Elizabeth Roseanne Dobson & Anor v Alison Unsted & Anor [2025] UKFTT 1078 (PC)

[2025] UKFTT 01078 (PC)

REF/2024/0150

PROPERTY CHAMBER, LAND REGISTRATION FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

Between

ELIZABETH ROSEANNE DOBSONApplicant

ANDREW PAUL PLEMINGApplicant

Between

ALISON UNSTEDRespondent

DARREN UNSTEDRespondent

Property Address: Land at 27 Pointers Hill, Westcott, Dorking RH4 3PF Title Number: SY895328

Before: Judge Anthony Verduyn

Sitting at: Alfred Place, London (with two witnesses attending by CVP link) On: 29 th to 31 st July 2025

Site view: 28 th July 2025

Representation: Mr John Aldis of Counsel for Applicants.

The Respondents appeared in person. for in person

Key words: Adverse possession – Schedule 6 Land Registration Act 2002 – acts of possession – mowing and cultivation of frontage area – Schedule 6 paragraph 5(4)(c) reasonable belief in ownership

DECISION

Date 2025-08-11

[1]The Applicants are the registered freehold proprietors of 29 Pointers Hill, Westcott, Dorking RH4 3PF (“No.29”, registered title number SY645420). The Respondents are the registered freehold proprietors of 27 Pointers Hill (“No.27”, registered title number SY643826). No.27 and No.29 are substantial detached homes with adjoining plots towards the end of a cul-de-sac developed (in its relevant part) in the 1990s. The plots were each carved out of a single title (title number SY533867) and a common form of conveyance and plan was used in each case. The conveyance of No.29 is dated 23rd February 1994 and title was registered on 21st July 1994. The conveyance of No.27 is dated 16th May 1994 and title was registered on 1st June 1994. It is unclear whether the houses were completed and the driveway laid out before or after each conveyance.

[2]The land in dispute between the parties is a modest right-angled triangle or wedge of front garden land appearing to be in the title of No.27 and located between its driveway (over which No.29 has a right of way in the relevant section), land in the title of No.29 and the verge belonging to the highway authority (the “Verge”). It is shaded red on a marked up plan from the conveyance of No.29 provided by the Applicants and measures along its axes approximately 1 metre by 2.1 metres (the “Disputed Land”): This conveyance plan suggests that the originally intended driveway was significantly smaller than the out-turn: Mr Unsted in evidence contrasted the “single driveway” of the plan with the “double” currently in situ. No.29’s front garden has two terraces, divided by a retaining wall (the “Lower Terrace” extends immediately behind the long axis of the Disputed Land).

[3]HM Land Registry requisitioned a survey of 7th June 2023, after possession of the Dispute Land was retaken by the Respondents on 9th May 2023. The Applicants’ application had been made six days after the dispute had emerged. By the time of the survey, a rockery had been installed comprising the entirety of the Disputed Land:

[4]The appearance was similar to the above photograph at the site view, where the parties in turn identified to me the features relevant to the evidence that was subsequently taken at the hearing. The only differences between the photograph and the visit were that the Verge currently has less vegetation, the rockery on the Disputed Land was more mature and the miniature fence less robust.

[5]Of note in the photograph and inspection were the following features:(i) the Disputed Land was separated from the tarmac of the driveway by concrete edging (termed “sunken kerb stones” by the surveyor). The evidence of Ms Dobson was that these were supported by a fillet of concrete extending under the edge of the surface of the Disputed Land. Similar concrete edging appears elsewhere, including dividing the splay of the driveway tarmac from the grassed highway land (to the left in the above photograph) and elsewhere along the tarmac edge of the driveway;

(ii) stone setts marked the separation of the Applicants’ driveway from the Respondents’ driveway, and the Respondents’ driveway from the Verge and cul-de-sac, with the latter’s dropped kerb;

(iii) on No.29 the driveway is separated from the front lawn, not only by a continuation of concrete edging, but also by bricks arranged upright in a dog-tooth pattern (albeit these bricks stop just short of the path along the face of the house at No.29; a gap formed during the ownership of the Applicants, according to Ms Dobson’s witness statement); and,

(iv) there are subtly different shades of tarmac between the Applicants’ driveway and the (redder) Respondents’ driveway, which are apparent at the setts that divide them.

[6]On 24th February 2024 HM Land Registry referred to the Tribunal the Applicants’ application dated 15th May 2023 in Form ADV1 under Section 97 and Paragraph 1 of Schedule 6 to the Land Registration Act 2002 (the “2002 Act”) to be registered as proprietors of the Disputed Land. The Respondents had objected in Form NAP dated 28th September 2023 requiring the application to be dealt with under Paragraph 5 of Schedule 6 to the 2002 Act and disputing adverse possession more generally. Of the conditions set out in paragraph 5, only the third or boundary condition was advanced by the Applicants. Evens so, and in the context of the asserted reasonable belief of the Applicants that the Disputed Land belonged to them, there were suggestions made by the Applicants that the title to it might be uncertain or that there was some sort of agreement that the boundary between No.27 and No.29 in this location followed the edge of the tarmac driveway. No applications were made to HM Land Registry on these bases and, had they been, they would have been rejected for the reasons set out below in the context of the adverse possession claim.

