Dyer v Terry and another

Dyer v Terry and another[2013] EWHC 1889 (Ch)CHANCERY DIVISION1 July 2013RICHARD MILLETT QC (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)APPROVED JUDGMENTI DIRECT THAT PURSUANT TO CPR PD 39A PARA 6.1 NO OFFICIAL SHORTHAND NOTE SHALL BE TAKEN OF THIS JUDGMENT AND THAT COPIES OF THIS VERSION AS HANDED DOWN MAY BE TREATED AS AUTHENTIC.MR RICHARD MILLETT QC (Sitting as a Deputy Judge of the High Court):Introduction1. This is an appeal by the appellant Mr Barry Dyer (“Mr Dyer”) with the permission of Floyd J granted on 27 February 2013 (who also granted permission to appeal out of time) against the order dated 9 July 2012 (“the order”) of Ms Sara Hargreaves, Deputy Adjudicator to HM Land Registry, in respect of land at Chapel Road, Smallfield, Horley, Surrey, registered under title numbers SY783252 and SY616359. By her order dated 6 December 1012 the Deputy Adjudicator refused permission to appeal.2. The order of the Deputy Adjudicator arose out of an application brought by the Respondents (Mrs and Mrs Terry, or “the Terrys”) to alter the Land Register in respect of some 6 parcels of land (Areas 1 to 6) within the titles to show those areas as removed from Mr Dyer’s titles and re-registered to the Terrys, on the basis that they had acquired title to them by adverse possession. The precise areas were shown on a plan attached to Mr Dyer’s skeleton argument before me prepared by his Counsel, Mr Jefferies, and which was agreed by the parties and used before the Deputy Adjudicator. All of the Areas are open land at the side of a metalled surface of a road or track (“the Road”).3. The Terrys were only partially successful before the Deputy Adjudicator. They succeeded in respect of Areas 2, 4, 5 and 6, although they failed in respect of that part of Area 4 lying to the north of the northwest corner of Baker’s Farm farmhouse (which at the hearing before me the parties defined as “Area 4 North”) and except also in respect of the porch to Baker’s Farm, which Mr Dyer consented should be re-registered to the Terrys’ title. They failed also in respect of Area 3, except that part of it which lay behind a boundary fence. There was, as the Deputy Adjudicator recorded at paragraph 15, no dispute about Area 1. There is no cross-appeal, although there was a late Respondent’s Notice in respect of Area 5 for which, at the hearing, I granted permission to pursue out of time.4. The Deputy Adjudicator’s reasons for her order are set out in a lengthy and detailed reasoned decision (“the Decision”).The conveyancing history5. I take the history from the skeleton argument and Mr Jefferies’ opening submissions on behalf of Mr Dyer, which did not appear to be in dispute. All the land in issue was owned by a Mr Leonard Moody and registered under SY291770. Under a transfer dated 22 October 1970 he transferred to a Mr and Mrs Baker the land which become known as Bakers Farm together with a right of way over the track or road shown brown on the transfer plan. Bakers Farm was registered under title number SY400603. It was then transferred to Mrs Terry on 29 July 1982, and then into the joint names of herself and her husband Mr Terry on 22 October 1987. On 18 November 1988 Mr Moody transferred the land comprising the track to Mr Dyer. It is the verges of this road or track (ie the Road) that comprise the Areas in dispute. The Road was registered under title number SY616359. Bakers Farm comprised land to the east and the west of the Road. On 1 October 2010 the Terrys sold the western part of Bakers Farm to a Mr Eldred, and it is now registered under title number SY401237.Rights by adverse possession: the legal principles6. At the hearing there was a surprising amount of argument about, and analysis of, the relevant legal principles relating to the acquisition of title to land by adverse possession. Little of this analysis was set out by the Deputy Adjudicator. It would assist if I were to set out the basic principles as I understand them from the authorities cited to me.(i) The statutory framework7. It was common ground that the Terrys were entitled to have the register of Mr Dyer’s title altered to remove from his title, and included in theirs, any land which they had acquired by adverse possession before the Land Registration ACT 2002 entered into force on 13 October 2003, by virtue of the saving in Schedule 12, paragraph 18. So one starts with the statutory scheme prior to 13 October 2003.8. Section 15 of the Limitation Act 1980 provides:•   “No action shall be brought by any person to recover any land after the expiration of 12 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.”9. Section 17 provides, subject to section 75 of the Land Registration Act 1925:•   “at the expiration of the period provided by this Act for any person to bring an action to recover land … the title of that person to the land shall be extinguished.”10. Schedule 1, paragraph 1 of the Limitation Act 1980 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 the dispossession or discontinuance.”11. Schedule 1, paragraph 8(1) provides:•   “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.”12. Schedule 1, paragraph 8(2) provides:•   “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.”13. So in summary, the effect of these statutory provisions is that anybody claiming title by adverse possession must show at least 12 years’ continuous and unbroken adverse possession against the registered title owner, such that the latter’s right to recover his land has expired and his title is extinguished. The effect of the Land Registration Act 2002, schedule 12, paragraph 18, is that the relevant period of 12 years must have ended on a date prior to 13 October 2003.