Roger Kingsley Edwards & Ors v Dr Ernest Neville Brown & Anor [2026] UKFTT 1026 (PC)

FIRST-TIER TRIBUNALPROPERTY CHAMBERLAND REGISTRATION[2026] UKFTT 01026 (PC)Case No REF/2025/0248BETWEEN:-
Between
ROGER KINGSLEY EDWARDSApplicantFLEUR EDWARDSApplicantADRIAN TIMOTHY ROBERT EDWARDSApplicantDR. ERNEST NEVILLE BROWNRespondentDR. DARYL JOHN BROWNRespondentTitle numbers: SF684387Property: Land adjoining The Gatehouse, Abnalls Lane, Lichfield, WS13 8BJBefore Judge Ewan Paton, sitting at Birmingham Civil Justice CentreOn 3 rd to 5 th June 2026 (site visit 2 nd June 2026)Mr. Thomas Rothwell (counsel, instructed by Messrs. Knights, Newcastle-under-Lyme) for ApplicantsMr. James Poole (counsel, instructed by Newhall Solicitors LLP, Birmingham) for RespondentsDECISIONDate 2026-07-07
[1]The principal parties to this dispute – the First Applicant and First Respondent – are now in their nineties. This is the third round of litigation between them, in a period spanning some 40 years, over an area of currently unregistered land lying between their property entrances and the public highway at Abnalls Lane, Lichfield. That area is referred to by them as “The Bellmouth”.It is pictured, as it presently appears, below.The Bellmouth[2]The Bellmouth has consumed time, legal costs, ill feeling and the inevitable stress and rancour borne of litigation, out of all proportion to any financial value it might have. In functional terms, it serves as an entrance to the parties’ respective properties, described further below. Although it abuts the highway Abnalls Lane, I was told that the local highway authority (now Lichfield District Council) lays no claim to it as part of that highway.[3]Many property owners might regard title to such a parcel of land as largely irrelevant, so long as they could continue to exercise the rights of access over it which their properties would inevitably have after decades of such use. The protagonists here take a different view, for reasons and motives which – while strictly irrelevant to the issues I have to decide – remain something of a mystery even now.[4]Most recently, the First Respondent Dr. Brown sought to establish title to the Bellmouth on the basis that it formed part of the waste of the Manor of Pipe-Cum-Membris, the Lordship of which he acquired in 1998. That claim was tried as a preliminary issue in proceedings REF 2022/271-273 in this Tribunal, before Judge David Taylor between 13th and 15th February 2025. By his decision of 24th March 2025 (amended 22nd May 2025) [2025] UKFTT 00778 (PC), Judge Taylor rejected that claim.[5]Much further back in time, the same principal parties were embroiled in High Court proceedings, comprising joined actions commenced by Dr. Brown and his late wife by separate writs in 1984 then 1989. The latter claim, and so the proceedings overall, related in part to the status and use of the Bellmouth. Those proceedings were resolved by a 1995 compromise resulting in their discontinuance, “Heads of Agreement”, a significant transfer of land, and significant changes to the layout and topography of the Bellmouth. As will be explored further below, the terms and effect of that compromise are now an issue some 30 years later.[6]I said at the hearing that I would not waste time offering judicial homilies on how regrettable such a history was – between two educated and intelligent men, and their families, with attractive and historically significant properties in a beautiful semi-rural location close to an ancient cathedral city. For whatever reasons, they have not settled their differences after all these years. I have to decide the matter before me.The application before the Tribunal[7]That matter is now an application initially made this time by the First Applicant Mr. Edwards, in which his daughter Fleur and son Adrian later joined. It is an application, on form FR1, for first registration of title to the Bellmouth on the basis of alleged historical adverse possession of it – for a period of 12 years or more prior to 1995.The area of land subject to the application is shown hatched pink below.The land subject to the application (hatched pink)[8]The significance of 1995 is that the current configuration of the Bellmouth as pictured above – as an essentially open, tarmacadam surfaced entrance area – dates from works carried out to it after the compromise in that year of the High Court proceedings described above.[9]Their case therefore rests wholly on alleged acts of possession, with an intention to possess, prior to that time; when the Bellmouth was differently configured. As will appear, some of the acts upon which they now rely in this regard appear to be what precipitated some aspects of the 1980s High Court proceedings. Their case is therefore that they had acquired a fee simple absolute in possession to the land by 1995, of which they now seek first registration.[10]Thus stated, the case might appear to lie within a relatively narrow factual and legal compass. As will be explored below, however, this apparently simple application has generated multiple further issues. These necessitated, once again (as in the manorial waste proceedings) exploration of the conveyancing history of the relevant properties. A number of further arguments were raised by the Applicant in relation to the Respondents’ (principally the First Respondent) previous conduct and positions, and included allegations of “approbation and reprobation”, abuse of process and issue estoppel.[11]I will deal with these issues in turn below. As I made clear, and ruled, at the outset of the hearing, it was clearly in the interests of justice, and the parties themselves, for all issues reasonably raised by the parties (via their counsel) to be considered. I rejected arguments made by both counsel to the effect that the other party was precluded by their pleading from raising certain points. Both parties and their advisers have been aware, for a very long time, of the full range of arguments deployed by each other.[12]Before considering those issues, it is necessary once again (as Judge Taylor did) briefly to set out the history of the relevant properties and the current parties.The parties and their titles[13]The three Applicants have since 2013 been the joint proprietors, under title number SF 593411, of “The Gatehouse”. An extract from its filed plan is below. It was originally conveyed to the First Applicant’s late wife Hilary Edwards on 1st July 1972, out of the much larger unregistered title of Maple Hayes Home Farm Limited, the farming company controlled by her father Thomas William Matthews. She also took a later conveyance of additional land, known as the Field, on 23rd December 1977. Maple Hayes Home Farm Limited had acquired that land by a conveyance of 18th December 1950, from the trustees of a strict settlement created by the will trusts of Mr. Albert Octavius Worthington (of beer brewing fame), who died in 1918.The Gatehouse title filed plan[14]Mr. Worthington had, in 1884, acquired via an auction purchase the entirety of “The Maple Hayes Estate”, and the Lordship of the Manor later acquired by Dr. Brown. As well as including the farm land and buildings (including the Gatehouse, then known as the “Lodge”) later conveyed in 1950, this then included what one might colloquially call the “big house” – Maple Hayes Hall, a large late 18th century stately home and its substantial grounds.[15]Shortly after the 1950 conveyance, the Worthington settlement trustees conveyed Maple Hayes Hall to Staffordshire County Council, by conveyance dated 18th December 1951. It was then used as a boarding annexe for the local King Edward VI School. The First Respondent Dr. Brown became a governor of that school in the 1970s. When use of the Hall for boarding declined, the Council sold it to Dr. Brown and his late wife Brenda Mary Brown by a conveyance in January 1982. They were registered as its first proprietors under title SF 179462 with effect from 26th February 1982. Since then, Dr. Brown and his family have operated it as a school for children with learning difficulties, particularly dyslexia. The Second Respondent Daryl Brown is its current head teacher.The New Drive[16]Until the 1995 compromise of the High Court proceedings, access to Maple Hayes Hall, from Abnalls Lane via the Bellmouth, was obtained via a shared entrance drive (“the Drive”), part of which was within the land conveyed to Maple Hayes Home Farm Limited in 1950. A key term (clause 1) of the 1995 compromise was that the Edwards family conveyed to the Browns a strip of land (including a section of the original drive) for the purpose of creating a new and exclusive private entrance drive for the Hall/School. The Hall’s previous rights over the old drive were released. The New Drive was constructed and forms the entrance to the school to this day. An extract from the resulting title plan (SF 355361) to the New Drive is below, on which can also be seen the old Drive and the Gatehouse.The New DriveHistory of, and paper title to, the Bellmouth[17]The parties are agreed (on this if little else) that the following finding of Judge Taylor, in his 24th March 2025 decision in [2025] UKFTT 00778 (PC), is conclusive and can be taken as read:-(at paragraph 61):This was the basis of Judge Taylor’s decision that the Bellmouth could not therefore form part of the manorial waste which would have passed to Dr. Brown in 1998.[18]So it is common ground that someone – specifically John Atkinson – had a paper title to the land which became the Bellmouth (and which Bellmouth he in fact constructed) from 1829. What is not known, or rather is in dispute, is what became of that paper title after 1829.[19]No intervening conveyances of the Maple Hayes Estate survive from the period between 1829 and 1950 (the conveyance to Maple Hayes Home Farm Limited). In particular, what is presumed to have been an 1884 conveyance to Mr. Worthington following his auction purchase does not survive. The only evidence relating to that transaction is an 1883 auction catalogue. This gave particulars of the Maple Hayes Estate being offered for sale, including parcel descriptions and measurements, and a plan.The parties’ positions on paper title to the Bellmouth[20]The Respondents, following the unsuccessful attempt to establish a manorial title to the Bellmouth, did not initially assert any other paper title to it themselves. They, like any other persons, were entitled to object to any further application for title to it made by someone else to HM Land Registry. They did not require proprietary “standing” to do so.[21]Nor did the Applicants initially assert such title. They have not made any application to HM Land Registry on the basis that such title passed to them as part of the title to the Gatehouse, via the 1950 conveyance of the larger farm land then the 1972 conveyance of the Gatehouse alone to Hilary Edwards. Their only application, as stated above, is based on alleged historic adverse possession.[22]These positions have, however, now been somewhat modified during the course of these proceedings, as follows.