[2024] UKUT 14 (LC)

In considering Ground 3 I am proceeding on the hypothesis, contrary to my decision on Ground 1, that Zarb is not binding authority on the correct identification of the ten year period in paragraph 5(4)(c). I am proceeding on the hypothesis that the identification of this period is a question of construction of paragraph 5(4)(c), in respect of which Zarb is an authority, but not a binding authority. I am also proceeding on the hypothesis, which is subject to my views on Ground 2, that the position was not one where the Judge should have followed Zarb on the construction question, even if Zarb did not constitute binding authority.

The question raised by Ground 3 is a question of statutory construction. In terms of the principles which should guide me in this exercise, I refer to the judgment of Lord Hodge DPSC in R (O) v Secretary of State for the Home Department: R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3 [2023] AC 255.

In his judgment, with which Lord Briggs, Lord Stephens and Lady Rose JJSC agreed, Lord Hodge DPSC addressed the process of statutory interpretation. Lord Hodge explained this statutory process in the following terms, at [29]:

“29

The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.” (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”

So far as the use of external aids to interpretation were concerned, Lord Hodge identified their role as a limited one. As he explained at [30]:

“30

External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.”

Lord Hodge concluded his explanation of the process of statutory interpretation in the following terms, at [31]:

“31

Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme [2001] 2 AC 349, 396, in an important passage stated:

“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . .Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

Lord Hodge then went on, at [32], to refer to the use of ministerial statements as an aid to statutory construction. As he pointed out, this is only permissible where the three conditions in Pepper v Hart [1993] AC 593 (at page 640) are satisfied. In the present case there was no attempt to rely on ministerial statements.

Both Ms Tozer and Mr Goldberg referred me to Law Commission reports concerned with the 2002 Act. Both counsel referred me to the Law Commission Report No. 271 (Land Registration for the Twenty-First Century – A Conveyancing Revolution), published in 2001 as a joint publication by the Law Commission and the Land Registry. The Report contains a commentary accompanying what was then the Land Registration Bill, which would become the 2002 Act. Mr Goldberg also referred me to the Law Commission Report No. 380 (Updating the Land Registration Act 2002), published in 2018, which contains commentary on the 2002 Act, and specifically, at 17.47 and 17.48, a discussion of the identification of the ten year period in paragraph 5(4)(c) which favours the Respondents’ argument that the period of ten years is any period of ten years within the relevant period of adverse possession.

So far as the first of these Reports is concerned, I accept the argument put by Ms Tozer that Report No. 271 is useful in identifying the mischief against which the 2002 Act was intended to be directed, and specifically in identifying what the legislature was seeking to achieve in the reform of the law of adverse possession in relation to registered land. The assistance I derive from this Report is however very limited, and very much in the background of the statutory construction exercise to be carried out in the present case. It is clear that the Report is only admissible as an aid to construction in the identification of the purpose of the adverse possession provisions in the 2002 Act and in the identification of the mischief at which these provisions were aimed; see Lord Hodge in R (O) v Secretary of State for Home Department and see Black-Clawson International Ltd v Papierwerke Waldholf-Aschaffenburg [1975] AC 591 at 614F, 629D and 637E. Beyond this, the commentary in the Report seems to me to be at too high a level of generality to be of any real assistance in the resolution of the specific construction issue presented by paragraph 5(4)(c).

So far as Report No. 380 is concerned, it was not clear to me that it was admissible at all as an aid to construction. I say this for two reasons. First, the Report postdates the 2002 Act. Accordingly, I am not clear what value, if any, it has as a guide to the purpose of adverse possession reforms made by the 2002 Act or the mischief at which those reforms were aimed. Second, Mr Goldberg sought to rely on the Report for the views expressed on the meaning of paragraph 5(4)(c). As I read Black-Clawson and the extracts quoted above from the judgment of Lord Hodge in R (O) v Secretary of State for Home Department, Law Commission reports are not admissible as a guide to the meaning of particular phrases in a Bill or an Act, either as statements of the subjective intention of the Law Commission in the relevant phrase or as a commentary on the meaning of the relevant phrase.

