Roger Tindall & Anor v Thomas Christian Hainsworth & Anor [2025] UKFTT 1453 (PC)

[2025] UKFTT 01453 (PC)

REF/2024/0364

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

Between

Roger TindallApplicant

Susan Eileen TindallApplicant

Thomas Christian HainsworthRespondent

Ruth Louise HainsworthRespondent

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

Property Address: Land on the East Side of 29 Larkfield Drive, Rawdon, Leeds

Title Number: YY160630

Before Judge Nathan Smith

Sitting at: Leeds Employment Tribunal, West Gate, 6 Grace Street, Leeds

On: 2 nd October 2025 (site visit on 1 st October 2025)

Applicants Representation: In person for in person

Respondents Representation: In person for in person

DECISION

Date 2025-11-17

[1]By way of an application made on 17th November 2021 in Form FR1, the Applicants applied to HM Land Registry (‘HMLR’) to be registered as proprietors of a parcel of unregistered land described as “land to the north and east of … 29 Larkfield Drive [and] to the west of 3 Peasehill Park … Rawdon”. The extent of the land claimed was shown coloured pink on a plan attached to a statement of truth (in Form ST1) dated 4th May 2020 and signed by the Applicants (see Fig. 1). The Applicants claimed to be in adverse possession of the land “From 29 April 1980 to date”. Fig. 1: (left) the plan attached to the Form ST1 dated 4th May 2020 Fig. 2: (right) extract from HM Land Registry Notice plan dated 26th October 2023, with land coloured blue provisionally allocated title number YY160630

[2]On 11th May 2023, HMLR requisitioned a survey of the land coloured pink (in Fig.1), which was completed on or around 12th July 2023, following a visit on 7th June 2023. The survey included a plan of the site and identified a number of features on the ground (see Fig. 3). The plan shows a path (‘the Path’) connecting 29 Larkfield Drive to Peasehill Park. I will refer to some of the other features further below. Fig. 3: survey plan “YY160630_2”. The marked features are fully described in the survey report. I have also identified certain features in the judgment below.

[3]The Respondents subsequently objected to the application by way of a “Statement of Truth to Object …”, signed by the First Respondent on 13th November 2023, on the ground that the Applicant was unable to satisfy the requirements for a claim in adverse possession.

[4]The matter was then referred to the Tribunal on 15th May 2024. The case summary accompanying the referral recorded that:

“(a) The Applicants have applied in Form FR1 for first registration of the unregistered land shown tinted blue on the accompanying HM Land Registry Notice plan, claiming to have acquired title by adverse possession … (c) The application has been allocated provisional title number YY160630 … (e) The Objectors have objected to the application on the grounds that the Applicants have not had factual possession of the land as claimed. The Objectors state that they have continually used and maintained the land as part of their garden area since 2000.”

YY160630 …

[5]The “HM Land Registry Notice plan” referred to in the case summary was enclosed with that document (at item 9) and showed the “unregistered land … tinted blue” that had been provisionally allocated title number YY160630 as in Fig. 2.

[6]The land that I have to consider as part of this reference is therefore the land shown as blue in Fig. 2, which I will refer to as the Blue Land, rather than the larger area shown coloured pink and blue respectively, in Figs. 1 and 3.

The documents provided to the Tribunal and attendance at the trial

[7]The Applicants prepared a bundle of documents for the hearing, which the Respondents asked that a number of documents be added to in a letter received by the Tribunal on 24th September 2025. I have taken all of these documents into account.

[8]I have also considered the documents referred to in the case summary sent to the Tribunal by HMLR where relevant, which were not all included in the trial bundle prepared by the parties, but which the parties would have been provided with as part of the reference.

[9]The Applicants attended the hearing as did the First Respondent. The Second Respondent did not attend. The First Respondent spoke for himself and his wife. The Applicants agreed that the Second Applicant would present their case, with the First Applicant having the opportunity to add anything further that he thought was relevant.

The parties and the land

[10]The Applicants are the registered proprietors of the freehold property known as 29 Larkfield Drive, Rawdon LS19 6EL (’29 Larkfield Drive’) and have been since 29th April 1980. 29 Larkfield Drive is registered until title number WYK198144 and shown coloured green on Fig. 1. The property is also known by the name “Rosswood”.

[11]The register of title records that there was a conveyance of the land within the above title dated 13th January 1965 made between “(1) Arthur Franklin (Vendor) and (2) William Reginald Turner (Purchaser) …”. William Reginald Turner was a predecessor in title of the Applicants. A copy of a conveyance dated 21st April 1989 between Mr Turner and the Applicants was included in the trial bundle under which the Applicants purchased 29 Larkfield Drive from Mr Turner for the sum of £52,000. The plan that followed the conveyance in the trial bundle was not the conveyance plan; but a copy of the conveyance plan was produced by the Applicants at the hearing, shown to the First Respondent and subsequently sent with the Tribunal.

[12]The Applicants are also the registered proprietors of a parcel of land to the east of 29 Larkfield Drive, which is registered under title number WYK574623 (‘the Additional Land’). The land within this title is known as “land adjoining 29 Larkfield Drive …” and the Applicants were registered as proprietors on 17th August 1995.

