Adverse possession — Permission — Evidence — Application for registration as proprietors of land — Adjudicator allowing application on ground of adverse possession — Whether sufficient reasoning on issue of possession — Whether occupation with permission of registered owner
Between 1983 and 1986, the appellant company constructed a row of nine detached houses on its property. The gardens of the houses were fenced along the rear, separating them from a strip of land that was approximately 2m wide and covered with natural vegetation. Visually, the strip appeared to form the right-hand side of the driveway of the respondents’ adjoining property. However, it in fact lay within the appellant’s registered title. The appellant proceeded to sell the houses but it retained the strip. In 2003, it sold part of the strip to the owners of one of the detached houses, who moved their part of the rear fence to enclose it as an extension to their garden. The respondents thereupon applied to be registered as proprietors of the strip on the ground that they had acquired title to it by adverse possession. They gave evidence that they had believed themselves to be the owners of the strip and had, from 1986, planted trees, shrubs and wildflowers on it and maintained it as a rustic border to their driveway. There was also evidence that the positioning of the fence along the rear of the detached houses had been determined by agreement between the appellant and respondents in 1986.
The Land Registry adjudicator allowed the application and directed that the respondents should be registered as proprietors of the strip. In his decision, he made no express findings as to the respondents’ acts of possession but summarised their case on that issue and went on to find that their use had not been with the appellant’s permission since they had occupied the land thinking that they did so as of right. The appellant appealed, contending that: (i) the adjudicator had failed to address issues of fact as to the nature and extent of the respondents’ alleged acts of possession, such 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.
Held: The appeal was dismissed. (1) Although the giving of reasons is an important part of the judicial function, the appellate court is entitled to ascertain whether the reasons are apparent by reference, not only to the decision under appeal but also to the evidence and submissions adduced below. Reasons can be implicit, particularly where the decision is one of fact depending upon oral evidence, rather than a matter of detailed analysis of documents or technical expertise, such that it can more easily be inferred that the reason for preferring one party’s version of facts to that of another was merely that that party’s witnesses were found to be more reliable. It was implicit in the adjudicator’s decision that he had decided to accept the respondents’ evidence as to the extent of their occupation of the strip. Accordingly, no serious procedural or other irregularity had occurred within the meaning of CPR 52.11(3)(b) such as to require a rehearing. (2) Where it is argued that possession was not adverse because it was with the permission of the landowner, it is necessary to show some overt act by the landowner or demonstrable circumstances from which the inference can be drawn that permission was in fact given. Mere acquiescence by the owner is inadequate. Further, it is not sufficient that the overt acts or circumstances relied upon are consistent with permission having been given; they must be probative of it. Although 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 their occupation was permissive, no permission could be implied or inferred on the facts of the case. It is not uncommon for landowners to maintain screens of natural vegetation along, but within, their boundaries for the purposes of reducing the visual effect upon neighbours of developments being carried out on their land. The 1986 agreement to build an artificial fence behind, rather than in front of, the natural screening on the strip did not lead to the conclusion that the appellant had thereby given permission to the respondents to occupy and possess that strip.
The following cases are referred to in this report.
Batsford Estates (1983) Co Ltd v Taylor [2005] EWCA Civ 489; [2005] 2 EGLR 12; [2005] 33 EG 68
English v Emery Reimbold & Strick Ltd; DJ&C Withers Farms Ltd v Ambic Equipment Ltd; Verrechia (t/a Freightmaster Commercial) v Commissioner of Police of the Metropolis [2002] EWCA Civ 605; [2002] 1 WLR 2409; [2002] 3 All ER 385Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [2000] 1 All ER 373
Jawad v Rahim Unreported 8 December 2000, CA
Lambeth London Borough Council v Rumbelow Unreported 25 January 2001
Pye (JA) (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419; [2002] 3 WLR 221; [2002] 3 All ER 865; [2003] 1 P&CR 10
Rowley v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1040 (Admin); [2003] 2 P&CR 27
Smyth v Greenhouse Stirton & Co Unreported 4 October 1999
This was an appeal by the appellant, Hicks Developments Ltd, against a decision of Professor Robert Abbey, sitting as a deputy Land Registry adjudicator, allowing an application by the respondents, Thomas Chaplin and Joyce Chaplin, to be registered as proprietors of a strip of land on grounds of adverse possession.