Ms Tozer also referred me to various extracts from the commentary in Volume 96 of Halsbury’s Laws of England (Fifth Edition), which set out various rules or principles of statutory construction. These, so far as relevant, are best addressed in the course of the construction exercise itself, to which I now turn.

For ease of reference only, I repeat sub-paragraph (c) of paragraph 5(4), while keeping firmly in mind that sub-paragraph (c) must be construed in its statutory context and not in isolation:

“(c)

for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”

As a matter of language this wording seems to me capable of each of the two constructions contended for by the parties. The real question seems to me to be what, in this sub-paragraph, the words “ending on the date of the application” refer to? Do they refer to the relevant period of adverse possession ending on the date of the relevant application, so that the period of ten years during which the reasonable belief in ownership must be demonstrated can be any period of ten years within “the relevant period of adverse possession ending on the date of the application”? Or do they refer directly to the period of ten years during which the reasonable belief in ownership must be demonstrated, so that this period must be the period of ten years “ending on the date of the application”? I accept that both of these readings are possible readings of the sub-paragraph.

A point which has some relevance in this context is that paragraph 1(1) sets the period of adverse possession which must be demonstrated before an application for registration can be made. It is clear that this period of adverse possession must be for the period of ten years ending on the date of the application. The period of adverse possession may be longer than ten years, but it must endure, without interruption, during the period of ten years ending on the date of the relevant application. Given this position, one might expect the use of a similar expression in paragraph 5(4)(c) to have the same meaning, as Mr Goldberg argued. On this basis, the period of adverse possession ending on the date of the application, referred to in sub-paragraph (c), is referring to the same period of adverse possession ending on the date of the application which is referred to in paragraph 1(1). In each case the period of adverse possession must be at least ten years, although it may be longer, and must end on the date of the application.

Seen in this light the opening words of paragraph 5(4)(c), namely “for at least ten years”, make sense. The period of at least ten years during which the reasonable belief must exist is a period of at least ten years “of”, (ie. falling within) the period of adverse possession ending on the date of the application. The minimum duration of this period of adverse possession is prescribed by paragraph 1(1), while the description of the period of adverse possession as ending on the date of the application is repeated from paragraph 1(1). This construction, which permits the period of ten years during which the reasonable belief must exist to be any period of ten years within the period of adverse possession, seems to me to fit better with the language and scheme of Schedule 6 than the alternative of requiring the ten year period of reasonable belief to end on the date of the relevant application.

Ms Tozer argued that this reading of sub-paragraph (c) infringed the “linguistic canon” that requires every word of a statute to be given effect; see Halsbury’s Laws, Volume 96, at paragraph 808. The relevant part of the commentary reads as follows:

“It is one of the linguistic canons applicable to the construction of legislation that an Act is to be read as a whole, so that an enactment within it is to be treated not as standing alone but as falling to be interpreted in its context as part of the Act. The essence of construction as a whole is that it enables the interpreter to perceive that a proposition in one part of the Act is by implication modified by another provision elsewhere in the act. Construction as a whole requires that, unless the contrary appears, every word in the Act should be given a meaning, the same word should be given the same meaning, and different words should be given different meanings.”

I do not accept that the reading of paragraph 5(4)(c) which I have set out above infringes the linguistic canon explained in this commentary. Treating the period of adverse possession ending on the date of the application as being a reference to the same period of adverse possession in both paragraph 1(1) and paragraph 5(4)(c) seems to me to be consistent with the commentary in Halsbury’s Laws. I can see that the words “ending on the date of the application” might, on the construction which I have set out above, have been omitted, but I do not think that this point carries weight in the construction. If the same period of adverse possession is being referred to, it makes sense to maintain the reference to “ending on the date of the application” in both references.

Pausing at this point, and concentrating solely upon the language of paragraph 5(4)(c), in its statutory context, the construction which I prefer is that the period of ten years during which the reasonable belief must exist can be any period of ten years within the relevant period of adverse possession.

