REF/2007/1185

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

GERHARD ALAN REES

APPLICANT

and

(1) DEVON COUNTY COUNCIL

(2) BRAYFORD PARISH COUNCIL

RESPONDENTS

 

Property Address: Land at Brayford Barnstaple

 

Title Numbers: DN540922

 

Before: Mr Simon Brilliant sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: Taunton Magistrates’ Court, St John’s Road, Taunton, Somerset TA1 4AX

 

On: 8, 9 and 10 July 2009

 

Site inspection: 7 July 2009

 

 

Applicant’s Representation: Mr Timothy Clarke of counsel.

First Respondent’s Representation: Did not appear.

 

Second Respondent’s Representation: Mr Punt, solicitor.

 

DECISION

 

Adverse possession – strip of land between the applicant’s registered title and the metalled highway – issues of factual possession and intention to possess – issue as to whether the disputed land was also part of the public highway.

 

Cases cited: Powell v McFarlane (1977) 38 P&CR 452, Williams v Usherwood (1983) 45 P&CR 235, Yankwood Ltd v Havering London Borough Council [1998] EGCS 75, London Borough of Bromley v Morritt (1999) 78 P&CR D37, Hale v Norfolk County Council [2001] Ch 717, JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Wretham v Ross [2005] EWHC 1259 (Ch), R (on the application of Smith) v The Land Registry (Peterborough Office) [2009] EWHC 328 (Admin).

 

Introduction

 

1. Brayford is an attractive village in North Devon, situated on the south west of Exmoor and a few miles to the east of Barnstaple. The River Bray runs through the middle of the village, which was originally a settlement where the river was forded. The ford [1] became a part of a well-established pack horse route and drover’s trail from Porlock to Barnstaple. By the mid 17th century Brayford was on an important, arguably the most important, highway across Exmoor. A bridge was built to compliment the ford. In 1925 the bridge was widened, making the ford less used and eventually redundant.

2. The metalled main road through Brayford (“the main road”) runs from west to east. This reference concerns an application by Mr Rees, the applicant, to be registered as the proprietor of a small area of unregistered land (“the disputed land”) which lies land immediately to the south of the main road. The disputed land has a maximum width of 9 metres and is 5.6 metres deep.

 

3. The disputed land separates the main road from a plot of land (“the yellow land”) on which there stands a detached single storey chalet (“the garage”). Mr Rees is the registered leasehold proprietor of the yellow land.

 

4. Mr Rees claims to be registered as the proprietor of the disputed land with a good leasehold title. This is on the basis of encroachment by successive leasehold owners of the yellow land on the adjoining disputed land for a period in excess of 12 years. His case in outline is that since at least 1952 every leasehold owner of the yellow land has used the disputed land as the forecourt to the garage, and has been in possession of the disputed land whilst using it as an integral part of the yellow land.

 

5. Brayford Parish Council (“the parish council”), the second respondent, is the owner of land immediately to the east of the yellow land (“the green land”). It does not claim to have a paper title to the disputed land. Indeed, no one claims title to the disputed land. The parish council objects to Mr Rees’ application on the grounds that:

 

(1) he has not demonstrated 12 years’ adverse possession (“the possession issue);

 

(2) in any event, the disputed land is part of the public highway and therefore title to it cannot, as a matter of law, be acquired by adverse possession (“the highway issue”).

 

6. The parish council is not the highway authority. Devon County Council (“the county council”), the first respondent, is the highway authority. Originally it also contended that the disputed land was part of the public highway, but no longer does so. It takes no part in this hearing having withdrawn its objection.

 

7. The trial bundles consisted of over 700 pages, and references in square brackets below are to pages in the trial bundles.

 

Outline conveyancing history of the yellow land

 

8. The yellow land was let, together with other land, for a term of 600 years by a lease dated 16 April 1803 made between Mr Gould and Mr Huxtable (“the 1803 lease”). The 1803 lease itself has been lost. Subsequently, the term was on a number of occasions severed, with different parts of the land demised in 1803 being assigned to different purchasers. It is not now known who owns the freehold of the yellow land.

 

9. In 1928 Mr Frank Davey became the sub-tenant of the yellow land. He carried on a carpenter’s business from a wooden workshop (“the workshop”) situated on the yellow land. In 1952 the workshop was washed away in the Lynmouth flood disaster. At that time Mr Frank Davey’s landlord was Mrs Thorne. She was the tenant under the severed 1803 lease of both the yellow land and a nearby property, Purbrook Cottage.

 

10. Mr Frank Davey decided to buy Mrs Thorne’s interest in the yellow land from her. By an assignment dated 31 October 1952 (“the 1952 assignment”) Mrs Thorne assigned her interest in the yellow land to Mr Frank Davey [2]. This was the first time the yellow land was treated as an independent plot.

