REF/2008/0697

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

BETWEEN

 

HILLARY KEITH RAMSELL

APPLICANT

and

 

CYMA PETROLEUM (UK) LIMITED

 

RESPONDENT

 

Property Address: Land fronting 2 Clyde Villas, Hadley Green Road, Barnet EN5 5PP

 

Title Numbers: AGL181690

 

Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: Victory House, Kingsway, London WC2B 6EX

 

On: 17^th June 2009

 

 

Applicant representation: In Person

Respondent representation: Mr Andrew Dymond of Counsel instructed by Messrs Lawrence Ross & Associates Solicitors

 

 

 

D E C I S I O N

 

 

J A Pye (Oxford) Ltd v Graham [2003] 1AC 419

Simpson v Fergus (2000) 79 P & CR 393

 

Introduction

1. This dispute relates to a small area of land immediately to the west of 2 Clyde Villas, Hadley Green Road, Barnet, Hertfordshire, and to the north of commercial premises known as 242-248 High Street, Barnet. The area in dispute is and appears to be part of a vehicular carriageway, although (as I shall explain) the Highways Authority does not claim ownership of it. 2 Clyde Villas has been registered in the name of the Applicant since 16^th April 1981 under Title Number NGL395610. The freehold of 242-248 High Street, which lies to the immediate south-west of 2 Clyde Villas, has been registered in the name of the Respondent ("Cyma") since 2005, although an associated company, Cyma Holdings Limited took a lease of the premises in 1984, subsequently acquiring the freehold in 1989. I shall refer to the land in this title as "Cyma's Premises". On 19th February 2008 the Applicant applied in Form FR1 to be registered as proprietor of the land in dispute, on the grounds stated in his Statutory Declaration dated 14th February 2008, namely that he has been in adverse possession of it since 1981. Notice of the application was given to Cyma, which objected on 19th March 2008, on the basis that the land formed part of the access road to the rear of Cyma's premises, is public highway and has never been in the exclusive possession of the Applicant. Although Cyma does not itself claim title to the land - which is unregistered - the Land Registry has not regarded its objection as groundless, and the dispute was referred to the Adjudicator on 27th May 2008. I heard this case on 17th June 2009, with the benefit of a prior Site View. The Applicant represented himself, and Mr Andrew Dymond of Counsel, instructed by Lawrence Ross & Associates, represented Cyma.

 

The position and appearance of the Disputed Land

2. High Street Barnet runs more or less in a north-south alignment. Cyma's Premises occupies a corner site, at the junction of High Street and Hadley Green Road. When it was built, and until relatively recently, it comprised a motor garage. I am told that it was built as a showroom and workshop for Rolls-Royce cars, possibly in the 1920s or 1930s, and it retains a certain architectural elegance redolent of the Bentley Boys era. The building (“Cyma’s Building”) is in three conjoined wings. The southern wing has a direct frontage to High Street, facing west and slightly north. The central section faces north-west and cuts the corner - i.e it makes a 45 degree angle to the outer wings of the building. The northernmost wing faces north and slightly east, and has a frontage to the tarmaced area that I shall describe in more detail below (“the Tarmaced Area”). The area in front (to the north-west) of the central section of Cyma's Building is a forecourt (“the Forecourt”) - until recently occupied by petrol pumps, but currently the site of a car wash business. The front of the Forecourt makes a right-angle - abutting High Street to the west, and the entrance to the previously mentioned tarmaced area to the north. The area behind the outer wings of Cyma’s Building - to the east of the southern wing and to the south of the northern wing - is occupied by another part of the building, although it may have been added at a later date. Accordingly, Cyma's Premises, comprising Cyma’s Building and the Forecourt, forms a rectangular site. The eastern side of Cyma's Building has a frontage onto a private access road ("the Access Road") which runs more or less north to south parallel to the High Street, and along the rear of Nos 228-242 High Street - that is, a block of buildings which includes Cyma's Building and a number of other further south. Part of Cyma’s Building is, and has for many years, been let to the Pizza Express restaurant chain.