[13]The Respondents are the registered proprietors of the freehold property known as 3 Peasehill Park, Rawdon Leeds LS19 6EG (‘3 Peasehill Park’), which is registered until title number WYK682515 and to the east of the Additional Land. It is common ground between the parties that the Respondents purchased 3 Peasehill Park in around December 2000.

[14]The land upon which 3 Peasehill Park was built was at one time owned by a Mr John Arthur Shaw and possibly his wife too; although nothing turns on whether she was also an owner.

[15]On 18th January 1968, Mr Shaw and Mr Turner entered into a deed of release. The deed recited that Mr Shaw was the owner of a property known as “Larkfield Grange” and that Mr Turner was the owner of “Rosswood”. The deed continued: “2. [Mr Turner] … is desirous of extending his garden … which will encroach upon the road coloured brown on the plan attached hereto. 3. It is alleged by [Mr Shaw] that he has a sole right of way for all time and for all purposes over the land coloured brown on the plan. 4. [Mr Shaw] has agreed in consideration of the sum of Twenty Pounds to release his said alleged right of way …”.

[16]The plan attached to the deed of release is shown in Fig. 4; although, as I explained to the parties at the start of the trial, I am primarily concerned with events that occurred after 1980, the starting date for the Applicants’ claim to adverse possession. Fig. 4: plan attached to deed of release

[17]The land that makes up 3 Peasehill Park was first registered on 24th January 1984. The register of title records that the land was the subject of a conveyance dated 14th May 1985 between(1) Brian Arthur Shaw and Jaqueline Lee Shaw

(2) Paul Grey Construction Limited and

(3) Bradford and Bingley Building Society. It is common ground that it was around this time that the development on Peasehill Park was constructed, presumably by Paul Grey Construction Limited.

[18]The direct predecessor in title of the Respondents was Mr Douglas Wilson, who made a statutory declaration dated 16th June 2000 in which he confirmed that he was the freehold owner and occupier of 3 Peasehill Park “jointly with [his] wife Margaret” and that they purchased the property on 12th June 1985. It is common ground that Mr and Mrs Wilson occupied their property until it was sold to the Respondents.

The role of the Tribunal

[19]As the parties are representing themselves, I thought it may be helpful to say something about how the Tribunal decides cases. I have taken this explanation largely from the judgment of His Honour Judge Matthews (sitting as a Judge of the High Court) in John O’Driscoll v Vincent Raymond Clayton

[2025] EWHC 2607 (Ch)

(at [21] to [30]). The learned Judge was sitting in a different jurisdiction but the principles are the same.

[20]Firstly, in general, the person who asserts something bears the burden of proving it. In this case, the Applicants bear the burden of proving any facts needed to establish a claim in adverse possession.

[21]Secondly, the standard of proof is the balance of probabilities. That means that, if the Tribunal considers that something in issue in the case is more likely than not to have happened, then for the purposes of the decision it did happen.

[22]Thirdly, the Tribunal decides cases on the basis of the material and arguments put before it by the parties. It is the responsibility of each party to find and put before it the evidence and other material he or she wishes to adduce.

[23]Fourthly, more is understood today than previously about the fallibility of memory. In a case going back many years, where there are contemporaneous documents available and witnesses also give evidence as to what happened based on their memories, the Tribunal may, having considered what weight can be attached to each, prefer to rely upon the documents. As the Judge said in Kinled Investments Ltd v Zopa Group Ltd

[2022] EWHC 1194 (Comm)

(at [131] to [141]): “a trial judge should test a witness's assertions against the contemporaneous documents and probabilities and, when weighing all the evidence, should give real weight to those documents and probabilities".

[24]Fifthly, the Tribunal must give reasons for its decisions, but it is not obliged to deal with every single point that is argued, or every piece of evidence that is tendered. The Tribunal only has to explain the main points of its decision and enable the parties to see how and why it reached the decision that it did. Are the Applicants entitled to first registration of the Blue Land on the basis of adverse possession? The applicable legal principles Factual intention and the intention to possess

[25]In considering whether a person is in “adverse possession” of land, the question that has to be answered is “whether the … squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner … the words possess and dispossess are to be given their ordinary meaning” (perLord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham

[2003] AC 419

, at paragraphs 36 and 37).

[26]There are two elements to legal possession:a.

(1) a sufficient degree of physical custody and control (“factual possession”); and

(2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (an “intention to possess”).

[27]Both elements have to be present albeit the intention to possess “may be, and frequently is, deduced from the physical acts themselves” (ibid. at paragraph 40). The possession also has to be without the consent of the “paper owner”.

[28]In respect of “factual possession”, in Powell v McFarlane

(1977) 38 P&CR 452

(at 470-471, cited in J A Pye (Oxford) Ltd v Graham, at paragraph 41) it was held by Slade J that:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive 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 … It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession …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.”

[29]Physical enclosure of the land may establish factual possession of the land but it is not a prerequisite. The cultivation of a verge or garden can also be sufficient (e.g. Heaney v Kirkby

[2015] UKUT 0178

and Cooper v Gick (REF 2007/0103) but cutting down of scrub, where minimal, may not be (e.g. Boosey v Davies

(1987) 55 P&CR 83

[30]As for “intention to possess”, Slade J also held:

“What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. 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 animus possidendi and consequently as not having dispossessed the owner.”

