Buckinghamshire County Council v Moran
|England & Wales
|LORD JUSTICE SLADE,LORD JUSTICE NOURSE,LORD JUSTICE BUTLER-SLOSS
|13 February 1989
|Judgment citation (vLex)
| EWCA Civ J0213-1
|Court of Appeal (Civil Division)
|13 February 1989
 EWCA Civ J0213-1
Lord Justice Slade
Lord Justice Nourse
Lord Justice Butler-Sloss
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Hoffmann)
Royal Courts of Justice
MR. MICHAEL DOUGLAS (instructed by Messrs Sharpe Pritchard & Co., London Agents for Messrs D. U. Pullen, Aylesbury) appeared on behalf of the Appellants/Plaintiffs.
MR. PETER R. GRIFFITHS (instructed by Messrs Crystal & Co.) appeared on behalf of the Respondent/Defendant.
This is an appeal by the Buckinghamshire County Council ("the Council") from a judgment of Hoffmann J. given on 19th February 1988, whereby he dismissed the claim by the Council to recover possession of a plot of land situated at Chenies Avenue, Amersham, Buckinghamshire ("the plot"). By a conveyance of 20th October 1955 the plot was conveyed to the Council, which indisputably still has the paper title to it. However, the learned judge held that Mr. Christopher Moran, the defendant to the action and respondent to this appeal, had been in adverse possession of it for more than twelve years before the proceedings were commenced on 28th October 1985, and that the Council's title to it had therefore been extinguished under sections 15 and 17 of the Limitation Act 1980.
I can take the primary facts of the case largely from the learned judge's judgment, where they are stated very clearly. The plot fronts on to Chenies Avenue, which runs from north to south. It is one of a number of plots of roughly equal size on the west side of the road. By 1955 houses had been built on the plots immediately to the north and south of the plot, but the plot itself remained vacant. The house immediately to the north was called Westward Way; the house immediately to the south was called Croft Edge. The Council acquired the plot for a proposed diversion of the A.404 road around Amersham, but it was contemplated that the construction of that road would not take place for many years. Meantime, the Council had no use for the land.
In 1955 there was a laurel hedge separating the plot from the garden of Croft Edge, a chain link fence and a privet hedge along the western boundary and a fence in poor condition with an old iron gate along the road frontage. There was no fence between the plot and Westward Way.
In 1962 the Council acquired Croft Edge also for the purposes of the proposed new road. It let the house to a tenant. At about the same time, Mr. Builith, the then owner of Westward Way, complained about the state of the fence on the road frontage to the plot. He said that children were using the plot as a playground and as a means of access to some recreation grounds beyond the western boundary and that they were causing him annoyance. In response to his complaint the Council put up a chestnut paling fence along the whole length of the road frontage and re-erected the gate at the road, which had fallen down. Mr. Wherry, the District Surveyor at the time, said in evidence that, when making inspections during the 1960's, he used occasionally to climb over the gate or fence; he thought that the gate was wired up, but not locked.
On 15th June 1965 Mr. Builith wrote another letter of complaint to the Council and suggested that the only solution was for the Council to fence off the plot completely from his garden. The Council, however, declined to do so. At about the same time, Mr. Builith built another house on the western side of his plot, which was Dolphin Place.
Early in 1966, Mr. Builith sold off Dolphin Place, together with most of the garden, to a Mr. and Mrs. Swabey. The southern boundary of their garden abutted the north boundary of the plot along the whole of its length. Mr. and Mrs. Swabey, in turn, conveyed Dolphin Place to a Mr. and Mrs. Wall. They took over the maintenance of the plot, mowing the grass, trimming the hedges and treating it as part of their garden. In August 1970 the Divisional Roads Surveyor noted in a memorandum to the County Surveyor that the plot was being cut and maintained in a tidy condition by Mr. Wall. Thereafter, the Road Surveyor's department, being spared the need to maintain the plot itself, did no more than inspect it regularly by looking over the fence from the road, usually from a car window. Mr. Wherry, who was responsible for these inspections in the 1960's and early 1970's, said that so far as he knew no-one from the Council had gone upon the land since the late 1960's.