What however seems to me to settle the construction issue in favour of the linguistic construction which I prefer is consideration of the consequences, for the operation of the adverse possession regime in Schedule 6, if the period of ten years during which the reasonable belief must exist is and can only be the period of ten years ending on the date of the relevant application for registration. Those consequences seem to me to create such serious difficulties for the operation of Schedule 6 that it is impossible to accept that Parliament intended those consequences.

On its face, the requirement for the reasonable belief to continue for the period of ten years ending on the date of the relevant application would appear to render the ability to make an application under paragraph 1 largely a dead letter. A person will, it is reasonable to assume, make an application for registration as owner of land which has been in their adverse possession at some time after the point when they realise that they do not have the registered title to the relevant land. As from that point of realisation, they are unlikely to be able to demonstrate that they still have the reasonable belief in their ownership of the relevant land. If however the reasonable belief must continue for the period of ten years ending “on” the date of the application, the reasonable belief must exist on the day when the application is made. On this hypothesis however, and for the reason which I have just given, it seems inevitable that the person in adverse possession will not be able to demonstrate the required reasonable belief when the application is made. The overall result is an absurd one. It is impossible to accept that Parliament intended the Reasonable Belief Condition to operate in this fashion.

The answer to this has been that the reference in sub-paragraph (c) to the period of ten years ending on the date of the application does not mean quite what it says. There is in fact a period of grace between the coming to an end of the period of reasonable belief and the making of the application for registration. A delay in making the application, beyond the point where the reasonable belief ceases to exist, does not disqualify the person in adverse possession from satisfying the Reasonable Belief Condition, provided that the person in adverse possession acts promptly in making the application for registration.

I have serious difficulties in seeing how this is a satisfactory answer to the absurdity which I have identified above. I say this for two reasons.

First, I do not see how the language of paragraph 5(4)(c) lends itself to this construction. On this construction, the period of ten years during which the reasonable belief must exist is the period of ten years “ending on the date of the application”. There is no reference to any period of grace between the date when the period of reasonable belief comes to an end and the date of the application. I appreciate that, in Zarb, Arden LJ appeared to have in mind that such a period of grace is permissible. This is consistent with Arden LJ’s reference to the need to act promptly in her judgment in Zarb at [55]. In this context however I note that Arden LJ, in her analysis of paragraph 5(4) at [17], referred to the period of ten years, during which the reasonable belief must exist, as “the last ten years of his possession prior to the application for registration”. This however is not the wording of sub-paragraph (c). There is no reference to “prior”. On the Appellant’s construction of sub-paragraph (c), the period of ten years during which the reasonable belief must exist ends on, not prior to the date on which the application is made.

Ms Tozer sought to justify the existence of this period of grace on the basis that the de minimis principle applies. The full Latin tag is “de minimis non curat lex”, which means that the law does not concern itself with trifling matters; see Halsbury’s Laws, Volume 96, at paragraph 759. This however is a principle which applies to trifling matters. As the editors of Halsbury’s Laws explain, by way of example of the operation of this principle, the principle underlies the rule that the law generally disregards fractions of a day. I do not see that this principle can be invoked to mean that the reference in sub-paragraph (c) to the period of ten years ending on the date of the relevant application can be read as meaning that date or a date falling days, or weeks or months before that date. Indeed, in this context I have not been shown any authority for the proposition that the requirement for at least ten years of adverse possession ending on the date of the relevant application for registration, as referred to in paragraph 1(1), is similarly flexible, so that the period of adverse possession can end before the date of the application. To the contrary, it seems clear to me that Parliament intended, in paragraph 1(1), to impose a strict requirement that the period of adverse possession should continue for at least ten years, and should run up to the date of the application for registration. Indeed, I note that paragraph 1(2) makes specific provision for an application for registration to be made by a person whose adverse possession has been brought to an end by an earlier eviction, provided that the conditions in paragraph 1(2), which include a time limit of six months from the date of eviction for the making of the application, are satisfied.