 

11. Mr Frank Davey built the garage in 1953. There is an issue between the parties as to whether the garage was built further away from the main road than the workshop had been situated. In the end it was accepted that the garage is a small distance further away from the main road than the workshop had been, but nothing turns on this. The garage faces north towards the main road. A set of double doors is situated at the eastern end of its front.

 

12. Since 1953 the conveyancing history of the yellow land has been as follows:

 

(1) Mr Frank Davey died in 1973 and yellow land became vested in his widow.

 

(2) On 1 June 1982 Mrs Davey assigned the yellow land to Mrs Balfe (“the 1982 assignment”) [3].

 

(3) On 15 June 1983 Mrs Balfe assigned the yellow land to Mr and Mrs Abbott (“the 1983 assignment”) [4].

 

(4) On 28 April 1989 Mr and Mrs Abbott assigned the yellow land to Mr and Mrs Edgar (“the 1989 assignment”) [5].

 

(5) On 24 August 1990 the yellow land was first registered with a good leasehold title under title number DN286457.

 

(6) On 27 November 1997 Mr and Mrs Edgar transferred the yellow land to Mr Rees (“the 1997 transfer”), who was registered as the leasehold proprietor on 3 December 1997 [6].

 

13. Mr Rees bought the garage at the same time as he bought his residence, Rose Cottage, Brayford, which is some distance away from the garage. Rose Cottage has no garage of its own, and in recent times both Rose Cottage and the garage have been sold together. Rose Cottage is registered with an absolute freehold title under title number DN23688.

 

 

The geography of the area

 

14. As well as visiting the disputed land and the surrounding area, I had the benefit of a number of photographs. Some of the photographs were historic ones [7] and some were present day ones [8].

 

15. A plan is annexed hereto. It is for illustrative purposes only.

 

(1) The disputed land

 

The disputed land is shown coloured orange and edged in black [9].

 

(1) The yellow land

 

The yellow land, upon which the garage is situated, is shown coloured yellow on the plan.

 

(2) The green land

 

The green land lies immediately to the east of the yellow land, and is shown coloured green on the plan. The green land used to be a garden. At one time it was owned with Purbrook Cottage, and before that it was owned with Broomhill Cottage. The parish council purchased the green land on 28 March 2003, and was registered as the first freehold proprietor on 7 April 2003 under title number DN478269 [10].

 

(3) The pink land

 

The land to the north and east of the green land, bounded by the main road to the north and lying on both sides of the river, is shown coloured pink on the plan (“the pink land”). The pink land is unregistered land. The parish council has dealt with the pink land in recent years as if the owner, but has not been able to demonstrate a paper title [11]. No one else is able to show title to the pink land.

 

(4) Broomhill Cottage

 

Immediately to the west of the yellow land and the disputed land is situated Broomhill Cottage, registered under title number DN444021. It is shown coloured mauve on the plan. Broomhill Cottage consists of a garden in the east, and two buildings, one behind the other, in the west.

 

(5) Purbrook Cottage

 

Immediately to the west of Broomhill Cottage is situated Purbrook Cottage and adjoining land, registered under title numbers DN493720 and DN360483. It is shown coloured brown on the plan.

 

(6) The meadow

 

To the south of the land already mentioned there is a large meadow running down to the River Bray (“the meadow”). It is registered under titles DN547805 and DN5499907. It is shown edged brown on the plan.

 

16. The disputed land can be broken down into three parts:

 

(1) A narrow asphalt drive leading from the main road to the double doors (“the drive”).

(2) A lawn laid to the west of the drive (“the lawn”). The lawn is approximately 6 metres wide and 5 metres deep.

 

(3) A narrow strip to the east of the drive, which is also laid to lawn (“the eastern strip”). The eastern strip is approximately 1 metre wide at the south and 5 metres deep.

 

17. The boundaries of the disputed land are as follows:

 

(1) The northern boundary abuts the main road, which is a tarmac highway without a pavement. The disputed land is entirely open to the main road.

 

(2) The eastern boundary abuts the pink land and is entirely open to it. Mr Rees says that a path, now disused, used to run immediately to the west of this boundary, giving access from the main road across the pink land to the green land.

 

(3) The southern boundary abuts the yellow land, including the front face of the garage. There is no boundary feature.

 

(4) The western boundary abuts the garden of Broomhill Cottage. A fence (“the western fence”) runs along this boundary [12].

 

18. The boundaries of the yellow land are as follows:

 

(1) The northern boundary abuts the disputed land and there is no boundary feature, as explained above.

 

(2) The eastern boundary abuts the green land. A fence and line of shrubs marks this boundary.

 

(3) The southern boundary abuts the meadow. There was once a hedge along this boundary, which was part of a longer hedge separating the meadow from the land to the north. The hedge on the yellow land was destroyed in 1952. This boundary is now fenced.

 

(4) The western boundary abuts the garden of Broomhill Cottage. The western fence runs along this boundary.

