[2025] EWHC 1955 (KB)

After introductory matters, identification of the issues and setting out that the burden of proof, to the civil standard, lay with the party seeking to prove its claim, the judgment set out a recitation of witness the documentary evidence.

Of Mr David Gwyn Williams, one of the trustees and Part 20 Claimants, the Judge said:

“I’m afraid that his evidence was generally very poor. He became aggress with [the Applicant] on several occasions and the Court had to intervene in order to regulate his behviour…

He was not challenged about his evidence that he built the wall [C-D] in or about 1991 and that the air conditioning units were installed at the same time, fixed on a concrete slab which he had also built.”

The Judge then turn to deal with registered ownership, or paper title, of all or part of the Contested Land.

First, the Judge dealt with the current Land Registry plans, as to which he concluded on the basis of the Land Registry entries as at 16 February 2023 , at [49], that the Club owns part of the contested land (i.e. the area in Red); that the Bank’s (i.e. the Applicant’s) boundary runs in a straight line along the wall from the High Street to the back of the property; and that there are two small pieces of land which remain unregistered. Set out below are extracts from the two plans of registered land under the two titles:

In this starting point the Judge was undoubtedly correct (although the Applicant generally refused to acknowledge the plainly identified limits of the registered title CYM496106, the subject of his own purchase, as excluding the Contested Land in submissions on the oral renewal).

At paragraph 50, the Judge recorded that the Applicant challenged the accuracy of the Land Registry Plans. Specifically, the Applicant relied upon a conveyance (relating to what became the Bank) dated 13 May 1908. The Club relied on a conveyance dated 13 October 1919. The Judge notes a conflict between the 1908 and the 1919 conveyancing plans. These can be seen as follows:

The Judge records that, further to a complaint from the Applicant, the Land Registry produced an overlay of these plans as follows:

The mauve area forms part of both conveyances. The Land Registry also recorded, as the Judge noted, ‘the ordnance survey plan to this area prior to our recent survey was extremely poor and the detail on the 1908 conveyance plan shows former features and buildings prior to the redevelopment of this area’. At [55] the Judge recorded that, in addition to the plan, the 1919 conveyance included a narrative description of the overall plot being 216 square yards, the total of the two plots shown on the land (see above: Lot 1 being 186 square yards, and Lot 1a being 30 square yards).

The Judge thereafter embarked on an analysis of the various conveyances which followed. This includes consideration of 2004 transfer between the trustees of the Club. The Judge found that the fact that the transfer was between different individuals stated to by Trustees of the Club was ‘unusual but not significant’. The Applicant contended that the form FR1 was missing from the documentation, and that the transfer was executed on a TR1 and, as such, was not a first registration. Notwithstanding the use of a TR1 form, the Judge found that on balance of probabilities the Club’s land was indeed registered for the first time in 2004, on the basis that (a) there was no Title number stated on the TR1 in 2004, (b) the list of documents submitted to the Land Registry did not include any previous registration document, and (c) the “Confirmation of Registration” from the Land Registry [at 61].

Next the Judge dealt with a discrepancy between the 2004 plan and an apparent boundary plan from1997 accompanying an application for planning permission. This plan did not show the area extending into the Contested Land shown on the 2004 Registration document. He rejected the Applicant’s argument that the 1997 plan was an accurate representation of the Club’s land, on the basis that it was not consistent with the pre-registration documents, dating back specifically to the description and plan within the 1919 conveyance (see [62]).

Finally, the Judge considered an argument that there exists an HM Land Registry Current Title plan marked ‘Internal use only’. The Applicant questioned why the Respondent would have been in possession of such a document. The Judge dismissed the argument as irrelevant, in circumstances where he found that the present registered title could be traced back to, and was consistent with, the 1919 conveyance [63]. The Judge was therefore satisfied on balance of probabilities that the Club could show title to the protruding area of land in dispute, and coloured red in the Plan [64].

The Judge then turned to the Applicant’s title (derived from the Bank’s title). He noted first that the boundary as registered clearly runs down the side of the former Bank, delineated by a wall running from B to E on the Plan [65]. Referring to the Land Registry’s adjudication of the Applicant’s complaint, the Judge noted that at first registration in 2020 received from HSBC confirmed the land to be registered was the land the Bank was in occupation of. He rejected as speculation the Applicant’s suggestion that the Bank voluntarily requested the exclusion of the Contest Land from the registration. There is certainly not documentary evidence of any such request.