[23]First, it was the Respondents’ initial pleaded case that paper title to the Bellmouth remained at all material times with the trustees of the Worthington strict settlement. Their purpose in asserting this was to make an argument that, by reason of section 18(2) Limitation Act 1980 and its predecessor provision in the 1939 Act, there could have been no adverse possession against the beneficiaries of such a settlement and trust. When required to provide further information as to this pleading, they stated that the strict settlement had come to an end in 1986, but that thereafter the trust property was held on trust for one David Worthington absolutely.[24]This Tribunal raised the issue, by my order of 18th August 2025, that this appeared to be a ius tertii argument (i.e. an argument or assertion that a third party had title, and a limitation defence) which only that party could raise. When the Respondents (in my view reasonably) submitted that this issue could not be summarily rejected as my previous order might have appeared to do, I varied and clarified that order by ordering (21st August 2025) that the point remained open to argue, but likewise subject to any application to strike out that part of the case. I also directed that the Worthington trustees be given notice of the proceedings, and the opportunity to join in them if they so wished.[25]In the meantime, the Respondents contacted the current trustees of the Worthington trust, and on 6th November 2025 took a conveyance (on a form TR1, for £15,000), with no title guarantee, of all such title and interest as those trustees had in the Bellmouth.[26]While Judge Brown, by order of 30th January 2026, refused the Respondents permission to amend “to add in two further paragraphs stating that they have now purchased the disputed land”, this was clearly on the grounds that the apparent purpose of the amendment was for “the Respondents to be registered as proprietors of the land” (paragraph 1, reasons). Since the Tribunal could not make such an order in these proceedings (an apparent further application by the Respondents for title having now been made to HM Land Registry, but not referred to this Tribunal) the application was refused (paragraph 3).[27]This does not:-i) alter the fact that the Respondents have in fact taken the conveyance as described above; or thereforeii) prevent them from arguing their section 18(2) Limitation Act 1980 point as originally pleaded. They say that taking the above conveyance “cures” the ius tertii/standing point, and now enables them to argue the section 18(2) point, standing in the shoes of the Worthington trustees as (they argue) the previous paper owners of the land.[28]For this reason, one of the issues in the case is now whether the Worthington trustees ever had such title. The Respondents argue that they did, because this was conveyed to Mr. Worthington in 1884 along with the rest of the Maple Hayes Estate.[29]The Applicants deny that title to the Bellmouth passed to Mr. Worthington in 1884 with the Maple Hayes Estate. As a “fallback”, however, they argue that if it did, then by the same token such title must also have passed with the 1950 conveyance of the land including what is now The Gatehouse; and presumably also then with the 1972 conveyance of The Gatehouse to Hilary Edwards. If such a finding were made, they accept that they would lose the immediate “battle” – their adverse possession application – on the basis that they could not have adversely possessed their own land. They would, however, have obtained a finding in their favour which would support a further first registration application based on paper title.[30]As will also be explored below, the Applicants make a further argument that the Respondents are barred from even asserting and arguing this point in these proceedings, under the doctrines of “approbation and reprobation” and abuse of process.[31]For these somewhat complex reasons, both parties, through their counsel, therefore made extensive submissions on those conveyancing and title matters, to which I shall return below.The issues in the case: summary[32]The issues to be decided can therefore be summarised as follows:-i) First, and most fundamentally, adverse possession. Can the Applicants establish that they and their predecessors were in sufficient factual possession of the Bellmouth, with a manifested intention to possess it, for a period in excess of 12 years prior to its reconfiguration after the 1995 compromise?ii) Second, paper title. Can the Respondents establish, on the balance of probabilities, that during the period of alleged adverse possession relied upon by the Applicants, paper title to the Bellmouth passed to and remained with the trustees of the Worthington strict settlement; so as potentially to set up a limitation defence under section 18(2) LA 1980?Subject to the issues under (iv) below, I did not understand it to be disputed that if the land were held under a strict settlement, section 18(2) and its predecessor would have had the effect of preventing time running.iii) Third, the Applicants’ further “fallback” paper title argument - that if paper title did pass to Mr. Worthington in 1884, it then also passed on the 1950 and 1972 conveyances, and so has ultimately passed to them.iv) Fourth, under the general heading of “Abuse”, are the Respondents precluded and barred in these proceedings from relying on and asserting the Worthington title and section 18(2) at all? The Applicants argued that they were, on the alternative bases of the doctrine of “Approbation and Reprobation” and abuse of process on the line of authority from Henderson v. Henderson (1843) 3 Hare 100. These arguments were based on various actions and positions taken by Dr. Brown in the last 30 years, beginning with the 1995 compromise and its “Heads of Agreement”.These submissions related only to that specific line of argument in opposition to the Applicants’ application [i.e. (ii) above]. The Applicants accept that the Respondents are entitled to oppose the adverse possession application generally by e.g. questioning the sufficiency of the alleged possession.[33]Although the respective counsel (Mr. Rothwell for the Applicants; Mr. Poole for the Respondents) took these in differing orders in their oral submissions, I will later take them in the order set out above, as did Mr. Poole.The oral evidence[34]I heard oral evidence from only one witness on each side: the First Applicant Mr. Roger Edwards for the Applicants, and the First Respondent Dr. Ernest Brown for the Respondents. Both gentlemen, despite their age, gave their evidence clearly and fluently under cross-examination, with little need for rest breaks or other accommodations.[35]In this as in all cases, I was principally concerned with any evidence of fact as to physical events and circumstances which these witnesses could give, from their own personal knowledge. I was less interested in their arguments, commentary or opinions on documents, photographs or the statements of others, although both of them provided some of these in their statements (and were asked about them).[36]Mr. Edwards, who was born in the 1930s, knew and visited Maple Hayes Home Farm from the mid-1950s onwards, after he met his late wife Hilary, whose father was (Captain) Thomas William Matthews. He and Hilary lived in The Gatehouse as their family home from 1973, after it had been transferred to Hilary by her father’s company in 1972 as described above. He has lived there ever since.[37]Although his witness statement and earlier statutory declarations may, from some of the language used, have given the impression that the whole of the Bellmouth was in some way “fenced” or enclosed from the 1950s, he confirmed in oral evidence that it was an essentially open and unenclosed area; until various items were placed in and on it from the late 1970s/early 1980s onwards.Position from 1950s to late 1970s/early 1980s[38]The only fences or solid features which existed on it prior to this time were:-i) a small semi-circular piece of picket fencing, present since the 1950s, which enclosed and formed the physical boundary of a woodland area on the farm to its south. On its northern side was an unenclosed grass triangle.ii) the picket fencing forming the physical boundary and curtilage of The Gatehouse, around which trees and shrubs were also planted.[39]Between the grass triangle and The Gatehouse picket fence, the rest of the Bellmouth was an unsurfaced access way, comprising grit or gravel, which led via gates to the entrance drive serving The Gatehouse, the further property Maple Lodge built in the 1950s, and Maple Hayes Hall further up. A sign stood inside the Gatehouse picket fence, which read “Maple Lodge and Maple Hayes – Please Keep to Drive”.[40]Although no photographs were in evidence showing the whole of the area prior to the late 1970s and early 1980s, a photograph produced by Dr. Brown from the 1970s shows most of the unsurfaced access way area, the Gatehouse fence and sign, and the tip of the grass triangle where it approaches Abnalls Lane.Access way part of Bellmouth, 1970s[41]Mr. Edwards’ evidence, as to the period from the 1950s to the late 1970s, was that:-i) he assumed, and believed, that all of this area had belonged to his father-in-law (or rather, his company); then after 1972 to his family (technically, his wife Hilary as the owner of The Gatehouse). He said that his father-in-law also held this belief.ii) as to what he, or they, actually did to or on this area in this time, he said that they “kept it tidy”. By this he meant that they, or their workmen, would clear fallen branches and other debris from it. They also mowed the grass triangle. In oral evidence he added that his wife Hilary had planted some flowers and mint around the area of the curved fence on that triangle. He accepted that they had not “maintained” the access way area by surfacing or carrying out any specific works to it, but they had kept it tidy and free of obstructions as and when required.Posts and other objects from late 1970s/early 1980s[42]There was clear photographic evidence, orally confirmed by Mr. Edwards, that various objects were added to and placed on this area from the late 1970s/early 1980s. Further, it is clear that some of these are in part what precipitated at least one of Dr. Brown’s High Court claims in the 1980s. His own Statement of Claim in that claim provides a relatively contemporaneous record, from his perspective and presumably on his then instructions, of what was put there and when.