REF/2011/0399 and 0400

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

ARTHUR WALTON

 

APPLICANT

 

and

 

HEDLEYHOPE PARISH COUNCIL

 

RESPONDENT

 

 

Property Address: The Old Chapel, East Hedleyhope, Bishop Auckland,

County Durham

Title Number: DU324217

 

 

Before: Mr Michael Michell, Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Durham Civil and Family Justice Centre

On: 22^nd and 24^th February 2012

 

Applicant Representation: Mr Robinson, solicitor of Hodgson and Angus Solicitors

Respondent Representation: Mr Bradley, Clerk to Hedleyhope Parish Council

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

VILLAGE GREEN – ADVERSE POSSESSION-ILLEGALITY-EFFECT

 

Cases referred to

 

Lord Advocate v. Lord Lovatt (1880) 5 App Cas 273

Collins v. Amphlett (1917) 67 Sol Jo

Powell v. McFarlane (1977) 38 P&CR 452

Re Plumstone Mountain, Camrose, Dyfed (unreported 25th April 1986)

Lambeth London Borough Council v. Blackburn (2001) 82 P & CR 494

J.A. Pye (Oxford) Ltd. v. Graham [2002] UKHL 3

Bakewell Management Ltd. v. Brandwood [2004] 2 AC 519

R (Smith) v. Land Registry [2009] EWHC 328

 

 

1. This matter concerns unregistered land in the village of East Hedleyhope. Mr Arthur Walton applied to HM Land Registry on 11^th May 2010 for first registration of land comprising a former chapel and some surrounding land. Mr Walton has documentary title to part of the land and he claims to have acquired title by adverse possession to the remainder. Hedleyhope Parish Council (“the Council”) objected. The Council claims to be the owner of part of the land sought to be registered by Mr Walton. It made its own application to register land including land within the application made by Mr Walton. At the hearing, the Council did not object to registration by Mr Walton of the land to which he claims a paper title.

 

The Factual Background

 

2. East Hedleyhope is a village which was constructed to provide accommodation for people employed at the local colliery and their families. The colliery is now closed. The village now comprises two streets of terraced houses, called Deerness View and West View and another cluster of buildings called “The Orchard” or “The Valley” (the different names appear on different maps). In the past, the village was larger. It had at least 3 other streets of terraced houses. School Row faced West View (formerly called Post Office Row). There were also Reading Room Row and Chapel Row. Between the rear gardens of School Row and the rear gardens of Reading Room Row was an open area of land on which stood a school and the Primitive Methodist Church. The building now used by Mr Walton was formerly the Wesleyan Methodist Chapel. Chapel Row ran in a south easterly direction from the Wesleyan chapel. Chapel Row was demolished at some time in the 1950s. Reading Room Row, School Row, the school and the Primitive Methodist Church have all been demolished though precisely when does not appear from the evidence. The school was described at a meeting of the Council in March 1969 as being in an advanced state of dilapidation.

 

3. On 4^th October 1967 the Council applied to Durham County Council as registration authority under the Commons Registration Act 1965 to register a large area of land including the whole of the site occupied or formerly occupied by School Row, the school, the Primitive Methodist church, Reading Room Row and Chapel Row as a village green. The village green was registered provisionally on 8^th December 1967 and, there being no objections to the registration, it was made final on 4^th December 1970. The land registered as village green did not include the site of the Wesleyan chapel and a path around it but it did include land on three sides of the chapel. A public highway occupies land on the 4^th side of the chapel.

 

4. On 1^st May 1975 a hearing was held before a Commons Commissioner, Mr Baden Fuller to enquire as to the ownership of the village green. In his decision dated 8^th May 1975 Mr Baden Fuller found that he was not satisfied that any person was the owner of the village green and he directed Durham County Council as registration authority to register the Council as owner of the village green under section 8(3) of the Commons Registration Act 1965. This was a direction the Commons Commissioner was required by the statute to make whether or not the council wished to be registered as owner of the village green.

