Topplan Estates Ltd v Townley
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jonathan Parker,Lord Justice Hooper,Lord Justice Pill |
| Judgment Date | 27 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1369 |
| Docket Number | Case No: A3 2003 2477 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 October 2004 |
[2004] EWCA Civ 1369
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
on appeal from the High Court of Justice
Manchester District Registry
(The Hon Mr Justice Lloyd,
Vice-Chancellor of the County Palatine of Lancaster)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Jonathan Parker and
Lord Justice Hooper
Case No: A3 2003 2477
Jonathan Gaunt QC and Stephen Jourdan (instructed by Messrs Bude Nathan Iwanier) for the Appellant
Paul Morgan QC and Martin Dray (instructed by Messrs Oglethorpe Sturton & Gillibrand) for the Respondent
INTRODUCTION
This is an appeal by Topplan Estates Ltd, the claimant in the action, against an order made on 23 October 2003 by Lloyd J as Vice-Chancellor of the County Palatine of Lancaster, in the Manchester District Registry.
In the action, which was commenced on 17 September 1996, the appellant claims against Mr David Townley possession of some 13 acres of freehold land at Scotforth, Lancashire, registered at H. M. Land Registry under title number LA693538, of which the appellant is the registered proprietor ("the disputed land") . Mr Townley is the respondent to the appeal. He claims to have been in adverse possession of the disputed land for a continuous period of 12 years prior to the commencement of the action. He counterclaims a declaration that he is the owner of the disputed land, and an order that the Register be rectified by excluding the disputed land from the appellant's title.
The judge upheld the respondent's adverse possession claim, save only in respect of a narrow strip of land identified in the order.
The judge granted both parties permission to appeal. In the event the appellant has appealed, but there is no cross-appeal by the respondent.
THE FACTUAL BACKGROUND
The disputed land consists of some 13 acres of agricultural land lying to the south-west of Scotforth, between the A6 (to the east) and a railway line (to the west) . It is broadly rectangular in shape, its eastern and western boundaries being the longer sides of the rectangle. Its southern boundary is somewhat shorter than its northern boundary, with the result that the shape of the disputed land tapers slightly towards the south. The southern part of the disputed land consists of a field of 8 acres or thereabouts, referred to as OS9162. OS9162 is enclosed by boundary hedges, the hedge along its southern boundary forming the southern boundary of the disputed land. On the easterly boundary of OS9162 (which is also the easterly boundary of the disputed land) there is a gate which leads onto the A6, and which has been referred to as Gate A.
The land immediately to the south of the disputed land is owned by Lancaster City Corporation ("the City") .
Lying immediately to the north of OS9162 is a field of more or less the same size, referred to as OS0092. OS0092 is also enclosed by boundary hedges. There is a gate in the hedge which separates OS9162 from OS0092. There is also a gate in the eastern boundary of OS0092 which leads onto the A6 and which has been referred to as Gate E. Only the southerly part of OS0092 (comprising some 5 acres, and including Gate E) forms part of the disputed land. The reason for this has nothing to do with any physical boundary crossing OS0092 at this point (for there is none), but merely reflects the extent of the appellant's registered title and hence the extent of the land in respect of which an adverse possession claim is made in this action. The land lying immediately to the north of the disputed land (including the northerly part of OS0092) is also owned by the City.
The acts of possession on which the respondent relies in support of his adverse possession claim to the disputed land were not limited to the disputed land but extended to the entirety of OS0092 and to the field lying immediately to the north of OS0092 (which is also owned by the City) . However, no issue arises in this action as to any land owned by the City.
To the west of the disputed land, on the other side of the railway line, lies a farm called Whinney Carr Farm. Access to the disputed land from Whinney Carr Farm may be had either via the A6, through Gate A or Gate E; or via a bridge over the railway line to the north of the disputed land known as Lawson's Bridge.
