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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chapman & Anor v Godinn Properties Ltd & Ors [2005] EWCA Civ 941 (27 June 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/941.html Cite as: [2005] EWCA Civ 941 |
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IN THE COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM GUILDFORD COUNTY COURT
(HIS HONOUR JUDGE REID QC)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE CARNWATH
____________________
(1) MARK CHAPMAN | ||
(2) FIONA RIVERS CHAPMAN | Claimants/Respondents | |
-v- | ||
(1) GODINN PROPERTIES LIMITED | First Defendant/Appellant | |
(2) DAVID ROBERT STIRLING | ||
(3) JACKIE STIRLING | Second and Third Defendants |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR MARTIN STRUTT (instructed by Messrs Lyons Davidson, Bristol BS1 6AD) appeared on behalf of the Respondents
____________________
Crown Copyright ©
"Mr Frost made a statutory declaration in order to support his claim for possessory title to the disputed strip. He described the drive and verges as having 'been enclosed throughout their entire length by substantial fencing on each side' and asserted that he had 'regarded the whole length of the driveway and verges within the fencing as being part of the property' and that 'it has been so repaired and maintained by me.' He accepted that 'certain adjoining owners have rights of way over parts of the access drive and do in fact exercise these rights.' He went on to say that he was unaware of 'any person claiming ownership of the access drive and verges.' There was a statutory declaration in similar terms from Mr Featherstone, his farm manager.
...
In my judgment the statutory declarations were seriously misleading. The verges had not been enclosed with 'substantial fencing on each side'. If the reference to repairing and maintaining 'it' was a reference to the driveway itself, it was entirely irrelevant to the issue of ownership of the verges. If the intention was to suggest that Mr Frost had repaired and maintained the verges, it was not true. The assertion that he was not aware of 'any person claiming ownership to the access drive and verges nor any part or parts of them and in particular those sections of the grass verges which are shown coloured blue on the annexed plan' sits very oddly with the existence of the walls flanking the entrance to Hillyfields which clearly stand on the areas coloured blue."
"The area in dispute lies on the right of the driveway up to Shamley Wood House. The driveway, which (as can be seen from a reference in the charges register of the First Defendant's registered title) existed as a cartway at least as long ago as 1925, is on the left of Woodhill Lane as one leaves Shamley Green going towards Farley Green. The driveway is on an upwards slope away from the road and the house on Hillyfields lies rather below the level of the driveway. The main entrance to Hillyfields is now through an access set between splayed walls which are constructed across the disputed strip almost up to the edge of the metalled driveway. This access way has been achieved by cutting through a bank some of which forms part of the land in dispute. There is a subsidiary entrance to the stable block erected on part of Hillyfields further up the Shamley Wood House Drive. The plot comprising Hillyfields is roughly triangular in shape, two sides of the triangle being formed by the driveway and Woodhill Lane. Apart from the splay where the driveway meets Woodhill Lane the width of the current metalled surface of the driveway is a uniform 9 feet. The Claimants also own a steep field beyond the triangular plot. It is common ground that Hillyfields has the benefit of a right of way over the driveway both for the triangular plot and for a separate access to the steep field from further up the driveway beyond where there is now a remotely controlled gate to Shamley Wood House."
"... in general terms a reliable witness though inclined to over-egg the pudding when describing what he had done on the disputed land: for example, letting natural plants grow with the occasional bit of trimming can hardly properly be described as 'nurturing'."
And, when reaching his conclusion, the judge said this at paragraph 43:
"... I do not rely on the oral evidence of Mr Chapman which could be regarded as self-serving but on the circumstances as events unfolded."
"In this case the land in question comprised verges and steep banks. There were no acts of possession by or on behalf of the First Defendant or its predecessors in title after Mrs Johnston [the Chapmans' predecessor in title] acquired Hillyfields. The issue is whether what was done by the Claimants and their predecessors was sufficient to amount to possession. The most obvious act of possession done on the disputed land by the Claimants and their predecessor in title was the building of the two walls which flank the gates to Hillyfields. With that went the maintenance of the two entrances: clearly the house entrance and, to a lesser extent, the stable entrance have been made up. The surface of the entrances is not simply a worn down verge. Beyond that the verges and banks have been cut repeatedly, if not regularly. There has been some planting and some 'nurturing' of the plants on the banks. The fallen leaves have been swept each autumn. In my judgment this is all the user to which land of this sort could realistically be put. In my judgment this, in the circumstances of this particular case, amounts to possession of the disputed land de facto."
