Nigel Waller v Subsea Networks Limited & Anor [2026] UKFTT 770 (PC)

[2026] UKFTT 00770 (PC)REF/2025/0070 (and REF 2025/0071)PROPERTY CHAMBER, LAND REGISTRATION DIVISIONFIRST-TIER TRIBUNALIN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
Between
NIGEL WALLERApplicantSUBSEA NETWORKS LIMITEDRespondentJO PALINGRespondentProperty Address: Land at Custom House, Dock Lane, Penzance TR18 4ASTitle Number: CL375025REF/2025/0072PROPERTY CHAMBER, LAND REGISTRATION DIVISIONFIRST-TIER TRIBUNALIN THE MATTER OF A REFERENCE FROM HM LAND REGISTRYSUBSEA NETWORKS LIMITEDAPPLICANTNIGEL WALLERRESPONDENTProperty Address: Custom House, Dock Lane, Penzance TR18 4ASTitle Number: CL124393Before: Judge Michael MichellSitting at: Truro Magistrates CourtOn: 21 st to 23rd January 2026Applicant Representation: Miss Sheridan of counsel, instructed by Fleet SolicitorsRespondent Representation: Mr Ward of counsel, Direct AccessDECISIONDate 2026-04-30
[1]Mr Waller has applied to register title by adverse possession to an unregistered area of land (“the Disputed Land”). That land adjoins a building and yard together called “Custom House”. The owner of Custom House is Subsea Networks Ltd. (“Subsea”). Subsea and its director, Mr Jo Paling have objected to the application. Subsea has made its own application to register the benefit of a prescriptive right of way over the Land and over an adjoining strip of land to which I shall refer as “the Alley”. Mr Waller has objected to that application. The applications and objections have been referred to the Tribunal for determination.

The Site and Background

[2]Mr Waller owns a building on the west side of Wharf Road, Penzance from which he runs a restaurant and café called the Bosuns Locker and Boatshed Café. The building was referred to at the hearing as “Bosuns Locker” and I shall use that name to refer to the building. The café and restaurant are on the ground and first floors. Bosuns Locker is an old warehouse. The public highway called Wharf Road lies between Bosuns Locker and Penzance harbour. Bosuns Locker is a building that predates the construction of Wharf Road. Wharf Road was built partially on land constructed from the harbour bed.[3]The land behind or to the west of Bosuns Locker is higher than Wharf Road. A set of step runs down from the road called “Dock Lane”, which adjoins the west flank of Bosuns Locker, between the south wall of that building and the north wall of a building called “Custom House”. At the bottom of the steps, a path about 1.8 metres wide runs between the south wall of Bosuns Locker and the north wall of the Custom House building and a fence along the north side of a yard in front of or to the east of Custom House. I shall refer to the area of the steps and path together as the “alley”.[4]The building called “Custom House” comprises at its east end a 2-storey building behind a fenced yard. The fenced yard is set back about 5.85 metres from Wharf Road. Along the east side of the yard there are 4 concrete posts about 6 feet tall. Numbering the posts from the south, there are two sets of double gates, one set between posts 1 and 2 and the other set between posts 2 and 3. There is a fixed fence between posts 3 and 4. The gates and posts are made of painted wooden slats and are about 6 feet tall.[5]The two-storey building has exterior doors in the centre of the ground and first floors on its eastern façade. There are small windows on each side of both doors.[6]The Dock Lane end of the Custom House is built on higher ground. Three sash windows in the east face of this section look over the roof of the part adjoining the yard.[7]The Disputed Land is a rectangular area of land measuring about 5 metres from north to south and 5.85 metres from west to east. The eastern edge of the Disputed Land is the edge of the pavement along Wharf Road. The western edge of the Disputed Land is along the fence along the eastern side of the Custom House yard and a line drawn from the point of intersection of the fences on the eastern and northern sides of the yard to the southern wall of Bosuns Locker. The southern edge of the Disputed Land is a line drawn parallel to the southern wall of Bosuns Locker, between the northern gatepost in the fence along the east side of the Custom House yard and the Wharf Road pavement.[8]Along both the north and south sides of Custom House there are strips of land with steps leading to and from Dock Lane. The strip on the north is the land I have referred to as “the Alley”. It is about 2 metres wide. There is no door along the north wall of Custom House.

Site Visit

[9]I visited the site accompanied by the parties during the afternoon of the day before the hearing. The Disputed Land lies opposite the wharf where the Scillonian Ferry docks. The Scillonian runs a seasonal service between Penzance and the Isles of Scilly. The Disputed Land forms visually a part of a wider area of land running across the entirety of the front or east of the Custom House yard and wrapping around the south side of the yard. The whole of this area is paved in red brick paviours. At the time of my visit, tables and chairs had been set out on the Disputed Land. The tables and chairs had metal frames. The tables had slatted wooden tops. The backs and seats of the chairs were of woven rattan or wicker. Moveable sections of low paling fence had been set out along the southern edge of the Disputed Land and along the eastern edge but leaving a gap between the wall of Mr Waller’s building and the end of the closest palling fencing section. The fencing sections were about 30 centimetres high. The only permanent feature on the Disputed Land (other than the paving) is a rectangular low planter constructed of stone blocks. It is close to the southern edge of the Disputed Land and about 4 metres or so to the east of the Custom House yard fence.[10]There were commercial waste bins on the Alley but there was sufficient space for pedestrians walking along the Alley to pass them.

