J U D G M E N T

Friday, 12 March 2004

1. LORD JUSTICE CHADWICK: There are before us an appeal and cross-appeal from an order made on 24 July 2003 by His Honour Judge Catlin sitting at Reading in proceedings brought in the Slough County Court by the appellant, Miss Juliet Pleming, against her neighbours, Mr Peter Hampton and his wife, Mrs Alison Hampton.

2. Miss Pleming is the owner with registered title of property known as 1 No.Cuba Cottages, Maidenhead Court Park, Maidenhead. Mrs and Mrs Hampton are the owners of No.4 Cuba Cottages. The two properties form part of a group of four estate workers' cottages built as a single block on the Maidenhead Court Estate at the beginning of the last century. The block of cottages forms a handsome rectangular building with the long side aligned north to south. No.1 Cuba Cottages occupies the north-east quadrant of that building, and No.4 Cuba Cottages, the north-west quadrant. Nos.2 and 3 Cuba Cottages occupy, respectively, the south-east and south-west quadrants of the building. The four cottages share party walls where they abut. In particular, Nos.1 and 4 Cuba Cottages share a party wall aligned north to south and forming the northern half of the central long access of the block. To the north of the block, and on the same axis, there is a concrete path laid over garden ground and being 95 feet in length and some 4 feet in width.

3. The four cottages were sold off by the estate in 1949 and 1950. No.1 Cuba Cottages was the first to be sold. It is the subject of a conveyance, dated 20 December 1944, to Mr James Hopkins. The property was conveyed by reference to a plan which shows, clearly, the dimensions of the land conveyed - comprising the cottage and a garden lying to its north and east. The western boundary of that garden is a continuation of the central long axis of the building - that is to say, a continuation of the party wall between No.1 and No.4 Cuba Cottages - and lies on the centre line of the concrete path, which is shown on the plan by dotted lines. The conveyance contains a reservation to the vendors, their successors in title and the owners and occupiers for the time being of Nos.2, 3 and 4 Cuba Cottages, of a right of way on foot only over the pathways which cross the garden of the property conveyed for the purpose of giving access to and egress from those adjoining properties; and a corresponding grant of rights of way over the land retained by the vendors. In particular, therefore, the conveyance contains a reservation of a right of way for the benefit of No.4 Cuba Cottages over that half of the shared concrete path which had been conveyed with No.1 Cuba Cottages. It contains, also, a grant to the purchaser of No.1 Cuba Cottages over the other half of that shared path, retained by the vendors.

4. No.2 Cuba Cottages was sold and conveyed in June 1950 and the two remaining cottages (Nos.3 and 4) were conveyed to a beneficiary under a will or settlement made by the former estate owner by a conveyance dated 26 October 1950. That conveyance granted to the transferee the right of way which had been reserved in the conveyance of No.1 Cuba Cottages. So it is that, on paper at least, the boundary between the property known as No.1 Cuba Cottages and the property known as No.4 Cuba Cottages has been, since 1949, the centre line of the party wall and concrete path and each of these two properties has the benefit of a right of way on foot over that half of the concrete path which is not within its paper title.

5. Between 1979 (if not earlier) and 1995 No.1 Cuba Cottages was in the ownership of Mrs Winifred Russell, the grandmother of the appellant, Miss Juliet Pleming. Mrs Russell allowed there to grow up a thick Leylandii hedge on her side - that is on the east side - of the concrete path. In 1985 or 1986 she transferred to the then owner of No.4 Cuba Cottages a 10-foot strip at the bottom, or northern end, of the garden of No.1. That strip extends from east to west across the whole of the bottom of the garden of No.1. The effect of the transfer was to enable the owner of No.4 to obtain vehicular access to the bottom of the garden of that property, No.4. At or about the same time there was erected a close boarded fence between the north flank wall of no.1 and the start of the Leylandii hedge - a relatively short distance - and a close boarded fence between the end of the hedge and the beginning of the 10-foot strip.

