R (Smith) v The Land Registry
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE PELLING QC |
| Judgment Date | 13 February 2009 |
| Neutral Citation | [2009] EWHC 328 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7830/2007 |
| Date | 13 February 2009 |
[2009] EWHC 328 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Pelling Qc
(Sitting as a Judge of the High Court)
CO/7830/2007
Mr D Watkinson (instructed by Community Law Partnership) appeared on behalf of the Claimant
Mr J Strachan (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Mr R Ground (instructed by Sharpe Pritchard) appeared on behalf of the Interested Party
1. This is an application for judicial review of a decision by the Assistant Land Registrar contained in a letter dated the 25th July 2007, by which the claimant's application for first registration of title to some land to the north of Iram Drive, Willingham was cancelled. The claimant had claimed title by adverse possession on the basis that his caravan and associated structures had been on the land in question for an excess of twelve years before the application was made. The application had been opposed by the interested party, Cambridgeshire County Council, by a letter to the land registry dated 15th June 2007, on the basis that the land the subject of the application formed part of a highway, it being recorded as such on the definitive map as being a public highway open to all traffic.
2. In the decision Letter of 25 th July 2007 to the Claimant's solicitors the Assistant Land Registrar said:
“… it is clear from the information provided by Cambridgeshire County Council that the land claimed by your client is public highway and regardless of your comments, the Court of Appeal decision in Bromley v Morritt remains good authority for the proposition that title cannot be acquired to highway by adverse possession. I accept however that this issue was not dealt with in any depth by the court nor was reference made to any supporting authority. Of course, even if there could be effective adverse possession of highway, registering title to the land would not stop it from being a highway.”
However, the Assistant Land Registrar also considered the factual position. In relation to that, she said:
“Whilst it would appear that your client has made use of the byway for a number of years, this does not amount to an intention to possess. Given that the land is openly accessible, it is difficult to see what acts of possession have been carried out on the land that would constitute either a sufficient degree of exclusive physical control over the land claimed, or the necessary intention to possess the same to the exclusion of all others, that would justify a claim for adverse possession.
“Therefore, having considered the evidence, and regardless of the issues relating to adverse possession of highways, it will not be possible to grant any class of title as I am of the opinion that your client is not in adverse possession of the land as claimed.”
3. Thus, there were two bases on which the application to register was cancelled —first because, in the opinion of the Assistant Land Registrar, as a matter of law, adverse title could not be claimed over a highway and secondly because, again in the opinion of the Assistant Land Registrar, the evidence was not sufficient to establish adverse possession. In these proceedings, the claimant challenges the first but not the second of these conclusions. It is this which has led both the defendant and the interested party to contend that the claimant's challenge raises an academic point which, it is submitted, should of itself lead either to the dismissal of the claim or, at any rate, to the refusal of a remedy. I return to this issue at the end of this judgment.
4. It is common ground that the land over which the claimant claims adverse possession was and is a public highway. It is shown to be a highway on the definitive map which is conclusive evidence on the issue by operation of section 56 of the Wildlife and Countryside Act 1981. In 1987, it was classified as a Byway Open To All Traffic and as such was from at least that date a highway maintainable at public expense. By operation of section 263 of the Highways Act 1980, highways maintainable at public expense, “together with the materials and scrapings of it” vest in the highway authority. The effect of a provision to similar effect in a predecessor statute was considered by the Court of Appeal in Tithe Redemption Commission v Runcorn UDC [1954] 2 WLR 518. It was common ground before me that the effect of S.263 is the same as the earlier statute there being considered and is as stated by Denning LJ as he then was, that is:
“The statute … vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate in fee simple determinable in the event of it ceasing to be a public highway.”
Although it was submitted on behalf of the claimant that the use of the phrase, “ceasing to be a highway” left room for the possibility that a highway could cease to be a highway as a result of adverse possession being acquired, I reject that proposition. The judgment is entirely silent as to the circumstances in which a highway could cease to be a highway, which was an issue that simply did not arise in that case.
5 It is common ground that what a party claiming title by adverse possession has to prove was authoritatively stated by Lord Browne Wilkinson in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. At paragraph 41 he approved a statement of Slade J in Powell v McFarlane [1977] 38 P & CR 452 to the following effect:
“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, through there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstances but broadly, I think, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else had done so.”
6 As was accepted by the claimant, when a highway exists the public has a right to use the whole of the width of the highway and not just that part of it currently used to pass or re pass —see Turner v Ringwood Highway Board [1870] LR 9 Eq 418 to 422. It was also common ground before me that:
a. Mere disuse of the highway for any length of time cannot deprive the public of their right over it; and
b. It is not open to a local authority to licence an obstruction of the highway otherwise than in accordance with specific statutory powers and thus the local authority could not authorise an encroachment onto a the highway
– see Harvey v Truro District Council [1903] 2 Ch 638 per Joyce J at 644. That case was concerned with a strip of land that it was conceded formed part of the highway. In 1886, or 1887, a wooden building was constructed, partly on the strip and partly on what was formally part of the metal surface of the highway. Joyce J concluded that this was an encroachment and said in relation to it:
“The possession of a squatter on the highway since 1886 cannot bar the public right.”
In other words, Joyce J held that adverse possession could not be asserted if (as is alleged here) the effect would be to exclude the public from part of a highway, and that was so even if the part concerned had not been used, as such, for a number of years.
7. By section 137 of the Highways Act 1980, it is a criminal offence for any person without lawful authority to wilfully obstruct a highway. Since as a matter of law the public have the right to use the whole width of a public highway, it is not surprising that in relation to the statutory offence of obstructing a highway, it has been held that obstruction means anything which substantially prevents the public from having access over the whole of the highway, which is not purely temporary —see Seekings v Clark [1961] 59 LGR 268 and Hurst and Agu v Chief Constable of West Yorkshire (1987) 88 Cr. App. R. 143.
8. Given these well established highway law principles, and given the test for possession in relation to an adverse possession claim set out in Pye, it is difficult to see any circumstances in which adverse possession to part of a highway could be established other than by acts that would constitute obstruction under what is now section 137 of the Highways Act 1980. In those circumstances, it is submitted by the defendant and interested party that what they alleged to be the public policy principle which prevents a party acquiring a legal right by illegal activity, is engaged. In addition, they submit, that the issue of whether adverse possession over a highway could ever be claimed was decided against the position adopted by the claimant in these proceedings both by Joyce J's judgment in Harvey, the relevant part of which is set out above, and also by the later Court of Appeal decision in London Borough of Bromley v Morritt [1999] 21st June, unreported. Morritt was concerned with proceedings brought in the County Court for trespass and nuisance caused by the construction of a fence and wall...
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