The Relevant Law and Issues

[7]With one minor exception (dealt with in paragraph 9 below), there was no issue between the parties as to the relevant law to be applied in this case and so I shall be brief in setting it out.

[8]Paragraph 1 of Schedule 6 of the 2002 Act provides that:

“(1) A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application. (2) A person may also apply to the registrar to be registered as the proprietor of a registered estate in land if – (a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor, (b) on the day before his eviction he was entitled to make an application under sub- paragraph (1), and (c) the eviction was not pursuant to a judgment for possession.” (a) he has in the period of six months ending on the date of the application ceased to be in adverse possession of the estate because of eviction by the registered proprietor, or a person claiming under the registered proprietor, (b) on the day before his eviction he was entitled to make an application under sub- paragraph (1), and (c) the eviction was not pursuant to a judgment for possession.”

[9]The Respondents have contended that the Applicants could not their application because it was undisputed that the Respondents had taken possession of the Disputed Land on 9th May 2023 and the application was not made until 15th May 2023. The Applicants have rightly responded that their application was in time by reason of having been made within six months of that date, pursuant to Paragraph 1(2)(a) of Schedule 6.

[10]Paragraph 5(4) of Schedule 6 of the 2002 Act states that an applicant is only entitled to be registered as the new proprietor of the estate if the following condition is met:

“(a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application.”

[11]Subparagraphs (a), (b) and (d) are all met in this case and need no enlargement. The issues relate to (c) and are(i) the period of ten years (meaning any period of 10 years, following Brown v Ridley

[2025] UKSC 7

;

[2025] 2 WLR 371

) during which

(ii) the Applicants – or any predecessor in title – subjectively believed the Disputed Land was comprised in the title to No.29 and

(iii) the objective reasonableness of such belief.

[12]Of course, the condition is only applicable at all if adverse possession is also established under Paragraph 1 of Schedule 6. For these purposes, adverse possession has its Common Law meaning.

[13]In JA Pye (Oxford) Ltd. v Graham

[2002] UKHL 30

;

[2003] 1 AC 419

the House Lords held that:

“[38] … There will be a “dispossession” of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word … [40] … there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control (“factual possession”); (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”).”

[14]In Powell v McFarlane (1977) 38 P. & C.R. 452 at 470, Slade J (as he then was) elaborated more fully on the definition of possession:

“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner … (3) Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so. (4) … An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite [intention] and consequently as not having dispossessed the owner.”

[15]Counsel for the Applicants directed me to various texts and authorities. Those relating to agricultural land are not of any great assistance, because the economic use of such land is very different from that of garden land in residential developments. Some cases, however, referred to garden land and offer insights into the correct approach:

“But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this kind. What would such a person be expected to be doing in order to demonstrate his intention to exclude the world at large …”

Chapman v Godinn Properties Ltd

[2005] EWCA Civ 941

at [28], Chadwick LJ (with whom Rix and Carnwarth LLJ agreed) The Chapman case is instructive in this point. Whilst cited because it related to grass verges and banks, mowing and cutting back shrubs (which may be thought comparable), there was also the building of walls flanking the main entrance to the adverse possessors property and the maintenance and making up of entrances (which differs from the current circumstances).

[16]Similar points of likeness and contrast arise in Liddle v The Incumbent of the AshfordsBenefice (2023, First-tier Tribunal, Land Registration division, REF/2022/0368) where grass cutting and control of gates were significant together. The former relevant in the current case, but the latter not. Also, Hounslow LBC v Minchinton (1997) 74 P. & C.R. 221, where:

“The particular acts relied on were not substantial. Mrs Ritter and Mr Dunn maintained a compost heap upon part of [the disputed land] and kept it tidy in other respects and weeded and trimmed the hedge and so on. But that was the only sensible use of the land. It was rough land at the end of a garden.”

The acts were sufficient for possession, although the case was a good deal more complex, because the Council as paper title owner had given up possession and had disabled itself from trimming the hedge.

[17]I note that in Hicks Developments Ltd v Chaplin

[2007] EWHC 141 (Ch)

the Chaplin’s use and occupation of a strip of land was sufficient when:

“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.”

Albeit, in Hicks at first instance the evidence was not assessed in any detail (see paragraph 22 in the appeal).

[18]Finally, I note Thorpe v Frank

[2019] EWCA Civ 150

;

[2019] 1 WLR 6217

where, in the light of the open plan nature of the land in front of the two bungalows, the paving of a significant triangle of land with a permanent new surface was held sufficient to establish possession.

The Dispute in Summary

[19]As already observed, the boundary between No.27 and No.29 was created in 1994. The sequence of ownership of these properties is essentially agreed, as set out in a chronology provided to the Tribunal.

[20]No.29 was first conveyed to Mr Peter Curran and Mrs Alison Curran (“the Currans”) on 23rd February 1994 and No.27 to Mr Peter Sparks and Mrs Ann Sparks (“the Sparks”) on 16th May 1994. Purchasers went into occupation when the houses were sufficiently complete.