 

5. There is an engraved stone at the base of the chapel recording that the foundations of the chapel were laid in 1895. The site of the chapel was settled on trustees by a settlement made on 10^th March 1890. The site and the chapel were conveyed on 12^th November 1951 by a trustee acting under Settled Land Act 1925 powers to trustees to hold on the trusts declared by the Methodist Church Model Trust Deed. The land conveyed was described as

“All that piece or parcel of land at East Hedleyhope in the county of Durham as the same with the measurements and boundaries thereof is (for the purpose of identification only) more particularly delineated and described on the plan endorsed hereon and thereon coloured round with red Together with the building erected and built thereon and used as a Methodist Church…”

The plan shows the land conveyed to be a rhomboid and gives the measurements in feet of each side.

 

6. The Wesleyan chapel ceased to be used as a place of worship by the 1960s. It was conveyed on 28^th November 1970 to trustees to hold on trust for the members of the Deerness Sports Club. The Sports Club used the chapel as a meeting room and changing room for use when playing football on the village green. Mr Walton started using the chapel for his haulage business in 1973. The chapel together with the land conveyed by the 1951 conveyance was sold by the Sports Club to Mr Walton and conveyed to him by a conveyance dated 28^th August 1975. At this time, Mr Walton lived at 19 West View, East Hedleyhope.

 

7. Mr Walton demolished a room at the rear of the chapel that had been used as the vestry and fitted large doors so that he could get lorries in and out of the chapel. He placed 2 shipping containers on the south east side of the chapel for use for storage. Some time later, about 25 years ago, he put a caravan beside the northern boundary for use as an office.

 

8. The change of use of the chapel from a place of worship to a workshop/garage was a material change of use for planning purposes. Mr Walton did not apply for planning permission for change of use. On 17^th October 1974 Derwentside District Council as planning authority served notice on Mr Walton under s. 284 of the Town and Country Planning Act 1971 requiring him to state in writing the nature of his interest in the chapel. Mr Walton replied on 28^th October 1974 using the form attached to the notice, stating that he was the owner and occupier of the chapel. It would appear that the planning authority raised some concern as to Mr Walton carrying on business from the chapel. On 10^th June 1977 the clerk to the Council wrote to the Chief Planning Officer. The writer stated that at a meeting of the Council on 9^th June 1977, Mr Walton

“explained that should he be allowed to operate from his present premises it is his intention to carry out all the regular and necessary improvements and renovations viz. painting, repairing, general tidying up and planting a screen of trees around his complete holding”.

 

The Evidence

9. Mr Walton stated in his statement of case that

(1) “From 1973 to date he has used the disputed land in connection with his transport business parking HGV vehicles and trailers on the land, storing materials and parking a large caravan on part of the disputed land. No-on else has used or occupied the disputed land during this time”.

(2) “Entrance to the garage is at the rear of the building and the Applicant created a hardcore access to the garage in 1973/4 along the side and rear of the building”.

(3) “There is a boundary fence to the rear of the disputed land enclosing the disputed land from adjoining land and clearly defining the extent of the land in the occupation of the Applicant. The fence has been in situ since 1973”.

These are the only matters alleged in the statement of case as amounting to adverse possession of the land by Mr Walton.

 

10. Mr Walton made a witness statement which is not dated. In it, he said as follows

(1) When he bought the property in 1975 the total area occupied by him was the same area as he occupies today.

(2) He was able to place some containers to the south west of the chapel building, which are used for storage purposes.

(3) It is necessary to use the land to the rear of the garage for the purpose of manoeuvring heavy goods vehicles entering the garage. The manoeuvres involve turning and reversing vehicles across the area to the rear of the chapel.

(4) There is a fence along the rear boundary of the property occupied by him. The boundary fences have been in situ since 1975 or thereabouts.

(5) Trees were planted to the rear of the property and behind the fence line of his property to screen the property from adjoining land.

(6) In the past he has had several vehicles and trailers operating from his premises. When the vehicles were not in use or were being serviced they were parked on the land to the rear and north west side of the chapel.

(7) An old residential caravan stands on part of the land occupied by him. This has been in position for more than 25 years.

Mr Walton confirmed at the commencement of his oral evidence the truth of the facts set out in his witness statement.

 

11. In cross-examination, Mr Walton said that he had erected the fence along the back of the land he claimed at some time after 9^th June 1977. He said that when he bought the chapel, he was not sure what land he had bought but thought he could use whatever land around it he wanted because the land was derelict. He said that he had put in cylindrical fence posts and attached three strands of plain wire. He had been given the posts and wire by a local farmer. He had renewed fence posts at various times.

