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Cite as: [2009] EWHC 328 (Admin)

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Neutral Citation Number: [2009] EWHC 328 (Admin)
Case No. CO/7830/2007

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL
13th February 2009

B e f o r e :

HIS HONOUR JUDGE PELLING QC
(Sitting as a Judge of the High Court)

____________________

Between:
THE QUEEN ON THE APPLICATION OF SMITH
Claimant
v

THE LAND REGISTRY (PETERBOROUGH OFFICE)
Defendant
And

CAMBRIDGE COUNTY COUNCIL
Interested party

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

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 [] (instructed by []) appeared on behalf of the Interested Party

____________________

HTML VERSION OF JUDGMENT
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    HIS HONOUR JUDGE PELLING QC:

  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 25th July 2007 to the Claimant's solicitors the Assistant Land Registrar said:
  3. "... 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."
  4. 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.
  5. 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:
  6. "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.

  7. 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:
  8. "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."
  9. 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:
  10. 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.

  11. 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.
  12. 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 on part of the public highway. The local authority succeeded at first instance in obtaining relevant injunctive relief and there was an appeal. In the course of his judgment dismissing the appeal Mummery LJ said:
  13. "In my judgment, this appeal does fail. On the judge's finding of fact the land enclosed by the fence and wall was part of the public highway. As a matter of law, an adverse possession or squatter's title cannot be acquired to land over which a public right of way exists. The only question is the exercise of discretion to make a mandatory order."
  14. It was submitted on behalf of the claimant that Mummery LJ's conclusion that a possessory title cannot be acquired to land over which a public right of way exists was not binding on me because:
  15. (a) the conclusion was entirely obiter; and

    (b) was arrived at without a consideration of all the relevant authorities.

    The basis of the first of these submissions is an earlier passage in Mummery LJ's judgment, where he said this:

    "Nourse LJ said that, on the question of fact, Mr Morritt had no real prospect of success. The judge, in a careful judgment, had fully considered the evidence over some six pages. It could not be said that the factual conclusions that he arrived at were unsupported by any evidence or were against the weight of the evidence. Secondly, Nourse LJ said that as a question of law the judge had rightly held that title could not be acquired to this land by adverse possession because it was land over which a public right of way existed. It is clear from that passage on page four of the judgment of Nourse LJ that no leave was given to pursue an appeal on those points of law or fact."

    The reference to the judgment of Nourse LJ is to the judgment delivered by him when giving permission to appeal. The issue in the appeal was therefore whether the judge had adequately considered the factors relevant to whether he should exercise his discretion to grant an injunction given his conclusion of fact and conclusion of law, neither of which were appealed. In my judgment, the claimant is technically correct on the obiter point, for as Mummery LJ made clear in the final sentence from the first quotation from his judgment set out above, the only question in issue was the exercise of the discretion to make a mandatory order. I say "technically" because of course obiter in relation to a land law issue from an experienced chancery Court of Appeal judge is likely to have very considerable weight. Whilst it is true to say that again technically it is open to me not to follow the decision of Joyce J, it is clearly established by authority that is binding on me that a judge should only not follow a previous decision of a judge of coordinate jurisdiction if satisfied that the relevant decision is plainly wrong.

  16. Finally, my attention was drawn to a decision of Swinfen Eady J in St Ives Corporation v Wadsworth [1908] Knight's Local Government Reports 306. As Swinfen Eady J said at page 312:
  17. "The question for decision has reference to a small piece of land in the corner between a bridge over the River Ouse and the defendant's house. The plaintiff's allege that the land is part of an ancient highway, and forms part of the highway today. The defendant claims it as his own property not through his father from whom he derives the house, but solely by title gained by possession for 12 years."

    The whole of the judgment of Mr Justice Swinfen Eady is then taken up with the factual inquiry as to whether the land in question was a highway or not. The judge concluded that the land was part of the ancient highway and that the putting up of a fence did not prevent the land from being a highway and accordingly granted an injunction requiring the fence to be removed. Thus, the issue which arises in this case, namely whether as a matter of law, rights can be acquired over a highway by adverse possession was not considered, but it appears to have been accepted or assumed that such rights could not be acquired.

