Robert Charles Hayward v Suffolk County Council [2026] UKUT 94 (LC)

[2026] UKUT 94 (LC)LC-2025-283
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: 2024/0006
Venue Royal Courts of Justice, Strand,
Between
ROBERT CHARLES HAYWARDAppellantSUFFOLK COUNTY COUNCILRespondent
London WC2A 2LL
2 March 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LAND REGISTRATION – ADVERSE POSSESSION – whether factual possession established – application to admit new evidence on appeal – relevance of signs purporting to grant public access to disputed land – appeal dismissed
Land on the East Side of Flatts Lane,Tostock,SuffolkMartin Rodger KC,Deputy Chamber President5 February 2026Mark Diggle, instructed by Ashtons Legal LLP for appellantKatrina Yates, instructed by Suffolk County Council Legal Services for respondent© CROWN COPYRIGHT 2026The following cases are referred to in this decision:Baxter v Mannion[2011] EWCA Civ 120Griffiths v TUI (UK) Ltd[2025] UKSC 48; [2025] AC 374Ladd v Marshall[1954] 1 WLR 1489Marsden v Miller (1992) 64 P&CR 239Powell v McFarlane (1977) 38 P&CR 452J A Pye (Oxford) Ltd v Graham[2003] 1 AC 419Tower Hamlets London Borough Council v Barrett[2006] 1 P&CR 9Walter Lilly & Co Ltd v Clin[2021] EWCA Civ 136

Introduction

[1]This appeal by Mr Richard Hayward is against an order of the First-tier Tribunal, Property Chamber (the FTT), made on 28 February 2025 allowing an application by the respondent, Suffolk County Council, for an alteration of the register of titleto land on the east side of Flatts Lane in the village of Tostock, in Suffolk (the Disputed Land).[2]The FTT directed the Chief Land Registrar to close Title No. SK414489, of which Mr Hayward had been the registered proprietor, and to include the Disputed Land in Title No. SK395572, of which the Council is the registered proprietor. The direction was made because the FTT was satisfied that the previous registration of Mr Hayward as the proprietor of the Disputed Land on the grounds of adverse possession was a mistake.[3]It is agreed that to be entitled to remain as registered proprietor, Mr Hayward had to satisfy the FTT thathe had been inadverse possession of the Disputed Land from not later than 21 March 2009 to 20 March 2019. He claimed to have met that requirement but in deciding against him the FTT found that for about half of that period, until 2014 or 2015, Mr Hayward did not have control of the land and so was not in adverse possession of it and that the County Council allowed free access to it by local residents for recreational purposes.[4]At the hearing of the appeal Mr Hayward was represented byMr Mark Diggle and the County Council by Ms Katrina Yates. I am grateful to them both for their submissions.[5]At the start of the hearing, Mr Diggle applied for permission to rely on new evidence which had not been provided to the FTT. The application had, in part, been foreshadowed in the grounds of appeal, but had expanded to include additional material. I will determine that application after explaining the dispute and the FTT’s decision.

Legal framework

[6]The Council’s application which gave rise to the proceedings before the FTT was an application to the Land Registry under paragraph 5(a) of Schedule 4 to the Land Registration Act 2002 (the 2002 Act) which provides that the registrar may alter the register for the purpose of correcting a mistake. Where an such alteration prejudicially affects the title of a registered proprietor, it is referred to in Schedule 4 as “rectification” (paragraph 1).[7]Paragraph 6(2) of Schedule 4, 2002 Act provides that an alteration which relates to rectification may not be made under paragraph 5 without the registered proprietor’s consent unless one of two conditions is satisfied. The first condition requires fraud or lack of care by the registered proprietor and is not relied on by the Council in this case. The second condition, which is relied on, is that it would for any other reason be unjust for the alteration not to be made. If the registrar has the necessary power, paragraph 6(3) provides that the application under paragraph 5 must be approved, unless there are exceptional circumstances which justify not making the alteration.[8]The Council’s application to the Registry was based on the proposition that the registration of Mr Hayward as proprietor of the Disputed Land on the grounds of adverse possession had been a mistake, because he had not been in possession of the land for the required period of ten years. Before the FTT there was no dispute over the general principles applicable to adverse possession claims. The FTT referred to the leading authorities, including Powell v McFarlane (1977) 38 P&CR 452, and J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 which identify the two requisites of legal possession as factual possession, and the intention to possess.[9]As the FTT explained, factual possession requires that the applicant must demonstrate that they have “an appropriate degree of physical control”. Their possession must be exclusive, and they must deal with the land as an occupying owner might have been expected to deal with it. What acts will amount to a sufficient degree of physical control will depend on all the circumstances including the manner in which such land is commonly used or enjoyed. To demonstrate the necessary intention to possess, the applicant must show both that they intended to possess the land to the exclusion of all others, and that they manifested their intention clearly.[10]The appeal is brought under section 111 of the 2002 Act which confers a right of appeal (with permission) on any person “aggrieved by a decision” of the FTT under the 2002 Act. Such an appeal is not an appeal on a point of law (for which the right of appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 is provided) and it is open to the appellant to challenge the findings of fact of the FTT.[11]Like any appellate court or tribunal, this Tribunal will exercise considerable restraint before interfering with the findings of fact or assessments of the judge or panel who heard all of the evidence and the challenges to it. The relevant principles were summarised by Lewison LJ in Walter Lilly & Co Ltd v Clin[2021] EWCA Civ 136 at [85]-[87], as follows: “85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; ii) Where the finding is infected by some identifiable error, such as a material error of law; iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.[86]An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. 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 trial 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.[87]The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.” i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; ii) Where the finding is infected by some identifiable error, such as a material error of law; iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.