 

19. The green land is separated from the meadow by a bank and hedge. Until 2003 the green land and the pink land were physically quite separate and distinct parcels of land. The northern and eastern boundaries of the green land were demarcated by a curving hedge (“the green land hedge”) [13]. The green land hedge was removed in 2003 when the green land and the pink land were together developed by the parish council, as a Millennium project, to provide a river side public amenity space.

 

20. There used to be a gate at the western end of the green land hedge affording access to the green land from the pink land. In the south east corner of the green land there is still situated a water closet, dating back to the times when the green land was in common ownership with one of the cottages.

 

21. There is a storm water drain (“the drain”) which runs under the main road, under the northern edge of the disputed land and under the pink land into the River Bray [14].

 

22. Prior to the Millennium project:

 

(1) The green land was used as a garden and its state varied over the years depending on the extent to which the owner from time to time kept it.

 

(2) The pink land was unoccupied scrub land adjoining the main road and the River Bray, which was occasionally cleared.

 

(3) The drain crossed the pink land in an open culvert (“the ditch”) [15].

 

The ditch has now been filled in and the whole of the green land and the pink land is laid to lawn.

 

23. The main road approaches the bridge north of the pink land. A narrow pavement runs between the main road and the pink land. Posts and railings (“the railings”) run between the pavement and the pink land leading up to the bridge.

 

The original application

 

24. By an application dated 20 October 2006 (“the original application”) Mr Rees applied to be registered as the first proprietor of the disputed land on the basis of adverse possession [16]. The original application was supported by a statutory declaration sworn by Mr Rees on 19 October 2006 [17]. Because the disputed land is unregistered land the new regime governing adverse possession, established by the Land Registration Act 2002, does not apply.

 

25. Mr Rees is the tenant of the yellow land. Where a tenant takes possession of land belonging to a third party, by virtue of his possession of the demised premises, the land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the lease [18]. Mr Rees understands this and asks in his statutory declaration for an entry on the register to acknowledge this.

 

26. This is not a case of a squatter displacing a tenant and therefore seeking a possessory leasehold title. Land Registry and the parties are agreed that the appropriate title to be sought by Mr Rees is a good leasehold one and the reference has been conducted on that basis.

 

27. On 8 February 2007 the parish council objected to the original application for the reasons given above. The dispute was referred to the adjudicator on 12 September 2007 [19].

 

The law of limitation

 

28. 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.

 

29. 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.

 

30. 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.

 

31. The two 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.

 

32. 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”.

 

33. 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

 

34. Lord Browne-Wilkinson expressly agreed in Pye 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.”

 

35. In Wretham v Ross [2005] EWHC 1259 (Ch) David Richards J said that the first issue for a court dealing with claims to adverse possession is whether the occupier has been in factual possession for the requisite period. Whether there was factual possession should be objectively assessed by reference to the squatter’s acts relied on to constitute possession, and the absence of any acts of possession on the part of the paper owner.

 

The intention to possess

 

36. 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.

 

37. In Pye Lord Browne-Wilkinson said at paragraph 43 that the intention to possess requires an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

 

38. 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.”

 

39. In Wretham v Ross [2005] EWHC 1259 (Ch) David Richards J said that the second element of legal possession, the requisite intention, is to be deduced from the squatter’s acts, unless either those acts are explicable in some other way or the acts are equivocal in which case some other compelling evidence is required. It was wrong to focus on an intention specifically directed at the exclusion of the paper owner.

 

Adverse possession and the highway

 

40. It is common ground that, as a matter of law, a title cannot be acquired by adverse possession to land over which a public right of way exists: London Borough of Bromley v Morritt (1999) 78 P&CR D37 and R (on the application of Smith) v The Land Registry (Peterborough Office) [2009] EWHC 328 (Admin). This is because any act of possession relied upon would be an obstruction of the highway and an offence under section 137(1) of the Highways Act 1980.

 

The witnesses

 

41. Mr Rees submitted a very detailed statement of case, with annexures containing a large amount of historical research he had himself conducted relating to the highway issue and a number of annotated diagrams and plans [20]. He gave oral evidence. He also put in statutory declarations from his predecessors in title as owners of the garage, Mrs Davey, Mr Abbott and Mr Edgar [21], under the Civil Evidence Act 1995.

 

42. The parish council also submitted a substantial statement of case containing detailed arguments relating to the highway issue [22]. The parish council called as witnesses:

 

(1) Mr Collier, a member of the parish council, who is a member of the Charles Historical Society with a special interest in old roads in Devon and their development. Mr Collier, like Mr Rees, had conducted a great deal of historical research and the parish council’s statement of case was based on that research.

 

(2) Mr Bawden, a retired local resident who had also worked for some of his career for the county council’s highways department.

 

(3) Mrs Barrow, a local resident.

 

43. The parish council put in the witness statement of Mr Pincombe, a retired highways superintendent employed by the county council, under the Civil Evidence Act 1995. Mr Pincombe was too ill to attend the hearing.

