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England and Wales Land Registry Adjudicator |
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You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Mr Stanley John Beverley Botes v Mrs Jane Margaret Justina Binks (Adverse possession : Intention to possess) [2005] EWLandRA 2004_0903 (06 December 2005) URL: http://www.bailii.org/ew/cases/EWLandRA/2005/2004_0903.html Cite as: [2005] EWLandRA 2004_0903, [2005] EWLandRA 2004_903 |
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Title Number: ESX274586
Applicant representation: Mr Charles Harpum of counsel
Respondent: Mrs Jane Margaret Justina Binks
Respondent representation: Mr Charles Holbech of counsel
Before: Mr Brilliant sitting as a Deputy Adjudicator
Inspection held: 3 October 2005
Heard at: Procession House on 4 and 5 October 2005 and 21 November 2005
1. Hooe in East Sussex lies on the B2095, which runs from Ninfield to the A259 Bexhill to Eastbourne road. The name Hooe means "spur of land" in Saxon, and describes the area exactly. Since Saxon times, the sea level has dropped, and Hooe is now about 2 miles inland from the sea. The sea used to wash around Hooe, on both sides, up the Ashbourne valley, and also on the Cooden side. Historically, the main income from the village was from the salt works on the Pevensey Levels, and from farming.
2. At Hooe Common, the B2095 forks and a smaller road runs south, almost parallel to the B2095, meeting the A259 to the east of where the B2095 meets it. This road is known locally as Lower Marsh Road. About half way along Lower Marsh Road a private roadway (“the roadway”) runs off to the south east. From the roadway access is gained to the various properties and pieces of land featuring in this reference.
3. This reference concerns an application by Mr Botes, the applicant, to be registered as the proprietor of a track or country lane (“the lane”) which begins at the eastern end of the roadway. The lane runs from west to east (strictly it is north west to south east but it is agreed I should simplify the orientation throughout for the sake of clarity).
4. Annexed hereto is a plan with the lane marked in blue. The lane adjoins and, in part, runs through farming land of which Mr Botes is the registered proprietor. This is edged in red on the plan. A number of lettered points are shown on the plan at page 150 of the trial bundle, which are also marked on the plan annexed hereto. There are photographs at pages 177 to 201 of the trial bundle.
5. The various properties and pieces of land accessed off the roadway are as follow:
(1) Broad Green Farm South
This is that part of Mr Botes’ farm, Broad Green Farm, Hooe, which is registered under title ESX105795. I shall refer to this part of Broad Green Farm as “Broad Green Farm South”. The entrance to Broad Green Farm South is the first turning on the right as one proceeds east down the roadway. Most of Broad Green Farm South lies to the south of the lane but one field, 2744, lies to the north. This field can be seen between points T and S on the plan annexed hereto.
(2) Broad Green House
Broad Green House, Hooe (“Broad Green House”) which consists of a detached house and surrounding land situated adjacent and to the east of the entrance to Broad Green Farm South. Broad Green House is shown on the plan annexed hereto.
(3) The lane
The roadway ends at the eastern end of a substantial block of garages, which abuts the roadway on its south side and belongs to Broad Green House. The roadway at about this point divides into 3 separate tracks. This is seen in the photograph at page 177 of the trial bundle. The first of these tracks, which runs straight ahead from the roadway, is the beginning of the lane. There is no gate here.
(4) Quyddleswell Mount
The second of these tracks, which runs to the north of the lane, begins at the entrance to Quyddleswell Mount, Hooe (“Quyddleswell Mount”) which is a detached house with surrounding land, registered under titles ESX117083 and ESX154001. The track leads to the house and there is a gate at this entrance. Quyddleswell Mount is almost entirely surrounded by Broad Green Farm and its southern boundary abuts part of the lane. Quyddleswell Mount is shown on the plan annexed hereto.
(5) Broad Green Farm North
The third of these tracks, which runs to the north of Quyddleswell Mount, begins at the entrance to the remaining part of Broad Green Farm, also owned by Mr Botes, which is registered under title ESX91117. I shall refer to this part of Broad Green Farm as “Broad Green Farm North”. There is a gate at this entrance, which was padlocked after 2001. Broad Green Farm North is not contiguous to the lane, although the entrance is very close to it.
6. The following matters are common ground. The lane is unregistered land. The lane is of considerable antiquity. The lane is private land and is not and has never been a highway. It simply leads to fields. The identity of the owner of the lane is unknown and is lost in the mists of time. No one can demonstrate a good paper title to it.
7. Mr Botes has owned and occupied Broad Green Farm North since 1983 and Broad Green Farm South since 1984. Until 1995 he personally farmed livestock, namely cows and sheep. Since then he has granted grazing rights to others to use the land. His case is that he acquired the lane as part of Broad Green Farm South and that he has occupied it for agricultural purposes ever since. He sets out in his statutory declaration dated 25 February 2004, his statement of case dated 27 October 2004 and his witness statement dated 4 March 2005 the various acts and activities upon which he relies as showing that he has been in possession of the lane for over 20 years. In particular, he asserts that he exercises control over the lane by enclosure and by having it constantly monitored by himself and his helpers.
8. In his oral closing submissions Mr Harpum, on behalf of Mr Botes, placed particular weight on acts of enclosure said to have been carried out by Mr Botes’ immediate predecessors in title of Broad Green Farm South, Mr and Mrs Charles Hickman and their son, Mr Michael Hickman. I was invited to find that Mr Michael Hickman had already acquired title to the lane by adverse possession by late 1984 and he was therefore able to convey title to it to Mr Botes.
9. Mr Botes applied to Land Registry to be registered as proprietor of the lane by an application in form FR1 (“the original application”) received on 1 March 2004. It was supported by the statutory declaration I have just referred to. Although Mr Botes asked in the original application to be registered with absolute freehold title, it is accepted that it is possessory freehold title that correctly should be sought. The original application was, unsurprisingly, treated by Land Registry as an application for registration with possessory title by a person in adverse possession.
10. On 21 May 2004 Land Registry sent to Mrs Binks, the respondent, its form B149 which is headed, “Notice to an adjoining owner of an application for registration of a person in adverse possession.” In the body of the notice it states, “The applicant claims to have acquired a title to the land by adverse possession. A copy of the Statutory Declaration(s) lodged in support of the claim is enclosed”.
11. Mrs Binks is the owner of Quyddleswell Mount, which abuts part of the lane. She is not, of course, the owner with paper title of the lane.
12. The original application was objected to by Mrs Binks in her solicitors’ letter to Land Registry dated 11 June 2004. She denies that the lane has been in the exclusive occupation of Mr Botes. She says that various people make recreational use of the lane without Mr Botes’ permission and that there has been agricultural use other than by Mr Botes. As a result of this objection the dispute was referred to the Adjudicator on 9 September 2004.
