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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Becket Mews Residents Company Ltd v Rogers & Anor (Miscellaneous cases : Miscellaneous) [2016] EWLandRA 2014_0954 (20 January 2016)
URL: http://www.bailii.org/ew/cases/EWLandRA/2016/2014_0954.html
Cite as: [2016] EWLandRA 2014_954, [2016] EWLandRA 2014_0954

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PROPERTY CHAMBER

FIRST -TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO 2014/0954

 

BETWEEN

BECKET MEWS RESIDENTS COMPANY LIMITED

Applicant

and

 

ANDREW ROGERS

YVONNE ELIZABETH ROGERS

 

Respondents

 

 

Property address: Land on the North Side of North Lane, Canterbury

Title number: TT23436

 

Before: Judge Gary Cowen

 

___________________________________________________________________________­

 

DECISION

 

  1. By an application dated 27 March 2014, the Applicant applied in Form FR1 for first registration of a passageway on the north side of North Lane in Canterbury on the basis of its alleged adverse possession of the passageway. The Land Registry allocated a provisional title number TT23436 to the passageway. The Respondents objected to the application by an objection dated 29 August 2014 and the matter could not be resolved. Accordingly, on 22 December 2014, the Chief Land Registrar referred the matter to this Tribunal for determination.

 

  1. I attended a site visit at the property on 29 October 2015 which was attended by Ms Janet Harfield on behalf of the Applicant and by Mr Rogers, the First Respondent. The hearing of the reference took place on 30 October 2015. At the hearing, the Applicant was represented by a director of the Applicant, Mrs Jean Kensit. Mrs Kensit explained to me that the directors of the Applicant are volunteers and that the Applicant had no funds with which to engage legal representation. The First Respondent, Mr Rogers represented himself and his wife, the Second Respondent.

 

The Passageway

  1. North Lane runs between St Dunstans Street and the B2248 in the centre of Canterbury, very close to the city's historic West Gate. Running parallel to North Lane but further north are two further roads, Kirbys Lane to the immediate north of North Lane and Station Road West to the north of Kirbys Lane. To the north of Station Road West lies Canterbury West railway station.

 

  1. The area between Kirbys Lane and North Lane comprises a mix of residential and commercial properties. Historic plans show that the area was formerly the site of a number of warehouses and one of the blocks of flats within the Becket Mews development with which this reference is concerned is known as "the Woolstore", revealing its former use.

 

  1. The Becket Mews development was created in the early 1980's. In the bundle of documents with which I was provided, there is an architects plan ("the architects plan") created by a firm called Lee Evans Partnership. It is undated but it purports to show the development which was created. The developer for whom the plan was created is referred to as "Simport Properties Limited". The development appears to comprise approximately sixteen houses as well as seven flats in the Woolstore and further flats on North Lane. From the entrance to Becket Mews where it meets Kirbys Lane, there is a roadway wide enough to take vehicles which runs past the southern wall of the Woolstore and ends at garages. The southern pavement to that roadway continues south-eastward from the end of that roadway past the garages and then turns due south past the entrance to 18 Becket Mews. That paved area then dog-legs to the south-west where it meets the northern end of the passageway which forms the subject matter of this reference. That end of the passageway is open. The passageway then runs approximately south-east, past the front entrances to 16 and 17 Becket Mews down to North Lane. At the North Lane end of the passageway, there is a gate which is kept locked.

 

  1. In the bundle, there is a letter dated 18 June 1985 from Miles of Birchington to Mr and Mrs Jones of 19 Becket Mews. Miles of Birchington were apparently the contactors who constructed the development. The letter notes that "we have eventually completed the rebuilding of the flats at North Lane" and goes on to state that "the Steam Packet Passage has also been completed". It is common ground that this is a reference to the passageway. The letter also states that "We have installed a new gate at the North Lane end of the passage with a lock which, for your own peace of mind, must be kept locked. We enclosed a key for the lock and request that when you use the gate, PLEASE relock it after you". It was also common ground that the gate or doorway at the North Lane end of the passageway had been in place since 1985 and that it had remained locked with keys made available only to residents of Becket Mews.

 

  1. The roadway which I referred to above and the pavement which forms part of that road are maintained at the public expense. It is therefore possible for a member of the public to walk openly from Kirbys Lane to the northern end of the passageway over land which is maintained at public expense. It would then be possible for that person to walk the length of the passageway as there is no barrier or enclosure at the northern end of the passageway. As noted above, however, the gate at the North Lane end of the passageway would prevent that person from gaining access to North Lane unless that person had a key.