In 1971, Mr. and Mrs. Wall sold Dolphin Place to the defendant, Mr. Moran. The judge found that there had not been any substantial change in appearance of the house and garden since the time when Mr. Moran bought it. On inspection, he said, the plot would appear to be part of the garden enclosed on all sides except the north, where there is nothing to indicate any boundary between it and the garden contained within the paper title of Dolphin Place. He also found, however, that Mr. Moran was aware that the paper title to the plot was vested in the Council, and that the Council had acquired. the land in order to construct a road at some time in the future.
It seems fairly clear that at the time of his purchase of Dolphin Place, Mr. Moran and his legal advisers were well aware of the possibility that Mr. and Mrs. Wall had acquired, or were in the course of acquiring, a possessory title to the plot. They procured the making of a statutory declaration by Mr. and Mrs. Wall dated 15th July 1971, in which they said that since 1967 they had occupied the plot and cultivated it to the extent of tending and cutting the grass and trimming hedges and had from time to time parked a horse box on the plot. They said that no person had challenged their right to occupy it, and their permission had been requested for the laying of an electricity supply across it, by parties owning or occupying the tennis courts at the rear. The conveyance of Dolphin Place to the defendant dated 28th July 1971 was expressed to include not only the land comprised in the vendor's paper title, but also "all such estate, right, title and interest that the vendor's may have in or about the remaining part of the plot formerly numbered 206 as aforesaid"(that is, the plot).
Following the conveyance to him of Dolphin Place, the defendant took possession of that property and for the next eighteen months or so lived there with his mother, Mrs. Moran. After that time he moved out, but his mother has remained there ever since and he returns occasionally for week-ends and other visits. In argument on this appeal no reliance has been placed on the fact that since about 1973 the defendant has not been personally residing at Dolphin Place.
The defendant said in evidence that he thought that the gate which the Council had re-erected in the early 1960's might have had a lock which had been placed upon it by Mr. Wall. Subject to this, the judge found that the state of the fences when the defendant bought the property was as has been described earlier in this judgment. Whether or not there was already a lock on the gate when the defendant bought the property, the judge accepted the defendant's evidence that when he moved in he bought a new lock and chain and fastened the gate; he also found that he kept the key: (see judgment at pp.4G and 7H-8A). The judge also found that since then there has been no access to the plot other than by climbing over the fences or through the hedges, except via the driveway of Chenies Avenue and through the garden of Dolphin Place.
In 1975 the local tennis club, whose courts lay over the boundary to the west of the plot, had a scheme for laying a drain which would be connected with the drainage arrangements of Dolphin Place. They applied to the Council for permission. As a result, the Council got in touch with the defendant. A telephone conversation took place between the defendant and Mr. Harris of the County Valuer's Department on 10th November 1975. Mr. Harris made an attendance note of that conversation which, so far as material, read as follows:
"Mr. Moran….. discussed with [Mr. Harris] the use of the land immediately to the north of the property known as 'Croft Edge'. Mr. Moran indicated that he had been the owner of Dolphin Place for five years and that the land in question was incorporated within the garden of his property. He indicated that he had purchased the property from a Mr. Wall of Westward Way, in whose garden Dolphin Place was built. He stated that the previous owner had obtained a right to use the County Council land when Dolphin Place was built and that this right had been passed on to himself. He believed that the right to use this land had been arranged as part of the granting of planning permission for the erection of Dolphin Place. He also stated that he was of the opinion that he had first option to purchase the land if the road was not constructed. He believes that the County Council had asked the previous owners for permission to lay an electricity cable across the land. This was actually carried out by the Tennis Club. Mr. Moran requested details of the works proposed by the Tennis Club."
The defendant said in evidence that, while he did not remember this conversation, he had no reason to believe that it had not taken place. He did not accept some of the things which Mr. Harris recorded him as having said. The learned judge, however, thought it right to treat the attendance note as representing a substantially accurate account of the conversation and it has not been suggested that he was...
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