J Alston & Sons Ltd v BOCM Pauls Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 2008 |
| Neutral Citation | [2008] EWHC 3310 (Ch) |
| Docket Number | Case No: HC07C02537 |
| Court | Chancery Division |
| Date | 28 November 2008 |
[2008] EWHC 3310 (Ch)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Hh Judge Hazel Marshall QC
(sitting as a Deputy Judge of the Division)
Case No: HC07C02537
Mr Stephen Jourdan (instructed by Mills & Reeve) for the Claimant
Mr John McGhee QC and Mr Timothy Harry (instructed by Birketts LLP) for the Defendant
Hearing dates: 3 rd, 4 th 5 th, 6 th and 28 h November 2008
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
(signed) Hazel Marshall QC
Her Honour Judge Hazel Marshall QC:
This is a case about adverse possession. It concerns an area of about 6 acres of arable farm land behind properties on the south side of Right Up Lane, Silfield, Wymondham Norfolk. A coloured plan of the land taken from the Registered Title Plan and being Plan 1 to the witness statement of Mr Alan Alston, as used in the case, should be annexed to this judgment for ease of understanding. It shows the disputed land coloured orange, so I will call it “the orange land”.
The Defendant, (“Pauls”) is the registered proprietor of the orange land (and other land) since 1999. However the Claimant (“Alstons”) claims that Pauls holds the land beneficially for Alstons pursuant to s 75 of the Land Registration Act 1925 (as preserved by Schedule. 12 para. 18 of the Land Registration Act 2002), because Pauls' title to this land had in fact been extinguished in March 1989, when Alstons achieved 12 years of adverse possession of it. Pauls deny this claim.
Both parties are agreed that the relevant law is that under the Limitation Act 1939, as continued by the Limitation Act 1980 (see Schedule 1, paras 1 and 8, quoted below) and that the applicable principles are those examined by the House of Lords in J A Pye (Oxford) Ltd v Graham 2003 1 AC 417. They dispute the result of applying those principles.
The land
The orange land is a “U” shaped plot; it would be more or less a rectangle, but for the end of a factory site (“the Mill”) which belongs to Pauls, and which projects southwards into it.
To the west of the Mill site, the northern boundary of the west arm of the orange land follows the rear boundary of the neighbouring property on Right Up Lane, except for a right angled triangle (“the green triangle”), which is cut off the corner created by the western boundary of the Mill site and the southern boundary of the adjacent property. There is a water tank on the green triangle and it is not claimed by Alstons.
On the east of the Mill site on Right Up Lane are four cottages which were all owned together with the Mill at the relevant time. Right Up Lane runs from NW to SE along this stretch, and the rear boundaries of the cottage gardens therefore run from a point on the eastern Mill boundary towards the SW, parallel with the Lane. The right angled triangle behind the cottage gardens, which is formed by drawing a line from the east end of the furthest cottage garden towards the west to meet the Mill site boundary at a right angle is not claimed as part of the orange land, and has been known as the “blue triangle”.
The eastern boundary of the orange land is a hedgerow running broadly south from the east end of the furthest cottage garden boundary.
There are no boundary features marking either the position or the ends of the southern and western boundaries of the orange land; that land is simply part of a larger field of about 56 acres. During the relevant periods it has been farmed as part of that field, indistinguishably from the rest.
The facts
There is remarkably little dispute of fact between the parties, although I have heard evidence from eight witnesses with one agreed statement. There are in fact only two material points of dispute. I will deal with these, therefore, where they arise. It is convenient to set out the facts in a time frame.
– 1973
In 1966, land comprising the orange land, the two triangles, the Mill site and the four cottages and their gardens (ie a large “reverse L” shape on Right Up Lane) was sold by Case & Seward Ltd to an associated company which then changed its name to Barkers & Lee (Norfolk) Ltd. I will refer to this company as “Barkers”; there may have been another change of name subsequently but it is not material. Case & Seward retained the freehold of the land to the west and south of the orange land.
At that time Alstons farmed land much further to the south, known as Park Farm. J Alston & Sons Ltd is a farming company formed many years previously, and Park Farm was then being farmed by Mr Alan Alston, one of the “Sons” of the company name. For the purpose of these proceedings, Mr Alston has been treated as being the personification of Alstons.
