England and Wales Land Registry Adjudicator

 

REF/2015/0344

 

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

Leeds City Council

 

APPLICANT(S)

 

and

 

Mark Sharrock

 

RESPONDENT(S)

 

 

Property Address: Land on the south east side of and Land at Whitehall Road Drighlington Bradford West Yorkshire

Title Number: WYK834414 YY23336

 

 

Made By: Principal Judge Elizabeth Cooke

 

 

ORDER

 

IT IS ORDERED as follows:

 

The Chief Land Registrar is directed to give effect to the application made by the Leeds City Council dated 12 December 2014 as if Mr Sharrock's objection had not been made.

 

Reasons

 

1. Until 2013 all the land edged with a thick line on the plan below belonged to Leeds City Council, registered under title number WYK834414. But on 10 September 2013 it was registered under a new title number YY23336, following an application by Mr Mark Sharrock and Mrs Carol Sharrock for registration on the basis that they had been in adverse possession of it for more than ten years. Leeds City Council was notified of the application by Land Registry but did not object to his registration, and accordingly Mr and Mrs Sharrock were registered with absolute title. I refer to the land in their title as a whole as "the vacant land".

 

 

2. 
   

 

3. The City Council's failure to object to the removal of the vacant land from its title is surprising, since it had an absolute right to prevent it. That is the result of changes in the law made by the Land Registration Act 2002; where title to land is registered, what is colloquially known as "squatter's title" cannot be acquired just by virtue of possession. All the City Council had to do in this case was to object, and had it done so Mr and Mrs Sharrock's application would have failed. But no objection was made within the 65-day time limit prescribed by rule 189 of the Land Registration Rules 2003, and so a new registered title was created for Mr and Mrs Sharrock..

 

4. However, Leeds City Council has applied to alter the register by the removal of part of the land now within title number YY23336, namely the shaded area and the hatched area on the plan. It says that the registration of those areas was a mistake because Mr Sharrock had not been in possession of them for ten years when he applied for registration on 9 September 2013, and so he had no right to apply to be registered. If this is true, then the law is clear: the registration was a mistake Baxter v Mannion [2011] EWCA Civ 120. Mr Sharrock objects on the basis that he did indeed have the requisite ten years' possession of all the vacant land, including the shaded and hatched areas.

 

5. The shaded and hatched areas on the plan are not draw to scale and cannot be used to indicate measurements.

 

6. The shaded area on the plan used to have a garage built on it. Everyone, including Mr Sharrock, agrees that the garage was there at the start of 2003 and was later demolished, and that Mr Sharrock cannot have taken possession of that land until after the garage came down. Mr Sharrock says that the garage was demolished in 2003 and that he then took possession of it, more than ten years before his application to Land Registry in September 2013. The City Council says it was still standing in 2004.

 

7. It is that dispute of fact that I have had to resolve, although a point of law has also been raised because Mr Sharrock says the City Council was estopped from questioning his title to the land, so late in the day and after he has spent a lot of money getting it ready for development.

 

8. I heard this reference on 18 January 2016 in Leeds. Miss Nicola Philipson of counsel represented the Applicant, and Mr Sharrock presented his case himself. I am grateful to both of them for their assistance. In what follows I summarise the evidence and explain my conclusion on the factual dispute, and then discuss and reach a conclusion about estoppel.

 

The evidence

 

9. When was the garage demolished? A number of witnesses gave evidence about this. They disagree, and no-one suggested that anyone was lying. I have to assess whose memory is more likely to be accurate. The conclusion that I have reached is consistent with the documentary evidence.

 

10. Miss Philippson called two witnesses.

 

11. The first was Mr Richard Ellis. His evidence - in his witness statement and confirmed at the hearing - was that he moved into number 267 Whitehall Road in June 2004 and that the garage was still standing at that date. He produced a photograph showing Mr Sharrock's fence (see Mr Sharrock's evidence, below) around the grassed area of the vacant land but excluding the area in front of the garage and where the garage used to stand. I refer to this photograph again below, as "Mr Ellis' photograph". Mr Ellis said that the garage came down three months after he moved into number 267.