Galina Ward (instructed by Pitman, of Reading) appeared for the appellant; Aaron Walder (instructed by Rokeby Johnson Baars LLP) represented the respondents.
Giving judgment, Briggs J said:
[1] This is an appeal from the order of Professor Robert Abbey, sitting as a deputy Land Registry adjudicator, made on 9 June 2006, whereby he directed the Chief Land Registrar to give effect to the application of Mr Thomas Chaplin and his wife, Mrs Joyce Chaplin, to |page:2| be registered as proprietors of a strip of land adjoining their property, known as Rushey Mead, Cutbush Lane, Lower Earley, Reading, RG6 4UU, upon the basis that they had, by 1998, acquired title to it by adverse possession from its then registered proprietor Hicks Developments Ltd (Hicks). Part of the disputed strip was transferred in 2003 by Hicks to the owners of an adjoining property, known as 9 Red House Close, Lower Earley, who themselves transferred it to Mr Stephen Hillman and his wife Mrs Patricia Hillman. Both Hicks and Mr and Mrs Hillman opposed Mr and Mrs Chaplin’s application, and were jointly represented by counsel at the hearing before the adjudicator. This is Hicks’ appeal, in which Mr and Mrs Hillman have taken no part.
[2] Mr and Mrs Chaplin’s property (Rushey Mead) consists of a dwelling-house and surrounding land, roughly triangular in shape with a driveway running from the northern apex of the triangle in a north-west direction for a little less than 200m to a junction with Cutbush Lane. The disputed strip is approximately 2m wide and adjoins the driveway immediately to the south-west of it. Prior to 1983, the strip formed the north-eastern section of a large property known as the Red House. Between 1983 and 1986, Hicks carried out a residential development on that property, which included the construction of a row of nine detached dwelling-houses with gardens abutting the strip. The gardens were all separated from the strip by the erection by Hicks of a wooden close-boarded fence along the entire south-western edge of the strip, in around 1986. Following the sale of those dwelling-houses, Hicks remained, until June 2003, the registered proprietor of the strip itself, until selling that part of it lying behind 9 Red House Close (one of those dwelling-houses) as I have described. The removal of that part of the original fence lying behind 9 Red House Close and its replacement with fencing enclosing the adjacent part of the strip as an extension of the garden to that property was the casus belli that led to Mr and Mrs Chaplin’s application and, in due course, to this appeal.
[3] Visually, at least prior to 2003, the whole of the strip would have appeared to a visitor to Rushey Mead to have formed the right-hand side of the driveway to that property, consisting of a dry ditch next to the hard surface of the driveway and a line of vegetation consisting of a number of trees and rural hedgerow plants, largely, but not entirely, obscuring the fence separating the driveway from the housing development to the south-west. The driveway was gated at its north-western junction with Cutbush lane.
[4] Hicks’ appeal is based upon two grounds. First, it is said that the adjudicator failed to address issues of fact as to the nature and extent of the activities of Mr and Mrs Chaplin on the strip, alleged by them to have constituted sufficient acts of possession thereof for the purpose of their claim, with the consequence that his conclusion that they had acquired title by adverse possession rested on no satisfactory factual base. Second, it is said that the adjudicator’s conclusion that Mr and Mrs Chaplin’s possession of the strip had not been with the permission of Hicks was based upon a mistake of law and that, on the facts that he found, and additional facts that he should have found, the proper conclusion is that such occupation of the strip, as there was by Mr and Mrs Chaplin, occurred with the implied permission of Hicks.
[5] The way in which the adjudicator expressed his decision makes it impossible to address those two grounds of appeal in entirely watertight compartments. It is necessary, first, for me to describe the pleadings and evidence deployed at the hearing before him, so that his method of deciding the case in a relatively terse written decision may be understood.
[6] Mr and Mrs Chaplin conducted the case before the adjudicator without legal representation. They relied upon a detailed “Statement of the Case” dated 1 June 2005, which in turn referred back to and relied upon a statutory declaration by Mr Chaplin dated 2 June 2004, together with reference to relevant documents. Mr Chaplin’s statutory declaration was taken as his evidence-in-chief. Mrs Chaplin briefly supported him orally, and both were cross-examined.
[7] For the appellant, both Hicks and Mr and Mrs Hillman served statements of case (in the case of the Hillmans, in the form of a letter from their solicitor). Hicks relied upon two witness statements by Mr John Leslie Hicks, its chairman. Mr Hillman also gave evidence, and a letter from Mrs Beverley Phillips (one of the predecessors in title of the Hillmans to 9 Red House Close) was also relied upon.