Second, and if it is assumed that there is a period of grace, the obvious question which arises is how its length is to be determined. Is it limited to a period of days, or weeks, or months? I understood Ms Tozer’s answer to this point to be that the period of grace is intended to operate where the person in adverse possession makes the application promptly. This however only serves to increase the uncertainty. What counts as prompt action? Ms Tozer referred me to CPR 13.3, which deals with applications to set aside or vary a default judgment. By CPR 13.3(2) one of the matters to which the court must have regard, in considering such an application, is whether the person seeking to set aside the judgment acted promptly. I understood Ms Tozer’s point to be that courts do have to determine, and are perfectly well able to determine what constitutes prompt action. I accept this point, but I do not consider it a satisfactory answer to the problem of uncertainty created by this reading of paragraph 5(4)(c). It is one thing for a provision, particularly a case management provision, to make express reference to the need to consider a factor of this kind. It is, in my view, quite another to read this kind of uncertainty into the operation of the Reasonable Belief Condition.

The problems with reading a period of grace into paragraph 5(4)(c), conditional upon prompt action, do not end there. In the postscript to her judgment in Zarb, Arden LJ recited all the familiar evils of boundary disputes, on which many other courts have also commented. At [59] Arden LJ stressed the importance, if a dispute emerges, of making every effort to resolve the dispute without litigation. Indeed, both before and after Zarb, the courts have continued to emphasize the importance of alternative dispute resolution, as a means of avoiding the cost, time, distress and entrenched positions of litigation. In the context of boundary disputes Mr Goldberg drew my attention to the decision of the Court of Appeal in Wilkinson v Farmer [2010] EWCA Civ 1148, which involved a right of way dispute between neighbours. In his judgment in that case, at [4], Mummery LJ, made the following notable statement on the importance of keeping neighbour disputes out of court:

“4.

The whole exercise has been an uncomfortable experience of unsatisfactory aspects of the conduct and cost of neighbour disputes in the courts. Everybody agrees that, if at all possible, disagreements between neighbours about rights of way, boundaries or whatever should be settled without ever going near a court. In my view, professional advisers have a duty to warn their clients at an early stage about the downside of neighbour litigation, even for a successful party. If the case goes to court there is, as this case shows, some uncertainty about the ultimate outcome. The case does not always end with the trial. Appeals are possible. What is certain is that, at the end of the day, one of the parties will lose and will usually finish up fixed with an order to pay very considerable legal costs. That is not good for the losing party or for the prospect of harmonious relations between neighbours who continue to live next door to each other after the case is over. The cost and stress of a court case will often result in the further deterioration of already damaged relationships. The parties might be horrified to discover that the litigation has blighted their properties, as well as their lives.”

It is hard to see how the important and laudable objective of parties avoiding neighbour disputes going to court is advanced or respected, if the correct construction of paragraph 5(4)(c) is that the person in adverse possession must make the application for registration promptly after the period of their reasonable belief in their ownership of the relevant land has come to an end. As the case law on the Reasonable Belief Condition demonstrates, the point at which the period of reasonable belief is most likely to come to an end, even if this is not inevitable, is the point at which the registered proprietor challenges the person in adverse possession. Putting the matter another way, the point at which the period of reasonable belief is most likely to come to an end, even if this is not inevitable, is the point at which a boundary dispute arises with the registered proprietor of the land in dispute. If the Appellant is right in his construction of sub-paragraph (c), the person in adverse possession must then move promptly to the making of the application for registration. Any such person would be ill-advised to engage in pre-litigation negotiations, because of the risk of being found not to have acted promptly.

This strikes me as a most unfortunate situation, which runs counter to the stress which has repeatedly been laid by the courts on the importance of pre-litigation negotiation and alternative dispute resolution. The fact that this situation arises in the context of what are, effectively, boundary disputes, only serves to highlight how undesirable this situation is.

Ms Tozer made the point that there is nothing to prevent the parties negotiating after the application for registration has been made. She pointed out that the Land Registry procedure allows for negotiation to take place. These are fair points, but I do not think that they deal satisfactorily with the problem of the person in adverse possession being effectively forced into making an application for registration once the relevant dispute breaks out. It seems to me that there is a significant difference between (i) conducting negotiations over a boundary dispute at the point where neither party has taken any formal action, beyond possibly instructing solicitors, and (ii) conducting negotiations after the formal action of an application for registration has been made. Once the application has been made, the parties are bound into a form of litigation. A dispute is generally easier to settle before the parties have got onto the escalator of litigation or, to put the matter more crudely, before the ante has been upped.