 

12. Mr Norman Appleby gave evidence. He is accustomed to walk his dog on the village green. He said that about 5 years ago he was most surprised to see fence posts had been erected on village green land where the fence erected by Mr Walton now stands.

 

13. Mr Malcolm Stobart gave evidence. He lives at West View. He has lived in East Hedleyhope all his life. He has been accustomed to walk around the village and estimated that he used to walk over the village green along a path that leads from the football field to the rear of the chapel at least once or twice a week. He had not walked that way during the day time for the past 5 years or so since Mr Walton had bought a Rottweiler dog, which he chained on the land at the rear of the chapel. However, he had walked that way in the evenings when the dog was not there. He said that about 5 years ago he noticed fence posts had been put in the long grass on the village green and later wire was put around the posts. Mr Malcolm Stobart’s wife, Mrs Ann Stobart gave evidence. She recalled seeing the posts being there for the first time about 5 years ago. The wire was put up between the posts only about 2 or 3 years ago.

 

Site Visit

14. I inspected the site accompanied by Mr Walton’s solicitor and Mr Bradley on 23^rd February 2012. There is an almost level area of hard-standing to the side and rear of the chapel building forming an entrance road and turning/parking area. The caravan is to one side of the entrance road at a slightly higher level than the road. On the opposite side of the chapel building from the entrance road, there are two shipping containers and beyond that there is some rough ground with some rubbish and the site of a bonfire. Beside that, running beside the public highway is an area of deciduous trees. Beyond the hard standing area, the ground rises up a slope. Most of the land the subject of the application based on adverse possession is covered with grass. There is no sign of this being used for anything save for a dog kennel which has been put on the grass area.

 

Law

15. MrWalton’s case is brought on the basis of adverse possession. The land claimed is unregistered land.

 

16. The relevant provisions of the Limitation Act 1980 are as follows. Section 15 (1) provides

“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 or, if it first accrued to some person through whom he claims, to that person”.

Section 15(6) provides

“Part I of Schedule I to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases mentioned”.

Schedule 1 Part 1 paragraph 1 provides

“Where the person bringing an action to recover land, or some person through whom he claims, 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 dispossession or discontinuance”.

Paragraph 8 provides

“(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.

(2) Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession”.

Section 17 provides

“Subject to

(a)    section 18 of this Act, and

(b)   [section 75 of the Land Registration Act 1925]

at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished”.

Section 18 contains provisions concerning settled land and land held on trust and is not relevant for present purposes.

 

17. What is meant by adverse possession within paragraph 8 of Schedule 1 to the Limitation Act 1980 was considered by the House of Lords in J.A. Pye (Oxford) Ltd. v. Graham [2002] UKHL 3. “Adverse possession” means possession in law and involves two elements; factual possession and an intention to possess. Lord Browne-Wilkinson at paragraph 40 defined the two elements necessary for possession as follows:

“1. a sufficient degree of physical custody and control (“factual possession”);

2. an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”).

Lord Browne-Wilkinson agreed with the statement of the law as to factual possession in the judgment of Slade J. in Powell v. McFarlane (1977) 38 P&CR 452 at 470-471

“Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstances, but broadly, I think that 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.”

His Lordship also accepted as correct Slade J.’s formulation of the requirement that the possessor have the intention to possess as requiring an

“intention, in one’s own name and on one’s own behalf, to exclude the word at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonable practicable and so far as the processes of the law will allow”.

The intention to possess may be apparent from the acts on the land of the person who is occupying it but if those acts are equivocal, then he will have to establish additional evidence to establish that he had the intention to possess. In Powell at p. 472 Slade J. said

“If his acts are open to more than one interpretation and he has not made it perfectly clear to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner”.

and at p. 476 he said

“In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner”.

 

Possession

18. Did Mr Walton exercise an appropriate degree of physical control over the land claimed? I find that the fence posts were not put in until about 5 years ago. The evidence of Mr Appleby and Mr and Mrs Stobart is that they noticed the fence posts only about 5 years ago and that the wire was not put up between the poles until about 2 years ago. I prefer their evidence to the evidence of Mr Walton. Unlike Mr Walton, Mr Appleby and Mr and Mrs Norman have no pecuniary interest in the outcome of the proceedings. They all recalled clearly a period of years during which the posts were standing but there was no wire between them. This is not a detail I would expect to find in their evidence if it were not true. Had Mr Walton erected the fence of posts and wire in 1977 or thereabouts as he claims, I consider that Mr Appleby and Mr and Mrs Stobart would have seen it and not given the evidence they did. From the time of fixing of the wire onto the posts Mr Walton did have physical control over the entirety of the land claimed but that was not until about 2 years ago.