 

  1. The main front entrances to 16 and 17 Becket Mews are immediately off the passageway. Given that the passageway was not transferred to the Applicant at the time that the development was completed or subsequently, it seems very likely that the purchasers of 16 and 17 Becket Mews were given express rights of way over the passageway. Although I was provided with a copy of the registered title to 16 Becket Mews, no express right of way was referred to. Notably, in the letter dated 18 June 1985 from Miles of Birchington to the purchasers of 19 Becket Mews, a house which does not have its access taken from the passageway, the writer of the letter says that "you have right of way over the passage".

 

Land Ownership

  1. I was provided with a copy of Title No. K704570 which is registered in the name of the Applicant. The title includes, so far as I can tell, common areas such as pathways and driveways which are not maintained at public expense. The charges register to that title includes reference to a Transfer of part of the land included within the title dated 7 July 1982 and made between Simport Properties Limited and the Applicant. It appears, therefore, that the areas transferred to the Applicant were transferred at some time around July 1982.

 

  1. The title document also shows that the building now known as The Woolstore was removed from the title now owned by the Applicant and was registered under a different title number although the title number is not easy to see on the plan. I was told by Mrs Kensit that the Woolstore has seven flats and that a freehold company was formed to own the freehold interest in the Woolstore, that that company has granted the leaseholders of the flats 999 year leases to replace the 99 year leases from the developer which those lessees held prior to the transfer of the freehold and that the lessees of the Woolstore nonetheless contribute to the service charge levied by the Applicant in relation to the maintenance of Becket Mews and that all lessees of the Woolstore are required to be members of the Applicant. However, this does not mean that they are shareholders in the Applicant as the Applicant is a company limited by guarantee and does not have shares. As far as I can ascertain, residents are "members" of the residents association which is governed by the Applicant company.

 

Steam Packet Yard

  1. As noted above, the passageway was formerly called Steam Packet Passage. This seems to be connected with Steam Packet Yard, an area of land to the east of the passageway which is not part of the Becket Mews development. The Respondents are the freehold owners of a property known as The Winch, 7B North Lane which is registered at the Land Registry under Title No. K982534 and which is within Steam Packet Yard. The passageway is separated from this property by a brick wall which runs the length of the passageway.

 

  1. The Respondents' property is accessed primarily from North Lane where there is vehicular and pedestrian access. However, at the rear of the Respondents' property there is a rear garden with a paved area. At the time of my inspection, there was a wooden gate installed in the brick wall giving access from the rear garden of The Winch directly to the passageway though a difference in levels necessitated two small steps being necessary. The gate had a latch opening half way down and sliding bolts at the top and half way down.

 

  1. In the bundle of documents provided for my use by the parties was a copy of a promotional document produced, it would appear, by the developer of Becket Mews in the early 1980's. It includes a site layout plan clearly based on the architect's plan which appears elsewhere in the bundle. What is notable about the plan is that it appears to show a gap in the solid brick wall adjoining The Winch in exactly the position where the gate now exists.

 

  1. Steam Packet Yard also contains three other properties known as Steam Packet Cottages. Those cottages are on the eastern side of Steam Packet Yard. On the filed plan to K982534 there is a strip of land marked in brown. The strip runs across the back of The Winch and ends at the wall between The Winch and the passageway. Whilst it is not possible to be precise from the plans which I have seen, it appears to me that the end of the strip of land corresponds with the position of the gate in the brick wall separating The Winch from the passageway. The Charges Register to that title shows that the land is subject to rights granted by a "conveyance of adjoining land to the south" dated 29 December 1948. One of those rights is a right of way over the strip of land coloured brown on foot only.

 

This Application

  1. The Applicant claims to be entitled to be registered as proprietor of the passageway by virtue of its adverse possession of the passageway. This is claimed by the Applicant from June 1982, as soon as the Applicant was formed. The Applicant claims to be in possession of the passageway exclusively and, in its Statement of Case, avers that it has "looked after the land of the passageway as an owner would since 1982".

 

  1. In evidence, Mrs Kensit said that the Applicant had been advised to bring this application forward by the developer. What appeared to be concerning the Applicant was, first, that the owners of 16 and 17 Becket Mews (and to an extent 18 Becket Mews where the front entrance is close to but not actually on the passageway) did not want to be observed by people using the passageway and feared for their security and second and specifically in relation to the potential future use by the Respondents, that the Respondents' property had potential for development and expansion and that that might lead to a greater number of people using the passageway.

