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Cite as: [2009] EWHC 3145 (Ch)

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Neutral Citation Number: [2009] EWHC 3145 (Ch)
Case No: CH/2009/PTA/0118


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


Peter George Kirke Wilson
Susan Mary Wilson
- and -

Owen Lister Grainger


Damian Falkowski (instructed by Richard Slade Associates, WC1R 5JD ) for the Appellants
Christopher Heather (instructed by Kingsley Napley LLP, EC1M 4AJ) for the Respondent
Hearing date: Friday 27th November 2009



Crown Copyright ©

    Mr Justice Vos:


  1. Mr and Mrs Peter Wilson (the "Wilsons") appeal from a decision of the Deputy Adjudicator to HM Land Registry, Mr Timothy Cowen (the "DA"), delivered on 23 October 2008 (the "Decision"). Permission to appeal was granted by Blackburne J on 29 April 2009, the DA having refused permission on 5 January 2009.
  2. The DA decided, amongst other matters, that the Wilsons had not acquired certain land called the "Garage Land" from Mr Owen Grainger ("Mr Grainger") by adverse possession of it between 1974 and 1986, and that Mr Grainger had orally licensed the Wilsons to use the Garage Land in 1987, thus preventing them from acquiring title to it by adverse possession thereafter. It is these decisions that are the primary subject of this appeal.
  3. The Wilsons purchased the property at Dormers, Kiln Way, Hindhead, Surrey GU26 ("Dormers") on 6 September 1974. They have been in occupation of it ever since. Dormers was first registered at HM Land Registry under title No. HP580222 on 7 December 1999, after the pre-registration deeds were destroyed in a fire at a storage facility of the Bradford and Bingley Building Society.
  4. Mr Grainger's father, Mr Rene Marcus Grainger ("Mr Grainger senior") was first registered as the proprietor of 3&4 Home Farm Cottages, Headley Road, Grayshott ("Home Farm Cottages") under title No. HP28716 on 26 November 1962, his having acquired Home Farm Cottages by a conveyance dated 5 October 1962. Home Farm Cottages was transferred by Mr Grainger senior to Mr Grainger on 28 August 1987.
  5. The title plans to both Dormers and Home Farm Cottages included the Garage Land and a further piece of previously disputed land, the Patio Land.
  6. The DA decided that the Wilsons had acquired the Patio Land from Mr Grainger by adverse possession for a continuous period from 1974 to 1986, and there is no appeal against that decision.
  7. Factual background

  8. As I have said, Mr Grainger senior acquired Home Farm Cottages in 1962, and the Wilsons acquired Dormers in 1974.
  9. Just prior to the Wilsons' purchase, their solicitors, Day, Whatley & Gilbert White, wrote to Mr Wilson on 9 July 1974 enclosing a plan of Dormers which did not show the Garage Land, and saying:
  10. "All the evidence seems to suggest that the plan next to the Contract shows the correct boundary position, but if one can establish that the owners or occupiers of Dormers have used the additional triangular piece of land to the rear for a period in excess of 12 years, then a possessory title may be established to it.
    I have asked Mrs Duffy's solicitors whether her Vendor would be able to swear a statutory declaration as to the ownership of the piece of land in question, but of course this will not be resolved until after exchange of Contracts".
  11. In 1975, the Wilsons contend that they erected a puppy fence around Dormers including both the Patio Land and the Garage Land.
  12. Some two weeks before the 12th anniversary of the Wilsons' purchase of Dormers, they completed the building of a garage on the Garage Land. That was on or about 21 August 1986. The 12th anniversary of their acquisition of Dormers was on 6 September 1986.
  13. When the Wilsons originally applied for planning permission to build their new garage in 1984, it appears that it was to be located on what is indisputably their own land on the edge of their property up against the boundary with the Garage Land. In the result, however, the garage was actually built substantially on the Garage Land, and a revised plan showing roughly the new location seems to have been filed with the East Hampshire District Council on 30 October 1987.
  14. On 21 October 1986, Mr G. J. L. Brain of Messenger May Baverstock wrote, on behalf of Mr Wilson, to Mr M Hamburger at Grayshott Hall Farm (who then owned what is termed the "Pig Sty Land" to the North West of the Garage Land and to the East of Dormers), enclosing a plan highlighting part of the Pig Sty Land and an area including the Garage Land, and saying:
  15. "I act for my client, Mr P Wilson, of Dormers, Kiln Way, Grayshott, whose property abuts the land that you have recently purchased at Grayshott Hall Farm.
    I thought that it would be of interest to you to know that my client is interested in acquiring the land that I show edged red on the attached plan and I should be glad if you would please let me know whether or not you are interested in disposing of this".
  16. Some 10 months later on 14 July 1987, Mr Grainger contends that he wrote to the Wilsons in the following terms:-
  17. "Further to my recent conversation with Peter, I write, simply as a matter of formality, as I have now taken over the freehold of this cottage from my father, although he will be continuing to live in it.
    As far as your garage is concerned, I confirm that I will, until further notice, be happy to continue my father's original decision to allow that part that you have constructed on the land owned with Home Farm Cottage, to remain in situ, by way of a licence, without payment. However, you will appreciate that this will not allow you to retain it for ever, or to obtain any title to the ownership of the land in question. This arrangement can be brought to an end by me at any time and is, in any event, not assignable to anyone else.
    I am also happy to continue, on the same terms as above, the similar arrangements that you have had with my father, concerning the strip of our garden upon which you have patio. This is, of course, an area akin to that which my father permitted your predecessors-in-title to "borrow" although they reinstated the proper boundary, at his request, before they sold Dormers to you.
    I hope that we will continue to enjoy the neighbourly relations, that my father and you have built up over the past few years, well into the future".
  18. On 16 November 1987, Mr Grainger wrote to Mr Wilson on the subject of their boundaries in the following terms:
  19. "As promised, I am enclosing three copies of the filed plan from my Land Certificate, upon one of which I have marked my boundary in red. Until I can carry out a detailed site inspection, I cannot, of course, be sure whether any part of the newly excavated tennis court is actually on our land".