Chronology

[11]Wharf Road was built in the 1880s. Mr Waller purchased Bosuns Locker jointly with a business partner on 10th September 1981. He became the sole proprietor in April 1983. In 1981, Mr Waller purchased and moved into a cottage adjoining Bosuns Locker. In about 1981 or 1982 Mr Waller opened a gift shop on the ground floor and a restaurant on the first floors of Bosuns Locker.[12]The trustees of The Vesuvius Shipping Pension Scheme purchased the Custom House from the Secretary of State for the Environment on 28th February 1997. At the time of the purchase the trustees were provided with two statutory declarations dated 12th February 1997 and made by former offices of HM Customs and Excise who had been stationed at Custom House. Mr Harry Aitken had been stationed at Custom House from April 1982 until 30th September 1993 and Mr Robert Quigley from January 1984 until March 1995. They both referred in their declarations to the whole of the land between the east of the Custom House yard and Wharf Road as a “way” and said that they had used this land as of right for vehicular and pedestrian access for all purposes connected with Custom House.[13]The principal beneficiary of the pension scheme was Mr John Mander (“Mr Mander”). Mr Mander applied in 1997 for planning permission to turn Custom House into a restaurant. Permission was granted on 13th February 1998. The plan with the application showed the Disputed Land as within the curtilage of the area for which planning permission was sought. The planning application site plan and survey had marked on it a “post and chain-link” fence along the eastern and southern sides of the Disputed Land.[14]On 18th December 1998 Mr Mander made a statutory declaration referring to the land on the north, south and east sides of the Custom House and stating that this land had been used as a means of access to and egress from Custom House on foot and where physically possible with vehicles throughout the Trustees ownership of Custom House.[15]In late 1998 Mr Waller made an application for first registration of land adjacent to the Bosuns Locker based on adverse possession. It is not clear whether the area claimed corresponded exactly to the Disputed Land but it was in the same general area. An Assistant Land Registrar wrote to Mr Waller on 7th January 1999 rejecting his application on the grounds that the true owner had not been “dispossessed entirely” from the land in question. He wrote “The photograph shows a tarmacked area with some posts and a length of chain link between them but there is clearly room for anyone to go round the end of such fencing. It follows from this ease of accessibility that any possible true owner would not physically have been kept out of the land in question i.e. dispossessed from it. … The legal test for dispossession depends on looking at the physical boundary of the land and seeing if there is on it a sufficient physical barrier which would have the effect of keeping out any true owner were such an owner in fact or in theory to try to cross such line. As there is free and easy access to the land it is clear that such owner, whether actual or just hypothetical, would not have been dispossessed”.[16]The trustees sold Custom House to Mojo Mac Limited in April 1999. Mr Malcolm Johns (“Mr Johns”) was a director of that company. Between 2005 and 2008 contractors carried out works to the Custom House to convert it into an architect’s office. In 2007, the Disputed Land and the remainder of the open area on the east and south sides of Custom House were paved with the brick paviours that remain today.[17]Mr Waller made an application to HM Land Registry in 2007 for the registration of the benefit of easements over the Alley and the Disputed Land. The application related to the Disputed Land, the Alley and a parking space to the west of Bosuns Locker. In a statutory declaration he made on 16th July 2007 at paragraph 18 he said “I do therefore consider that the [Disputed Land] should form part of my Property and verily believe that nobody has a greater claim to the [Disputed Land] than I do. This is a defined area and were it not for the lack of boundary features such as a fence I would now be making a claim for adverse possession since no other person has ever questioned my use and occupation of the [Disputed Land] during my ownership of the Property”. The application resulted in the entry of pedestrian rights of way over the Disputed Land and the Alley but not any other rights.[18]From 2010 to 2020 Custom House was occupied by a tenant under two leases of 5 years granted by Mojo Mac Limited.[19]On 19th November 2018 Mr Waller sent an email to Amtrak Services complaining about the erection of parking enforcement signs attached to the Custom House yard. In the email, he described the land in front of Custom House fronting onto Wharf Road as “common ground”. He wrote “Myself and my customers regularly use this land for my own business purposes and have done so for nearly 40 years, which includes parking my own vehicles here and loading/unloading and the entitled to do so is attached to the deeds of my property”[20]At some date which is not specified but which from internal evidence would appear to be about 2018, Mr Waller wrote to Mr Johns setting out the circumstances of resurfacing of the Disputed Land and other land outside the Custom House in what he said was 2000. He went on in the letter to state “Also with regard to my usage of the area for my business which includes being able to have all my tables and chairs there this was enshrined in a legal agreement and prescriptive easement which was attached to my deeds many years ago. This means you cannot interfere with my current usage of this area.”[21]In 2020 Mojo Mac Limited sold part of Custom House to Subsea, retaining 2 flats created out of the west end of the building. Subsea was registered as proprietor on 24th September 2020.[22]On 5th July 2020 Mr Waller sent an email to Mr Paling referring to his “prescriptive easement over the land in front of Custom House”. He said that he had used the area for his business for many years and had also maintained it on an annual basis. He said that but for the restaurant being closed because of the Covid pandemic, his guests would be “enjoying summer days and evenings seated out on the terrace area often right through and into late autumn”. He went on to say “Even during the winter this can still be used as a seating area when the weather permits”.[23]On 4th September 2020 Mr Waller sent an email to Mr Paling in which he wrote “I would just like to remind you that I have been using the area in front of your enclosure for virtually forty years and in that time gained considerable entitled for my use. I do intend to continue to use this are for my business. If you wish to gain access to your enclosure I would very much appreciate it if you could give us a little notice as Mac has always done in the past when we are in use….” The Applications[24]In April 2021 Mr Paling registered a caution against first registration of the Disputed Land and the Alley. In August 2022 Mr Paling on behalf of Subsea applied to HM Land Registry to register the benefit and burden of a prescriptive right of way(1) on foot and with vehicles over a 2-metre-wide strip of the Disputed Land adjoining Bosuns Locker and(2) a right of way on foot over the Alley.[25]Mr Waller made his applications to cancel the caution and for first registration of the Disputed Land on 15th December 2022. Subsea and Mr Paling objected to Mr Waller’s application on 1st July 2024 and on the same date, Mr Waller objected to Subsea’s application to register rights of way. On the 2nd February 2025, the three applications, being the application to cancel the caution, the application to register title to the Disputed Land and the application to register the benefit and burden of rights of way, together with the objections to those applications, were referred to the Tribunal for determination. Counsel for Subsea accepted that the application to register the burden of the right of way could not succeed in respect of the Alley, because it was unregistered land and could not succeed as regards the part of the Disputed Land unless Mr Waller’s application to register title to the Disputed Land succeeded.

