Food Convertors Ltd & Anor v Newell & Anor [2018] EWHC 926 (Ch)

[2018] EWHC 926 (Ch)APPEAL REF: 7BS0033CIN THE HIGH COURT OF JUSTICEVenue HIGH COURT APPEAL CENTRE BRISTOL, ON APPEAL FROM THE BRISTOL COUNTY COURT, Bristol Civil and Family Justice Centre, 2 Redcliff Street, Bristol BS1 6GRDate 27/04/2018
Before
MR JUSTICE MORGAN
Between
(1) FOOD CONVERTORS LIMITEDClaimants/(2) THOMAS OSBORNE ROTHSCHILDAppellants(1) PETER TERENCE NEWELLDefendants/(2) MARILYN CONSTANCE DIANE NEWELLRespondents
Mr Simon Williams (instructed by Awdry Bailey & Douglas) for AppellantsMr John Sharples (instructed by Middletons) for RespondentsHearing Hearing dates: 11 April 2018
Judgment Approved

Introduction

[1]This is an appeal against the order of Mr Recorder Watson QC made in the Bristol County Court on 30 March 2017. Permission to appeal was granted by Dingemans J on 17 November 2017.[2]By the order of 30 March 2017, the Recorder declared that the boundary between land owned by Food Convertors Ltd (and previously owned by Mr Rothschild) and land owned by Mr and Mrs Newell was along a red line on a plan which was annexed to the order and not along a blue line on the same plan, so that the land which was between the two lines was owned by Mr and Mrs Newell and was within their title as registered at the Land Registry. The plan annexed to the order is now annexed to this judgment. The Recorder had a number of plans before him and the plan annexed to the order was referred to as “Plan C”. I will refer to the land between the red line and the blue line as “the disputed land”. The disputed land is near to, but does not actually adjoin, Church Road, Heywood, Westbury, Wiltshire.[3]The order of 30 March 2017 gave effect to the Recorder’s reserved judgment which he handed down on that date. In his judgment, the Recorder rejected the case which had been put forward by Mr Rothschild, acting in person for himself and for Food Convertors Ltd (of which he is a director), that(1) there was an enforceable boundary agreement in his favour in relation to the disputed land and/or(2) he and later Food Convertors Ltd had acquired title to the disputed land by adverse possession. It was not in dispute that subject to these claims, Mr and Mrs Newell were the registered proprietors of the disputed land.