    The plan that Mr Grainger enclosed showed the Garage Land clearly as being included within his property. I was told that the tennis court had been excavated by the owner of the Pig Sty Land, but it seems that the Wilsons were keen to acquire that land so as to build or finish the building of a tennis court upon it.

  20. On 3 June 1988, Mr Wilson made a statutory declaration in relation to the "Blue Land" to the north of the Garage Land. The importance of the statutory declaration is that he exhibited Mr Grainger's plan showing the Garage Land as in his (Mr Grainger's) ownership. The declaration included the following:
  21. "2. I purchased my house at the end of August 1974 when I took up residence at this property, Dormers, Kiln Way, which is marked on the plan annexed hereto as exhibit 'PGKW1'. I have lived in this house ever since I purchased the property with my wife.
    3. I am aware of a piece of land which is shown edged in blue on exhibit 'PGKW1' and have been aware of this piece of land since I purchased my property in August 1974. I know [Mr Grainger senior] who occupies Home Farm Cottage, Headley Road, Grayshott, Hindhead, Surrey, which land is shown edged in red on the exhibit 'PGKW1'
    4. During my residence in Dormers I have been acquainted with Mr Rene Marcus Grainger and I have known that Mr Grainger has used this land edged in blue for storing logs, tipping rubbish and has had bonfires upon it. I had assumed that this piece of land was part of his garden area as he appeared to use it as such and I have known him to use it since 1974."

    It is noteworthy that the plan attached to Mr Wilson's statutory declaration showed the Blue Land as being most easily accessible from Mr Grainger's property across the Garage Land. It seems, however, that it may have been possible to access the Blue Land directly from Mr Grainger's property at the point adjoining the extreme North East of the Garage Land.

  22. On 11 October 1999, after their pre-registration deeds had been destroyed by fire, the Wilsons made a statutory declaration claiming to own Dormers and exhibiting a plan incorporating both the Patio Land and the Garage Land. The Wilsons were, as I have said, duly registered as proprietors. There was obviously some mistake made at the Land Registry, because the Wilsons' title, including the Patio Land and the Garage Land, was registered at a time when Mr Grainger's title already included both those areas.
  23. In due course, on 16 April 2004, Mr Grainger complained to the Land Registry, and this dispute ensued. On 14 June 2004, the Wilsons received notice of Mr Grainger's application for the alteration of the register under paragraph 5 of schedule 4 to the Land Registration Act 2002. On 28 June 2004, the Wilsons duly objected to the claimed alteration. On 29 October 2004, the Wilsons lodged their own application for rectification of Mr Grainger's title. This latter application was not before the DA, and is not before me, but remains with the Land Registrar and will presumably be dealt with in a way that is consistent with the outcome of these proceedings.
  24. Mr Grainger's application for rectification of the Wilson's title was referred to the Adjudicator to HM Land Registry under Rule 5 of the Land Registration (Referral to the Adjudicator to HM Land Registry) Rules 2003.
  25. The hearing before the Deputy Adjudicator took place on 28 and 29 November 2007 and 20 and 21 February 2008, and, as I have said, the Decision was dated 23 October 2008. The DA had the opportunity of inspecting the entire site on both sides of the disputed boundaries.
  26. Notice to the DA