Evidence as to Mr Waller’s use of the Disputed Land

[26]Mr Waller gave evidence, confirming the contents of his statement of case and his witness statement. He was cross-examined.[27]Mr Waller said that in 1981 or1982 he excavated the Disputed Land in order to lay main sewage and storm water drainage from the Bosuns Locker. He said that he has used the Disputed Land continuously since he opened his business in the Bosuns Locker in April 1982. He used the Disputed Land as an area for a gift shop from 1981 to about 1990. From around 1990, he used the Disputed Land as an outside seating area for his coffee shop/café. In 2007, his restaurant became fully licenced and the Disputed Land formed part of the licensed area. Mr Waller produced a copy of the premises licence issued under the Licencing Act 2003 by Penwith District Council. The licensed activities included the sale of alcohol for consumption on and off the premises. It was a condition of the licence that the outside area should not be used after 23.00. The plan attached to the Licence showed the Disputed Land as part of the licensed premises and described the Disputed Land as “exterior terraced area”.[28]Mr Waller said in his witness statement that the restaurant was typically open all year round. He said tables and chairs and umbrellas for the exclusive use of his customers were placed on the Disputed Land daily. In cross-examination, he said the restaurant was probably open about 350 days a year. To open the restaurant, he had to move the tables and chairs outside. If the weather was really bad, he might stack the tables and chairs outside or not open the restaurant. Cross-examined as to why tables and chairs could not be seen in some aerial photographs, Mr Waller said that he did not know when the photographs were taken. They could have been taken before the restaurant opened. The tables and chairs may not have been put out until 10 or 11 am.[29]Asked about the area on which the tables and chairs were placed, Mr Waller said that this was predominantly the area of the Disputed Land but in peak season or if there were some local festival, tables and chairs would be put over a larger area, extending to the south.[30]Mr Waller said in his witness statement that from 1981 to around 2008/2009 he fenced the Disputed Land with “post and chain link” fencing. By “chain link” he meant a single chain running between the tops of posts. He said his reason for using the post and chain fence was so that the café would be visible to passing trade and the views of seated customers would not be blocked. The purpose of the post and chain fence was to make it clear that the Disputed Land was not for use by anyone other than the customers of the café. He said that from the mid-1980s there was a brick planter he built on the Land. He subsequently rebuilt the planter. He pointed to the site plan to the 2007 planning application submitted by Mr Mander and the showing on that plan of the post and chain-link fence.[31]Mr Waller said that in 1999 he instructed AP Paving to remove the tarmac surface over the Disputed Land and the adjacent area in front of and to the south of the Custom House yard and to replace it with brick paving. His reason for paving the whole area was to “improve the aesthetic appeal and setting” of his business. He said that the cost was apportioned between him and Mr Johns who was purchasing the Custom House, according to area, with him paying for the area he used for tables and chairs and Mr Johns paying the rest. In cross-examination Mr Waller said that it was his decision to pave the whole area and that it was while the paving was being laid that Mr Johns came to Mr Waller’s office and asked to be involved in the paving. At this time Mr Johns had black metal bollards installed along the frontage of the newly paved area and the white metal posts were removed.[32]In 2007 the nightclub on the upper floor of the building closed and space was converted to a flat. In cross-examination Mr Waller said that at this time he had a big argument with Mr Johns and about the same time the bollards and chain running between them disappeared. Mr Waller then placed a row of boulders along the eastern edge of the Disputed Land. The boulders were pushed aside in 2021 and someone parked a car on the Disputed Land. Mr Waller had the car moved from the Disputed Land.[33]Mr Waller said that he regularly jet-washed the Disputed Land and the rest of the area around the Custom House yard.

