“(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”
“(1) A person is in adverse possession of an estate in land for the purposes of this Schedule if, but for section 96, a period of limitation undersection 15 of the Limitation Act 1980 (c. 58) would run in his favour in relation to the estate. (2) A person is also to be regarded for those purposes as having been in adverse possession of an estate in land— (a) where he is the successor in title to an estate in the land, during any period of adverse possession by a predecessor in title to that estate, or (b) during any period of adverse possession by another person which comes between, and is continuous with, periods of adverse possession of his own. (3) In determining whether for the purposes of this paragraph a period of limitation would run undersection 15 of the Limitation Act 1980 , there are to be disregarded— (a) the commencement of any legal proceedings, and (b) paragraph 6 of Schedule 1 to that Act.” (a) where he is the successor in title to an estate in the land, during any period of adverse possession by a predecessor in title to that estate, or (b) during any period of adverse possession by another person which comes between, and is continuous with, periods of adverse possession of his own. (a) the commencement of any legal proceedings, and (b) paragraph 6 of Schedule 1 to that Act.”
“(1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met.”
“52. The wording of paragraph 5(4)(c) is ambiguous as is evidenced by the debate that it has engendered and there is no clear authority on its construction. In both Zarb v Parry and IAM Group plc v Chowdrey it was found that the reasonable belief continued until the date of the proceedings and construction was not argued. I am, therefore, not bound by either of them. What is clear to me is that Parliament cannot have intended that a squatter makes an application on the day his belief ceases to be reasonable. Such a construction would render the provision virtually useless and, indeed, Mr Adams acknowledges this by conceding that any de minimis period should be disregarded. 53. I take the view that paragraph 5(4)(c) should be construed as meaning any 10 year period and not one that must end on or close to the date of an application to the Court or the Land Registry. This was, of course, the view taken in Crook v Zurich Assurance Ltd (in which the issue was argued at some length) and other Tribunal decisions such as Davies v John Wood Property plc, Port of London Authority v Mendoza and McLeod v Brown & Jones. Whilst I accept that these decisions are not binding on me, I do find them persuasive. Further, the any 10 years construction can be read from paragraph 5(4)(c) itself and, perhaps incidentally, is consistent with the wording of paragraph 1(1) where ‘the period of ten years ending on the date of the application’ also appears. The de minimis argument offers a solution that is not needed and throws up all the unsatisfactory and unwelcome difficulties and uncertainties of working out whether an application is made promptly in any particular case; something which this Tribunal sees this in practice and the Law Commission acknowledges in proposing a one year window for applications to be made. I also note that Dr Charles Harpum, who played a major role in the drafting of theLand Registration Act 2002 , says that paragraph 5(4) was intended to allow an adverse possessor to rely on the facts “on the ground” until a dispute was inevitable since “no sane person wishes to initiate a boundary dispute”
“61. On the above analysis, it seems to me more likely than not that by February 2018 the Ridleys knew of the discrepancy and so did not have a subjective belief that they were the registered proprietors of the Disputed Land. Similarly, their objective belief cannot have been reasonable. If the Ridleys had to make their application to the Land Registry promptly or within a reasonable period of time, then I find that they did not as it took them almost two years to do so with no explanation for the delay.”
“1. The learned Judge failed to follow a binding Court of Appeal authority, Zarb v Parry[2012] 1 WLR 1240 ; alternatively failed to give adequate weight to the Court of Appeal’s acceptance in that case (and a subsequent case) of the construction advanced by the Appellant. 2. The learned Judge erred in law in construingLand Registration Act 2002 Schedule 6 paragraph 5(4) as requiring an applicant for adverse possession to show merely a reasonable belief that the land belonged to him for any 10 years of the period of adverse possession, rather than requiring the applicant to show that the reasonable belief persisted until the date of the application (ignoring ‘de minimis’ periods).”
