Tower Hamlets London Borough Council v Barrett
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lord Justice Wall,Lord Justice Thorpe |
| Judgment Date | 19 July 2005 |
| Neutral Citation | [2005] EWCA Civ 923,[2005] EWCA Civ 1073 |
| Docket Number | Case No: B2/2004/2658 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 2005 |
[2005] EWCA Civ 923
Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Neuberger
Case No: B2/2004/2658
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
His Honour Judge Bradbury
BO351072
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Harris and Ms Genevieve Screeche-Powell (instructed by Tower Hamlets Legal Department) for the Respondent
Mr John McDonnell QC and Mr Timothy Sisley (instructed by Messrs Golkorn Mathias Gentle) for the Appellant
This is an appeal from a decision given on 25 November 2004 by His Honour Judge Bradbury sitting in the Bow County Court. He ordered the defendants, Alfred and Valerie Barrett, to give up possession to the London Borough of Tower Hamlets ("the Council"), of a piece of open land ("the area") at Palm Street London E 15.
The factual background
The area is registered at Her Majesty's Land Registry with Title Number 409135. It is about 27 metres long (north to south) and 6 metres wide ( east to west). It is located immediately to the west of the Palm Tree Public House ("the Palm Tree"). The Palm Tree's postal address is 24 to 26 Palm Street and it is registered at the Land Registry with Title Number 416904. The Council is the statutory successor of the registered proprietor of the area at the Land Registry. The principal defence which was raised below by the Barretts to the claim was that they had acquired title to the area by adverse possession.
The relevant background, as agreed between the parties or decided by the Judge, is as follows. With the exception of the Palm Tree, all the buildings on, and in the immediate vicinity of, the area were demolished over a period starting in about 1960, first by the Greater London Council ("the GLC"), and more recently by the Council, in connection with the creation and expansion of Mile End Park, which in part abuts the Grand Union Canal ("the canal").
Until the demolition of all the surrounding buildings, the Palm Tree was on the corner of Lessada Street (to its east) and Palm Street (to its south). Immediately to its west is the area, on which there used to be a house whose postal address was 28 Palm Street. The western boundary of the area adjoins further open land which fronted on to Palm Street, and on which there used to be houses whose postal addresses were 30 to 34 Palm Street. The canal, or more precisely its eastern towing path, runs immediately to the west of what used to be 34 Palm Street.
The building on the area shared a party wall with the Palm Tree, and, when it was demolished in the 1970s, substantial wooden props were erected by the GLC on the area. These props were apparently erected partly to support the western flank wall of the Palm Tree, and partly to provide protection from its brickwork, which overhung the area and was attributable to the shared chimney of the two buildings. The GLC also enclosed the area with corrugated metal fencing, apparently to protect the props from vandalism. At that time, the GLC was the registered proprietor of the freehold of the area, and Truman's Brewery Ltd ("Trumans") were the registered proprietors of the freehold of the Palm Tree.
The relevant history of the paper title to the Palm Tree is as follows. On 22 June 1977, Trumans let the Palm Tree (initially to Mr Barrett, but shortly thereafter) to Mr and Mrs Barrett, on an annual tenancy. Since then, the Barretts have occupied the Palm Tree and run it as a public house. Trumans subsequently granted an overriding 99-year lease of the Palm Tree to Brent Walker Ltd ("Brent Walker") on 30 April 1990. This lease was registered at the Land Registry with Title Number EGL 276522. Thereafter, on 18 March 1992, apparently as part of an internal group reorganisation, Trumans executed a transfer of the freehold of the Palm Tree to Pubmaster Ltd ("Pubmaster"), although the transfer was never registered at the Land Registry.
By an agreement ("the 1993 agreement") between Pubmaster, Brent Walker and the Barretts dated 21 July 1993, Pubmaster agreed to sell the freehold of the Palm Tree, and Brent Walker agreed to sell its long lease of the Palm Tree, to the Barretts for a total consideration of £95,000. The 1993 agreement identified "the property" the subject of the agreed sale as "The Palm Tree Public House 24 Palm Street Bow London". By clause 12, it was provided that the property was sold "subject to the existing tenancy in favour of the purchaser". The 1993 agreement was completed, and the Barretts became registered as the proprietors of the Palm Tree on 8 December 1993. Since that date, the Barretts have been the freeholders of the Palm Tree in possession.