(b) The cases14. One then turns to the question, what is adverse possession and what is required to demonstrate it for these purposes? The principal guidance is to be found in the judgment of Slade J in Powell v McFarlane (1977) 38 P&CR 452, at pages 470 to 471, as approved by the House of Lords in J A Pye (Oxford) Limited v Graham [2003] 1 AC 419. From those cases I draw the following principles:•   (1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, since the paper owner is the person with the prima facie right to possession. The law will, without reluctance, ascribe possession to the paper owner or the person claiming through or under him (Powell, page 470).  (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must show that he has both factual possession and the requisite intention to possess (animus possidendi) (Powell, ibid.). These are two separate elements of adverse possession that must be proved in order to displace the presumption in favour of the paper owner, although proof of each will often be made out from the same facts.  (3) As to what constitutes factual possession, subject to one observation to which I will return below, I can quote from Lord Browne-Wilkinson’s speech in Pye at paragraph 41, in which he quotes from Slade J’s judgment on this issue in Powell at page 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 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.”  (4) The last sentence of Lord Browne-Wilkinson’s citation from Powell here is not to be read in isolation from what comes before it, and in particular must I think be read as including the requirement of a sufficient degree of exclusive physical control. Thus simply using or dealing with the land as an occupying owner might have done where no-one else has done so is not of itself enough, and will be equivocal unless what is done quasi occupying owner has been done to a sufficient degree of exclusive physical control. This is clear from that part of Slade J’s judgment in Powell on page 471 omitted by Lord Browne-Wilkinson at the ellipsis in the passage of his speech in Pye I have quoted. It also receives a degree of support from the speech of Lord Hutton in Pye, at paragraph 76 (albeit on the question of intention to possess):  “Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and open to more than one interpretation that those acts will be insufficient to establish an intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”  (5) The case of Red House Farms (Thorndon) Ltd v Catchpole (1977) 2 EGLR 85, a decision of the Court of Appeal which was cited to Slade J in Powell and to the House in Pye, was a case where the land in question was hard to access and could only be used for shooting, which was what the successful claimant for adverse possession had done on it, although not to the exclusion of the paper owner and certainly not all year round (since shooting is a seasonal activity). In the passage in Powell omitted by Lord Browne-Wilkinson in his citation, Slade J referred to the Red House Farms case and treated it as a case of marginal assistance which turned on its own facts. In my judgment, neither Red House Farms nor Powell nor Pye is authority for the general proposition that all that the claimant for adverse possession ever has to show to establish factual possession is that he did what the paper owner would have done on the land had he chosen to occupy it, without regard to the essential element of an appropriate degree of exclusive physical control.  (6) Enclosure of the land by the claimant for adverse possession is a strong factor in favour of factual possession, and that is because of its exclusory nature. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168, at page 169, “Enclosure is the strongest possible evidence of adverse possession” (although as noted by Slade J in Powell at page 478, Cockburn CJ went on to say that it was not indispensable).  (7) So far as the intention to possess is concerned, the claimant for adverse possession has to be able to establish  “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.”  See Pye, per Lord Browne-Wilkinson at paragraph 43, and per Lord Hutton at paragraph 76, quoted above  (8) The intention to possess must be made clear unequivocally to the world, including the owner: see Inglewood Investments v Baker (2003) 2 P&CR 319, at 19 and 20; and see Mayor & Burgesses of the London Borough of Lambeth v Blackburn (2001) P&CR 494, per Clarke LJ at 499.  (9) Only slight acts are required from the paper owner to negative discontinuance of his own possession (see Powell at page 472; Pye at paragraph 31).  (10) Beyond that general guidance, each case must turn on its own particular facts: see e.g. Chapman v Godinn Properties Limited [2005] EWCA Civ 941, at paragraph 28 per Chadwick LJ. This particularist approach has given rise to some often widely differing results. For example, in Chapman the Court of Appeal held (at paragraph 22) that the disputed strip was one in relation to which the owner or person in possession could not be expected to do any more than to tidy up and maintain, by way of mowing and cutting back the shrubs from time to time, whereas in Ellett-Brown v Tallishire Ltd (29 March 1990, Unrep) Lloyd LJ held that the planting of thousands of daffodils to adorn and beautify the disputed land was insufficiently an unequivocal act of possession (see page 3 of the Official Transcript). Each of these cases turned on the particular features which struck each court in the context of other particular features present. They are an object lesson in the dangers of pointing to any particular case and using it as transposable authority. They are no more than illustrations of the wider principles in action. Accordingly, a tribunal of fact asked to determine whether factual possession and the requisite intention to possess has each been made out has a degree of latitude within the factual parameters of the case before it which the evidence properly establishes.15. This last observation brings me to a further principle, which is the guidance as to how appellate tribunals should approach decisions of the instant kind made by Adjudicators or Deputy Adjudicators on a reference from HM Land Registry.(c) The correct approach on appeal16. In Wilkinson v Farmer [2010] EWCA Civ 1148, Mummery LJ said (at paragraph 25):•   “The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions.”17. As Newey J pointed out in Orme v Lyons [2012] EWHC 3308 (at paragraph 13), appellate courts should not interfere with an Adjudicator’s finding simply because it might have taken a different view. He said (at paragraph 14) that even though an appellate court should be readier to interfere if the Adjudicator has erred in drawing inferences from primary facts than in respect of the primary findings of fact themselves, nonetheless even in that former respect the Adjudicator is better placed to make an assessment, being better placed to assess factual questions. I agree.18. With these legal principles in mind I now turn to the instant case. I will approach the Decision, and Mr Dyer’s attack on it, Area by Area.Area 4 South19. The Deputy Adjudicator dealt with Area 4 at paragraphs 27 to 32 of the Decision. Paragraphs 27 to 31 concern Area 4 North, in respect of which the Terrys failed to establish adverse possession, and paragraph 32 concerns Area 4 South, where they succeeded. I would note at this point that the Deputy Adjudicator found that the case for Area 4 North rested on mowing the grass and picking up litter (see Decision, paragraph 28) and that the Terrys had not established factual possession. Mr Jefferies placed great emphasis on this aspect of the Deputy Adjudicator’s reasoning in respect of Area 4 North because he said that she took an inconsistent approach to the same facts when it came to Area 4 South.20. So far as Area 4 South is concerned, this runs south from the north-west corner of Bakers Farm farmhouse, past the frontage of the house itself, and south to where it meets Area 2. The Deputy Adjudicator concluded that the Terrys had proved their case on the whole of Area 4 South on the basis of the evidence. She relied on the fact, first, that the area immediately in front of the house (from the front wall boundary to where the verge meets the surface of the road) had been cultivated as a garden area, and that that was the obvious thing for any owner to do with it. She also relied, secondly, on the fact that although Mr Dyer had paid contractors to strim and maintain Area 4, for which he sought reimbursement from the Terrys (and for which he had to sue them on several occasions in the Reigate County Court, each time successfully), he could not adduce evidence to show that the contractors had actually maintained that area in front of the house. She said that Mr Dyer’s main line of attack was that the Terrys had not shown that they had cultivated any of Area 4 as a garden. She found that they had, and that that was sufficient to acquire title, relying on Chapman and Jourdan on Adverse Possession at paragraph 13.30.21. Mr Jefferies attacks that conclusion on the basis that the Deputy Adjudicator got the facts wrong and failed to apply the evidence consistently with her approach to Area 4 North, and that anyway Chapman was distinguishable. As to her approach to the facts, Mr Jefferies’ principal complaint was that the Deputy Adjudicator had failed to take account of an admission made by Mr Terry in cross-examination that the verges in respect of which he claims ownership were verges in respect of which work was done by Mr Dyer’s contractors and for which Mr Dyer had got money judgments against the Terrys. He also relied on Mr Terry’s evidence that he had not assiduously maintained the roses that he had planted in