“3. If the Upper Tribunal concludes that the correct construction of paragraph 5(4) is that an applicant’s reasonable belief that the application land belongs to them must persist until the date of their application (ignoring de minimis periods): a. the learned Judge was wrong to find that the Respondents’ reasonable belief ceased in February 2018 because: (i) he impermissibly imputed to the Respondents the subjective belief of Mr Hodgson; and/or (ii) his conclusion that the Respondents’ reasonable belief that the application land belonged to them ceased in February 2018 was unsupported by the evidence; and b. the period between the cessation of the Respondents’ reasonable belief that they owned the application land (October 2019) and the date of their application (10 December 2019 ) was de minimis.” a. the learned Judge was wrong to find that the Respondents’ reasonable belief ceased in February 2018 because: (i) he impermissibly imputed to the Respondents the subjective belief of Mr Hodgson; and/or (ii) his conclusion that the Respondents’ reasonable belief that the application land belonged to them ceased in February 2018 was unsupported by the evidence; and b. the period between the cessation of the Respondents’ reasonable belief that they owned the application land (October 2019) and the date of their application (10 December 2019 ) was de minimis.”
“1. The respondents must confirm by4 August 2023 whether they wish to rely on the contingent grounds of appeal in support of a contention that the Tribunal should make a different order from the order made by the FTT (and not simply as alternative grounds on which the order should be upheld, and the appeal dismissed). 2. If the respondents do wish to rely on the contingent grounds for that purpose, they must first apply to the FTT for permission to appeal before renewing their application for permission to the Tribunal (if permission is refused by the FTT). If so, they should specify the order they will invite the Tribunal to make if those grounds are successful. 3. If the respondents wish to rely on the contingent grounds only as alternative grounds on which the order should be upheld, and the appeal dismissed, they can properly be included in a respondent’s notice without the need for permission to appeal because they involve no challenge to the FTT’s order and therefore no cross appeal. In that event, the parties should liaise and jointly confirm to the Tribunal by18 August 2023 whether the hearing of the appeal will require more than the single day currently allocated to it. 4. The parties may apply for further directions if required.”
“We refer to paragraph 1 of the Tribunal’s Order dated 26 July and confirm on behalf of the Respondents that they do not wish to rely upon the contingent grounds of appeal in support of a contention that the Tribunal should make a different Order from the Order made by the First-tier Tribunal. Rather, the Respondents rely upon the contingent grounds of appeal as alternative grounds upon which the Order should be upheld and the appeal dismissed.”
“12 The 2002 Act introduced a new legal scheme for acquiring title to registered land by adverse possession. I will confine myself to its essential features for present purposes. For the first time the adverse possessor was to be able to obtain registration by an application to the Land Registry, which is then notified to the paper title owner. The new scheme seeks to establish a fair balance between the interests of the paper title owner and those of the adverse possessor. To protect the paper title owner, the adverse possessor must satisfy certain conditions and on this appeal I have to consider one of those conditions, the first time that it has been considered in this court.”
“16 Paragraph 5(4) thus deals with a situation mentioned in para 1 of this judgment, which is very commonly met, namely the situation where the physical boundary between two properties does not accord with the paper title. People often make mistakes when laying out a physical boundary to a new plot. 17 Paragraph 5(4) sets out three sub-conditions. The relevant sub-condition on this appeal is sub-paragraph (c). This sub-condition is new. The adverse possessor has to show that he made a reasonable mistake in believing that he was the owner of the land of which possession is claimed. This seems to be a fair requirement for the law to impose before the paper title owner is deprived of his land, which may be very substantial in area and value, unlike the comparatively small area in this case. It reflects the fact that, by virtue of article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to theHuman Rights Act 1998 , a fair balance must be shown to justify an interference by the state with a person’s possessions. The 2002 Act was no doubt intended to be Convention-compliant in this respect. But the necessary effect of the way that paragraph 5(4) is expressed is to make the unreasonable belief of the adverse possessor in the last ten years of his possession prior to the application for registration a potentially disqualifying factor even though his belief started out as reasonable but became unreasonable as a result of circumstances after the completion by him and/or his predecessor in title of a ten-year period of possession. The consequence of that is that the paper title owner will have a last chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years. The moral is that, as soon as the adverse possessor learns facts which might make his belief in his own ownership unreasonable, he should take steps to secure registration as proprietor.”