 

3. The frontage of 2 Clyde Villas faces west on to the Tarmaced Area, and is more or less at right angles to the front of the northerly wing of Cyma's Building (which lies to the south). I shall now give further details of the Tarmaced Area. The junction between High Street and Hadley Green Road is at the north-western corner of Cyma's forecourt. Hadley Green itself lies between the High Street (to the west) and Hadley Green Road to the south and east. Hadley Green Road runs away from High Street at an angle, initially north-easterly and then almost due north. Prior to 1987, the entire area to the west of 2 Clyde Villas and to the north of Cyma's Building formed (physically if not legally, as I shall explain) part of the entrance to Hadley Green Road. In or about 1987 the configuration of the road was changed. The pavement in front of 2 Clyde Villas, and its attached neighbour to the north (1 Clyde Villas), was substantially enlarged i.e extended westwards, with a view to narrowing the entrance to Hadley Green Road. The extended pavement, which has been landscaped with trees, terminates at its south-western point in what might be described as a narrow peninsular, more or less due west of the southern flank wall of 2 Clyde Villas, and more or less due north of the central section of Cyma's Building. There is a tarmaced area which lies in front of 2 Clyde Villas which is partially enclosed by the "peninsular". This area also forms the entrance to the Access Road, which is entered via a sharp 90 degree turn around the corner of Cyma's Building. The Tarmaced Area extends past (to the west of) the "peninsular" and runs in front of Cyma's forecourt and into Hadley Green Road very close to its junction with High Street.

 

4. There are certain markings visible on the surface of this area. A white line has been painted from the south-eastern corner of the “peninsular” southwards across the tarmaced area to intersect with the north-eastern corner of Cyma’s forecourt. The white line then turns eastwards towards 2 Clyde Villas and runs parallel with the northern wing of Cyma’s Building. The line continues across the entrance to the Access Road and bears slightly north until it more or less touches the western frontage of 2 Clyde Villas. The white line then returns westwards until it meets the start of the line at the south-eastern corner of the “peninsular”. This creates a large white box occupying the entire Tarmaced Area between the “peninsular”, the front of the northern wing of Cyma’s Building, the entrance to the Access Road, and the front of 2 Clyde Villas. In fact, there is also a partial white line running around the northern edge of the Tarmaced Area, behind (to the east of) the “peninsular”, to the north of the white box I have described. The words “PRIVATE” have been painted in white on the surface of the area between the end of the “peninsular” and the north-eastern corner of Cyma’s forecourt, across the entrance to the Tarmaced Area. The words “KEEP CLEAR” and a large arrow pointing in the direction of the Access Road have been painted in white at the eastern end of the white box, close to the entrance to the Access Road.

 

The land in dispute

5. The Applicant originally applied to the Land Registry to be registered as proprietor of the entirety of the area contained within the white painted lines. I believe this application was made in March 2007 although I have not seen it. The Highways Authority objected to the application on the grounds that a large part of the Tarmaced Area was subject to public rights of way and was treated as highway maintained at public expense. However, the map produced by the authority at the time indicated that a very small part of the Tarmaced Area was not regarded as public highway, and was considered to be in private ownership. It is this area of which the Applicant now claims ownership. The area in question is bounded (a) on the south by the entrance to the Access road; (b) to the west by a line drawn across the bottom of the Tarmaced Area (nearest 2 Clyde Villas) from the north-eastern corner of the northern wing of Cyma’s Building to intersect with the pavement in front of 2 Clyde Villas; (c) on the north by the pavement and an area enclosed by railings immediately in front of the front door to 2 Clyde Villas; and (d) on the east by the door to the garage of 2 Clyde Villas, which lies to the south of the front door and area of railings I have referred to. This area – which I shall call “the Disputed Area” – is in effect the northward extension of the Access Road, being the same width as the Access Road and commencing where the Access Road ends. As a further refinement, the Applicant has, on the plan attached to his statutory declaration identifying the land, hatched part of it in green. This is the part of the Disputed Land closest to the entrance to the Access Road, and occupies about one-third of the claimed area. The Applicant acknowledges that this green hatched area is subject to rights of way, being in effect a turning radius to enable users of the Access Road to swing into the road around the north-eastern corner of Cyma’s building. It will be appreciated, therefore, that the Disputed Land – subject to some relatively minor variations in the quality and appearance of the surface finish – is carriageway and to all intents and purposes indistinguishable from the area of public highway to the west, and the Access Road to the south.