front of the house.22. Mr Terry had said in his witness statement (paragraph 12) that he and his wife alone had cared for the grass and trees and picked up litter along the verges of the whole of Area 4, including Area 4 South. However, this turned out not to be quite true, as his cross-examination revealed, not least because of the fact that Mr Dyer had paid contractors to maintain some of the verges of Area 4 (North and South) and successfully recovered reimbursement from the Terrys. Indeed, this was one of the main reasons why the Deputy Adjudicator rejected the Terrys’ claim to Area 4 North.23. However, a closer examination of the evidence shows two critical things. First, Mr Terry’s admission about maintenance by Mr Dyer’s contractors was not unqualified. He said that “some of the verges involved in the application were those in respect of which Mr Dyer’s contractors had carried out the maintenance. He did not admit that all of them were. Which were and which were not was not explored with him. Secondly, Mr Dyer’s evidence was that although he thought that his contractors had maintained Area 4 South including that part of it immediately in front of the house, he candidly admitted not only that he had never used that part but also that he had never attended and seen his contractors maintaining that part. He was not credibly able to challenge the Terrys’ evidence that it was they and they alone who had maintained and cultivated as a garden the part of Area 4 South immediately in front of the house.24. To the extent of that part of Area 4 South, it seems clear to me from the evidence that the Terrys did maintain it as a garden by planting roses and mowing the small patches of grass immediately in front of the rose bushes and adjacent to the porch and path to the front door, up to where they met the Road. Mr Jefferies urged on me the point that if in the Ellett-Brown case the planting of a host of beautifying daffodils was insufficient to establish factual possession, then a fortiori a few ill-kept roses. Mr Dray, for the Terrys, urged on me the botanical difference between daffodils, which one plants and leaves to flower, and roses, which require attention, and also the rather lower expectations of standards of maintenance that one can see from the Chapman case. These submissions were diverting but ultimately unhelpful. In the end it is a question of fact and degree. To my mind, the fact that the Terrys cultivated the area in front of the house as a garden, whether they did so well or badly, energetically or casually, indicated physical exclusion of Mr Dyer, and intention to possess, to a sufficient degree. It is also relevant that there was little if anything else that one could do with the strip of land other than to use it as a rudimentary front garden. The marked comparison between this part of Area 4 South immediately in front of the house and the remainder of Area 4 South, to which I turn below, serves to fortify this conclusion.25. Although it is true that in their Defences to the Reigate County Court actions the Terrys did not dispute Mr Dyer’s paper title to Area 4 South or any part of it, I am not myself persuaded that this is of any real moment given that they were not boundary disputes.26. To the extent of the verge in Area 4 South immediately in front of the house, therefore, the Deputy Adjudicator’s decision is in my judgment unimpeachable.27. However, the Deputy Adjudicator did not stand back and consider what evidence there was to justify that same conclusion in respect of the rest of Area 4 South that runs to the south of the front wall to the house to where it meets Area 2. As to that part of Area 4 South, the Terrys did not claim to have carried out acts of cultivation. Mr Terry said in his cross-examination that his horticultural activity was limited to the area immediately in front of the footprint of the house. Although he said that the rest of grass verge was strimmed and maintained, he also appears to accept that Mr Dyer’s contractors had strimmed and maintained them (and that they both had done so). Unlike the verge immediately in front of the house, I see no basis in the evidence on which the Deputy Adjudicator could conclude that Mr Dyer’s contractors had not (or not also) carried out acts of maintenance of those areas. Even if the Terrys had carried out strimming and tidying from time to time, then consistently with her approach to Area 4 North, that would not have been unequivocally enough to evidence a sufficient degree of exclusive physical control of the rest of Area 4 South or an intention to possess it.28. There was, therefore, insufficient evidence on which the Deputy Adjudicator could find that the Terrys had established factual possession or the requisite intention to possess that part of Area 4 South to the south of the house. The evidence before her demanded that that distinction be made, and she did not make it. Having considered her conclusion as to Area 4 South with the due weighed deference, in my judgment her failure to consider the distinction led her into error in respect of that part of Area 4 South.29. Accordingly, I would allow Mr Dyer’s appeal