13. Mr Botes and his advisers clearly believed that the basis for the original application was adverse possession, as in his statutory declaration he says that, “Since I acquired [Broad Green Farm South] [which was in 1984] I have been in uninterrupted use of the [lane ever] since and am entitled to have myself registered as proprietor of it”.
14. When the dispute between the parties was referred to the Adjudicator the case summary provided by Land Registry stated that the basis of the claim to title was set out in the statutory declaration dated 25 February 2004, to which I have already referred, and which accompanied the case summary together with other documents, including the form B149 I have also referred to.
15. The reference to the Adjudicator proceeded on the basis that it was an adverse possession case and that Mr Botes would need to show 12 years adverse possession. In my judgment the 12 years would need to be completed no later than 28 February 2004, being the day before the original application was received. Although at one stage it was suggested by Mr Botes’ solicitors that the true basis for his application was rectification of the register on the basis that he could show good paper title, this assertion was not pursued. Indeed, each side’s opening skeleton argument concentrated exclusively on adverse possession.
Mr Harpum’s novel arguments
16. It was therefore somewhat surprising that on the morning of the first day of the hearing Mr Harpum produced a further written opening submission in which he raised for the first time the following argument:
(1) Section 9(5) of the Land Registration Act 2002 provides that a person may be registered with possessory title if the registrar is of the opinion (a) that the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate, and (b) that there is no other class of title with which he may be registered.
(2) Provided that Mr Botes can show that he is in possession of the lane, he will have a registrable estate. It would be open to the registrar to register him as proprietor of the lane with a possessory title without the need to show 12 years’ possession.
(3) Such registration does not prejudice the rights of any person who could show a better title to the lane (see section 11(7) of the Land Registration Act 2002).
(4) In practice the registrar properly seeks to retain the integrity of the register and would wish to be reasonably satisfied that there was no other person who was likely to claim ownership of the lane.
(5) On the facts of this case there is no real or sensible risk that Mr Botes’ title could be challenged by a person with a better title, as there appears to be no owner with a paper title. In those circumstances he should be registered with a possessory title even if he cannot show 12 years’ possession.
(6) Such an approach was not possible under the Land Registration Act 1925 which had no provision in it equivalent to section 9(5) of the Land Registration Act 2002.
17. I am not prepared to decide this reference on the basis of this argument. Whether or not it is correct, my jurisdiction under section 108(1)(a) of the Land Registration Act 2002 is to determine matters referred to me under section 73(7) namely the objection to Mr Botes’ original application made by Mrs Binks. Land Registry and both parties, as I have explained, have throughout treated the original application as one concerning adverse possession and not one concerning a novel point under section 9(5) of the Land Registration Act 2002. So too did Mrs Binks’ objection. There was no dispute before the registrar concerning this argument and I accordingly decline to adjudicate upon it. I would also observe that it was far too late to raise it on the day of the hearing when it had not been mentioned in any way in the statement of case or the earlier opening skeleton argument.
18. Mr Harpum raised another argument for the first time in his further written opening submission, which is of greater merit. This is as follows:
(1) There is no known paper owner. How do the principles of adverse possession apply to such a situation? There is no authority on this point.
(2) The policy considerations which underlie some of the rules of adverse possession do not apply where there is no competing title.
(3) It is well established that where there is a dispute between a squatter and the paper owner, the law does favour the paper owner by means of a number of presumptions. This is because the courts are reluctant to allow an encroacher or squatter to acquire a good title to land against the true owner (per Laddie J in Batt v Adams [2001] 2 EGLR 92, paragraph 24).
(4) Where as here there is no known true owner and no person’s lesser proprietary rights will be prejudiced, the issue is one of quieting title and there is no reason to apply such presumptions.
(5) As a matter of policy it is not desirable that land should be ownerless. Further, all land should be registered by 2012.
19. I understand Mr Harpum’s argument to be that when there is no paper owner and the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation, then those acts should be sufficient to establish the intention to possess.
20. I have some sympathy with this argument, especially as there would appear to be nothing that Mrs Binks can do to stop time running against the paper owner. Even if Mr Botes were not to succeed now he would be able to eventually, provided he did satisfy the requirements of the law of adverse possession.
21. However, I do not consider it would be right for me to apply a less stringent test than has hitherto been applied in cases of adverse possession. This is still an adverse possession case despite the absence of a known paper owner. The intention to possess has 2 elements. These are (1) a subjective intention to possess and (2) some outward manifestation of the trespasser’s subjective intention which makes clear that intention to the world at large. I am not at liberty to water down the second limb of the requirement. Even where the trespasser believes he is the owner of the land it is still necessary for him to establish a manifest intention to exclude everyone (Hughes v Cork [1994] EGCS 25).
22. What the authorities show is that an equivocal act done by or on behalf of an owner in possession will be found to negative discontinuance of possession (Powell v McFarlane (1977) 38 P&CR 452, 472). In my judgment there is a world of difference between the loss of possession by an owner in possession and the acquisition of possession by a trespasser. Accordingly, I propose to apply the conventional law of adverse possession, as I understand it, to this reference.
23. I should record that a material reason for the dispute between the parties is as follows. Mr Botes wishes to develop part of Broad Green Farm South. He needs planning permission and the release from a section 52 agreement with the local planning authority. To achieve his aims he wishes to show he has title to the lane. Mrs Binks is opposed to the proposed development on her doorstep and is concerned that her view will be spoiled.
24. The contending merits of this proposed development and the objections to it are in themselves of no relevance to me in deciding the questions of fact and law which arise in this reference.
Representation
25. Mr Harpum appeared for Mr Botes and Mr Holbech appeared for Mrs Binks.
26. On 3 October 2005 I inspected the site. The hearing of the evidence took place before me in London on 4 and 5 October 2005. At the end of that I gave directions for the delivery of written closing submissions. Legal argument and closing oral submissions took place on 21 November 2005.
The conveyancing history of Quyddleswell Mount
27. In the 1960s, both Broad Green Farm South and Quyddleswell Mount were owned by the Holroyd family. On 23 November 1967 Mrs Holroyd conveyed Quyddleswell Mount to Mr and Mrs Murray, predecessors in title to Mrs Binks. Mrs Holroyd granted a right of way over the roadway to Mr and Mrs Murray to afford access to Quyddleswell Mount from Lower Marsh Road.
28. Mrs Binks and her husband purchased Quyddleswell Mount in 1988. On 10 February 1993, Mrs Binks was registered as sole proprietor. Mr Binks is a partner in a City firm of accountants. Mr and Mrs Binks live principally in London, but occupy Quyddleswell Mount 3 weekends out of 4 throughout the year and use it extensively during holiday seasons. It has a tennis court and a croquet lawn and I am satisfied that it is a much used and needed place of relaxation. I accept Mrs Binks’ evidence that between late June and early September each year Quyddleswell Mount is occupied most of the time by members of the extended family.