The facts

[4]Initially, Mr Rothschild had been the registered proprietor of both the land to the north of the red line shown on Plan C and the land to the south of that red line. However, for many years before the trial, Mr and Mrs Newell had been the registered proprietors of the land shown on Plan C to the north of the red line and Mr Rothschild and, later, Food Convertors Ltd had been the registered proprietors to the south of the red line. I will now refer to the history of the relevant titles. I will set out these matters fairly thoroughly because of certain arguments which were raised on this appeal as to the extent of a right of way of which Mr and Mrs Newell have the benefit.[5]In around 1987, Mr Rothschild owned the land to the north of the red line and the land to the south of the red line and indeed further land in the vicinity. In 1987, Mr Rothschild began selling off parcels of the land which he owned. On 21 October 1987, he sold a field (or most of a field), having Ordnance Survey number 7700, to Messrs Briggs. This land is to the west of the land which I have described as being to the north of the red line to which I have referred. Messrs Briggs became the registered proprietors, under title number WT70917, of the land transferred to them. That land was separated from the land to the north of the red line by a track which led to Church Road. The transfer to Messrs Briggs granted to them a right of way over the track for the benefit of the land transferred to them. This right of way is shown on the filed plan to title number WT70917 as having a wide bellmouth at the point where the track meets Church Road.[6]On 18 December 1987, Mr Rothschild sold to Mrs Nelmes what I have described as the land to the north of the red line. Mrs Nelmes became the registered proprietor under title number WT73649 of the land transferred to her. The transfer to Mrs Nelmes granted to her a right of way over a part of the track referred to above. Title number WT73649 contains a statement that the land over which the right of way was granted was shown tinted yellow on the filed plan. The filed plan shows with a yellow tint a rectangular area and that area has been reproduced, tinted in yellow, on Plan C. The extent of the land tinted yellow is curious. The filed plan has a marking which shows a track. The land tinted yellow is much more extensive to the west and to the east of the track than the site of the track itself (as shown on the plan). Part of the yellow tinted land would appear to extend to the west of the track into the land which had earlier been transferred to Messrs Briggs. Further, part of the tinted land would appear to extend to the east of the track into land separated from the track by the blue line. I will refer below to the physical feature which is represented by the blue line.[7]The evidence at the trial did not include the transfer to Mrs Nelmes. Further, there was no specific evidence as to what boundary features existed along whatever was intended to be the legal boundary which separated the land transferred by Mr Rothschild to Mrs Nelmes and the land which he retained to the south of the land transferred. However, there was no suggestion that there had been a physical boundary feature along the red line.[8]In the absence of evidence as to the transfer to Mrs Nelmes and as to the boundary features at the time of that transfer, it is difficult to be certain about the extent of the land over which Mrs Nelmes was granted a right of way. If I had to speculate, having regard to certain estate agents’ plans which were in the trial bundle, I would speculate that the plan used for the transfer to Mrs Nelmes, which showed the intended right of way, depicted the track as broader and straighter than it actually was. I am unable to form a view as to the physical features on the ground at the time of the transfer. The evidence was that when Mr Rothschild later erected a fence along the blue line, the new fence replaced a pre-existing fence. There was no evidence whether the pre-existing fence was in position when the land was transferred to Mrs Nelmes or whether she erected it after that transfer. However, what the plan does show is that the land coloured yellow which was the subject of the right of way extended from Church Road to the western boundary of the disputed land.[9]It was accepted at the trial that whatever physical features existed on the ground at the time of the transfer to Mrs Nelmes, when she was registered as proprietor with title number WT73649, the legal boundary which separated her land from the land retained by Mr Rothschild to the south was shown as the red line on Plan C. On that basis, Mrs Nelmes was the registered proprietor of the disputed land.[10]Mrs Nelmes sold the land in title number WT73649 in around 1988. Although it seems that Mr and Mrs Newell were the intending purchasers of that land, it was first transferred to Mr Newell’s brother in law and then later transferred to Mr and Mrs Newell. At any rate, the parties proceeded on the basis that Mr and Mrs Newell were the owners of the land in title number WT73649 at all times after 1988. As such they were the registered proprietors of the disputed land.[11]In 1988, and for some considerable time thereafter, Mr Rothschild retained the land to the south of the red line and was the registered proprietor of it under title number WT81090. This remained the position until Mr Rothschild transferred that land to Food Convertors Ltd in around July 2008. The register of this title stated that it was subject to the right of way granted to Mrs Nelmes on 18 December 1987 for the benefit of the land to the north of the red line. The extent to which that right to way was said to encumber title number WT81090 was marked on the title plan. The area so marked was a small area to the south of the blue line.[12]Since acquiring the land in title number WT73649, Mr and Mrs Newell have sold two plots originally within that title. These two plots now have their own registered titles, as shown on Plan C, namely WT280161 and WT290345, and are owned by third parties. These plots are not relevant to the dispute in this case.[13]To complete the conveyancing history, I will refer to two other areas of land which are now owned by Mr and Mrs Newell. In 2006, Mr and Mrs Newell acquired further land in the vicinity of the land referred to earlier and this further land included title to the track to which I have referred, which ran between the land in title number WT70917 and the land in title number WT73649. The land so acquired has title number WT76362. In relation to the bellmouth where the track joins Church Road, the land in title number WT76362 is confined to land on the west and north of the blue line because the land which was originally said to be part of this track which is now south of the blue line is in title number WT81090 owned by Mr Rothschild and more recently by Food Convertors Ltd.[14]In August 2012, Mr and Mrs Newell acquired the land in title number WT70917 which Mr Rothschild had sold to Messrs Briggs in 1987.