The proceedings and the FTT’s decision

[12]Tostock is a village of fewer than 500 inhabitants lying about eight miles east of Bury St Edmunds. The Disputed Land directly abuts the public highway close to the centre of the village and was described by the FTT as “a pretty non-descript roughly rectangular field”. It is bounded to the west by Flatts Lane, and to the north and south by hedgerows with houses beyond. Its boundary on the eastern side is unmarked and the land continues into the adjoining field now owned by Mr Hayward’s wife. The FTT referred to this field as the Adjoining Land. The Disputed Land and the Adjoining Land together have the appearance of a single large enclosure. A number of footpaths and permissive bridleways run into or around this enclosure from different points in the village, and there are two points of access into the Disputed Land itself from Flatts Lane.[13]Mr Hayward purchased the Adjoining Land from the County Council at auction in January 1980, with the Council retaining the Disputed Land within its Title No. SK414489 (I assume for its potential development value).[14]Mr Hayward was registered as proprietor of the Disputed Land on 2 March 2022. He had first applied to be registered on 20 March 2019, but the Council objected, requiring that he demonstrate that he satisfied one of the conditions in paragraph 5 of Schedule 6 to the Land Registration Act 2002. On his being unable to do so, the Registry rejected his first application on 24 October 2019. The Council then took no steps to remove Mr Hayward, and when he applied a second time to be registered it failed to respond to the application and the Land Registry duly registered Mr Hayward as proprietor under the new Title No. SK395572. It was that registration which the Council challenged before the FTT, asserting that Mr Hayward did not satisfy the criteria for adverse possession at the time of his first claim in 2019, and that his registration was therefore a mistake which should be corrected.[15]The FTT heard oral evidence from five local residents called by the Council and from one of its employees, as well as evidence from Mr and Mrs Hayward.[16]The evidence of the local residents included their recollections of the condition of the Disputed Land and its boundaries, and the use made of the land itself and the paths which crossed it for recreation by the public, going back as far as 1974. They recalled that the land had not been fenced off from Flatts Lane until 2014. A member of the Parish Council gave evidence that she had often complained to the County Council to ensure that it complied with its responsibilities to keep the Disputed Land tidy and free of the harmful weed, ragwort.[17]Mr and Mrs Hayward both gave evidence that the Disputed Land had been fenced off from Flatts Lane in 1980 when Mr Hayward purchased the Adjoining Land and that it had been farmed together with the Adjoining Land since that time. Documents showed that Mr Hayward had offered to buy it from the Council in 1987 and had been granted a gratuitous seasonal licence in that year. He explained that had always regarded himself as occupying the Disputed Land and had converted it from an arable field to grass and had included it in his own claims under successive agricultural subsidy schemes. In the 1990s, he had allowed public access to the land to satisfy the conditions of the Countryside Stewardship subsidy scheme, and this fact had been shown on maps which he displayed of the network of permissive paths and bridleways. In 2014 the rules of the scheme had changed, and public access was no longer a requirement, so he had first erected a wire fence, and when local people ignored this, an electrified fence to secure the boundary with Flatts Lane and prevent access.[18]The FTT did not accept Mr Hayward’s evidence, or that of Mrs Hayward, and found them to be unreliable witnesses. They were not deliberately trying to mislead but due to “their advanced ages, the passage of time and wishful thinking” had misremembered or persuaded themselves of matters which had never happened. Their evidence could not be accepted where it conflicted with the evidence of the Council’s witnesses.[19]The FTT found that the boundary between the Disputed Land and Flatts Lane had been unfenced until 2014 and that local residents had enjoyed open and easy access to it since before 1974. Mr Hayward had not created new access points in connection with his subsidy claims, as he had recalled. No signs had been displayed notifying local residents that the Disputed Land was private land to which open access was allowed pursuant to the Countryside Stewardship Scheme. Any signs there might have been were deployed around the permissive paths to the north and east of the Adjoining Land. The Disputed Land was converted from arable to grass at some point between 1987 and 1993 but there was no clear evidence when this was, or who had been responsible. The evidence on both sides was also inconclusive on the issue of who had managed the land, cut the grass crop or removed ragwort. But there was evidence that the Council had been asked by Parish Councillors to attend to these tasks, and it was more likely than not that it had given the relevant instructions and that these had been carried out. No livestock had been kept on the land until 2014.[20]In the absence of documentary evidence, the FTT was not persuaded that Mr Hayward had included the Disputed Land in the Countryside Stewardship Scheme. The evidence of other witnesses confirmed that the Haywards had displayed signs, but these were not put up along Flatts Lane and their purpose was to show the permissive paths. That evidence did not support the claim that the Disputed Land had been included in Mr Hayward’s subsidy claims.[21]The FTT concluded that Mr Hayward had not been in adverse possession of the Disputed Land from March 2009 to March 2019. He only took exclusive possession with the requisite intention to possess it either in July 2014 or when he erected the electrified fence in 2015. The public use of the land before 2014 was inconsistent with Mr Hayward being in possession, and nothing he did before then was effective to exclude the public or to make it clear to them that their use of the land was permissive.[22]It was agreed that, if Mr Hayward had not been in possession for the required period of ten years, as the FTT found, his registration as proprietor was a mistake and the register could be altered to correct that mistake if the condition in paragraph 6(2)(b) of Schedule 4, 2002 Act was met. The FTT concluded that the condition was satisfied and that it would be unjust not to correct the mistake because Mr Hayward had not been in adverse possession for the requisite period.