The conveyancing history of Broad Green Farm South and the lane
29. Mr and Mrs Holroyd both died in 1969. On 14 April 1971, Mrs Holroyd’s executor conveyed Broad Green Farm South to Mr and Mrs Charles Hickman, Mr Botes’ predecessor in title.
30. The conveyance also included the following:
“SECONDLY all such right title interest or estate (if any) as the Vendor may enjoy in any part or parts of the private road shown coloured yellow on the … plan”.
The private road shown coloured yellow on the plan is the lane. It is common ground, for the purposes of this reference, that Mr and Mrs Charles Hickman enjoyed no paper title to the lane.
31. The executor granted a right of way over the roadway to Mr and Mrs Charles Hickman, to give them access to Broad Green Farm South and to the lane from Lower Marsh Road.
32. On 6 April 1983, Mr and Mrs Charles Hickman conveyed Broad Green Farm South to their son, Mr Michael Hickman.
33. In 1971 Mr Botes became the owner and occupier of Broad Green House. In 1983 Mr Botes purchased Broad Green Farm North from Mr Gorringe. In 1984 Mr Botes was interested in purchasing Broad Green Farm South from Mr Michael Hickman.
34. Mr Botes instructed the solicitors Rayner, De Wolfe to act for him on the purchase of Broad Green Farm South, which was then unregistered land. On 15 November 1984 the partner dealing with the matter, Mr Cassidy, wrote to Mr Botes:
“There is no indication with the Title Deeds as to the ownership of [the lane]. There are certainly no Title Deeds confirming that Mr [Michael] Hickman has a legal right to own the [lane]. As a result, when we come to register this land at Her Majesty’s Land Registry, I believe that the best Title we will be able to obtain is what is known as possessory title. This is self-explanatory, its effect is that the land is yours, and after 12 years will be vested in you absolutely, unless in the interim someone comes along and proves that they have better title”.
35. On 30 November 1984, Mr Michael Hickman conveyed Broad Green Farm South to Mr Botes, together with the right of way over the roadway.
36. The conveyance also included the following:
“Secondly all such right title interest or estate (if any) as the vendor may enjoy in any part or parts of the private road shown coloured yellow on the … plan annexed [to the conveyance dated 14 April 1971]”.
This is, of course, a reference to the lane. It is common ground, for the purposes of this reference, that Mr Michael Hickman enjoyed no paper title to the lane.
37. It would appear that Rayner, De Wolfe sought to have a possessory title to the lane registered in the name of Mr Botes. To this end a statutory declaration, sworn on 13 February 1985, was obtained from Mrs Charles Hickman. In that declaration she says:
“I verily believe that the [lane] has been part of and used with [Broad Green Farm South] for many years. I confirm that during the period that my husband and myself owned [Broad Green Farm South], that is between 14 April 1971 and 6 April 1983 the [lane] was only used by the proprietors of neighbouring land for the purposes of access to their land.”
38. The application to register a possessory title was refused. In a letter to Rayner, De Wolfe written by Land Registry in August 1985 it was observed:
“…even now that the Statutory Declaration has been lodged in the Registry the writer considers it insufficient to consider the grant of any class of title, since it contains no claim to exclusive occupation or user of the land in question and admits that it is roadway and is used by the proprietors of neighbouring land as such as well as being so used by the Declarant and her husband at the time of their ownership of [Broad Green Farm South]. Consequently, the Declaration at best constitutes evidence of a claim to a right of way it is submitted. Even so considered it is insufficient to support any entry on the Register.”
39. In his witness statement dated 4 March 2005 Mr Botes says that he did not know until very recently that this application was made or, therefore, that it had been unsuccessful. He has always believed himself to be the owner of the lane. He confirmed this in his oral evidence. If this is correct it must follow that Rayner, De Wolfe failed to inform Mr Botes of the contents of the letter from Land Registry dated August 1985.
40. For the reasons given later in this judgment I am persuaded by Mr Harpum that I should be cautious about attaching any significant weight to the statutory declaration of Mrs Charles Hickman.
41. Mr Botes was registered as first freehold proprietor of Broad Green Farm South on 10 January 1985. In 1989, Mr Botes sold Broad Green House, in which he had lived since 1971, to Mr Fisher and went to live in a converted dairy situated on Broad Green Farm South. He has remained living there since.
The witnesses
42. I heard from the following called on behalf of Mr Botes:
(1) Mr Botes.
(2) Mr Smith, who has grazing rights on Broad Green Farm.
(3) Mr Caroll, who has owned Broad Green House since 2000.
(4) Mr Michael Hickman, who sold Broad Green Farm South to Mr Botes in 1984.
(5) Mr Jason Storbeck, who works part time for Mr Botes on Broad Green Farm.
(6) Mr Taylor, who has worked from time to time for Mr Botes on Broad Green Farm.
(7) Ms Pearman, a local resident.
43. I also admitted in evidence a witness statement of Mr Jason Storbeck’s father, Mr John Storbeck, a former parish clerk of Hooe.
44. I heard from the following called on behalf of Mrs Binks:
(1) Mrs Binks.
(2) Mr Binks.
(3) Mr Watts, a house guest at Quyddleswell Mount.
(4) Mrs Fisher, who lived at Broad Green House from 1989 to 2000.
(5) Mr Fisher, who owned Broad Green House from 1989 to 2000.
(6) Mr Wood, who is the gardener at Quyddleswell Mount.
The geography of the lane
45. The lane can conveniently be divided into a number of sectors.
The 1st sector
46. The 1st sector lies between the beginning of the lane at the eastern end of the roadway and point P. This short stretch of the lane is bordered on the north by a fence and hedgerow beyond which is the driveway of Quyddleswell Mount (seen clearly in the photograph at page 184 of the trial bundle). On the south is it is bordered by the northern boundary of Broad Green House, which is a bank leading down to the lane (as can be seen in the photographs at page 178 of the trial bundle).
47. This sector of the lane is relatively flat and straight and is surfaced with hardcore. At the beginning of the lane there is no boundary feature whatsoever and there is nothing in any part of this sector to indicate that it is other than a continuation of the roadway.
48. The first few metres of the 1st sector were conveyed or purportedly conveyed to Mr Fisher in 1989, no doubt to give a turning circle outside his garage block. This can be seen on the plan to the conveyance dated 17 July 1989, at page 245 of the trial bundle. No claim to the title of that part of the 1st sector is now pursued. Mr Botes said in his witness statement and in his oral evidence that he had conveyed the whole of the 1st sector to Mr Fisher, but this is not correct and Mrs Fisher confirmed that this had never been part of the bargain.
49. However, it was established during the course of the oral evidence that Mr Botes has been under the mistaken impression that he had in fact sold the whole of the 1st sector to Mr Fisher. In those circumstances, Mr Holbech submits that Mr Botes cannot have the necessary intention to possess the 1st sector, being 1 of the 2 essential elements of legal possession.