[43]First in time, Mr. Edwards and his family laid some logs along the sides of the grass verges on either side of the access way. These served to protect the grass areas from damage by vehicles. They can be seen in a photograph from around 1979 or 1980 showing Fleur Edwards aged about 9 or 10 (below). A light coloured wooden post is also visible. In the background is the fence separating the grass triangle from the public footpath to the nearby Pipe Green.c. 1979/1980, showing logs by grass verges[44]Then, by a date which Mr. Edwards recalled as the “very early 1980s”, he and his family went slightly further. They inserted a line of small white posts on the west side of the grass triangle. They also placed a line of stones on the other side, close to the Gatehouse picket fence (whether these are accurately described as “large boulders” is debatable). It emerged from the oral evidence of both Mr. Edwards and later Dr. Brown that a large wooden post at the “apex” of the grass triangle was in fact placed there by the trustees of the Pipe Green Trust, as a marker to indicate the path to Pipe Green to the left of it.[45]The resulting position was very well captured in three photographs in particular. I attach these below, because on one view, the Applicants’ case on adverse possession rests on what these show and signify.Grass triangle, showing semi-circular picket fence, and line of small posts on sideGatehouse, access way and (in shade) grass triangle, viewed from Abnalls LaneClearer view of access way and grass triangle, showing fencing, posts and stones.[46]I accept Mr. Edwards’ evidence, and find, that these photographs were taken in – and most of these items were in place by – 1982 or 1983 at the latest.The 1989 High Court claim[47]The evidence of the photographs above is corroborated by Dr. and Mrs. Brown’s Statement of Claim dated 14th September 1989, settled by counsel, in the second of the two High Court actions which he commenced in the 1980s (claim number 1989 B. 30508). This was a claim for obstruction or interference with a public highway and/or their private right of way to Maple Hayes Hall.[48]The Browns’ principal case was then that the whole of the area including what is now being referred to as the Bellmouth was part of the public highway of Abnalls Lane, and that the Edwards family (and the Pipe Green Trust as third defendant) had done various things amounting to an obstruction of that highway and a nuisance, from which the Browns had suffered particular damage. Further or in the alternative, these matters were said to be an interference with the Browns’ private right of way over the same area. Declarations, injunctions and damages were sought.[49]The particular matters complained of included the following, illustrated by reference to the plan copied below:-i) that Mr. and Mrs. Edwards had moved the Gatehouse picket fence from position “C” to “D” on the plan, so as to enclose more land and narrow the entrance (paragraph 7).ii) that “In or about April 1982”, they had erected “bollards” on the area edged pink, and also “laid turf at the edges of the metalled way” so as to “diminish [its] width” (paragraphs 8 and 9).iii) “In or about 1983” they had “laid turf along the fence marked ‘Fence D’ on the Plan and placed rocks thereon”, in the area shaded blue (paragraph 10)iv) “In 1985” they had planted shrubs and trees in the area coloured blue, and also in the area edged pink (paragraphs 11 and 12).v) it was also alleged that the semi-circular picket fence, described as “Fence B”, had been moved by them “In or about 1978” from a previous position (marked “Fence A”) further south (paragraph 6).Plan attached to 1989 Statement of Claim[50]I am satisfied – and there was no evidence to the contrary – that this remained the position on the ground until:-i) those proceedings were compromised in 1995 on the terms of the “Heads of Agreement”; thenii) in the year or years which followed (I note that Judge Taylor, in the previous case, found this to have been in 1997) the Bellmouth was re-surfaced and reconfigured, in association with the transfer and creation of a new entrance for Maple Hayes Hall.Dr. Brown’s evidence[51]Although Dr. and Mrs. Brown moved to the Lichfield area in about 1963, they lived around a mile from Maple Hayes and had no knowledge of the area until around the mid-1970s. That was when Dr. Brown began to act as a school governor. Even so, since Maple Hayes Hall was a boarding annexe and not the main school building, he only visited it “sporadically”, and accepted that he had no particular reason to pay close attention to its entrance when he visited.[52]His evidence of the position prior to the early 1980s broadly accorded with that of Mr. Edwards, save that he claimed to have seen an agent or employee of Staffordshire County Council (who then owned Maple Hayes Hall) carrying out repairs to both the main driveway and Bellmouth. He accepted, however, that the Bellmouth remained essentially unsurfaced until his own works carried out much later after 1995. He was not able to say who had cut the grass on the triangle.[53]When taken to his 1989 Statement of Claim, he accepted that the dates of the various matters complained of would have reflected his instructions to his solicitors and counsel. He was taken to the photographs shown above, and agreed that most of the matters shown in them would therefore have dated from at least 1982 or 1983.The 1995 settlement and subsequent works[54]It is convenient to deal with this while considering Dr. Brown’s evidence. He was of course a principal party to the High Court proceedings and their eventual settlement. It was also he who then carried out, by agreement and through contractors, the works to create the new entrance to Maple Hayes Hall, and to level and tarmacadam the Bellmouth, so as to create the configuration existing today.[55]It is common ground that the High Court proceedings were formally discontinued, but on the detailed terms of a signed, eighteen point 1995 “Heads of Agreement” document. It is undated but was presumably agreed before 6th April 1995, the date by which a “Contract” reflecting the Heads of Agreement was to be drawn up and signed. Although no separate “Contract” survives, there is no reason to suppose or infer that anything different was agreed subsequently.[56]I will not set out the contents of the Heads of Agreement in full. The key points, relevant for present purposes, were the following:-i) (Clause 1) Mr. and Mrs. Edwards would transfer to Dr. and Mrs. Brown, for £35,000, the strip of land which would become the new drive.ii) (Clause 2) a long and detailed provision as to the replacement and moving of a septic tank, but which included a definition of the “Retained Property” of Mr. and Mrs. Edwards, said to include an area “hatched green on Plan 1” and shown for the purposes of identification “edged brown on Plan 2” .While it appears that Plan 1 was the “Deed Plan” drawn by a Mr. Midgley, extract below, Plan 2 does not appear to have survived.iii) Clause 10 set out various covenants to be made by the parties. Mr. and Mrs. Edwards covenanted as follows:
“..to use their best endeavours to persuade Staffordshire County Council to accept a dedication of the yellow land and will further covenant not to carry out any construction work on the hatched green land other than such work as may be necessary in conjunction with the construction of the new septic tank. Dr. and Mrs. Brown acknowledge that the land to be dedicated does not impinge upon the existing fence and hedge line outside the gatehouse.”
Both parties then covenanted, on behalf of themselves and their successors in title :“..not to permit anything to be done that shall or may in any way impede or obstruct the use of the Property the Retained Property or the yellow land as a right of way for all purposes leading to Abnalls Lane.iv) at clause 11, Dr. and Mrs. Brown covenanted to lay out the new drive shown coloured purple, and would then immediately cease to use and relinquish any right over the blue and hatched green land (confirmed in clause 12).An extract from the plan which must be presumed to have been “Plan 1”, showing the colourings above, is below (ignoring the red circle subsequently annotated).Plan 1 from 1995 Heads of Agreement[57]Although not being asked for a commentary or opinion on the 1995 Heads of Agreement, Dr. Brown was reluctant in oral evidence to accept that the covenant in clause 10 to use best endeavours to dedicate the yellow land as a public highway was made by Mr. and Mrs. Edwards alone. He claimed that this was a “tripartite” obligation. He also accepted that he subsequently refused to give his consent to the local highway authority to the dedication – because, he said, of their refusal to include a condition that “no parking or waiting” signs were erected alongside it.[58]That subsequent process is evidenced by two letters from Staffordshire County Council to Mrs. Edwards. In the first, of 12th May 1997, they stated that they had been advised that in order for them to fulfil their obligations under a 1981 “Section 52 Agreement”:
“..there should first be some formal deed, either of dedication or acknowledgment, entered into by Dr. and Mrs. Brown, the third party landowner (Pipe Green Trust?) and yourself to the effect that the bell-mouth area is part of the public highway.”
Until that was done, they would take no further action, and had not received a response to a May 1995 letter to Dr. Brown’s solicitor. By 24th March 1999, the Council said that the dedication process was still “ongoing”, but that it was still awaiting “..a response from the school, which is the cause of the present delay”.[59]There was little else in Dr. Brown’s cross-examination, or oral evidence in response to it, which was relevant to the factual issues I have to decide. Most of what has happened since, including the course of subsequent applications and proceedings, is a matter of record. I mention only the following further matters.[60]After what appears to have been an uncharacteristically long ‘truce’ period, the next event of note was that in 2017 Dr. and Mrs. Brown made an application, presumably on form FR1 and accompanied by a statutory declaration dated 25th July 2016, for title to the Bellmouth by adverse possession.[61]Dr. Brown was asked about some of the things he said in this statutory declaration. While he sought, in answering these questions, to rationalise what he had said, I consider that it was a somewhat misleading document.[62]He made no mention whatsoever of the 1980s litigation or the 1995 compromise agreement. He simply said, without further explanation, that the route of the vehicular access to Maple Hayes Hall was “altered in April 1995”, so that an “additional roadway” was built on land conveyed to him (he did not say by whom it was conveyed, or why). He then sought to portray the surfacing of the Bellmouth in October 1995 purely as an act of ownership and possession by him, done because of “deterioration” of its surface. He then said, in the most surprising paragraph of all (paragraph 12):
“There has never been a dispute as to the ownership of the Bellmouth or our adverse possession of it and it has been continuously used by Brenda and I, deriving ownership as of right without the consent of any person and without interruption and without payment of any kind to any person whatsoever from 1982 to the present day.”