 

19. I do not consider that the other acts relied upon by Mr Walton are sufficient to establish that he had possession of the disputed land. If he planted trees on the land, they cannot now be seen and so the planting cannot have been substantial. The parking of trailers, lorries and the mobile caravan, though indicative of occupation, did not amount to possession in my judgment.

 

Illegality

18. In seeking to show that he had possession of the disputed land, Mr Walton relied heavily on his assertion that he had fenced the disputed land from the remainder of the village green in about 1977. The Council did not accept that the disputed land has been fenced for longer than about two years. However, it submitted that Mr Walton could not rely on the fencing because it was unlawful. Section 12 of the Inclosure Act 1857 provides that it is an offence to do any act which injures land which is a village green or which interrupts the use or enjoyment of the land as a place for exercise or recreation. The relevant part of the section reads

“And whereas it is expedient to provide summary means of preventing nuisances in town greens and village greens …:If any person wilfully … or do any other act whatsoever to the injury of such town or village green or land, or to the interruption of the use and enjoyment thereof as a place for exercise and recreation, such person shall for every such offence upon a summary conviction thereof before two justices … forfeit and pay, in any of the cases aforesaid, and for each and every such offence, over and above the damages occasioned thereby, any sum not exceeding [level 1 of the standard scale]”

Section 29 of the Commons Act 1876 deems certain matters to be a public nuisance, which are punishable if wilful as a criminal offence. Section 29 relates in particular to

(i) any encroachment on or enclosure of a green; and

(ii) any erection on a green, or any disturbance with or occupation of the soil thereof, which is made otherwise than with a view to the better enjoyment of the green.

 

19. The erection of a fence in the position erected by Mr Walton, it is said, interrupts the use and enjoyment of part of the village green as a place for exercise and recreation and is thus an offence under section 12 of the Inclosure Act 1857. The erection of the fence is also an encroachment on and enclosure of part of the village green and so, it is said, a public nuisance under section 29 of the Commons Act 1876.

 

20. The question of whether a person seeking to establish title by adverse possession to land which is, or is part of, a village green, can rely on acts which are contrary to the statutory provisions mentioned has not been judicially determined. It is a point of some complexity on which neither party’s representative was able to provided me with very much assistance

 

21. The opinion of the editors of Gadsden on Commons and Greens (2^nd ed.) at 5-38 is that where the acts of possession are acts which are contrary to section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876, as an encroachment on a village green, a claim to adverse possession “may not be endorsed” by the court. However, the editors do not cite any authority for their view or set out the argument on which their opinion is based. Their opinion would appear to be shared by the Department for the Environment Food and Rural Affairs; the DEFRA “Guidance Note on adverse possession of common land and town or village greens” (published in March 2010) expresses the view that an adverse possession claim which depends on actions which are prohibited but not criminal should succeed, but one which depends on actions which are criminal offences, should not. No authority or argument for this view is set out in the guidance note.

 

22. I take as my starting point the relevant sections of the Limitation Act 1980. I note that there is no express restriction on a squatter who has committed a criminal offence in, or in the course of, taking possession of land from relying on section 15. The section operates by barring a right of action to recover land following the expiry of a period running from the date of accrual of the right of action. A right of action to recover land must accrue whether or not the entry of the squatter onto or the squatter remaining on the land involves a breach of the criminal law. Further, there is no provision to the effect that an action may be brought more than 12 years after the accrual of the right of action if the trespasser engaged in some criminal activity in taking possession of the land.

 

23. There being nothing express in the Limitation Act 1980 to prevent a squatter who has committed a criminal offence in, or in the course of, taking possession of land from relying on section 15, I turn next to consider whether the term “possession” has been defined by authority so as to exclude possession obtained or retained by criminal acts. I have been unable to discover any authority in which possession has been so defined.