[21]The Sparks transferred their title to their daughter, Mrs Judith Chilton (“Mrs Chilton”) on 23rd March 2000, but they remained in residence. In September 2008, they left and Mrs Chilton started renting out No.27. Her first tenants were the Applicants. I am told that the Applicants met Mr Sparks. On 3rd September 2009 the Applicants bought No.29 and vacated No.27. Mrs Chilton continued to let No.27, sequentially to Mr Nicholas Ryman from September 2009, Mr Hugh Parry from September 2010, Mr Martin Butler from 2012 to October 2017, Mr Nicholas Gunning from November 2017 February 2020, and thereafter to other tenants before sale to the Respondents with vacant possession on 12th August 2022.

[22]No.29, meanwhile, had been sold in 2002 to the Hewetsons, who sold it to the Applicants on 3rd September 2009.

[23]The Applicants’ case is that from the outset, the Currans and the Sparks treated the Disputed Land as part of No.29, and the concrete edging was treated as the boundary feature. The frontage of No.29 was laid to lawn and the Disputed Land was undifferentiated from the rest of the lawned area (in particular, the Lower Terrace beneath the internal brick retaining wall), as was apparent from the photograph of 2002 in the sales particulars of No.29 (preceding the sale from the Currans to the Hewetsons):

[24]The Applicants assert that the Disputed Land was mowed along with the frontage of No.29 whilst they were tenants of No.27, and the Hewetsons also raked up leaves and twigs, and used the Disputed Land to access the Lower Terrace at No.29. The Applicants adopted that usage of the Dispute Land when they purchased and took possession of No.29 in 2009. Neither Mrs Chilton nor any of her tenants had anything to do with the Disputed Land. Indeed, the same arrangement appertained to the Verge, which was a grassy along the boundary of the Dispute Land and No.29, and separating them from the kerb and the tarmac of the highway.

[25]The Applicants thus assert that, by reason of their experience when tenants of No.27 and the appearance of the Disputed Land, from purchase they reasonably believe the Disputed Land was part of No.29. They state they treated it as such: continuing the regime of the Hewetsons; improving the subsoil in or about 2011 by digging out builders rubble and backfilling with topsoil; scarifying and overseeding the Disputed Land with the Lower Terrace in 2011; planting shrubs and herbs in an end bed occupying the Disputed Land in around 2013 or 2014; thereafter, maintaining the end bed as a “cottage style” feature (as opposed to a manicured bed or rockery); installing No.29 signs from 2016 (the original sign being accidentally destroyed in 2017); and, using the Disputed Land as a route for the mower to the Lower Terrace. Such usage was unchallenged, even in the period immediately after the Respondents purchased No.27 on 12th August 2022. Ms Dobson was challenged by Mr Unsted when she was planting of a Japanese Quince on 8th May 2023. The next day Mr Unsted removed all planting in the Disputed Land, exposing the bare soil, and substituted for them a small, mooning, garden gnome. The gnome was shortly thereafter relocated and a rockery installed and planted by the Respondents. It is not disputed that this meant that the Respondents were then in possession of the Disputed Land.

[26]The Respondents case is that the acts of the Applicants, and their predecessors in title, never amounted to possession of the Disputed Land, nor could the Applicants have believed (reasonably or otherwise) that the Disputed Land was in the title of No.29. They took possession of the Disputed Land when they first saw Ms Dobson upon it.

Evidence

[27]The rival contentions and documentation provided to HM Land Registry by the parties was enlarged upon in the Statements of Case, disclosure and witness statements provided by the parties under directions from the Tribunal. Following the site visit, I had the benefit of hearing oral evidence from the parties. I also heard evidence called by the Applicants from former tenants of No.27, Mr Martin Butler (2012 to 2017) and Mr Nicholas Gunning (2017 to 2020). Mrs Judith Chilton, daughter of the first purchaser of No.27, and freehold proprietor in her own right from March 2000 to sale to the Respondents in August 2022, also gave evidence under witness summons sought by the Applicants. Mr Peter Curran, the first purchaser of No.29 was unable to give evidence as he was on holiday in Austria at the time of the trial, but provided a witness statement. That statement, along with written statements for the Respondents from Mr Nicholas Ryman (tenant of No.27 between 2009 and 2010) and Mr Paul Carpenter (gardener for some 20 years at Pointers Hill), were read as hearsay and to be given what weight I considered appropriate. Detailed submissions were made by the parties at the conclusion of the hearing. There was much to consider.

[28]Ms Dobson giving evidence confirmed the content of the Form ST1 (with minor corrections), the Applicants’ Statement of Case and her witness statements. By these means she set out to substantiate the case summarised above. Her evidence includes that, when she and Mr Pleming began the tenancy of No.27, one of the owners of No.29 informed her that the bins for No.27 were to be put “here on your side”, meaning the Verge to the left of the driveway, and they put their bins “here on our side” pointing to the section of land “across the bottom of the [Disputed Land]” and on the Verge. At purchase of No.29 she also stated that she was told that the cost of repointing the setts had been shared by the freeholders as they “marked the boundary”. She emphasised the unitary feel of the Lower Terrace with the Disputed Land and their use as a play area until her children were old enough for her to be able to put in a flower bed on the Disputed Land. She later accepted that the children also played in much the same way on the Verge and elsewhere in the cul- de-sac. The Disputed Land was also, she said, the route for taking the mower to the Lower Terrace.