Whinney Carr Farm, which comprises some 147 acres, has been farmed by the respondent or members of his family since 1964. The respondent's father, Reginald Townley, initially occupied Whinney Carr Farm as tenant under an agricultural tenancy granted by the City. At that time the City was the registered proprietor not only of the land adjoining the disputed land to the north and to the south, but also of the disputed land itself. The City was, however, unwilling to include in the tenancy any part of the disputed land or the land to the north, since it had earmarked that land for future development. It was only willing to grant Mr Townley a grazing licence over it.
On 2 February 1972 the City served notice on Reginald Townley terminating his grazing licence as at 31 May 1972. Later in 1972 the City transferred the disputed land to J. E. Lesser (Properties) Ltd ("Lesser") . In the Transfer, Lesser covenanted to obtain planning permission for, and to build, a hotel on the disputed land. Following a dispute with the respondent's father, Lesser allowed another farmer to graze the disputed land. However, Lesser later relented, and on 1 May 1975, for a consideration of £400, it granted Reginald Townley a grazing licence over the disputed land, expiring on 25 December 1975. The licence agreement allowed Reginald Townley, described as 'the Licensee', 'to graze with cattle and mow' the disputed land. It also contained covenants by Reginald Townley to keep in repair all fences, walls, gates and ditches; to keep the disputed land in a neat and tidy condition; and to use it for the purpose of grazing and mowing only.
In 1977 Reginald Townley formed a partnership with his two sons, Philip and the respondent. On 14 September 1978 the partnership bought Whinney Carr Farm. The purchase did not include the disputed land, which continued to be occupied by the Townley family under a series of grazing licences granted by Lesser. In 1979 the annual licence payment was increased from £400 to £600. In early 1981 the respondent was sent a form of licence agreement for that year. He did not complete the agreement, but he did pay the £600. The same happened in 1982. On 29 April 1982 Reginald Townley died.
Since the death of Reginald Townley, no further licence agreements have been entered into and no further licence payments have been made. The respondent's evidence (which the judge accepted) was as follows:
"In 1983, I wrote to Lesser asking for an agreement …. I received no reply. As Lesser no longer seemed interested in the land, I decided not to bother paying that year, although I knew quite well that the owner would be able to remove me at any time, as I had no form of agreement. However, in the next couple of years, thinking that Lesser might give a licence or a tenancy and require payment, I did make provision for some rent of the land. I heard nothing from them. The owner (whoever he was) never reappeared until 1996 …. I merely carried on as if I owned the land, treating it as part of my farm, for the following years."
From 1982 onwards, the respondent continued to use the disputed land in the same way as it had previously been used by himself and his family. In relation the period from 1982 onwards, the judge said this (in paragraphs 19 to 21 of his judgment):
"19. He would take two or three crops of grass for silage off the fields in summer. After the last crop he would put cattle out on it to pasture, and from November or thereabouts to April, while the cattle had to be kept indoors and were producing a lot of slurry, he would spread slurry on the fields. The slurry had a fertilising effect, but he would also apply manure and other fertiliser to the fields. Normally, he was able to take two or three crops off field 0092, including the part owned by the City, and two at least, and sometimes three, off 9162. When he had use of field 0004 and 8946 [lying to the North and to the South, respectively, of the disputed land], he used them only for grazing but he did apply some fertiliser to them.
20. He was the only person to make any use of the land in these ways or any other way, subject to the question of the road-widening works [to which further reference is made below]. Other persons were indeed physically excluded throughout the period. The thirteen acres were surrounded by physical boundaries on all sides except for the north, where the legal boundary runs through 0092. That field itself has a physical boundary, as do fields 0004 to the north, and 8694 to the south.
21. On the west there is no way into the thirteen acres except via land to the north or the south and through the boundary fence. To the north and south there are gates in the fences but these were closed and secured except for part of the time when all the land was in common use. To the east there are gates at the points that I have mentioned, denoted as A and E, but the Defendant says that these are padlocked and that he was the only person who had and has the keys to the padlocks. He said he renewed the padlocks as necessary, as he has also maintained and from time to time renewed the fences, hedges and gates. No-one, even of the Claimant's witnesses, has gained access to the land, apart of course from the Defendant and...
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