6. On the death of Mrs Winifred Russell in 1995 the property, No.1 Cuba Cottages, was transferred to her daughter, Mrs Margaret Pleming, as the person entitled to her estate. Mrs Margaret Pleming and her husband, Mr Paul Pleming, did not, themselves, take up residence in No.1 Cuba Cottages; but they lived not far away. By 1996 the property was occupied by their daughter, the claimant, Miss Julia Pleming. The freehold was transferred to her by a transfer registered on 20 January 2002. But, curiously, it seems she did not know of that transfer until shortly before these proceedings were commenced on 15 July 2002.

7. To go back in time to the devolution of No.4 Cuba Cottages. That property was transferred to Mr and Mrs Hampton on 13 August 1987. In or about 1988 they erected a wire fence on the east side of the concrete pathway, close up against the Leylandii hedge. Indeed it can be seen from photographs that, as one might expect, the Leylandii hedge has over the years grown over the wire fence. But the wire fence was of importance, because it kept the dogs and puppies which Mr and Mrs Hampton owned from time to time within the garden of No.4.

8. Shortly after they moved to No.4 Cuba Cottages - that is to say, sometime in 1988 or 1989 - the Hamptons erected a garden shed (sometimes described as a small barn) and oil tank at the northern end of the concrete pathway, close to the 10-foot strip which they were using for vehicular access. In due course a further building (a wooden structure) was also erected at that end of the garden. The effect was that the concrete pathway no longer gave access to land to the north of No.4 Cuba Cottages. It had ceased to be of any value as a right of way and had become, in effect, a path internal to the garden. It was no longer possible to get from the house to the land beyond (and to the north of) the bottom of the garden of No.4 by exercising a right of way on foot over that portion of the roadway which was in the title of No.1. For practical purposes, therefore, from 1988 or 1989 the garden of No.4 was bounded on its eastern side by the Leylandii hedge and the wire fence hard up against the old concrete pathway; and at the northern end of that boundary there were the oil tank, garden shed (or small barn) and wooden structure which I have described.

9. In the early part of 2001 Mrs Margaret Pleming and her husband, Mr Paul Pleming, had in hand plans for the building a two-storey extension in place of an existing single-storey lean-to building on the northern wall of No.1 Cuba Cottages. They obtained planning consent for the project. The proposed building would include the existing party wall, being part of an existing and comparable lean-to structure on the north wall of No.4; and would then extend further north down the garden. It would be sited in such a way that it occupied not only the half of the concrete path, at its southern end, which was in the paper title of No.1, but also extend some short distance, (6-9 inches) into the land which was in the paper title of No.4. The reason for extending the building into the title of No.4 was that the flank wall which would be built on the western side of the extension to No.1 would then be available as a party wall should the owners of No.4 wish to build out a comparable extension on their land; or, to put the point another way, the boundary - being the mid-line of the party wall and the concrete path - would go through the middle of the western flank wall of No.1's new extension.

10. In order to build that extension Mr and Mrs Pleming needed the consent and cooperation of Mr and Mrs Hampton. They needed that cooperation for the obvious reason that it would be necessary for builders to have access to the new extension through the garden of No.4 and, indeed, to erect scaffolding in the garden of No.4 for the purposes of building the extension in the garden of No.1. The photographs show the extent to which that scaffolding intruded into the garden of No.4. It was also necessary, of course, to obtain consent in relation to the portion of existing party wall which would be included in the extension, and for the erection of the new western flank wall on land within the title of No.4, to be available as a party wall in the future.

11. Discussions as to the terms upon which that consent and agreement to cooperate would be forthcoming took place between Mr and Mrs Pleming and Mr and Mrs Hampton. We have seen the correspondence passing between them in February 2002; although the project had in fact been under discussion for some considerable time before that. The benefit which the Plemings were able to offer to secure agreement were rights over land to meet the perceived need of Mr and Mrs Hampton to enlarge the 10-foot access strip which had been transferred to No.4 in 1986. The Hamptons wanted to widen that strip - which gave vehicular access to the bottom of their property - by a further 2 feet so as to accommodate a mobile home (or other wide vehicle).