The 2nd sector
50. The 2nd sector lies between point P in the west and point T in the east. The northern boundary of the lane is a bank and hedgerow abutting the southern boundary of the garden of Quyddleswell Mount. The southern boundary of the lane is a bank and hedgerow abutting field 1739 in Broad Green Farm South. The 2nd sector is shown in the photographs at pages 185 to 193A of the trial bundle.
51. This sector of the lane is relatively flat but curved and the surface is hardcore. At the beginning or western end of this sector, which is at point P, there is a gate (“gate P”) and a cattle grid. Mr Botes installed the cattle grid as recently as 2003.
52. I accept Mr Michael Hickman’s evidence that he installed gate P in 1972 or 1973. Although Mr and Mrs Fisher, who owned Broad Green House between 1989 and 2000, say in their witness statements that it was erected soon after they moved in, they accepted in evidence that what they saw was renovation work to an existing gate. Mr Caroll is mistaken when he said in evidence that gate P was erected after he purchased Broad Green House in 2000.
53. It is common ground that there was never been any form of notice prior to the original application at point P indicating that the lane, proceeding thereafter in an easterly direction, was private property or that those uninvited should keep out.
54. At point T there is a gate (“gate T”) into field 2744, which is the only part of Broad Green Farm South to lie north of the lane. The north west corner of field 2744 touches the south east corner of field 2155, which forms part of Broad Green Farm North. There is access between these 2 fields.
55. At point T there is also a stile which leads from the garden of Quyddleswell Mount to the lane. It can be clearly seen in the photographs at pages 183, 188 and 194 to 199 of the trial bundle. Mr Murray had put in this stile in 1968 at the earliest. Mr Murray and his children used it to go into the lane for picking wild fruit. There is a large triangular grass verge leading up to and at point T.
The 3rd sector
56. The 3rd sector lies between point T in the west and point R in the east. The northern boundary of the lane is a hedgerow or fence abutting first field 2744, part of Broad Green Farm South, and then fields 3452, 4744 and 6139, part of a large farm, Akehurst Farm, Hooe (“Akehurst Farm”), registered under title ESX225660 and owned by Mr Kemp. The southern boundary of the lane is a hedgerow or fence abutting fields 1739 and 3533 in Broad Green Farm South. Between points T and S the lane bends sharply at what is, in effect, a T junction with a track leading south along the side of field 1739. This point has been referred to as “the dogleg.”
57. The precise ownership of Akehurst Farm has changed from time to time over the last 20 years but has remained in the interrelated Morris and Kemp families. Until April 1992 certain fields in Broad Green Farm North, including 3452, 4744, 6139 and 5555, were leased to Mr Dyson who had in turn sub-let them to Mr Botes during 1985 and 1986 only.
58. At the dogleg there are 2 gates. One leads onto the track along the side of field 1739. This track leads to the barn which Mr Botes hopes to redevelop. This gate was padlocked after 2001. The other gate opens onto the adjoining field 3533.
59. At point A there is a gate (“gate A”) leading from the lane to Mr Kemp’s field 6139. When this field had been leased to Mr Dyson there had been a hole in the fencing which was used to give access. The hole was blocked with hurdles. When Mr Dyson’s lease came to an end and he retired he blocked up the hole with gate A, which Mr Botes described as “ironmongery.” Gate A can be seen in the photograph at page 181 of the trial bundle. It has never been padlocked.
60. Up to the dogleg the surface is hardcore and is suitable for vehicles. Thereafter the surface is more akin to an earthen track. Concrete slabs have been used to repair potholes.
61. From point R onwards the remainder of the lane is impassable because it has been planted with trees to create a shaw. Mr Michael Hickman told me that this was carried out by his family “a few years after we were there.” That is to say a few years after 1971. Mr Harpum says that this occurred “around the mid-1970s”. At point R there are 2 gates. The first (“gate R1”) appears to follow the lane, although the lane in fact twists away to the north of it. Gate R1 gives access to field 5524 in Broad Green Farm South.
62. The other gate at point R (“gate R2”) is at an obtuse angle to gate R1 and separates field 5524 from field 3533. These gates can be seen in the photograph at page 181 of the trial bundle. Mr Jason Storbeck explained to me that these gates were jammed shut for about 18 months in 2002-2004 after he had made a faulty repair. One of these gates was padlocked for a short while, about a year, in 1984-1985. Mrs Binks told me that when gate R1 was locked she climbed over it.
The 4th sector
63. The 4th sector lies between point R in the west and point Q in the east. The northern boundary of the lane abuts field 6139 in Akehurst Farm. The southern boundary of the lane abuts field 5524 in Broad Green Farm South. This part of the lane is impassable because of the shaw, except where it is crossed by a public footpath running from field 5524 to field 6139.
64. There is a dilapidated gate at point Q (“gate Q”) which only extends the width of field 7422. Mr Holroyd had installed this. Gate Q has never been locked. Mr Botes accepted in cross-examination that there was no need for this gate as the lane is impassable to the west. The shaw and gate Q can be seen in the photographs at pages 181 to 182 of the trial bundle.
65. Mr Botes has carried out no activities on the lane at the 4th sector apart from renewing the stile where the public footpath meets it at the junction with field 5524 and erecting, for a while, an electric fence in field 5524 to prevent livestock straying through it into Akehurst Farm.
66. As the lane is unregistered land, it has not been suggested to me that the decision of Mr Nicholas Strauss QC in Beaulane v Palmer [2005] EWHC 1460 Ch can have any impact on my decision. Nor do the changes to the law on adverse possession introduced in the Land Registration Act 2002.
67. The relevant statutory provisions are as follows. Section 15 of the Limitation Act 1980 (so far as material) provides:
(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, …
(6) Part 1 of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
68. Paragraph 1 of Schedule 1 to the Act provides as follows (so far as material):
Where the person bringing an action to recover land …. has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.
69. Paragraph 8 of Schedule 1 to the Act provides as follows (so far as material):
(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
70. The 2 most important authorities on adverse possession are the decision of Slade J in Powell v McFarlane (1977) 38 P&CR 452 and of the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.
71. As Lord Browne-Wilkinson said in Pye at paragraph 36 “The question is simply whether the … squatter has dispossessed the … owner by going into ordinary (my emphasis) possession of the land for the requisite period without the consent of the owner”.
72. Possession, however, itself contains 2 separate elements namely:
(1) Factual possession consisting of a sufficient degree of physical custody and control.
(2) An intention to possess (“animus possidendi” in Latin) being an intention to exercise such custody and control on one’s own behalf and for one’s own benefit.
Factual possession
73. Lord Browne-Wilkinson expressly agreed at paragraph 41 with the attempt by Slade J to define this in Powell v McFarlane, where he said:
“The question what acts constitute a sufficient degree of 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. ... 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.”