In addition to this, and given that no sensible person wishes to engage in a boundary dispute, one might think it unfair that a person in adverse possession, and in a position to demonstrate 10 years of reasonable belief in their ownership of the relevant land, should be at risk of losing their right to make an application for registration as a result of a natural reluctance, particularly in the early stages of a dispute, to move to the commencement of legal proceedings. One could, I suppose, read a further proviso into the period of grace which is assumed on the Appellant’s construction of paragraph 5(4)(c), to the effect that there is no failure to act promptly where the parties engage in pre-litigation negotiations. This however only serves to introduce yet more uncertainty and difficulty into the workings of the Reasonable Belief Condition.

All of these problems with reading a period of grace into paragraph 5(4)(c) seem to me to point clearly to the conclusion that Parliament cannot have intended the Reasonable Belief Condition to operate in this way. I note that the Judge came to much the same conclusion at Paragraph 53. In my view he was right to do so.

For completeness I should mention that, in the context of Ground 3, Ms Tozer made the point that it was open to the registered proprietor of land to grant a licence to a person in adverse possession of that land, thereby interrupting the period of adverse possession. I understood Ms Tozer’s point to be that there was nothing objectionable either in a person in adverse possession being required to act promptly, following the period of their reasonable belief coming to an end, or in assuming a short period of grace before the application had to be made, given that there were other circumstances in which prompt action by the person in adverse possession would be required. This in turn sparked a debate between Ms Tozer and Mr Goldberg on whether a registered proprietor could unilaterally end a period of adverse possession by the unilateral grant of a permission or licence to occupy to the person in adverse possession of the relevant land. In the context of this debate Ms Tozer drew my attention to the decision of the Court of Appeal in BP Properties Ltd v Buckler (1988) 55 P. & C.R. The case was concerned with a claim for possession of a farmhouse and garden by BP Properties Ltd, the plaintiff in the action. Mr Buckler, the defendant to the action and the appellant in the Court of Appeal, defended the claim for possession. The appellant’s case was that he was entitled to be registered as proprietor of the farmhouse and garden on the basis of adverse possession; being the adverse possession of himself and his late parents. The claim to title by adverse possession failed. The Court of Appeal decided that letters written some years previously to the appellant’s mother, granting her permission to occupy the farmhouse and garden, had been sufficient, as from the grant of this permission, to prevent this occupation constituting adverse possession, notwithstanding that the appellant’s mother had never expressly accepted or rejected the terms of these letters.

I did not find this particular excursion into the law of adverse possession helpful to my decision on Ground 3. It seems to me that the particular issue considered in BP Properties is too far removed from the matters which I have to consider to be of any assistance, even by way of analogy. In addition to this, it is clear that BP Properties is not authority for the proposition that a registered proprietor can, in any case, put an end to adverse possession by the unilateral grant of a permission or licence to occupy the relevant land. In his judgment (at page 346 of the report) Dillon LJ expressly left open the question of whether the result in the case would have been different if the appellant’s mother had, on receipt of the letters, responded by saying that she did not accept the terms of the letters and claimed already to be the owner of the farmhouse and garden. I was not shown any further authority on this particular issue, but it seems to me clear, at least, that BP Properties does not provide clear and unqualified authority to support the point which Ms Tozer was seeking to make.

I was also shown two decisions of the FTT on the issue of the construction of paragraph 5(4)(c). The first was the decision in Crook, which I have already mentioned. In Crook the FTT took the view that the required period of reasonable belief could be any period of ten years within the relevant period of adverse possession; see paragraphs 44-65 of the judgment. The second decision was the decision of the FTT in Hepworth v Powell [2018] UKFTT 0058 (PC), where the FTT preferred the construction of sub-paragraph (c) contended for by the Appellant; namely that the reasonable belief must exist for the period of ten years ending on the date of the relevant application, subject to a period of grace provided that the person in adverse possession acts promptly; see paragraphs 67-73 of the decision in Hepworth. These decisions demonstrate that the question of construction is not settled at FTT level although, for what it is worth, I note that the judgment in Crook refers to other decisions of the FTT and a Deputy Adjudicator which support the Respondents’ construction of sub-paragraph (c). These decisions are persuasive only, and I have not found it necessary to place any reliance upon them in reaching my own conclusions on the construction of sub-paragraph (c).

Returning to the wider points made by Ms Tozer on the statutory purposes behind the provisions of Schedule 6, I have already made reference to the Law Commission Report No. 271. I cannot see that the construction of paragraph 5(4)(c) which I prefer runs counter to any of the purposes identified in the Law Commission Report. By contrast I do not think that the new regime for the operation of adverse possession in relation to registered land, as introduced by the 2002 Act, was intended to produce consequences of the kind which result from the Appellant’s construction of sub-paragraph (c).

Ms Tozer also referred me to the human rights position. She pointed out that the 2002 Act must be interpreted so as to give effect to any human rights which might be engaged, by virtue of Section 3 of the Human Rights Act 1998. As such, so she contended, the Judge should have assumed that Parliament was intending to minimise interference with the right of the registered proprietor to the protection of their property pursuant to Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998. If the Judge had done this, so Ms Tozer’s argument ran, he should have concluded that sub-paragraph (c) should be given a restricted reading, so that the reasonable belief had to exist for the period of ten years ending on the date of the application for registration, subject to the grace period referred to by Ms Tozer.

It is of course the case that the 2002 Act must be read in a manner compatible with human rights. I also accept that the impact of human rights was significant, in the framing of the new adverse possession regime in the 2002 Act. In this context it is convenient to repeat what Arden LJ said in Zarb, at [17] (but without my previous underlining):

“17

Paragraph 5(4) sets out three sub-conditions. The relevant sub-condition on this appeal is sub-paragraph (c). This sub-condition is new. The adverse possessor has to show that he made a reasonable mistake in believing that he was the owner of the land of which possession is claimed. This seems to be a fair requirement for the law to impose before the paper title owner is deprived of his land, which may be very substantial in area and value, unlike the comparatively small area in this case. It reflects the fact that, by virtue of article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998, a fair balance must be shown to justify an interference by the state with a person’s possessions. The 2002 Act was no doubt intended to be Convention-compliant in this respect. But the necessary effect of the way that paragraph 5(4) is expressed is to make the unreasonable belief of the adverse possessor in the last ten years of his possession prior to the application for registration a potentially disqualifying factor even though his belief started out as reasonable but became unreasonable as a result of circumstances after the completion by him and/or his predecessor in title of a ten-year period of possession.The consequence of that is that the paper title owner will have a last chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years. The moral is that, as soon as the adverse possessor learns facts which might make his belief in his own ownership unreasonable, he should take steps to secure registration as proprietor.”

What I do not accept is that the Respondents’ construction of sub-paragraph (c) does anything to infringe the human rights (specifically the property rights) of a registered proprietor of land. I cannot see that this construction upsets the balance between the rights of the person in adverse possession and the rights of the registered proprietor which is struck by the adverse possession regime in the 2002 Act. It seems to me that the requirement for a period of ten years of reasonable belief in their ownership of the relevant land, on the part of the person in adverse possession, remains “a fair requirement for the law to impose”, to use the language of Arden LJ, whether the period of ten years can be any period of ten years within the relevant period of adverse possession or only the period of ten years ending on the date of the application for registration. Put simply, I do not think that human rights provide the answer or assist in providing the answer to the question of construction raised by Ground 3.

Drawing together all of the above analysis my views on the issue of construction of paragraph 5(4)(c), for what they are worth and with due respect to the Court of Appeal in Zarb, can be summarised as follows:

If therefore Ground 3 had been a live ground of appeal, I would have dismissed the appeal on Ground 3.