 

6. When I visited the site prior to the hearing, a car was parked on the Disputed Land, close to its northern edge, by the pavement and area enclosed by railings in front of 2 Clyde Villas, with the back of the car by the garage door. The remainder of the area closest to the entrance to the Access Road, was left clear. Whilst we were on site, a medium-sized saloon car was driven over the Tarmaced Area and into the Access Road. Due to the presence of the parked vehicle, which reduced the available turning area, the car was just able to make the turn around the corner of Cyma’s Building, with a matter of inches to spare on either side of the car. It could also be seen that the actual corner of the building at the entrance to the Access Road had been reinforced with a steel sleeve, suggesting that vehicles had previously damaged the corner whilst manoeuvring around the building.

 

The basis of the application – the Applicant’s case.

7. To give a flavour of the Applicant’s case, I shall quote from his Statement of Case:

“1. Since the date of purchase (17/03/1981) an area in front of the Applicant’s garage, defined by a distinctive layer of tarmac, was regarded by all neighbours as being the responsibility of the Applicant, providing access to his garage and parking for 2 vehicles………..In all the Applicant’s 27 years experience no person or organisation has ever questioned (prior to the present dispute) his right to surface, excavate, re-surface, mark or maintain any part of the land in question, to use the designated area for parking his own or his tenants’ vehicles, to drive or walk over the area marked as a right of way and use it for loading or unloading vehicles (but not for parking) and to authorise the police to remove vehicles obstructing the right of way: to enclose his parking area for over 10 years for use as a temporary storage depot for building materials….to the exclusion of all others. In addition, from 1987-1993, substantial scaffolding was erected up on the land for the construction of a 12-room side extension, this scaffolding being cantilevered over the right of way to allow free access.”

The Applicant has annexed to his Statement of Case a copy of his original submission to the Land Registry by which he sought to be registered as proprietor of the entirety of the Tarmaced Area, the greater part of which, as he now accepts, is part of the public highway. It is apparent from this document – see, for example, the plan at page 28 of the Bundle – that many of the activities relied upon by him did not actually take place on the Disputed Land itself, but within the Tarmaced Area generally. The Applicant also referred to the activities of his predecessors in title, but he could not of course speak as to these from his own knowledge. The Applicant also relied upon the fact that various new services were laid under the Disputed Land – and the Tarmaced Area generally – in connection with the construction of the side extension to 2 Clyde Villas. He also relies on the painting of white lines and signage on the Tarmaced Area, as described above, and the fact that he carried out re-surfacing work to the Tarmaced Area, including the Disputed Land, in 1982. The Applicant gave evidence before me, and was cross-examined by Counsel for the Respondent. He also called his neighbour, Mr Chapman of 1 Clyde Villas, to give evidence. He also relied on a number of written statements, of varying length, from the following: (1) Mr Hardman, who says that he carried out the re-surfacing work in 1982 and 2000; (2) Mr Boscoe, who carried out odd jobs for the Applicant from 2000 onwards; (3) Mr Hillson, a neighbour; and (4) Mr Heaney, an estate agent, who supports the Applicant’s claim to the Disputed Land so that he can effectively “police” the access to the Access Road.

 