Other Witnesses for the Applicant

[34]A number of witnesses were called by Mr Waller to give evidence as to the use of the Disputed Land and they were cross-examined.[35]Mr Todd Barden worked with Mr Waller from about 1994 at the café, which was then called “Bosuns Café”. The restaurant was on the first floor but Mr Waller erected a partition on the ground floor to create a burger bar. He said he used to put out white plastic tables and chairs on the Disputed Land and that this area was cordoned off with white plastic chain. In his witness statement he said the tables and chairs were put out on a “daily basis” without challenge. In cross-examination, he said that the tables and chairs were weighted. In winter, the tables and chairs were brought back inside at about 4 or 5 pm. In 2000 the kitchen was moved from the first floor to the rear of the ground floor and the “Boatshed Café Bar” was created. New tables and chairs were purchased to go outside on the Disputed Land. Mr Barden stopped working in the coffee shop in 2002 but as a Penzance local, he often stopped to chat with Mr Waller. Mr Barden said Mr Waller had continued to maintain the Disputed land with plantings, jet washing and daily coffee shop activities. Asked in cross-examination about the extent of the land on which the tables and chairs were placed, Mr Barden said that the area “up to the chain” was always full of tables and chairs but on days when there was a local festival, such as the “Glow Festival”, tables and chairs would be put out beyond the line of the gate into the Custom House yard. Mr Barden said that the Custom House yard was full of “nautical rubble” and no-one ever needed to get in and out. He said no-one ever used the gates while he worked at the café.[36]Peter Crawford has lived in Dock Lane since December 1983. He worked on The Scillonian, as a radio officer and for the last 20 years as captain. He walked past the Bosuns Locker twice a day to get to and from the ship. His evidence was that in 1983 the area outside Bosuns Locker was “cordoned off” by wooden posts and chain link fencing. Part of the area was used for the display of shop items. Later, Mr Waller used the area for tables and chairs for customers. Mr Waller laid paving bricks in around 1999 and power-washed and maintained the whole area where the bricks were laid. Mr Crawford said that he very rarely saw any use of the gates into the Custom House yard.[37]Teresa Claypole was employed in the kitchen and then as a waitress at Bosuns Locker from 1983 to about 1988. At this time the kitchen and restaurant were on the first floor. From 1983 there used to be card racks and a couple of plastic tables on the Disputed Land. She said in cross-examination that the gift shop was open for the tourist season usually from Easter. By 1988 the number of tables on the Disputed Land had grown. There was a chain link fence between posts.[38]Julie Moselen worked for Mr Waller in the kitchen of his business from about 1990 and as a waitress from about 1991 until 1998. She said there was a gift shop “outside” in her early years of working at Bosuns Locker. She also recalled white square posts with a chain linking them.[39]Saffron Morton recalled going to the Boatshed on her 13th birthday in 2013 and sitting outside eating nachos. She worked for Mr Waller from May 2019 until September 2024, for the latter two years as front of house manager. She worked full-time. In cross-examination, she said that she regularly worked 10-hour shifts for 4 to 6 days a week and she could be there for 12 hours. She said it was part of the daily routine to put tables and chairs and signs on the Disputed Land. Ms Morton said the staff always moved the tables and chairs outside regardless of the weather or season in order to make space within the building to trade. In cross-examination, she explained that when the restaurant was closed the tables would be stacked in a window cill and the chairs were in the main floor area of the restaurant. They would be taken outside when the restaurant was open both because there was no room for them to remain in the restaurant and in order to indicate to passers-by that the restaurant was open. In cross-examination, she said that the restaurant opened at 11.30am for drinks and 12 noon for food. The restaurant was always open at 6.30pm for dinner. On some days, the restaurant opened only in the evening but then the tables and chairs would be put outside to get interest from potential customers. The restaurant would not open if there was a severe weather warning but if the restaurant was open, the tables and chairs would be put outside even if it was raining or windy.[40]Tamsin Leach started working for Mr Waller as a kitchen porter in 1986. She then worked for him into the 1990s as a waitress, shop assistant and bar staff. She said she recalled a constant use of the Disputed Land, initially for products sold in the gift shop and later for tables and chairs for café customers to use. The area used for tables and chairs was sectioned off using clear partitions. In cross-examination she said that the photograph at p. 101 of the bundle taken in the early 1990s showed the area as she remembered it.