[31]As Lord Hutton said in J A Pye (Oxford) Ltd v Graham, at paragraph 76:

“Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to land are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

[32]Slade J also added in Powell, at 476 :

“I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self- serving, while at the same time they may be very difficult for the paper owner positively to refute.”

[33]One situation that has long been recognised as creating a potential ambiguity is where the acts relied upon could be attributable to preserving or using a right of way or access. In White v Amirtharaja

[2021] EWHC 330 (Ch)

(as affirmed in

[2022] EWCA Civ 11

) it was held by Michael Green J, at paragraph 55:

“In relation to enclosure, the erection and locking of a gate at the end of an accessway can be an equivocal act and it may not have been done with the intention of excluding the owner. Littledale v Liverpool College [1900] 1 Ch 19 was one such case. It was referred to in Powell v McFarlane , Bucks CC v Moran and Pye … In my view … it remains good law on the question of whether enclosure, including by a locked gate, can be equivocal as to the adverse possessor's intention.”

[34]It is not necessary to prove a deliberate intention to oust or exclude the paper title owner or registered proprietor (Pye at [71] per Lord Hope) or any particular belief in ownership or entitlement. The mere fact that a possessor knows or believes that someone else has paper title to the land, or that they would have accepted a licence if offered one, does not preclude an intention to possess.

[35]If a person remains in adverse possession of unregistered land for the requisite period, which is usually 12 years but which can be longer in certain cases, no action can be brought to recover the land as a result of section 15 of the Limitation Act 1980 (‘the 1980 Act’). After the end of the requisite period, the title of the dispossessed owner is extinguished: see section 17 of the 1980 Act.

[36]There is a further requirement under section 9(5)(a) of the Land Registration Act 2002 (‘the 2002 Act’) that a person “may be registered with possessory title if the registrar [or, in this case, the Tribunal] is of the opinion –(a) that the person is in actual possession of the land, or in receipt of the rents and profits of the land, by virtue of the estate, and

(b) there is no other class of title with which he may be registered.”

The witness evidence

[37]On 21st August 2024, the Tribunal gave directions for disclosure of documents and the exchange of witness statements, which were to be sent to the Tribunal by each party (filed) and to the others (served/exchanged) by 5 pm on 13th November 2024. The date for the filing and exchange of witness statements was subsequently extended to 5 pm on 16th May 2025 in a further order made on 13th March 2025.

[38]In the event none of the parties filed or exchanged any witness statements in their own names. Both the Applicants and the Respondents sought to rely upon the facts set out in their statements of case, which were verified with a statement of truth. I have therefore treated the Applicants’ and the Respondents’ statements of case as their witness evidence too.

[39]The Applicants also relied upon a statement from Mr Mark Lazenby, their current gardener, dated 25th March 2025; and the Respondents relied upon statements from their neighbours, Carol Shaw McPhee, who lives at 1 Peasehill Park, and Mr Tom Liptrot, who resides at 2 Peasehill Park.

[40]Both Applicants gave oral evidence and were cross-examined by the First Respondent. The First Respondent also called himself to give evidence and was cross-examined by the Applicants. The other witnesses did not attend the hearing. I will consider the evidence provided by those who did first.

Susan Eileen Tindall

[41]In her statement (of case), the Second Applicant, Mrs Tindal, said that the Applicants made use of the Path when they first moved into 29 Larkfield Drive and that they “cleared brambles and green waste which we took by vehicle to the tip”. In her oral evidence, Mrs Tindall said from around 1980 to 1985, the Applicants would arrange for the Path to be cleared every 3 months or so and would walk along it around once a week. Mrs Tindall said she also cleared the land so that brambles did not spread into her “formal garden” at the time (i.e. the land to the south of the Blue Land). As part of her oral evidence, Mrs Tindall accepted that the Blue Land was probably not part of her garden during this period but said that she still had to keep it clear. She said that it was treated more like a garden from later 1985/1986 onwards.

[42]It is common ground that, in 1984, Mr Shaw intended to develop the houses that became Peasehill Park on land to the south of Larkfield Grange. As part of those works, in Autumn 1985, the Applicants claim that the developers cut down several trees along the Path and destroyed part of a drystone wall to the east. The Applicants described the mess as “appalling” and say they objected strongly. As a result, the Applicants received a letter dated 4th November 1985 addressed to the First Applicant from Mr David Bamford, an architect who was part of the developer’s “survey and landscape team”. A copy of the letter was included in the hearing bundle. Mrs Tindall confirmed in her oral evidence that the points in the letter all related to the Blue Land. I have set out the relevant parts of the letter below:

“Further to our recent meeting, I am very sorry for the inconvenience and disruption caused to you by the construction of [Plot 3 …]. I have instigated the following course of action. … 2. The original line of the rubble wall at the head of the site will be marked by a number of Conical Cyprus trees. 3. Your own boundary will also be marked with these Conical Cyprus trees. 4. We shall carry out a survey at the head of the site and prepare a plan. This will then be passed to J A Dunford, Solicitor … who will confirm the situation formally. 5. A stone flag pathway will be formed on the agreed line between the new access road and your property. 6. The new landscaping on the accessway (but not your land) will be maintained by the Wilson’s (owners of plot 3[)]. Obviously your rights of access are unaffected by this. 7. Any plants provided by the landscapers on your property are provided without cost. I trust that you will find this a correct summary of our meeting. As pointed out the Wilson’s [sic] intention was purely to improve the amenity of the area at some cost to themselves, which I have no doubt is in [everybody’s] interest.”

[43]In her evidence, Mrs Tindall said that the reference in point 3 of the letter was to the northern boundary of 29 Larkfield Drive being marked by the Conical Cyprus trees “in line with the southern boundary of 27, Larkfield Drive”. The Applicants claim that the marker referred to in point 3 of the letter was the tree shown at “M” on the survey plan produced at the request of HMLR (Fig. 3). In the accompanying report, “M” is described as a “Tree stump. Over 35 years old.” Point “X” on the survey plan broadly coincides with the south eastern point of the general boundary between 29 Larkfield Drive and the neighbouring property to the north, 27 Larkfield Drive. I will refer to the line that joins the south eastern point of the general boundary between 27 and 29 Larkfield Drive and point “M” as LineXM.

[44]In her oral evidence, Mrs Tindall also explained that she had never seen the plan that should have been prepared in accordance with point 4 but said that the pathway had been laid, in accordance with point 5, and that the other landscaping referred to in the letter had been implemented. Mrs Tindall accepted that the Applicants had not paid for the landscaping and were not sure who had. It could have been the developer or Mr Wilson. Despite claiming at one point that that the planting was carried out “at our behest” Mrs Tindall also accepted that the Applicants were not in charge of the planting, which was left to Mr Bamford and his contractors.

[45]After the landscaping had been carried out, Mrs Tindall said in her statement that the Applicants kept the Blue Land in a “reasonable state” although it was “quite thickly planted by now and not much grew below the canopy”. Mrs Tindall supplied some further details during her oral evidence. She said that the Applicants employed a series of gardeners from 1985 onwards who trimmed the shrubs on the Blue Land and kept a privet hedge on that land tidy. She said that the shrubs needed trimming bi-annually but that weeding and removing brambles needed to be carried out every couple of weeks.

[46]Mrs Tindall did not accept that any maintenance had been carried out by Mr Wilson, as envisaged by point 6 of the letter. As already mentioned, Mr Wilson made a statutory declaration 16th October 2000. Paragraph 3 of that declaration dealt with rights of access to Peasehill Park over the “road coloured brown on the plan attached” which passes by but is not part of the Blue Land (Fig. 5). 47. Fig. 5: extract from the plan attached to the statutory declaration of Mr Wilson dated 16th December 2000. The area “coloured green” extends south as far as a line that represents the (general) boundary between 27 and 29 Larkfield Drive.

[47]In paragraph 5 of the declaration, Mr Wilson said:

“Since the date of our purchase [of 3 Peasehill Park] my wife and I have also used the area of land shown green on the plan attached hereto as a garden area without objection or hindrance and no approach at any time has been made by any party claiming ownership of the said land.”

[48]The Applicants developed their objection to this evidence (and the other statements relied upon by the Respondents) in a more recent letter dated 2nd September 2025 in which they said, “The assertion that the land was maintained by the Wilson’s gardener is … incorrect. At one time Mr Wilson and ourselves both employed a Mr Steve Thirkell who did Mr Wilson’s garden and ours and on our instruction tidied up the unregistered land.”

[49]In her oral evidence, Mrs Tindall said that Mr Thirkell had been employed by the Applicants and Mr Wilson in the late 1980s and early 1990s. When she was asked how she knew Mr Thirkell had not been told by Mr or Mrs Wilson to tidy up the Blue Land too, she said she did not. Mrs Tindall also said that the gardener was paid in cash and that she could not help with whether the Applicants or Mr Wilson were paying him to tidy up the Blue Land.

[50]Mrs Tindall said another gardener, Mr Glenn Bull, took over from Mr Thirkell in around 1995 (or possibly later in around 1999) and worked for the Applicants until around 2007 to 2009. According to Mrs Tindall, Mr Bull was not instructed by Mr Wilson. Mrs Tindall said that Mr Bull also trimmed and pruned hedges on the Blue Land. From 2007 to 2009, the Applicants said they employed another gardener, Mr Mark Lazenby.

[51]When the Respondents purchased 3 Peasehill Park, in 2000, Mrs Tindall claimed that the Applicants “rarely saw” them and “never on the unregistered land” other to dump rubbish on it. In April 2015, the Applicants claim that the Respondents “without any warning, destroyed the cyprus trees including one of our northern boundary markers [as well as] the shrubs up to the pathway on the plot”. A fence was subsequently erected in place of some of the trees by Mr Lazenby, which was later removed. In around May 2022, the Respondents installed a concrete path from their own property that connected with the Path on the Blue Land.

Roger Tindall

[52]At the start of his oral evidence, Mr Tindall explained that he had had a brain haemorrhage in 1998 and that was why Mrs Tindall was doing most of the speaking for him. He said it had taken him a long time to recover and that he deferred to his wife in respect of what had happened in the past on the Blue Land. Mr Tindall said he could not recall the detail of what had happened and that his memories were vague.

Thomas Christian Hainsworth

[53]Mr Hainsworth confirmed in his statement that he and his wife, the Second Respondent, moved into 3 Peasehill Park in December 2000. Since purchasing their property, Mr Hainsworth said that his wife and children had used and maintained the Blue Land. Since 2006, he said that their children had used the Blue Land to build dens, climb trees and play. Since 2008, Mr Hainsworth said that he had employed gardeners, Carpinosa Landscapes, to trim shrubs and hedges on the land. Mr Hainsworth said that the Applicants had not maintained the land to his knowledge, other than maintaining the Path insofar as it leads to their garden.

[54]Mrs Tindall asked Mr Hainsworth why, if he had maintained the land since 2000, he had not applied for adverse possession of it himself. Mr Hainsworth said that it was treated as a garden den area and saw no reason to. When asked what he meant by “used and maintained” Mr Hainsworth said that his kids built dens on it mainly but that he had also cut back the planting from time to time, albeit not that often as the land was filled with mature shrubs and little else grew there. Mr Hainsworth said that his son had played there a lot, around 10 times a year while he was growing up and that he would spend around half an hour climbing the trees or playing when he did. He said his eldest child was born in 2003 and his younger son in 2005.

[55]On his son’s 8th birthday, Mr Hainsworth said he recalled Mrs Tindall telling off his son for playing and building dens there. Mrs Tindall said she did not recall that.

[56]Mrs Tindall asked Mr Hainsworth how he explained that the Applicants had not seen his children playing on the Blue Land if they had been doing that since 2006. Mr Hainsworth said he didn’t think the Applicants were able to see into the Blue Land and their view would have been obstructed by a garage they built in around 1995 and the privet hedge at the southern end of the Blue Land. Mr Hainsworth accepted that he had not looked for photographs of his children playing but said that there may have been some, for example, of his children hiding Easter eggs.

[57]Mr Hainsworth said that he had built a new path, in around 2022, as his wife had elderly parents and he thought it would make it easier for them.

[58]Mr Hainsworth also referred to the statements of Ms McPhee and Mr Liptrot. He said both of them had walked up and down the access road to Peasehill Park every day and what happened on the Blue Land would have been visible to them. Contrary to what Mrs Tindall suggested at one point during her cross-examination of him, Mr Hainsworth did not accept that the Blue Land had ever been totally enclosed and said that a passer-by would always have been able to see down the footpath from Peasehill Park.

Mark Lazenby

[59]Mr Lazenby signed a brief witness statement dated 25th March 2025. In his statement, he said that “I can confirm that I have maintained the garden area shown below in green hatched from 2009 to the present day. I have also erected a fence which was destroyed by the Hainsworths”. There is no further detail of the maintenance Mr Lazenby claims to have carried out in his statement, or with what frequency, and the plan attached to his statement has no dimensions on it.

[60]I was told by the Applicants that Mr Lazenby did not attend the trial because he was working in York.

Carol Shaw McPhee and Mr Tom Liptrot

[61]Carol McPhee signed a statement dated 14th May 2025. In her statement she said that she has lived at 1 Peasehill Park since 1985 and that “the garden area shown in green hatched on the document [the statement of Mr Lazenby] is unregistered land that was planted and maintained by Doug Wilson and his gardeners since 1985. Mr & Mrs Hainsworth and their children have continued to use the land since they purchased 3 Peasehill Park … Mr and Mrs Tindall[’]s gardeners have from time to time kept the … right of way clear; however, they have not maintained the land other than that … The northern area of the land adjoining the shared drive [of Peasehill Park] has been maintained by the communal gardeners”.

[62]Mr Liptrot also signed a statement dated 14th May 2025. Mr Liptrot also claimed that “the garden area shown in green hatched … [was] planted and maintained by Doug Wilson and his gardeners”. Mr Liptrot also said that the Respondents and their children have used that land since they purchased 3 Peasehill Park and that the Applicants have not maintained the land other than to keep the Path clear.

[63]Ms McPhee and Mr Liptrot also referred to the “right of way” (or Path) being a public right of way but there is no (other) evidence before me that it is. To some extent, it would be surprising if it was a public right of way as it can only be used to access the land owned by the Applicants; although I do not need to decide the point to deal with the reference.

[64]Neither Ms McPhee nor Mr Liptrot attended the hearing. I was told that Ms McPhee is a teacher and that she was working and that Mr Liptrot did not realise he had to attend.

What maintenance and use of the Blue Land has there been?

[65]Having considered the parties’ oral and written evidence, their documents and the submissions they made as part of the hearing, I make the following findings of fact: 65.1. Between 1980 and 1985, the Applicants arranged for the Path to be cleared every 3 months or so and would walk along it around once a week. The Applicants did not treat the Blue Land as part of their garden at the time and cleared the brambles and other overgrowth primarily so that they could walk across the land; 65.2. In 1984, Mr Shaw intended to develop the houses that became Peasehill Park. As part of the development works, in Autumn 1985, contractors employed by the developer cut down several trees along the Path and destroyed part of a drystone wall to the east. The Applicants objected; 65.3. The Applicants, or at least one of them, met with Mr David Bamford in late October 1985 or early November 1985 to discuss what had happened. The Applicants and Mr Bamford reached an agreement that was reflected in the letter dated 4th November 1985, including, that (2) the original line of the rubble wall would be marked with a number of Conical Cyprus trees; (3) the Applicants’ boundary would also be marked with these trees; (5) a stone flag pathway would be formed along an agreed line; (6) the new landscaping, to the extent that it was not on “your [the Applicants’] land” would be maintained by Mr and Mrs Wilson; and (7) there would be no charge to the Applicants for the plants provided on their property; 65.4. Following on from that agreement, by reference to the numbered points in the letter, the contractors employed by the developer and/or Mr Wilson: (2) planted Conical Cyprus trees in locations “I” and “K” on the HMLR survey plan (I make no finding as to how closely these followed the line of the original rubble wall as I do not need to do so, according to the accompanying report both of the stumps in these locations are over 35 years old); (3) planted another Conical Cyprus tree at point “M” on the same plan, which represented the location that the Applicants, Mr Wilson and/or the developer considered was the northern boundary of the Applicants’ land (or more accurately, the land that the Applicants were laying claim to) at the time; (5) installed a stone flag pathway on the Blue Land; and (7) landscaped the remainder of the Blue Land with plants and shrubs, which the Applicants did not pay for and did not direct themselves. The landscaping was either paid for by the developer or Mr Wilson, who were also likely to have been aware of and in agreement with what was proposed; 65.5. After the landscaping of the Blue Land was finished, in or around late 1985, the Applicants and Mr Wilson employed the same gardener, Mr Thirkell, until around 1995. Mr Thirkell carried out regular maintenance of the Blue Land between those dates, by trimming the shrubs and keeping the hedges tidy; 65.6. To the extent that Mr Thirkell carried out work on the Blue Land to the north (or north-east) of Line XM, in my judgment, it is more likely than not that he did so on behalf of Mr Wilson. To the extent that he carried out work on the Blue Land to the south (or south-west) of Line XM, Mr Thirkell did so on behalf of the Applicants. For reasons I will return to below, I do not accept that all the work carried out by Mr Thirkell on the Blue Land was on the instruction of the Applicants, or that Mr Wilson did not maintain or use the land coloured green on the plan attached to his statutory declaration dated 16th October 2000. 65.7. The land coloured green and shown on that plan, however, only extends as far south as the line of the southern general boundary of 27 Larkfield Drive with 29 Larkfield Drive (which can be seen from the plan itself) and which is represented on the ground by Line XM, which the Applicants, Mr Bamford, Mr Wilson and/or the developer accepted as representing the northern boundary of the land the Applicants were laying claim to at the time; 65.8. Consistent with which, I accept (as Mr Wilson said in paragraph 5 of his statutory declaration) that since the date Mr Wilson and his wife purchased 3 Peasehill Park they used the area to the north / north-east of Line XM “as a garden area without objection or hindrance and no approach at any time [was] made by any party claiming ownership of the said land [i.e. the land to the north / north-east of Line XM]”; 65.9. While he lived in 3 Peasehill Park, Mr Wilson also “maintained the landscaping” on the Blue Land to the north of Line XM in accordance with the agreement contained in point 6 of the letter dated 4th November 1985. The Applicants continued to maintain the land to the south of that line, in the same way, initially by using another gardener, Mr Bull, from around 1995. When I refer to the land to the north of Line XM in this paragraph and below, I am including the land to the north-east. Similarly, when referring to the land to the south of Line XM, I appreciate it is more to the south-west but have not added this either to avoid repetition; 65.10. When the Respondents were purchasing 3 Peasehill Park, in 2000, Mr Wilson made a statutory declaration which set out his recollection of his use of the part of the Blue Land to the north of Line XM in paragraph 5 of his declaration, which I find is likely to have been accurate; and 65.11. After the Respondents purchased 3 Peasehill Park, they continued to make use of the land coloured green on that plan, i.e. to the north of Line XM. Their children played on the land many times a year as they grew up and used it to make dens, for climbing trees and for other activities, like Easter egg hunts. Mr Hainsworth also cut back the planting on occasion when necessary.

[66]It is common ground that, in around 2015, the Respondents removed trees in locations “I” and “K” on the HMLR survey plan and subsequently, in around 2022, constructed their own path over the Blue Land, which connected their property to the Path and to the road that serves Peasehill Park.

[67]Given the passage of time, in my judgment, it is more likely than not that the extent to which the Blue Land was being maintained by the Applicants and Mr Wilson was as contemplated by the letter dated 4th November 1985 and the statutory declaration signed by Mr Wilson when he was selling his home, in 2000. I have not been provided with any (credible) reason why Mr Wilson would not have told the truth in that document. I accordingly reject the evidence of Mrs Tindall and the Applicants to the contrary, not only because her evidence is contradicted those contemporaneous documents, which came into existence many years before the present dispute, but also because, in my judgment, Mrs Tindall tended to exaggerate evidence that she thought may assist the Applicants’ case and minimise, or fail to recall, evidence that did not.

[68]For example, at one point in her oral evidence, Mrs Tindall claimed that Mr Wilson had carried out the landscaping works “at [our] behest” when the reality was that, while the works were carried out with the Applicants’ agreement, the Applicants’ influence seems to have ended with the terms of that agreement. The works are more likely to have either been instructed and/or paid for by the developer or Mr Wilson (I do not need to decide who) and the detail of the works beyond what was agreed in the letter arranged by one or other of them.

[69]The Applicants also did not mention in their written statement that both they and Mr Wilson employed Mr Thirkell as a gardener. It was only in a later letter, dated 2nd September 2025, that this was mentioned in response to an assertion that “the land was maintained by Mr Wilson’s gardener”. To which the Applicants added that it was on “our instruction” that Mr Thirkell tidied up the unregistered land. I do not accept that Mr Thirkell was told by the Applicants to tidy up the land to the north of Line XM, which would have been contrary to the contemporaneous documentation referred to above, but, in any event, it transpired during cross-examination that Mrs Tindall did not know what Mr Wilson had told Mr Thirkell to do, or who had paid for what part of his gardening work anyway.

[70]I also do not accept that the Applicants “never” saw the Respondents on the Blue Land. In my view, it is more likely than not that the Second Applicant did tell off Mr Hainsworth’s son when he was playing or building dens there on his 8th birthday. That is something that is likely to have stuck in Mr Hainsworth’s mind and has a ring of truth to it.

[71]Insofar as the Applicants did not see the Respondents on the Blue Land very often, I also accept the explanation put forward by Mr Hainsworth that their view is likely to have been obstructed from 29 Larkfield Drive, if not by the garage they constructed, then by the subsequent growth of the trees, hedges and plants that were introduced onto the Blue Land in 1985. Whether or not the Applicants saw the Respondents and their family on the Blue Land, in my judgment, it is more likely than not that the Respondents (and their family) were making use of it as they claim to the extent that it coincided with the land coloured green on the plan attached to Mr Wilson’s statutory declaration, i.e. to the north of Line XM. As Mr Hainsworth submitted, having been told that the land coloured green was part of the garden of the house they had purchased, it is also inherently likely that the Respondents and their family would have made use of it after their purchase.

[72]While I accept that Mr Lazenby is likely to have carried out some gardening works, at least in the area to the south of Line XM, on behalf of the Applicants, the lack of detail in his statement, the lack of any dimensions on the plan he refers to and his failure to attend to be cross-examined mean that I can attach little further weight to that statement.

[73]Equally, I am unable to attach any significant weight to the witness statement of Mr Liptrop, who did not have a good reason for not attending the trial to give evidence. I am also unable to attach any significant weight to the statement of Ms McPhee for similar reasons. I do not know whether she was able to take a day off work to attend the trial or not, or whether she tried to do so. In any event, Mr Liptrop’s and Ms McPhee’s recollection that the “garden area shown [coloured] green … was planted and maintained by Doug Wilson and his gardeners since 1985 [and] Mr & Mrs Hainsworth and their children have continued to use the land since they purchased 3 Peasehill Park” is broadly consistent with the view I have reached anyway insofar as the area they refer to is the same as the area shown coloured green on the plan attached to Mr Wilson’s statutory declaration. Insofar as it is not, in my judgment, it is unlikely that Mr Wilson would have made use of an area that was any larger than that shown coloured green on his own plan.

[74]I should also add that a notice of discontinuance filed by the Applicants on 27th March 2020 in claim number F12YM770 in the County Court at Leeds was included in the hearing bundle. In those proceedings, the Claimants were the Applicants and the Respondents were the Defendants. The only detail I have about those proceedings is that they related to the costs of reinstating the tree line and a fence. Neither party has argued that the earlier proceedings made any factual findings that are relevant to these proceedings. The Respondents state that the Applicants effectively abandoned their earlier claim. Has there been exclusive factual possession of the Blue Land by the Applicants for 12 years or more?

[75]In the circumstances, I am not satisfied that the Applicants have shown that they were in exclusive possession of the Blue Land to the north of the Line XM for a period of 12 years or at all.

[76]What about the land to the south of Line XM? This land was not enclosed by the Applicants but that is not necessary for a finding of exclusive factual possession. The Applicants did not plant the shrubs, bushes or trees that are now present on the land. These landscaping works were, however, carried out with their agreement and consent and to some extent to placate them under the terms of an agreement reached between them and Mr Bamford, who was either acting on behalf of the developer and/or Mr Wilson. That is relevant because the terms of the agreement under which the works were carried out also recognised that the Applicants claimed ownership of this part of the Blue Land.

[77]I have also found that Mr Thirkell is likely to have maintained the land to the south of Line XM regularly, from late 1985 to around 1995, by trimming and pruning plants and hedges on behalf of the Applicants; and I am satisfied that the gardener subsequently employed by the Applicants, Mr Bull, is likely to have continued to carry out the same work until at least 2000, while Mr Wilson was still living in 3 Peasehill Park.

[78]What is sufficient to amount to exclusive factual possession of a parcel of land depends on the “nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly … what must be shown … 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”. The nature of the land, at least between 1985 and 2000, was a small parcel of land over which a path that linked 29 Larkfield Drive with Peasehill Park ran. The land was heavily planted either side of the Path in late 1985, with the Applicants’ agreement and consent. After that it was maintained regularly by the Applicants for at least 15 years and I am satisfied that no-one else used the land to the south of the Line XM or carried out any equivalent acts of possession during this period.

[79]In the circumstances, I am satisfied that for the period between late 1985 and 2000, i.e. around 15 years, the Applicants were in exclusive factual possession of the Blue Land to the south of Line XM but not of the Blue Land to the north of that line. It has not been argued, nor is there any suggestion or reliable evidence, that their possession of this part of the land was with the consent of the “paper owner”,whoever that may have been. I am therefore satisfied on the balance of probabilities that it was not. Did the Applicants have an intention to possess this part of the Blue Land?

[80]The maintenance of the shrubs either side of the Path, if not the initial landscaping, may be explained by a desire to keep the Path clear and to that extent those acts may be said to be ambiguous and open to more than one interpretation. I am not convinced that I should adopt that approach in the present case as I have found that the landscaping in late 1985, at least in respect of the Blue Land to the south of Line XM, was also carried out with the Applicants’ agreement and to mollify them. In addition to which, I am also satisfied that the Applicants did make clear to the developer and Mr Wilson (who was also likely to have been aware of the contents of the letter dated 4th November 1985) that they had an intention to possess the land to the south of Line XM for their own benefit, which was evidenced by the placing of the a boundary marker at “M” as part of that agreementin recognition of the extent of the land that they were claiming. As such, I am also satisfied that the Applicants had the necessary intention to possess the Blue land to the south of Line XM and made that intention clear to the world at large.

[81]The same considerations would not apply to the land to the north of the Line XM, even if I had been satisfied the Applicants’ gardeners maintained the land to the north of that line, which I am not. Acts of pruning or trimming shrubs and bushes, or even general maintenance of the plants in this area by itself, would in my judgment have been ambiguous and insufficient to establish an intention to possess that part of the Blue Land. The acts would be equally explicable by a desire to maintain the use of the footpath as by an intention to possess the land. In addition, the letter dated 4th November 1985 does not refer to the Applicants making any claim to possession (or ownership) of this part of the Blue Land and nor does it evidence any intention to exclude anyone else from it. Are the requirements of section 9(5) of the 2002 Act satisfied?

[82]Having acquired the right to possession of the land and prima facie extinguished the title of the “paper owner” by 2000 at the latest, there is no argument, or suggestion that the Applicants have abandoned (or acquiesced in) any other person’s possession of the land to the south of Line XM. Even if the Respondents’ children did play on the whole of the Blue Land from time to time, which I am not satisfied that they did as that would prima facie have been outside the area coloured green on the plan attached to Mr Wilson’s statutory declaration, that would not, in my judgment, have had the effect of extinguishing the Applicants’ entitlement to possession of this part of that land.

[83]From 2007/2009 to date, the Applicants have also continued to employ Mr Lazenby and, while the precise extent of the land that he has been maintaining is not clear from his witness statement, I am satisfied on the balance of probabilities that he is likely to have at least maintained the area to the south of Line XM. From the survey plan produced for HMLR (at Fig. 3) this area of the Blue Land is also a good distance to the south of the new footpath, which the Respondents have linked into the Path. It is also a significant distance from the other trees that were removed at “I” and “K” and that opened up the Blue Land in that area to the east. The part of the Blue Land to the south of Line XM is also close to the access point to the Additional Land owned by the Applicants and the only people who in reality are likely to have used the Path in this area regularly in 2021 are the Applicants themselves or visitors to their property.

[84]As such, I am also satisfied that the Applicants were still in actual possession of the land to the south of Line XM on the date they made their application, 17th November 2021. The Applicants are therefore entitled to be registered with possessory title in respect of this parcel of land. There is no other class of title to which they are entitled as it is unclear who the “paper owner” was between 1985 and 2000.

[85]Conversely, insofar as the point arises, I am not satisfied that the Applicants were in actual possession of the land to the north of Line XM on the date of their application, partly because I am not satisfied that they were in exclusive factual possession of it at any time prior to that date and, in addition, the land to the north of that line was opened up (amongst other matters) by the removal of trees “I” and “K” and other shrubbery in around 2015 so that the Respondents could access and make use of it more easily.

Conclusion

[86]In respect of the Applicants’ application, I will therefore direct the Chief Land Registrar to: 86.1. give effect to the application as if the objection of the Respondents had not been made, to the extent that it relates to the Blue Land to the south or south-west of Line XM; 86.2. cancel the application to the extent that it relates to the Blue Land to the north or north-east of Line XM.

[87]The order accompanying this decision makes such a direction. I have also given directions for any representations on the issue of liability for the costs of these proceedings. The tribunal has power to make an order for costs in a land registration case in respect of the period after an application has been referred to the Tribunal, which according to the case summary prepared by HMLR was on 15th May 2024. Under paragraph 9.1(b) of the Land Registration Division’s Practice Direction, “ordinarily the unsuccessful party will be ordered to pay the costs of the successful party” although “the Tribunal may make a different order”.

[88]In the circumstances, my preliminary view on liability for costs is that there should be no order for costs. The Applicants have been successful in respect of the land to the south of Line XM and the Respondents have been successful in respect of the land to the north of that line. The areas of land that the parties have each been successful over are approximately the same.

[89]Any party who wishes to submit that a different order should be made in respect of costs should send their submissions to the Tribunal and to the other parties in accordance with the accompanying order. I will then make a decision about liability for costs on paper. BY ORDER OF THE TRIBUNAL Judge Nathan Smith Dated this 17th November 2025