12. The proposal made by Mrs Margaret Pleming on 5 February 2002 was for the grant of a personal licence to the Hamptons over a 2-foot wide strip along what was then the north boundary of No.1 Cuba Cottages. The Hamptons were not content with a personal licence. They required a conveyance or transfer of the ownership of the 2-foot strip. On 6 February 2002 Mrs Margaret Pleming wrote a letter in these terms:

"I promise to give you free of charge, for incorporation into your title deeds, a two foot wide strip of land across the entire length of One Cuba Cottage's northern boundary, in return for your full co-operation in allowing the construction of my extension as shown on the plans currently on loan to you."

There are at least three difficulties if that letter is to be relied upon as having effect in law. The first difficulty is that the letter did not comply with the requirements as to formality imposed by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989; in that it was not signed by both parties to the alleged agreement.

13. The second difficulty with the letter as an agreement, is that the phrase "in return for your full cooperation" is imprecise. For example, that phrase begs the question whether the cooperation is to be in respect of matters already known and apparent from the plans of the extension then on loan to the Hamptons; or whether "full cooperation" was to include cooperation in relation to unforseen matters of the sort that anyone with experience in erecting extensions to old buildings will be only too familiar. Further, it is not at all clear whether the letter was intended to evidence an executory agreement - in the sense that there was an immediate obligation to transfer land in return for a promise of future conduct by way of full cooperation - or whether a proper understanding of the letter is that the land would be transferred after the construction of the extension had been completed only if there had been full cooperation in the meantime, whatever that might mean.

14. A third difficulty, of course, is that - unknown to Mr and Mrs Hampton - Mrs Margaret Pleming was not the owner of No.1 Cuba Cottages on 6 February 2002. Some two or three weeks earlier she had transferred the property to her daughter, who had become the registered owner. So Mrs Margaret Pleming was not in any position to transfer any part of the land at No.1 Cuba Cottages to the Hamptons without the consent and cooperation of her daughter. It is not suggested that Miss Juliet Pleming knew of or had any part in that letter of 6 February 2002.

15. The construction of the extension took place between February and July 2002. By July 2002 hostilities had broken out between these neighbours. It is not necessary, I think, to describe the circumstances in which that occurred. It is sufficient to mention that these proceedings were commenced on 15 July 2002 and claimed a declaration that the claimant, Miss Juliet Pleming, as the registered owner, was entitled to possession of the one half of the concrete path, which was in her title. Indeed, the claim went further than that and sought a mandatory injunction requiring the Hamptons to remove the oil tank and barn at the northern end of that concrete path; and injunctions restraining the Hamptons from entering, using or building upon the property within the title of No.1.

16. By way of counterclaim the Hamptons sought a declaration that the boundary was now on the eastern edge of the concrete path; on the basis that they had acquired title to the eastern half of the path by way of adverse possession over the preceding 12 years. Further, they sought an order requiring the transfer of the 2-foot strip of land which had been referred to in the letter of 6 February 2002. The claim, therefore, was a claim for possession of the path met by a defence of limitation and adverse possession; and the counterclaim was a claim for performance of the agreement said to be contained in the letter of 6 February 2002 by a transfer of the 2-foot strip required as an extension to the driveway.

17. That claim and counterclaim came before his Honour Judge Catlin in June 2003. The trial extended over four days. It is a sad commentary on the state of the law that that trial has led to substantial costs which one side or another will have to meet. The judge dismissed both claim and counterclaim. In relation to the claim he said this, at page 13 of his judgment under the heading "DECISIONS AND REASONS":

"2. For the Defendants to acquire title to the strip of land from the party wall to the northern boundary beyond the straight line ie between the centre of the inspection cover and cesspit as shown on the plan, they have to satisfy the court that they have proved the essential ingredients for establishing an adverse possession claim on the balance of probabilities. Having considered the law and all of the evidence, I am satisfied that they have done so and my reasons for that finding can be conveniently stated by my finding as I do that the evidence supports the factual findings relied upon by the Defendants in the Outline Submissions dated the 26th June 2003 at paragraphs 1-7 and I adopt those reasons as my own.

That decision entitles the Defendants to a declaration that the boundary should be declared as they submit."