[8] Ms Galina Ward, of counsel, appeared for both groups of respondents before the adjudicator (and on appeal for Hicks). She provided a written skeleton argument and a list of issues for the assistance of the adjudicator. Both Mr Hicks and Mr Hillman were cross-examined.
[9] Mr and Mrs Chaplin’s evidence as to their use and occupation of the disputed strip from and after 1986 was, in summary, that believing themselves to be the owners of it, they had planted trees, shrubs and wild flowers on it, removed dead elm trees and generally maintained and kept it as a rustic (as opposed to manicured) border to their driveway.
[10] Hicks’ case (and Mr Hicks’ evidence) was that there had been no significant maintenance of the strip, by Mr and Mrs Chaplin or by anyone else, visible on Mr Hicks’ inspections of the strip during the relevant period, and that it was not aware of any planting, whether of trees, shrubs or otherwise carried out by Mr and Mrs Chaplin on the strip. Mr and Mrs Hillman supported Hicks’ denial that there had been any significant maintenance of the strip, both by Mr Hillman’s own evidence (which did not extend back before 2003) and by reference to a letter from their predecessor, Mrs Philips, dated September 2004, in which she stated that there had not been any maintenance of the strip during the previous nine years during which she and her husband had been the owners of 9 Red House Close. Indeed, it was the respondents’ case that the reason for the Philips’ purchase of that part of the strip lying behind their garden was that it was not being maintained by anyone.
[11] As to the necessary intention to possess, (in relation to which Mr and Mrs Chaplin relied upon their belief that the strip belonged to them) Hicks denied this in limine, relying both upon discussions about ownership of the strip in or around 1986 and upon an offer to purchase the strip that Mr Hicks said had been made to him by Mr and Mrs Chaplin on the telephone before Christmas 2003, and thereafter confirmed in writing.
[12] Save for their assertion that they believed themselves to be the owners of the strip, Mr and Mrs Chaplin did not, in their statement of case or their evidence, specifically address the question of whether their possession had been permissive. Since the respondents’ case had been either a denial or non-admission of the acts of possession relied upon by Mr and Mrs Chaplin, it is unsurprising that their statements of case and evidence did not assert that permission had been given for it. None the less, Mr Hicks’ evidence was that the siting of the fence, erected in around 1986 on the south-west edge of the strip, had been consensual. He said that the reason for it being sited on that side of the strip was to accommodate Mr and Mrs Chaplin’s wish that the hedge (already then in existence) should continue to exist as a means of additional privacy to them beyond that afforded by the fence itself, and that, in the circumstances, such access to the strip provided by Mr and Mrs Chaplin as was enabled by the siting of the fence on its south-western (rather than north-eastern) side was therefore also consensual. In response, Mr Chaplin’s evidence was that the fence had been sited in recognition of the true boundary between their property and the land owned by Hicks.
[13] In the respondents’ list of issues tendered to the adjudicator on Hicks’ behalf, the issues were defined as follows:
i) What did As and R1 agree about the positioning of the fencing to the rear gardens of 2-10 Red House Close at the time of the development? Was any agreement reached?
ii) What, if any, acts of maintenance and occupation have been carried out by As?
iii) Are those acts sufficient to constitute possession?
iv) If the As had been in factual possession of the Strip for 12 years prior to October 2003, what was their intention?
v) What is the impact of Article 1 of the First Protocol of the European Convention on Human Rights? |page:3|
[14] That list of issues did not in terms raise the question of permissive use as a distinct issue. None the less, in her skeleton argument before the adjudicator, Ms Ward submitted (in para 11) that because the fence had been erected in 1986 “in the position it was by agreement”, and because Hicks had never objected to the Chaplins’ having access to the strip, any occupation of it was therefore with the consent of the owner. It is apparent from issue 4 in the list of issues that the question as to whether Mr and Mrs Chaplin had an intention to possess was very much in issue.