 

Evidence of Maintenance of the Passageway

  1. The Applicant has produced in evidence a number of documents which the Applicant contends are supportive of its claim that it has "looked after" the passageway since 1982. The first is a service charge account for the year ending 31 March 1997 which shows that on 14 November 1996, the sum of £230.89 was spent on "Gate to North Lane" which I was told was the gate at the end of the passageway. The second is an invoice from a garden and property maintenance contractor dated 27 August 2003 which refers to completing "maintenance to grounds at Becket Mews". The invoice does not refer in terms to the passageway. Third, there is a page from the Applicant's profit and loss account for the year ending 31 March 2004 in which expenses for "Gardening" of £214 (and £366 for the previous year) are shows. Someone has written the words "includes sweeping" in manuscript after the word "Gardening". Again, there is no express reference to the passageway in this document. Fourth, there is a table of sums referred to in the heading an invoice from "Kensit Landscapes" relating to a period between December 2003 and May 2004. It appears to show that "driveways and pathways" were swept but again, there is no express reference to the passageway in the document. The fifth item is an invoice dated 26 March 2013 from a building contractor for lifting block paving and re-laying two areas. The item was accompanied in my bundle by two photographs, the second of which is captioned "2 dropped pavers in the passageway between Becket Mews and North Lane". I do not know when the photographs were taken or whether they originally accompanied the invoice but on the face of it, they appear to show that some work was carried out to two paving stones in the passageway in March 2013. The sixth item is a further invoice dated 18 November 2013 from the same contractor which refers to repairs to a "side gate". It is not clear from the invoice that this is a reference to the gate at the end of the passageway. Finally, there is a page from the Applicant's service charge accounts for the year to 30 June 2014 which shows a reference to "Gardening". Once again the words "includes sweeping" have been included in manuscript.

 

  1. In evidence, Mrs Kensit told me that the "side gate" referred to in the invoice dated 18 November 2013 was the gate at the end of the passageway. She said that the Applicant's gardener would come every fortnight and would regularly weed, sweep and, where necessary, repair the passageway. The Applicant produced a further seven Witness Statements in the bundle but did not call any of the witnesses to give live evidence at the hearing. None of the witnesses was therefore able to be cross-examined by Mr Rogers. At the hearing, I ruled that I would allow those witness statements (and the statement of Mr John Rogers, the First Respondent's brother who owned The Winch from 1996 to 2011) to be admitted as evidence but that I would attach significantly less weight to them because the makers of the statements had not been cross-examined on them. One of the Applicant's statements was made by Susan Margaret Rowan who lived at 6 The Woolstore from 1985 to 1988. In addition, her firm, Rowan & Co acted as accountants to the Applicant from 1999 to 2008. She said that in her capacity as the Applicant's accountant, she accounted for fairly substantial costs in respect of the gate to North Lane and that there were regular costs of maintaining the passageway such as minor repairs and sweeping the pathways.

 

Evidence of Other Control over the Passageway

  1. One important matter relates to the control over the keys to the gate. The letter dated 18 June 1985 from the contractor suggests that keys were provided direct to lessees from the developer. The Applicant contends that it controls access to the gate at the North Lane end of the passageway because only members of the residents association have been given keys to the gate. However, what is not clear from the evidence is how the Applicant came to control that process. Mr Willcox, the owner of 11 Becket Mews, who gave evidence for the Respondents, told me in evidence that many of the occupiers are now short term tenants and that they are given keys for the duration of their tenancies. He also suggested that the keys provided to residents of the Woolstore are provided by the Woolstore freehold company.

 

  1. Whilst it would have been possible for a member of the public to access the passageway from the highway, the Applicant's point was that, in practice, they would not do so because first, there is no means by which members of the public on Kirbys Lane would be able to see North Lane from the north-western entrance to Becket Mews and so would not be tempted to use that route to gain access to North Lane and second, they would not be able to get through the gate at the North Lane end of the passageway. Against that, Mr Willcox said in evidence that he had met members of the public trying to gain access to North Lane using the passageway.