Since 1978 the freehold of the area together with the land adjoining it to its west (i.e. what were 28 Palm Street– now the area – and 30, 32, and 34 Palm Street) has been registered at the Land Registry in the name of the GLC. However, as a result of two successive statutory transfers, it became vested first in the London Residuary Body and then, in 1986, in the Council, in whom it remains vested, subject to the Barretts' adverse possession claim in relation to the area.
As I have mentioned, at about the same time as the supporting props were erected, the area was enclosed by the GLC with corrugated metal fencing on the three sides which did not adjoin the Palm Tree. The Barretts' evidence, in summary terms, was that shortly after they became tenants of the Palm Tree in 1977, being under the impression that the area was included in the letting of the Palm Tree, they removed a panel of the metal fencing and replaced it with a lockable gate to which they kept the only keys, and that they used the area for storage of chattels (mostly of unwanted goods), and that this situation continued until 1989 or 1990.
This evidence was accepted by the Judge. He described the storage as being of items used in connection with the public house business, such as beer kegs and crates, which he referred to as "fairly durable though perhaps useless objects". He also mentioned that, for part of this period, the Barretts also permitted a scrap dealer to store items on the area. Although the Judge accepted the Barretts' evidence as to fencing generally, he found that part of it was vandalised or blown down on one or two occasions.
Meanwhile, in 1980, discussions started between Trumans (who were of course the freeholders of the Palm Tree) and the GLC about the use of land to the west of the Palm Tree in conjunction with the public house business carried on at the Palm Tree. The only evidence before the Judge relating to these negotiations was in written form. Internal GLC documents suggest that in 1980 and 1981 Trumans were proposing to improve the appearance and character of the Palm Tree, "in return for the GLC giving alternative access and car parking and making canal-side land available for use as a beer garden". A letter from the GLC to Trumans on 12 May 1981 indicated that the "canal elevation" of the public house would be improved and that a building agreement in respect of certain land was contemplated, but it is not entirely clear what that land was, as the plan referred to therein is missing.
An internal GLC memorandum of 1 November 1984 recorded that Trumans proposed that more extensive "refreshment facilities", including a café, "be built adjoining the pub on the canal side elevation". This was followed by a letter headed "Subject to Contract" and "Without Prejudice" on 29 March 1985 from the GLC to Trumans. That letter expressed agreement in principle to the sale of "land shown…on the attached plan", upon which Trumans were to provide a "permanent refreshment facility", by the GLC to Trumans for £25,000. Unfortunately, once again, no copy of the plan has survived. Trumans' reply of 30 April 1985, which was similarly headed, stated that the writer was "prepared to recommend these terms to my board", but warned that this was subject to "final costings". The evidence relating to these negotiations stops there.
In or around 1988/9, the Barretts considered carrying out works to the area, which included removing the props and erecting an extension to the public house. In anticipation, they cleared the area of their chattels, and of vegetation. By the end of 1992, they were in discussions with the Council about the possibility of a grant towards the cost of these works, which the Council was prepared to agree at £5,000, which sum was duly paid to Mrs Barrett in April 1993.
Around April or May 1993, the Barretts removed the props and strengthened the flank wall of the Palm Tree, and they obtained planning permission to erect a two-storey extension to the public house on the area in 1994. They started building works on the area the following year. Those works consisted of digging foundations, and laying drainage services underneath and hardcore and concrete on top. They removed the props and strengthened the flank wall of the Palm Tree. They also removed the fence and gate in 1993 to enable access to the area to be obtained by builders.
Some time in 1995, as a result of a representative of the Council pointing out to the Barretts that they were not registered as the proprietors of the area, they stopped the works and re-erected a new metal fence along the three open sides of the area. This fence was constructed along lines which were a few inches inside the perimeter of the area, and it therefore enclosed the great majority, but not quite...
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