  18. In those circumstances, I consider first the points of principle argued before me before returning to consider whether the assumption made in the St Ives case was properly made and whether Joyce J's statement of principle in Harvey and/or the dictum of Mummery LJ in Morritt should be departed from as the claimant contends they should be.
  19. It is convenient first to consider the illegality point. Section 137 (1) of the 1980 Act makes wilful obstruction of the highway a criminal offence. As I have already indicated I do not see how the possession it is necessary to establish in order to establish adverse possession could occur other than by obstruction in breach of section 137 (1) of the 1980 Act. Against that background, I turn to Bakewell Management Limited v Brandwood [2004] 2 AC 519. This was the only case formally cited to me that was relevant to the public policy issue relied on by the Defendant and Interested party. It was not an adverse possession case. The claimant had acquired a common by purchase and sought a declaration that owners of adjoining properties were not permitted to access those properties over tracks across the common. These proceedings were defended on the basis of an assertion by the neighbouring owners that easements had been acquired by prescription or lost modern grant. It was an offence under section 193 (4) of the Law of Property Act 1925 to use common land for purposes including those of the Defendants without obtaining the consent of the owner. The claimant succeeded at first instance, and in the Court of Appeal, but in the House of Lords it was held that while lost modern grant could not be presumed where an actual grant by the land owner would have been unlawful, that principle did not apply where it would have been lawful for the land owner to make such a grant and where such grant would have removed the criminality of the user.
  20. The claimant relied on this authority in these proceedings for the purpose of submitting that the obstruction point was of no relevance to the issue now under consideration. In my judgment, that is a misunderstanding of the effect of the decision. Illegality was only not an issue in that case because it would not have been unlawful for the land owner to make the grant claimed and thus lost modern grant could be assumed. That is not the case in these proceedings. Aside from the fact that I am not concerned with the acquisition of an easement, as I have explained already, it was not open to the highway authority to licence the obstruction of the highway, other than pursuant specific powers and for specific purposes not relevant here and Section 137 (1) of the 1980 Act is not in any way qualified in the way that section 193 (2) of the 1925 Act is qualified. Thus if it is accepted that the general principle referred to in this case is capable of applying to a claim to possessory title, it is the general principle, rather than the exception to it relied on by the House of Lords for the purpose of deciding the case, that will be relevant to this case.
  21. In his opinion in Bakewell, Lord Scott approved Glamorgan County Council v Carter [1963] 1 WLR 1 in these terms:
  22. "Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947. The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12 (5) (c) of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purposes for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was a context in which Salmon LJ, at page five, made the statement cited by Dillon LJ, namely: "It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land." Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. "

    In my judgment it is the principle stated in the Glamorgan County Council case and approved by Lord Scott in Bakewell (rather than the exception to it by which Bakewell was actually resolved) that applies in a case of this sort. To succeed, the Claimant must establish that he has dealt 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. The Interested Party could not lawfully have used the public highway as the Claimant used it, nor could it have lawfully authorised anyone to use it as the Claimant had used it, for such user would have been illegal obstruction. Thus whilst Bakewell is a case concerned with prescription and lost modern grant, not the acquisition of possessory title, in my judgment it supports by analogy the proposition that it is a legal impossibility for the claimant to claim adverse possession to part of a highway by reference to the illegal obstruction of it for a period of 12 years prior to the making of the claim contrary to the terms of primary legislation which makes such obstruction criminally and not merely tortiously unlawful.