Witnesses for the Respondents

[41]Mr Paling and a number of witnesses were called by the Respondents to give evidence as to the usage of the Disputed Land.[42]Mr Paling was unable himself to give evidence of the use of the Disputed Land by Mr Waller prior to 2020.[43]Darren Curry has lived in Penzance for over 44 years. He said that he had seen tables and chairs on the Disputed Land on nice days during the tourist season but he had never seen any fixed boundary or had his access blocked. In cross-examination he said that he had worked at Custom House for the past year but for ten years he has worked at Pengarth Day Care Centre, which is not far from the Disputed Land. In that latter role, he passed by the area several times a day. Further, up until about 8 years ago, he used to go fishing with his son on North Quay once or twice a week and would then pass by the area. He said that tables and chairs were out at best 50 per cent of the time when he passed by. The tables and chairs were removed at night.[44]Malcolm Johns has lived in the Penzance area since 1967. He (through his company, Mojo Mac Limited) bought the Custom House in 1999. He confirmed that Mr Waller organised the paving of the Disputed Land and the area outside the Custom House yard in 1999 and that he shared the cost with Mr Waller, Mr Waller paying the cost of the area he used. He agreed that Mr Waller had tables and chairs on the Disputed Land. He said that there were there “occasionally” when the sun was out but rarely in winter. He said that sometimes he asked Mr Waller to move the tables and chairs so he could swing open the gate into the yard.[45]Dale Styles has lived in Penzance all his life. Between 1997 and 2019 he was a taxi driver. During that period, he had picked up many passengers from in and around the area of the Disputed Land, including from the restaurant and nightclub at Bosuns Locker and from the Scillonian when she docked. He had seen the Disputed Land used for tables and chairs for the café during the day when the weather was good but the area had always been cleared outside trading hours and when the weather was unsuitable. Before the boulders were placed across the front of the Disputed Land, he and other taxi drivers often parked on the Disputed Land on a Friday and Saturday night, waiting to pick up customers from the Bosuns Locker nightclub.[46]Jeremy Marston is 56 years old. He has lived in Penzance for most of his life. He said that he has been running past Bosuns Locker for the last 20 years. He has worked at Custom House since 2020. He said that there were tables and chairs on the Disputed Land on some days only and that they had been put there more often in the last two years.[47]Jane Byres is the owner of the Harbourside Café on Wharf Road, a little to the north of Bosuns Locker. She said that there were sometimes tables and chairs on the Disputed land when the weather was good but they were taken away at night. Evidence as to user of the Alley and part of the Disputed Land for the benefit of Custom House[48]Mr Johns gave evidence of that while his company owned the Custom House, he had accessed the Custom House yard with vehicles. He also said that between 2005 and 2008 contractors were coming and going while the Custom House was being converted to an architect’s office. In cross-examination, he agreed that vehicular access to the yard was not over the Disputed Land but he said that “the area to the right of the gates” was often used by the contractors in the 2005 to 2008 period. He also said that access had been gained up the Alley for maintenance of the Custom House.[49]Mr Waller sent an email to Mr Paling on 4th September 2020 in which he wrote, “If you do wish to gain access to your enclosure, I would very much appreciate it if you would give us a little notice as Mac has always done in the past”. It was not put to Mr Johns in cross-examination that he had always given notice to Mr Waler before gaining access to the Custom House yard.[50]Mr Paling gave evidence that since September 2020, his company had used the Alley to clean it, to clear a drain, to access a gas meter and to check the boiler flu. His evidence was that there are gas, telecoms and electricity access points on the wall of Custom House abutting the Alley. A white plastic box and door of the type used to house utility meters can be seen in photographs in the north wall of Custom House towards the Dock Lane end. Photographs produced by Mr Paling show the Disputed Land being used to place or remove a skip in the Custom House yard in April 2021 and again in November 2021.[51]Mr Gawain Paling is Mr Paling’s brother. From September 2020 until the end of 2023 he was employed by his brother to look after the maintenance of Custom House. He was at the Custom House five days a week. He did some work to the Custom House himself and had some done by contractors. He listed 14 occasions over the period from September 2020 to May 2024 when the Alley was used to access the Custom House for works.[52]Erika Hewett gave evidence that she had used the Alley and passed over the Disputed Land when using the Alley. Her passage had not been obstructed by the bins in the Alley or the tables and chairs, which she said were “sometimes” on the Disputed Land.[53]Darren Curry said that while working at the Custom House, he would park his car in Dock Lane and walk down the Alley. On occasions, he had parked in the Custom House yard.[54]Jeremy Marston said that he had always walked along the Alley and had seen others do so. He believed it to be a public right of way.[55]Mr Waller gave evidence as to the use of the Alley and the Disputed Land for access Custom House. He accepted that Mr Aitken may have walked across the area outside the Custom House yard when working in the Custom House office but the office was at the back (or Dock Lane) end of the building and Mr Waller hardly ever saw Mr Aitken. He said that he hardly ever saw Mr Quigley, who was based in the office on Dock Lane. Mr Waller said that while Customs and Excise owned the Custom House, the yard itself was empty and unused. The gates to the yard were locked and cars did not go in and out of it.[56]Mr Waller said that Mr Mander did not have vehicular access across the Disputed Land and never interfered with Mr Waller’s use of it.[57]Mr Waller said that Mr Johns was hardly ever at Custom House during the ten years it was let. The tenants did not use the yard. He disputed Mr Johns’s evidence that he had used vehicular access to all sides of Custom House for access and maintenance.

Photographs

[58]A number of photographs are in evidence. Some of them appear in more than one place in the hearing bundle. I have looked at all the photographs. They include the following:-. (1). A photograph taken in 1981 showing the Disputed Land and the side of Bosuns Locker adjoining it (p. 106). There is nothing on the Disputed Land. (2). Two photographs taken in 1981 showing a trench dug along front of the land to east of Custom House yard (p. 105). (3). A photograph said by Peter Crawford and Teresa Claypole, to show what the land looked like in the “1980s” (p.319). It shows four white posts about 80cm tall between the pavement and the area in front of the Custom House yard, including but not limited to the Disputed Land. Between the two northern posts is a much taller post with some sign boards attached to or hanging from it. A white chain runs between all five posts. No tables or chairs were on the Disputed Land when this photograph was taken. The surface is clear of any items. (4). Three photographs taken in the early 1990s showing the side of Bosuns Locker with two adjacent awnings over the doors on which are printed “Bosuns Coffee Shop” and “Bosuns eating house”. There is a white chain between two white posts on the east side of the Disputed Land and white plastic tables and chairs (pp. 101 and 102) (5). A photograph taken in 1999 from a position above ground-level looking down at the Custom House, Bosuns Locker and the Disputed Land from the east (p.103 and 107). A parasol, tables and chairs can be seen on the Disputed Land. There appears to be a section of wooden fencing to the south of the tables and chairs and at an angle to the side of Bosuns Locker. (6). A newspaper article from July 2002 with a photograph of the Disputed Land showing tables and chairs of the same design as Mr Waller now used and sandwich-board signs (p.104) (7). An aerial photograph taken in December 2005 with no tables chairs, fences or boulders present on the Disputed Land (p. 245 top) (8). A photograph (p. 102 and p. 111(top)) said to have been taken in 2009, showing two bollards to east of Disputed Land with removeable fencing between them and a similar removeable fence panel along the southern side and tables and chairs and a parasol on the Disputed Land. (9). A Google Streetmap photo from May 2009 showing the Disputed Land and adjacent land paved with brick paviours and tables and chairs on the Disputed Land and three large boulders along the east side but no fencing (10). An aerial photograph taken in August 2009 with no tables, chairs, fencing or boulders on the Disputed Land (p. 245 bottom) (11). An aerial photograph taken on 4th July 2019 (p. 269). There are no tables or chairs or other items (save for the boulders) on the Disputed Land (12). An aerial photograph taken in April 2021 showing the Disputed Land without any tables, chairs or fences (p.246 top). (13). A photograph taken in May 2021 showing a car parked on the Disputed Land (14). A photograph taken in November 2021 showing a skip lorry on the Disputed Land and a skip in the northeast corner of the Custom House yard (15). An aerial photograph taken in 2022 showing no tables or chairs on the Disputed Land (p.270).