[29]In cross examination, Ms Dobson was taken to the Property Information Report provided by solicitors to the Applicants at purchase of No.29, and which advised examination of the registered title. It was put that the registered title plan showed a straight-line boundary putting the Disputed Land in No.27, but Ms Dobson responded that it was “wonky” and small in scale. She considered that it essentially reflected the land she had seen used by No.29 during her tenancy next door and included the Disputed Land. She felt vindicated by the surveyor’s report, which in respect of the relevant boundary stated:

“the front is open and needs no consideration.”

She was adamant that the concrete edging was a relevant boundary feature and the dog tooth bricks were not, as they stopped so that the Lower Terrace could be accessed from the Disputed Land.

[30]Also in cross-examination, Ms Dobson was taken to a plan submitted in a planning application in 2011, which included the Disputed Land in No.29. She used this in support of her case, explaining that she rejected the straight line boundary contended by the Respondents, but she accepted that the plan was inaccurate as to the boundary fronting the cul-de-sac, which was drawn straight but in fact curves.

[31]In respect of user of the Disputed Land, Ms Dobson was not really challenged on mowing and the like, but two matters were much disputed:

[32]Firstly, Ms Dobson’s evidence was that topsoil was purchased between October 2010 and March 2011 (for which three receipts were in the trial bundle). She intended to fill a large depression in the rear garden, but rather than use the top soil directly, she excavated builder’s rubble and poor subsoil in the front garden, backfilled with top soil, and returned the turf as covering. The Disputed Land was treated in this way in anticipation of it being converted to a flower bed in due course. She explained that she started about 6 inches in front the concrete edging and she did this elsewhere also, including under the retaining wall and along another boundary. This account was not merely gainsaid in cross-examination, but photographs were deployed: the Disputed Land looking undisturbed as lawn on 4th June 2012; and, the stripped bed in May 2023 (complete with mooning gnome) was shown to suggest that poor quality subsoil was exposed when the plants were removed. Ms Dobson replied that the work was done before 2012, poor soil could have washed down in 2023 (for where was unclear), and top soil was evident in the photograph of bags of plants removed in May 2023 in any event.

[33]Secondly, there were issues over planting. Ms Dobson contended that from 2011 clover was introduced to improve the Lower Terrace and Disputed Land. This being evident in the photograph dated 4th June 2012, but this interpretation was challenged. Mr Pleming later gave more detailed evidence on this point. In about 2013, Ms Dobson explained that incursions on No.29 from neighbours’ mowers led to more concerted planting to boundaries, which developed over the years to 2020. When challenged that it was still laid to lawn as late as 2016, Ms Dobson disputed this and said it might be very, flat but it was interspersed with herbs (although the photographic evidence only clearly showed the Verge). The treatment of the bed, once formed, was also much discussed by Ms Dobson. It was challenged on the basis that some photographs made the bed look unkempt, but Ms Dobson explained its tiered arrangement of plants and the “cottage style” look she was seeking.

[34]In respect of the sign for No.29 appearing in 2016, Ms Dobson appeared to accept that it started off on the Verge and was moved back on to the Disputed Land. The photographs are very indistinct and the parties disputed whether it was ever on the Disputed Land at all.

[35]I consider that Ms Dobson presented her evidence in great detail and, in respect of plants, sometimes exhaustively so. On the use of the Disputed Land when it was lawn and when it was flower bed, she was hardly shaken in her evidence; save that she may have over- emphasised the consistency and regularity of her tending to it. She was, however, less confident in her dating of events than the impression given in her witness statement, and she did not convince in two respects: firstly, in respect of the digging out of subsoil and recovering with turf in or about 2011. The photographic evidence does not support this for the Disputed Land (although it may have taken place elsewhere): the Disputed Land appears as characteristic, unexceptional, lawn in 2012. It does not appear to have been disturbed, nor to have benefitted from improved subsoil. It is hard to understand why such a modest area would warrant such treatment or why poor quality turf would be returned to cover the top soil said to have been laid. In 2023 there is nothing to suggest that the sandy, poor soil had washed from anywhere, or that the good soil present was any more than one might expect to find when shrubs and the like have been planted out: they would hardly simply be thrust into the poor, sandy subsoil. I reject her evidence on this point and consider that, when needing to recall events a dozen years earlier, she has confused the Disputed Land with other areas of garden and convinced herself that it was improved long before the bed was dug (for which, see the further discussion below). This impression was reinforced by some of the evidence subsequently adduced by the Applicants.

[36]Mr Pleming gave evidence, making only minor corrections to his Form ST1 and witness statement. Inevitably, his evidence covers much of the same ground as Ms Dobson’s, if rather more on clover. In respect of clover he asserted it was being used after 2011 to improve the quality of the soil (which I consider to be inconsistent with the presence of shallow buried top soil asserted by Ms Dobson then to be present in the Disputed Land).

[37]In cross-examination he accepted that the tenancy agreement for No.27 had no plan attached, but he drew his own conclusions on the boundary from his observation at the time and the conduct of the occupiers of No.29. He accepted he had seen the conveyance plan at purchase, but only observed that the driveway was wider in fact than as shown. In respect of planting, he accepts that the plants regularly overgrew the boundary that he states he believed was the extent of No.29, but saw no significance in this. He states that he now has to lift the lawn mower over the wall to the Lower Terrace, and considered using the driveway and the Verge, an onerous detour.