 

24. In Collins v. Amphlett (1917) 67 Sol Jo. Younger J. held that a defendant who had enclosed part of a common, could not succeed in showing adverse possession of the enclosed part of the common because the possession was contrary to section 36 of the Commons Act 1876 which provides “Where an Act of Parliament has been passed confirming a provisional order under this Act for the regulation of a common, then, subject to and without prejudice to the provisions of that order, the common shall not, nor shall any part thereof, be inclosed without the sanction of Parliament subsequently obtained”. I note that section 36 did not create on its face a criminal offence. The reasoning is not explained in the very brief report of the decision. The case cannot be taken as being authority for the proposition that possession obtained or retained by illegal means is not possession.

 

25. In Lambeth London Borough Council v. Blackburn (2001) 82 P & CR 494 the squatter broke into a flat by breaking a padlock and thereby committing the offence of criminal damage . He remained in possession for 12 years and the Court of Appeal held that the squatter had been in adverse possession. It was a case in which no point based on the illegality of the manner of entry of the squatter was taken or considered. It provides no assistance as to what the outcome of the case would have been had the point been taken.

 

26. There is authority under Scottish law for the proposition that possession obtained by illegal acts is still possession. Lord Advocate v. Lord Lovatt (1880) 5 App Cas 273 was a decision of the House of Lords on appeal from the Second Division of the Court of Session in Scotland. The Lord Advocate on behalf of the Crown brought an action claiming the whole salmon fishings on certain rivers. It was common ground that under Scottish law the Crown is to be assumed to be entitled to all salmon fishings to which “the vassal” cannot affirmatively establish his claim (see p. 285). Lord Lovat claimed to be entitled to the fishings on one stream either by express grant or “on grants explained and interpreted by possession” (p.285). The dispute was as to whether Lord Lovat had title to the fisheries above some falls, it being admitted that he had title to the fisheries from the falls to the sea. The second ground on which Lord Lovat claimed entitlement to the fisheries appears to have been one based on the Scottish law of prescription. Lord Blackburn said (at p.310)

“It is not and could not be disputed that the grant of a barony gives a title which, though it does not carry with it the right of salmon fishing within the bounds of the barony, is a habile and competent title on which by proof of possession for forty years a title can be found”.

The House of Lords was concerned with the question of whether Lord Lovat had possession of the fisheries and in that context a point arose as to the effect of the mode of some of the fishing by Lord Lovat having been illegal. Lord O’Hagan said (at pp.291-292)

“It has been said, that the formation and the working of the cruives was illegal; and on this an argument has been founded in favour of the Crown. But I do not feel the force of it. On the contrary, if illegality there was, it appears to me on this question of possession, to tell in favour of the Respondent. If, in the assertion of a claim and the enjoyment of a privilege to which they were not entitled, the Lovat family transcended the limits of the law, it was all the easier to call their acts in question, and restrain them from proceedings inconsistent with the rights of others. If the Crown, or a grantee of the Crown, had to complain of the invasion of such rights, the alleged illegality, making the invasion more palpable and injurious, was a challenge to assert them. But no one interfered; the detention of the salmon went on without complaint, and the inference, that it was allowed because it was rightful, was strengthened if it was really illegal. Therefore, I conceive that the argument tells rather the other way. The title of the Respondent is not rested on illegality; and though his acts in asserting it may not have been authorized by law, they could not derogate from that title, even if they did not, as I think they do, tend to demonstrate a complete possession under it.”

Lord Blackburn adopted a passage from the opinion of Lord Gifford in the Court of Session which included the following

“It is said that [the mode of fishing] was illegal, and so it was; but its illegality does not make it the less an important element in showing what the possession was. Practically the result was that Lord Lovat, by means of these cruives with the additional assistance of the illegal meshes, could take all the salmon he wanted below the falls instead of going up to get them; as expressed in argument, he took his crop of salmon at that point, but the crop he took there was that of the whole river; and if there had been anybody above, who had the right to the salmon, it is impossible to imagine that they would have remained passive and not objected to that mode of dealing with the salmon in this river.”

