Hicks Developments Ltd v Chaplin & Ors [2007] EWHC 141 (Ch)

[2007] EWHC 141 (Ch)Case No CH/2006/PTA/635
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/02/2007
Before
MR JUSTICE BRIGGS
Between
HICKS DEVELOPMENTS LTDAppellantTHOMAS WILLIAM CHAPLINRespondentJOYCE ELINOR CHAPLINRespondentSTEPHEN LANCE HILLMANRespondentPATRICIA ANN HILLMANRespondent
Galina Ward (instructed by Pitman Solicitors) for ClaimantAaron Walder (instructed by Rokeby Johnson Baars LLP) for DefendantHearing Hearing dates: 26 th January 2007
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 JUSTICE BRIGGS
[1]This is an appeal from the Order of Professor Robert Abbey sitting as a Deputy Land Registry Adjudicator made on 9th June 2006 whereby he directed the Chief Land Registrar to give effect to the application of Thomas William Chaplin and his wife Joyce Elinor Chaplin to 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 Stephen Hillman and his wife 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 200 meters to a junction with Cutbush Lane. The disputed strip is approximately 2 meters 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 whole of the south western edge of the strip, in about 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 on 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. Secondly, 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 which he found, and additional facts which 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 maybe understood.[6]Mr and Mrs Chaplin conducted the case before the Adjudicator without legal representation. They relied on a detailed “Statement of the Case” dated 1st June 2005, which in turn referred back to and relied upon a Statutory Declaration by Mr Chaplin dated 2nd 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 respondents, 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 solicitors). Hicks relied upon two witness statements by 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]Miss 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 they were 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 9 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 on discussions about ownership of the strip in or about 1986, and upon an offer to purchase the strip which John 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 owners of the strip, Mr and Mrs Chaplin did not in their statement of case or their evidence specifically address the question 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. Nonetheless John Hicks’ evidence was that the sitting of the fence erected in about 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?”[14]That list of issues did not in terms raise the question of permissive use as a distinct issue. Nonetheless, in her skeleton argument before the Adjudicator, Miss Ward submitted (at paragraph 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 possesswas very much in issue.[15]I must now summarise the Decision of the Adjudicator, which followed his own visit to the site on 15th 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 paragraph 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 paragraph 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 paragraphs 4 to 6 of the Decision, the Adjudicator noted first that it was common ground that whatever was 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]At paragraph 7, the Adjudicator continued:
“However, I also need to be satisfied that the possession of the land was adverse, i.e. without consent from the paper title owner, Hicks”
After referring to J.A Pye (Oxford) Ltd v Graham [2003] 1AC 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, “i.e 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 which the Adjudicator expressed any judgment of his own upon the facts was paragraph 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 the applicants 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 constituted an acknowledgement of Hicks’ title.[20]Hicks’ first ground of appeal breaks down into two parts. As Miss 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 paragraphs 7 and 8. Secondly, even if paragraph 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, while recognising the force of Miss 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 at paragraph 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 paragraphs 7 and 8 of the Decision is indeed upon the question of permission rather than the prior question as to possession. Nonetheless, his summary of the rival cases at the end of paragraph 7 and at the beginning of paragraph 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 which 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 which, 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 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 which, 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 on 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 which 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] 1WLR 3777, and including Smyth v Greenhouse Stirton (unrep) 4.10.99, Jawad v Rahim (unrep) 8.12.2000 and concluding with English v Emery Reimbold & Strick Ltd and related appeals [2002] 1WLR 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 he 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 maybe implicit. d) Where the decision is one of fact, dependant upon oral evidence, rather than for example a matter of detailed analysis of documents or technical expertise, then 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 rule 52.11(3) an appeal based on lack of reasons gives rise to the question 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 maintenance on 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 5 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 John Hicks, based necessarily upon inspection of a strip of land which, 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 Chaplins on this issue, just as he did expressly, in relation to the related issue of permission.[27]Accordingly, while 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 erecting of the fence separating the strip from the rest of Hicks’ development land in or about 1986 was consensual. This is apparent from the opening words and first paragraph of the May 1985 letter from the Chaplins’ surveyors to Hicks referred to by the Adjudicator in paragraph 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.” 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 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, occupation of 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]Miss 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 was however wrong to think that the permission issue was in any way dependant upon the Chaplins subjective belief as to the legal basis for their conduct ( i.e. 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) Ltd v Taylor [2005] EWCA Civ 489, per Sir Martin Nourse, at paragraph 22, citing and approving a passage from the judgment of Etherton J in London Borough of Lambeth v Rumbelow (unrep) 25.1.2001:
“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.”
[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 [2003] 2 P&CR 27. Miss 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 land owner. Using the language of Etherton J approved in the Batsford Estates case, 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 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 the paragraph 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 paragraph 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. Secondly, 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 the maintenance of 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 about 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’ surveyors 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 merely 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 land owners to maintain screens of natural vegetation along but within their boundaries for the purpose of reducing the visual impact on 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 paragraph 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 1985/6. 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 paragraph 8 of the Decision, the Adjudicator’s determination of this issue in the Chaplins’ favour was nonetheless correct. In those circumstances this appeal must be dismissed.

Cited in 1 later judgment