in respect of Area 4 South except that part immediately in front of the house, and I would set aside the Deputy Adjudicator’s order to that extent.Area 230. The Deputy Adjudicator dealt with Area 2 at paragraphs 16 to 25 of her Decision. She divided up her analysis of Area 2 into three periods. The first period was from 1982 to 1988, when part of Area 2 provided access to a brick-built stable block and which was occupied by a muck heap and a substantial trailer to remove the muck. The Deputy Adjudicator concluded (paragraph 17 of the Decision) that during that period it was clear that the Terrys were in factual possession with the requisite intention to occupy. Mr Dyer did not seek to challenge her conclusions in respect of the 1982-1988 period.31. The second phase was 1988-2005, and the third was from 2005 to date. As the Deputy Adjudicator said, the Terrys had to make out their case by reference to the period 1988-2003 because of the transitional provisions of the Land Registration Act 2002. During this phase the brick-built stable block was replaced by a wooden stable block at a right angle to the Road and with no relevant access to the Road. The Deputy Adjudicator concluded that the Terrys had made out their case as to adverse possession to Area 2 during this second phase. She appears to have based herself on numerous pieces of evidence but three things in particular: first, the position of the wooden stable block and the removal of the concrete apron; secondly, access for maintenance; and thirdly, parking.32. As to the position of the wooden stable block and the concrete apron, the Deputy Adjudicator found that the Terrys positioned the wooden stable block on part of Area 2 to suit themselves and partly on the concreted area of Area 2 (Decision paragraph 18, 21) leaving only an area of 4’ 6” between the stables and the Road. She concluded that this was sufficient to establish factual possession and to evince an intention to possess during the second phase, when taken with the first phase and looked as a whole. She also concluded that certainly Mr Dyer was never in possession. Mr Jefferies criticised this conclusion but in my judgment the Deputy Adjudicator was quite entitled to come to that conclusion on the evidence before her. In particular,•   (i) the fact that the wooden stables were built so substantially on Area 2, and in line with the west wall of the farmhouse, is strong evidence to support exclusive physical possession of the land it occupies and an intention to do so. Mr Jefferies said that this was irrelevant because there is no claim to the land under the stable block but I consider that the Deputy Adjudicator was entitled to conclude that it colours whether there is factual possession and intention to possess the rest of Area 2;  (ii) as to that part of Area 2 not covered by the wooden stable block, the concrete apron was torn up. Breaking up the surface of the land, or at least replacing the surface with hardcore, is strong evidence of factual possession: see Jourdan paragraph 13.30; 13.59 and Chapman at paragraph 28;  (iii) part of Area 2 in front of the original brick stables had been used for a muck heap and for permanently standing a substantial trailer with which the muck was removed (Decision, paragraph 17). That was conceded by Mr Dyer as an act of adverse possession in the period to 1988 at least for where the muck heap stood (see paragraph 36 of his skeleton argument). The photographs taken during the 19821988 phase show that the trailer was then in position (one can clearly see the trailer hitch) between the west wall of the stables and the Road.33. As to maintaining access over Area 2, Mr Jefferies said that the Deputy Adjudicator erred in law because the evidence was equivocal. He said that maintaining the access might equally be referable to the right of way; and it is well established that the grant of an easement carries with it the right to the dominant owner to improve or maintain the servient land: see Gale on Easements, paragraph 9-108. But this to my mind ignores the fact that that part of Area 2 comprising the concrete apron was not improved, but torn up and turned over to grass or hardcore, and that was a substantial interference with the land. In relation to the other parts of Area 2 used for access, they were cleared and kept clear for the purposes of storage of tools, ladders and materials and access for maintenance of the wooden stables. On its own, I might have been tempted to agree with Mr Jefferies that these matters were equivocal, in that they constituted activity that was not only transient but also activity of maintaining the boundary feature. However, when taken with the other activities in respect of Area 2 it is I think further supporting evidence of factual possession and intention to possess that part of Area 2. Unlike Area 4 there is no clear bright boundary between separate elements of activities within Area 2 that would enable the Deputy Adjudicator, or me, to find that proof of factual possession or intention failed in respect of any particular part. Furthermore, the submission that maintenance of the wooden stable block was simply