  27. A problem arose in the run-up to the hearing in that it appeared that the Appellants' Notice had not been served on the DA as required by paragraph 17.5(1) of the Appeals Practice Direction at 52PD.80. A copy of the decision of Blackburne J was, however, served on the DA.
  28. The Respondent's counsel, Mr Christopher Heather, submitted that this omission may be important in the light of the fact that the Wilsons rely on the delay by the DA in preparing his written decision, and the DA might have wanted to put in his notes so that the effect of the delay could be evaluated.
  29. Since then, however, I have been shown a letter from the Wilsons' solicitors dated 26 November 2009, which explains that this oversight has now been brought to the attention of the Adjudicator's office. That office confirmed that no prejudice had been caused by the omission and that "it would be a very unusual occurrence for the Adjudicator to request to be heard in an appeal in the High Court."
  30. Mr Damian Falkowski, counsel for the Wilsons, (who did not appear before the DA) has not in the event placed great emphasis on the effect of the delay, and having considered the transcripts of the hearing and the documents, I think it would have been impossible to sustain the submission that the unfortunate delay (occasioned by the DA's cycling accident) could have caused any injustice whatever.
  31. I propose, so far as necessary, to waive the defect under CPR rule 3.10.
  32. The two issues on the appeal

  33. Against the above background, the two issues on appeal were described by Mr Falkowski as follows:-
  34. (1) Whether the DA wrongly held that the Wilsons had not acquired title to the Garage Land in 1986 by reason of their having been in adverse possession of it since 1974; and

    (2) Whether the DA wrongly held that the Wilsons were given a licence to occupy the Garage Land in 1987 by Mr Grainger thereby preventing them from afterwards acquiring title to it by adverse possession.

    The relevant statutory provisions

  35. Schedule 4 to the Land Registration Act 2002 provides as follows:
  36. "1. Introductory
    In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which –
    (a) involves the collection of a mistake, and
    (b) prejudicially affects the title of a registered proprietor.
    5. The registrar may alter the register for the purpose of –
    (a) correcting a mistake,
    (b) bringing the register up to date, ... or
    (d) removing a superfluous entry.
    6. (1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.
    (2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless –
    (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
    (b) it would for any other reason be unjust for the alteration not to be made.
    (3) if on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration".

    Adverse Possession

  37. The applicable law of adverse possession is not contested between the parties. Paragraph 18 of schedule 12 to the Land Registration Act 2002 effectively applies the old law of adverse possession to registered land where the alleged period expired before October 2003. The old law was contained in section 15 of the Limitation Act 1980 and section 75 of the Land Registration Act 1925.
  38. Section 15(1) of the Limitation Act 1980 provides as follows:
  39. "No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person".
  40. Section 17 of the Limitation Act 1980 has the effect of extinguishing the title of a person who is statute barred after 12 years as a result of adverse possession.
  41. Schedule I of the Limitation Act 1980 provides the following statutory definition of adverse possession:
  42. "8(1) No right of action to recover land shall be treated as accruing unless the land is in possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as "adverse possession") …"
  43. It has long been established that a person claiming adverse possession must be shown to have both factual possession and the requisite intention to possess. Lord Browne-Wilkinson held in J.A. Pye (Oxford) Ltd v. Graham [2003] 1 AC 419 at paragraph 40 that the two elements could be described as:
  44. "(1) a sufficient degree of physical custody and control and (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit".
  45. As regards factual possession, Lord Browne-Wilkinson approved the dictum of Slade J in Powell v McFarlane [1977] 38 P&CR 470 at pages 470-1, where he said:
  46. "Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though 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 has done so".

