Claimants granting defendants licence to farm claimants’ land – Claimants not replying to defendants’ request to renew licence – Defendants continuing to farm claimants’ land – Whether defendants acquiring title by adverse possession – Claimants’ application for possession refused – Appeal allowed
Between 1975 and 1977, the first claimant acquired Henwick Manor, Thatcham, Newbury, Berkshire, together with a substantial amount of surrounding land. In February 1977 the first claimant sold the farmhouse and 165 acres of land (the farm) to a purchaser, H, retaining the remaining 57 acres (the disputed land), which were considered to have development potential. The first claimant granted successive annual licences to H to farm the disputed land.
In 1982 G and his wife acquired the farm. The first claimant granted a written grazing licence to G in respect of the disputed land until the end of December 1983, followed by a licence to take a cut of hay from the land during the summer of 1984. Later in 1984 G’s agent requested a further licence for 1985. However, the request went unanswered and no further communication took place between G, the agent or the claimants until 1997. Meanwhile, M (G’s son) continued to farm the disputed land.
In June 1997 M registered a caution against the claimants’ title to the disputed land on the basis that he had obtained title to the land by adverse possession. In August 1997 the claimants wrote to the Land Registry making “an application to warn off the caution”. In April 1998 the claimants issued proceedings seeking cancellation of the caution, and in January 1999 they issued further proceedings seeking possession of the disputed land. In those proceedings, the central issues were whether G and M had enjoyed adverse possession of the disputed land for 12 years between January 1984 and January 1999, and whether the claimants’ action was time-barred by section 15(1) of the Limitation Act 1980.
The judge held that the relevant date from which time ran in G and M’s favour, for the purposes of section 15(1), was the date upon which the licence to take a cut of hay in the summer of 1984 expired, namely August 1984. He found that: (i) G and M had enjoyed factual possession from at least that date; (ii) there was clear evidence that they had had the necessary intention to possess the disputed land; (iii) their possession had been adverse; and (iv) time had only stopped running when the claimants issued proceedings for possession in January 1999. He accordingly concluded that the claimants’ title to the disputed land had been extinguished by virtue of section 17 of the 1980 Act, and that, in the light of section 15 of the Act, their application for possession of the disputed land had to fail.
The claimants appealed, contending, inter alia, that the judge’s decision breached the claimants’ right to their possessions guaranteed by Article 1 of the First Protocol of the European Convention on Human Rights, as now protected by the Human Rights Act 1998.
Held: The appeal was allowed.
1. The judge’s conclusion that the defendants had had the requisite intention to possess was justified neither by the facts nor by a proper application of the 1980 Act, as interpreted in Buckinghamshire Country Council v Moran [1989] 2 All ER 225. G’s account of his state of mind was not that of a person who was using land with the intention of possessing it to the exclusion of the claimants. It was that of a person who, having obtained the agreement of the claimants to the limited use of the land in the past, continued to use it for the time being in exactly the same fashion, in the hope that the claimants would, in the future, again be willing to accede to his requests to enter into another agreement. Accordingly, there was no “clear evidence” of the defendants’ intention to possess. Thus, there was no dispossession of the claimants and time had not started to run against them under the 1980 Act.
2. The principle of interpretation of primary and secondary legislation contained in section 3 of the 1998 Act could be relied upon in an appeal heard after that Act had come into force, even though the appeal was against an order made by the court below before the Act came into force. However, section 3 did not affect the instant case. The right to protection of property in Article 1 of the First Protocol did not impinge upon the relevant provisions of the 1980 Act. The extinction of the title of a claimant, where he had delayed the institution of his legal proceedings for 12 years or more after being dispossessed of his land by another person who had been in adverse possession of it for at least that period, was not a deprivation of possessions or a confiscatory measure for which the payment of compensation would be appropriate. It was simply a logical and pragmatic consequence of the barring of his right to bring an action after the expiry of the limitation period.
Jonathan Gaunt QC, David Pannick QC, Jonathan Small and Monica Carss-Frisk (instructed by Darbys Mallam Lewis, of Oxford) appeared for the claimants; Kim Lewison QC, Martin Dray and Jane Mulcahy (instructed by Burges Salmon, of Bristol) appeared for the defendants.
Thomas Elliott, barrister