[38]Mr Pleming provides a detailed statement covering many of the documents and other sources of evidence. I note that he suggested that the photograph of 4th June 2012 showed introduced clover and the start of planting to the lower terrace. He also referred to an aerial photograph dated 6th June 2013, suggesting the dark edge to the Disputed Land reflected clover planting. Whilst the darker green is little more than a suggestion of colour variation, the photograph shows there was no flower bed then present. Indeed, I consider that the colour variation is not greatly different from the stripe to the undisputed lawn at No.27. The Disputed Land could have changed by the next photographs, dated 2016, but it is difficult to tell as it is very much at the edge of the image. The photographs thereafter, from 2021 and later, show the bed much as it seems to have appeared until the plants were uprooted in 2023.

[39]Mrs Chilton was a very reluctant witness. She was summoned at the request of the Applicants and initially challenged the summons on the basis she was unavailable on the first day of the trial. The summons was re-issued for the second day and she grudgingly attended; answering questions in a tone that made it very clear that she had not wished to be involved at all.

[40]The Applicants summoned Mrs Chilton having texted her by WhatsApp numerous times in May 2023. Mr Pleming seems to have been author of the texts, which asked her views on statements that included (the chain not being complete in the trial bundle):

“Although the original titles showed a straight boundary, there has never been a boundary marked on the ground so everyone has used the concrete edge boundary”; and, “We were just after a reply from you to state that in the time that you owned 27, you always recognised the boundary to 29 as the edge of your driveway, rather than following a straight line that could be imagined from the line of sunken bricks in the driveway that marked the drive boundary between 27 and 29.”

An eventual reply included the following:

“Not withstanding the boundary (as a straight line) between number 27 and number 29 as described in the Land Registry records the curved bed adjoining number 29 has always been treated as their property.”

[41]Mrs Chilton was also contacted by the Respondents in 2023, but declined to give them a statement having similarly declined to provide a statement to the Applicants. In an email of 26th August 2024 she stated, however:

“I do however stand by our conversation on the 29th August, 2023, notably that I was not aware of any historic issues regarding the property boundary until it was raised by Andrew Fleming (sic.) earlier in 2023.”

[42]Mrs Chilton provided a signed Property Information Form at the sale of No.27 to the Respondents. This stated: “boundary features” to No.29 belonged to No.27; the question relating to boundaries that are “irregular” was marked “N/A”; no features were stated to have moved during her ownership; there had been no complaints or disputes; and, no rights and informal arrangements were known.

[43]Since Mrs Chilton had not provided a statement, questions were permitted in chief. She recalled that No.27 was under construction when bought, but recalled nothing relating to the driveway or Disputed Land. She felt she was being bullied by Mr Pleming and her husband had answered his texts on her behalf, but she agreed with what he wrote. She knew nothing about the flowerbed, however, and deferred to HM Land Registry in respect of the property. Indeed, she went further, stating she did not know where the boundary was and the Disputed Land simply did not enter her head. She rented out the house when her parents left it in 2008 and did not do the maintenance of the grounds.

[44]Whilst counsel for the Applicants later urged on me to hold Mrs Chilton to the endorsement of the message drafted by her husband, that would be wrong. Mrs Chilton disavowed any relevant knowledge and had no thoughts to boundary locations. Given the size and location of the Disputed Land, and given she was merely taking rent from No.27, this is an entirely credible statement on her part.

[45]Mr Martin Butler gave evidence by video link. He was a tenant of No.27 from 2012 to October 2017. His statement confirmed that garden to No.27’s side of the shared driveway was maintained by him and his wife, and the other side (therefore including the Disputed Land) was maintained by the Applicants. He produced the photograph dated 4th June 2012, which he interprets as showing stripes to No.27’s lawn from recent mowing that was absent from the Disputed Land. In cross-examination, he confirmed that he had employed a gardener. He talked in terms of the Disputed Land being to lawn throughout the tenancy. When taken in re-examination to photographs dated July 2016, he stated that he vaguely remembered some wild flowers, but could not be certain; indeed, he did not recall any changes to the Disputed Land during his tenancy.

[46]Mr Nicholas Gunning gave evidence by video link. He was a tenant of No.27 from November 2017 to February 2020. He states he understood the land to the right of the driveway was owned and maintained by No.29 and used to access the Lower Terrace with a lawn mower. He recalled replacing the No.29 sign when his daughter accidentally “reversed over the right hand side of the driveway”; an area he thought was grass. He confirmed he had no reason to doubt the boundary location he had set out in his witness statement, but he had no documentation for it and the matter only arose at all when his daughter had her accident.

[47]Mr Peter Curran’s witness statement was adduced as hearsay. He was not unwilling to be a witness, but his remote attendance was precluded by Austrian courts controlling evidence from their jurisdiction. He was the first purchaser of No.29. He states:

“Along the shared entrance driveway, the freehold boundary between 27 and 29 was always the concrete edge on 29’s side. Along the shared entrance driveway: even though the title plan boundary had been drawn as a straight line, it never occurred to us or our neighbour at 27, Peter Sparks, to apply a straight line as the boundary.”