    Appeals from factual decisions

  47. Where findings of fact are being appealed, I am bound to follow the guidance set out in the well-known judgment of Clarke LJ (as he then was) in Assicurazione Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 at pages 580-1, where he said:
  48. "14. The approach of the court to any particular case will depend upon the nature of the issues kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adams & Chope (trading as Trelawney Fishing Co) [2002] 2 Lloyd's Rep 293 and Bessant v South Cone Inc [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
    15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a "rehearing" under the Rules of the Supreme Court and should be its approach on a "review" under the Civil Procedure Rules 1998.
    16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
    17. In Todd's case [2002] 2 Lloyd's Rep 293, where the question was whether a contract of service existed, Mance LJ drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows, at p 319-320, para 129:
    "With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of 'review' may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment—such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was 'wrong' and to 'draw any inference of fact which it considers justified on the evidence' indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious."
    In the same case Neuberger J stressed, at pp 305-306, paras 61-64, that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Thorpe LJ agreed with both judgments."
  49. In short, insofar as issues of primary fact and inferences from primary fact are concerned, I have to be satisfied that the decision below was wrong and lies outside the bounds within which reasonable disagreement is possible, giving full weight to the fact that the Deputy Adjudicator had the advantage of seeing the witnesses at first hand.
  50. The DA's findings of fact

  51. The DA made the following main findings of primary fact that are relevant to the issues before me:
  52. (1) It was not obvious to the owners of Home Farm Cottages in 1986 that a garage was being built on the Garage Land.
    (2) Mr Wilson did have conversations with Mr Grainger about the position of the garage being in Home Farm Cottages' paper title, and that Mr Grainger did grant express permission for the garage to remain there.
    (3) Mr Grainger gave the Wilsons oral permission to use the Garage Land and Patio Land in 1987. The Wilsons accepted Mr Grainger's terms in 1987.
    (4) Mr Grainger did write and deliver the letter of 14 July 1987 to the Wilsons.
    (5) The Wilsons and/or their predecessors in title enclosed the Patio Land within Dormers by means of fencing, laid down a hard surface and used it as a garden patio with the intention of possessing it and without any permission of the true owner prior to July 1987.
    (6) In 1974 the Garage Land had the appearance of being part of Dormers, which led to the letter of 9 July 1974. It was enclosed by a fence so as to incorporate it within Dormers, but there was no significant boundary feature between the Garage Land and Home Farm Cottages. Between 1974 and 1986, the Garage Land was unkempt rural or waste land, used for bonfires and dumping, and sometimes overgrown.
    (7) The only thing that changed between 1974 and 1986, when the Wilsons built their garage, was the puppy fence, put up in 1975, built to keep a puppy in not to keep people out. During that period, people were able to cross from Home Farm Cottages to the Garage Land at will.

    The DA's conclusions

  53. As a result of the DA's findings of fact, he reached the following conclusion as to the Wilsons' claim to the Garage Land:
  54. "Taking all of this together, I have reached the conclusion that Mr and Mrs Wilson have not established a period of 12 years' adverse possession of the Garage Land prior to 14.07.87. I do not regard it as essential that they show physical exclusion of anyone trying to get across from Home Farm Cottages, but they must show a significant degree of control and some use of the land which denotes exclusive possession rather than casual use. There is no evidence of any such control or activity by Mr and Mrs Wilson or their predecessors in title".
  55. Finally, the DA concluded that the Wilsons had exercised a lack of care in wrongly claiming ownership of the Garage Land in their statutory declaration dated 11 October 1999, because they "certainly ought to have known that there was another person with a claim to title of that land". In the circumstances, he held that the ground contained in paragraph 6(2)(a) of Schedule 4 to the Land Registration Act 2002 was satisfied so as to permit rectification of the Register.
  56. The Wilsons' grounds of appeal