The intention to possess
74. In Pye Lord Browne-Wilkinson said at paragraph 42 that once it is accepted that the word “possession” in this context 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. It is wrong to suggest that an intention to own the land or to exclude the owner as well as other people was required.
75. In Pye Lord Hope of Craighead said at paragraph 71:
“The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word “adverse” in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own. … So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough.”
76. As I have already explained in paragraph 21 above, the intention to possess has 2 elements (1) a subjective intention to possess and (2) some outward manifestation of the trespasser’s subjective intention which makes clear that intention to the world at large (see Blackburne J in Smith v Waterman [2003] EWHC 1266 (Ch) paragraph 19).
77. It is possible to acquire title to a road by adverse possession. This will be the case where the squatter encloses the road and controls access to it. It is not fatal to the squatter’s claim that the paper owner (or presumably anyone else) continues to make limited use of the land, as by entering to carry out maintenance to his adjoining property: see Williams v Usherwood (1983) 45 P&CR 235; Jourdan Adverse Possession paragraph 13-24. If property is enclosed and gated, but the gate is not locked, a person may still be in factual possession if he controls the access through that gate (Jourdan Adverse Possession paragraph 13-24, Gray Elements of Land Law paragraph 6.130).
The issues
78. The principal issue in this reference is whether Mr Botes (and/or the Hickman family before him) have exercised the appropriate degree of physical, effective, single and exclusive control of the lane for 12 years before 1 March 2004 and whether he (and/or they) have manifested the intention to exercise single and exclusive control in his (and/or their) own right. The accessibility and control of gate P and the stile are central to this issue. So too are the farming and recreational activities that have taken place on the lane and which have involved the use of gate P and the stile.
79. As Mr Harpum put it in his written opening submissions, “Mr Botes must prove that he had factual possession, that is, an appropriate degree of physical control of the lane. That possession must have been a single and exclusive possession”. In his written closing submissions Mr Harpum says, “The extent to which Mr Botes, and before him, Michael Hickman, controlled the lane was probably the central issue in the case.”
My assessment of the witnesses
80. Before recording my findings on these matters, I must set out my assessment of the evidence of the witnesses.
81. I found Mr and Mrs Binks and Mr Watts entirely convincing witnesses. Their evidence has been consistent throughout, was cogent and was not shaken in cross-examination. I accept it as being true.
82. Mr Wood is less educated and articulate than the other witnesses and, in my judgment, this explains why he mistakenly signed a witness statement which dated the start of his working for Mr and Mrs Binks as 1984, instead of 1994. It also explains why he said that he had seen Mr Dyson using the lane for access to a field when Mr Dyson had died in 1993, a year before Mr Wood was working there. Mr Wood explained that he had not seen Mr Dyson, but he has 2 brothers who had seen him and this was what he had been told. I accept his direct evidence. Mr Harpum says Mr Wood was a wholly unreliable witness and was disingenuous. I reject that submission.
83. I found both Mr and Mrs Fisher to be careful and conscientious witnesses and I accept their evidence.
84. I had a good opportunity to observe Mr Botes as he was in the witness box for 4 hours and 40 minutes. He is an impressive man, now 85 years of age, large in physical presence and in personality. He is articulate, well educated, has considerable charm and gives the appearance of a successful businessman, practical farmer and devotee of the countryside.
85. I have however reached the firm view that he tends to see matters very much in terms of black and white, and I had the impression during the course of his evidence that he was arguing his corner more than anything else. He has convinced himself that the lane is his and this has coloured the way in which he has given his evidence. He has not always given the whole truth: in paragraph 8 of his statutory declaration he says he has padlocked the gate (he confirmed in evidence this was gate P) as he has deemed advisable, but failed to say that this only started to happen in 2001. He explained that it was not requisite to say how long it had been padlocked, but as he knew he had to show long user this is misleading.
86. The statement of case was also misleading where it asserted in paragraph 20 that the lane had been enclosed by Mr Botes at both ends. The lane is not enclosed at all where it begins. The gate further down at point P was erected by Mr Michael Hickman 30 years ago, not by Mr Botes, and has only been padlocked recently. The shaw and gate Q at the western end were similarly installed 30 or more years ago, and Mr Botes has carried out no significant activities at the western end of the lane.
87. Another striking example is this. The dispute between the parties turns on what has been happening on the lane, day in day out, over the last 20 years. During a combative exchange in cross-examination Mr Botes said to Mr Holbech, “I am on the land every day, my friend”. This remark corresponded with the impression given by Mr Botes in his witness statement that he knew the area inside out, unlike Mr and Mrs Binks who only used Quyddleswell Mount as a “weekend cottage”.
88. What Mr Botes had never volunteered in his witness statement, but only came out by chance through his own witnesses, was that he has not kept any livestock himself on Broad Green Farm since 1995. Since then he has had to stay overnight in London for personal reasons, once or twice a month, often several days at a time. His wife has a flat in London where he stays. He also has family interests in London.
89. Where the evidence of Mr Botes conflicts with that of Mr and Mrs Binks and their witnesses, I prefer the latter.
90. In fairness to Mr Botes I should say that I find as a fact that he was unaware that he was not the owner of the lane until recently. I am not prepared to find on the evidence before me that he knew of the letter from Land Registry dated August 1985 at the time it was written. For the avoidance of doubt I should say that I am not making a finding that Rayner, De Wolfe deliberately withheld the letter from Mr Botes. That is not an issue before me.
91. Nor, despite the suggestion by Mr Holbech, am I prepared to find that the discussions at the time of the sale of Broad Green House to Mr Fisher in 1989, when the question of selling part of the lane was discussed, alerted him to the fact that the lane was still unregistered land.
92. I accept the evidence of Mr Caroll, save that it is common ground that gate P was in place in 2000. I accept the evidence of Mr Michael Hickman and of Ms Pearman.
93. The evidence of Mr Smith, Mr Jason Storbeck and Mr Taylor suffers from the difficulty that it was called in order to prove a negative, that is to say that no unauthorised use of the lane has taken place. All they can say is what they have seen when they have been near the lane. I deal with this further below.
Accessibility and control of gate P
94. It is common ground that gate P has only been routinely kept padlocked since 2001, although Mr and Mrs Fisher suggested in evidence that there might have been intermittent episodes of locking earlier. Mr Botes said in evidence in chief that he padlocked gate P because he was losing equipment through theft.
95. Why was gate P installed? Mr Michael Hickman said in evidence that gate P was erected to keep livestock from straying onto the highway as his insurers would have taken a dim view of that happening, and to stop other livestock from coming into Broad Green Farm South. Mr Dyson was given permission by Mr Michael Hickman to use the lane either because he asked for it or because it was volunteered to him.