The work done along the blue line

[15]The Recorder made the following findings as to work which was carried out by Mr Rothschild along the blue line at a time in the past. In particular, the Recorder held:(1) the work in question was carried out in late 1989 or late 1990 but in any event before October 1991;(2) the principal item of work was the placing of hardcore, clay and topsoil so as to form a bund along the blue line;(3) the bund was between 4 and 5 feet high when constructed and had settled further over time;(4) the bund ran the length of the blue line;(5) Mr Rothschild removed a fence which existed along the blue line when he began the work to create the bund;(6) the bund was to the south of the pre-existing fence;(7) Mr Rothschild replaced the pre-existing fence with a new stock proof post and wire fence; the posts were 6 feet high;(8) Mr Rothschild did not erect a fence to the south of the bund;(9) Mr Rothschild planted laurel bushes on the top of the bund along its length; as planted, the bushes were not much more than whips about 1 foot high; there were considerable gaps between the position of the bushes;(10) Mr Newell was aware of the above work being carried out; at the time he believed that the bund was constructed on Mr Rothschild’s land; it seems to have been the case that Mr Newell believed that the pre-existing fence marked the boundary between his land and Mr Rothschild’s land; on that basis, Mr Newell believed that the new fence, erected on the line of the pre-existing fence, marked the boundary;(11) Mr Newell did not object to the work done by Mr Rothschild and he acquiesced in it;(12) the disputed land was the land within Mr and Mrs Newell’s registered title between the blue line and the red line;(13) the disputed land was said to be approximately 44 metres from west to east; if that measurement only applied to the length of the blue line within Mr and Mrs Newell’s registered title then the length of the bund was greater than 44 metres;(14) the width of the disputed land was 12 metres at its widest point and 4.5 metres or less at its narrowest point (presumably on the eastern boundary of the disputed land).

The judgment of the Recorder

[16]The issues before the Recorder were:(1) did the parties enter into an enforceable boundary agreement at the time the bund was created which took effect as a binding agreement that the boundary between their respective ownerships ran along the line of the new fence or along the centre line of the bund? and(2) had Mr Rothschild established that he had been in adverse possession of the disputed land for 12 years before 13 October 2003, which was a relevant date for the purposes of the Land Registration Act 2002, as explained below?[17]The Recorder rejected Mr Rothschild’s case that the parties had entered into an enforceable boundary agreement at the time the bund was created. Dingemans J refused Mr Rothschild permission to appeal on that point and so that point does not arise on this appeal.[18]In relation to the claim to adverse possession, the Recorder began by summarising the relevant legal principles which he took from Powell v Mc Farlane (1979) 38 P&CR 452 and J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. It was not submitted on this appeal that the Recorder had misstated the relevant principles. I will refer to those principles later in this judgment.[19]The Recorder then made the findings of fact to which I have referred about the work done by Mr Rothschild to create the bund and the new fence. The Recorder then said:
“59. I do conclude that the combination of the bund and the improved stock-proof fence on its northern line were features which were capable of forming part of acts which, taken overall, were sufficient to prove exclusive possession. Individually they were not perhaps “impenetrable” as the Claimant asserted, and neither did they prevent some trespassing by travellers who came onto the land at some stage in the early 1990’s, as discussed below, and who, I accept from Mr Newell’s evidence, came through the bund, the trees and the fence onto this land causing a nuisance when they did so. But I do not think that the test which applies to a boundary feature is one to be measured by “impenetrability” to a determined trespasser (or for example a burglar) who is able to surmount it. Similarly I would not have regarded the line of laurel trees as sufficient in themselves and neither do I find that they were at any time an impenetrable barrier. But taken together the bund and the northern fence (which I will collectively describe as the combined boundary feature) were as I find an act which was capable of supporting both the fact of possession and the manifestation of the requisite intention. … 61. The difficulty for the Claimant’s case lies in [the] fact that firstly the combined boundary feature did not enclose the disputed land, secondly nothing else defined or excluded access to the disputed land on its western or southern boundaries of the disputed land, thirdly there is generally a dearth of reliable evidence as to this use of the land over the relevant period, and fourthly there is evidence, which I accept, of extensive and regular continued use of the land by the Defendants and others. I have identified the first difficulty already and I will discuss each of the remaining points in turn.”
[20]I will refer to other parts of the Recorder’s judgment when I discuss the issues which have been raised on this appeal

The appeal

[21]The Appellant’s Notice as originally filed by the Appellants sought an order for a new trial. It seems that the Appellants did not retain a copy of this Appellant’s Notice (although I had access to it by searching the court file). The Appellants then submitted a further Appellant’s Notice which did not seek a new trial but instead sought a declaration that they had established title by adverse possession. It seems that when the matter was before Dingemans J, the Appellants must have expressed an intention to apply to adduce further evidence on the appeal because the judge’s order stated that any application to adduce further evidence would be determined at the hearing of the appeal. The substitute Appellant’s Notice did include an application to adduce further evidence.[22]The essential points made in the Appellants’ skeleton argument were that:(1) Mr Rothschild’s work to create the bund and the new fence did enclose the disputed land because that land became part of a larger field where the rest of the land in the field was owned by Mr Rothschild and where the whole field was enclosed;(2) the existence of a small gap on the western side of that field did not prevent the disputed land being effectively enclosed;(3) Mr Rothschild had dispossessed Mr and Mrs Newell in relation to the disputed land;(4) the lack of evidence as to Mr Rothschild’s use of the disputed land did not weaken his case for adverse possession given that the disputed land had been enclosed by Mr Rothschild, that Mr Newell believed that the disputed land belonged to Mr Rothschild and that Mr Newell allegedly admitted that he had not crossed the disputed land at any time before 2006;(5) when Mr and Mrs Newell entered the disputed land, they did so as trespassers as they had to cross Mr Rothschild’s land to get to the disputed land;(6) the lack of use by Mr Rothschild of the disputed land and the fact that Mr and Mrs Newell walked their dogs on that land did not deprive Mr Rothschild of possession of that land; in any case, Mr Rothschild used the disputed land as an occupying owner might have been expected to deal with it;(7) the Recorder did not deal adequately with the question of Mr Rothschild’s intention to possess the disputed land;(8) the Recorder did not resolve issues which now needed to be resolved and the matter should be remitted for hearing before a different judge.[23]The Appellant’s skeleton argument did not refer to the question of any possible further evidence.[24]The appeal was presented orally by Mr Williams of counsel. He did not press me to adduce further evidence on the appeal. He also told me that the Appellants sought an order allowing the appeal and declaring that they had established adverse possession rather than an order for a new trial. Although the Appellants’ skeleton argument appeared to accept that there had been at all material times a gap in the hedge along Church Road, when that point was examined in the course of the argument, Mr Williams submitted that the judge’s findings and/or the evidence at the trial did not establish the existence of the gap at the time that the bund was created but, instead, the gap was created at a later point in time.[25]Mr Sharples, counsel for the Respondents, drew my attention to the way in which the allegations of adverse possession had been pleaded by the Appellants. He submitted that there was a lack of clarity in respect of the allegation as to who had been in possession of the disputed land and what acts of possession were relied upon. He also submitted that Mr Rothschild had at no time enclosed the disputed land and had not exercised control over it. The facts which showed that Mr Rothschild had not taken factual possession of the disputed land also showed that he had not proved the requisite intention to possess it.[26]In the course of oral argument, the parties’ submissions differed as to whether the evidence established that there was a gap in the hedge alongside Church Road in the near vicinity of the disputed land at all times or only from a date later than the time when the bund was constructed. Both counsel took me to a transcript of the evidence which had been given at the trial and made submissions as to the correct finding based on that evidence.[27]Mr Sharples also disputed the contention that Mr and Mrs Newell had trespassed on Mr Rothschild’s land to gain access to the disputed land. In that respect, it was argued that Mr and Mrs Newell were entitled to cross Mr Rothschild’s land to get to the disputed land in exercise of the right of way granted to Mrs Nelmes in 1987.[28]Mr Sharples submitted that Mr Rothschild had never enclosed the disputed land and had never taken possession of it but, even if he had initially taken possession of the land, he did not retain control of it and so did not remain in possession. It was submitted that he lost control of the land when travellers moved onto the land in 1992 and from that date, at the latest, there was a large gap in the hedge adjoining Church Road in the vicinity of the disputed land.[29]In response to the possible application by Mr Rothschild to adduce further evidence on the appeal, Mr and Mrs Newell had also applied to adduce further evidence. In view of the fact that Mr Williams for Mr Rothschild did not in the end ask me to adduce further evidence, Mr Sharples for Mr and Mrs Newell did not press their application to adduce further evidence.

The law

[30]Before the coming into force of the relevant provisions of the Land Registration Act 2002 (on 13 October 2003), the law as to the acquisition of title by adverse possession in the case of registered land was governed by the Limitation Act 1980, sections 12 and 17 and schedule 1, and the Land Registration Act 1925, section 75. In summary, no action could be brought by a person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him: section 12(1) of the 1980 Act. By paragraph 1 of schedule 1 to the 1980 Act, where a person bringing an action to recover land had been dispossessed or had discontinued his possession, then his right of action was treated as having accrued on the date of the dispossession or discontinuance. By paragraph 8(1) of schedule 1 to the 1980 Act, no right of action to recover land was treated as accruing until the land was in the possession of some person in whose favour the period of limitation could run; such possession was referred to in paragraph 8 as “adverse possession”. By paragraph 8(2) of schedule 1 to the 1980 Act, where a right of action to recover land had accrued and after its accrual, before the right was barred, the land ceased to be in adverse possession, then the right of action should no longer be treated as having accrued and no fresh right of action should be treated as accruing unless and until the land was again taken into adverse possession.[31]By section 17 of the 1980 Act, in the case of unregistered land, at the end of the period prescribed by the 1980 Act for any person to bring an action to recover land, the title of that person to the land was extinguished. This latter provision was modified in the case of registered land so that, instead of the registered proprietor's title being extinguished under the 1980 Act, his title was held on trust for the person who had, by virtue of the 1980 Act, acquired title as against the registered proprietor and that person could apply to be registered in place of the registered proprietor.[32]The relevant provisions of the Land Registration Act 2002 came into force on 13 October 2003. The 2002 Act introduced a different regime as to adverse possession in relation to registered land. However, schedule 12 to the 2002 Act contained transitional provisions. If a person had already been in adverse possession for 12 years prior to the coming into force of the 2002 Act, so that the registered title was held on trust for that person (under section 75 of the Land Registration Act 1925), then he remained entitled to be registered as the proprietor of the estate: 2002 Act, schedule 12 para. 18(1) .[33]Thus, in relation to the period before 13 October 2003, applying the above law to this case, if it were shown that Mr Rothschild had been in possession of the disputed land for 12 years, then the registered proprietor of the disputed land, Mr and Mrs Newell, would be unable to bring an action to recover possession of the land and the person who had been in possession for the relevant 12 years could apply to be registered as proprietor in place of Mr and Mrs Newell.[34]There was no real dispute as to the legal principles as to what is meant by the possession of land in this context. The relevant principles were stated by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 approving the decision of Slade J in Powell v McFarlane (1979) 38 P&CR 452, as correctly noted by the Recorder. For present purposes the principles can be summarised as follows:(1) there is a presumption that the owner of land with a paper title is in possession of the land;(2) if a person who does not have the benefit of this presumption wishes to show that he is in possession of the land, the burden is on him to show that he is in factual possession of the land and that he has the requisite intention to possess the land;(3) for a person to show that he is in factual possession of the land, he must show that he has an appropriate degree of physical control of the land, that his possession is exclusive and that he has dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so;(4) whether a person has taken a sufficient degree of control of the land is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed;(5) the person claiming to be in possession may be in possession through his tenant or licensee, if that tenant or licensee has, on the facts, sufficient control of the land to amount to factual possession;(6) the person seeking to show that he has had possession of land must show that he had an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title;(7) the relevant intention is an intention to possess and need not be an intention to own;(8) the intention to possess must be manifested clearly so that it is apparent that the person now claiming to have been in possession was not merely a persistent trespasser;(9) if the acts relied on are equivocal then they will not demonstrate the necessary intention;(10) it is possible in some cases for a person in possession to add to his own period of possession, the period of time during which his predecessor was in possession; this applies in particular where the predecessor relinquishes possession to a person who then takes possession.[35]As explained, the required period of adverse possession is 12 years. The provision in the Limitation Act 1980, schedule 1, paragraph 8(2) makes it clear that the period of adverse possession must not be broken. In that sense, the possession must continue for 12 years. However, the concept of possession of land does not require a person to be physically present on the land for every moment of the 12 year period. With some types of land, a person can be in possession even if he is absent from it for long periods. The concept of possession is satisfied if the person claiming to be in possession for 12 years, without interruption, has had the requisite degree of control of the land throughout the relevant period of 12 years.

Discussion

[36]I will begin by dealing with two points which gained prominence in the course of argument on the appeal but which do not appear to have received the same close attention at the trial. The first relates to the time when there was a gap in the hedge alongside Church Road in the vicinity of the disputed land. The second relates to Mr Sharples’ suggestion that Mr and Mrs Newell were entitled, by virtue of the right of way, to enter through this gap and to cross Mr Rothschild’s land in order to access the disputed land.[37]The Recorder referred to the question of the enclosure of the disputed land and also made more specific statements as to the existence of a gap in the hedge along Church Road.[38]In paragraph 61, the Recorder said that the bund and stock proof fence did not enclose the disputed land and nothing defined or excluded access to the disputed land on its western boundary. In paragraph 62, the Recorder described how travellers “created a substantial gap in the hedge”. He referred to evidence that this happened in 1992 and in paragraph 64 he stated that “from that time onwards there was a gap in the hedge”.[39]In paragraph 72, the Recorder held:
“In relation to their use of the disputed land Mr Newell and his wife both described that they walked with their dogs “most mornings” over the disputed land and have done so throughout the relevant period and since. In doing so they both used the gap in the hedge created by the travellers onto the yellow section of the disputed land.”
In this paragraph, the Recorder referred to “the relevant period” which would seem to be a period of 12 years prior to October 2003. He also referred to Mr and Mrs Newell using the gap in the hedge to gain access to the disputed land. However, earlier in his judgment, the Recorder had referred to a gap which was created in 1992 and therefore not as early as October 1991.[40]In paragraph 76, the Recorder found that Mr and Mrs Newell used the disputed land every week “from the time that the boundary feature was constructed” and he further held that apart from the bund and the fence to the north and the fencing on the eastern boundary of the disputed land, adjoining a wood, “the area of the disputed land and around it was open”. In this paragraph, the Recorder seems to be proceeding on the basis that there was some gap in the hedge from the time the bund and fence were constructed which he had held was before October 1991.[41]I was referred to a transcript of the evidence given by Mr Newell at the trial. He stated that the travellers created a gap in the hedge when they arrived in 1992. However, he also gave evidence that he had entered the field by going through the hedge in that area from about 1988. He was not specifically cross-examined about a possible disparity between the dates of 1988 and 1992. In the absence of cross-examination on that point, I can see that it is possible that Mr Newell was mistaken in his evidence that he had entered the field at that point from 1988 onwards. In other parts of his evidence, Mr Newell’s dates were not reliable and were not in accordance with the Recorder’s findings. Another possibility is that there was always a gap in the hedge through which Mr Newell could enter and what happened in 1992 when the travellers arrived was that a much larger gap was created. There was discussion in the evidence as to an access or exit point further south along the boundary of the field with Church Road and there was clear evidence that at all material times, there was such an access or exit point but that was at a different point from the place where Mr Newell said that he gained access to the field.[42]I consider that the right reading of the Recorder’s judgment is to hold that he made two findings. One was that Mr Newell entered the field through the hedge at all times from around 1988. The second finding was that the travellers created a gap in the hedge in 1992. These findings are not necessarily inconsistent and can be considered to be compatible. Both findings are supported by some evidence. Mr Newell was not specifically cross-examined about the state of the hedge from 1988 to 1992. I consider that I should not reverse or qualify the Recorder’s finding that Mr Newell was able to access the field through the hedge even before what must have been a larger gap was created by the travellers in 1992. The gap created by the travellers must have been at or near the point where there had been a previous gap in the hedge.