 

44. Mr Frank Davey’s son, Mr Roy Davey, is alive but was too ill to attend the hearing. He did not make a witness statement. Both Mr Rees and Mr Collier had spoken to Mr Roy Davies about the dispute, and each sought to rely on what had been said by Mr Roy Davies as hearsay evidence.

 

45. Mr David Powell FRICS prepared a report dated 28 April 2009 [23], as a jointly instructed expert, regarding the extent of the public highway from a mapping aspect.

 

46. No other independent expert evidence was called as to the highway issue, but Mr Rees and Mr Collier were each cross-examined on the research they had undertaken and much of the historical evidence was agreed or unchallenged.

 

The possession issue

 

47. The parish council did not challenge the evidence of Mr Abbott or Mr Edgar. Mr Abbott said in his statutory declaration that he believed the 1983 assignment included the disputed land as well as the yellow land. This is because the plan used in the 1983 assignment [24] shows the land being assigned to include the disputed land as well as the yellow land. In 1983 the drive and the lawn were already established features of the disputed land. Between 1983 and 1989 Mr Abbott parked his caravan on the lawn and his car on the drive. Mr Abbott mowed the lawn and kept the whole of the disputed land tidy. No one else made any use of the disputed land.

 

48. Mr Edgar said in his statutory declaration that when he purchased the yellow land in 1989, the drive and the lawn were established features of the disputed land. Between 1989 and 1997 Mr Edgar parked a caravan, trailer and cars on the disputed land. He also maintained the disputed land. He removed weeds, mowed the lawn, and resurfaced the drive. No one else made any use of the disputed land.

 

49. Mr Rees said in his evidence that since he purchased the yellow land in 1997 he has kept a series of vehicles parked on the drive. He has mowed the lawn and also the eastern strip. Although the grass on the eastern strip now merges into the lawn laid on the pink land, there was before the Millennium project a clear demarcation between the eastern land, which was mowed, and the unkempt pink land. Mr Edgar had clearly kept the eastern strip under control to protect the drive, and Mr Rees followed suit. No one else has made any use of the disputed land.

 

50. I am entirely satisfied that, for at least 12 years prior to the original application, Mr Rees and his predecessors in title have been in possession of the disputed land and no one else has. This is the sort of case where regular parking on a confined space warrants a finding of possession [25]. Indeed, I did not understand Mr Punt to argue seriously to the contrary. It is therefore irrelevant that many years earlier the disputed land may have been regarded as communal property in the village, on which any one felt free to park when weddings or funerals took place in the nearby church. Those days had passed before the relevant period of possession began.

 

The highway issue

 

51. The parish council argues that even if, as I have found, Mr Rees can show 12 years’ possession of the disputed land, he cannot succeed because the disputed land is part of the public highway. Mr Rees denies that the disputed land is part of the public highway.

 

52. Before the bridge was widened in 1925 it was 3.66 metres [26] wide, and the ford across the river was situated to the south of the bridge. The bridge was widened to 4.88metres [27]. When the bridge was widened, the main road was widened as it approached the bridge [28].

 

53. The best evidence of the topographical features before the bridge was widened is to be found in the 1905 ordnance survey map [29]. This shows a distinct route leading to the ford, the southern edge of which is denoted by a pecked line (“the 1905 route”). The final approach of the 1905 route to the ford branches off the main road, shortly before the bridge, and is denoted by parallel pecked lines.

 

54. Mr Powell says in paragraph 6.23 of his report:

 

The fact that the southern edge of that route is marked (on the OS map) as a dashed line means ... that there was a discernible (to the OS surveyor) line between the route itself and, probably, a grass verge.

 

55. The 1905 route begins west of the disputed land. Mr Powell has plotted the southern edge of the 1905 route on a 1:200 plan [30]. It is marked by a blue line consisting of long and short dashes and is labelled by the letter “B”. I shall refer to this line on Mr Powell’s plan as “line B”.

 

56. It is accepted by Mr Rees that the land north of line B is highway. Mr Powell’s plan shows that a small part of the disputed land does, in fact, lie north of line B. There is a culvert for the drain situated in the north east corner of the lawn [31]. That culvert falls within the highway as does all the disputed land to the east of the culvert right up to almost where the railings begin. In closing, Mr Clarke properly accepted that he could not succeed in respect of the disputed land lying north of line B.

 

57. Mr Powell’s plan shows that a significant part of the pink land also lies north of line B.

 

58. Mr Powell’s plan shows by a solid blue line the northern boundary features of the yellow land and the green land on the 1905 ordnance survey map. These features include the face of the workshop and the green land hedge. Mr Powell concludes in paragraph 6.24 of his report that the status of the strip of land between that solid blue land and line B (“the strip”) is a matter of law. The strip, which was probably open grassland with a higher surface than the main road, includes all of the disputed land south of line B and all of the pink land south of line B.

 

59. The parish council’s case is that the whole of the strip is highway. It was historically used as part of the approach to the ford, and once a highway always a highway.