Application to Admit Late Evidence

[59]On 28th January 2026 Mr Waller applied to have admitted into evidence a photograph he had not produced at the trial. He said that it showed a white chain running along the approximate southern edge of the Disputed Land. The photograph does not show the west end of the chain. Mr Waller said that it also showed tarmacadam laid over the whole of the area in front of the yard and not just across where he had dug a trench for drainpipes. Mr Paling did not object to the admission of the photographs but on terms that he could rely on two video recordings of conversations with Mr Paling, attached to his email of 12th February 2026.[60]I refuse to admit the new evidence. It could not be fairly admitted without re-calling Mr Waller and Mr Paling to give additional oral evidence and be cross-examined. That would be disproportionate and not in accordance with the overriding objective as set out in Rule 3 of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013.

Legal Principles: Adverse Possession

[61]The question to be answered when considering whether a person occupying land is “in adverse possession” is “…whether the Defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” (per Lord Browne-Wilkinson in J A Pye (Oxford Ltd) v Graham [2003] AC 419 at paragraphs 36, 37).[62]Legal possession is comprised of two elements:(1) A sufficient degree of physical custody and control (“factual possession”); and(2) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).[63]Factual possession has been described as follows:
“It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”
Per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham.[64]Whether the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it depends on the particular facts. Lord O’Hagan in Lord Advocate v. Lord Lovat (1880)5 App.Cas. 273 at p. 288 set out the test as follows “As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of possession”.[65]I was referred to Thorpe v Frank [2019] EWCA Civ 150. Considering the facts of that case, McCombe LJ said at para 40 “It seems to me, having regard to the nature of this open forecourt area, the ripping up of the old surface, digging out the land, inserting hardcore, levelling the surface with the areas surrounding it and then replacing the flags with new flags and bricks of one’s own choosing were just the sort of actions that one would expect an occupying owner to do in dealing with this land. This was a clear interference with the rights of the paper title owner, asserting not merely a momentary control over the nature of the land’s surface but a control of it for the future. This was not merely a temporary trespass for two weeks during the works period, as Mr Denehan put it; it was the creation of something of permanent and enduring character. Mr Thorpe’s work for his mother had created something that gave the entire apron the appearance of being an adjunct of No. 9, whatever might have been said of the pre-existing paved surface. In completing these works, the paper title owners were also excluded from the soil below the apron’s surface by a permanent covering of Mrs Thorpe’s construction …”.[66]Lewis-Han v. Williams [2025] UKUT 401 (LC) is a case in which on the facts resurfacing of part of the Disputed Land was not sufficient to amount to factual possession. HH Judge Johns KC noted that in Thorpe the work of paving effectively incorporated the disputed area into the adjoining property of the adverse possessor. The paving was the same as that carried out on the land already owned, forming one area. By contrast in Lewis-Han there was not act which could be said to incorporate the disputed land into his other land. While he resurfaced the driveway on the disputed land, this was work to facilitate its use as an access to his land. The judge referred to the law giving a person entitled to the benefit of a right of way an ancillary right to improve the surface the way so as to better facilitate the exercise of the right of way.[67]What is required for the intention to possess is the intention to exclude the whole world, including the true owner of the paper title, from the land so far as is reasonably practicable and so far as the processes of the law will allow – see per Slade J. in Powell v. McFarlane above. The intention must not only be the subjective intention of the squatter but the squatter must also show by his outward conduct that he has such an intention. The intention must be manifested by unequivocal action – see Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87. The use of the land must be such that the true owner, if he took the trouble to be aware of what was happening on his land, would know that the squatter was in possession 83. “It would plainly be unjust for the paper owner to be deprived of his land where the claimant had not by his conduct made clear to the world including the paper owner, if present at the land, for the requisite period that he was intending to possess the land” – per Peter Gibson LJ in Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87. Lord Hutton said in Pye v. Graham at para 80 “Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.[68]Acts on one or more parts of the land in issue may be treated as constituting possession of the whole area, the relevant test being that set out in in the decision of Lindsay J. in Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), at [63] :
“There is thus ample authority for the proposition that acts on one part of an area may be treated as constituting possession of the whole area provided that 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 so possess the whole of it.”
Assessment of the Evidence[69]I have considered carefully the credibility of the witnesses and the weight to be given to their evidence. In doing so, I have had regard not only to oral testimony but also to the contemporaneous and photographic evidence, and to the inherent probabilities arising from the location and nature of the Disputed Land.[70]I did not find Mr Waller to be an entirely careful witness. On the basis of common sense, I considered his statement about how often the café was open to be somewhat exaggerated. There was also some inconsistency in his evidence. He stated in the ST1 served with his application that he removed the fence for ease of access by customers but in cross-examination, he said that Mr Johns removed the bollards in 1997. However, apart from this, I found his evidence to be generally credible. It was detailed and largely consistent over time and, where challenged in cross-examination, he was willing to acknowledge uncertainty as to precise dates or the extent of use at particular moments. I regard that lack of precision as understandable given the passage of time and do not consider it detracts from the reliability of his evidence as to the overall pattern of use.[71]The evidence of witnesses called on Mr Waller’s behalf, many of whom were former employees, was consistent in describing a long-standing and regular use of the Disputed Land in connection with the café and restaurant. Those witnesses had differing roles and periods of involvement, but their accounts were mutually reinforcing as to the nature and purpose of the use. I am satisfied that their evidence was honestly given.[72]I have also considered carefully the evidence of the Respondents’ witnesses. Some of those witnesses described having seen the Disputed Land without tables and chairs at particular times. I do not doubt that those observations were genuinely made. However, they relate largely to isolated moments and do not undermine the evidence of a routine use as described by Mr Waller and his witnesses.[73]Where the respondents’ evidence conflicted with that of Mr Waller’s witnesses, I prefer the latter insofar as it was directed to the routine operation of the business and the day-to-day management of the Disputed Land. The respondents’ witnesses were generally observers passing through the area rather than persons involved in its use or upkeep.[74]The photographic and aerial evidence was of some assistance in showing the physical appearance of the Disputed Land at various times, but I have treated it with caution. In particular, I attach little weight to the absence of moveable items in photographs taken at unknown times or seasons. I do not regard those images as determinative of the question of possession.[75]Taking these matters together, I am satisfied that the evidence relied upon by Mr Waller provides a more reliable account of the character and continuity of the use of the Disputed Land than that relied upon by the respondents.