[43]I will now address the submission made by Mr Sharples that Mr and Mrs Newell had an easement to cross Mr Rothschild’s land to get from the gap in the hedge to the disputed land. At the trial, the Recorder was provided with the filed plan to title number WT73649 which showed that a right of way had been granted to allow access from Church Road onto the land transferred to Mrs Nelmes in 1987, which land was later transferred to Mr and Mrs Newell. The land so transferred included the disputed land so that the right of way should have been available to allow Mr and Mrs Newell to gain access to the disputed land from Church Road. The colouring on the filed plan in relation to the land sold to Messrs Briggs slightly earlier in 1987 shows that the bellmouth, where the track joined Church Road, was wider than it later became. If there had been a fence along the blue line at the time of the transfer to Mrs Nelmes and the grant of the right of way, then there might have been reason to question the yellow colouring showing the extent of the land which was subject to the right of way. On the other hand, if there were not a fence in that position at that time, then one would take the yellow colouring at face value.[44]Whatever the position was in 1987, when Mr Rothschild constructed the bund and the stock proof fence after 1987 along the blue line, he encroached upon the yellow land and cut off part of it from what remained of the track on the north and west of the bund. Mr and Mrs Newell acquiesced in the work which was done. There might have been an issue as to whether this resulted in Mr and Mrs Newell abandoning their right of way over the part of the servient tenement which was south of the blue line. Mr Rothschild did not argue at the trial that the right of way had been abandoned over part of the servient tenement and therefore the Recorder did not consider that possibility. If the point had been raised at the trial, the Recorder would have had to apply the principles in Dwyer v Westminster City Council [2014] 2 P&CR 7 at [10]-[11] to the effect that abandonment is not to be lightly inferred. It could be said in favour of Mr Rothschild that Mr Newell had given evidence that he acquiesced in the bund and the fence because it did not affect his use of the track. It could be said in favour of Mr and Mrs Newell that at all times they continued to use the yellow land on the south side of the blue line to walk from Church Road through the fence and onto the disputed land.[45]In these circumstances, in the absence of specific evidence as to the plan attached to the transfer to Mrs Nelmes or as to the existence of a physical boundary feature along the blue line at that time and in the absence of argument at the trial as to a possible abandonment of the right of way over the land coloured yellow to the south of the blue line, I consider that I should proceed on the basis that Mr and Mrs Newell did have a right of way to cross the land coloured yellow to gain access to the disputed land.[46]For the avoidance of doubt, I add that it would not necessarily have been fatal to the conclusions arrived at by the Recorder or the conclusions reached in this judgment if Mr and Mrs Newell had not had a right of way over the yellow land to the disputed land. On the findings of fact of the Recorder, Mr and Mrs Newell had frequently gone through the gap in the hedge and over the yellow land to the disputed land and it may not have mattered to the overall conclusion whether they did so in exercise of a right of way or as trespassers. However, in view of my actual finding as to the right of way, I need not consider any further what the result would have been if I had not made that finding.[47]Having dealt with the questions as to the gap in the hedge and the right of way, I can now return to the Recorder’s summary of his conclusions in paragraph 61 of the judgment.[48]The first point made by the Recorder was that the bund and the fence did not enclose the disputed land. This finding can be understood in the light of the next comment made by the Recorder to the effect that nothing defined or excluded access to the disputed land on its western or southern boundaries. I do not think that the Recorder was contradicting the finding he had earlier made in paragraph 59 of his judgment to the effect that the construction of the bund and the fence did form a demarcation on the northern boundary of the disputed land which would have been sufficient to establish the taking of possession of the disputed land (if that demarcation had continued around the disputed land). In paragraph 61 of the judgment, the Recorder was pointing out that a demarcation of that kind did not continue around all four sides of the disputed land. The Recorder was right about that.