[63]As was put to him, that was a misleading statement. Not only had they never themselves previously asserted or claimed ownership of the Bellmouth, their own 1989 proceedings had been brought precisely because they claimed that Mr. and Mrs. Edwards had “interrupted” or obstructed their use of it. When asked why he had failed to mention any of this, or the 1995 settlement, Dr. Brown said “I don’t know.” Mr. and Mrs. Edwards lodged an objection to this application when notified of it. Shortly afterwards, Dr. and Mrs. Brown withdrew the application altogether.[64]There was also a factual dispute over who paid for some re-surfacing works to the Bellmouth in 2019. Dr. Brown claimed that he paid the whole cost of the works, whereas Mr. Edwards said that they paid half each. When shown an invoice addressed to Mr. Edwards dated 3rd September 2019, for £1980, being “50% cost of works carried out as described”, Dr. Brown said “it appears to be so” but nevertheless said “We paid [for] the whole thing”.For all that it is relevant, I prefer the evidence of Mr. Edwards on this point, as supported by the invoice specifically addressed to him.[65]The course and outcome of the “manorial waste” application and proceedings is a matter of record, as set out in Judge Taylor’s decision. That was tried as a preliminary issue while the Applicants’ adverse possession application was then in prospect. The only point from those proceedings to which Mr. Rothwell referred Dr. Brown was a letter from his solicitors dated 23rd May 2023, in which they first raised the potential limitation defence/strict settlement point in relation to the Worthington trust under section 18(2) Limitation Act 1980. Having done so, they then commented, however, that if Dr. Brown’s manorial waste claim were unsuccessful:
“..then Adverse Possession may or may not, depending on the facts which the First Respondent [Mr. Edwards] can prove, be relevant but, since the Applicant would not in that case have a claim to the land, that would not be his concern.”
[emphasis added]This letter was being written in support of the suggestion that the manorial claim be tried as a preliminary issue, which it then was.Issue 1: Adverse Possession?i) the law[66]There was little dispute between counsel over the central legal principles to be applied on this issue. There was, however, a difference of emphasis on the particular principles said to be determinative in a case such as this, involving land consisting essentially (at the material time) of an access way with adjacent grass verges.[67]An applicant claiming title to previously unregistered land must establish that they have been in possession of the land, without the consent of the paper owner, for a period of 12 years or more (sections 15 and 17 Limitation Act 1980). Such possession has two elements:-i) Factual possession, namely a “sufficient degree of exclusive physical control” of the land in question.ii) An intention to possess or “animus possidendi”, namely “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.”(see Powell v McFarlane (1979) 38 P&CR 452 at 470-471, per Slade J., as later approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30.) 68. What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed: see Powell at 471. Mr. Rothwell also referred to the very recent Upper Tribunal decision in Dobson v Unsted [2026] UKUT 93 (LC), which concerned an area of unenclosed open garden land. 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: see Powell (ibid), and also Thorpe v. Frank [2019] EWCA Civ. 150, paragraph 40 per McCombe LJ “...the sort of actions that one would expect an occupying owner to do in dealing with this land.” (in that case digging up and re-laying an open forecourt area).[69]In Dobson v. Unsted, the disputed land was a small (1m x 2.3m) open patch of grass abutting the road verge which (it was held on appeal) anyone looking at it would have thought was part of the appellants’ front garden (paragraph 61). It was held that what had been done by the appellants’ predecessors – mowing that area and keeping it tidy, along with the rest of their garden, when the neighbouring owner did not (and was not even aware of its separate existence) – was sufficient (paragraph 72). The appellants themselves had also subsequently been in possession of the land by mowing, raking, planting and re-seeding it, as an occupying owner would do (paragraph 80).[70]It was said many years ago that while physical enclosure by a fence or other barrier was amongst the strongest possible evidence of possession, it was not necessary in every case (see e.g. Seddon v Smith (1877) 36 LT 168, and more recently in Pilford v GreenmanorLimited [2012] EWCA Civ 756, at paragraph 27, per Etherton LJ). It was very recently said, in Kirkman v. Bradshaw Pub Company Limited [2025] UKUT 110 (LC) that:“If the characteristics of the land are such that an occupying owner would not have been expected to enclose it, the failure of the applicant to enclose it is unlikely to be crucial and may even simply be irrelevant.” (per Deputy President Martin Rodger KC, at paragraph 33). [and see also Dobson, supra, above].[71]It is also well-established that if the acts of possession are sufficient, it is irrelevant to ask whether the possessor could have done more: see Purbrick v Hackney LBC [2004] 1 P & CR 34 at [20] et seq per Neuberger LJ.[72]Kirkman is also a recent authority confirming the principle that possession of part or parts of an area may be treated as possession of the larger whole area if there is:- “such a common character of locality as would raise a reasonable inference that, if a person were possessed of one part of it as owner, then he would possess the whole of it”: (Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch) at [63], per Lindsay J. at first instance).[73]In Kirkman, an appeal was allowed against a finding that an applicant had only been in possession of certain parts of the disputed land. That land was described at paragraph 29 of the decision as follows (and also illustrated by a plan):
“The application for registration was made for the whole of the Disputed Land, comprising the Washhouse, the outside area and the Ashes Places. Additionally, Mr Kirkman was the registered proprietor of the Privy, of which he was in actual or constructive possession. The two buildings, the outside area lying between them and the Ashes Places lying behind the Privy formed a single geographical unit enclosed within continuous stone walls and capable of being accessed from the road at a single point. It is true that parts of the geographical unit comprised buildings and part was open, but the whole was a visual unity, almost fully enclosed, occupying a restricted space, isolated from other buildings; it was also a functional unity, having formerly met various needs of the occupants of the cottages and subsequently, since 1988, being used for storage.”
[74]The Upper Tribunal found that the FTT judge had fallen into error by finding that possession was established only of parts of the land - the buildings and structures, but not the open areas in between. It was held that the “whole unit” had a “common character”, so that possession of the buildings could be treated also as possession of their curtilage consisting of the narrow open areas between them (paragraph 32). The judge had also attributed too much weight to the open areas being unenclosed along an opening onto a road “obviously intended as an access”. Fencing this opening would have been difficult and served no practical purpose, and the area was “already enclosed around almost the whole of its boundary” (paragraphs 33 and 34). The open areas had been used as an occupying owner would have used them.[75]The error of

the judge on the “part/whole” point was described as follows (at paragraph 28):

“she divided the site into separate components which she considered independently of each other, without either considering the land of which Mr Kirkman claimed to have been in possession as a whole or considering the functional relationship between the areas she identified and how the degree of control demonstrated over each of them reflected on the control exercised over the remainder.”
[76]The “intention to possess”:“simply means an intention to exercise such custody and control on one’s own behalf and for one’s own benefit i.e. to use the land “as one’s own”: JA Pye Limited v. Graham, paragraphs [40], [71].It is not necessary to prove a deliberate intention to oust or exclude the paper title owner or registered proprietor, or any particular belief in ownership or entitlement. In many cases, however, the possessor may in fact believe that they already own the land. That would more than suffice to establish the lesser intention to possess. Conversely, even a person who knows that they do not own the land in question, and would leave if asked to do so, may still intend to possess it for as long as possible.[77]While the possessor is not required to ‘raise a flag’ or broadcast their intentions to the world, their intention to possess should be sufficiently manifested from their actions so as to make their intention clear. Slade J. in Powell said (at p472) that the possessor must have made their intention to possess unequivocal and “perfectly plain” from their actions:
“..where the question is whether a trespasser has acquired possession….. 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.”