[15] I must now summarise the decision of the adjudicator, which followed his visit to the site on 15 May 2005. Having described the location and history of the site in uncontentious terms, he summarised the case and evidence of the Chaplins as to the nature of their acts of possession in relation to the strip in substantially the same way as I have done in [9] above. He recorded his observation of a line of trees along the strip, extending into what had by then become (de facto) the rear garden of 9 Red House Close. His only reference to the respondents’ case in relation to the question of sufficiency of possession was as follows:
In the alternative, Hicks maintained that they permitted the Applicants to occupy the disputed land, that the occupation was with their consent and that they inspected the disputed land over the years to check on the condition of it.
He made no express reference to the specific denials and non-admissions, respectively, as to the maintenance of the strip and the planting of trees on it, to which I have referred. Nor, at any stage in the decision prior to para 8 (to which I shall shortly come) did he make any express findings as to the truth or otherwise of the Chaplins’ case as to their acts of possession.
[16] In paras 4 to 6 of the decision, the adjudicator noted, first, that it was common ground that whatever the quality of occupation by the Chaplins there was, it had been going on since 1986 in an uninterrupted fashion, such that a 12-year period sufficient for limitation purposes was available. Next, he reminded himself that since more than 12 years had expired between 1986 and the coming into force of the human rights legislation in October 2000, no human rights issues as to the English law in relation to adverse possession of land needed to be considered. Finally, he noted, and this is not disputed, that nothing turned on the sale of part of the strip to the Hillmans’ predecessors in title in 2003.
[17] In para 7, the adjudicator continued:
However, I also need to be satisfied that the possession of the land was adverse, ie without consent from the paper title owner, Hicks
After referring to JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 and to Lord Browne-Wilkinson’s reference to “going into ordinary possession of the land for the requisite period without the consent of the owner”, he continued:
It is the final element of that statement that must now be considered; were the Applicants in possession with or without the consent of the paper title owner? Hicks gave evidence that the undisputed land was in their ownership but that to form part of an amicable agreement with the Applicants it was decided to locate the fence on the line adopted since 1986, “ie well inside our boundary.” Thus in the evidence of Hicks the hedgerow and ditch were left on the Applicants’ side of the back garden boundary fence by an agreement with them in 1985 or 1986. Furthermore access to this land was only available with the consent of Hicks.
[18] The only paragraph of the decision that the adjudicator expressed any judgment of his own upon the facts was para 8, which I must quote in full:
In the alternative, the Applicants say that since 1985-6 when Hicks reinstated the boundary fence they have enjoyed physical control of the land and have maintained it as occupying owners. They believed that they owned all the land within their boundary fence. In essence the applicants say that “since September 1983 we have occupied the land without the consent of Hicks. Prior to 2003 when the Philips moved the fence, we had no doubt that we owned the land.” What is clear is that even at the time when the Applicants and Hicks were in negotiations in 1985-6 there was doubt as to the extent of the disputed land. In May 1985 the applicants’ surveyors writing to Hicks state “this hedgerow which we believe to be the property of our client” and refer to it as a natural screen and request that the new fence be place (sic) on the development side of the hedge row. In March 1986 the solicitors acting for Hicks wrote to the Applicants’ solicitors stating that Inspection reveals that the ditch “almost certainly belongs to the land” owned by the developers. However, apart from this exchange of correspondence there is no clear evidence of any conclusive form of agreement or permission affording theapplicants access to the disputed land. I prefer the evidence from the Applicants who were adamant in their refusal to except the existence of any such permissiveness or agreement in relation to their occupation of the disputed land. It therefore seems to me that because the Applicants occupied the land thinking that they did so as of right that consequently their occupation could not be interpreted as permissive.
[19] The decision concluded with findings (not challenged on appeal), first, that it did not matter what was the nature of the interest the applicants thought they might have in the disputed land and, second, that the Chaplins’ offer to buy the strip from Hicks, confirmed in writing in January 2004, was too late to constitute an acknowledgement of Hicks’ title.
[20] Hicks’ first ground of appeal breaks down into two parts. As Ms Ward put it, first, there is simply no finding at all as to the extent of Mr and Mrs Chaplin’s acts of occupation or possession of the strip, but rather merely a repeated summary of their case, followed by a consideration of the separate question of permission, in paras 7 and 8. Second, even if para 8 were to be construed as including by necessary implication a finding that Mr and Mrs Chaplin carried out acts of possession substantially as claimed, there is such an absence of any identification of the issues, let alone any reasoned resolution of them, that such an implied decision should not be permitted to stand.