To the north of Park Farm, between it and the Case & Seward land, was Colls Farm, which belonged to a Mr Wilkins. Part of that farm was freehold, but about 31 acres of land was held on a tenancy agreement from Case & Seward Ltd. The land the subject of this tenancy surrounded and abutted the orange land on the west, south and east. However, Mr Wilkins also farmed the orange land itself by arrangement with (by then) Barkers. The arrangement was that he farmed it rent free on the basis that Barkers could take it back, at any time, with no compensation, if they wanted to. Barkers envisaged that they might want the land for possible extension of their factory. This arrangement was therefore made so as to avoid creating an agricultural tenancy with the protections of the Agricultural Holdings Act 1948.
–1977
On 22 nd March 1974, Alston purchased Colls Farm from Mr Wilkins. The purchase had been negotiated by a Mr Philip Hall, a local land agent who, according to Mr Alston, had something approaching a monopoly on such work in the area. Mr Alston was asked if Alstons were interested in purchasing. Mr Hall then worked out what the purchase price for the freehold land should be, and trustees for the Alston family were willing to pay it. Mr Alston personally took a new tenancy of the 31 acres of Case & Seward land (the “Alston-tenanted land”) stated to be from 11 th October 2003 (the local equivalent of the 29 th September quarter day).
The arrangement regarding the orange land – in fact a little more extensive at that time—was expressly offered to continue, and this was eventually formalised by a letter acknowledgement dated 8 th March 1974, in which Mr Alston wrote to Barkers:
“I acknowledge that I am a mere licensee, paying no rent, of the land at Right Up Lane, Silfield, Wymondham (as approximately defined in Green outline on the attached map) and that I must give up possession of all or any part of the land to Barkers & Lee Smith (Norfolk) Limited without notice whenever required so to do by them.”
Not long after this, Barkers exercised their right to move the southern fence of the land further south by 40 feet, because they were planning to erect a new warehouse. Alstons of course accepted this, and continued to farm the remainder.
Mr Alston has produced his cropping records from 1974 onwards, most of which remain today. From 1974 until 1994, they show rotation of various crops on the field, mainly barley, grass and lucerne in the early ears and barley and sugar beet from the mid 1980s. These crops were planted all across the whole of the 56 (or so) acres of which the orange land was part, without distinction. The processes carried out in cultivating these crops were described in his evidence.
In the course of evidence, it became apparent (and I so find) that Alstons did not initially cultivate right up to the claimed northern boundary of the orange land on the eastern arm of the “U” shape. The occupiers of the cottages, who were workers at the Mill, had, from the early 1970s been given permission to use land outside their rear boundaries for growing vegetables and keeping chickens, when other land they had previously used was taken over for Mill purposes. Those occupiers nearer to the Mill itself were apparently more enthusiastic about this than those towards the east, and the southern extremities of their respective “new allotments” were on a line running SW-NE, from a point beside the north corner of what was known as the “Vitmin Plant” building inside the Mill up to the far eastern corner of the furthest cottage garden boundary. However, they gradually gave up this cultivation over the years until about 1980. As they did so, Alstons took their own cultivation line further north up the side of the Mill site, until it eventually reached the position of the boundary of the blue triangle land referred to above, and indeed, in later years, went still further. However, that is moving ahead.
Initially, also, the green triangle was farmed by Alstons along with the orange land. At some time a water tank was installed in the green triangle land, and Alstons thereafter cultivated only up to the hypotenuse of the green triangle. It is not clear to me when this was done. Mr Alston put it in the late 70s or early 80s, but none of Pauls' witnesses, mentioned it, even though the Mill manager, Mr Thomson was there from 1977 onwards, and gave evidenced focussed on the uses which had been made of land outside the Mill site boundary. I am inclined, on balance, to think that the water tank was placed on the green triangle during Barkers' ownership.
On 25 th March 1977, Barkers conveyed the Mill and the land which went with it, including the orange land and the triangles, to Pauls and Whites Foods Limited, for £97,477. Both companies, at the time, had a common parent company, but this was a perfectly genuine change of ownership. There have subsequently been both...
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