The declaration made was that they, Mr and Mrs Hampton, should be registered as proprietor of the land shown on a scale plan annexed to the order of 24 July 2002 - that, being, in effect, the whole of the concrete pathway which was within their garden up to the line of the fence and hedge.

18. The judge referred, in the passage that I have just read, to his consideration of the law. It has been accepted before us, as it was accepted before the judge, that the principles of law can be taken from the speeches in the House of Lords in JA Pye (Oxford) Ltd and Another v Graham and Another[2002] UKHL 30, reported at [2003] 1 AC 419. In the speech of Lord Browne-Wilkinson (at pages 436 and 437) he identifies the two elements necessary in order to succeed in a claim based on adverse possession in answer to a claim based on a paper title. First, it is necessary for the person claiming adverse possession to establish factual possession. That concept was explained by Slade J in a well-known passage in Powell v McFarlane and Another [1977] 38 P&CR 452 at 470-471, cited by Lord Browne-Wilkinson in Pye v Graham:

"Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."

Intention to possess is the second necessary ingredient. What is required is that the person in possession has an intention, in his own name and on his own behalf, to exclude the world at large, including the owner with the paper title, so far as is reasonably practicable and so far as the processes of the law will allow.

19. That, as it seems to me, were the principles of law which the judge must have had in mind when he said that he had considered the law. Pye v Graham had been put before him. It is important to note the observation of Slade J in Powellv McFarlane, endorsed by Lord Browne-Wilkinson in Pye vGraham, that everything must depend on the particular circumstances. The relevant question in relation to factual possession is how would one expect an occupying owner to deal with the land in the circumstances?

20. In the present case the position is made simpler by the fact that there was no competing occupation of the concrete roadway once Mrs Russell had erected her close boarded fence and allowed the Leylandii hedge to grow up. The position on the ground was that the garden of No.1 was enjoying privacy from the garden of No.4 by reason of the fence and the hedge; and the garden of No.4 included what remained of the concrete pathway, having regard to the erection and installation of the oil tank and wooden shed at its northern end.

21. In addressing the facts the judge, as he said, adopted the seven paragraphs which had appeared in the defendant's outline submissions. Paragraphs 1-5 set out the essential history. They describe the physical features on the ground - the close boarded fence and hedge; they assert the installation of the oil tank and the wooden shed (or small barn), the erection of the chain link fence and its subsequent repair (or strengthening) by entry into Mrs Russell's garden with her permission - made necessary because of the activities of a new puppy owned by the Hamptons. Paragraphs 6 and 7 are in these terms:

"6. By erecting the fence and hedge Mrs Russell discontinued possession of the land which lay in her paper title beyond the hedge and fence, to which it was no longer possible to gain access without crawling through the hedge.

7. Mr and Mrs Hampton plainly used the land right up to the hedge as their own thereby both taking factual possession and demonstrating an intention to use it as their own. Any beneficial ownership of the land beyond the hedge and fences was therefore extinguished by about 13th August 1999."

22. The first sentence in paragraph 7 is plainly an assertion of fact. It is an assertion that Mr and Mrs Hampton used the land, including the concrete pathway, as their own; that they took factual possession of that land; and that they demonstrated "an intention to use it as their own". In the context of that paragraph what is asserted is, plainly, an intention to possess the land in their garden. If the judge was entitled to reach those conclusions of fact - as, plainly, he did in the paragraph numbered 2 of his judgment, to which I have already referred - then his conclusion, as a matter of law, that adverse possession had been established cannot sensibly be challenged on appeal.

23. What is said on this appeal is that the judge was not entitled to find as a fact that Mr and Mrs Hampton had taken factual possession of the concrete pathway; or to find as a fact that they had demonstrated an intention to use that land as their own. It is said, in effect, that their use of that half of the concrete roadway which was not within their paper title is referable to the right of way over the pathway to which they were undoubtedly entitled under the conveyance of 1950 and their own registered title.