  57. Against the above background, the Wilsons contend that the DA fell into the following errors in relation to the findings concerning the claim to adverse possession between 1974 and 1986:
  58. (1) He misapplied the legal test as to factual possession;
    (2) He failed properly to assess the evidence of Mr and Mrs Wilson;
    (3) He failed to have due regard to the physical characteristics of the Garage Land and the surrounding land; and
    (4) He adopted an inconsistent approach to his assessment of Mr Grainger's evidence about (a) the Patio Land and (b) the Garage Land.
  59. The Wilsons also contends that the DA fell into the following errors in respect of the events of 1986 and 1987:
  60. (1) He reached a perverse finding about why the garage was built on the Garage Land;
    (2) In finding that Mr Wilson apologised for building the garage, he reached a finding for which there was no supported evidential explanation;
    (3) His assessment and acceptance of Mr Grainger's evidence about granting a licence was perverse in the light of the other evidence given;
    (4) He unjustifiably based his decision entirely on the letter of 14 July 1987 when there was good reason to be cautious as to the reliability of the content of that letter and no compelling reason why the letter had to be accepted as having been delivered.
  61. I shall deal with each of these points in turn, but before I do so, I will make some introductory remarks.
  62. Introduction to the issues

  63. The first issue on this appeal depends primarily on the facts found as to the Garage Land between 1974 and 1986. The DA found that, in that period, the Garage Land was unkempt rural or waste land, used for bonfires and dumping, and sometimes overgrown, and that people were able to cross between Home Farm Cottages and the Garage Land at will. He seems also to have accepted Mr Grainger's evidence that he and his children were able to cross into and across the Garage Land throughout the period since 1975. As appears hereafter, despite Mr Falkowski's able efforts, he has been unable to persuade me that any legal issue really arises between the parties. Thus, on this aspect, I need to be satisfied that the DA's factual findings were plainly wrong.
  64. The second issue is again one of primary fact. But, of course, it only arises if the DA were wrong on the first issue. The question is whether the Wilsons were given permission to retain their garage on the Garage Land in 1987. If they were, they cannot have acquired the Garage Land by adverse possession thereafter, because they would have been occupying it with the consent of the true owner. If no permission was given, it is not contested by Mr Heather that the retention and use of the garage for the 12 years from 1986 allows the Wilsons to have acquired the Garage Land by adverse possession.
  65. Issue: Adverse possession between 1974 and 1986

    Alleged misapplication of the legal test as to factual possession

  66. Mr Falkowski contends that an analysis of the DA's detailed reasoning reveals legal errors.
  67. The reasoning complained of is in paragraphs 90 and 91 of the Decision as follows:-
  68. (1) In 1974, the Garage Land had the appearance of being part of Dormers; and

    (2) That that did not mean that the owners of Dormers were in actual possession of it at that time.

    (3) The Wilsons said they saw the remains of a split paling fence around the Garage Land.

    (4) But there was no evidence about who put that fence up or why.

    (5) The only thing that changed from 1974 was the erection of the puppy fence in 1975, which was there to keep the puppy in rather than people out.

  69. From this, substantially three submissions are made:-
  70. (1) That the DA must have regarded it as a requirement that the Garage Land should have been fenced, if the Wilsons were to establish sufficient factual possession of it.

    (2) That the DA failed to take sufficiently into account the existence of the remains of the split paling fence.

    (3) That the DA relied on an irrelevant mental state in two respects: first in relation to the motive for erecting the split paling fence, and secondly as to the motive for erecting the puppy fence not being to keep people out.