 

60. Mr Rees’ case, as finally formulated, was that only that part of the strip north of the drain was highway. The strip south of the drain was not to be regarded as highway verge, but as land properly belonging to the yellow land and the green land. As the drain crosses the disputed land north of line B, Mr Rees maintains that none of the disputed land south of line B is highway. The drain crosses the pink land in an arc south of line B.

 

Highway law

 

61. At common law a road or other way becomes a highway by reason of the dedication of the right of passage to the public by the owner of the soil and of an acceptance, that is user, of the right by the public. “Dedication” means that the owner of the soil has either said in so many words, or so conducted himself as to lead the public to infer that he meant to say, that he was willing that the public should have this right of passage.

 

62. The fact that a way has been used by the public is evidence from which a dedication may be inferred if the way has been used for so long and in such circumstances that the proper inference is that the owner of the soil had said, or so conducted himself as to imply, that he had granted the right of passage to the public.

 

63. At common law, the question of dedication is one of fact to be determined on all the evidence. User by the public is no more than evidence, and is not conclusive evidence. Thus, if nothing is known about a road except that it is used by the public, that user may raise a presumption of dedication in the sense that the evidence points all one way. However, any presumption raised by that user may be rebutted.

 

64. Section 32 of the Highways Act 1980 provided as follows:

 

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

 

65. The physical extent of dedication is discussed in Highway Law by Stephen Sauvain QC 3rd edition [32]:

 

Unless an express dedication has taken place which, in terms, defines the width of the way in question, it may be difficult to establish precisely what is its full physical extent. Generally, this will be a question of fact to be proved by evidence of the extent of public user. Where the way is defined on the ground by a well-worn track, and where no other boundaries are apparent, it will be presumed that the track defines the extent of the way. Where a metalled road has been laid out, this may be taken to indicate the width of the public right, despite the existence of fences beyond the limits of the metalled area. More commonly it has been accepted that a road may often consist of both a metalled portion and a part that is left unmetalled, for example, a verge which is nonetheless part of the highway.

 

66. The significance of fences or hedges is considered [33]:

 

Where a highway is bounded by fences or hedges the question arises as to why those fences were constructed or the hedges grown. Where the evidence suggests that their purpose was to separate the adjoining land from the highway a presumption will arise that all the land between, or up to, the fence or hedge is part of the highway. This is often described as the “hedge to hedge” presumption. Some authorities had suggested that the presumption went further and established that where such hedges or fences existed then, in the absence of proof to the contrary, it should be presumed that all the land in between the hedges was highway.

 

67. Reference is then made to the decision of the Court of Appeal in Hale v Norfolk County Council [2001] Ch 717 which rejected this formulation of the principle. However, the following part of the judgment of Hale LJ is important:

 

... the presumption of dedication of all the land running between hedges or fences can only arise if there is reason to suppose that the hedge or fence was erected by reference to the highway: that is, to separate the land over which there was to be no public right of way from the land over which there was to be such a right. Where matters are lost in the mists of time, it must often be possible to draw such an inference from the layout on the ground. In a conventional road running between hedges or fences, even if the verges are of varying widths and shapes, this may well be the obvious conclusion. It is not surprising, therefore, that the cases regarded this as the prima facie position. But that is not the same as elevating this preliminary factual question into a presumption of law.

 

68. Factors tending to show that the fences or hedges were constructed or grown for reasons unconnected with the highway are discussed in Highway Law [34]:

 

Acts of the landowner inconsistent with the dedication of the roadside strips must date from sufficiently early a time to have prevented the extension of the way up to the physical limits created by the fence or hedge. Proof that roadside strips were entered in the rolls of the manor as being part of the waste of that manor has been regarded as a relevant factor in rebutting the presumption. Other relevant factors may include the nature of the district in which the highway is situated (for example the existence commonly of private strips alongside highways within the area), the nature of the surrounding ground, the regularity of the fences and the width and regularity of the margins. The fact that the roadside strips have at all times been impassable may be sufficient evidence to demonstrate that the land between a hedge or fence and the highway was never intended to be part of that highway but not the fact that the strips have simply fallen into disuse and have become overgrown, nor that they may from time to time have been used for the ancillary purpose of storing roadside chippings. The acts of a highway authority in making up the roadside waste will be of significance, both as a recognition of the extent of the highway and because of the acquiescence of the landowner in the highway authority’s acts.

 

69. Ditches are also considered [35]:

 

Ditches, on the other hand, give rise to an entirely different presumption. A ditch is not part of an area over which the public can pass and repass. Rather it is an obstacle to passage. The initial presumption is, therefore, that a ditch is not part of the highway but rather that it belongs to the adjoining landowner whose land it no doubt drains. This presumption may be rebutted by evidence that the ditch was constructed to drain the highway or was incorporated within the original dedication.