  23. In answer to this the claimant relies on a textbook called Jourdan on Adverse Possession, two cases there relied upon namely Lord Advocate v Lord Lovett [1880] 5 App Cas 273 and Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912 and on two 19th century cases binding on me - Haigh v West [1893] 2 QB 19 and Seddon v Smith [1877] 36 LTR 168 as establishing a contrary principle.
  24. The statement of principle contained in the textbook which is relied on is that set out at paragraph 7-103 which is to the following effect:
  25. "It is suggested that the answer should be that acts which contravene the criminal law may be acts evidencing possession. There can be illegal possession just as much as legal possession. The fact that a squatter may be liable to criminal sanctions for his wrongful possession does not alter the fact that he is in possession."

    Pausing only to note that the relevant textbook was written prior to the decision of the House of Lords in Bakewell, in my judgment, the statement of principle relied upon does not assist in this case because either the author did not obviously have in mind the case of a public highway and/or because the principles discussed in Bakewell were not considered and/or because the cases he relies on are, in my judgment, authorities for a more narrow proposition than the one he formulates. Assuming Lord Lovett's case to be an accurate statement of English as well as Scottish law (an issue I was not addressed on) it was not a public highway case and it was not contended that possession there was of itself illegal, as is the case here; but merely that the possession that had been obtained over the lower reaches of a river was by illegal means because the method by which possession had been by asserted had been by the deployment of fishing equipment and the mesh of the nets used in the fishing equipment were of an illegally narrow dimension. Similarly in Blackburn the squatter obtained access to the property (a flat) by illegal means (breaking in) but the act of squatting thereafter was not itself a criminal act. This is not a point that arises in this case because here the very act of possession relied on is by definition illegal conduct in a criminal rather than a merely tortious sense.

  26. In Haigh v West, the Court of Appeal was concerned with the letting out of some pasturage rights over a public highway. The land owner claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil of the road vested and the conclusion of the Court of Appeal, upholding the judge, was that it was to be presumed that the road vested in the church wardens as trustees or alternatively, and to the extent that was not correct, that they had acquired a title by adverse possession. The highway had originally all been grass but for the 20 years prior to the start of the claim, it had been metalled in the middle with grass at the sides. It was the grass at the sides which was used by the tenants of the church wardens for pasturing sheep. The critical part of Lindley LJ's conclusions in relation to adverse possession was:
  27. (a) Probably strictly unnecessary given his earlier conclusion based on presumed grant; but
    (b) In any event, the nature of the title he concluded was obtained does not provide assistance to the claimant in this case.

    Both these points emerge from page 31 of the judgment where Lindley LJ said this:

    "... apart from all presumptions the parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century and this occupation and enjoyment is that of the church wardens and overseers acting through the vestry. We see no legal difficulty in the acquisition by the church wardens and overseers of a title by the Statute of Limitations, although, of course, the title so acquired must be subject to the public right of way."

    The key point is the last one that is that the title obtained was, "subject to the public right of way." This, of course, is radically different to what is contended for in to this case, where the claimant is seeking to maintain that the public right of way has been extinguished over that part of the highway on which his caravans and other structures are located. It is this factor which in my judgment makes Haigh v West clearly distinguishable because no one in that case was suggesting that the public right of way was extinguished. It is clear that the public policy issue that I have considered above was not considered in Haigh.

  28. Seddon v Smith is of no assistance in my judgment because that case was not concerned with a claim to title by adverse possession over part of the highway, but rather, was concerned with a claim to land over which an express easement of way had been granted. As Cockburn LJ says, in the lead judgment given in that case:
  29. "Originally the soil of this piece of land known as Molyneux Lane remained in the lord of manor subject only to the easement created over it. And with the property in the soil that in the underlying minerals also of course remained in him."

    There then follows a consideration of the facts and matters relevant to the acquisition of title by adverse possession in the relatively short judgments in that case. There is nothing in Seddon that would engage the public policy issue that I referred to earlier in this judgment because it was not concerned with a public highway much less a claim that it had been extinguished. Further, there is nothing in that case which suggests that the easement was extinguished by the title that was acquired by adverse possession. There is thus little or nothing which in my judgment can be derived from this authority which assists the resolution of the issue that arises in this case.