The grounds of appeal

[23]The questions raised by the grounds of appeal for which permission was granted can be summarised as follows: First, did the FTT err in law or in fact in finding that Mr Hayward was not in possession of the Disputed land until 2014 or 2015 (the possession issue)? Secondly, if registering Mr Hayward as proprietor of the Disputed Land was a mistake, did the FTT err in law or in fact in finding that it would be unjust for the register not to be rectified to correct that mistake (the rectification issue)?[24]A third issue also arises, namely, whether Mr Hayward should be permitted to rely on evidence which was not provided to the FTT. It is convenient to introduce that issue first, but not to determine it without first having considered the possession issue.

The application to admit new evidence

[25]When Mr Hayward applied to the Tribunal for permission to appeal, he relied on three printed signs showing permissive bridleways and footpaths on a plan of the village. On these signs, which carried the logos of DEFRA and the Countryside Commission, the Disputed Land and part of the Adjoining Land were identified as available for open access in connection with the Countryside Stewardship Scheme. The signs had not been in evidence before the FTT. The Tribunal directed that it would rule on whether they could be taken into consideration once it had heard argument on the appeal.[26]Later, on 23 December 2025, Mr Hayward’s solicitors made a formal application to admit the signs in evidence together with additional witness statements by Mr and Mrs Hayward explaining the circumstances in which they had come to light. The application also sought permission to rely on the witness statements of two local residents who had not given evidence before the FTT, Dr Crowe and Mrs Welham, and on three remittance advices evidencing payments to Mr Hayward in 1994 and 1999 under the Country Stewardship Scheme and a remittance advice referring to an unspecified grant application in 1992.[27]When the Tribunal is asked to admit new evidence on an appeal it has to balance the competing public interests in the finality and certainty of decision making, on the one hand, and the achievement of a just decision in the particular case, on the other hand. The factors identified by the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489 remain a reliable starting point for that exercise. They invite consideration of whether the new material could have been found and made available to the original tribunal, whether it would probably have an important influence on the outcome of the case, and whether it is apparently credible. In assessing the weight to be given to those factors, the Tribunal will bear in mind its overriding objective of dealing with cases fairly and justly.[28]At the hearing of the appeal, I excluded the evidence of the new witnesses, Dr Crowe and Mrs Welham, as there was no reason why they could not have given the same evidence to the FTT. I also have no hesitation in excluding the evidence of payments received under the Countryside Stewardship Scheme, as there was never any issue about Mr Hayward’s participation in the scheme, and there is nothing in the documents themselves to connect the payments they evidence to the Disputed Land. They could have had no influence on the outcome of the dispute.[29]That leaves only the photographs of the Countryside Stewardship Scheme signs which Mrs Hayward explained she had discovered only on 9 May 2025. The signs had originally been displayed in frames intended to protect them from the elements. When the subsidy scheme to which they related came to an end in 2013 they had been taken down and the frames reused to display speed restrictions and other information about the livery stable Mrs Hayward runs. The new livery stable signs were inserted into the frames on top of the original signs which remained concealed until Mrs Hayward took them all out when she wished to reuse the frames again. Ms Yates suggested that no adequate explanation had been given why they could not have been discovered earlier, but I accept that a redundant sign which had been covered up and out of sight for more than 10 years is likely to have eluded even a diligent searcher.