 

The historical events and their analysis

 

70. It is common ground that by the mid 18th century the ford and the bridge were in use on a well established highway.

 

The 1767 plan

 

71. The earliest document which has been produced which is relevant to the highway issue is a manuscript map of Web-Croft Meadow, surveyed in 1766 and mapped in 1767 (“the 1767 plan”) [36]. The land formed part of an estate in the freehold ownership of Mr Incledon. The 1767 plan was obtained by Mr Rees shortly before the hearing and it was not considered by Mr Powell in his report.

 

72. Web-Croft Meadow was then divided into three areas:

 

(1) Area a.i. which was pasture, measuring 2 acres, 1 rood and 22 perches.

 

(2) Area a.ii. which was garden on the north side, measuring 13 perches.

 

(3) Area a.iii. which was garden on the east side, measuring 32 perches.

 

73. Web-Croft Meadow lies to the north west of the River Bray and to the south of the main road leading to the bridge. The northern boundary of Web-Croft Meadow, marked by a red line, is delineated by a carefully drawn hedge. To the north of the hedge is land which includes the main road leading to the bridge. On the other side of that land the boundary is also marked by a hedge.

 

74. As the land between the hedges approaches the bridge it widens and splays. In particular there is a very pronounced splay at the mouth of the ford strongly resembling the shape of the pink land where it abuts the western bank of the River Bray even to this day.

 

75. In my judgment, the proper finding I should make is that all of the land between the hedges, including the splay, was part of the highway in 1766.

 

76. I consider that this is the prima facie position as suggested by Hale LJ in the extract from Hale v Norfolk County Council cited above. There is no good reason why Mr Incledon, or the owner of the land north of the land between the hedges, should have erected or retained hedges other than at the boundary of the land retained for private use. Indeed, the red boundary line of Mr Incledon’s land coincides with the hedges. There are no factors tending to show that the hedges were grown for reasons unconnected with the highway. In particular, it is accepted that no land adjoining the main road is recorded as being waste of the manor.

 

77. That there should be a splay at a ford is understandable. I accept the parish council’s submission that a large area is necessary or desirable at a ford for penning in sheep or cattle for watering or resting en route. Mr Collier gave evidence about the practice of standing vehicles in the river at the ford in the summer to swell the joints of the wooden wheels, in order to shrink the iron around the wheels.

 

78. Because the bridge was widened as long ago as 1925, there was no evidence from any of the witnesses about events before the widening. But Mr Bawden, born in 1934, said in his witness statement [37]:

 

My recollection is that people have been in and out of the ford throughout my lifetime with some of them crossing the land in front of the workshop to get to it.

 

79. Mr Bawden also said that from his knowledge of horses there would need to be a gradual approach into and out of the ford. There was a saw mill on the eastern side of the bridge. The wagons used for larger loads of timber would have needed four horses.

 

80. Mr Collier expanded on this. The River Bray flows in a southerly direction so approaching the ford the flow is from left to right. Horses should not enter a ford straight on but towards the flow of the current. In other words the splay gave space for horses to be manoeuvred into a position whereby the ford could be entered at an angle.

 

81. Mr Pincombe supported this in his witness statement [38]:

 

From my acquired knowledge from my father who was a farmer I know that horses were not driven into fords with wagons so as to take a straight route across. This was to allow for the effect of the current in a river pulling at the wagon. So the horses would be driven down into a stream or river at an angle wherever possible and pointed up to pull out of the ford. This would allow for the current to bring the wagon a little downstream.

 

82. Mr Bawden also recalls those hacking home from local hunt would go into the ford to wash the horses’ feet off if it had been a muddy ride. The horses would drink from the river there as well. All this suggests the need for space at the mouth of the ford.

 

83. There is no evidence at all that the drain was in existence in 1766. There is no reason why it should have been. In so far as the drain serves the main road, I accept Mr Collier’s evidence that the main road until the 1930’s was made of stone. Prior to the main road being made of tarmac, the rain water would simply have drained away. In so far as the drain serves any buildings, there were no buildings on Web-Croft Meadow in 1766.

 

84. Although the arc of the ditch across the pink land comes close to the green land hedge at its eastern end, they are wholly separate features [39]. I do not accept the submission that the ditch and green land hedge form a ditch and hedge boundary feature. I do not consider the drain, or the ditch which was at some later and unknown time built on the pink land to carry the drain, has any significance as a boundary feature on the particular facts of this case.

 

The 1803 lease

 

85. By 1803 the freehold owner of Web-Croft Meadow was Mr Gould. On 16 April 1803 he granted the 1803 lease, a lease for 600 years of certain land out of Web-Croft Meadow. Although the 1803 lease has been lost, reference is made to it in a deed of enlargement, dated 22 March 1972, made in respect of Purbrook Cottage (“the deed of enlargement”) [40].