96. Mr Botes said in cross-examination that the purpose of gate P was to keep cattle in and not people out, as otherwise it would have been erected at the beginning of the lane. Mr Smith said in cross-examination that the purpose of shutting gate P was to keep animals in.
97. I conclude that gate P was not installed or used until 2001 for the purpose of keeping people out of the lane.
98. There is an issue on the papers as to the extent to which, before 2001, gate P was routinely left in an open position and as to the significance of it being open. The oral evidence was practically all one way. Mrs Binks said that before it was padlocked gate P was only closed if livestock was being moved. Mr Botes admitted in cross-examination that gate P was often open during the day. At night it would be shut. Mr Jason Storbeck said in cross-examination that gate P was left open during the day.
99. Mr Caroll, called by Mr Botes, said that if there was a gate there when he first lived at Broad Green House, it was always open. That is why he was not aware of it. Gate P is adjacent to his property and he was in a good position to know. I find as a fact that the gate P was routinely left open for most of time during the day prior to 2001. Since the gates further down the lane would only be opened as and when the need arose there was only an occasional need to keep gate P shut. It seems to me that gate P was never more than a long stop: it was never the wicket-keeper.
100. Since I find that gate P was left open so much of the time, I attach very little weight to it as a means of control. In the unusual circumstances of this case gate P does not even reach equivocal status.
Accessibility and control of the stile
101. I find as a fact that the stile affords easy and convenient access to Mr and Mrs Binks and their family and houseguests to the lane and that regular use is made of that access. Mr Wood also uses it as a means of access so that he can clip the hedge from the lane and trim the grass on the lane near point T.
102. Although the stile was awaiting renovation for several months recently I find as a fact that this made no difference at all to the gaining of access to the lane, and I accept Mr Binks’ evidence that he and others were able to clamber over the fence without difficulty. Mr Botes made a great deal in evidence of the fact that he provided the materials for the repair and that Mr Storbeck carried out part of the work. I reject the inference that the lane was not accessed from Quyddleswell Mount whilst the stile awaited repair.
103. I accept the evidence of Mr Watts, who is a guest of Mr and Mrs Binks 2 or 3 times a year, that he uses the stile in order to gain access to the lane, along which he runs, every time he visits. He is a keen runner, going out 5 or 6 times a week. He was an investment banker until he took early retirement. He turns left at the stile and runs to the dogleg and then down to point R where he enters field 5524. He had always believed the lane to be a right of way.
104. Mr Binks told me that he goes onto the lane every weekend he is there, even if not to run. When he runs he takes the same route as Mr Watts. He used to go onto the lane to use his mobile telephone because reception was bad in the house. He also enjoys the view from the dogleg at sunset. Mrs Binks follows her husband on walks. She too turns left at the stile and proceeds past the dogleg to point R where she crosses field 5524 into field 5616.
105. Mr Botes said that Mr Binks would have broken his ankle by now if he had run down the lane and he did not believe that Mr Binks and Mr Watts had done so. Mr Botes cannot see from Broad Green Farm South what is happening at point T in the lane. I reject what is no more than his assertion that Mr Binks and Mr Watts have not used the lane for running. The fact that Mr Smith and Mr Jason Storbeck have not seen Mr Binks running in the lane is not surprising as the time when this usually occurs, late afternoons at the weekends, is not when they are usually on Mr Botes’ land.
106. I find as a fact that Mr Botes has never given express or implied permission to Mr and Mrs Binks to use the lane. Mr Botes asserted in his witness statement that he had extended an invitation to Mr and Mrs Binks to use his land but he was very vague when I asked him for particulars of this. He could not give a time or place for such a conversation. He simply said that he would have treated them in exactly the same way as other neighbours. Mr Binks said that he could not recall any invitation with Mr Botes regarding the use of the lane. Mrs Binks told me that Mr Botes had never invited her to go onto his farm.
Maintenance activities on the lane
107. On the 1st sector the hedgerow and verges are maintained now by Mr Botes. Last year 2 tons of soil crashed down from the bank and he cleared it up. He keeps the bank bushed off and the weeds sprayed. This is done annually. He maintains the hardcore surface by laying road planings, an inexpensive form of reconstituted tarmac.
108. Whilst he owned Broad Green House Mr Fisher maintained the bank abutting the lane in the 1st sector. He tried to keep it tidy and he unblocked the ditch when necessary.
109. The surface of the 2nd sector is hardcore and is maintained by Mr Botes. The hedgerow and verges are maintained annually by Mr Botes, except near to point T where Mr Wood keeps the hedge and the grass verge trimmed.
110. As to the 3rd sector, I accept the evidence of Mrs Fisher and Mrs Binks that until relatively recently maintenance of the hedgerow and verges was carried out only very infrequently by Mr Botes at this end of the lane. Mr Botes says there is now more maintenance to carry out on the lane as reduced water levels has encouraged the development of bracken. There is no maintenance to the 4th sector.
Farming activities on the lane
111. There is no doubt that the lane affords convenient access from Lower Marsh Road and the upper part of Broad Green Farm South to parts of Broad Green Farm South further away. It is not, of course, the only means of access but it is undoubtedly useful on occasions.
112. There is access from the lane through gate T into field 2744 in Broad Green Farm South and thereafter into field 2155 in Broad Green Farm North. There is access from the lane through the gates at the dogleg into fields 1739 and 3533 in Broad Green Farm South, and through gates R1 and R2 into fields 3533 and 5524 in Broad Green Farm South.
113. Mr Michael Hickman said that the lane was used as access to the building in field 3533 in South Green Farm. The lane was used for access essentially and not for grazing.
114. Mr Botes told me that the primary use of the lane was for the movement of livestock but farm machinery was also moved along the lane from field to field. When sheep were transported they would be let out of their transporter in the lane and allowed to run through gates which had been opened for that purpose. He has grazed in the lane for a few weeks each year between the dogleg and point R but not since 1995, when he sold his herd. Mr Botes said to me that the activities he carried out on the lane were done because it was land he farmed.
115. The evidence about the use of the lane by others for agricultural purposes is conflicting. Mr Michael Hickman said that Mr Dyson used the lane once or twice to gain access to field 4744. The point of access was half way down field 4744 and not where gate A in now situated at the boundary of field 4744 and field 6139. Mr Botes asserts that Mr Dyson stopped using the lane in February 1992 and no adjacent farmer has used the lane for access at all since that time.
116. However, Mr Botes said in cross-examination that since then a boy from the Kemp family had driven up the lane and had got bogged down in the dogleg and it took a day to dig the vehicle out.
117. Mrs Binks says in her witness statement that before 2001 she had seen large tractors and farm vehicles in the lane, which she did not recognise as belonging to Mr Botes. Activity was particularly noticeable during the harvest, which suggests that the vehicles did not belong to Mr Botes, a livestock farmer. Mr Botes’ reaction to this was that he could not think what she was talking about and that she was nieve.