maintenance of the boundary feature and so did not in law amount to an act indicating exclusive control over the land (see Jourdan, paragraph 13.18) rather assumes the conclusion of where the boundary is.34. As to parking, Mr Dray conceded that the Deputy Adjudicator overlooked the admission made by Mr Terry that the area between the stable and the Road was never used for parking. Accordingly, her factual finding at paragraph 20 of the Decision to that effect was wrong, and to the extent that she took that into account in her general assessment of Area 2 she was in my judgment wrong to have done so. Nor do I think that the evidence of parking elsewhere in Area 2 from time to time is enough to prove factual possession or an intent to possess Area 2.35. However, even if one removes the parking from the fact pattern, I think that the Deputy Adjudicator had enough evidence to justify her primary findings of fact and that she did not err in law in applying those findings to reach her conclusions. In addition, it was not wrong of her to look at the cumulative effect of multiple acts and she cannot be criticised for not compartmentalising each individual activity and treating it as self-standing. She was also right to look at the activities on Area 2 in phase 2 in comparison to and in the light of the activities during phase 1, when it is conceded the Terrys had shown adverse possession, notwithstanding the differences in quality of use. She concluded at paragraph 25 of the Decision that there was a consistent pattern of usage by Mrs Terry from 1982 to 2005, although it differed in degree in the phase 1988 to 2005. She was entitled to arrive at that conclusion on the evidence she had.36. I would therefore uphold the Deputy Adjudicator’s conclusions and dismiss the appeal in respect of Area 2.Area 537. The Deputy Adjudicator dealt with Area 5 at paragraphs 33 to 35 of her Decision.38. The Deputy Adjudicator relied first on evidence given by Mr Dyer in earlier proceedings before Deputy Adjudicator Ann McAllister (REF/2006/0557) in which Mr Dyer said, in a witness statement, that “[Mr Terry] parks vehicles on the eastern side of the wall. The wall has always been, for as long as I know, the boundary between Mr Terry’s land and our land.” The wall marked the western boundary between the land in the Terrys’ paper title (until it was sold to Mr Eldred in 2010) and land in Mr Dyer’s paper title.39. There are two difficulties with reliance on this as an admission against Mr Dyer’s interest that I can see. First, the Deputy Adjudicator overlooked paragraph 11 of Deputy Adjudicator McAllister’s decision in which she held that the eastern boundary of the land in question (defined as the Western Land) was in line with the south-eastern corner of the Barn which lies to the north. She said nothing about the land between that line and the Road. So Deputy Adjudicator McAllister did not consider that any part of Area 5 was land owned by the Terrys. Secondly, it is impossible to see on which side of the westernmost edge of Area 5 Mr Dyer said (and Deputy Adjudicator McAllister accepted) that the Terrys parked. Mr Dyer’s admission that the Terrys parked on the eastern side of the wall is of no probative value unless it was clear that he accepted that the Terrys parked on that part of the land to the east of the wall within Area 5, which he did not. Further, I cannot see how his admission that the wall marked the boundary between his land and the Terrys’ land is of much assistance in the current References not least given the conclusion by Deputy Adjudicator McAllister as to where the eastern boundary was. Before the Deputy Adjudicator he was cross-examined about his previous statement and he was asked why he did not qualify his evidence to say that part of the land to the east of the wall (ie Area 5) was his, and he said that the opportunity to do so did not arise. If what he meant by that was that it was not relevant then he was right. His earlier admission was, moreover, at best equivocal given that he did not distinguish between parking to the east and to the west of the easternmost boundary of the Western Land. In my judgment, the Deputy Adjudicator had no fair basis on which to reject his answer in cross-examination out of hand and should have weighed his evidence in his earlier witness statement far more carefully in its context and not held it against him. To that extent she was wrong and misdirected herself, not least given that she had overlooked an important element of Deputy Adjudicator McAllister’s decision.40. However, this was not the only basis for the Deputy Adjudicator’s decision. She also relied on the fact that between 1982 and 1988 Area 5 was enclosed by a fence and used as an overspill paddock as part of Mrs Terry’s equestrian activities. In 1988 the fence was taken down and the area was partly laid to hardcore and used for parking. She held that it was used for activities which given its nature and size one would ordinarily expect from the paper owner. She held that the Terrys had acquired title to Area 5 by adverse possession by 1994.41. Mr Jefferies criticises this conclusion on the basis that, although