 

86. Purbrook Cottage is described as being:

 

... part of the property comprised in a Lease dated the Sixteenth day of April Eighteen hundred and three made between Joseph Gould of the one part and William Huxtable of the other part of All That parcel or plot of ground containing about fourteen perches be it more or less as it was then marked out and the hedge thereto adjoining situate and lying against the highway and near unto Brayford Bridge and being part and parcel and taken out of a certain field or close of land called Webbacroft Meadow within the said parish of Charles

 

87. This reference to the hedge thereto adjoining situate and lying against the highway confirms my view that all the land between the hedges on the 1766 plan was, indeed, highway.

 

88. There is no evidence that, at the date of the granting of the 1803 lease, any development had taken place on the land demised. Indeed, the extract from the parcels clause, already cited, refers to a parcel or plot of ground without reference to any buildings.

 

89. The parties are not agreed as to what land was demised by the 1803 lease. From later documents it can be deduced that the 1803 lease included Purbrook Cottage, Broomhill Cottage and the yellow land [41].

 

90. It is uncertain whether the land demised by the 1803 lease included the green land. I say this because the deed of enlargement also contains a conveyance of Purbrook Cottage and the green land. A distinction is drawn in the conveyance between Purbrook Cottage, said to be held under the 1803 lease and enlarged into a freehold estate, and the green land, said to be already owned as a freehold estate [42].

 

91. Mr Rees suggests that the land demised by the 1803 lease also included the disputed land and most of the pink land [43].

 

92. The yellow land was first dealt with independently of other land by the 1952 assignment, when Mrs Thorne sold her interest in the yellow land to Mr Frank Davey. The parcels clause in the 1952 assignment is as follows:

 

ALL THAT piece or parcel of land situate at Brayford in the Parish of Charles in the County of Devon being part of the property known as Centre House demised by the said Lease and for the purpose of identification more particularly delineated on the plan drawn hereon and thereon edged red with pink

 

93. The plan [44] is crudely drawn but shows the yellow land as a 30 foot [45] square. The rear boundary is in a straight line with the rear boundary of Broomhill Cottage, and is described as Meadow boundary. The front boundary is in a straight line with the front boundary of Broomhill Cottage, and is described as ROAD.

 

94. Mr Collier recently measured the yellow land as 31 feet 7 inches or 9.63 metres deep, and 33 feet 9 inches or 10.29 metres wide. It seems therefore that what was conveyed by the 1952 assignment was the yellow land only and not the disputed land as well. Indeed, the original application is based on the assumption that Mr Rees does not have a paper title to the disputed land: one cannot adversely possess one’s own land.

 

95. If the land demised by the 1803 lease included the disputed land, one would have expected the disputed land to have been recorded historically in the same ownership as the yellow land. This is because it is necessary to cross the disputed land to gain access to the yellow land from the main road. It is surprising that, if the land demised by the 1803 lease included the disputed land, Mrs Thorne did not appear to have title to it or expressly assign it with the yellow land.

 

96. Accordingly, I am not persuaded that the land demised by the 1803 lease included the disputed land or any of the pink land.

 

The 1842 tithe map

 

97. Mr Rees in his historical research places weight on the 1842 tithe map [46]. But in paragraph 6.21 of his report Mr Powell says:

 

This map is not to an exact scale and is of a diagrammatic nature only. I have matched the features that I can but the result is very poor.

 

The features as plotted on Mr Powell’s plan do not coincide with any other features and I do not find that the 1842 tithe map assists me in making my decision.

 

The valuer’s field book

 

98. Highway Law states [47]:

 

The Finance Act 1910 introduced the increment value duty on land. Landowners were able to apply for a reduction in the duty payable in respect of their land where that land was crossed by public rights of way. The maps and the registers held by the Public Records Office, when read together, may be evidence, therefore of the existence of rights of way over particular plots of land.

 

99. There has been produced an extract from the valuer’s field book used in connection with this duty [48]. This has not been analysed by Mr Powell. There is a carefully drawn diagram showing buildings on a plot which appears to comprise Purbrook Cottage, Broomhill Cottage and the yellow land. The green land is not included. The leasehold owner under the 1803 lease is stated to be Mr Thorne, but the entire property has been sub-let on a quarterly tenancy to Messrs Huxtable from 29 September 1906. The area of the land is 12 perches.

 

100. The workshop is described as a wood and iron carpenter’s shop in fair condition. Mr Clarke makes the point that the diagram shows a considerable amount of space between the rear of the workshop and the rear boundary of the yellow land. However, Mr Collier’s measurements [49] demonstrate that there is much more space behind the garage and the rear of the yellow land than the present ordnance survey map shows [50]. If one also recalls that the workshop stood slightly to the north of where the garage is now built, Mr Clarke’s point does lose its force.

 

101. The significance of the diagram in the valuer’s field book is that the land immediately to the north of the workshop is identified as road.