[30]The more difficult question is whether the three signs would have had any effect on the outcome of the proceedings. They provide clear documentary support for Mr Hayward’s claim that he entered the Disputed Land into the Countryside Stewardship Scheme, which is important because the FTT relied on the absence of such corroboration in rejecting Mr and Mrs Haywards’ own evidence. Had the FTT been shown the signs I think it is likely that it would have accepted Mr Hayward’s evidence that the Disputed Land was included in the Scheme as land to which open access was available. But the signs provide only limited information. They bear no date, and state that access would end in September 2013 without saying when access would begin or when the signs were first displayed. They include a clear invitation to the reader to make use of “the meadow behind the village … for quiet recreation such as walking or picnicking” and show the Disputed Land and the Adjoining Land on the plan, but they do not identify the landowner who was extending that invitation. Each sign indicates the location at which it was intended to be displayed (by a dot on the map marked “You are here”); these locations are not at the entrances to the Disputed Land from Flatts Lane where Mr Hayward believed they had been erected, but correspond exactly with the FTT’s findings about the positions in which it is likely any signs would have been displayed. The relevance of these various points is not readily appreciated in isolation so, rather than deciding at this stage whether the signs should be admitted in evidence, I prefer to consider them in the context of the grounds of appeal as a whole. Only then will it be possible to form a view on the likelihood that they would have made a difference to the outcome of the proceedings.

Ground 1 – The possession issue

[31]Mr Diggle’s general submission was that the FTT’s approach to the evidence adduced on behalf of Mr Hayward was overly harsh and overly simplistic. A conclusion had been reached that he and Mrs Hayward were “unpersuasive witnesses” whose evidence could not be accepted but this had not relieved the FTT of the obligation to consider whether corroboration of their evidence was available. Of course, the FTT heard all of the witnesses and was entitled to form a negative view of the reliability of Mr and Mrs Hayward’s evidence. Several clear examples were given in the FTT’s decision of their evidence being inconsistent with photographs of the land, with contemporaneous documents, or with the evidence of other witnesses. So, as he appreciated, Mr Diggle’s general criticism will not advance the appeal unless he can point to specific instances where evidence was overlooked or, for some other reason, the FTT’s findings were not open to it.[32]Mr Diggle identified three factual issues on which he said the FTT’s conclusions were not consistent with the evidence which supported Mr Hayward’s claim to have been in occupation. The first concerned the conversion of the Disputed Land from an arable to a grass field; the second concerned acts of maintenance carried out while the Disputed Land was under grass; and the third concerned Mr Hayward’s participation in the Countryside Stewardship Scheme. These issues corresponded to the three acts of possession on which Mr Hayward relied in support of his claim to have been in adverse possession of the land since the late 1980s.[33]The first and second of these points were dealt with by the FTT in a single paragraph in its decision, paragraph 56.4.[34]The FTT first found that the Disputed Land had been converted from arable to grass but concluded that “there was no clear evidence of when this was – Mr Hayward said between 1987 and 1993 – or as to who did it”. There was no documentary evidence to support Mr Hayward’s claim that he had paid Mr Thrower (a local farmer and contractor) to carry out the work, and the written agreements between Mr Hayward and Mr Thrower for occupation of land between 1980 and 1987 were confined to the Adjoining Land and did not include the Disputed Land.[35]The FTT then contrasted the evidence of Mr Hayward with the documentary evidence relied on by the Council and, at this point, elided the issue of who had put the land to grass with the issue of who had then maintained it:
“On the other hand, the Council pointed to its licences with Mr Baker from 1980 to 1986 and various other documents from 1983 to an unknown date in the 2000s which it says showed that it continued to manage the Disputed Land and was taking complaints about it, particularly in respect of ragwort, and giving instructions to, inter alia, Mr Thrower and a Mr Petit. Neither side’s evidence provided much assistance. Mr Diggle submitted that the Council’s evidence was weak (i.e. there was no evidence that its orders were transmitted or that any work was actually done) and that Ms Yates did not challenge Mr Hayward in cross-examination as to whether he put the Disputed Land to grass. This may be so but, equally, the Council’s evidence does paint a picture over a number of years of complaints being received and orders given. I consider it more likely than not that the orders were given and carried out. The Haywards’ evidence is also weak and, given my findings on the reliability of their evidence, I am not prepared to accept it without corroboration. I also find that no livestock was kept on the Disputed Land until after it was fenced in July 2014 when the Haywards kept horses there.”