[78]A claim to adverse possession is not liable to be defeated merely because the relevant land is subject to a third party right such as a private right of way or can otherwise be passed over: see Roberts v. Swangrove (supra) at [45]. The successful ‘squatter’, however, would acquire their title subject to any such pre-existing rights: see Re. Nisbet & Potts Contract [1906] 1 Ch. 386.[79]As I pointed out in oral argument, however, and as has been illustrated in many cases, it may sometimes be difficult for an adverse possession claimant to establish that they have been in sufficient factual possession, with a manifested intention to possess, of land consisting of an open track, road, path or alley used by others. For this reason, I gave both counsel further opportunity to make written submissions on this issue, which they both did (and for which I am grateful).[80]First, if a road, track or similar way has generally been open for use, and has been used by various people, and in particular if there are rights of way exercised over the whole of it (as opposed to e.g. just crossing one part of it) it may be difficult for the applicant to establish that he has had sufficient exclusive physical control of it amounting to factual possession. This was recognised by the Court of Appeal in Simpson v. Fergus (2000) 79 P&CR 318 (CA), per Waller LJ:“But to my mind, it is not correct, and would indeed be a serious heresy, to say that because it is difficult or even impossible actually to take physical possession of part of a reasonably busy service road, that simply for that reason some lower test should be imposed in deciding the issue of exclusive possession.” (p402-3)[81]Second, the would-be adverse possessor of such a lane or road may have exercised acts of use and passage over it, and carried out acts ancillary to such use and passage, which are equally explicable as and referable to him having simply a right of way over it i.e. an easement rather than possession. Such acts may therefore be “equivocal” so far as manifesting any intention to possess. It may not be obvious and “manifest” to the outside world that such a person is purporting to be an occupying owner of the lane/road as opposed to a user of it. See, in particular Littledale v. Liverpool College [1900] 1 Ch. 19 (CA) (even where the way was gated), and more recently per Michael Green J. in Amirtharaja v. White [2021] EWHC 330 (Ch.) (upheld on appeal on a different point at [2022] EWCA Civ. 11), who confirmed that Littledale remained good law.Like Littledale, Amirtharaja concerned a passageway which had actually been secured by a lockable gate, but it was held that because the would-be possessor also had a right of way over it, this “..rendered acts of enclosure equivocal as to whether they were intended to protect the right of way or to exclude the owner.” (paragraph 58; also at paragraphs 80 and 85).Discussion and analysisThe earlier years (1950s-early 1980s)[82]Mr. Rothwell, for the Applicants, submitted that even in the years before the posts and stones were put in place, the Applicants’ family (via Hilary Edwards as owner of The Gatehouse after 1972, and Captain Matthews’ company before her) had done all that occupying owners would do with a “scrappy area of verges and an unsurfaced driveway”. He relied on Mr. Edwards’ evidence that their family had always mowed the grass triangle and kept the area (including the driveway) “tidy”. Although there was no evidence of any objects being placed on the land in this time, save for the white picket fencing on either side, it was not necessary – he submitted – for there to be any, or any overall enclosure. While he accepted that the Applicants had no evidence for the statement in their Statement of Case that they had provided “financial upkeep” of this area in this time, he submitted that no-one else had maintained or spent money on the land either.[83]Mr. Poole submitted that, in the absence of any enclosure, or significant acts or objects on any of this land, this was simply not enough to constitute possession. As for enclosure, he noted that the semi-circular fence on the southern end of the grass triangle had been said by Mr. Edwards to have been there even before the 1950 conveyance, and in any event marked the physical boundary of the farm and woodland area to the south of it. It was not some token or indication of possession of the wider Bellmouth. The white picket fence beside the Gatehouse was likewise its boundary fence. All the land between those fences was simply a driveway and verges used in common between the Gatehouse, Maple Lodge and the Hall/School. Not only was there insufficient, or any, exclusive factual possession by any particular person – it would not have been apparent to any observer, or the paper owner, that anyone was in possession of it at all, as opposed to simply using it to access their property. As for maintenance, there was no positive evidence that any of the Applicants’ family had ever “maintained” the driveway (e.g. by filling in holes) at all, and the inference was that if anyone had, it would have been the Council (either as the then owner of the Hall, or as highway authority).[84]Having regard to these submissions, and the principles set out above, I am not satisfied that the Applicants’ predecessors were in sufficient exclusive factual possession of the Bellmouth, with a manifest intention to possess it, during this time.[85]While I can accept that Mr. Edwards may personally have believed that his father-in-law’s company, then his wife, owned it, that is not enough by itself. Very little was actually done to or on the area at all in this time. The grass triangle may have been mown, and debris cleared, but this is a quite different factual situation from that in Dobson v. Unsted. This was not a piece of lawn contiguous with a larger garden. It lay outside the picket fence to the south of it. It was, in substance and appearance, a grass verge or splay adjacent to an external entrance way.[86]More importantly, the Bellmouth would not have appeared to the outside world as an obvious adjunct or possession of the owner/s of The Gatehouse. It served as the entrance way from the highway to three properties, and was entirely open to and unenclosed from that highway. If a passer by, or the paper owner, had seen someone mowing the grass triangle or picking up litter, they would have had no way of knowing whether these were acts of ownership, or simply keeping an access way tidy and clear. They might also have assumed that the area was part of the highway itself.[87]Any acts of this nature which the Applicants and their predecessors may have carried out in this time were therefore both insufficient as factual possession, and did not manifest a sufficiently unequivocal intention to possess it to the exclusion of all others.Position from c. 1982 onwards[88]I consider that matters changed somewhat once the Applicants and their family (bearing in mind that the owner of The Gatehouse was Hilary Edwards at this time) began to place objects on and around the land in the early 1980s. The photographs displayed above largely speak for themselves, and I have set out my findings as to the dates of the various objects being placed.[89]I also have regard to the High Court proceedings and the Browns’ Statement of Claim in the 1989 action. It was very much the point of those proceedings that the defendants as identified – including Mr. and Mrs. Edwards – had done things on the land which were apparent, and which affected the exercise of the Browns’ right of way over it. The Browns’ principal case was that the whole land was part of the public highway. Although the actual defences filed by the defendants in those proceedings do not survive, there is secondary evidence from paragraph 13(3) of the Edwards’ Statement of Case (settled by counsel, Mr. Stafford) in the manorial waste proceedings that in the 1989 High Court proceedings “..Disagreeing with SCC’s belief that it owned the bellmouth, Hilary stated her claim to ownership in reliance inter alia on the conveyance of 23 December 1977 [sic: this appears to be a slip for “1972”]”[90]I have set out above the various matters of which the Browns then complained – the bollards, the stones, the alleged moving of fences to enclose more land, and the laying of additional turf. All of these matters were sufficiently obvious, and vexing to the Browns as the new owners of Maple Hayes Hall, for them to bring court proceedings. Likewise, it was obvious and apparent to them – and therefore to the whole world – who had done these things. I am also satisfied, from the evidence above, that Hilary Edwards had clearly ‘set out her stall’ and claimed the right to do so as owner of this land, via herself and her wider family.[91]In my judgement, this clearly removed any equivocality about these acts, or who was behind them. If, therefore, they sufficed as factual possession, there would be no doubt about an intention so to possess being manifested.[92]The crucial question, therefore, looking again at the photograph below, is whether what one sees in it amounts to factual possession, and of what; as at (as I have found) 1982.[93]I have carefully considered Mr. Rothwell’s submissions, and in particular the cases of Roberts v. Swangrove and Kirkman v. Bradshaw Pub Company Limited discussed above; and also his further written submissions. I am mindful of his warning against the potential error of adopting a piecemeal or “slice by slice” approach to adverse possession, so as to divide up what is in substance a single unit of land with a “common character of locality” into separate components.[94]On careful consideration and reflection, however, I consider that this is a case where factual possession of parts of the land claimed – but not the whole – is established.[95]I consider that the acts described and pictured above were acts of possession actually dividing and separating the grassed areas from the open and unsurfaced entrance way between them. I suggested in oral argument that the effect and import of those items might be described as “Keep Off The Grass!”, and consequently to stay on the common entrance way. I am now satisfied that this is what they in substance were.[96]Mr. Rothwell sought to compare the relationship between the grassed areas and the entrance way to that of a lawn with a “garden path” running through it, but I consider that to be a false comparison. The entrance way here, at this date, served three properties, including a school with hundreds of pupils and staff. As before, nothing was done to or on that entrance way itself. The effect and appearance of the bollards, posts and stones, however, was to enclose the lands on either side of it – effectively adding those areas to the curtilage of the lands fenced just a short distance behind them.[97]Any “common character of locality” in this area was therefore created between (looking at the photograph):-i) on the right, the thin grass strip and the white fence of The Gatehouse (including any alleged encroachment by that fence). The stones on that side were effectively an extension of its curtilage.ii) on the left, the low white bollards, stones, the grass triangle and the picket fence-enclosed area beyond. In effect, this too was an extension and addition to the garden or land previously bounded by the picket fence.[98]Those relationships between those areas are what correspond to the relationship between the small patch of lawn in Dobson v. Unsted and the respondents’ (in that case) wider garden. I consider they were quite distinct from, and did not therefore have a “common character” with, the entrance way between them. It cannot just be asserted that someone who encloses or fences off verges – but not the road which they abut – is also in possession of that road. I have set out above some of the difficulties that parties may face in claiming to have “possessed” roads or ways, even where they have erected lockable gates across their entrance points. In this case, I repeat that nothing of significance was done on or to the entrance way itself. It was left as it was, open for use by all comers to the two houses and the school.[99]While courts and tribunals are in any event cautioned against extrapolating too much from the particular facts of one case, I also consider that the “common character of locality” found to have existed in Kirkman was on very different facts, and involved land of a quite different nature – a largely enclosed yard or unit, with interstices and areas between buildings within it. It is readily understandable, on such land, that possession of the buildings could be taken to signify possession of everything in between; particularly when as stated, save for one entrance point, the whole unit was enclosed by the walls of the buildings and a “2 metre high stone boundary wall”.[100]I also resist any appeals, which both counsel made in differing degrees, to the “impracticality” of any findings of possession of part. It is my duty to decide the case according to principle and the evidence before me, not to find a practical solution convenient to the parties. They have had over 40 years in which to do that themselves.[101]I find that the possession of those parts, as set out above, continued for a period in excess of 12 years prior to:-i) the 1995 Heads of Agreement compromising the court proceedings; and thenii) the reconfiguration and surfacing works carried out afterwards.The court proceedings were not a possession claim brought by a purported owner of the land, so they did not stop time running for these purposes[102]So strictly speaking it was Hilary Edwards, who was then still the sole owner of The Gatehouse, and on whose behalf the acts of possession must be presumed to have been carried out, who potentially acquired an indefeasible fee simple in possession to those parts of land; I find by April 1995 at the latest. There is no issue that any such title as she may have acquired has been succeeded to by the current Applicants.II. Paper title: the Worthington trustees: section 18(2) Limitation Act 1980[103]For all the erudition and research expended upon this issue, in the end I consider it to be relatively straightforward.[104]The burden of proof lies squarely on the Respondents to prove, on the balance of probabilities, that:-i) Mr. Worthington acquired title to the Bellmouth by an 1884 conveyance.ii) that land was then held and retained on the trusts of the Worthington strict settlement at all times after Mr. Worthington’s death in 1918, and including some or all the period of adverse possession relied upon by the Applicants.It is not disputed (subject to all the further arguments below) that in principle, if the land were held in strict settlement during this time, this would have prevented time running by reason of section 18(2).As stated, there is likewise no dispute that the Respondents have in fact now taken a conveyance from the current Worthington trustees of all such title and interest as they had in this land.[105]This is, in essence, a claim that the Respondents now have (and the Worthington trustees had) a good paper title to the Bellmouth. As such, it is analogous to an application for first registration of absolute or qualified title under section 9 Land Registration Act 2002. That specific application has not been referred to this Tribunal, but that is in essence the finding the Respondents seek to establish by making this argument in opposition to the Applicants’ application.[106]This would require the registrar to be satisfied that the title in question was “..such as a willing buyer could properly be advised by a competent professional adviser to accept.”, disregarding “…the fact that a person’s title appears to him to be open to objection if he is of the opinion that the defect will not cause the holding under the title to be disturbed”. [sections 9(2) and (3)] Qualified title could be granted if the title could be “..established only for a limited period or subject to certain reservations which cannot be disregarded under subsection (3)” [s9(4)][107]In unregistered land, title is established by showing a “good root of title” then its devolution to the present party. Megarry & Wade (The Law of Real Property, 10th edition, paragraph 14-077) state that:
“A good root of title is a document which describes the land sufficiently to identify it, which shows a disposition of the whole legal and equitable interest contracted to be sold, and which contains nothing to throw any doubt on the title….”