[49]Mr Williams for Mr Rothschild submitted that the absence of a demarcation on the western and southern boundaries of the disputed land did not matter because the land which was immediately to the west and to the south of the disputed land was owned by Mr Rothschild so that the disputed land should be regarded as enclosed by Mr Rothschild’s other land. In other circumstances, Mr Williams’ submission would be entirely appropriate. For example, if there were two fully enclosed adjoining fields and the owner of the southern field moved the boundary fence separating the fields to a line which was to the north of its original position, the land taken into the southern field would be enclosed with the southern field and the southern field and the land taken would be in the possession of the owner of the southern field. However, on the findings of the Recorder, there was a point of access from Church Road over the right of way across the land coloured yellow to the disputed land. What is more, on those findings, Mr and Mrs Newell frequently crossed the yellow land and gained access to the disputed land. Further, on those findings, Mr Rothschild made no use of the disputed land.[50]The Recorder made detailed findings as to the use which was made of the disputed land by Mr and Mrs Newell. He also made findings as to the use of the disputed land made by members of the public over the years. He also found that Mr Rothschild had not established that he had made any use of the disputed land after the construction of the bund and the fence. I consider that the Recorder was entitled to make all those findings of fact.[51]In view of:(1) the lack of demarcation along the western and southern boundaries of the disputed land,(2) the use made of the disputed land by Mr and Mrs Newell and others and(3) the lack of reliable evidence from Mr Rothschild as to any use by him of the disputed land, applying the relevant legal principles as to the meaning of factual possession, the Recorder was right to conclude that Mr Rothschild had not established that he had taken possession of the disputed land when he constructed the bund and erected the fence. It was not argued before the Recorder nor before me that there should be a distinction between the area of land covered by the bund and the remainder of the disputed land to the south of the bund itself.[52]In view of his conclusion that Mr Rothschild had not established factual possession of the disputed land, the Recorder did not need to make findings as to whether Mr Rothschild had established an intention to possess the disputed land although he commented that it was difficult to infer the necessary objective intention to possess. That comment reflected the fact that an intention to possess must be manifested clearly by the objective facts as to possession.[53]I have considered what the position might have been if I had held that there was a period from the construction of the bund and the fence up until 1992 when there was no gap in the fence at the point of the larger gap created by the travellers in 1992. It might then have been necessary to review the Recorder’s findings as to the use of the disputed land by Mr and Mrs Newell. It might still have been the case that they had gained access to the field (and from there to the disputed land) by another point of access. Or it might have been the case that one would have to consider the possibility that they only began to access the field and the disputed land after the gap was created in 1992 or conceivably only after the travellers left. Such possibilities might create a situation where it would be appropriate to hold that Mr Rothschild had sufficiently incorporated the disputed land into his field to the south of which he had legal possession. A question would then have arisen as to whether the use of the disputed land by Mr and Mrs Newell and others after, say, 1992 would have resulted in Mr Rothschild losing possession of the disputed land. In such a case, it might be difficult to hold that such use by Mr and Mrs Newell and others would have resulted in anyone dispossessing Mr Rothschild of the land to which he had legal title: see Bligh v Martin [1968] 1 WLR 804, Smith v Waterman [2003] EWHC 1266 (Ch) and Zarb v Parry [2012] 1 WLR 1240. However, with some hesitation, I would have concluded even then that the Recorder’s findings as to non-use of the disputed land by Mr Rothschild combined with the use of that land by Mr and Mrs Newell and others would justify the finding that, in and after 1992, Mr Rothschild ceased to have a sufficient degree of physical control of the disputed land to enable him to say that he continued in possession of it.

The result

[54]Based on the findings of fact made by the Recorder, which he was entitled to make on the evidence before him, the Recorder was right to conclude that Mr Rothschild had not established that he had gone into and retained possession of the disputed land for all of the 12 year period prior to 13 October 2003. Accordingly, I will dismiss the appeal.

Cited in 1 later judgment