“46 The judge referred to paragraph 5(4) in para 19 of his judgment before setting out his conclusions on the Parrys’ adverse possession claim. The judge made no finding as to whether the Parrys had a reasonable belief that they owned the strip or not. He did, however, find at para 16 that the Ceens used the strip because “they believed it was theirs and the boundary, the southern boundary, of the land they had acquired was marked by the middle of the hedge that was there to be seen and nowhere else”
“51 In my judgment, the belief of the Parrys was a reasonable one to hold. When they purchased Fleet House, the dispute was dormant as the Zarbs had not raised the dispute in response to Mrs Ceen’s communications. The dispute remained dormant for the next five years as there were no communications challenging the southern boundary from the Zarbs until 2007. By that time, they and the Ceens had together been in possession of the land for well over ten years. The report of Mr Powell confirmed the Parrys’ belief that the physical boundaries were correct. Mr Powell was a qualified surveyor and he gave reasons supporting his opinion. In those circumstances, the belief of the Parrys in my judgment continued to be reasonable. Mrs Collignon laid some emphasis on the fact that Mrs Parry was a barrister but she did not suggest that she would necessarily have had a detailed knowledge of this area of the law.”
“55 The 2002 Act creates difficulties for proprietors with disputed boundaries. If a person discovers that his boundary is in fact on his neighbour’s land and that he has been in possession for ten years, he can if he acts promptly apply to the Land Registry to be registered as proprietor of any land outside his title. The new provisions will, however, require the registrar to give notice of the application to the paper title owner of the land sought to be acquired. If the registered proprietor does not oppose the application, registration will follow. If the registered proprietor opposes the application, the adverse possessor may be unable to satisfy the third condition in paragraph 5 of Schedule 6 to the 2002 Act, and will fail to secure registration save in the exceptional case where he can show that another condition is satisfied.”
“77 That leaves the Zarbs’ third point, which is that, during the last couple of years while they enjoyed possession, the Parrys cannot reasonably have believed that they owned the strip: see paragraph 5(4)(c) of Schedule 6 to the 2002 Act. This argument was presented on the basis that the Parrys received a letter in October 2007 from the Zarbs’ solicitors which made it clear that the Zarbs were the paper title owners of the strip, and how they made that proposition out. 78 That does not seem to have been a point which was much canvassed below: certainly, the judge seems to have given it scant attention in his judgment, although Ms Collignon realistically accepts that he implicitly rejected it. 79 It is clear that the Parrys and their predecessors believed that they owned the strip, so the issue is whether that belief was reasonable after October 2007, and the judge, who was the primary fact-finder, albeit implicitly (as I have just mentioned), concluded that that belief was reasonable. 80 Further, it is clear that a fellow of the Royal Institution of Chartered Surveyors, Mr Powell, who fully investigated the dispute well after the October 2007 letter, concluded that the strip was owned by the Parrys, and he was not called as a witness. In my view, in the absence of any other evidence to assist the Zarbs, that fact, coupled with the judge’s finding, renders it impossible to maintain on this appeal that the belief of the Parrys to the same effect was unreasonable. Mr Powell is experienced in neighbours_ dispute cases, and the fact that he may have exceeded the scope of his instructions when expressing his view as to the location of the paper title boundary (a point it is unnecessary to decide) is irrelevant: he thought it was part of his instructions, and he reached a clear and sensible conclusion, and one which he presumably thought minimised discontent and disruption. Between the provision of Mr Powell’s report and the issue of these proceedings, it was not suggested that there was any further evidence, which would have been relevant on the issue of the reasonableness of the Parrys’ belief. 81 For these reasons, which substantially reflect those more fully expressed by Arden LJ, I would dismiss the Zarbs’ appeal.”
"A finding that the claimant shares accommodation with his landlord (within the meaning of regulation 3(4) of theHousing Benefit (General) Regulations 1987 ) is a necessary but not a sufficient condition for the finding that he resides with that landlord."