They continue (14-078):
“Having established a good root of title of the necessary age, the vendor must then prove all the later steps in the title which lead to the present day. If the land has been in the vendor’s ownership for more than 15 years there may be nothing more to prove. But more probably there will have been intervening transfers on sale, death or otherwise, which are necessary links in deducing the title to be proved….If the proof is defective at any point, or if the title shown appears to be bad or doubtful, the purchaser is entitled to terminate the contract on the ground that the vendor is unable to perform it.”
[108]I consider that Judge Taylor’s finding, binding on the parties, that the land including the Bellmouth was conveyed to John Atkinson in 1829 could potentially provide a sufficiently good “root of title”, even though the actual conveyance to Mr. Atkinson does not survive (only a draft).It is from then on, however, that the Respondents face considerable difficulties.[109]No intervening conveyances of Maple Hayes Estate survive between then and 1950. Even the names of the intervening owners of that Estate, and the Lordship of the Manor, are known only from historical research in Volume 14 of A History of the County of Stafford (Victoria County History, 1990) which was in evidence in the manorial waste proceedings (and was at page 1025 of the bundle before me). That stated that Mr. Atkinson “sold the freehold portion of the estate, including the house, to Sir Thomas Fremantle in 1839, and the leasehold portion to Sir James Fremantle. There is then reference to a sale of “the house and 180a.” to one Samuel Pole Shawe in 1851; and then to his son Henry Cunliffe Shawe selling “the house and 455a of the 1010a. estate” to Albert Octavius Worthington in 1884. There is then further reference to the 1950 conveyance, and the sales to the Council then Dr. Brown and Captain Matthews.[110]In the absence of any conveyances between 1829 and 1884, and crucially the 1884 conveyance itself, I consider that it is simply not possible to establish on the balance of probabilities that Mr. Atkinson’s title to the Bellmouth passed ‘along the line’ to Mr. Worthington in 1884. The above history refers to multiple transactions to various parties, generally said to have included sales of part of the larger estate. To determine whether the Bellmouth passed on any of those conveyances, or else ‘fell through the cracks’ and was retained by a previous owner, it would be necessary to construe each of those conveyances to ascertain what parcels of land were conveyed; to provide the “..necessary links in deducing the title to be proved.” Such an exercise is simply impossible in this case.[111]The absence of the 1884 conveyance is, however, the fatal blow. It is not even possible to state its date. The only secondary evidence which exists as to its possible contents is from a set of particulars, produced by Mr. Charles Gillard, auctioneer, for an auction on 27th July 1883 of “The Maple Hayes Estate”. These were accompanied by a lot plan.[112]Nothing in the auction particulars description of “The Mansion”, or any of the various farms and houses (including the “Lodge”, which the Gatehouse then was), makes any specific reference to the Bellmouth area lying immediately adjacent to that Lodge. It was said only that “The Approach to the Mansion…Is by a Carriage Drive through the Park, and there is a convenient Entrance Lodge with suitable Out-Offices”. That says nothing about whether a patch of land beside that “Entrance Lodge” is included in the sale.[113]If - which we do not know, since we do not have it – the eventual conveyance to Mr. Worthington utilised the auction particulars plan, and if (which again we cannot know) it referred to such a plan to any extent as delineating what was conveyed, that is equally unhelpful and potentially adverse to the Respondents. It shows the tithe parcels corresponding to the Lodge and its adjoining field, and all other parts, coloured pink and bounded by physical features. The Bellmouth area is clearly outside those pink areas, and is shown white, along with Abnalls Lane (see extract below).Part of auction plan showing Bellmouth area uncoloured[114]The Respondents did not eventually contend at trial that Judge Taylor’s obiter findings at paragraphs 71 to 82 in the manorial waste decision constituted a binding determination that the Bellmouth formed part of the Maple Hayes Estate. These findings were made on the hypothesis that Judge Taylor was wrong in his principal finding that the Bellmouth was conveyed out of the Manor in 1829. The question would then have arisen of whether it formed part of the demesne, or the waste, of the Manor. Judge Taylor would initially have found that it formed part of the demesne, on the basis that it would have formed “part of the land that the lord had taken in propriis manibus”, having been “constructed by the lord of the manor as part of a carriageway leading to his private residence..” (paragraph 80). To then meet the point that it was constructed at a time when the Hall and Manor were in separate ownership, he would then have found that following the conveyance to Worthington “..from 1884 and during the remainder of Mr. Worthington’s lifetime…the Bellmouth must have been used by Mr. Worthington and his visitors to Maple Hayes Hall as an essential part of the principal means of access to Maple Hayes Hall [and so]….was in the Lord’s hands, and so formed part of the demesne.” (paragraph 82).[115]As both counsel agreed, this not a binding, or any sort of final determination that Mr. Worthington had acquired freehold title to the Bellmouth (it having been found that it did not form part of the Manor). Nor do I consider that it assists the Respondents in establishing that proposition. At most, it refers to what happened after the 1884 conveyance to Mr. Worthington, not what was conveyed to him.[116]Mr. Poole made repeated references to the “inherent likelihood” that the Bellmouth was transferred with the rest of the title to Maple Hayes Estate. As Mr. Rothwell submitted, however, there is a clear distinction between drawing an inference on the balance of probabilities, and mere speculation in the absence of the key conveyancing documents (see e.g. per Morgan J. in Loveluck-Edwards v. Ideal Developments Limited [2012] EWHC 716 (Ch.) at [64]. I consider that this submission falls into the latter category. Saying “it must have been” does not make it so.[117]Mr. Poole also sought to place reliance on some arithmetical calculations apparently carried out by the Second Applicant Ms. Fleur Edwards, in the manorial waste proceedings, as to the total areas of land comprised in a 1688 “King survey”, the 1829 draft conveyance to Mr. Atkinson and the 1883 auction particulars. This was not expert evidence, but Judge Taylor did appear to place some reliance on it in reaching the conclusion that the 1829 conveyance included the Bellmouth. He found that, subject to an explanation for a discrepancy provided by the expert witness Mr. Keiras, the 1688 and 1829 areas were essentially the same.[118]Mr. Poole’s submission was that Ms. Edwards had gone on, in her “lay expert” calculations, also to compare those areas to the areas shown in the 1883 auction particulars, set out in a table attached to her witness statement in those proceedings. In that table she appeared to conclude that the total area of six particular parcels listed for sale in 1883 was 19.92 acres, compared to 19.66 acres for what she said were their equivalents in the 1829 draft conveyance. She then expressed the opinion that the Bellmouth formed part of the tithe parcel 731 known as “Kenelms Ground and Near Meadow” (measuring 12a. 3r. 36p.) included in the auction particulars, and visible in the extract from the auction plan above. This was not the subject of the manorial waste proceedings, and was not referred to by Judge Taylor.[119]I found this a wholly unsatisfactory submission. Fleur Edwards was not called as an expert witness, or any sort of witness, in these proceedings. She has not been asked any questions about the 1883 auction particulars, her calculations or opinions. Nor would such opinions, or those of any lay (or even expert) witness, as to construction of a conveyance (even if we actually had one), generally be admissible. Further, even on her own lay evidence in those previous proceedings (for what it is worth), her calculations were accurate to within “96-99%” accuracy. How that could demonstrate that the Bellmouth formed part of a parcel of over 12 acres, or how it relates to the depiction in the plan above, has not been the subject of any evidence or discussion before me.I therefore reject the submission that these calculations are of any probative value in establishing what the Respondents have to prove.[120]Mr. Poole’s final and latest argument, which Mr. Rothwell initially objected to him making at trial (although I permitted him to do so), was based on section 6 of the Conveyancing Act 1881, relatively recently enacted at the time of the 1884 conveyance. Section 6(2) read as follows:
“A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.”