 

12. The second was Miss Amanda Moran, a Senior Investment Strategy Officer employed by Leeds City Council. She produced a copy of a tenancy agreement, dated 16 February 1987, by which Leeds City Council let the garage site to a Mr and Mrs Midgley, together with a right of way (which I take to have been across the hatched area). It was a tenancy of the land only, at an annual rent of £35 payable by six-monthly instalments, and it gave the tenants permission to put up a garage on the land but required them (in clause 4) to remove it at the end of the tenancy or to pay the Council's costs of doing so.

 

13. Ms Moran produced a copy of a letter addressed to a Mr Midgley, giving him six months' notice to vacate the land, stating that the tenancy would come to an end on 31 August 2004, and asking him to remove the garage by that date. There is no printed date on the copy letter that Miss Moran produced; the date "Feb 2004" has been hand-written on.

 

14. Mr Sharrock says that the date on the letter is wrong. He too had a copy of the letter (obtained through a Freedom of Information request), likewise with the date written in by hand, but in a different hand. When questioned about this Ms Moran agreed that the letter had been printed from the City Council's electronic records without a date and that the date had been written on, although not by her; but she observed that the date of February 2004 can be deduced from the content of the letter, which gives six months' notice to expire at the end of August 2004. Mr Sharrock expressed the view that an original date had been obliterated on the copy, but I saw no evidence of that on the copy and I accept Ms Moran's account.

 

15. The City Council also provided a statutory declaration by Charlotte Underwood, another City Council officer, who was not able to attend the hearing because she has left the City Council's employment. The only point that her declaration adds to the evidence of Ms Moran is her statement that the rent records show that the tenancy of the garage ended on 31 August 2004. However, Ms Moran gave evidence towards the end of the hearing, having made a phone call to the City Council offices, that the City Council's last receipt of rent from the Midgleys was in February 2004.

 

16. Mr Sharrock gave evidence. He explained that his father bought no 285 Whitehall Road from a Mr Bell in 1975. At that date he says that Mr Bell owned the vacant land now registered under title number YY23336, and that when the City Council wanted to purchase it compulsorily after Mr Bell's death his daughter refused to sign the papers and that therefore no-one knew who owned the land.

 

17. Mr Sharrock says that he bought number 287 in 1983. He is a builder, and he used the vacant land to store scaffolding, materials and the like. No-one else used it. In 1987 a garage was put on there by Mr Midgley from across the road. They used the land in front of it, hatched on the plan, for access - not straight out to the road, but from the side.

 

18. At the start of 2003 Mr Sharrock says that he put a wire fence around the vacant land, excluding the shaded and hatched areas on our plan because it had concrete underneath and he couldn't get the stakes in. This was March 2003, he says, and Mrs Midgley said to him: "why are you putting a fence up, when we have to remove our garage?" - meaning, Mr Sharrock explained, why are you allowed to do that when we are not allowed to keep our garage? She wanted to know if he had permission to fence the land; Mr Sharrock said he didn't need permission because he had been using the land. Because he couldn't fence the hatched area Mr Sharrock ordered some boulders and had them tipped on the ground; and the boulders can be seen on Mr Ellis' photograph. At the hearing Mr Sharrock said that this was when he put the fence up. In his letter to the tribunal received on 6 January 2016 Mr Sharrock says that he tipped the boulders when the garage was removed; and indeed that is what he says in his statutory declaration made in September 2013 in support of his application for registration. I find that that is the correct order of events; Mr Sharrock could not have put boulders on it while the Midgleys were still using part of the hatched area for access.

 

19. Mr Sharrock is absolutely positive that it was 2003 that he put the fence up. He remembers his daughter turning 14 on St Patrick's Day, and saying she wanted to keep a pony in the fenced area, to which he replied "no chance". Likewise he is positive that it was in 2003 that he had the conversation with Mrs Midgley in which she said they had to take their garage down, and of course that is consistent with Mr Sharrock's view that the letter from the City Council to Mr Midgley requiring the removal of the garage was not 2004 but 2003.

 

20. Mr Sharrock explained that he had a letter from Mrs Kripp at the City Council dated 8 September 2003 asking him to remove the fence, and that when he got that letter the garage had gone, although he does not remember it being taken down and does not know exactly when. He is positive that the garage was down by September 2003. He left the base of the garage where it was, and put his scaffolding and building materials there. He almost always had something on it.