Findings of Fact as to the Disputed Land

[76]In or about 1981–1982 Mr Waller caused a trench to be excavated across the Disputed Land in order to install sewer and storm water drainage serving Bosuns Locker. That drainage has remained in continuous use since that time. As part of the works, Mr Waller had the trench filled-in and the surface made good.[77]From the early 1980s Mr Waller used some part of the Disputed Land in connection with his business, initially for external retail display associated with a gift shop. I do not accept that the gift shop use would have extended over the whole of the Disputed Land. External displays would not have been placed over the whole area. The gift shop was open only during the tourist season and hence the use was only during the season.[78]From about 1990 Mr Waller used the Disputed Land as an outside seating area for his café/restaurant customers. He placed tables and chairs on the Disputed Land as part of the routine opening of the business whenever it was trading. From 1999 when he purchased new tables and chairs in place of the previously used white plastic ones, he had to put the tables and chairs out onto the Disputed Land in order to open the café/restaurant. He did not open the café/restaurant until 11am or so and did not open it at all if the weather was particularly bad. There were days when bad weather caused him to put out the tables and chairs but to leave them stacked. I do not accept that the café/restaurant was open as much as 350 days a year. The exposed location by the sea and the sometimes wet and windy weather would have meant he opened less frequently than that.[79]In 1999 Mr Waller organized the re-surfacing of the Disputed Land and adjoining areas with brick paviors of his choice. He paid a proportion of the cost calculated by reference to the area of land he used. Mr Waller’s reason for re-paving the area was to improve the aesthetic appeal and setting of his business with a view to attracting more customers.[80]Mr Waller constructed and later rebuilt a circular stone planter on the Disputed Land. He also regularly cleaned and maintained the paved surface, including by jet-washing.[81]Mr Waller physically demarcated the Disputed Land by means of white posts and chain from the mid-1980s until 1999. From 1999 to about 2008 the Disputed Land was marked off from the adjacent pavement to the east by black bollards and a chain running between them but the bollards were erected by Mr Johns and not Mr Waller. In about 2008 Mr Waller put a row of boulders in a line by the pavement to the east of the Disputed Land.[82]On occasions, Mr Johns asked Mr Waller to move tables and chairs to allow the gate into the Custom House yard to be opened fully, back against the fence of the yard. This was only on a small number of occasions because access could be obtained to the yard without opening the gate 180 degrees and the yard was not accessed frequently.[83]Members of the public did on occasions walk over the Disputed Land to go between Wharf Road and Dock Lane via the Alley and vice versa. Was Mr Waller in possession of the Disputed Land for a period of 12 years or more prior to the date of his application?[84]Having considered all the facts in detail, I find that Mr Waller did not have possession of the Disputed Land for a period of twelve years. He did not deal with the Disputed Land as an occupying owner might have been expected to deal with it. Rather he dealt with it as someone who wished to use it for specific limited purposes would have dealt with it. In reaching this conclusion, I have considered the acts relied upon both cumulatively and individually.[85]The digging of a trench and laying of drains and the subsequent use of those drains was consistent with an intention to acquire an easement for the running of the pipe and for drainage over the Disputed Land. Those acts ae equivocal and insufficient to establish an intention to possess.[86]The re-surfacing of the Disputed Land by contractors hired and partly paid by Mr Waller in 1999 is not a manifestation of an intention on the part of Mr Waller to possess the Disputed Land. Though the re-surfacing would have involved some excavation of the ground, perhaps some levelling and the placing of permanent materials on the Disputed Land, there are significant facts which distinguish this case from Thorpe v. Frank. The paving was not only on the Disputed Land but over a much larger area. It did not have the effect of making the Disputed Land look as if it were part of Bosuns Locker but made it look as part of the area extending along three sides of Custom House yard. It is no part of Mr Waller’s case that he intended to possess the whole of the paved area. Indeed, he agreed to Mr Johns paying for part of the paving, which indicates he believed Mr Johns and his company would use part of the paved area.[87]Further as regards the paving, Mr Waller did not have the subjective intention to possess the Disputed Land. His intention in laying the paving was not to exercise exclusive custody and control of the Disputed Land but to improve the appearance of the area surrounding his business premises. His intention was the same as regards pressure-washing the Disputed Land and the surrounding area.[88]The placing of tables and chairs on the Disputed Land for parts of some days in the year does not amount to the taking of physical possession of the Disputed Land. It did not require exclusive physical control of the land. It required no control when the tables and chairs were not out and even when they were out, it did not prevent others crossing over it. Further, it was not unequivocal action manifesting an intention to possess the land. It was consistent with an intention to acquire or exercise a right in the nature of an easement to use the Disputed Land for the placing of tables and chairs for use for the business of the café during hours when the café was open.[89]Fencing land may give the person erecting the fencing physical custody and control of the land and may be an action manifesting an intention to possess the land. However, here I consider that the white posts and chain fencing did not give Mr Waller an appropriate degree of custody and control of the Disputed Land. It did not prevent anyone from walking onto the Disputed Land. What it did was to mark out the area Mr Waller wanted to make use of for the specific limited purposes of his business. The fencing from 1999 to 2007 comprised bollards put up by Mr Johns and not by Mr Waller. After 1997 there were large stones placed by Mr Waller along part of the side of the Disputed Land adjoining the pavement of Wharf Road. Those stones did not prevent pedestrians crossing over the Disputed Land. They did not give Mr Waller exclusive physical custody and control of the Disputed Land.[90]I have considered whether the acts of Mr Waller taken together in laying drains, re-surfacing the Disputed Land, putting out tables and chairs, pressure-washing the Disputed Land and adjoining area, and placing the large stones along one part of the edge amounted to the possession of the Disputed Land. I find that they do not. Taken together they are equivocal. They are consistent with the intention to acquire and exercise easements over the Disputed Land.[91]Mr Waller’s claim to have been in possession of the Disputed Land also fails because it was not his subjective intention to possess it. His subjective intention was to exercise rights in the nature of easements over the Disputed Land. This appears from the letter he wrote to Mr Johns in 2018 in which he referred to have rights to use the Disputed Land “enshrined in a legal agreement and prescriptive easement”. It also appears from the emails he sent to Mr Paling on 5th July 2002 and 4th September 2020. In the former he referred to having a prescriptive easement to use the land. In the latter, he referred to having gained “considerable entitlement” for his use gained from user for “virtually forty years” and, instead of telling Mr Paling he needed Mr Waller’s permission to cross the land to gain access to the Custom House yard, asked to be given “a little notice”. Application to register benefit and burden of a right of way Legal Principles