“On the other hand, the Council pointed to its licences with Mr Baker from 1980 to 1986 and various other documents from 1983 to an unknown date in the 2000s which it says showed that it continued to

[36]Mr Diggle submitted that the FTT should have accepted Mr Hayward’s evidence that he had put the Disputed Land to grass at his own expense by instructing Mr Thrower to do it between 1987 and 1993. As the FTT noted, that evidence had not been challenged by Ms Yates when she cross examined Mr Hayward. It was not suggested to him that anyone else had been responsible for the work, or that he was not telling the truth, and it was clear that the alteration had occurred by 1994 at the latest when Mrs Burman, one of the Council’s witnesses, had moved to the village and seen the land under grass.[37]The evidence does seem to have been consistent with Mr Hayward’s claim that he commissioned the work to convert the Disputed Land from arable to grass. Documents were available showing that the Council licenced a Mr Baker to occupy the land until 1986. In 1987 the Council granted a licence to Mr Hayward for the growing season. At that time the land was in arable cultivation and Mr Hayward agreed “to crop the land and keep it in reasonably clean”. By 1994 it was under grass. The Council did not lead evidence that it had carried out the work. Nor did it directly challenge Mr Hayward’s evidence that he had paid Mr Thrower to do so, although Ms Yates tried to nibble round the edges by getting Mr Hayward to acknowledge that none of his agreements with Mr Thrower related to the Disputed Land.[38]The difficulty with Mr Hayward’s evidence on this topic is that it was only part of a quite elaborate story which the FTT firmly rejected. Mr Hayward claimed that the Disputed Land had been fenced off from Flatts Lane and that he and his wife had decided to put it to grass so that they could expand their herd of cattle. He also claimed to have had a conversation with Mr Barnes, the Council’s land agent who had granted the 1987 licence, to the effect the Council had no further interest in the Disputed Land and would make it over to Mr Hayward. The FTT held that there had been no fence until 2014, that there had been no livestock on the Disputed Land until that year, and that Mr Hayward’s account of his conversations with Mr Barnes (who is referred to in the decision as Mr Brown) were inconsistent with the contemporaneous correspondence and the conversations did not happen. Mr Hayward had tried to give a coherent account in which each strand of his recollection supported the next, and I do not find it at all surprising that having rejected parts of his testimony the FTT was not prepared to accept the rest without some corroboration, which it did not find. Unless the FTT was compelled by the absence of cross-examination to accept Mr Hayward’s evidence that he had put the Disputed Land to grass I do not think it can be criticised for deciding that that proposition had not been proven.[39]Mr Diggle submitted that the FTT ought to have given greater weight to the fact that Mr Hayward was not cross-examined on this issue. He referred to the recent decision of the Supreme Court in Griffiths v TUI (UK) Ltd [2025] UKSC 48, which concerned expert evidence given in a breach of contract claim brought against a holiday company by a customer who had fallen ill while on an all-inclusive package holiday. The defendant did not cross-examine the claimant’s expert but persuaded the trial judge that the expert’s evidence should not be accepted because of suggested deficiencies in his report. The Supreme Court reversed the trial judge and the majority in the Court of Appeal, who had considered that the trial judge was entitled to reject the expert’s uncontroverted evidence, and found in favour of the claimant that the failure to cross-examine the expert meant that his evidence should have been accepted. Lord Hodge DPSC, with whom the other members of the Court agreed, confirmed at [61] that there is a long-established rule, as stated in Phipson on Evidence, at para 12.12, that in general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if they wish to submit to the court that the evidence should not be accepted on that point. The rule is one of fairness and serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with their evidence. The rule is not inflexible, and there are circumstances in which it may not apply, for example, if the matter to which the challenge is directed is a collateral or insignificant one.[40]Although the rule is of general application many of the exceptions which Lord Hodge discussed related to expert evidence, and it is not necessary to refer to them all. But I should refer to what he said at [69], which was relied on by Ms Yates:
“Because the rule is a flexible one, there will also be circumstances where in the course of a cross-examination counsel omits to put a relevant matter to a witness and that does not prevent him or her from leading evidence on that matter from a witness thereafter. In some cases, the only fair response by the court faced with such a circumstance would be to allow the recall of the witness to address the matter. In other cases, it may be sufficient for the judge when considering what weight to attach to the evidence of the latter witness to bear in mind that the former witness had not been given the opportunity to comment on that evidence. The failure to cross-examine on a matter in such circumstances does not put the trial judge “into a straitjacket, dictating what evidence must be accepted and what must be rejected”: MBR Acres Ltd v McGivern [2022] EWHC 2072 (QB), para 90 per Nicklin J. This is not because the rule does not apply to a trial judge when making findings of fact, but because, as a rule of fairness, it is not an inflexible one and a more nuanced judgment is called for. In any event, those circumstances, involving the substantive cross-examination of the witness, are far removed from the circumstances of a case such as this in which the opposing party did not require the witness to attend for cross-examination.”