[21] Taking those two points in turn, although recognising the force of Ms Ward’s first point, I have not, in the end, been persuaded by it. It is certainly unfortunate that the adjudicator did not pause, before turning in para 7 to the question of permission, to make findings as to the nature and extent of Mr and Mrs Chaplin’s acts of possession. It is also plainly correct that the main focus of the adjudicator’s analysis in paras 7 and 8 of the decision is indeed upon the question of permission rather than the prior question as to possession. None the less, his summary of the rival cases at the end of para 7 and at the beginning of para 8 of the decision includes, as part of Mr and Mrs Chaplin’s case, their assertion that “they have enjoyed physical control of the land and have maintained it as occupying owners”. Furthermore, his expressed preference of the applicants’ evidence was as to “their refusal to accept the existence of any such permissiveness or agreement in relation to their occupation of the disputed land”.
[22] I consider it implicit from the language that I have quoted and from a reading of the decision as a whole that the adjudicator’s reference to occupation of the strip was intended by him to mean or include occupation by way of maintaining it in the manner that, in referring to the Chaplins’ evidence, he had already described. Furthermore, I consider that his detailed reference to the location of trees on the strip, observed during his site visit, supports the conclusion that he intended to and did accept the substance of the Chaplins’ evidence as to their activities on the strip, and must necessarily, therefore, have rejected the evidence to the contrary.
[23] Concluding as I have done that the adjudicator did, in fact, decide to accept the Chaplins’ evidence as to the extent of their occupation of the strip, the question remains as to whether that decision is vitiated by his failure to address the evidential case to the contrary, either by referring to it or by giving any reasons for his implicit rejection of it.
[24] It is no part of Hicks’ case that there was insufficient evidence before the adjudicator for reaching the decision that, by implication, I conclude that he did. Having rejected the first limb of this part of the appeal, all that is left is an appeal based upon lack of reasons for a decision to accept (and therefore prefer) Mr and Mrs Chaplin’s evidence. The proper approach of an appellate court to an appeal that is based upon lack of reasons has been the subject of recent and exhaustive guidance in a series Court of Appeal decisions, commencing with Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, and including Smyth v Greenhouse Stirton & Co unreported 4 October 1999, Jawad v Rahim |page:4| unreported 8 December 2000 and concluding with English v Emery, Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409. For present purposes, the applicable principles appear to be as follows:
(a) The giving of reasons is an important part of the judicial function both because the right of the losing party to appeal may be rendered impracticable in the absence of them, and because the losing party is entitled to know why it has lost.
(b) An appeal based upon an absence of reasons should be accompanied by a request to the trial judge to provide further reasons if he thinks fit, so as to minimise the risk and expense of retrials.
(c) The appellate court is entitled to ascertain whether it is apparent what the (unstated) reasons for a decision were, by reference not only to the judgment under appeal but also to the evidence and submissions adduced and made below. Sometimes, the reasons may be implicit.
(d) Where the decision is one of fact, dependent upon oral evidence, rather than, for example, a matter of detailed analysis of documents or technical expertise, it may more easily be inferred that the reason for preferring one version of facts to another is simply that the trial judge found one party’s witnesses more reliable than the other party’s witnesses. In those circumstances, more detailed reasons will frequently be unnecessary.
(e) It is only if, after enquiry, the appellate court remains “uneasy” or is not satisfied that the reasons are apparent, that this ground of appeal should lead to a retrial or rehearing.
I would add that, in terms of analysis under CPR 52.11(3), an appeal based upon lack of reasons gives rise to the question of whether the decision of the lower court is unjust, because the absence of reasons constitutes a serious procedural or other irregularity in proceedings of the lower court.
[25] Applying those principles, it seems to me sufficiently apparent that the adjudicator’s reasons for accepting the Chaplins’ account of what they have done by way of planting and maintaining the strip were that, on a question turning essentially on oral evidence, he found their evidence of greater weight than that of the witnesses tendered in support of the contrary case. This was, par excellence, an issue turning on competing oral evidence, in relation to which no real assistance was to be obtained from documents, let alone from technical analysis. I have already noted that the adjudicator must have considered that the layout of the trees on the strip observed on his site visit was corroborative of the Chaplins’ evidence. Apart from that, they were purporting to describe what they had themselves actually done.