118. Mrs Fisher told me that she had seen members of the Kemp family driving combine harvesters along the lane since Mr Dyson’s lease has expired. This may have been in 1999. Mrs Fisher is related by marriage to the Kemp family so she was able to recognise the drivers. Mr Fisher said that the Kemp family used the lane once or twice to his knowledge.
119. Mr Wood said that he had seen Mr Morris and Mr Kemp use the lane for access to their fields since he had started working for Mr and Mrs Binks in 1994. He saw Mr Morris use a combine harvester. He too thought that the lane was a right of way.
120. I find on the basis of all this evidence that some limited use was made of the lane by the Kemp family for access to their fields after Mr Dyson’s lease expired in April 1992 and that this use would have carried on until, at the latest, the padlocking of gate P in 2001.
Recreational activities on the lane
121. I have already set out the recreational activities of Mrs Binks and her witnesses.
122. I accept the evidence of Mrs Binks that she has regularly seen walkers, ramblers, joggers and horse riders using the lane, some of whom were known to her and some of whom were not. She saw locals walk their dogs. She saw ramblers. I accept that some of these users would have been known to Mr Botes and their use approved by him, but I am not able to accept the suggestion that no one unapproved by Mr Botes was using the lane. There is simply no evidence to support this.
123. Mr Wood knows this area very well. He has often seen walkers on the lane, some of whom are not known to him. Mr Wood has even come across ramblers going across the stile in both directions. Mr Watts has frequently seen ramblers, both individually and in groups using the lane. There was so much traffic he thought the lane was a right of way.
124. Mr Fisher said that local people walked the lane and exercised their dogs along it; occasionally he saw horse riders. Mr Caroll said in cross-examination that when he first moved to Broad Green House in 2000 there was full access to the lane and he walked up it once or twice. He has walked up the lane up to a dozen times since gate P was padlocked; this was without permission. He has climbed over gate P and walked to the barn Mr Botes is hoping to develop.
125. Mr Smith says that although he has worked on the farm for 7 years, he has never seen members of the public walking along the lane, riding horses or walking dogs. He has never seen Mr Binks on the lane. Mr Jason Storbeck and Mr Taylor give evidence to the same effect.
126. What is striking about the evidence of Mr Smith, Mr Jason Storbeck and Mr Taylor is that each was asked in cross-examination whether he had ever seen Ms Pearman on the lane (her evidence is dealt with below). They had not, even though it is Mr Botes’ own case that she was there. I am satisfied that there was no system, formal or informal, for keeping an eye out for or challenging strangers on the lane. Mr Botes’ land covers around 80 acres. The men working on the land had jobs to attend to. The evidence of these 3 does not, in my judgment, undermine that called by Mrs Binks as to the user of the lane.
Control of the lane
127. Mr Harpum describes the lane as “the artery” of the farm. Mr Botes makes no mention of controlling access to users in his statutory declaration dated 25 February 2004 nor in his statement of case, apart from the reference in paragraph 20 to his having enclosed both ends, which I have already explained is misleading. However, I shall not hold this against him. Mr Harpum has explained to me that the relevant Land Registry Practice Guide which gives an indication as to the sorts of matters that should be covered by a statutory declaration does not mention the word “control”.
128. In paragraph 10 of his witness statement Mr Botes sets out a number of ways in which he says he has controlled the lane.
Enclosing the lane with gates at points P and Q either or both of which Mr Botes has locked as he has seen fit
129. I have already explained that Mr Botes did not erect either gate. Gate Q serves no useful purpose in itself at all and Mr Botes has carried out no relevant activity on the 4th sector. Gate P was invariably open during the day before 2001 and was hardly ever locked before that date. Gate P was not erected to keep people out. There is no gate at the entrance to the lane, unlike the parallel entrance gates to Quyddleswell Mount and Broad Green Farm North.
Locking the field gate at R as occasion demanded
130. There are 2 gates at R and one was padlocked for about a year in 1984-1985. More recently they could not be opened for 18 months because they had been accidentally jammed by Mr Storbeck.
By Mr Botes’ daily presence in the fields with his helpers and thus having the lane constantly monitored
131. Mr Botes has not been present daily in the fields since 1995. Mr Botes said in cross-examination that he did not need to challenge or monitor those using the lane as he thought he was the owner of lane. He also accepted that he did not go into the fields in order to monitor the lane. He had never had a problem, as people know what they can do and what they cannot do. Mr Botes said that he could not attend to sheep’s feet and see who was going up and down the lane.
132. Mr Jason Storbeck said in cross-examination that he had not been monitoring the gates, he did not think that was something he was supposed to be doing. As already indicated, I find as a fact that there was no formal or informal system of monitoring the lane.
By doing all necessary works for the maintenance, drainage and renewal of the track to the exclusion of all others
133. I find that Mr Fisher assisted with the maintenance of sector 1 whilst he owned Broad Green house. I find that, over most of the relevant 12 years, Mr Botes carried out approximately annual maintenance up to the dogleg and peremptory maintenance of sector 3. No maintenance has been carried out to sector 4.
By excluding any person with dogs unless they were sheep dogs
134. I dare say that if Mr Botes had happened to be present when a dog was brought onto the lane he would have said something about it. But there was no system of monitoring and no signs of any nature whether referring to dogs or at all. No one gave evidence that he or she had been warned off by Mr Botes. Mrs Binks has seen locals walk their dogs.
By harvesting the fruit of the lane, reserved for Mr Botes’ benefit entirely
135. This cannot be correct, as Mr Murray had erected the stile to pick wild fruit. The fruit harvested turned out to be from a solitary crab apple tree planted about a hundred years ago.
By keeping down rabbits by shooting
136. I accept that the lane harbours rabbits, but the shooting was part of an overall plan covering the whole of Broad Green Farm.
By publicly challenging walkers and idlers and others not employed nearby
137. Mr Botes asserted vividly, “This message has found the right ears locally and they come no more.” I have found no evidence to support this. No local has said that he or she has been warned off by Mr Botes. On the contrary, Mr Botes has been generous in asking certain people, such as Ms Pearman, to enjoy the lane. Whilst that shows subjectively that he believed himself to be the owner, it is not evidence of challenging those who had not received permission.
138. Ms Pearman was indeed given express permission to use the lane by Mr Botes. She lives in Broad Green Farm Cottage, Hooe which is on the other side of Lower Marsh Road to the entrance of the roadway. In 1985 she gave birth to a baby. In 1986 her thoroughbred gave birth to 3 foals. Over the ensuing years Mr Botes encouraged her to exercise the foals on the lane. She saw a couple of local people using the lane and said that her parents would take a stroll along the lane, without asking Mr Botes, when they stayed with her. Others were given express permission.
