Land Registry – Adjudicator – Residential development – Appellant fencing off development – Parties disputing ownership of land outside fenced area – Respondents obtaining title to land by adverse possession – Whether adjudicator giving sufficient reasons for decision – Whether adjudicator properly concluding that respondents occupying land without permission – Appeal dismissed
The appellant company carried out a residential development on its property. This included the construction of a row of nine detached houses whose gardens abutted a strip of land that adjoined the driveway of the respondents’ property. This strip of land was approximately two metres wide, and visually appeared to form the right-hand side of the respondents’ driveway.
Following the sale of the houses, the appellant remained the registered proprietor of the strip of land. In June 2003, it sold part of the strip to one of the house owners who subsequently removed part of the original fence and enclosed the adjacent part of the strip as an extension to his garden.
The respondents claimed ownership of the disputed strip of land. A deputy Land Registry adjudicator directed that they be registered as proprietors of the strip on the basis that they had acquired title by adverse possession.
The appellant appealed contending that: (i) the adjudicator had failed to address issues of fact as to the nature and extent of the respondents’ activities on the strip alleged by them to have constituted sufficient acts of possession for the purpose of their claim, with the consequence that his conclusion as to adverse possession had no satisfactory factual basis; and (ii) his conclusion that the respondents’ possession of the strip had not been with the appellant’s permission was based upon a mistake of law. On the facts found, the proper conclusion was that any occupation was with the implied permission of the appellant.
Held: The appeal was dismissed.
It was regrettable that there was no clear express decision or reason regarding the extent of the respondents’ acts of occupation. However, it did not constitute a serious procedural or other irregularity that would render the decision unjust within the meaning of CPR 52.11(3)(b) so as to require a rehearing.
The giving of reasons was an important part of the judicial function since the right of appeal might be impracticable in their absence and because the losing party was entitled to know why it had lost.
An appeal based upon an absence of reasons had to be accompanied by a request to provide further reasons if the trial judge thought fit, so as to minimise the risk and expense of retrials. The appellate court was entitled to ascertain whether the reasons were apparent, by reference not only to the judgment but also to the evidence and submissions adduced and made in the court below.
Where the decision was one of fact, and dependant upon oral evidence rather than a matter of detailed analysis of documents or technical expertise, it might more easily be inferred that the trial judge preferred one version of the facts to another simply because he found one party’s witnesses more reliable. In those circumstances, it was only if, after an inquiry, the appellate court was not satisfied that the reasons were apparent, that there should be a retrial or rehearing: Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; Smyth v Greenhouse Stirton & Co unreported 4 October 1999; Jawad v Rahim unreported 8 December 2000; and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409 applied.
Adverse possession was typically achieved during periods of non-objection or acquiescence by the landowner. The question was whether permission was in fact given to occupy the land, either expressly or by necessary implication. It was not sufficient that the overt acts or demonstrable circumstances were consistent with permission having been given. They had to be probative of it: Batsford Estates (1983) Co Ltd v Taylor [2005] EWCA Civ 489; [2005] 2 EGLR 12; [2005] 33 EG 68 followed.
In the instant case, the adjudicator had erred in law in concluding that the respondents’ belief that they had occupied the strip as of right was fatal to the allegation that it was permissive. However, on the facts, there had been no agreement or permission in respect of access to be implied or inferred to lead to the conclusion that the respondents’ occupation was permissive.
Galina Ward (instructed by Pitman, of Reading) appeared for the claimant; Aaron Walder (instructed by Rokeby Johnson Baars) appeared for the defendants.
Eileen O’Grady, barrister