[26] As against that, the evidence that there had been no maintenance consisted of a witness statement of Mr Hillman, whose connection with the strip started only five years after the end of the relevant period, and of a letter from Mrs Phillips, which was not supported by her attendance at the hearing nor, therefore, subjected to any cross-examination. It was intrinsically therefore of little weight, even though she had knowledge of conditions at the site during part of the relevant period. Finally, there was the evidence of Mr Hicks, based necessarily upon the inspection of a strip of land that, following the completion of the adjacent development, was of no apparent commercial use or value to his company until, many years later, one of the adjacent house owners sought out his company with the view to the purchase of part of it. He and the Chaplins were all cross-examined, and it seems to me reasonably clear in that context why the adjudicator should have been minded to prefer the evidence of the Chaplins on this issue, just as he did expressly in relation to the related issue of permission.
[27] Accordingly, although the absence either of a clear express decision or of reasons in relation to the factual issue as to the extent of the Chaplins’ acts of occupation of the strip is regrettable, it does not render the decision unjust within the meaning of CPR 52.11(3)(b) so as to require a rehearing.
[28] I turn to the second ground of appeal, namely that the adjudicator ought to have found that the Chaplins’ possession of the strip between 1986 and 1998 was permissive. By contrast with the first ground, this raises, almost exclusively, questions purely of law, the facts being largely uncontroversial. I will summarise them first.
[29] The line chosen for the erection of the fence separating the strip from the rest of Hicks’ development land in or around 1986 was consensual. This is apparent from the opening words and first paragraph of the May 1985 letter from the Chaplins’ surveyor to Hicks referred to by the adjudicator in para 8 of the decision, as follows:
Following our meeting on site yesterday I write to confirm various points which we have agreed as follows:
i) A close boarded fence will be erected on the inside of the hedge which runs on the development side of the ditch along the lane leading to Rushey Mead and immediately in front of Rushey Mead itself. You will take great care not to fell any more of the elm suckers and other bushes which form a natural screen along this hedgerow which we believe to be the property of our Client and may cut back any necessary branches to facilitate the necessary erection of this close boarded fencing. Likewise in gaps which have been created in this hedgerow you will plant quickthorn on both sides of this ditch in order to naturally fill these gaps when these plants have matured. The future responsibility for the maintenance and repair of this close boarded fencing will lie with the respective owners of the particular section on whose gardens they abut.
[30] As the adjudicator’s quotation from the later letter in March 1986 makes it clear, there was not at this time agreement between the parties as to the ownership of the strip, each side regarding it as its (or their) property. Further, as the adjudicator found, and this is not challenged, there was no express agreement or express permission made between the parties or given by Hicks in relation to any access to or occupation or use of the strip by the Chaplins following the erection of the fence.
[31] It is common ground that at no time did Hicks object to the acts of possession of the strip by the Chaplins thereafter. The adjudicator recorded Mr Hicks’ evidence that he inspected the site from time to time and, although this was challenged by Mr and Mrs Chaplin, the strip is not visible from their house, and there was no persuasive evidence before the adjudicator that no such inspection had occurred.
[32] Ms Ward did not challenge the adjudicator’s conclusion that access to, or acts of possession or occupation of the strip by the Chaplins had never been the subject of express agreement or express permission. She submitted that the adjudicator had been, however, wrong to think that the permission issue was in any way dependent upon the Chaplins’ subjective belief as to the legal basis for their conduct (that is, because they believed that they owned the strip). She submitted that the relevant law in this respect is stated in the following passage from Batsford Estate (1983) & Co Ltd v Taylor [2005] EWCA Civ 489*, per Sir Martin Nourse, in [22], citing and approving a passage from the judgment of Etherton J in Lambeth London Borough Council v Rumbelow unreported 25 January 2001:
In order to establish permission in the circumstances of any case two matters must be established. Firstly, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. It is, however, irrelevant whether the users were aware of those matters. … Secondly [it must be established that] a reasonable person would have appreciated that the user was with the permission of the land owner.
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* Editor’s note: Also reported at [ 2005] 2 EGLR 12
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[33] In response, Mr Aaron Walder for the Chaplins submitted that the applicable principle was broader than that, depending upon an objective view of the evidence as a whole, and he relied upon Rowley v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1040 (Admin); [2003] 2 P&CR 27. Ms Ward’s test imposes a slightly stricter burden upon Hicks, and I consider that it is the correct one, provided that it is borne in mind that there is a real difference between permission on the one hand and mere non-objection or acquiescence on the other. Adverse possession is commonly, indeed typically, achieved during periods of non-objection or acquiescence by the landowner. Using the language of Etherton J approved in Batsford Estates, the question is whether “permission was in fact given”, either expressly or by necessary implication. As with other cases where the question is whether something should be implied, it is not enough that |page:5| the overt acts or demonstrable circumstances are consistent with there having been permission. They must be probative of it.