24. To my mind, the flaw in that submission is that it overlooks the fact that the concrete pathway had long ceased to be used for the purposes for which the easement of way had been granted. The grant was of a right of way across the garden of No.1 for the purpose of gaining access to and egress from No.4 Cuba Cottages. The pathway no longer provided a means of gaining access to, or effecting egress from, No.4 Cuba Cottages to the land to the north of the garden of No.4. It did not do so because access by the path had been stopped up by the erection of the garden shed (or small barn) and the installation of the oil tank. So, whatever use was being made of that part of the garden of No.4, it was not use referable to a right of way originally granted in 1950.

25. The judge viewed the land for himself. He heard the evidence of the parties. It can be seen from the photographs what is the nature of the land with which he was concerned. To my mind, it is impossible to challenge the judge's conclusion that this concrete pathway had become part of the garden of No.4 and was being used in the way that a garden is used. Not only was it being used in a way which amounted to factual possession of it, but its enclosure within the garden seems to me the plainest demonstration of an intention to use that land as part of the garden, and of an intention thereby to possess it.

26. For those reasons I would reject the contention, advanced in support of the appeal, that the judge was not entitled to make the findings of fact which he did make. As I have said, on the basis of those findings of fact, his conclusion as a matter of law was unimpeachable. It was unnecessary for him to determine whether the necessary use commenced as early as 13 August 1987 when No.4 was conveyed to Mr and Mrs Hampton. Given that those proceedings were not commenced until July 2002, the relevant date for the commencement of the adverse possession relied upon was July 1990. By that date, as I have said, the barn and the oil tank were already in position and the garden of No.4 was enclosed.

27. I turn, therefore, to the cross-appeal. The judge disposed of the cross-appeal on the basis that the obligation which Mr and Mrs Hampton had to fulfil under the letter of 6 February 2002 - an obligation fully to cooperate - had not been performed. He accepted that the only relevant events for the purpose of testing whether full cooperation had been given were events subsequent to June 2002. Mrs Margaret Pleming had said in evidence that the Hamptons had been cooperative up until June 2002.

28. The judge set out 12 separate heads of complaint of non-cooperation. I need read only the first 4.

"1. The incorrect siting of the fence panel by the Defendants prevents the completion of the rain water down pipe and its connection to the soak-away in accordance with the plan."

This absence of co-operation is referred to in a letter of 24 September 2002, and in a subsequent letter from the contractor, which is undated. In the subsequent letter, Mr Jones, the contractor, confirms:

"We are unable to complete the work which consists of siting of the down pipe and soak-away until the fence panel has been sited in the right position."

The other heads of complaint are these:

"2. Threats by Mr Nigel Hampton [who is the brother of Mr Peter Hampton] to knock down the extension with a digger if the problems were not resolved including the threat made on the 17th June 2002 evidenced by Mr Martin Peters.

3. The threat evidenced by Mr Jones made at the end of June 2002 to knock down the extension unless the scaffolding was removed.

4. The threat made on the 18th June 2002 to knock down the new extension unless within the next 2 days the two-foot of driveway was signed over to [the Hamptons]."

The judge went on to say this:

"Having considered the evidence and submissions there is force in at least two of these submissions being the Claimant's inability to complete the works in accordance with the plans and as to the threats to knock down the extension. I find as a fact that the Claimant has established the facts supporting these submissions and in my Judgment it cannot be said that the Defendants have fully co-operated with the Claimant in allowing the construction of the extension in circumstances where the extension cannot be completed in accordance with the plans and in my Judgment there can be no clearer evidence of a failure to co-operate than a threat to do criminal damage to the Claimant's property unless the Defendants' terms are agreed to."

29. On the basis of those findings of fact, the judge was plainly entitled to reach the conclusion that there was no proprietary estoppel upon which the Hamptons could rely in relation to the 2-foot strip of driveway which they had been promised in the letter of 6 February. There was no estoppel because the Hamptons had not done what they needed to do if it were to be unconscionable for Mrs Margaret Pleming the promisor to refuse to give effect to the promise. Nor, for the same reason, would that 2-foot strip become subject to a constructive trust - see the basis of that jurisdiction as explained by Robert Walker LJ, first in Yaxley v Gotts [2000] Ch 162, particularly at 176C and 177B-F, and in the subsequent decision in Gillett v Holt[2001] Ch 210.

