Cautionary tale for council

Not a riddle to rival Grimm Brothers’ Rumpelstiltskin – but when is a landowner not a landowner? A night walk in the woods may resolve if Grimms’ dancing imp is found chanting: ‘From me there’ll never be confession/That the answer is adverse possession.’ For as the old saying goes, ‘possession is nine-tenths of the law’.

Eyre J illustrated this when on 23 March he gave judgment in Milton Keynes Council v Wilsher and another [2022] EWHC 578 (QB). This concerned whether (or not) the first defendant (a Romany Gypsy) and his family were trespassing on three fields (the land) which are part of Two Mile Ash Farm belonging to the registered proprietor claimant council. The land adjoins a Travellers’ site where the first defendant and his family live and have lived. The first defendant is a small livestock farmer, who (among other things) grazes horses and some sheep on the land and has carried out various other activities on it. He contended that he had succeeded to his father’s title to the land obtained by adverse possession for at least 12 years before 13 October 2003 (when the Land Registration Act 2002 came into force). Alternatively he claimed the benefit of a proprietary estoppel preventing the claimant from challenging his right to the land.

The first defendant accepted that he could not satisfy the requirements of the 2002 act to obtain registration as proprietor of the land by acts of adverse possession since October 2003. However, it was accepted that if the first defendant and/or his father had been in adverse possession of the land for at least 12 years before 13 October 2003 then the first defendant’s rights would be unaffected by the 2002 act. In that instance, as Eyre J explained: ‘The effect of section 75 of the Land Registration Act 1925 [acquisition of title by possession] and section 15 of the Limitation Act 1980 [time limit for actions to recover land] would be that the claimant as registered proprietor would hold the title to the land on trust for the first defendant who would have acquired rights by adverse possession and/or by succession to the rights which his father had so acquired.’

The court noted as common ground that the approach to determining adverse possession was ‘correctly summarised’ by Morgan J in Food Convertors Ltd & another v Newell & another [2018] EWHC 926 (Ch) at [34]. Among the 10 points noted were that an adverse possession claimant ‘must show that he has an appropriate degree of physical control of the land, that his possession is exclusive and that he has dealt with the land in question as an occupying owner might have been expected to deal with it and no one else has done so’. Also, whether there has been a sufficient degree of control ‘is a matter of fact, depending on all the circumstances’. And those seeking to demonstrate adverse possession of land must show they had an intention for the time being to possess the land to the exclusion of all other persons, including the paper title owner. The court also considered various other authorities, including Batt v Adams [2001] EGLR 92, where Laddie J indicated at [34] that merely maintaining stock-proof fencing was in the circumstances insufficient to demonstrate an unequivocal intention to exclude others.

The court noted that the first defendant and his father (Joseph Wilsher) before him had grazed a number of horses and ponies (connected with a horse breeding and raising business) and some other livestock on the land over a number of years. In addition, on the evidence, Eyre J found that Joseph Wilsher had installed a concrete bridge over a ditched brook after 1980 but before the end of 1990. And in 2001 or 2002 the first defendant had installed a gate at a field entrance, securing it with a chain, a lock and a sign with ‘Private Property Keep Out’ and a galloping horse image. The first defendant also said that he and his father before him had maintained the land by cutting the grass, chain harrowing, removing ragwort and fly-tipped material and cutting and maintaining the existing hedges. When Joseph Wilsher died in February 2004, a wake had been held on the land with the attending priest who conducted the funeral estimating that there were about 2,000 people present. A friend of the late Joseph Wilsher who has known the family since 1991 or 1992 has since around 1998 or 1999 helped with maintaining the land and in return had been allowed by the first defendant to have family camping breaks on the land on several occasions. And although farm business tenancy agreements concerning Two Mile Ash Farm had been granted by the claimant to a Peter Harrison from November 2009 to September 2017 (and Harrison had indicated he had reluctantly tolerated the Gypsy occupation of part of the land) ‘no evidence from Mr Harrison himself was adduced nor was there any explanation as to why there was no such evidence’.

In all the circumstances, the court was satisfied that the first defendant had shown that from 1990 at the latest, his father, and subsequently he, had had sufficient physical control of the land to constitute factual possession. They had also had the necessary intention to possess the land against others including the claimant (and its predecessor) as paper title owner(s). The physical control and intention were also found to continue until October 2003 and subsequently. The claim to a title by adverse possession therefore succeeded – a cautionary tale for local authority landowners. However, the proprietary estoppel claim failed because its key elements (including detrimental reliance and unconscionable owner behaviour) were not established.

Nicholas Dobson writes on local authority, public law and governance