 

  1. The Applicant also pointed to various attempts made by it over the years to control other aspects of the use of the passageway. In March 1990, the minutes of a Council meeting of the residents association show that the then Chairman recorded that he would approach "the Blighs", the then owners of The Winch "informally concerning the replacement of the small fence portion with brick". This appears to be a reference to the gap in the brick wall in the position of the gate. In June 1990, it was recorded that whilst the Chairman had spoken with the Blighs, the portion of wall had not been built. In June 2005, there was a report at the Applicant's AGM that cigarette ends were being thrown into the passageway and it was resolved that Mrs Kensit would write to the occupiers to complain. I have not seen a copy of any letter that might have been sent though Mrs Kensit told me in evidence that she sent one. There is also reference in a separate minute of the same meeting to work done by a builder to "a raised area at the North Lane door preventing wheelchair access".

 

Evidence of Use of the Passageway

  1. The Applicant contends that the members of the residents association have habitually used the passageway to gain access from Becket Mews since 1982. Mr and Mrs Stileman of 4 The Woolstore stated in their witness statement that they have owned their property since October 1999 and have used the passageway "many times over the years". Ms Taylor said in her witness statement that she lived at 17 Becket Mews between May 2009 and August 2012 and that she "accessed the passageway on a daily basis" though this is perhaps unsurprising given that the entrance to her property is on the passageway itself. Ms Harfield is the owner of 12 Kirbys Lane which is within the Becket Mews development. She states in evidence that she uses the passageway on a regular basis during the daytime and occasionally in the evening. Ms Woodroffe's witness statement also states that she uses the passageway 5 to 6 times a week for shopping and visiting purposes. I have no doubt at all that members of the residents association use the passageway to access North Lane.

 

  1. The most contentious issue, it would appear, however, is whether (and if so, the extent to which) the passageway is used by the Respondents. It is common ground that the Respondents are not members of the residents association and do not have keys to the gate at the North Lane end of the passageway. The Respondents' evidence was that they use the passageway to walk north, towards Kirbys Lane and, from there, to the railway station at Canterbury West. In particular, Mr John Rogers' witness statement stated that in approximately 2000, he carried out remedial works to the wall which divides The Winch from the passageway and that in the course of carrying out those works, he replaced the fixed fence panel which was incorporated into the dividing wall with a gate capable of opening and giving access to the passageway. He says that he and his wife used the gate to access the passageway "on occasion". Mr Andrew Rogers, the First Respondent gave oral evidence and confirmed that he and his wife had used the gated access on a regular basis, mostly at weekends. Mr Rogers also said that he had on occasions swept and tidied the passageway to keep it neat and tidy. In a number of the Applicant's witness statements, the witness reported never having seen the Respondents using the passageway in the manner in which they describe. Mr Rogers' response to this was that first, it takes a matter of mere seconds for him to access the passageway and pass along it to reach Beckets Mews and that he rarely encountered anyone on the passageway itself and second, that even if he met anyone, he would be surprised if they recognised him.

 

  1. In my judgment, the Respondents and Mr John Rogers before them have been using the passageway since approximately 2000 to gain access on an occasional basis to Canterbury West station and the town centre. Nothing in the evidence of the Applicants persuaded me that Mr Rogers' evidence was unreliable in this respect. I am not persuaded that merely because a number of Becket Mews residents had not seen the Respondents use the passageway, it follows that they did not do so. Indeed, it seems to me that the evidence which was available to the Tribunal was consistent with the Respondents' evidence. The 1948 Conveyance referred to in the Respondents' title suggests that at some point in the past, a right of way existed over The Winch to reach the passageway. That would be consistent with there being an opening in the wall to give effect to that right of way. The 1980's promotional material suggests strongly that the gap in the wall was retained following the development of Becket Mews. In 1990, it is clear that the Applicant suggested to the owners of The Winch that they replace a fence panel in the gap with a brick wall. There is no evidence that they did so and it appears that the fence panel was still there in 1996 when Mr John Rogers purchased The Winch and remained in place until he replaced it with a gate in approximately 2000.

 

Decision

  1. The passageway is unregistered land. The Applicant must therefore demonstrate that it has been in adverse possession of the land for a period of 12 years. The Applicant must demonstrate that it had a sufficient degree of physical custody and control of the land and that it had an intention to exercise that custody and control on its own behalf and for its own benefit: J A Pye (Oxford) Limited v Graham [2003] 1 AC 419.

 

  1. I have found as a fact that the Respondents and Mr John Rogers as their predecessor in title used the passageway to gain egress and access to The Winch from approximately 2000 onwards. That use was not prevented by the Applicant. Any possession by the Applicant of the passageway after 2000 was not, in my judgment, exclusive. The locking of the gate at the North Lane end of the passageway was not sufficient, at that time, either to prevent the Respondents' predecessors in title from using the passageway alongside the residents of Becket Mews or manifesting an intention to the world to occupy exclusively given that the passageway could be accessed from The Winch.