“Because the rule is a flexible one, there will also be circumstances where in the course of a cross-examination counsel omits to put a relevant matter to a witness and that does not prevent him or he

[41]In this case Mr Hayward was cross-examined extensively about the reliability of his recollection on a range of matters, including the fencing off of the field and the suggested conversations with Mr Barnes. The submission which the FTT recorded Ms Yates as making in closing was not that Mr and Mrs Hayward were deliberately telling lies, but that they were “confused” and had made material changes to their evidence after hearing the Council’s witnesses. That was the approach the FTT adopted. It acknowledged the limits of Ms Yates’ cross-examination and recorded Mr Diggle’s submission that she had not challenged Mr Hayward’s evidence that he put the Disputed Land to grass yet did not accept it. The FTT’s response to Mr Diggle’s submission suggests that the omission to cross examine was not one which the FTT thought particularly important, because the question itself was not a critical one and was balanced by more significant evidence:
“This may be so but, equally, the Council’s evidence …”
. I have no transcript of the evidence, so it is impossible for me to be satisfied that the cross-examination as a whole failed sufficiently to challenge Mr Hayward’s evidence. The FTT clearly thought that enough had been done in cross-examination to justify its unwillingness to accept Mr Hayward’s uncorroborated evidence. Mr Diggle has not persuaded me that there was anything unfair in the way the FTT reached that conclusion. Perhaps more significantly, when paragraph 56.4 is read together with the FTT’s later conclusion that Mr Hayward “only took exclusive possession with the requisite intention” in July 2014 at the earliest, it is apparent that the FTT thought what happened after the land had been put to grass was more important than who had put it into that condition in the first place.[42]The FTT was able to reach a conclusion on the issue of maintenance of the Disputed Land after it had become a grass field which it addressed in parallel with Mr Hayward’s claim to have been responsible for that work. The evidence about maintaining the land was mainly documentary and produced by the Council. It comprised annual requests by the Clerk to the Parish Council beginning in 1993 and continuing to 2001 addressed to the County Council asking that the grass and weeds be cut on the land belonging to the Council, requests by the Council to Mr Thrower or later Mr Pettit to carry out the work, and references to it having been done.[43]Mr Hayward gave evidence that in September each year he, his wife, or Mr Thrower acting on their instructions, would cut the grass. He explained that the rules of the Countryside Stewardship Scheme required that grass land within the Scheme be cut once a year and restricted the use of chemical weedkillers which meant it was difficult to control ragwort.[44]The only other witness to refer to the cutting of the grass was Mrs Burman, who said that she had witnessed annual mowing by Mr Hayward. The relevant passage in her witness statement deals with the use of the Disputed Land after it was fenced off and gives the impression that the mowing Mrs Burman witnessed began only after June 2015, when the electrified fence was erected. That certainly seems to be how the evidence was understood by the FTT.[45]I have no doubt that the FTT was entitled to treat the contemporaneous documentary evidence at the very least as a solid foundation from which to infer that the Council engaged in annual acts of maintenance. It may go further than that, in that it is clear that after a few years the requests and instructions had become a matter of routine (in 1998, for example, “I will make arrangements for the field to be cut as usual”, and in 2001, “I am writing with the annual request”). Mr Diggle’s submission focussed on the absence of any receipt for payment or other confirmation that the work had been carried out, but the relevant communications were direct evidence in themselves that the work had been done and fully justified the FTT’s finding that “the orders were given and carried out”.[46]Even if the FTT had accepted Mr Hayward’s evidence that he had been responsible for putting the Disputed Land to grass in the later 1980s or early 1990s, in the face of the contemporaneous written material there is no reason to think that it would have reached a different conclusion about the management of the land. The evidence on both sides supported the conclusion that through the 1990s the work was done by Mr Thrower, with the documents showing that he was instructed by the Council. The paper trail ended in 2001 when Mr Pettit was asked to take over, and the independent evidence resumed with Mrs Burman in 2015. There was no evidence about who had assumed responsibility for maintaining the land between 2001 and 2014.[47]Having made its findings of fact, and rejected Mr Hayward’s uncorroborated evidence, the FTT did not accept that the acts on which he relied amounted to “exclusive possession with the requisite intention”. It considered that the fact that until July 2014 there was “open and easy access” for the public to the Disputed Land, and that they made use of it “almost day-in-day-out for recreation” and for safe access from one side of the village to the other, was fatal to Mr Hayward’s claim to have been in possession of it. The FTT accepted a submission by Ms Yates, which she based on the decision of the Court of Appeal in Marsden v Miller (1992) 64 P&CR 239, that where the land in dispute is used by persons other than the person claiming to be in adverse possession, the claim will fail “unless the acts relied on as constituting the taking of possession are effective to exclude from the land those others”. The FTT was satisfied that other users of the land had not been excluded until 2014, and that nothing Mr Hayward had done before that was effective to exclude the public “or make it clear to them that their use of the Disputed Land was permissive”.