The Respondent’s evidence

8. On the Respondent’s side, I heard evidence from Mr Michaelides, its Managing Director, who says that he has been familiar with the site generally, and the Disputed Land in particular, since 1984, when the Respondent (or, rather, its associated company) first took a lease of Cyma’s Premises. His evidence was as follows. He was involved with garage since 1981, when it was known as Hallmark Cars and operated by a Mr Maroni. Cyma supplied fuel to the garage. His associated company bought a lease of Cyma’s Premises in 1984, and his brother actually lived in a flat at the rear of Cyma’s Building from that time. Mr Michaelides lived in Barnet between 1981 and 1986, and visited the site regularly. From 1995 onwards he has had an office in Cyma’s Building, which he used every working day. The office was on the corner of the building, with a view of the Tarmaced Area and Disputed Land. He explained that when the garage was in operation – for the period up to 1990, when Pizza Express took over part of Cyma’s Building – the northern wing was used as a workshop and entrance to the car showroom. Subsequently, the area has been used to house rubbish bins, and as a storeroom. There are three arched doorways into this wing, accessed from the Tarmaced Area, between the “peninsular” and the Access Road. According to him, the whole of the Tarmaced Area, including when necessary the Disputed Land, was part of the access into the workshops and showroom, and the Access Road itself. He said that the whole of the area was and is required to allow a sufficient turning circle for larger vehicles. He challenged the Applicant’s evidence that he had tarmaced the area in 1982, pointing out that the entire layout of the frontage had changed in 1987, with the construction of the enlarged pavement and “peninsular” and the landscaping of the area. He also challenged the evidence that the Tarmaced Area has been re-laid in 2000, pointing to the poor condition of the surface of the Disputed Land. He did not accept that skips and building materials were permanently in position over the period alleged by the Applicant, although he agreed that there was some use of the Disputed Land for these purposes. Overall, his evidence was that for most of the time the Tarmaced Area, and the Disputed Land in particular, was available for use by persons accessing the garage premises and those using the Access Road. The area was not, according to him, ever exclusively possessed by the Applicant, although it may have been used out of working hours when there was no need for access to the entrances into Cyma’s Building. He was pressed by the Applicant in cross-examination as to why he did not object to the Applicant’s use of the tarmaced area – his reply was that he did not go out of his way to antagonise his neighbours.

 

Findings

9. I find that there has been some use of the Disputed Land by the Applicant, but not to the extent that he has alleged. The Applicant is quite a forceful individual, and I think he may have convinced himself that he made much more use of the Disputed Land than he has in fact done, and has thus in his evidence perhaps unwittingly exaggerated that use. By contrast, I think that Mr Michaelides was broadly accurate in his recollection of the nature and extent of the Applicant’s use of the land, and was the more reliable witness.

 

10. Specifically, I find that the Applicant did pay for the surfacing of at least some part of the Tarmaced Area (being public highway in part) including the Disputed Land, in or about 2000. I accept his evidence on this point, supported as it is by Mr Chapman. However, I do not accept that he asphalted the land in 1981 or 1987 as he has variously suggested. It is clear that there was substantial re-alignment of the area to the front of Nos 1 and 2 Clyde Villas in or about 1987, and if there was any re-surfacing of the roadway at that time it is very likely that this was carried out, and paid for, by the Hadley Paving Fund. I have already drawn attention to the plan supplied by the Applicant (page 28 of the Bundle) showing his alleged use of the Tarmaced Area between 1981 and 2000. It is evident that he claims to have stationed a skip and/or lorry on what is acknowledged to be part of the public highway, together with sand and bricks and other items. He also claims to have stationed a concrete mixer at the northern corner of the Disputed Land. He may well have done so from time to time. However, it is in my judgment clear that the works came to an end in 1992 at the latest. Furthermore, they cannot have started immediately upon the Applicant’s purchase of 2 Clyde Villas in 1981, but must have awaited the grant of planning permission. To this extent the plan at page 28 is misleading, doubtless unintentionally, to the extent that it suggests that the area was occupied on a continuous basis from 1981 to 2000. I do not therefore accept that the Applicant has made continuous use of the Disputed Area for any consecutive period of twelve years. There may well have been temporary use (in connection with the building works) of some parts of the Disputed Land over a period of some years – perhaps between the mid to late 1980s (when the works commenced) and 1992 – but that is the extent of that activity. I accept that services were laid under the Disputed Land, as indeed they were under the public highway. I accept that the Applicant has from time to time parked a car on the Disputed Land, and on the public highway itself. On the other hand, the Applicant has never enclosed the Disputed Land, and accepts that he has never used or obstructed that part of the Disputed Land which is immediately adjacent to the Access Road.

 

The law of adverse possession

11. In the present case, the Disputed Land is unregistered, and accordingly the Applicant must show a continuous period of twelve years’ adverse possession expiring before the date of the application. The underlying requirements of (a) factual possession, and (b) an intention to possess, have been definitively explained by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1AC 419, which Mr Dymond cited on behalf of the Respondent. Mr Dymond submitted that the Applicant had failed to prove either requirement. He says that the Applicant’s acceptance that at least part of the Disputed Land is subject to vehicular rights of way is fatal to the claim as a whole. He submits that there is no obvious boundary or demarcation between the area subject to the easement, and the area said not to be, and it leads to the conclusion that the Applicant is unable to establish factual possession, let alone exclusive possession, of any part of the Disputed Area. I agree.