This was the precursor to the later section 62(2) of the Law of Property Act 1925.[121]The initial argument was that the Bellmouth was an “area”, and possibly also a “way”, “enjoyed with, or reputed or known as part or parcel of or appurtenant to” Maple Hayes Hall in 1884. Thus put, it might be said that this rather assumed or asserted what had to be proved, in the absence of much evidence of the position in 1884 (save perhaps for Judge Taylor’s obiter findings summarised above).[122]There is, however, clear and persuasive authority – Commission for New Towns v. JJ Gallagher Limited [2002] EWHC 2668 (Ch., Neuberger J.) – that section 62 LPA 1925 (and so by extension section 6 of the 1881 Act) is not able to pass and convey additional areas of physical land; as opposed to incorporeal hereditaments and rights. Neuberger J. said, at paragraphs 62 to 65:-i) “..is section 62 apt to include other physical land, not referred to in the conveyance, with the land expressly to be conveyed? In my view, while, in very exceptional circumstances, it might be possible (a point which I leave open), it would not be a permissible result in a normal case.”ii) “In my view, “enjoyed with” refers to incorporeal hereditaments, such as easements, and not to physical property. So, too, with the word, “appurtenant”. Authority suggests that, at least so far as its normal meaning is concerned, land cannot be “appurtenant” to other land: see the authoritative observation of Sir John Romilly MR in Lister -v- Pickford (1865) 34 Beav 576 at 580, and the discussion in Methuen-Campbell -v- Walters [1979] QB 525 , 534–535 per Goff LJ, and at 542–543 per Buckley LJ.”iii) “I do not think that the court should be anxious to give it the wide — almost revolutionary — meaning which the Commission's case involves. Indeed, I think there is force in Mr Randall's contention that all three members of the Court of Appeal in Gregg considered that section 62 should not be construed in such a way as to result in “[the] habendum … enlarging the description of the parcels” (per Warrington LJ at [1926] Ch 533 , see also at 527 per Pollock MR, and at 535 per Sargent LJ, to the same effect).See also per Vos J. in Site Developments (Ferndown) Limited v. Cuthbury Limited [2010] EWHC 10 (Ch.), at paragraphs 168 to 171, approving and following Australian authority on a similar provision, to the effect that “These words are not appropriate to describe land itself, and in my opinion, do not include it … ”[123]If there is such an exception, then there are no “very exceptional circumstances” in the present case warranting such an implication. As stated, we know very little about the circumstances in 1884, and do not even have the conveyance itself. There is therefore no basis for an implication of a transfer of the title to the Bellmouth by section 6(2), when that section would have passed the benefit of the “right” or “easement” to pass and repass over it which the Hall would by that time clearly have acquired and enjoyed.Conclusion on title issue[124]For all of these reasons, I am not satisfied that the Respondents have established that Mr. Worthington acquired a title to the Bellmouth from an 1884 conveyance which no-one has seen, which title the Respondents purported to purchase from the latter day Worthington trustees in 2025.[125]This removes the section 18(2) Limitation Act 1980 argument as a potential bar to the Applicants having acquired a possessory title to the parts described above.[126]This conclusion also removes the need for the Applicants to rely upon their further arguments that:-i) by reason of “approbation and reprobation” or abuse of process, the Respondents would not have been entitled to put forward the “Worthington title” point; even if it had substantive merit; or that:-ii) in a variant of “what’s sauce for the goose is sauce for the gander”, if an 1884 conveyance (which we have not seen) passed title to the Bellmouth to Mr. Worthington, then the 1950 conveyance from the Worthington trustees to Maple Hall Home Farm Limited (which we do have) would likewise have passed such title to that company; who in turn passed it on to Hilary Edwards, from whom the Applicants in turn derive their title. Out of deference to the thorough arguments of both counsel on these points, and in case my decision on the point above is subject to an appeal, I will nevertheless consider and express my views on them.III. The 1950 Conveyance[127]There are some possible differences between the positions as they existed in 1884 and 1950. It is also true that the 1950 conveyance was a conveyance of part rather than whole (with the Worthington trustees retaining another part including the Hall). So if the Worthington trustees did have title to the Bellmouth at that date, would such title have in turn passed to Maple Hayes Home Farm Limited by that conveyance?[128]As stated, we have the benefit of actually having a copy of that conveyance to construe. It is not, however, of great assistance to this end. The land being conveyed was “more particularly described and set out in the First Schedule”, and was “for the purposes of identification only shown edged blue [but in fact red] on the plan annexed hereto”. The First Schedule defined the parcels by their 1923 Ordnance Survey numbers. The only parcel relevant to this issue would have been “115 Park, including Lodge 11.988 [acres]”. This is shown in the extract from the plan below, which also shows a marked point “D”.Part of 1950 conveyance plan showing Bellmouth as “D”[129]The relevance of point “D” was to a clumsily drafted but (in my view) ultimately clear reservation of a right of way. I consider it clear that the parties to this conveyance intended to reserve rights of way between points A and B, and more relevantly C and D between the Hall and the public road, but in error stated “between the Lodge and the public road” instead. It is from the Hall that a reserved right of way “Over the drive leading eastwards and northwards from the point marked ‘C’ on the said plan to the public road at the point marked ‘D’ on the said plan” actually runs. The portion of drive between C and D was being conveyed along with the rest of the land, so the owner of the Hall had to reserve such a right.[130]It was agreed that as a matter of depiction, the red line on the plan appears to exclude the Bellmouth, but since this plan was for “identification purposes only” this is not determinative. Nor was there any serious attempt in these proceedings to calculate a plot and measurement of 11.988 acres for OS 115, to see if this would be apt to include the field, the Lodge and the Bellmouth.[131]Mr. Rothwell’s main point was one of consistency – if (which in his primary submissions he denied) title to the Bellmouth had somehow passed to the Worthington trustees prior to 1950, then there was no evidence in this conveyance that they intended to retain it. One indicator of this was that if they had so intended, this would have landlocked the Lodge at that point and would have required the grant of a right of way over the Bellmouth as an intervening strip. There was of course no such grant. Nor was there any reference or obvious inclusion of the Bellmouth in the references to the “residue” of land to be retained by the trustees.[132]Further, the clear premise of the reservation of the right of way for (as I consider) the Hall between C and D was that point D represented the point where the “public road” began. That was why it was necessary to reserve a private right of way all the way to that point, where private land ended and the public road began. That would in turn support the inference that the vendors therefore intended to convey to the purchaser all of the private land up to that point, while reserving the right of way.[133]It is, in my view, a plausible interpretation of this conveyance, and of other correspondence and conduct from later years, that the relevant owners may subjectively have believed that the Bellmouth was itself part of the public highway, with the gates forming a private boundary. Indeed, this was of course the view of Dr. Brown and his wife when they commenced their 1980s High Court proceedings. Mr. Rothwell drew my attention to minutes from 1950s school meetings which referred to the gates beside the Lodge as the “Perimeter Gate”, and a reference in a 1958 solicitors’ letter to “closing the Gate at the entrance to the Drive”. That is not in itself an aid to construction, but may help explain what then happened (on this hypothesis).[134]If – contrary to my primary findings – the Worthington trustees did in fact have title to a private piece of land (the Bellmouth) lying between the gates and the actual public highway, then I find persuasive the submission that by this conveyance they would (perhaps inadvertently) have conveyed all such title as they had, all the way up to where (on this hypothesis) the “public road” actually began. As Mr. Rothwell submitted, the intention to be gleaned from this conveyance could be expressed as “everything up to the public road”.[135]If, in 1950, this included the Bellmouth, I would therefore have found that it passed by this conveyance. I would also then have found that it passed on the subsequent 1972 conveyance to Hilary Edwards, where the property conveyed to her was said to have a “frontage to Abnalls Lane”. There is no suggestion in that conveyance that her father’s company intended to retain any strip in between.IV. Approbation and reprobation/abuse of process[136]If the “Worthington title” point had substantive merit, a further issue arises as to whether the Respondents should be entitled to rely on it in these proceedings. As stated, they potentially cured the “ius tertii” or “standing” objection to this by taking the conveyance from the current Worthington trustees in November 2025. These submissions, which were the first matter on which Mr. Rothwell addressed me, focussed on their personal conduct and position in now making such an argument.[137]Although Mr. Rothwell did rely on other matters – such as the abortive 2017 adverse possession application by the Respondents, and their stance in the manorial waste proceedings – it is fair to say that at the “front and centre” of these submissions were the 1995 Heads of Agreement, as the terms on which the High Court proceedings were settled.[138]I have already summarised the key terms of this above, at paragraph 56. Mr. Rothwell’s first submission was that by clause 10 – the covenant by Mr. and Mrs. Edwards alone to use their best endeavours to persuade the Council to accept a dedication (as a public highway) of the yellow land - Dr. and Mrs. Brown were by implication accepting and agreeing that only Mr. and Mrs. Edwards had title to that land. He referred to Beazer Homes Ltd v Durham County Council [2010] EWCA Civ 1175, per Lloyd LJ at [14]:
“Dedication is something which only the owner of land can do.”