“15 In our view, as in the view of Munby J, it is therefore inescapable that this court in Goonery's case decided that Mr Goonery resided with Mr Carver because, and simply because, he shared a kitchen with him. The court reached that conclusion because it thought that the issue of residence was determined by the terms of regulation 3(4); and that the terms of that regulation defined the meaning of residence for the purpose of entitlement to housing benefit. If those two latter findings or assumptions are part of the court's ratio, and there is no means of excluding them from the normal rules of binding authority, then they bind us, as they bound Munby J, to decide this case in the sense adopted by the board. To determine whether that is so it is necessary to review some fundamental principles of the system of precedent.”
“17 Judged by that test, there is no doubt that the assumptions in Goonery's case that the issue was to be decided solely by reference to regulation 3(4); and that because Mr Goonery shared the kitchen with Mr Carver he resided with him; were impliedly, and possibly also expressly, treated by the court as a necessary step in reaching its conclusion. Indeed, those assumptions were not merely a necessary step in the reasoning, but assumptions that determined the conclusion or took up the whole of the reasoning process. Although it is perhaps otiose to do so in this case, Professor Cross's test can be most easily applied by positing the negative of the rule of law under consideration. If the court in Goonery's case had proceeded on the basis that regulation 3(4) was not determinative (which, as indicated in paragraph 11 above, is the preferred view both of Munby J and of ourselves), then the result of the case might not have been different, but court's conclusion, in the sense of its finding that the sharing of the kitchen decided the matter, certainly would have been. Therefore, unless the present case can be treated as an exception to the general rule of precedent, we are bound to follow the same approach as did this court in Goonery's case.”
“33 We therefore conclude, not without some hesitation, that there is a principle stated in general terms that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court. Since there is no direct Court of Appeal authority to that general effect we should indicate why we think the principle to be justified.”
“38 Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. That condition will almost always only be fulfilled when the point has not been expressly raised before the court and there has been no argument upon it: as Russell LJ went to some lengths in National Enterprises Ltd v Racal Communications Ltd to demonstrate had occurred in the previous case Davies Middleton & Davies Ltd v Cardiff Corpn 6z LGR 134. And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision.”
“52. The wording of paragraph 5(4)(c) is ambiguous as is evidenced by the debate that it has engendered and there is no clear authority on its construction. In both Zarb v Parry and IAM Group plc v Chowdrey it was found that the reasonable belief continued until the date of the proceedings and construction was not argued. I am, therefore, not bound by either of them. What is clear to me is that Parliament cannot have intended that a squatter makes an application on the day his belief ceases to be reasonable. Such a construction would render the provision virtually useless and, indeed, Mr Adams acknowledges this by conceding that any de minimis period should be disregarded.”
“15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below. 16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad[2009] EWCA Civ 2 at [30] and [49]). 18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service[2017] EWCA Civ 24 ; [2017] R.T.R. 22 at [29]).”
“One aspect of the third condition remains the subject of uncertainty. It is not known whether the 10 years of reasonable belief must continue until immediately before the date of the application. Clearly a requirement that S submit her application on the very day her belief ceases, or ceases to be reasonable, is impracticable and cannot have been the intention of Parliament. The wording of the statute leaves it unclear as to whether any period of ten years within the period of adverse possession will suffice, or whether a reasonable period may elapse between the ending of the belief or of its reasonableness provided that the squatter acts promptly.565 The Law Commission has recommended the introduction of a fixed period of 12 months’ grace for the making of the application after the point when S no longer has a reasonable belief that she owns the land.566”
“38 Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. That condition will almost always only be fulfilled when the point has not been expressly raised before the court and there has been no argument upon it: as Russell LJ went to some lengths in National Enterprises Ltd v Racal Communications Ltd to demonstrate had occurred in the previous case Davies Middleton & Davies Ltd v Cardiff Corpn 62 LGR 134. And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision.”