139. Mr Botes said in his witness statement that he never discouraged his neighbours from his land. He said in cross-examination that as Mr Fisher had paid him £500,000 for Broad Green House he could not be unfriendly. He also said that if neighbours used the lane for business that would be one thing but if it were just recreational use with their grandchildren then that would be a different matter. In his solicitors’ letter dated 20 September 2004 it was said that he had never objected, had indeed encouraged the use of his land for recreational purposes.
140. Significantly, although a stranger, Mr Watts was never challenged when passed by those driving agricultural machinery. He said the machinery would slow down. This shows the lack of any system of control.
141. Mr Botes gave evidence that he had on a few occasions stopped ramblers on the lane. He once found 2 Germans asleep in a car and told them to leave. He once gave some ramblers permission. He gave Mr Dyson permission to hold a scout camp on his land. I accept that if Mr Botes happened to come across persons on the lane that he did not like the look of he would ask them to go, but on the evidence this can have only have happened very sporadically and occasionally.
142. I find as a fact that walkers and, less often, riders have used gate P for access to the lane during the relevant period and that there has been no realistic system of control in place. I do not conclude from the evidence adduced by Mr Botes that only those known or approved by him have used the lane from gate P.
By grazing his stock in the lane
143. This ceased in 1995 and had only occurred for short periods in any given year.
By installing a cattle grid
144. This only occurred in 2001 so has no significance in the context of the need to show 12 years’ possession.
146. There has never been a gate at the western end of the 1st sector. No one has ever exercised any control over the 1st sector. It is conceded that a small part of the 1st sector was conveyed or purportedly conveyed to Mr and Mrs Fisher. Mr Botes believes he had conveyed the remainder. I accept Mr Holbech’s argument that in these circumstances Mr Botes no longer has any intention to possess the 1st sector. The claim to have acquired title to the lane by adverse possession fails in respect of the 1st sector.
The 2nd sector
147. In his oral closing submissions Mr Harpum argued that the erection of gate P by Mr and Mrs Charles Hickman in 1972 amounted to an act of enclosure and that the lane had been enclosed ever since 1972. Accordingly, at some time during 1984 Mr Michael Hickman would have acquired title to the lane by adverse possession which title was conveyed to Mr Botes on 30 November 1984.
148. In fact, Mr Michael Hickman could not be sure whether gate P was installed in 1972 or 1973. Even if it were erected in 1972, there is no evidence when in 1972 the gate was erected so that the necessary 12 years may not have elapsed prior to 30 November 1984. Apart from these difficulties in the way of Mr Harpum on this submission, I am unable to accept that the erection of gate P in 1972 was a sufficient act of enclosure of the lane.
149. I accept that Mrs Hickman’s 1985 statutory declaration (which was regarded by Land Registry at the time as being fatal to a claim for adverse possession because it stated that the lane was used by the proprietors of adjoining land for the purposes of access to their land) carries little weight as it was incompetently prepared and does not deal with the question of whether such user was with permission or not.
150. I also accept that Mr Dyson was given permission to use the lane either because he asked for it or because it was volunteered to him. But there was no lock on gate P, no sign was erected warning people to keep out and there is no evidence of any system of controlling those who might go through gate P. Gate P was not erected to keep people out. There is no evidence that the gates along the sides of the lane were ever locked. Gate Q at the eastern end of the lane only covers half its width (field 7422 but not field 7634) and the shaw was not planted until after 1972.
151. I am therefore unable to conclude that for 12 years prior to 30 November 1984, the Hickman family had exercised factual possession of sector 2 of the lane or had manifested the requisite intention to posses it by unequivocal acts to the world at large.
152. As to the time during which Mr Botes has owned Broad Green Farm South, he has not demonstrated 12 years factual possession of the 2nd sector or manifested the requisite intention to posses it by unequivocal acts to the world at large. For most of the time gate P has been unlocked, left wide open during the day, there has been no sign warning people to keep out and no system of controlling those who might go through gate P. There has been regular recreational use and even some agricultural use by others over the last 12 years without the permission of Mr Botes.
153. Mr and Mrs Binks and their guests have been able to gain access to sector 2 as and when they pleased by crossing the stile. They have never been given permission to do this by Mr Botes. I would have expected someone who was using the lane as an owner would do to have made it clear to Mr and Mrs Binks that whilst they were welcome to walk on the lane it was nevertheless private property. He did not do so.
154. Mr Botes is a victim of a paradox. He believed himself to be the owner of the lane and has a generous nature as a substantial local landowner. He has not taken steps to manifest his intention to possess the lane for this reason. His claim to have done so in his witness statement is largely retrospective assertion rather than evidence, and I am unable to accept it.
155. Exactly the same considerations apply to the 3rd sector as apply to the 2nd and I find that in respect of the 3rd sector Mr Botes has not demonstrated 12 years factual possession or manifested the requisite intention to posses it by unequivocal acts to the world at large.
4th sector
156. The 4th sector has been filled with trees. The trees were planted less than 12 years before 30 November 1984. Mr Botes needs to show that he personally carried out some activity on the 4th sector demonstrating his factual possession and manifesting the requisite intention to posses it by unequivocal acts to the world at large. He would only have needed to do this for a few years as he can add the earlier years of possession by Mr and Mrs Charles Hickman and Mr Michael Hickman.
157. But Mr Botes has not done any such thing. Mr Botes has carried out no activities on the lane at the 4th sector apart from renewing the stile where the public footpath meets it at the junction with field 5524 and erecting, for a while, an electric fence in field 5524 to prevent livestock straying through it into Akehurst Farm. He has not himself cultivated the 4th sector in any way.
158. I do not see how, just because he was conveyed a purported title to the 4th sector, he is entitled to rely upon the presence of the trees there for more than 12 years as showing he has been in adverse possession. Had he personally cultivated the trees for a short time after 1984 then it would be different. Equally If the Hickman family had paved the 4th sector and Mr Botes had never stepped foot on the 4th sector, I cannot see how Mr Botes could succeed.
159. In my judgment if A buys land from B who has squatted on the land by cultivating it for 10 years, and A never steps on the land but what was planted by B just carries on growing of its own accord, A cannot, at the end of a further 2 years, claim to have acquired title by adverse possession.
Conclusion
160. Although I have divided the lane up into sectors for convenience, as suggested by Mr Harpum in his opening skeleton argument, I have stood back and considered the lane as a whole. Whilst I have also divided the acts and activities relied upon by Mr Botes into categories for the sake of clarity I have endeavoured to consider the evidence as a whole. My conclusion is that Mr Botes has not demonstrated that as at 28 February 2004 he had been in possession of the lane for 12 years adverse to the true owner.
161. I will direct the Chief Land Registrar to cancel the original application. Submissions on costs should be sent in writing within 14 days.
162. I am grateful to both counsel for their oral and written submissions and assistance during the hearing.