[48]I necessarily treat Mr Curran’s statement with a good deal of caution. The texts to Mrs Chilton show that leading questions were provided to prospective witnesses and the format of the statements by Messrs Butler, Gunning and Curran were very similar and no doubt produced by the Applicants. It is unclear how Mr Curran can speak for Mr Sparks or what “to apply a straight line” meant in context. This statement is insufficient to suggest any boundary agreement at or shortly after purchase of No.27 and No.29, but at its highest appears to suggest some de facto personal arrangement for garden maintenance with Mr Sparks only.

[49]Mrs Alison Unsted gave evidence for the Respondents, having signed a joint statement with her husband. She confirmed the contents of the Form NAP and the Respondents’ Statement of Case in addition; much of which comprises commentary on the Applicants’ case. Her evidence was necessarily very limited because she accepted she had no knowledge of No.27 prior to purchase in August 2022; about 9 months before the dispute started. Further, the parties had been informed at the outset that the details of the debacle at the start of the dispute were of no relevance to this Tribunal.

[50]For the period that Mrs Unsted could give evidence, it was to the effect that she did not see the Applicants tend the Disputed Land, which was then overgrown and unkempt. The first that was seen of the Applicants’ activity was the planting of the Japanese Quince in May 2023 and this precipitated the dispute. In cross-examination, Mrs Unsted claimed some clearing of leaves and the like would have been done by the Respondents, as the Respondents maintained the frontage of No.27, but she accepted the area was not a concern as they were doing other works at the property. Whilst many of the questions focused on the analysis of documents and photographs, rather than her evidence, Mrs Unsted did accept that the Disputed Land could have appeared in its early days as part of No.29, or at least that that was a reasonable assumption. She made the point, however, when taken to a photograph of 2008, that much the same could be said for the Verge: 51. She accepted that assumptions could be drawn from conduct of the owners of No.29 when the Applicants were tenants at No.27. She rejected the concrete edging as a boundary feature and she drew attention to the line of setts in the driveway. Whilst such rival arguments are not matters of witness evidence, Mrs Unsted did make appropriate concessions and her actual evidence appeared credible when taken in the round: the Respondents sought to keep the frontage from being untidy, but that was fairly minimal action in respect of the Disputed Land and the dispute began when the Respondents first saw activity by the Applicants on what the Respondents believed was their land. She could only speculate on what her husband had removed from the Disputed Land when he cleared it, but she had assisted in putting in the rockery.

[51]Mr Unsted gave evidence and was challenged that the Form NAP suggested that more was done by the Respondents on the Disputed Land between August 2022 and May 2023 than was actually the case. Though he insisted that he cleared leaves and any refuse that landed there, he accepted that he did not plant or maintain the Disputed Land and any impression to that effect was wrong. He was a tidier at best. Again he was questioned on the Applicants’ documents and assertions, which he answered drawing on over 25 years of experience in the building trade, but this hardly amounted to evidence of fact or expert evidence. He preferred the visual evidence of the setts and the end of the dogtooth bricks to the concrete edging as boundary features. He thought more attention ought to have been paid to 1994 conveyance plan and HM Land Registry title plans than to the grass. The only observation of interest was that, were he to mow the lawns at No.29, he would not have stopped and left the Disputed Land to grow, but mowed to the edge of the driveway. He stated that, like his wife, he saw no activity on the Disputed Land until May 2023, and he was generally dismissive of suggestions that he would be aware the Applicants were keen gardeners. He could have missed them working in the garden, but he was not impressed with the state of the garden at this time.

[52]Mr Unsted’s views may have been coloured by the dispute, in which he was the key protagonist for the Respondents. He sought to refer to a conversation at the time of the debacle at the start of the dispute, which was apparently recorded. He had resisted disclosure of the recording, but now suggesting there was some relevant admission by Ms Dobson. To seek to bring up evidence he had refused to disclose did him no credit, but the core of his evidence reflected that of his wife. It was gardening that precipitated the dispute, he had not seen much if any before May 2023, and none in the Disputed Land. I consider him to be correct in this, as it is hard to see why the dispute would otherwise have started when it did.

[53]The Respondents adduced short witness statements from Mr Nicholas Ryman and Mr Paul Carpenter. The former was tenant of No.27 from August 2009 for a year and merely stated that the Disputed Land was then lawn, which is uncontroversial. Mr Carpetner was a gardener at Pointers Hill for over 20 years, but witnessed nothing on the part of the Applicants in respect of the Disputed Land, so takes matters no further.

Discussion and Findings

[54]Before considering the claim for adverse possession, it is worth examining briefly the position of the legal boundary. Notwithstanding the submissions by the Applicants, the location of the legal boundary between No.27 and No.29 is relatively clear, and much as stated in the Applicants’ WhatsApp texts to Mrs Chilton. The common plan, extracted above, shows a straight line and anticipates that the driveway, shared in part, would not mark the boundary. The edges of the driveway, including in its internal parts at No.27, are marked by pecked lines indicative of a change in surface or low feature. Whilst the driveway was built wider than appears in the plan, it is not so wide as to extinguish all land, within No.27’s title, but to No.29’s side of the drive. The plan accordingly anticipates the concrete edging or something similar, but not as a boundary feature.

[55]The conveyance plans form the basis for the registered title plans and, although these plans predate construction, and therefore also have pecked lines, these are shown as straight. It is true that these are general boundaries, and so they require to be interpreted in accordance with the features on the ground, but they do not contradict the earlier Conveyance plans.