 

  1. However, what is also clear, in my judgment, is that any use made of the passageway by the Respondents and their predecessors in title after 2000 would not be sufficient to dispossess the Applicant if, by that time, the Applicant could be said to be in possession of the land. In SS Global v Sava [2008] EWCA Civ 1308 Rimer LJ said at Paragraph 74 that if the squatter has taken possession of the land

 

" ... if within nine months - or nine years - of his assumption of possession [the paper title owner] purported to exercise rights of occupation over the land, those activities would not ordinarily negative his prior assumption of possession. He would remain in possession and could and would only be dispossessed if [the paper title owner] ousted him from possession and resumed excusive possession itself, if necessary by bringing proceedings against him"

 

  1. So, if the Applicant had taken possession of the passageway to the exclusion of the paper title owner and the rest of the world between 1982 and 2000, then it would not seem to me to be fatal to its claim to be registered that the Respondents and their predecessors used the passageway after 2000.

 

  1. In my judgment, the Applicant cannot begin to show that it is in physical possession of the passageway until at least June 1985. As noted above, the letter of 18 June 1985 from the contractors shows that it was not until that time that the passageway was said to be "completed" and the gate at the North Lane end of the passageway put in place. One of the puzzling aspects of this case which was not explained in evidence was why the developer chose not to transfer the passageway to the Applicant in 1982 when the remainder of the Becket Mews land appears to have been transferred and why it took until 1985 for the passageway to be "completed".

 

  1. Was there a time following June 1985 when the Applicant could be said to be in physical possession of the passageway? The Applicant's evidence was that lessees used the passageway from 1982 onwards. However, in my judgment, there are two problems in the way of the Applicant in this respect. First, the evidence was that the properties were either sold freehold by the developer or, in the case of flats, the lessees at Becket Mews had 99 year leases taken from the developer. It is therefore difficult to see that the use of the passageway by the lessees could be said to be use on behalf of the Applicant so that the Applicant could be said to be in possession of the passageway. Rather, there was use by a variety of freehold owners of houses or long lessees of various flats within the development for their own purposes. None of them could be said to be in exclusive possession of the passageway. Second, it seems likely that the various freehold owners and lessees were granted express rights of way over the passageway. In the letter dated 18 June 1985 from the construction company, they say specifically to the purchaser of 19 Becket Mews that "you gave right of way over the passage". The owners of 16 and 17 Becket Mews would not be able to access their properties if they had not been granted rights of way over the passage. It is right to record that the right of way has not been expressly recorded on the title to No. 16 though that is not determinative of whether such a right exists. If, as seems to me to be more likely than not, the use of the freehold and leasehold owners of the passageway was attributable to the use of an express easement, then that use of the passageway could not, in my judgment, be used to support a claim for adverse possession. It is not occupation which is adverse to the paper title owner as it is explained by reference to the lawful exercise of a right of way.

 

  1. Additionally, following the transfer of the freehold of the Woolstore to a separate freehold owning company, it would not be possible to say that any use of the passageway by residents of the Woolstore had any direct connection with the Applicant.

 

  1. If it is the case that the actual use of the passageway by freehold owners or leasehold owners of flats within the development could not easily be said to constitute acts of possession on the part of the Applicant itself, are there other ways in which the Applicant could be said to be in physical control of the passageway?

 

  1. The Applicant's case was that it was responsible throughout for the maintenance of the passageway. Support for that proposition can also be found in the June 1985 letter where the contractor states that "The up keep of the passageway is the residence responsibility" [sic]. This appears to be an indication that the developer was "washing its hands" of responsibility for the maintenance of the passageway and there is no record of the developer undertaking any further maintenance of the passageway. However, the evidence of actual maintenance by the Applicant was extremely sparse. There was evidence of work being carried out to the gate at the North Lane end of the passageway in 1996 and again in November 2013. The only evidence of any repair being carried out to the passageway itself (as opposed to the gate) is the repair of two paving stones in 2013. There are other references to sweeping and general maintenance but there are no specific references in those documents to the passageway. In oral evidence, Mrs Kensit referred to sweeping and tidying being carried out every fortnight and as noted above, Ms Rowan's witness statement refers in terms to maintenance between 1999 and 2008. In my judgment whilst it appears clear that over the years, some sweeping and tidying of the passageway has taken place at regular intervals, little actual repair has been carried out. It is, of course, also the case that if, as I believe to be the case, the lessees have rights of way over the passageway, then the works of tidying and maintenance are consistent with the exercise of rights which are ancillary to those rights rather than being evidence of possession of the land.