“18 The principal ground of the appeal is a short one. It is that the Judge ought to have inferred that the respondent's solicitors not only saw the 1993 transfer to the respondent and the copy entries in the Land Registry, but also conducted all necessary searches on the respondent's behalf. In the light of all of those documents, and assuming suitable enquiries, there was nothing to lead to a reasonable belief that the disputed property belonged to the respondent. Mr Evans points out that the plans at the Land Registry give no indication of a flying freehold covering the whole of the first floor of No.26 being comprised within the registered title of No.26a. He emphasises that the boundaries on the register plans show a vertical division of the boundary between the two properties. He says, moreover, that it is clear from the transfer itself that the transfer was of—and only of—the property comprised in the registered title of No.26a. He says that on the face of the register entries relating to both No.26 and No.26a there is reference to the 1928 Deed. Accordingly, Mr Evans says, not only is the inevitable inference that the solicitors acting for the respondent in 1993 would have seen and understood the Land Registry documents and the transfer as indicating only vertical boundaries between the two properties and the absence of any flying freehold owned by No.26a over No.26, but, if they had ever sought to investigate the point, it would have become perfectly clear from the 1928 Deed which they could have obtained from the Land Registry (and which in due course was in fact obtained from the Land Registry by the appellant) that any doubts on the point would have been resolved in favour of the Judge's ultimate conclusion, namely that there was no flying freehold over No.26 within the title of No.26a.”
“19 Mr Evans further says that, if that was not enough, in 2009 and in 2010 there was correspondence from the appellant's solicitors to the respondent asserting that the respondent was not the owner of the first and second floors over the ground floor of No.26 but that the appellant was, and they enclosed copies of the relevant entries at the Land Registry. Mr Evans submits that, whatever misconception the respondent may have had up until that time about his ownership of the disputed property, he could not reasonably have continued to believe that he owned the disputed property after that time.”
“28 On the basis of the facts found by the Judge there was nothing to put the respondent on notice in 1993 that he needed to raise with his solicitors whether his title to No.26a included the disputed property, of which he had enjoyed exclusive possession without challenge or question from the time he first acquired an interest in 1990 and the access to which obtained solely from No.26a. That, in my judgment, is the end to the ground of appeal based upon the respondent's inferred knowledge derived from the assumed conduct of what would have been hypothetically competent solicitors.”
“29 So far as concerns the letters from the appellant challenging the title of the respondent to the disputed property in 2009 and 2010, it is clear from Zarb v Parry that the mere fact that a paper title owner challenges the asserted ownership of land by the adverse possessor is not in every case sufficient to render unreasonable any continuing belief of ownership on the part of adverse possessor. On the facts in Zarb v Parry the adverse possessor satisfied the requirement of reasonable belief even though that the paper title owner had challenged the assertion of ownership by the adverse possessor. 30 The question in each case is what, in all the circumstances, is the proper conclusion as to the reasonableness or otherwise of the continued belief as to ownership by the adverse possessor. In the present case, by the time of the letters from the appellants challenging the respondent's asserted title of the disputed property, the respondent had enjoyed unchallenged exclusive occupation for some 18 years. During that period the respondent's exclusive occupation of the disputed property had never been challenged or questioned by anyone who had any interest in No.26, and indeed the appellant's own tenants had seemingly acknowledged that the disputed land was not being used by them, and access was only obtained via No.26a. In the light of those facts the Judge was not only entitled but right to conclude that the letters from the appellants did not result in the continuing belief of the respondent that he owned the disputed property ceasing to be a reasonable one.”
“29 The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[1975] AC 591 , 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.” (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd[2001] 2 AC 349 , 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”
“30 External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.”
“31 Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme[2001] 2 AC 349 , 396, in an important passage stated: “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . .Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.” “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . .Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”
“(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”
“It is one of the linguistic canons applicable to the construction of legislation that an Act is to be read as a whole, so that an enactment within it is to be treated not as standing alone but as falling to be interpreted in its context as part of the Act. The essence of construction as a whole is that it enables the interpreter to perceive that a proposition in one part of the Act is by implication modified by another provision elsewhere in the act. Construction as a whole requires that, unless the contrary appears, every word in the Act should be given a meaning, the same word should be given the same meaning, and different words should be given different meanings.”