[56]A good deal has been contended about the visual appearance of the Disputed Land, but the parties are necessarily very invested in their respective cases. Mrs Chilton and the tenant witnesses are nearer to the mark in essentially having been indifferent to the Disputed Land’s treatment. At the site view, of course, the Disputed Land was a rockery and distinct from the area around it on that basis, but what was notable was the prominence visually of the setts. These gave a clear indication of the boundaries within the driveway surface (distinguishing No.29 from No.27, and No.27 from the highway), but they also gave a visual impression of the Disputed Land being within No.27 by extension and intersection of these clear lines. The setts separating the driveway of No.29 from the shared driveway on No.27 also clearly reflects a straight line boundary between houses and rear gardens. Indeed a straight line boundary is the obvious general indication, as otherwise the boundary would be notably irregular. The same is not true of the concrete edging, which served a clear function in all its relevant locations as containing the tarmac of the driveway. The concrete edging being to all sides of the driveway in its various locations was strongly suggestive that this was not a boundary feature. An inquiring mind on attending the site would consider the setts as more significant that the concrete edging.

[57]In consequence, and I find, the legal boundary was at all times such that the Disputed Land was contained in the title of No.27.

[58]I do not consider the evidence of Mr Curran to displace this and I reject the suggestion that No.27 never went into possession of the Disputed Land or was in 1994 somehow, perhaps voluntarily, dispossessed of it. There is no sufficient evidence for a boundary agreement and no reason why such an agreement would be made. Indeed, there are no indicia of a contract at all and a thirty year and untested recollection is no-where near sufficient to displace the documents of title. It is instructive in this regard that Mrs Chilton had no knowledge of any such agreement or understanding made by her father. Further, as is apparent from the conveyance, this was a joint purchase of No.27 and there is nothing from Mrs Sparks, nor indeed from Mrs Curran as the joint purchaser of No.29.

[59]The Applicants’ case rests on mowing the Disputed Land as some sort of act of possession and I reject this in the context of these properties. The frontages were open, with no differentiation of the Disputed Land from the Lower Terrace or the Verge. The grass ran over all these areas and even, judging from the 2004 photograph from the sales particulars, connected with the upper terrace. Merely to mow this small area of lawn is not to possess it, even though a legal owner may mow it: it was not exclusive (and Ms Dobson plainly rightly accepted that children went where they would in this open frontage land), nor would anyone reasonably believe that possession was being asserted against the paper title by mowing. Mr Unsted was correct to suggest that it would have been remarkable to leave the Disputed Land un-mowed when the Lower Terrace was mowed. To mow over the boundary was tidy minded and neighbourly, much as to cut a hedge on a boundary over its full width would be tidy minded and neighbourly. In an open fronted development of the sort comprised in Pointers Hill much more would be needed to establish factual possession and a demonstrable intention to possess a small, isolated portion of land, than mere mowing or the other acts of lawn maintenance.

[60]I have no reason to doubt that the Sparks may have been happy for the Currans to cut this small portion of lawn, and may even have personally permitted this, but it was not ceding possession or title to that land. There was no reason for Mrs Chilton or her tenants to object to such a neighbourly act as the years progressed, also, and it does not bespeak anything to undermine or contradict the legal titles.

[61]I find that in or before 2008 there was no possession, adverse or otherwise, to compromise the deemed interests of the legal owners in No.27 in the Disputed Land. As the photograph above from 2008 illustrates, the land was open and not in the possession of No.29. There was no distinct factual possession and no apparent intention to possession, so possession is deemed (rightly) to repose with the paper title owners.

[62]The Applicants were tenants of No.27 and their evidence is that the mowing of the Disputed Land by No.29 gave them the impression that it was part of No.29’s title. I accept that Mrs Hewetson encouraged them to put their bins on the Verge apart from where the Hewetsons put theirs, but that does not go to title of the Disputed Land. The Applicants, as tenants, would have had no documents to contradict the arrangement and no incentive to gainsay or ague with their neighbours. The setts may have suggested straight boundaries but this would have been of little or no interest in the circumstances of a tenancy and land laid to lawn.

[63]I accept that when the Applicants eventually applied their minds to the boundary, they believed that the Disputed Land was theirs. I do not consider that there is sufficient evidence that they applied their minds to the boundary at purchase of No.29. Like Mrs Chilton and her other tenants, I consider it probable that they did not consider the boundary in this area at all at purchase. The surveyor appears not to have done so, and I reject any suggestion that his comment in his report set out above was indicative of the location of any legal boundary at the front: it was consistent with the frontages being open and there being no reason to contradict title plans, whatever they showed. What is clear is that when Ms Dobson came to make a planning application in 2011 and was required to sketch the plot, she included the Disputed Land. Although she misrepresented the frontage as straight, the anomaly of inclusion of the Disputed Land is significant. By then she was giving effect to apparent arrangements over previous years without recent viewing of plans. She made a mistake. I am not satisfied that there was any earlier consideration and, had there been, then the legal boundary would have been apparent from plans and comparison to the features on the ground. Having lived next door to No.29, however, there was no reason for Ms Dobson and Mr Pleming to apply their minds to this area at purchase, and their evidence to the contrary I find to be simply a projection back from that first, necessary, consideration in 2011.

[64]The mowing being an insufficient act of possession, factually and intentionally, before 2008, I do not consider that this changed during the period that the Disputed Land was laid to lawn thereafter. I make the following findings of fact in respect of the period when the Applicants state that usage was no longer merely as lawn:

[65]

(a) I reject the evidence for the introduction of top soil under the turf in 2011 for the reasons set out above (and having regard also to how much later the flower bed was apparent – see below);

(b) Even were I to be wrong about the topsoil, it was not a sufficient act of possession, because it was a one-off and did not change the usage or appearance of the land in question. It did not constitute more than a trespass of a rather technical nature and to the subsoil alone. It did not evince an intention then or thereafter to take and retain possession and it would not be sufficiently or continuously apparent to the legal title owner. This was not a Thorpe v Frank type situation;

(c) The introduction of clover has been exaggerated as a feature by the Applicants. It is simply insufficiently evident, then and in the photographs, to be treated as a departure from general lawn treatment. I consider that its significance has been unintentionally exaggerated in hindsight;

(d) Introducing clover is not an act of possession in any event. It may improve the lawn, but is not different in character from general maintenance with other lawned areas and would not evince an intention to possess;

(e) I am also not satisfied that the introduction of clover can be reliably or sufficiently dated to 10 or more years prior to dispossession. It is notable that Mr Butler thought the Disputed Land lawn for the period of his tenancy ending in 2017. Only with significant deployment in re-examination of photographs was there a suggestion of wild flowers, and then he did not give evidence as to a flower bed. He was, of course, an independent witness. Mr Gunning also considered the area lawn, and he was there after Mr Butler;

(f) The signs for No.29 are insufficient to indicate possession also. The original sign first appeared in the Verge and latterly the sign was so either just on No.29 or so near as to be of no real indication that the Disputed Land was thought by the Applicants to be in their possession. In any event, the sign had to be visible and was adjacent to the right of way serving No.29. It does not assist the Applicants;

(g) The use of the Disputed Land for taking the mower to and from the Lower Terrace was not an act of possession. At its highest it was equivocal, as consistent with a right of way rather than taking possession. In any event, it was merely an incident of lawn mowing which was not itself an act of possession in the context of the Disputed Land.

[72]I find that there was no clear act of possession of the Disputed Land before it was properly laid as a flower bed. Installing a flower bed in the context of an open lawn area appears to me (and I find) to be an act of possession evincing also an intention to possess the land comprised in the bed.

[73]The aerial photograph from 6th June 2013 shows that there was no flower bed then. The evidence of Mr Butler confirms this as late as 2017, as does Mr Gunning shortly thereafter. I consider photographs in the bundle for 2016 to be insufficiently clear to establish a bed at that date and insufficient to contradict Mr Butler that there may only have been some wild flowers by then The burden of proof as to a flower bed earlier than about 2018 is on the Applicants and is not discharged. The flower bed was clearly present by 2021, but that is far too late. I find that the flower bed was introduced in or after 2018 and the ten year period for adverse possession is not made out accordingly.

[74]Whilst this renders consideration of belief as to ownership and its reasonableness immaterial, I will make the following findings for completeness:

[75]

(a) By 2011 I accept that the Applicants had applied their minds to the boundary, as evidenced by the planning application, and believed that the Disputed Land was part of their title. Eventually, they would act on that belief, but not sufficiently before 2018.

(b) Although I consider the setts to be a significant contra-indication as to the location of the boundary, I do not consider the belief once formed to have been unreasonable. The land was open, the purchase was some years earlier, and reflection on their time as tenants of No.27, as well as their own subsequent maintenance of the lawn, provided a reason for their belief. The belief has been further galvanised by the course of the dispute, but was evident in 2011.

[77]Whilst I have not addressed every single point made in submissions, there is nothing in the evidence that I have heard or read to displace my findings. A 2002 planning application for No.29 also had the Disputed Land within a red line, but this line appears to have encompassed the driveway and been closer to a representation of title and rights than merely title alone. The water services to No.27 probably run under the Disputed Land, but these do not reflect title and the stopcocks and the like are all located in the Verge.

[78]Finally, I note that there appears to be a dispute relating to the boundary between the rear gardens. The factors in such a dispute are likely to be significantly different to the circumstances of the boundary from the front of the houses to the highway. This decision is unlikely to be material to that dispute accordingly, but that is a matter for others.

[79]The applicants’ application is dismissed. In this tribunal the costs of the successful party (i.e. the Respondents in this case) are usually awarded costs against the unsuccessful party (i.e. the Applicants in this case) from the date the matter was referred to the Tribunal (i.e. 24th February 2024). If sought, the Respondents shall provide a schedule of their costs (preferably using Civil Procedure Form N260, available from the Internet) by 5pm on 1st September 2025. The Applicants will then provide any comments on liability to pay costs or the amount of the costs claimed by 5pm on 22nd September 2025. The Respondents may reply to those submissions by 5pm on 29th September 2025. Thereafter the Tribunal will make a decision on liability and amount of costs on paper. Dated this 11th August 2025 Judge Anthony Verduyn By order of the judge of the Property Chamber of the First-Tier Tribunal