[48]Mr Diggle suggested that the FTT had placed too much weight on Marsden v Miller and had failed to appreciate that the use made by the public was consistent with Mr Hayward’s possession of the Disputed Land, because he had made it available for public access under the Countryside Stewardship Scheme. But Marsden v Miller illustrates the principle that the de facto possession claimed by the squatter must be based on effective physical control.[49]In Marsden v Miller the true owner of a parcel of land lying between two houses was unknown. The owners of both houses used the land for similar activities: hanging out washing, as a play area for children, and to park vehicles. One of the owners then put up a fence and claimed to be the owner of the land, but his neighbours pulled the fence down. The Court refused the injunction sought by the owner who had claimed to be in de facto possession of the land to restrain trespass by his neighbours. He had never been in possession because the acts he relied on as constituting the taking of possession (the erection of the fence) had not been effective to exclude other users of the land.[50]In this case, the true owner of the Disputed Land is known and was known to Mr Hayward and to other local people. The FTT was satisfied that the true owner, the Council, was regularly maintaining the land, and regularly being reminded by the Clerk to the Parish Council that it owned it and was responsible for its condition. The result of that continued involvement was that the Council’s possession of the land had never been discontinued. As Slade J explained in Powell v Macfarlane, at page 468, “merely very slight acts by an owner in relation to the land are sufficient to negative discontinuance”.[51]The matters on which Mr Hayward relied in support of his own claim to be in factual possession of the land were, at best, infrequent and insufficient to amount to an assumption of control by him in face of the FTT’s findings of fact about the Council’s continued presence. He claimed to have put the land to grass in the late 1980s or early 1990s. He claimed to have cut the grass once a year. Nothing he did excluded the extensive use of the land by the public. On the contrary, his case was that he permitted the public to have access. In my judgment the FTT was entitled to regard the fact that Mr Hayward had never taken effective control of the land as fatal to his case.[52]The same conclusion would have followed even if the FTT had made a positive finding that Mr Hayward had been responsible for putting the land to grass. That act was not followed by any further acts of possession and, on its own, could not have supported a claim that Mr Hayward had possession to the exclusion of the Council.[53]Might the signs which Mrs Hayward discovered after the FTT had made its decision have made a difference if they had been available at the hearing? I do not think so. Mr Hayward relied on the signs and on his nomination of the Disputed Land as land available for public access in support of his claim to have had the required intention to possess the land. It is not difficult to see the relevance of that nomination as evidence of his subjective intention; he was representing to the bodies responsible for administering the Stewardship Scheme, DEFRA and the Countryside Commission, that he was the owner of the Disputed Land and able to make it available for use by others. But it is difficult to see how including the Disputed Land in the Countryside Stewardship Scheme or designating it as open to the public could be acts of possession of the land. Those were purely administrative acts which involved no activity on the land itself. The public continued to come and go as they had done without any attempt by Mr Hayward to exclude or control them.[54]Nor was the erection of the signs identifying permissive paths and showing the Disputed Land and the Adjoining Land as an area of public access an act of possession of the Disputed Land. The signs were not displayed at the entrances to the Disputed Land, but at the start of the permissive bridleways which they depicted.[55]In Pye v Graham, at [40], Lord Browne-Wilkinson identified the first requirement of legal possession as “a sufficient degree of physical custody and control”, which he designated “factual possession”. In Tower Hamlets London Borough Council v Barrett [2006] 1 P&CR 9, at [54], Neuberger LJ said that “Factual possession involves some sort of physical presence or at least being in physical control in some real way.” In my judgment to display a sign at a location somewhat remote from the land in question asserting that the public have access to that land lacks the essential features of factual possession; it involves no physical presence on the land and is not a manifestation of an effective control or custody over the land. At most it is an assertion of a claim to possession but in my judgment it goes only to the mental element, to the intention to possess, and not to the physical element, to factual possession.[56]It is for these reasons that I have decided not to admit the new evidence relied on by Mr Hayward. It does not go the central issue in the case, factual possession, and it would not have been capable of affecting the FTT’s conclusion that Mr Hayward did not have possession of the Disputed Land until 2014 or 2015. The FTT was entitled to reach that conclusion on the evidence it heard, and Mr Hayward’s first ground of appeal fails.