 

27. In my judgment, possession is possession, irrespective of whether the acts done to secure or retain possession are contrary to the criminal law. As defined in Powell v. McFarlane and J.A. Pye (Oxford) Ltd. v. Graham, possession is a matter of fact depending on a degree of physical custody and control and the intention of the squatter. A squatter who erects a tall strong fence around part of a village green may thereby obtain exclusive physical control of the fenced land and he may well intend to exercise that control for his own benefit, notwithstanding that the erection of the fence was a criminal act. If he does obtain physical control and intends to exercise that control for his own benefit, he has possession.

 

28. On a consideration of the terms of the Limitation Act 1980 and the meaning of the “possession”, there appears to be no point of substantive law which prevents a squatter from relying on section 15 of the Limitation Act 1980. The next question is whether there is a rule of procedural law to prevent Mr Walton from relying on acts done by him on part of the village green that are contrary to the criminal law. There is a general principle that a person should not be granted a remedy where he has to rely directly on unlawful conduct to succeed, a principle referred to by reference to the maxim ex turpi causa non oritur actio. This principle is concisely stated by Lord Scott in Moore Stephens (a firm) v Stone Rolls Limited (in liquidation) [2009] UKHL 39 at paragraph 120;

“The ex turpi causa rule is a procedural rule based on public policy. The perpetrators of illegality, a fortiori dishonest illegality, ought not to be allowed to benefit from their reprehensible conduct”.

 

29. The ex turpi causa principle was applied at first instance by HH Judge Pelling QC (sitting as a Deputy Judge of the High Court) in R (Smith) v. Land Registry [2009] EWHC 328 but formulated in slightly stricter terms than were used by Lord Scott in Moore Stephens (a firm) v Stone Rolls Limited. In R (Smith) v. Land Registry a squatter claimed to have been in adverse possession of part of a highway maintainable at the public expense. HH Judge Pelling QC held that a squatter could not rely on acts which constitute a criminal offence in support of an adverse possession claim. The learned judge found that there was a general principle that a person cannot acquire a legal right by putting land to an illegal use; that the principle had been stated by Salmon LJ in Glamorgan County Council v Carter [1963] 1 WLR 1; and approved by Lord Scott in Bakewell. HH Judge Pelling QC referred to Bakewell Management Ltd. v. Brandwood [2004] 2AC 519. That case concerns a claim for an easement based on the doctrine of lost modern grant. The passage cited and relied upon by the learned judge appears at paragraph 34 of Bakewell and is as follows

“Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon L.J. The question at issue arose out of the provisions of the Town and Country Planning Act 1947. The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12(5)(c) of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purpose for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was the context in which Salmon L.J. made the statement cited by Dillon L.J., namely

“It seems to me plain on principle that Mrs James could not acquire an legal right by the illegal use to which she was putting the land”(see p.5).

Salmon L.J. made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of the 1947 act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct”.

The remainder of the paragraph was not cited by the learned judge. It reads as follows

“But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon L.J.’s statement out of context and treat the principle he expressed as applicable to prescriptive use.”

There was an appeal from the judgment of HH Judge Pelling QC and on appeal, the case was decided on different grounds. The Court of Appeal did not consider the illegality point at all. It seems to me that I should heed the warning of Lord Scott and not treat the principle expressed by Salmon LJ, without more, as applicable in the very different context of a claim to adverse possession of part of a village green.

 

30. Bakewell Management Ltd. v. Brandwood was a case concerning the acquisition of an easement by prescription or under the doctrine of lost modern grant over common land. There are clear difference between the law of adverse possession and the law of prescription. Adverse possession is based on possession without the permission of a person having a better right to possession whilst the law of prescription is based on a presumption of a lawful grant of a right. Nonetheless, the case provides some guidance as to the nature and application of the ex turpi causa principle in the context of claims to property rights. Lord Scott did not consider that there was any principle of law that acts in breach of public law prohibitions could never lead to the acquisition of legal rights. At paragraph 36 His Lordship considered the cases of Airdrie Magistrates v. Lanark County Council [1910] AC 286 and George Legge & Son Ltd. v. Wenlock Corporation [1938] AC 204. Lord Scott said of these cases that they were

“no more than excellent examples of the proposition that a lawful grant to do an act or acts that if done would be illegal cannot be made. … To go further and say, as Lord Maugham did [in George Legge & Son Ltd. v. Wenlock Corporation] that never in any circumstances can acts in breach of public law prohibitions lead to the acquisition of legal rights does not follow and was not necessary for the decision.

