[2025] UKUT 110 (LC)

The Judge had the advantage of a site visit, whereas I have only plans and photographs prepared for the proceedings, some of which were included in the Judge’s decision. It would be inappropriate for me to interfere with her application of the law to the facts unless I am satisfied that her assessment was clearly flawed. I am so satisfied.

It appears to me that the way in which the Judge arrived at her conclusion involved two errors. The first was that she divided the site into separate components which she considered independently of each other, without either considering the land of which Mr Kirkman claimed to have been in possession as a whole or considering the functional relationship between the areas she identified and how the degree of control demonstrated over each of them reflected on the control exercised over the remainder. The second was that the Judge did not consider how an area of land having the characteristics of the outside area and the Ashes Places would or could be used by an occupying owner.

The application for registration was made for the whole of the Disputed Land, comprising the Washhouse, the outside area and the Ashes Places. Additionally, Mr Kirkman was the registered proprietor of the Privy, of which he was in actual or constructive possession. The two buildings, the outside area lying between them and the Ashes Places lying behind the Privy formed a single geographical unit enclosed within continuous stone walls and capable of being accessed from the road at a single point. It is true that parts of the geographical unit comprised buildings and part was open, but the whole was a visual unity, almost fully enclosed, occupying a restricted space, isolated from other buildings; it was also a functional unity, having formerly met various needs of the occupants of the cottages and subsequently, since 1988, being used for storage.

When considering the issue of factual possession and control the Judge did not consider the whole of the land of which she found Mr Kirkland to have been in occupation for more than thirty years. Nor did she consider whether the control which satisfied her that there was factual possession of the Washhouse (whether alone or in conjunction with the possession of the Privy) was evidence of factual possession of the whole unit. That possibility is well covered by authority, including Powell v McFarlane from which the Judge for the most part took her summary of the legal principles. A little later in the passage dealing with factual possession from which the Judge quoted, at 471, Slade J observed:

“Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession.”

The authorities are fully discussed by S. Jourdan KC and Oliver Radley-Gardner KC in Adverse Possession, 2^nd edn., at paras 10.09 to 10.28, but it is sufficient to refer to the decision of Lindsay J in Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), at [63] where, after referring to many of them, he concluded:

“There is thus ample authority for the proposition that acts on one part of an area may be treated as constituting possession of the whole area provided that there is “such a common character of locality as would raise a reasonable inference” that, if a person were possessed of one part of it as owner then he would so possess the whole of it.”

Had the Judge considered whether the whole unit had the same common character and whether possession of the buildings could be treated as evidence of possession of the narrow area between them she would surely have concluded that it could. The Washhouse and the Privy were almost within touching distance of each other, and both were entered directly from the open area so that anyone using the Washhouse for storage would necessarily use the open area for access. Padlocking the door of the Washhouse was not only the exercise of control over the building itself, it also reflected on control of the areas immediately outside the building and within its restricted curtilage for the storage of the trailer and building materials. It was obvious not only that somebody had secured the Washhouse, but that somebody was using the rest of the land. The natural inference would be that the same person was doing both as was the case in fact.

The other matter which was not considered in the Judge’s decision was how the open area and the Ashes Places could in practice be used and how one would expect an occupying owner to deal with them in the circumstances. There is force in Mr Kirkman’s submission that the Judge had insufficient regard for the practicalities of possession of this small area. She attributed great weight to the fact that the open area was not fenced or gated across the single opening on to the road (“crucially, the land is not enclosed along its northern edge. Without enclosure, it is difficult to show an appropriate degree of physical control”). She did not fall into the error of regarding enclosure as essential, but in my judgment she overstated its importance in the circumstances of this case. If the characteristics of the land are such that an occupying owner would not have been expected to enclose it, the failure of the applicant to enclose it is unlikely to be crucial and may even simply be irrelevant.

The absence of a fence or gate might have been crucial to the issue of factual possession if the land in question had been open, or if enclosure would have served some practical purpose. But where the area is already enclosed around almost the whole of its boundary, and is as small as this area, some assessment of what would be practical is surely required. The opening on to the road was obviously intended as access, so a fence or wall would have been pointless. A gate across the whole width of the opening, all 2.58 metres of it, would have had to swing inwards to avoid blocking the footway and the road. If left open, such a gate would block the doorway to one or other of the buildings and would have interfered with the use of the open area for parking a vehicle, which is one use to which an occupying owner might have wished to put it. Allowing for the swing of a gate, the presence of the trailer at the end of the open area would have prevented the use of the remainder for any practical purpose.

I therefore disagree with the proposition that the absence of an enclosure across the entrance to the open area made it difficult to show the degree of physical control appropriate to the use an occupying owner would make of the land. In the context of Mr Kirkland’s possession and use of the two buildings which so closely hemmed in the open area, physical control was amply demonstrated by the permanent presence of the trailer for 14 years before the application, and by the storage of building materials for more than 30 years.

I do not regard the acts relied on by Mr Kirkland as equivocal. He used the group of buildings openly and as an occupying owner would. His intention to possess the whole can readily be inferred.