"As to animus possidendi, it was submitted on behalf of the Defendants that in order to make the intention to possess clear and plain to the world at large it is invariably necessary to fence off the land in question from the legal owner and the world at large. The verge has never been fenced off from the road. And it was significant that in 1987 the Land Registry's surveyor was able to state unequivocally that the land over which the Claimants claim adverse possession 'comprised the mown grass verge of the driveway'. Thus there was no suggestion then that it had at that date been incorporated into Hillyfields or that the Claimants were making it clear to anybody that they intended to exclude all others from the verge. It was submitted that nothing has changed since that date and therefore the claim to adverse possession was hopeless."
The judge rejected that submission. At paragraph 43 he said this:
"The acts of the Claimants were done animo possidendi. In reaching this conclusion I do not rely on the oral evidence of Mr Chapman which could be regarded as self-serving but on the circumstances as events unfolded. The walls were at all times there clearly to be seen and to the owners of Shamley Wood House the maintenance of the entrances, the banks and the verges should have been obvious. ... The actions of the claimants and their predecessor, Mrs Johnston, in their context made their intentions unambiguously clear to the world at large."
Accordingly the judge found that the claimants had established the two elements requisite for a possessory title to the disputed strip and indicated that he would so declare.
"I considered whether, in the light of the misleading statutory declaration by which registration of the title SY563632 was obtained I should direct that the register should be further rectified in relation to the land the other side of the driveway, but on balance it seems to me that the better course is not to make any order in relation to that land. No one has come forward to make any claim adverse to the First Defendant in respect of that land, and in the circumstances it seems to me the better course is to leave that part of the title undisturbed by these proceedings."
"It was arguable that, for the reasons set out in the applicant's skeleton argument, the judge erred in his application of the relevant legal principles to the facts which he had found when concluding that the claimants had established title by adverse possession to the disputed strip."
There was no challenge in the appellant's notice to paragraph 2 of the judge's order - that is the paragraph which directed that the disputed strip be removed from its title, SY563632 - and it is plain that Jonathan Parker LJ did not regard that as a matter which was before him.
"(a) The Strip comprises verges and steep banks.
(b) The most obvious act of possession on the Strip was the building by the [Claimant's] predecessor, Mrs Johnson, of the walls which flank the main entrance to 'Hillyfields'.
(c) The 2 entrances to 'Hillyfields' which cross the Strip have been maintained.
(d) Those entrances are 'made up'.
(e) The verges and banks have been cut repeatedly, not regularly.
(f) There has been some planting and some 'nurturing' of plants on the banks.
(g) Fallen leaves have been swept up each autumn."
To that list could be added the facts that, as the judge found, the grass, such as it is, had been mown from time to time; and, perhaps more importantly, that the secondary entrance giving access to the stable block was in fact constructed by the Chapmans, and the hardcore and access way made up by them.
"If the defendant had stopped short of placing a new lock and chain on the gate, I might perhaps have felt able to accept these submissions."
The submissions made on that appeal were that the defendant was, in effect, doing nothing which would have indicated to the world an intention to exclude land for which the paper owner, the County Council, had no current use. On the facts of that case, it might well have been that, but for the placing of a new lock and chain on the gate, the decision would have gone the other way. But Slade LJ did not say that that would have been the result. As often happens on an appeal, where this court identifies a determinative fact, the court will decide the point before it on the basis of that fact; without deciding what it would have done if the fact had not been established. The court's decision is no guide as to what would have happened if the court had been deciding the appeal on different facts which did not include that determinative fact.
"The walls were at all times there clearly to be seen and to the owners of Shamley Wood House the maintenance of the entrances, the banks and verges should have been obvious."
In my judgment, that was a conclusion which the judge was entitled to reach. For those reasons, I would dismiss this appeal.
ORDER: Appeal dismissed with costs assessed summarily in the overall figure of £6,750, to include VAT.