 

31. Both Lord Scott and Lord Walker (with whom Lords Bingham and Hope and Lady Hale agreed) both considered that the issue was one of public policy. Lord Walker said that the maxim ex turpi causa non oritur actio must be applied as an instrument of public policy and not in circumstances where it does not serve the public interest (see paragraph 60). Lord Scott considered that there was no reason of public policy to bar the acquisition of an easement by prescription or by the fiction of lost modern grant where the use relied on was illegal in the criminal sense if the easement could be lawfully granted by the landowner (see paragraph 47).

 

32. In the light of the general guidance from Lords Scott and Walker in Bakewell Management Ltd. v. Brandwood, I should then consider whether there is any requirement of public policy to bar the acquisition of a title under the Limitation Act 1980 to part of a village green where the squatter relies on acts by him on the village green which are illegal under Section 12 of the Inclosure Act 1857 and Section 29 of the Commons Act 1876. It is to be noted that the claim by Mr Walton, if successful, will not bar the rights of the public over the part of the village green to which he claims title. Mr Walton would be registered under the Land Registration Act 2002 with a title to part of the village green but that land would remain village green and the public would continue to be entitled to make use of that part for lawful sports and pastimes. Further, it would seem to be the case that an action could still be brought against Mr Walton for the removal of the fence as a public nuisance. However, the purpose of the sections in creating the criminal offences would appear to me to be to protect the practical ability of the public to enjoy the green without interruption. It is a criminal offence to do any act which injures the green or interrupts the use and enjoyment of the green for exercise and recreation and enclosing the green or part of it will interrupt that use and enjoyment .while the fence is in place. The objective of enabling the public to enjoy the village green without interruption is better achieved, in my judgment, if squatters are not permitted to acquire title by relying on illegal fencing or other acts which are made illegal by the sections referred to. If squatters were to be permitted to rely on fencing a village green, there would be an incentive for them to do so and an increase in the risk of the public’s rights to enjoy the green being interrupted. In the absence of authority to the contrary, I would therefore hold that Mr Walton cannot rely on illegal acts in seeking to show title by adverse possession to part of the village green.

 

33. There do not appear to be any authorities to the contrary. In Re Plumstone Mountain, Camrose, Dyfed (unreported 25th April 1986),the Chief Commons Commissioner, Mr Langdon-Davies considered the question of whether a person claiming adverse possession of land which formed part of a common could rely on fencing where the fencing was contrary to the provisions of section 194 of the Law of Property Act 1925. Section 194 provides that the erection of any fence which impedes access to land which at the commencement of the Act was subject to rights of common is not lawful unless the consent of the Minister is obtained. The Commissioner found that section 194 did not prevent an adverse possession claim, which relied on the erection of a fence where the Minister’s consent had not been obtained. The case is to be distinguished from the present case because section 194 does not create a criminal offence. It does not assist with the quite separate question which arises where the erection of a fence is contrary to the criminal law and cannot be made lawful by a minister of state.

 

Conclusions

34. Mr Walton has not made out his claim to be registered with title to the land to which he claims title by adverse possession. He has not had possession of that land. If I am wrong in finding that he did not have possession, then I would find that his claim does not succeed because the acts he seeks to rely on in establishing possession, namely the fencing of the land and the siting of a caravan on the land are contrary to the criminal law as laid down in Section 12 of the Inclosure Act 1857 and Section 29 of the Commons Act 1876 and he is not entitled to rely on this criminal illegality. Accordingly, I shall direct the Chief Land Registrar to give effect to the application of Mr Walton in part in so far as it relates to land to which he claims a paper title but otherwise to cancel the application. I shall also direct the Chief Land Registrar to give effect to the Council’s application except in so far as it relates to the land to which it is accepted Mr Walton has a paper title

 

Costs

35. My preliminary view is that Mr Walton should pay the Council’s costs, to be assessed, if not agreed, on the standard basis. The usual rule is that costs follow the event. Mr Walton has not succeeded in respect of the disputed part of his application. Any part who wishes to submit that I should make some different order as to costs should serve written submissions on the Adjudicator and on the other party by 5pm on 6^th July 2012.

BY ORDER OF THE ADJUDICATOR

 

 

 

 

 

DATED this Monday 25 June 2012