 

 

The 1925 drawings

 

102. A number of drawings [51] have been produced relating to the widening of the bridge by the county council in 1925. The drawings show the location of the workshop, which is described as a wheelwright’s shop. What is significant is that the boundary feature at the front of the garden of Broomhill Cottage is shown as a hedge. The hedge does not run in a straight line from the cottages but falls away to the south, marking the beginning of the splay leading to the ford. The eastern end of the hedge meets the western side of the front face of the workshop.

 

103. It will be apparent from the present photographs [52] that since 1925 the garden of Broomhill Cottage has undergone a transformation. The boundary feature at the front is now a fence which does run in a straight line from the cottages, and no longer falls away to the south. The fence does not meet the garage but ends some distance north of it where it meets the western fence, which is not a feature which has existed historically. It would therefore appear that the garden of Broomhill Cottage has been extended since 1925 to encroach on land which used to separate it from the main road.

 

104. The drawings also show a hedge running from the eastern side of the front face of the workshop to the River Bray, with a small gate immediately adjoining the workshop. This is clearly the green land hedge. It seems to me, on the balance of probabilities, that this hedge line, either side of the yellow land, was following the same hedge line as shown on the 1767 plan. The drawing demonstrates that the original building line was not straight past the cottages towards the bridge with the disputed land being behind that notional line [53].

 

The 1946 aerial photograph

 

105. An aerial photograph of Brayford taken on 11 July 1946 [54], appears to confirm the topography demonstrated by the 1925 drawings. The line of the green hedge is apparent as is the hedge at the front of the garden of Broomhill Cottage, which stands back from the main road. So the encroachment must have taken place since 1946.

 

Highway maintenance

 

106. This is not a case where I have found the maintenance history of the disputed land and the pink land, or the activities or views of the highway authority, of enormous weight or assistance. There is no evidence of any activity by the highway authority on the disputed land. Throughout living memory the pink land seems to have been an unused and unkempt wasteland of no importance to the highway authority, until it was transformed by the parish council, as part of the Millennium project in 2003.

 

107. As Mr Pincombe says in his witness statement [55]:

 

It is the case that we did general maintenance and only maintained the actual metalled surface in this area. Nobody bothered with the excess land and nobody was claiming it. There was no advantage for the highway authority in carrying out any work on the land beyond the metalled highway as there were no improvements to be done, for example in the way of footpaths.

 

108. Some support for the parish council’s case comes from Mr Bawden’s oral evidence that he cleared the drain when working for the county council. Mr Roy Davey also told Mr Collier that the ditch was kept clear by the lengthsmen. On the other hand, according to Mr Rees, Mr Roy Davey said that the ditch was not maintained by anyone.

109. Mr Punt relies upon the inclusion of the disputed land within what is recorded as the maintenance responsibility of the highway authority in 1948 [56]. But the actual plan [57] is on so small a scale that I would not have expected a distinction to have been shown on it between the disputed land and the main road. Moreover, as Mr Rees pointed out in his oral evidence, the plan is based on the 1905 ordnance survey which pre-dated the bridge widening. The more recent highway records produced by the county council do not show the disputed land as highway [58].

 

110. Mr Punt also relies upon the fact that the county council granted a licence to the parish council on 12 April 2007 in connection with the Millennium project, the plan to which showed that the county council believed that the whole of the strip was highway [59].

 

111. However, the county council later changed its view as to the status of the disputed land and issued an amended plan to the licence, which showed the highway only extending as far south as line B, and therefore excluding the disputed land south of line B [60].

 

112. The county council has not had the benefit, as I have, of hearing three days of evidence on the highway issue. In the circumstances, I do not regard the county council’s view, one way or the other, as to the status of the disputed land as a matter to which I should attach any weight.

 

113. For the reasons set out above, I prefer the arguments advanced by Mr Punt that the disputed land is part of the highway to the contrary arguments advanced by Mr Clarke.

 

114. In his skeleton argument Mr Clarke suggested that if the disputed land is highway, the parking on it by Mr Rees and his predecessors has given rise to an easement. I have made findings of fact about the parking, but no application for a prescriptive easement of parking has been referred to me. In those circumstances, as I indicated at the hearing, I am not in a position to make any decision in relation to such an easement.

 

115. Mr Powell’s plan shows that the solid blue line, representing the boundary of the yellow land on the 1905 ordnance survey map, lies slightly to the north of the garage. No doubt this is because the garage is set slightly further back than the workshop was. Mr Rees’ ownership of this small area of land in front of the garage is part of his registered title under the general boundaries rule.

 

Conclusion

 

116. I will direct the Chief Land Registrar to cancel the original application.

 

117. Costs usually follow the event, and my preliminary view is that Mr Rees must pay the costs of the parish council, and that there should be no order in respect of the county council’s costs. If any party seeks a different order, that party should serve any representations on all other parties and the adjudicator by 4.0pm 12 August 2009. The parish council should also serve a schedule of costs on all other parties and the adjudicator by 4.0pm 12 August 2009. The schedule at this stage need only be in form N260. I will then give further directions as appropriate.

 

 

Dated this 30th day of July 2009

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY