Nothing in the background circumstances, so far as they are admissible, would lead one anywhere towards such a conclusion.

 

96. In those circumstances it seems clear to me that, whether on his own behalf or on behalf of his landlord (and I do not have to and do not decide which) the Respondent has been in adverse possession of the application land since late 1981. Thus, pursuant to section 17 of the 1980 Act, the title of the paper title holder would have been extinguished on or around 1993 or 1994. As I suggest above, one can speculate that it may have been recognition of this fact which lead STW to make no reference to the application land in the 1999 transfer. The Applicant certainly gave it no thought prior to completion of the purchase.

 

97. Ms Gowling also sought to rely on the presumption described in ADVERSE POSSESSION: JOURDAN AND RADLEY GARDNER (2 ^nd edition) at paragraphs 4.08 and 4.09 as follows:

“Where there has been open and peaceable possession of unregistered land for 20 years, the courts will presume, in the absence of evidence to the contrary, that the person in possession has title to it and that the true owner had made a proper grant of it accordingly.”

 

Given the evidence of the Respondent to the effect that both he and Mr Braddock were, in 1981, aware that the application land was not owned by the latter, it seems to me that there is sufficient “evidence to the contrary” to rebut this presumption. However, as I have set out above, I do not think that the Respondent needs to rely on it

 

98. Finally, as Ms Gowling urged and Mr Byrne conceded, once the paper title to the application land has been extinguished by adverse possession, it cannot subsequently be revived by acknowledgement (see also ADVERSE POSSESSION: JOURDAN AND RADLEY GARDNER (2 ^nd edition) at paragraphs 16-54 and 20-09 to 20-14). Having found that the paper title to the application land had been extinguished by, at the latest, the mid-1990s, then I do not need to consider the veracity and effect of the five further “Grazing Licences” apparently between the Applicant and the Respondent of “Land around Burbage Old Reservoir Buxton” and dated from 1 ^st December 2010. Whether or not they are genuine, on the facts as I have found them to be, they can have no effect on the issues I have to decide. I thus make no finding one way or the other on this aspect of the case.

 

Outcome and Order

99. In the circumstances I will order HM Land Registry to dismiss the Applicant’s application for first registration made on 6 ^th September 2012.

 

100. So far as costs are concerned, at the moment I can see no reason why costs should not follow the event in the normal way. However, if the Applicant wishes to persuade me that I should make a different order, then I give him permission to make written submissions to me within 21 days of the date of this decision.

 

101. If no such submissions are made, then I will order the Applicant to pay the Respondents costs of the proceedings to be subject to assessment. I shall make such an order without further hearing. If the Applicant does file and serve written submissions, then I give the Respondent a further 14 days in which to file written submissions in response. Thereafter, I will make a decision on the incidence of costs without a further hearing.

 

102. At the same time, I will order that any party who wishes to claim costs from the other must, within 21 days of the date of this decision file and serve a Schedule of costs in the form normally used for summary assessment. Once I have decided the incidence of costs, I will summarily assess the amount. I will give any party ordered to pay costs to the other a further opportunity to make submissions on the amount of any costs claimed.

DAVID HOLLAND QC

 

Dated Tuesday 19 February 2014