The same clause 10 also included a restrictive covenant made by Mr. and Mrs. Edwards in relation to land hatched green, which also now forms part of the Bellmouth land currently in dispute. That was likewise said to be an acknowledgment of ownership of that land.[139]The purpose of the doctrine of “approbation and reprobation” is to prevent a party from electing to take and pursue inconsistent stances in litigation or “blowing hot and cold”, and to ensure a “just outcome”. As explained by the Veronique Buehrlen QC sitting as a Deputy High Court Judge in MPB v LGK [2020] EWHC 90 (TCC), at [52], the doctrine has three core elements:(a) First, the approbating party must have elected, that is made his choice, clearly and unequivocally; (b) Secondly, it is usual but not necessary for the electing party to have taken a benefit from his election such as where has taken a benefit under an instrument such as a will.(c) Thirdly, the electing party’s subsequent conduct must be inconsistent with his earlier election or approbation.[140]To ensure a “just outcome”, that party may then be prevented from taking the subsequent inconsistent stance: see also Express Newspapers plc v. News (UK) Ltd. [1990] 1 WLR 1320, per Sir Nicholas Browne-Wilkinson VC at paragraph 56 (“A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.”) In older authority, the principle as to taking a benefit (now not thought to be an essential element) was expressed as follows:-“He who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it.” (per Lord Chelmsford in Codrington v. Codrington [1875] LR 7 HL 854, 866)[141]The argument here was therefore as follows. First, the Heads of Agreement contained a clear and unequivocal election to treat Mr. and Mrs. Edwards as owners of the Bellmouth, capable of dedicating the yellow land as a public highway, and also of making a covenant in relation to the land hatched green.[142]Second, although this was not now a necessary element of the doctrine, Dr. and Mrs. Brown took considerable correlative benefits from the compromise as a whole, not the least of which was the transfer of a strip of land to form a new driveway. As was pointed out, Dr. Brown himself had said in his witness statement that the settlement was on “favourable terms to Maple Hayes Hall.” It is also a matter of record, and physical fact, that the parties acted on the settlement by reconfiguring and tarmacking the Bellmouth, as it is now.[143]Third, it was submitted that Dr. Brown had not once, but three times taken stances inconsistent with his acknowledgment of title in the 1995 Heads. First had been the 2017 adverse possession application, even though it ‘went nowhere’ in the end following the Edwards’ objection. As I have found above, the contents of the statutory declaration filed in support of that were at the very least misleading. Then came the 2021 manorial waste application, culminating in the 2025 hearing, although it was not argued or therefore decided in those proceedings that to make the argument amounted to “approbation and reprobation”. Now came these proceedings, with the “Worthington title” point.[144]This was therefore said to be a prime example of approbation and reprobation. Strictly speaking, the only issue before me is whether the current Respondents (Dr. Brown and his son Daryl Brown) are entitled to argue the Worthington title point in these proceedings. The previous two examples of alleged “reprobation” have now ‘been and gone’, but as I understand it were relied upon essentially as aggravating features, or as showing a pattern of conduct.[145]The same matters were also relied upon as alleged abuse of process under the well-known Henderson v. Henderson (1843) 3 Hare 100 principle that “..the court requires the parties to..litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.”See also Johnson v. Gore-Wood [2002] AC 1, per Lord Bingham at 31-32, on the need for “finality in litigation..and that a party should not be vexed twice in the same matter.” This involves a “broad, merits-based judgment” on whether it is an abuse to raise an argument which could and should have been raised in earlier proceedings.[146]The additional arguments made under this broader doctrine were mainly focussed on the withdrawn 2017 adverse possession application made to HM Land Registry. It was submitted that Dr. Brown could and should have brought forward his whole case then, including any argument based on the Worthington title. He was not entitled to engage in “death by a thousand cuts” by making successive arguments on different bases, including the manorial waste proceedings. Mr. Rothwell submitted that the Henderson doctrine applied to discontinued proceedings too (citing King v. Kings Solutions Group Ltd. [2020] EWHC 2861 (Ch) ), to which a withdrawn formal application to HM Land Registry, accompanied by a statutory declaration, was analogous.[147]Mr. Poole, while not disputing the elements of the doctrines, submitted that there was simply no “clear and unequivocal” election in the 1995 Heads to recognise Mr. and Mrs. Edwards as owners of the Bellmouth. He pointed to the multiple obligations imposed on all parties relating to that area, and the focus on keeping it clear as an access for all. He also raised the point, somewhat late, that any previous election made by Dr. Brown would not bind the Second Respondent Daryl Brown. On alleged Henderson abuse, he emphasised that for that purpose “could” did not automatically mean “should”. The 2017 Land Registry application did not, in any event, amount to “proceedings” of any kind. Further, parties were entitled to pursue new cases when circumstances changed – this was in substance litigation for the first time of the new point, not “re-litigation”.Discussion and conclusions[148]I consider that the pursuit of the Worthington title point in these proceedings by both Dr. Brown and Dr. Daryl Brown as Respondents was caught by the doctrine of “approbation and reprobation”, but not by Henderson abuse of process.[149]I accept the submissions that:-i) “Dedication is something which only the owner of land can do.” (Beazer Homes Ltd v Durham County Council [2010] EWCA Civ 1175, per Lloyd LJ at [14])ii) whatever they might have subjectively believed, and whatever the Council subsequently seems to have thought was necessary for dedication, by this carefully drafted and negotiated Heads of Agreement Dr. and Mrs. Brown agreed to treat Mr. and Mrs. Edwards as the sole parties obliged to seek dedication. By necessary implication, they therefore recognised them as owners.I consider that to be both clear and unequivocal. It was a somewhat telling detail of Dr. Brown’s oral evidence that he sought to ‘row back’ on this when it was put to him, ignore the plain words of clause 10, and argue that the obligation was “tripartite”.[150]I add, for the avoidance of doubt, that the fact that Mr. and Mrs. Edwards were therefore treated in the Heads of Agreement as if they were the owners of this land able to dedicate it does not obviate the need for them, in the present application, actually to prove that they had sufficient factual possession with intention to possess all parts of it during the relevant time now relied upon. I have made my findings on that issue above, namely that they had sufficient factual possession of parts but not the whole of it. The assumption in the Heads that they had title to dedicate the land might have removed any possible equivocality about their intentions, but it could not provide sufficient factual possession of the whole if that had not existed prior to that date.[151]As was not disputed, Dr. and Mrs. Brown took multiple correlative benefits from this compromise, including their new private driveway, which both Respondents now enjoy.[152]In these proceedings, by a convoluted route but no less of a “reprobation” for that, the Respondents do now positively assert a title – and the consequent section 18(2) argument – in opposition to the Applicants’ application. While the principle could not have barred the Worthington trustees themselves, the Respondents now seek to stand in their shoes (following the 2025 conveyance) to make this positive argument.[153]It is not an answer to every argument to say that it is “unattractive”, although the late argument that Dr. Brown’s son, the Second Respondent Daryl Brown, is not barred by this principle does fall into that category. This point is, however, easily disposed of on two bases:-i) first, that the doctrine of “approbation and reprobation”, certainly where it relates to rights and titles over land, must bind both the original parties and their “privies”. The Respondents are father and son, and Daryl Brown has now stepped into the shoes of his late mother as joint owner.ii) second, that joint owners appearing as parties in proceedings must act jointly and unanimously in that regard, certainly when asserting a property-related case. If the Respondents are to raise the “Worthington title” and consequent section 18(2) point, they must do so jointly, as the joint owners potentially entitled to make that argument. If one of them is personally barred from doing so, by the above or a similar doctrine, the other joint owner cannot assert it alone.[154]To the extent that it is a wider doctrine than “approbation and reprobation”, I am not persuaded that what the Respondents have done (by asserting this point in this case) is accurately classified as Henderson v. Henderson abuse. I do not consider that there were any previous proceedings in which they both could and should have raised the “Worthington title” point. It was not suggested that they could and should have done so in the 1980s-1995 High Court proceedings themselves. As for the 2017 Land Registry application, that never achieved the status of “proceedings”, which it would have done had it been referred to this Tribunal. With hindsight, it was simply a short-lived and withdrawn application to the Land Registry. Nor am I persuaded that a present statement of intention in the solicitors’ letter of 23rd May 2023 (referring to the Worthington trustees’ then title, and saying that “the Applicant would not in that case have a claim to the land”) generated an abuse of process when the Respondents later took a purported assignment of that title.[155]The gist, and ‘mischief’, of what Dr. Brown (and so the Respondents) have done is more accurately captured by “approbation and reprobation” arising from the 1995 Heads of Agreement, as discussed above. By that agreement, as I have found, he disabled himself from arguing his own positive case for title in subsequent proceedings – having acknowledged a title in Mr. and Mrs. Edwards for the purposes of that agreement.Conclusion: overall: disposal[156]The result of the findings above is that I will direct the Chief Land Registrar to give effect to the Applicants’ application in part, but not in whole.[157]The parts over which I have found the Applicants established a title by adverse possession (at that time accruing to Mr. and Mrs Edwards, but to which title Mr. Edwards and the other Applicants have succeeded) are essentially the whole of the Bellmouth save for the unsurfaced and open entrance drive as it existed in 1995.[158]My provisional view, and understanding, is that these areas are represented with sufficient accuracy (for the purposes of registering a title with a general boundary) by either or both of the following:-i) the 1989 Statement of Claim plan (p717 of the bundle), as to the areas coloured (not hatched) yellow, blue, green and pink; andii) the Croft “Historic Plan” 2714-002 (p87), as to the areas hatched orange, green, and light blue (the small crescent shape on the corner below the words “Abnalls Lane); but not the dark blue or light grey hatching.My understanding is that the latter was an attempt to depict the position shown in the former.[159]I therefore propose making an order including a direction to the Chief Land Registrar to that effect. Before, however, that final order and direction (with a plan, or plans) are issued to the Registrar, the parties are invited to indicate their approval or otherwise to the use of these plans; or any other proposals for depicting the above findings.[160]All of the other findings I have made, including those on historic title issues, form a necessary part of my decision and the above final order, and so are binding on the parties and their successors.[161]Any representations on liability for the costs of these proceedings should be made by the date stated in the order. After that date, any necessary decision on costs liability will be made, and any necessary further directions given for assessment of any costs ordered to be paid. Judge Ewan Paton Dated this 7th July 2026 By Order of The Tribunal