[2025] EWHC 1955 (KB)

The Judge was wrong to find that there was a claim for adverse possession and in granting adverse possession.

The Written Submissions deal with this at paragraph 11. The claim for adverse possession turned first upon the factual finding as to when the Wall was built, not least because this was said by the Club to be the same date that they installed the concrete slab and air-condition units, and it was these units which constituted the substantive use of the land, according to the Club. The Applicant could not give direct evidence of these matters as he had no personal knowledge.

The Judge gave a clear reason for preferring the witness testimony of the Respondents, supported by a contemporaneous planning application, that the Wall was constructed in around 1991, at the same time that the air-conditioning units were installed, rather than in or around 2008. The documentary evidence showed the following plan attached to planning permission application dated 12 March 1991, and approved 20 May 1991:

I note that, within the trial bundle, there exists a chain of correspondence between Mr Askan and an official at Denbighshire County Council in which, for obvious forensic reasons in the context of the case, Mr Askan sought a copy of any planning applications which may relate to the construction of the Wall in either 1991 or 2008. Contrary to Mr Askan’s case, that documentation clearly supports that permission to construct the Wall was sought when the witnesses say it was built, in 1991. The words ‘New wall’ are accompanied by an arrow pointing to the wall running between the Club and the wall which runs immediately to the west of the Path, demarking the edge of Mr Askan’s registered land. It is obviously the Wall. I note from my review of the trial documents that there is a photocopy of a document which appears to form part of the 1997 planning application which states in handwriting ‘withdrawn’ against the 1991 application; but there are no documents suggesting withdrawal, and there are officially stamped documents clearly stating that the application was granted, and the same is recorded in the schedule of planning applications retained by the Council and provided to Mr Askan by way of email exchange referred to above.

The principal evidence relied upon by the Applicant to contradict the direct recollection of two witnesses and the contemporaneous planning document is the fact that those compiling the Ordnance Survey (‘OS’) did not include the wall on OS maps until around 2008. He also relies upon the same 1997 planning application considered above which does not show the Wall. Although Mr Askan also said that the Land Registry supported his position, the Land Registry communication he relies upon reveals only that the Land Registry, to the extent it updates title plans at any time, does so based upon the up to date OS maps. The Land Registry therefore noted nothing more than the same (undisputed) fact that the first time the Wall appeared on an OS map was around 2008. It plainly provided no additional or independent verification of the timing of the construction of the Wall. The Wall is a minor physical feature, almost tucked away from the High Street; it is not particularly remarkable that it would not be picked up by the OS sooner than it was.

The Judge concluded that the Wall’s first appearance on an OS map did not mean that it was not in situ before then. There was certainly no evidence that the Wall was built without planning permission in 2008, or why (given a history of numerous planning permission applications over the years, including one which was granted in 1991 specifically in respect of the Wall) the Club would have wished to do so: indeed, if the connections between the Club and the Council which Mr Askan infers did exist, the Club would have had no reason not to apply for planning permission in 2008 if that is when they built the Wall. Notwithstanding the oddity of the 1997 planning application not showing the wall, the Judge was plainly entitled to find the granted 1991 planning application ‘highly persuasive’ when finding, as a fact, that the Club’s witnesses were correct that the Wall was built in around 1991.

Second, the Applicant suggests that Mr Williams stated in evidence that he had no use of the land, implying that there was no intention to possess. Mr Askan’s Written Submissions described this as an ‘explicit disinterest’, referring to pages 61-62 of the transcript for Day 2 of the trial. As with other submissions, the transcript simply does not support the Applicant’s submission in any way. Mr Williams said in evidence, explicitly, that the purpose for using the land was the location of the air- conditioning units, anchored to a concrete base on the land. Mr Hunter said precisely the same thing in his evidence. The Applicant appeared to consider that it was an answer in law to the question of adverse possession that the Club could have installed the air-conditioning units on the Clubs roof. This is not an answer. The Judge did not err in fact; his findings reflected the evidence from both Mr Williams and Mr Hunter that the Club had, since 1991, used the area of land to locate and maintain their air-conditioning units.

This is not an arguable ground of appeal.