[2025] UKUT 110 (LC)

Having concisely stated the relevant legal principles, the Judge reviewed the evidence on which Mr Kirkman relied (his own and that of a Ms Birkett, who resides at No. 2 Well Heads) before making findings of fact.

In summary, the Judge accepted evidence that Mr Kirkman was given the key to a padlock which secured the Washhouse door when he purchased the Privy in 1988 and had used the same padlock to secure the door until 2024, when he replaced it. He was not aware that anyone else had a key. He had paid the electricity bill for the Washhouse since 1988 and used it to store building materials and equipment while he carried out works to No. 12 Well Heads between November 1988 and October 1990. He had continued to use the Disputed Land for storage since completing work on his house in 1990. He stored concrete blocks and wall stone on the Ashes Places since at least 1990 and had removed a number of them in five or six carloads in 2019. Since 2007 he had permanently parked a trailer between the two buildings. He had previously cut down brambles which grew between the buildings and prevented access to the Privy (which did not have a door) but had not done so since the pandemic lockdown. He had been observed by Ms Birkett placing and removing items in the Washhouse and removing concrete blocks from the outside area where she also confirmed he had parked a trailer for a considerable number of years.

The Judge was not prepared to place weight on the statutory declaration of Mr Lofthouse, as he had not given evidence in person. She said that the real issue in the case was not whether Mr and Mrs Kirkman had made use of the Disputed Land, but whether their use amounted to adverse possession. On that issue the Judge distinguished between the Washhouse and the remainder of the Disputed Land.

The Washhouse had been in Mr Kirkman’s control since 1988, and he had paid the electricity bill. He had thereby demonstrated both factual possession and an intention to possess the Washhouse. By “locking it and controlling access, he has made perfectly plain to the world at large that he has intended to exclude the owner as best he can.” He and Mrs Kirkman had therefore established 12 years adverse possession of the Washhouse.

As for the remainder of the Disputed Land, the Judge said this:

“The use of this area comprises the storage of concrete blocks, the parking of a trailer, and dealing with brambles. This does not account for all of the land, some of which remains open/vacant. Crucially, the land is not enclosed along on its northern edge. Without enclosure, it is difficult to show an appropriate degree of physical control. I am not satisfied the Applicants can demonstrate the necessary factual possession.”

It followed that Mr and Mrs Kirkman had not established adverse possession in relation to the outside area or the Ashes Places and their application was cancelled so far as it related to those parts of the Disputed Land.

The Judge directed the Chief Land Registrar to give effect to only part of the application for first registration based on adverse possession, so far as it related to the Washhouse alone.