“4. The whole exercise has been an uncomfortable experience of unsatisfactory aspects of the conduct and cost of neighbour disputes in the courts. Everybody agrees that, if at all possible, disagreements between neighbours about rights of way, boundaries or whatever should be settled without ever going near a court. In my view, professional advisers have a duty to warn their clients at an early stage about the downside of neighbour litigation, even for a successful party. If the case goes to court there is, as this case shows, some uncertainty about the ultimate outcome. The case does not always end with the trial. Appeals are possible. What is certain is that, at the end of the day, one of the parties will lose and will usually finish up fixed with an order to pay very considerable legal costs. That is not good for the losing party or for the prospect of harmonious relations between neighbours who continue to live next door to each other after the case is over. The cost and stress of a court case will often result in the further deterioration of already damaged relationships. The parties might be horrified to discover that the litigation has blighted their properties, as well as their lives.”
“17 Paragraph 5(4) sets out three sub-conditions. The relevant sub-condition on this appeal is sub-paragraph (c). This sub-condition is new. The adverse possessor has to show that he made a reasonable mistake in believing that he was the owner of the land of which possession is claimed. This seems to be a fair requirement for the law to impose before the paper title owner is deprived of his land, which may be very substantial in area and value, unlike the comparatively small area in this case. It reflects the fact that, by virtue of article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to theHuman Rights Act 1998 , a fair balance must be shown to justify an interference by the state with a person’s possessions. The 2002 Act was no doubt intended to be Convention-compliant in this respect. But the necessary effect of the way that paragraph 5(4) is expressed is to make the unreasonable belief of the adverse possessor in the last ten years of his possession prior to the application for registration a potentially disqualifying factor even though his belief started out as reasonable but became unreasonable as a result of circumstances after the completion by him and/or his predecessor in title of a ten-year period of possession.The consequence of that is that the paper title owner will have a last chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years. The moral is that, as soon as the adverse possessor learns facts which might make his belief in his own ownership unreasonable, he should take steps to secure registration as proprietor.”
“56. I am not satisfied that the Ridleys have established that they maintained their initially reasonable belief beyond the making of their application for planning permission in February 2018. On the one hand I have Mr Ridley and Mr Hodgson’s evidence that the first time they realised there was an issue as to the paper and on the ground boundaries was about23 October 2019 when Mr Hodgson produced the overlay plan at page 671 having obtained a copy of the title plan for Valley View from the Land Registry. On the other hand, the documentary evidence is, as Mr Adams submits, unsatisfactory for the reasons that follow.”
“57. First, there is the last paragraph of panel 5 of the Ridleys’ ST1 filed in support of their application to the Land Registry (see paragraph 27 above). As Mr Adams submitted, this possibly unguarded statement comes from the Ridleys themselves is backed by a Statement of Truth and may have been made at a time when they did not appreciate the legal test that they had to satisfy. I say this because nowhere else in the ST1 or the ADV1 are the requirements of the Third Condition addressed. Then there is the Ridleys’ attempt to explain this in their solicitors’ letter of8 April 2020 in which it was written that the Ridleys had not checked their title deeds until after receipt of Mr Brown’s first letter in November 2019 when in fact they had checked their title deeds in October 2019. Both of these could be unfortunate lapses and I would not rule against the Ridleys based upon them alone. 58. What gave me more concern was Mr Hodgson’s attempt during cross-examination to explain his email to Mr Brown dated25 October 2019 – see paragraph 24 above. What these representations to the council were and why they were necessary was not properly addressed. If Mr Hodgson’s explanation really was, as I understood it to be, that the representations he was referring to was his certification on the planning application form that the Ridleys were the sole owners of the land, then I reject it. The making of representations goes well beyond certifying ownership on a planning application form. 59. There are also the early drawings at S10, S14 and S17 all dated prior to February 2018 and all showing a straight line boundary consistent with the title plan. More likely, it seems to me, is that Drawing 001 was based upon the title plan because (a) Mr Hodgson’s email to Mr Ridley dated21 October 2019 (page 646) describes ‘Drawing 001’ as ‘site plan boundary in red line as per official land registry’, and (b) Mr Hodgson’s explanation that he meant to write ‘Ordnance Survey’ cannot be reconciled with the overlay plan that he emailed to Mr Ridley on23 October 2019 in which the black zigzag line is taken from Ordnance Survey. Mr Hodgson’s attempts to explain these were unconvincing and not helped by the fact that on a number of occasions he had to resort to referring to data or information that only he could see on his computer such as metadata in pdfs or emails that he had sent, none of which had been disclosed even though Mr Brown’s solicitor had made quite an issue of disclosure. For example, the version of the location plan drawing 001 at page 473 dated ‘Aug ‘17’ showing a zigzag boundary. There was nothing before me to corroborate Mr Hodgson’s claim that this was a later revision. There is also the fact that in October 2019 Mr Hodgson was telling Mr Brown one thing (that Moonrakers was being built within the straight-line Land Registry boundary – see plan on page 666) and Mr Ridley another (that the Ordnance Survey and topographical survey boundary lines did not match the Land Registry title plan boundary – see plan on 669). 60. Although Mr Ridley maintained in his oral evidence that it was only in October 2019 that he first learned of an issue with the boundary and that if he had learnt of this earlier, he would have applied for adverse possession, there was nothing other than Mr Hodgson’s word to support this. What documentary evidence there is, suggests otherwise as I have indicated above.”