  30. In the light of those conclusions, I have no hesitation in concluding that Joyce J's statement of principle was plainly right, as was the assumption made by Swinfen Eady J in the St Ives case. Equally, and respectfully, I have no hesitation in following Lord Justice Mummery's dictum in Morritt as plainly correct at any rate in relation to a contention that a possessory title has been obtained which has the effect of extinguishing some or all of the public highway concerned.
  31. Both the defendant and the interested party submitted that a highway could not be extinguished save by limited means. Thus counsel for the interested party relied on a statement in Sauvain on Highway Law to the following effect:
  32. "Creation of a highway involves a permanent surrender by the landowner over whose land the highway lies of a part of his dominion. A highway is created by dedication express or implied, once created the public right cannot be lost save by operation of law, by means of statute or an extinguishment order or possibly by the physical disruption of the land on which it lies. The principle is often expressed in the maxim quotes, "once a highway always a highway"."

    and on the common law principles stated by Byles J in Dawes v Hawkins [1860] 8 CB 848 as being :

    " once a highway always a highway, for the public cannot release their right and there is no extinctive presumption or prescription. The only methods of stopping up a highway are either by the old writ of adquam damnum or by proceedings before Magistrates."

    The claimant's counsel accepted these propositions as far as they went, whilst contending, however, that on appropriate facts a highway could be extinguished by adverse possession. In my judgment that submission is simply not arguable for the reasons I have given. Thus the statements of principle concerning extinguishment that I referred to a moment ago are correct to omit any reference to extinguishment by adverse possession.

  33. Finally, I return to the point that the issue I have been considering is academic. There is much to be said for this point but counsel for the claimant said, in the course of his oral submissions, that it was intended to make a renewed application to the land registry. If that is so, then the legal point requires resolution. It also requires resolution because it may be that the local authority would wish to seek possession or remove the caravan and associated structures and/or prosecute for obstruction. In each of these cases, the same legal point is likely to arise. That being so, the point that the issue I have had to consider is entirely academic is wrong.
  34. For the reasons I have given, I dismiss this application.
  35. It was agreed between the parties that if this was the outcome then I should order the claimant to pay the defendant's costs of the proceedings. This order was not to be enforced without leave of the court because the claimant is in receipt of public funding for this application. The interested party does not seek its costs, whilst reserving its position should this case go further. Therefore subject to any further submissions from counsel concerning the form of order, I propose to make an order in those terms.
  36. RULING ON APPLICATION FOR PERMISSION TO APPEAL

    HIS HONOUR JUDGE PELLING QC:

    This is an application for permission to appeal from the judgment that I have just delivered. I refuse permission and I do so on the basis that upon proper analysis the point that I have resolved has been decided by reference to established authority and the points which have been argued on behalf of the claimant are on analysis not realistically arguable. Permission is refused.

    RULING ON APPLICATION FOR EXTENSION OF TIME TO FILE APPEAL NOTICE

    HIS HONOUR JUDGE PELLING QC:

    This is an application for an extension of time in which to serve an appeal notice. The point which is urged on me is that I should extend the time from the 21 days fixed as the starting point in the rules, because there may be a short delay in obtaining a transcript. Also, the claimant is publicly funded and will have to obtain an extension of public funding in order to bring an appeal.

    In relation to the second of these two points, it seems to me that that is almost an invitation to give an open ended extension which would be wholly inappropriate. The reason why the rules fix 21 days as the period with which the notice of appeal should be made is in order to ensure that there is no delay at all in dealing with the filing of appeal notices. I have a little more sympathy with the point made concerning the provision of a transcript. In those circumstances and with, I admit, a degree of hesitation, I am prepared to make an order in the terms sought. My hesitation is caused by the fact that if one grants an extension in the terms sought it may becomes a little uncertain in the minds of, at least, some of the people concerned as to when the 21 days start to run. For that reason, I am going to direct that the claimant should inform all proposed respondents to the appeal, and the court, of the date when the transcript is received so that all can understand when the 21 day period commences its run.


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