  71. I accept, as Mr Falkowski submits, that the DA should have been looking to see what acts were done, and whether they amounted to a sufficient degree of exclusive physical control. I also accept that that will depend, at least to some extent, on the circumstances, the nature of the land, and the manner in which land of that kind is commonly used or enjoyed.
  72. I do not, however, accept that there are any grounds for suggesting that the DA fell into error in these respects. It is simply wrong to contend that the DA regarded it as a requirement of physical possession that the Garage Land needed to be fenced. He said exactly the opposite at paragraph 95 of the Decision. In the passages complained about, the DA was, in my judgment, simply commenting on the facts as he found them; he plainly had the dicta of Lord Browne-Wilkinson well in mind when he did so. Moreover, his reasoning needs to be looked at as a whole and cannot be broken down into isolated pieces and subjected to minute criticism apart from a view of the overall findings he made.
  73. The remains of the split paling fence were, quite obviously, taken into account by the DA, but he found that that fence did not mean, as a matter of fact, that the Wilsons had shown a sufficient degree of exclusive physical control, because, as he found, the Garage Land was unkempt rural land used by both the Wilsons and the Graingers. Having inspected the property, he obviously did not think that there was any evidence that the Wilsons had stopped the Graingers using the Garage Land at will, during the period between 1974 and 1986. Even the puppy fence can be seen from the pictures to have been low and easily walked over. Having reviewed the evidence myself, I am constrained to say that these findings seem to me to have been supported by the available evidence.
  74. As to the suggested confusion of the mental and physical elements of the test for adverse possession, I see nothing in this point. The DA was fully entitled to comment on the lack of evidence as to why the paling fence was erected or who erected it, and that the puppy fence was not put up to stop people entering the Garage Land. These accurate comments do not mean that he took into account some inappropriate aspects of the intentions of the occupiers in deciding the position as to factual physical possession in the relevant period. It seems to me that the DA's reasoning is logical and justified by the evidence that he saw and heard.
  75. In short, I do not accept that the DA negated the fact of possession, because of the mental element, as Mr Falkowski submitted. It is not, as Mr Falkowski also submitted, conclusive that the Wilsons "have done everything they could have been expected to do". The question is whether, as a matter of fact, their acts constituted a sufficient degree of exclusive control over the Garage Land. In agreement with the DA, the evidence does not seem to me to have shown that they did.
  76. Alleged failure properly to assess the evidence of Mr and Mrs Wilson

  77. The main thrust of this factual attack on the DA's findings was the suggestion that he had failed to pay sufficient attention to the evidence of Mrs Wilson. It is true to say that Mrs Wilson, rather than Mr Wilson spent all her time at Dormers; whilst Mr Wilson generally only resided there at week-ends. But paragraph 49 of the Decision makes clear that the DA treated her evidence separately.
  78. In making this complaint, it seems to me that the Wilsons are being over-selective in their attack. For example, they accept that the DA mentions in paragraph 88 in relation to the Patio Land that, in 1974, Mr Grainger was only an occasional visitor to Home Farm Cottages, yet they argue that the DA had forgotten that salient fact when assessing his evidence against that of the Wilsons in relation to the Garage Land. I do not think that any such inference can properly be drawn. It seems to me that, read fairly and as a whole, there are no grounds for the criticisms that the Wilsons make under this head. There is certainly no basis on which it can be said that the decision was clearly wrong.
  79. The DA heard and assessed the evidence of the Wilsons and Mr Grainger and found, as he was fully entitled to do, that the Garage Land was unkempt, overgrown, effectively waste ground to which the Grainger family continued to have access, and of which the Wilsons did not have exclusive possession between 1974 and 1986. He seems to me to have understood and evaluated the evidence about the paling fence and the puppy fence, but still to have reached the conclusion he did. It is very hard for a judge hearing an appeal who did not see the witnesses to say that he was clearly (or indeed probably) wrong. On my evaluation of the statements and the transcripts, the DA seems to have reached an entirely sustainable and justifiable conclusion.
  80. Alleged failure to have due regard to the physical characteristics of the Garage Land and the surrounding land

  81. This ground of appeal confuses the appearance of the Garage Land with the use to which it was put. The DA's decision was based upon the latter. He accepted that the Garage Land had the appearance of being part of Dormers, and made clear that it was, according to the Wilsons, "surrounded by a steep bank". But he still found, having viewed the property and the bank in question, that the Graingers had made use of the Garage Land by crossing on to it from their property, dumping things on it, and making bonfires on it. Indeed the evidence was that the Graingers' wheelbarrow was left there on occasions.
  82. I cannot second guess the DA's findings which seem to me to have taken account of the evidence and applied the correct legal principles.
  83. Alleged adoption of an inconsistent approach to Mr Grainger's evidence about the Patio Land and the Garage Land

  84. The issues in relation to the Patio Land were different from those that arose in relation to the Garage Land. It was never suggested that the Graingers had made use of the Patio Land between 1974 and 1986. What was suggested was that Mr Grainger recalled being told by his father about permissions he had given for the use of the Patio Land, and the moving of the boundary just before the Wilsons bought Dormers. The DA found this reported account to have been a "rather odd arrangement … which did not seem to square with other evidence he gave about his father not being particularly fastidious about property matters". As Mr Falkowski pointed out, Mr Grainger changed his evidence twice on this point in the course of cross-examination.
  85. It is true that the DA broadly accepted Mr Grainger's evidence on the Garage Land, but not in relation to the Patio Land. But this outcome is not, by itself, a reason to infer that the DA must have been wrong. Having reviewed the statements and the transcripts of the evidence, I have formed the view that the evidence cannot be said to have been at odds with the DA's conclusions.
  86. Issue 2: Was permission given to use the Garage Land in 1987?