“61. On the above analysis, it seems to me more likely than not that by February 2018 the Ridleys knew of the discrepancy and so did not have a subjective belief that they were the registered proprietors of the Disputed Land. Similarly, their objective belief cannot have been reasonable. If the Ridleys had to make their application to the Land Registry promptly or within a reasonable period of time, then I find that they did not as it took them almost two years to do so with no explanation for the delay.”
“49. The Ridleys must establish that they themselves (not Mr Hodgson) actually believed (subjectively) that the Disputed Land belonged to them and that their belief was objectively reasonable – see paragraph 10(c) above.”
“29 Mr Westgate QC, who appears on behalf of Ms Ahmed, as he did at trial, emphasises that an appellate court will only rarely interfere with findings of fact made by a trial judge, and that this applies both to findings of primary fact and to inferences to be drawn from them such as, he submits, the conclusion that there was an agency. In this regard he has referred us to the judgment of Lewison LJ in Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5 ; [2014] F.S.R. 29 at [114]-[115]. 30 In the recent Court of Appeal case of Grizzly Business Ltd v Stena Drilling Ltd[2017] EWCA Civ 94 the legal position was summarised as follows: “39. The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd[2014] UKSC 41 ; [2014] 1 W.L.R. 2600 and McGraddie v McGraddie[2013] UKSC 58 ; [2013] 1 W.L.R. 2477 the latter of which cited with approval Hamilton v Allied Domecq Plc [2006] S.C. 221 at [85]. In the latter case it was said: ‘If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.’ In Henderson the Supreme Court (at [62]) also said: ‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’ We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5 : ‘(iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. (v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). (vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.’ 40. There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached….” 31 In summary, such interference will only be justified where a critical finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached.” “39. The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd[2014] UKSC 41 ; [2014] 1 W.L.R. 2600 and McGraddie v McGraddie[2013] UKSC 58 ; [2013] 1 W.L.R. 2477 the latter of which cited with approval Hamilton v Allied Domecq Plc [2006] S.C. 221 at [85]. In the latter case it was said: ‘If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.’ In Henderson the Supreme Court (at [62]) also said: ‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’ We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5 : ‘(iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. (v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). (vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.’ 40. There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached….”
“76. So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”.”
“1. The respondents must confirm by4 August 2023 whether they wish to rely on the contingent grounds of appeal in support of a contention that the Tribunal should make a different order from the order made by the FTT (and not simply as alternative grounds on which the order should be upheld, and the appeal dismissed). 2. If the respondents do wish to rely on the contingent grounds for that purpose, they must first apply to the FTT for permission to appeal before renewing their application for permission to the Tribunal (if permission is refused by the FTT). If so, they should specify the order they will invite the Tribunal to make if those grounds are successful. 3. If the respondents wish to rely on the contingent grounds only as alternative grounds on which the order should be upheld, and the appeal dismissed, they can properly be included in a respondent’s notice without the need for permission to appeal because they involve no challenge to the FTT’s order and therefore no cross appeal. In that event, the parties should liaise and jointly confirm to the Tribunal by18 August 2023 whether the hearing of the appeal will require more than the single day currently allocated to it.”