[34] In my judgment, the final sentence of para 8 of the decision did involve an error of law on the part of the adjudicator because, at the conclusion of his analysis, he appears to have considered that the Chaplins’ belief that they occupied as of right was fatal to the allegation that their occupation was permissive. I have considerable sympathy for the adjudicator in that respect. First, there was a live issue as to whether the Chaplins had the necessary intention to possess: see para 4 of the list of issues, and the evidence of Mr Hicks about the offer by the Chaplins to purchase the strip, to which I have already referred. Second, a claim that there was implied permission hardly featured in Hicks’ presentation of its case, nor was the Batsford Estate line of authority cited, in circumstances where both Hicks and the Hillmans were legally represented, and the Chaplins were acting in person. Accordingly, I approach this aspect of the appeal with considerable caution, bearing in mind that it is based upon an analysis not advanced to the adjudicator, nor pleaded in the statement of case. Since the facts are, however, uncontentious, and since the adjudicator’s legal analysis is in this respect flawed, it falls to me to decide whether those facts do, as a matter of law, give rise to an inference or implication that Hicks permitted the Chaplins not merely access to the strip but to do whatever they wished to do by way of planting and maintaining a screen on it, consisting of trees, shrubs and wild flowers, in other words to occupy and possess it.
[35] In my judgment, everything turns on the inferences (if any) to be drawn from the consensual siting and erection of the fence in or around 1986, at a time when both sides were communicating to each other their persistence in an assertion that they each owned the strip. Nothing is, in my judgment, added by way of overt acts or demonstrable circumstances from the subsequent inspection of the strip by Mr Hicks, or from the subsequent lack of objection by Hicks to what the Chaplins were doing on the strip, whether viewed separately or in aggregate with the agreement as to the siting of the fence and its erection. Subsequent inspection and lack of objection are consistent no more with permission than with acquiescence.
[36] It is apparent from the letter from the Chaplins’ surveyor to Hicks in May 1985 (quoted above) that the reason for the consensual siting of the fence on the south-west rather than the north-east side of the strip was so that an existing boundary of natural vegetation should not be destroyed, in circumstances where, had the fence been sited on the other side of the strip it would almost inevitably have disappeared, since the strip would have been divided into a number of separately owned gardens abutting the dwelling-houses then being erected on the adjacent land. The purpose of preventing the destruction of the vegetation was, and could only have been, that it should act as a natural rather than man-made screen along the south-western side of the Chaplins’ driveway.
[37] That analysis does not, in my judgment, lead to the conclusion by way of implication or inference that Hicks thereby permitted the Chaplins not only to enjoy the visual benefit of the adjacent screen in connection with the use of their own land but also to occupy and possess the strip itself for the purposes of altering, maintaining or adding to the screen or for any other purposes. It appears that Hicks was deliberately making no concession as to rights of ownership or possession in relation to the strip and leaving entirely unresolved what should or should not be done upon it once the gap made in it by their contractors’ lorries while obtaining access to the development site (as appears from photographic evidence) had been filled in. It is not uncommon for landowners to maintain screens of natural vegetation along, but within their boundaries for the purpose of reducing the visual effect upon neighbours of developments being carried out within their land, and it would, in my judgment, be surprising to the reasonable observer for it to be suggested that such an agreement, including an agreement that an artificial fence should be constructed behind rather than in front of that natural screen, should lead to the conclusion that the developer was thereby giving permission to its neighbour to occupy and possess the land upon which that natural screen already existed.
[38] The adjudicator’s conclusion in the penultimate sentence of para 8 of the decision was that nothing by way of agreement or permission in relation to access to the strip had been expressed during the negotiations in 1985-86. That is not challenged. In my judgment, nothing by way of permission to have access to, occupy or possess the strip is to be implied or inferred either.
[39] It follows that, notwithstanding the error of law in the last sentence of para 8 of the decision, the adjudicator’s determination of this issue in the Chaplins’ favour was none the less correct. In those circumstances, this appeal must be dismissed.
Appeal dismissed.