 

  1. The other means by which the Applicant contends that it controls the land is by means of providing keys to the gate at the North Lane end of the passageway. It seems to me that whilst there is a superficially attractive argument that the Applicant is controlling the use of the passageway by only providing keys to those who are members of the residents association, they cannot, in truth, be said to be in control of the passageway as opposed to controlling the use of the gate at the North Lane end of it. Nothing that the Applicant has done is able to prevent either the paper title owner (whoever that is) or members of the public from accessing the passageway direct from the public highway. The position might be different if the public would have to trespass over land owned by the Applicant and which is not highway land but that is not the case. Members of the public can (and, according to Mr Willcox, do) access the passageway even though they may not be able to reach North Lane.

 

  1. In my judgment, therefore, the extent of the Applicant's physical control over the land is that regular sweeping and tidying and very occasional maintenance of the land has been carried out. In addition, a request was made of adjoining owners not to drop cigarette ends on the passageway. Whilst the principle, advanced in cases such as Powell v McFarlane (1977) 38 P & CR 452 and Prudential Assurance Co Limited v Waterloo Real Estate Inc [1999] 2 EGLR 85, that the physical occupation of the land must be such that the intention to possess the land would be obvious to the paper title owner if he were notionally to inspect the land during the twelve year period of adverse possession has been discredited in Purbrick v London Borough of Hackney [2004] 1 P & CR 34 and Wretham v Ross [2005] EWHC 1259 (Ch), there is no doubt that the acts of physical possession relied upon must be considered objectively to determine whether they are sufficient to establish factual possession of the land. In my judgment, there is not sufficient evidence in this case to show that the Applicant has dispossessed the paper title owner and exercised sufficient control over the passageway that it can be said to be in possession of it. The acts are intermittent and do not alter in any way the passageway. For long periods, the passageway would look, to all intents and purposes, as if nobody was in possession of it.

 

  1. Even if that is not correct and the Applicant can be said to be in sufficient physical possession of the passageway, it is also incumbent upon the Applicant to demonstrate that it has, by its actions, shown the necessary intention to possess the property during the relevant period. Here, there is almost no evidence that the Applicant has shown that intention during the relevant period. First, I note that the initial distribution of keys for the gate at the North Lane end of the passageway was not organised by the Applicant but rather was carried out by the contractor. This was not a case of the gate being erected and locked by the Applicant to enable the Applicant to show that it intended to possess the passageway. It is far from clear at what stage the Applicant became responsible for the distribution of keys to the gate. However, on any view, it cannot be said that the initial "enclosure" of the land, such as it was, was an act carried out by the Applicant. Since that time, whilst the Applicant has sought to control access to the land from the North Lane end of the passageway, it has taken no steps similarly to control access at the other end of the passageway and, once the passageway began to be used by the owners of The Winch, as I have found, in or around 2000, took no steps to prevent that use taking place. The acts of possession such as they were, the routine cleaning and tidying of the passageway and the very occasional repair of the passageway itself, are insufficient evidence, objectively viewed, of an intention to possess the passageway.

 

  1. I have come to the firm conclusion that there is insufficient evidence of adverse possession of the passageway to enable me to direct that this application should succeed. I fully understand the concerns which Mrs Kensit raised on behalf of the Applicant in relation to the security of the properties in Becket Mews. She can take some comfort from the fact that nothing in this decision will, as far as I can see, alter the current position on the ground. Even an intensification of use of The Winch (which is likely to be extremely limited) is very unlikely to have a significant effect on the use of the passageway.

 

  1. I will therefore direct the Chief Land Registrar to dismiss the Applicant's application. Neither party to this reference is currently legally represented. I do not anticipate that either party will wish to make an application for the costs of the reference. I will, however, direct that if either party wishes to make any application in relation to the costs of this reference, they should do so in writing to the Tribunal by 4pm on 10 February 2016. In the absence of any application by either party before that time, there will be no order in relation to the costs of the reference.

 

 

 

 

 

 

 

 

 

Judge Gary Cowen

Dated this 20 th day of January 2016.

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