 

21. In 2013 he realised he had been using the land for more than ten years and applied for adverse possession. The Land Registry sent two people round who measured it. In February 2014 he heard from Land Registry with copies of the register (he referred to this as "the deeds") confirming his registration (although the date of his registration is 10 September 2013, being back-dated to the date of receipt of his application).

 

22. A week after that, Mr Sharrock recalls a man from the City Council coming to look at the land and saying it was on the City Council's deeds; and Mr Sharrock says he was "a bit sharp" with the man because he was surprised that the City Council had never bothered about the land for 40 years and now turned up just a week after he had heard from Land Registry.

 

23. The rest of Mr Sharrock's evidence relates not to his title to the land but to his argument about estoppel, so I deal with it later.

 

24. Miss Janet Hainsworth then gave evidence; she lives at 320 Whitehall Road, next door to Mr and Mrs Midgley. She said that Mr Sharrock had asked if she could remember when Mr and Mrs Midgley stopped using the garage. She couldn't remember, but she checked in her diaries, which she brought to court. I allowed the admission of this late evidence, just as I allowed the admission of the late evidence about the payment of rent by Mr and Mrs Midgley. Miss Hainsworth referred to three entries in her diary for 2003, which she allowed Miss Phillipson to read.

 

25. One entry was about a conversation with Mr Midgley in March 2003. The diary says "E and E (that is, Mr and Mrs Midgley) mad about Mark and garage. Not my problem". That is consistent with what Mr Sharrock recalls of the conversation he had in March 2003 when he put the fence up.

 

26. The second entry is in June 2006, when she made a mess of Mr Midgley's car with the grass cutting flying from her strimmer. Mr Midgley had parked his car next to her garden because he was not using the garage any more. Miss Hainsworth explained that they had sold the garage to someone who was going to take it away, and that they had stopped parking in it and had left the door open. Thus Miss Hainsworth's evidence is that the garage was still there in June 2003.

 

27. The third is in September 2003 when there is a reference in the diary to a jokey conversation with Mr Midgley where she said that if she won the lottery (which she doesn't play) she would let him build a carport on her front garden. So again, this is evidence of how Mr Midgley felt about his garage in 2003.

 

28. Mr Sharrock's second witness was Mrs Sylvia Hirst, who lived at 287 Whitehall Road from 2002 to 2007.She remembers Mr Sharrock putting the fence up and having the boulders tipped because the house shook. She believes that this was after the garage was removed. One morning she opened the side door to her house, which faced the garage, and it wasn't there. She remembers that it was 2003 because it was pretty much the same time as her van was stolen; they joked that maybe the people who stole the van put the garage in it. Initially she was clear that this was March 2003; she too remembers Mr Sharrock's daughter's birthday. But she also said that the garage had not gone in March.

 

29. Miss Phillipson pressed Mrs Hirst about these dates and it is fair to say that Mrs Hirst became less clear, eventually saying that she could not remember the dates, but that the garage, the van and her cat disappeared in 2003.

 

Conclusion: the garage was demolished in 2004

30. It is not in dispute that Mr Sharrock put up his fence in March 2003. I find as a fact that the garage was demolished in 2004, and that it was only then that he had boulders tipped in front of where the garage used to be. Before then he was not in possession of either the hatched or the shaded area.

 

31. The text of the letter produced by Ms Moran indicates that it was sent in Februery 2004; and the fact that rent was paid for the land in February 2004 is consistent with the letter and with the tenancy ending in August 2004. The fact that the tenancy ended in August 2004 does not in itself tell us when the garage came down, but the content of the letter tells us that it was still there in February 2004.

 

32. People do sometimes get dates wrong. Mr Sharrock is convinced it was 2003. Miss Hainsworth's diaries do not tell us when the garage was demolished, only that in 2003 Mr Midgley was cross about the status of his garage. The diaries do not tell us that he had by then been told to remove it; Mr Midgley knew all along from the terms of his tenancy that he would at some stage have to take it down. Mrs Hirst recalls the garage disappearing at the same time as her van but her memory was not precise about the month, and she could be wrong about the year. Mr Ellis recalls the garage being there when he moved in. They cannot all be right. But I think that it is more likely that Mr Ellis is right, because he is unlikely to be mistaken about the year he moved house. As discussed at the hearing, people do tend to date their memories by other things that happened at the same time, and I think, on the balance of probabilities, that Mr Ellis is likely to be right that the garage was still standing when he moved in. His recollection is consistent with the letter and with the payment of rent by the Midgleys.