The Judge finally considered the extent to which the two titles as in fact first registered – which do not overlap – are reconciled with the 1908 and 1919 conveyances, which do. He concluded on the basis of the evidence that this was as a result of an inaccurate plotting of the land in the 1908 conveyance. He relied upon both the plan within the 1919 conveyance together with the description of a total of 216 square yards, with the specifically identified 30-yard plot coinciding with the protruding area of red on the Plan. At [56] and [57], the Judge followed through the conveyances in 1947, 1949, and 1953, each of which refers to the 216 square yard plot, through to the final pre-registration conveyance dated 4 January 1997, transferring the land between trustees as existing trustees retired. The 1997 conveyance refers both back to the 1919 conveyance and the 216 square yards. On the basis of this careful tracing through of the documents, the Judge concluded that, on balance of probabilities, the Club holds registered title to the area identified as red on the Plan.

At [71] and following, the Judge dealt with the question of adverse possession. This analysis concerns the yellow and purple areas on the Plan, and, only in the alternative to his determination of paper title, the area marked red. Save in respect of the question of whether an unincorporated association could claim adverse possession, no Ground of Appeal challenges the legal exposition of the Judge at paragraphs [71] to [83].

At [85] the Judge found that the Applicant’s reliance upon Openshaw & Ors (Trustees of the East Lancashire Cricket Club v P&F Properties Ltd (a decision of the First Tier Tribunal, unreported) did not apply to pre-2002 Act claims and/or where the claim was brought properly by the Trustees of the Club. It is contended by the Applicant that this was an error of law, and is considered further below.

At [86] the Judge deals with a factual issue about when the Applicant says he first started padlocking the gate to the Path, but as the Judge noted (and not appealed), this is irrelevant to the Club’s claim for adverse possession as a matter of law.

The next relevant dispute related to the date upon which the Wall was built. The Applicant has no direct knowledge of this. He relied upon an Ordnance Survey map in around 2008 which is the first time the wall appears on such mapping. The Judge accepted the factual evidence from the Club (including the person who gave evidence that he built the wall) that it was built in 1991. The Judge found that this evidence was substantiated by a planning consent dated January 1991 referring to the building of a ‘New Wall’ and by evidence relating to the installation of the air-conditioning units at around the same time. The Judge said this was ‘highly persuasive’ (see [89]).

The Judge dealt with the factual questions of factual possession and the intention to possess the land. The principles of law stated by the Judge are not appealed. The Judge found at [94] that the building of the wall in 1991 was clearly an act which signified an intention to occupy and possess. This, he found, coincided with the installation of the concrete plinth and air-conditioning units. The Judge accepted the evidence of Mr Hunter, current Chairman of the Club and member for a continuous period of 20 years. Mr Hunter explained how he would maintain the air-conditioning and keep the area clear of weeds [95], with use being ‘regular but not frequent’, but ‘at least annually’. The Judge concluded that possession and usage had been clear from at least 1991 and that the Limitation period for challenging adverse possession had expired as early as 2003, and certainly many years before the Applicant purchased the Bank (at [101]). The claim for adverse possession in relation to yellow and purple, and insofar as necessary, red, areas succeeded.

The Applicant’s claim for adverse possession, since his purchase in 2019, failed given that the requisite passage of time had not passed [104].

The Judge’s findings on trespass followed his findings on title/adverse possession ([106] – [110]).

The Judge found that the Path had been used for more than 20 years prior to the Applicant’s purchase in 2019 and that the Club had a prescriptive right to use the path to access the Contested Land ([111]-[116]).

As to the Applicant’s claims, the Judge considered these inadequately pleaded [120]. The Data Protection breaches were dismissed, given the limit of CCTV and the fact that (following the foregoing findings), the Applicant was trespassing on the Club’s land. The harassment pleas were also dismissed, in that they also related back to the installation of CCTV over the Contested Land. This was found to be a reasonable course of conduct, given ownership of the Contested Land, and in light of the Applicant’s own activities.

The wholly unparticularised allegations of nuisance (but which broadly referred back to the use of CCTV over the Contested Land) were also dismissed.