    The allegedly perverse finding about why the garage was built on the Garage Land

  87. The supposedly perverse finding as to the reason for having built the garage on the Garage Land was that there "was no adequate explanation why this was so". Mr Falkowski argued that there was ample evidence that the garage was built on that land because the Wilsons believed that the Garage Land formed part of their land, and had no reason to believe otherwise. But he ignores the correspondence between Mr Wilson and his solicitor in 1974. It seems to me that the DA had ample grounds for finding that Mr Wilson's explanation for the positioning of the garage was inadequate.
  88. The 1974 correspondence shows that Mr Wilson knew at that stage that title to the Garage Land was not being conveyed to him. Moreover, Mr Grainger had adduced evidence to show that Mr Wilson had originally applied for planning permission to build the garage on what was indisputably his own land. It seems to me that, bearing in mind Mr Wilson's response to this in cross-examination, the DA was fully entitled to conclude that he had failed to give an adequate explanation of why the garage was built in its present location. The finding was neither perverse nor obviously wrong.
  89. The allegation that there was no supporting evidential explanation for the finding that Mr Wilson apologised for building the garage

  90. As to the supposed finding that Mr Wilson apologised to Mr Grainger for building the garage on his land, it seems to me that the DA placed little or no weight upon this aspect. It is true that the DA mentioned Mr Grainger's evidence to this effect, but when he came to make his findings he did not repeat it. So far as I can see, the DA gave careful consideration to the evidence of the conversations between Mr Wilson and Mr Grainger that led up to the 14 July 1987 letter and concluded only that there were such conversations concerning the position of the garage in Home Farm Cottages' paper title, and that Mr Grainger granted express permission for the garage to remain there. Again, in my judgment this finding was far from perverse, bearing in mind not only the contents of the letter of 14 July 1987 but also the contents of the undisputed letter dated 16 November 1987, and the contents of Mr Wilson's own statutory declaration dated 3 June 1988. All those documents demonstrate that Mr Wilson was fully aware of the fact that the Garage Land was within Mr Grainger's paper title.
  91. This attack on the DA's findings is central to the Wilsons' case. There was, as I have just mentioned, contemporaneous documentary evidence to support the proposition that the Wilsons knew they had built their garage on land to which Mr Grainger had paper title. The central question was not whether there had been a volunteered apology, but whether Mr Grainger had given the Wilsons' permission to retain their garage where it was.
  92. It was in this connection that Mr Falkowski argued that the DA ought to have found that the 14 July 1987 letter was never sent. I deal with this issue under the next heading but one.
  93. The allegedly perverse assessment and acceptance of Mr Grainger's evidence about granting a licence, in the light of the other evidence

  94. This point was, in effect, that the DA should not have accepted Mr Grainger's evidence as to the permission granted in 1987, having rejected it in relation to the earlier alleged permission given in relation to the Patio Land. This, in my judgment, is a bad point. The DA expressly explains why he has reached different conclusions at paragraphs 82-93.
  95. The high point of this submission is that there is no plausible basis why the Wilsons would have acquiesced in the suggestion that Mr Grainger was entitled to give permission as to the use of Patio Land, once the DA had found that no such permission was given in 1974. In my view, this does not follow. By 1987, Mr Wilson was on the back foot. He knew or ought to have known that he had built his garage on land to which the paper title belonged to Mr Grainger. The conversation that the DA found occurred might well have encompassed the Patio Land even though there had been no previous discussion about it. Mr Wilson would not have wanted to rock the boat if he was getting permission to keep his garage where he had built it – at significant expense.
  96. The allegedly unjustifiable reliance on the letter of 14 July 1987 when there was good reason to be cautious as to the reliability of the content of that letter and no compelling reason why the letter had to be accepted as having been delivered