Application to register benefit and burden of a right of way

[92]A party claiming to have acquired a private right of way by prescription must establish long and continuous use of a defined route, “as of right”. The requirements are commonly summarised by the Latin maxim nec vi, nec clam, nec precario – the use must be without force, without secrecy and without permission – see explanation of meaning of “as of right” in R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335 at 350E–F).[93]Under section 2 of the Prescription Act 1832, a right of way may be acquired where it has been enjoyed “as of right and without interruption for the full period of twenty years”. Alternatively, at common law, an easement may be acquired by the doctrine of lost modern grant where 20 years’ use as of right is proved. In Tehidy Minerals Ltd v Norman [1971] 2 QB 528, the Court of Appeal emphasised that the doctrine is a legal fiction, but it nevertheless requires proof of open, peaceable use, made without permission.[94]The requirement that the use be sufficiently continuous does not require constant use. In Mills v Silver [1991] Ch 271, it was held that continuity is to be assessed by reference to the nature of the land and the right claimed, and that intermittent use may suffice if consistent with the ordinary and reasonable use of the way.

Application to the Facts

[95]To succeed on its application, Subsea must show use of a defined route across the Disputed Land, which was open, notorious and sufficiently continuous for a period of at least 20 years, and which was exercised as of right.[96]I accept that Subsea by its employees and contractors from September 2020 used the Alley on foot to access the side of Custom House. I also accept that it used the Disputed Land on a few occasions to bring a skip into the Custom House yard and to remove it. I also accept that it used the Disputed Land for parking a car on one occasion but that user was plainly contentious. Mr Waller objected and removed the car.[97]Evidence of passing over the Alley and the Disputed Land prior to 2020 for the purposes of vehicular access to and egress from Custom House is insufficient to establish a right of way. Mr Aitken, Mr Quigley and Mr Mander were not called to give evidence to confirm the contents of their statutory declarations and so could not be cross-examined. I do not accept the contents of the declarations where it conflicts with other evidence. I do not accept it as evidence that the Disputed Land was used for vehicular access to the Custom House during the ownership of Custom House by HM Customs and Excise or by the trustees of The Vesuvius Shipping Pension Scheme. The evidence of Mr Waller as to the period from 1981 until the sale to Mojo Mac Limited was that it was not so used. I accept Mr Johns’s evidence that contractors working on the Custom House used the Disputed Land between 2005 and 2008 but other than this, any user was occasional. I am not satisfied that the user was sufficient to give rise to a right of way by prescription.[98]I am not satisfied that Subsea, or any predecessor in title, has exercised use of the Disputed Land for access purposes for the requisite twenty-year period, nor that any such use was sufficiently continuous, as of right, or sufficiently definite to give rise to a prescriptive easement. Accordingly, Subsea Networks Limited has failed to establish an entitlement to the registration of a prescriptive right of way over the Alley or part of the Disputed Land.

Conclusions

[99]I shall direct the Chief Land Registrar to cancel Mr Waller’s application to be registered as proprietor of the Disputed Land and his application to cancel the caution against first registration registered by Subsea. I shall direct the Chief Land Registrar to cancel the application of Subsea to register the benefit and burden of rights of way over the Alley and part of the Disputed Land.

Costs

[100]In a land registration case, the Tribunal has a full costs-shifting jurisdiction. Practice Direction 9 of the Land Registration Practice Directions provides that, where the Tribunal makes an order as to costs, it will usually order the losing party to pay the costs of the successful party, to be assessed on the standard basis.[101]Subject to any submissions to the contrary, my preliminary view is that I should make no order as to costs. Both Mr Waller and Subsea have been unsuccessful in their applications. The costs attributable to each application are likely to be of similar amount. An order that there be no order as to costs would be likely to produce the same net effect as orders that Mr Waller pay the costs of his adverse possession application and that Subsea pay the costs of its application to register rights of way.[102]Any party who contends that a different order as to costs should be made is given the opportunity to serve written submissions on the Tribunal and on the other party. Any such submissions shall be served within 14 days of the date of this decision. Any reply shall be served within 7 days thereafter. BY ORDER OF THE TRIBUNAL Judge Michael Michell DATED this 30th April 2026