Ground 2 – The rectification issue

[57]If the Council had begun proceedings for possession against Mr Hayward at any time in the two year period following the rejection by the Land Registry of his first application to be registered as proprietor, it would have had an unanswerable case. It was only the Council’s failure to take any step to assert its own right to possession, either by commencing such proceedings or by opposing Mr Hayward’s second application, which led the Land Registry to treat the second application as unopposed and give effect to it. The second issue in the appeal raises the question whether the FTT was wrong to find that, despite the Council’s dilatory approach to protecting its own interests, it would be unjust not to rectify the register.[58]The FTT accepted Mr Diggle’s submission that the Council had been the author of its own misfortune. It had not updated the address shown in any of its registered titles when it moved to a new address. It did not correct the address on its title to the Disputed Land after the first application. It did not evict Mr Hayward before the second application. It did nothing to oppose the second application. Despite all of those administrative failings, the FTT was satisfied that they did not justify Mr Hayward achieving ownership of the Disputed Land in circumstances where he had been found to be in adverse possession for only half of the period required by the statute. He had never been entitled to be registered, and the Council’s failings did not change that. In reaching the conclusion that it would be unjust not to alter the register to correct the mistaken registration of Mr Hayward as proprietor the FTT said that it was persuaded by the Court of Appeal’s reasoning in Baxter v Mannion [2011] EWCA Civ 120.[59]Mr Diggle sought to distinguish Baxter v Mannion on the facts, arguing that there the paper owner had a much more meritorious case based on his own incapacity, while in this case the Council had no such excuse. Mr Diggle was unable to point to any relevant fact which the FTT failed to take into account, or irrelevant matter which it had regard to. He suggested that the FTT had given insufficient weight to the Council’s failings and had downplayed them as “administrative”, which was over generous. No reasonable judge, Mr Diggle submitted, would have responded to the facts of this case by ruling in the Council’s favour.[60]Persuasively though they were presented, Mr Diggle’s submissions are impossible to accept. It was for the FTT to assess the relevant factors and to decide whether it would be unjust for the Council not to be restored to the register, and it is not for me to embark on the same assessment for a second time, but to ask myself whether the FTT erred in its approach. The assessment did not involve a comparison with the facts of other cases, but the FTT was perfectly entitled to be guided by the approach taken in Baxter v Mannion. It was entitled to regard Mr Hayward as having achieved an unwarranted windfall which it would be unjust for him to retain as he had never satisfied the conditions justifying his registration. It made no error in reaching that conclusion and there is no basis on which this Tribunal could interfere with it.

Disposal

[61]For these reasons I dismiss the appeal. If the Land Registry has not yet given effect to the FTT’s direction of 28 February 2025 it should now do so. Martin Rodger KC, Deputy Chamber President 2 March 2026 Right of appeal