  97. This is undoubtedly the most difficult part of the appeal. The DA was clearly cautious about the 14 July 1987 letter. When he first mentioned it, he commented that "It is difficult to imagine a more perfectly constructed document designed to prevent possessory rights from being acquired".
  98. It seemed to me in the course of oral argument that Mr Falkowski's position on this letter was unsatisfactory. It had not been expressly put to Mr Grainger that the letter was manufactured after the event to support his case, as the DA recorded at paragraph 80. It is true, however, that the DA at one stage in the course of the delayed closing argument seems to have misremembered precisely what was put to Mr Wilson. In the end, however, Mr Falkowski opted for the following submissions as to the 14 July 1987 letter:
  99. (1) It is not fatal that it was not expressly put that the letter had been manufactured.
    (2) The question of forgery or manufacture of the letter to support Mr Grainger's case was 'in the arena'.
    (3) The Wilsons' case was that they did not receive the letter.
    (4) In this situation, it could have been properly put to Mr Grainger that one of the possible explanations was that the letter has been manufactured to support the case, and this was how Mr Grainger actually understood (or probably more accurately misunderstood) what was being put to him at one stage.
    (5) Mr Wilson did not, however, have any positive case to the effect that the letter was manufactured, as opposed (for example) to having been simply mislaid.
    (6) The DA was wrong to have failed to consider all the possibilities and the circumstances surrounding the alleged creation and delivery of the 14 July 1987 letter.
  100. This being the state of the Wilsons' submissions, in my judgment the attack on the DA's carefully reasoned findings fails. It is true that the DA started from the premise that, since there was no positive allegation of (in effect) fraud, it followed that Mr Grainger must have written the letter in July 1987, even if, for some reason, it was not delivered at that time. In ordinary civil litigation, the authenticity of disclosed documents is generally assumed unless it is specifically contested (c.f. CPR Part 32.19). It seems to me that a similar position was reached at this hearing before the DA. The Wilsons took a full opportunity to consider whether or not to raise a positive case that the 14 July 1987 letter was manufactured, and chose not to do so. They were nonetheless entitled to submit that there were oddities about the circumstances in which the letter came to be produced, as they certainly did. But in the absence of a positive case of fraud, the DA was left with the possibility of manufacture as one of a number of possible options, and one he was fully entitled to reject.
  101. I do not need to deal in this appeal with the question of whether the DA was bound to reject (as opposed to it being open to him to reject) the possibility of fraud. The point was not fully argued before me. But the DA would have realised that the more serious the allegation that is made, the less likely it is that it occurred (see Lord Nicholls at page 586 of Re H (Minors) [1996] AC 563), and would, therefore, have been unlikely to find that the letter was manufactured without a positive case being made to that effect, particularly where on the evidence it was only one of a range of possibilities that he had himself identified in the course of argument.
  102. It is true, as I have said, that there were some circumstances surrounding the 14 July 1987 letter, which needed careful evaluation. But there are no grounds in my judgment for the contention that the DA failed in this respect. He recorded at paragraph 40 that: "Mr Grainger was cross-examined in detail about the writing of the letter and the subsequent location of copies of it". He did not specifically mention the points relied upon by Mr Falkowski: the absence of a reference on the letter, the delay in producing the copy of the letter, and the later loss of the carbon copy so that it could not be forensically examined. But these must have been in his mind from what he did say.
  103. More importantly, however, the DA heard the witnesses and made detailed findings on what they said and what parts of their evidence he accepted and what parts he did not. As a judge hearing an appeal, I am in a far less satisfactory position. I cannot second guess the DA without very strong grounds for doing so. Put shortly, I find no such grounds here. As I read the transcripts and the statements, I found the DA's conclusions more and more comprehensible and justifiable. So far from thinking that his findings in relation to the crucial conversation and the 14 July 1987 letter were perverse, it seems to me that he reached justifiable conclusions based on the evidence he heard.
  104. Conclusions

  105. For the reasons I have tried to give as briefly as possible, I have taken the clear view that the DA's conclusions on the two issues raised by this appeal were justified by the evidence.
  106. In summary, no valid criticism has, in my judgment been made as to the DA's application of the correct legal test for physical possession, nor has it been shown that he reached a perverse conclusion as to the facts concerning the possession and use of the Garage Land between 1974 and 1986. In addition, the DA was justified in concluding that Mr Grainger did have a conversation in 1987 in which he gave the Wilsons permission to use the Garage Land.
  107. I will, therefore, dismiss the Wilsons' appeal from the DA's Decision.

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