it was fenced up to 1988, talking the fence down was a relinquishment of adverse possession, after which there was only parking. There was nothing to stop Mr Dyer parking there, and indeed he did so to take photographs. He said that the evidence to support a case of parking to a sufficient degree to amount to exclusive physical control was exiguous. He said that the case was indistinguishable from Central Midland Estates v Leicester Dyers Ltd [2003] [2003] All ER (D) 141 and Tennant v Adamczyk [2006] P&CR 28 where even regular acts of parking on open land were held not to be enough to amount to adverse possession.42. These are powerful objections but in the end I consider that the Deputy Adjudicator had enough evidence to reach the conclusion she did.43. First, the evidence as to parking was not as scant as Mr Jefferies submitted. Mr Terry was very clear in his oral evidence that after the fence was taken down it was concreted and used for parking lorries, horseboxes and vehicles. The Deputy Adjudicator was quite entitled to conclude that Area 5 was in regular use as a car park. The aerial photograph provides some support for that conclusion: although it is (literally) a snapshot on a random day, the fact that there was parking on that day tends to suggest that it was a regular occurrence rather than irregular one-off acts. Although I myself might have reached a different conclusion on that evidence, that is not enough to enable me to disturb her findings.44. Secondly, the Deputy Adjudicator was entitled to view the acts of parking in light of the previous activities in the land, including the fact that it was fenced. Although removing the fence removed the continuing strong basis for concluding that the Terrys were exercising exclusive physical control over the land, it did not of itself amount to discontinuance of possession and so did not of itself “break” possession. Indeed, the act of removing the fence was itself consistent with the exercise of exclusive physical control over the land, and viewed in that light the later acts of regular parking should be seen as a change of use but not so significant a change as to put an end to the Terrys’ adverse possession. Clearly, the opening of the land allowed Mr Dyer to exercise a competing possession but the Deputy Adjudicator concluded (Decision, paragraph 34) that he did not do so and the extent of his own parking on the land was not so extensive as to justify any other conclusion.45. Thirdly, the Deputy Adjudicator took into account, as she was entitled to, the size and nature of the land within Area 5. It was small, opposite the main farmhouse, and was used in the way that one would expect. She was also entitled to rely on the fact that the Terrys believed that Area 5 belonged to them, to such an extent that they sold it as part of the paper title sold to Mr Eldred in 2010.46. Fourthly, it does appear from the photographic evidence in support of the Respondent’s Notice, that at least at times during the period 1988 to 2005 that there were posts and tape along the side of the Road bounding Area 5. The photographs I was shown are dated 2000-2001 and clearly show this. Although I take Mr Jefferies’ point that the post and tapes were of a temporary nature, and that the line in 1994 must establish where the boundary is, I do consider that this is some further relevant evidence, should further evidence be needed, to support the Deputy Adjudicator’s conclusion that factual possession of, and intention to possess, Area 5 continued after the solid fencing was removed in 1988. However, it is not so important as to make any material difference to my conclusions.47. In summary, looking at the evidence as a whole, I consider that the Deputy Adjudicator was entitled to reach the conclusions on adverse possession of Area 5 that she did. The parking cases relied on by Mr Jefferies turn on their own facts, as all cases in this field must, and the facts in this case, based on the evidence, are sufficiently different in context and degree to have permitted the Deputy Adjudicator to distinguish them. I cannot see that she erred in doing so. Nor do I consider that the parking on Area 5 is referable to the easement, or even arguably so, as Mr Jefferies submitted. A right of passage does not ordinarily include a right to park: see Gale at paragraph 9-129 and, for example, J & O Operations Ltd v Kingston and St Andrew Corpn [2012] P&CR 4, at 18 (PC). His reliance on the decision of the Court of Appeal in William Sindall plc v Cambridgeshire CC [1994] 1 WLR 1016 was misplaced because the case had nothing to do with parking but was about the use of a sewage pipe. At page 1024G-H Hoffman LJ said that allowing sewage to pass down the pipe was not an act of possession for the purposes of adverse possession, and that use of land as a right of way does not become an act of possession because no one else goes upon the land.48. I would therefore uphold the Deputy Adjudicator’s conclusions and dismiss the appeal in respect of Area 5.Area 649. The Deputy Adjudicator dealt with Area 6 at paragraph 36 of her Decision.50. It is not easy to discern the primary findings of fact