 

12. Mr Dymond also relies on the decision of the Court of Appeal in Simpson v Fergus (2000) 79 P & CR 393 the facts of which, he submits, are “strikingly similar” to the facts in this case. These were summarised by the Circuit Judge as follows:

“Nobody, it would seem, has paper title to the lane. That notwithstanding Mr Humphries was completely unabashed and embarked upon a series of audacious acts of annexation. Within a year of the purchase of his property he caused to be marked out on the road with reflective strips the four parking spaces on the land now edged red. He erected notices saying that these spaces were for Blue Haze only. He put up a notice saying “Private No Unauthorised Parking”. He chased off aanybody who had the temerity to park in the lane, either by verbally telling them to go if he caught them in the act, or by sticking a notice on their cars if he did not”

The Judge also recorded that Mr Humphries kept the parking spaces swept, and from time to time cut branches which might otherwise have hung over it. On the basis of these activities, the District Judge had decided in favour of the squatter, namely that adverse possession was proved. The Court of Appeal took a different view, as the following passage (at 402-3) in the judgment of Robert Walker L.J (as he then was) makes clear:

“Possession is a legal concept which depends on the performance of overt acts, and not on intention (although intention is no doubt a necessary ingredient in the concept of adverse possession. It may or may not be sufficient in international law to annex an uninhabited and uninhabitable rock by planting a flag on it……..But to establish exclusive possession under English law requires much more than a declaration of intention, however plain that declaration is. Actual occupation and enclosure by fencing is the clearest, and perhaps the most classic, way of establishing exclusive possession (although even enclosure is not invariably enough; see Marsden v Miller (1992) 64 P & CR 239). It may well not have been feasible for Mrs Simpson (or for Mr Humphreys before her) to have fenced off the parking spaces, although conceivably it might have been possible to do so with some form of movable barrier, movable posts, chain or whatever. Had either Mr Humphries or Mrs Simpson attempted to do that, matters might have come to a head much sooner. But to my mind , it is not correct, and would indeed be a serious heresy, to say that because it is difficult or even impossible actually to take physical possession of part of a reasonably busy service road, that simply for that reason some lower test should be imposed in deciding the issue of adverse possession.”

 

Conclusions

13. Having regard to the evidence I have heard, and applying the relevant principles of law, I have come to the conclusion that the Applicant is unable to establish that he has acquired a title to the Disputed Land by virtue of adverse possession. The activities that he relies on are temporary in nature, are equivocal in their effect, and fall far short of amounting to factual possession of all or part of the Disputed Land for the period of twelve years or, indeed, of any period. A physical inspection of the land, coupled with the evidence of Mr Michaelides, leads to the inescapable conclusion that the entire area of the Disputed Land is required to enable reasonable and safe enjoyment of the Access Road, and to a lesser extent, Cyma’s Building, by those who are entitled to use it. Any vehicle larger than a normal car, such as a van or lorry – physically capable of being driven along the Access Road – would need a larger turning radius than is allowed if part of the Disputed Land is blocked by a vehicle or other future obstruction. This fact strongly reinforces my conclusion that the Applicant’s use of the Disputed Land has been seriously exaggerated. If he had in effect sequestered any part of the Disputed Land, over long periods during the working day, there would have been a serious likelihood of conflict with the bona fide users of the garage and Access Road, which does not seem to have occurred. Mr Michaelides inferred that much of the parking of vehicles, as relied on by the Applicant, occurred outside normal business hours, and that may well be correct. Indeed, the Applicant is probably fortunate not to have been taken to task by the Highways Authority for his unrestricted use of the public highway for parking, storage of building materials and so forth.

 

14. I shall therefore direct the Chief Land Registrar to cancel the Applicant’s application dated 19^th February 2008 to be registered as proprietor of the Disputed Land. I am also minded to award the Respondent its costs of the adjudication, to be assessed on the standard basis. However, I will allow the Applicant to address me, in writing, on the issue of costs, any such submission to be received no later than 14 days after the date of this Decision.

 

Dated this 14^th day of July 2009

 

 

 

 

 

 

By Order of The Adjudicator to HM Land Registry