 

Estoppel

33. Mr Sharrock has applied for planning permission and has spent £30,000 getting the land ready for building, which will be impossible if he loses the hatched and shaded areas. When the planning office queried his ownership of the land, because it was still shown on the City Council's deeds, he produced his copy of the Land Registry entries of his title, and was told that all was well and the land was his. He referred particularly to a meeting with the planning department where this conversation took place, on 12 June 2014.

 

34. He was granted planning permission, but he was required as a condition of permission to grout the land - that is, to inject concrete to fill the voids where coal had been removed below the surface. In the course of doing this in October 2014 a cable was discovered and there followed a conversation with personnel from Virgin and from the City Council, and also about the green cabinet which can be seen on the land in Mr Ellis' photograph. He was told he could put a wall on his land behind the cabinet, or incorporate the cabinet into the wall. He had a number of conversations about the road sign that is on the land; the highways department said that if this was his land they would move it. He also had a conversation with building control in December 204 about the footings of the house he was going to build. Only in January 2015 did he become aware that the City Council wanted to have the register altered.

 

35. Mr Sharrock asks, very reasonably, why the City Council is not estopped from saying the land is not his, after they granted him planning permission for a building for which the shaded and hatched land are needed, discussed the cable and the road sign, and agreed the position of the footings of the building, as well as requiring him to spend money on the grouting.

 

36. There are two answers to that. One is that public authorities cannot be estopped from carrying out their statutory duties ( Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204, CA). The other is that, as Miss Philippson pointed out, the representations made to Mr Sharrock were prompted by him. He produced evidence of his registration, and the council officials very understandably backed down, as we might say. That is not the same as the City Council making a statement or representation of its own which was then relied upon by Mr Sharrock. Instead, the City Council was relying on what Mr Sharrock said about his own title.

 

37. So the argument about estoppel fails.

 

Alteration of the register

 

38. Mr and Mrs Sharrock's registration as proprietor of the hatched and shaded areas was a mistake. Should the register be altered to remove those areas from their title? Paragraph 3(2) of Schedule 6 to the Land Registration Act 2002 states that where an alteration of the register would involve the correction of a mistake (as would this) and would prejudicially affect the title of a registered proprietor ion possession of the land (as Mr and Mrs Sharrock now are), the register is not to be altered except where the proprietor "by fraud or lack of proper care caused or substantially contributed to the mistake" or where it would for any other reason be unjust not to rectify. There is no suggestion of fraud on Mr and Mrs Sharock's part, but the information they gave to Land Registry in 2013 was incorrect, no doubt inadvertently on their part.

 

39. Accordingly the register should be corrected, and I have directed the Chief Land Registrar accordingly.

 

Costs

 

40. The Applicant has succeeded, and in this jurisdiction it is usual for costs to follow the event; the loser pays the winner's costs. A formal application has not been made, because I reserved my decision. But the City Council has put in a schedule of costs amounting to £5,439.50.

 

41. I was unsurprised by Mr Sharrock's evident exasperation that the City Council should have left it so late to object t his registration and should do so after he has spent so much money on getting the land ready to build. His reaction is perfectly understandable. The City Council is free to make an application for an order for costs, as is Mr Sharrock; my initial view, in the absence of an application and therefore without having heard argument, is that I would be most unlikely to make an order for costs in the City Council's favour, and would be minded to make one in Mr Sharrock's favour so as to compensate him for any expenditure (such as travel expenses to the hearing) he has incurred as a result of this reference which would not have been needed had the City Council replied promptly to the notice from Land Registry in 2013. However, as things stand I make no order for costs and will make no order unless either party applies to me by 5pm 7 March 2016 for such an order.

 

 

Dated this 8 February 2016

 

 

 

By Order of The Tribunal