made by the Deputy Adjudicator on which she based herself. She appears to have relied on the fact that until 2010 the Terrys owned and used the barn the frontage and curtilage to which Area 6 formed part; and on the fact that there was access to it which crossed Area 6. She also said that there was no evidence that Area 6 was maintained by anyone other than the Terrys, and that bearing in mind its width, location and lack of potential for user for anything other than access to the barn and for parking and storage of materials as and when required, it was “obvious” that the only people in possession were the owners of the barn. Essentially, the Deputy Adjudicator inferred a sufficient degree of exclusive physical control of Area 6 simply from the position and use of the barn.51. In my judgment these facts were not enough to allow the Deputy Adjudicator to conclude that the Terrys had proved factual possession of Area 6. The absence of any clear findings of primary fact makes her conclusion all the more unsafe. Mr Dray was forced in his skeleton to characterise the relevant factual findings as “implicit”. He sifted out four factual bases for her conclusion, namely (i) use of Area 6 to access the barn; (ii) maintenance of Area 6 by cutting the grass; (iii) parking a horsebox and trailer on it and (iv) storage of materials as and when required.52. As to the use of Area 6 for access to the barn, it is plain from the plan that the whole of Area 6 was not put to this use, and it is hard to see from the plan precisely which part was used for that purpose. Moreover, I cannot see how habitual passage and re-passage over open land would, at least in the circumstances of this case, provide a sufficient degree of exclusive physical control over it, and the Deputy Adjudicator did not explain how she thought it could. As Hoffman LJ said in William Sindall at page 1024G-H, use of land as a right of way does not become an act of possession because no one else goes upon the land. The fact that Area 6 formed the frontage and curtilage to the barn is not enough.53. As to maintenance of Area 6, the Deputy Adjudicator couched her finding in negative terms, that there was no evidence that it was maintained by anyone other than the Terrys. She did not identify the evidence on which she relied for the implicit finding that the Terrys did maintain Area 6, but it can fairly be assumed that the Deputy Adjudicator had in mind the evidence given by Mr Terry that he used “it” as a lawn and would cut the grass in the summer every second week. However, on closer analysis Mr Terry’s evidence was directed to photograph 39, which is a patch of grass right in front of the barn, which is outside, or very largely outside, Area 6. He went on to explain that he did not mow or maintain the grass to the south of the barn, which is a very substantial part of Area 6, and was not clear as to how much of the area right in front of the barn he did mow. In my judgment the primary evidence was that Mr Terry did not in fact mow and maintain most of, if not any of, Area 6, and if he mowed any part of it, it was wholly unclear as to how much. The Deputy Adjudicator’s finding of maintenance by the Terrys was therefore against the evidence, or at best based on insufficiently clear evidence.54. As to parking, the Deputy Adjudicator made no primary finding of fact that the Terrys did park on Area 6. She said that she bore in mind the potential for parking. That is not a sufficient finding of fact to justify the conclusion that the Terrys had established a sufficient degree of exclusive physical control of Area 6. Mr Terry said that Mrs Terry always parked a horsebox and vehicles “there”, but that evidence was equivocal as to where the “there” was, whether within or outside Area 6, and the Deputy Adjudicator did not seek to investigate exactly where Mr Terry meant. Given that Area 6 is small in comparison to the wider area around the barn it is entirely possible that his reference to “there” was to land outside Area 6.55. As to storage, the Deputy Adjudicator again made no primary finding of fact that the Terrys did store things on Area 6. She said that she bore in mind the potential for storage. There was no evidence of storage of anything on Area 6 by the Terrys.56. Even taking into account, as I do, the need to accord the Deputy Adjudicator due weighed deference, the lack of any clear findings of primary fact by the Deputy Adjudicator together with the absence of any cogent evidence to support any primary findings of fact which would justify a conclusion of factual possession mean that in my judgment the Deputy Adjudicator erred in concluding that the Terrys had made out their case to adverse possession of Area 6.57. I would accordingly allow Mr Dyer’s appeal in respect of Area 6 and set aside the Deputy Adjudicator’s order in respect of Area 6.Disposition58. It follows that I shall allow Mr Dyer’s appeal in part as to Area 4 South and entirely in respect of Area 6, and I shall dismiss his appeal in respect of Area 2 and Area 5. I would ask counsel to agree a minute of order and I will hear further argument if necessary on any questions of costs.