30. The defendants, in support of their cross-appeal against the judge's finding, say first, that the failure to cooperate in relation to the down pipe and soak-away is really so trivial that it must be regarded as de minimis and not of sufficient weight to justify the judge in refusing the equitable relief which they claim. It is important, therefore, to have in mind that the judge (at page 13 of his judgment) directed himself that the court should not take account of what might be described as trivial failures to cooperate. In reaching the conclusion which he did, he must, therefore, have taken the view that the failure to cooperate in relation to the rain water down pipe, and its connection do the soak-away in accordance with the plan, could not and should not be dismissed as trivial.

31. The question for this court is not whether it would necessarily have taken the same view as the judge. The question is whether it would be right for this court to interfere with a view formed by the judge after giving himself a correct direction, after hearing the evidence and after viewing the property. He thought that the failure to cooperate in relation to the rain water pipe and the connection to the soak-away breached the requirement of full cooperation. For my part I think it is impossible to say that that was a conclusion which he could not properly have reached.

32. It is said, also, that the threats - which were never carried into effect - were all made after the completion of the works and therefore could not affect the equity to have the 2-foot strip conveyed, which (it was said) had arisen before the threats were made. But, on the facts, that submission is not made out. As the letter from the builder explains, the work had not been completed by the end of June 2002. The threats were made at a time when work was still proceeding. I would uphold the judge's conclusion that the failure to cooperate was of sufficient materiality to defeat any contention that the promisor would be acting unconscionably if effect was not given to the promise.

33. However there is a more fundamental objection to the equitable relief sought. The fundamental objection is that the promise was made not by the owner of the land, Miss Juliet Pleming, nor by anyone shown to have been acting at the time with her authority, but by her mother.

34. The point was taken in the defence to counterclaim which was submitted to the Slough County Court on behalf of the claimant. That pleading was, it seems, prepared by the claimant's brother. Although not, perhaps, in the language that a more experienced pleader would use, the point is made clearly in a paragraph numbered 24 - which appears as the first paragraph to that defence to counterclaim. In answer to the claim for a proprietary estoppel over the 2-foot strip, it is said:

"The claimant is Juliet Pleming; the counterclaim is against Margaret Pleming. This counterclaim is irrelevant to the original claim and is no set off against it."

The point being made there becomes obvious when seen in the light of the counterclaim. The counterclaim asserts, at paragraph 19, that it was Mrs Margaret Pleming who, by a letter dated 6 February 2002, after the defendants had agreed to cooperate with the construction of the extension, promised to give the defendants free of charge a 2-foot wide strip of land across the entire length of No.1 Cuba Cottage's north boundary. Nowhere is it asserted that Mrs Margaret Pleming made that promise with the authority, or on behalf, of her daughter, who by then was the owner of the land; and nowhere is it asserted that the claimant, Miss Juliet Pleming, would be acting unconscionably if she did not give effect to a promise made by her mother at a time when her mother had ceased to be the owner of the land.

35. It is said on behalf of the defendants that if the claimant wishes to take the benefit of the building she must accept the burdens which go with it. That would be a powerful submission if the burden on the land which Miss Pleming now owns had accrued before she became the owner. If, as a volunteer, she had taken a transfer of land which was burdened with some equity arising from the conduct of the previous owner, then she would be obliged to give effect to that equity. But that is not this case. Miss Juliet Pleming had become the owner of No.1 Cuba Cottages before any burden could have arisen under the letter of 6 February 2002. No authority was put before us to support the proposition that the owner of land is obliged to give effect to a promise made by someone who is not the owner of that land without authority or permission.

36. In my view, for this reason the counterclaim was misconceived from the outset. The point that was raised squarely in the defence to counterclaim was never met; and no attempt seems to have been made to assert or prove that the promise in the letter of 6 February 2002 was made with the claimant's authority or was subsequently ratified by her.

37. For that reason, as well as for the reasons given by the judge, I would dismiss the counterclaim also.

38. LORD JUSTICE MAURICE KAY: I entirely agree and have nothing to add.

(Appeal and cross-appeal dismissed; no order as to costs).