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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pilford & Anor v Greenmanor Ltd  EWCA Civ 756 (15 May 2012)
Cite as:  EWCA Civ 756
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ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE HOLLIS)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE AIKENS
| Mr Laurence Pilford
Mrs Doreen Pilford
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No : 020 7831 8838
Official Shorthand Writers to the Court )
Mr Thomas Worthen (instructed by Green Wright Chalton Annis) appeared on behalf of the Respondents.
Crown Copyright ©
Lord Justice Etherton:
"4. What the claimants did went further than the exercising of an easement. In this case the erection of the fence, the blocking off of the other entrance through the alleyway, the erection of the step (on the land and adjoining the garage) and its use over a long period, the storage of materials and the subsequent alterations that the claimants carried out, without challenge for five years, goes much further. I find that they have established that since 1982, until they were challenged in October 2007, they were exercising control over the land and had an intention to do so, on their own behalf and for their own benefit. It is a matter of degree, and it is my finding on the evidence that there was a sufficient degree of exclusive physical custody and control, combined with an intention to do so, to have gained adverse possession and I declare accordingly."
"2. However, having reached this conclusion, it is not my view that the claimants, having exercised their right of way and right to park up to the fence of the compound land up to 2002 have thereafter been committing any actionable wrong in driving onto the land that they had by then acquired by adverse possession and thence into their own property. If I am wrong in this view there is no evidence that this is causing any danger to the defendant. They were aware of none for the first five years the drive was in use and there is no evidence that they have suffered as a consequence since. The amount of traffic involved, bearing in mind the nature of the property, is necessarily very limited. Indeed it could be argued that the defendant's position is better in that the claimants' vehicles tend to now pass over, rather than remain parked on, the defendant's land. I dismiss the counterclaims both in respect of trespass and the application for an injunction and in respect of the removal of the gates and reinstatement of the wall."
"...there are two elements necessary for legal possession (1) a sufficient degree of physical custody and control ('factual possession); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ('intention to possess')"
"I do not regard the soundness of this ground of appeal as quite so apparently solid as that raised by grounds 2 and 3. I have however, albeit with a degree of hesitation, come to the conclusion that the points that the applicant wishes to make in support of ground 1 are sufficient to cross the low threshold for the giving of permission to appeal and that ground 1 is sufficiently arguable to justify the permission that is sought. I therefore give permission to appeal on all three grounds."
"I find that none of this was done in such a way as to hide what was happening from the owners of the land…. The position could be seen by anyone who cared to get into that area and look..."
Dismissal of the counterclaim
"9-03. …Applying the general principle that every easement is a restriction of the rights of property of a party over whose land it is exercised, the real question appears to be, on the peculiar facts of each case, whether proof had been given of a right coextensive with that amount of inconvenience sought to be imposed by the right claimed."
"9-48 It would seem, also, that user of an authorised kind, for example with vehicles, may be had, at least if that particular kind of user is expressly authorised, to any increased extent which the physical state of the locus in quo will for the time being allow."
Lord Justice Aikens:
Lord Justice Maurice Kay:
Order: Appeal allowed in respect of counterclaim only