Batsford Estates (1983) Company Ltd v Taylor & Anor

The primary question arising on this appeal is whether, on the actual facts of the case, there was an occupation of land by the implied permission of the person entitled to it within the second part of para 8(4) of schedule 1 to the Limitation Act 1980.

The disputed land consists of, first, the Old Farmhouse, Aston Magna, Moreton-in-Marsh, Gloucestershire, (sometimes called “the blue land”), secondly, the adjoining farmyard and buildings (sometimes called “the green land”) and, thirdly, two pieces of land across the road (sometimes called “the red land”), which are known as the orchard and the paddock respectively; the orchard includes a barn. The owner of the paper title to the disputed land is the claimant, Batsford Estates (1983) Co. Ltd. (to which and its predecessor the Batsford Estate Company I will refer as “the Estate”), in which is vested Lord Dulverton’s Batsford Park Estate.

As often happens in cases of this kind, it was necessary for Mr Recorder (Roger) Evans in the court below to set out the background facts at greater length than is necessary in this court. The following abbreviated statement is taken from his careful judgment and many of the facts can be stated in his own words.

From 29 September 1939 three brothers, Henry, Cyril and Algy Taylor (who were or had been gardeners at Batsford Park) were tenants of the Old Farm, Aston Magna, which included the disputed land and consisted of what the recorder called a proper working farm of 170 acres or thereabouts. Mr Algy Taylor had a son, the first defendant Gerald Algy Taylor, who, except for the period hereafter referred to, has lived at the Old Farmhouse all his life. The second defendant, Margaret Taylor, is his wife.

By the mid-1960s the Estate had become dissatisfied with the Taylor brothers’ farming of the Old Farm. On 6 September 1967 a notice to quit was served, relying on section 24(2) of the Agricultural Holdings Act 1948 (failure to comply with the rules of good husbandry). There then followed what the recorder described as a series of curious mistakes and happenings which affected the relationship between the Taylor family and the Estate. As at August 1970 the position that had been arrived at was stated by the recorder thus (para 9):

On 27 October 1970 the land agents acting for the Taylor brothers forwarded to the Estate a draft agreement, which provided for the surrender of the premises:

As the recorder observed, that was an agreement simply to grant the two brothers an annual tenancy, being a tenancy determinable on six months notice at the end of any year; it was not what had been previously agreed. Notwithstanding that and the knowledge of the Estate’s solicitors that a mistake had been made in drawing up the surrender agreement, the solicitors then prepared a tenancy agreement for signature by Messrs. Algy and Cyril Taylor providing for the letting of the Old Farmhouse to them for the term of one year from 29 September 1971 and thereafter from year to year until determined by either party giving to the other not less than six months notice in writing expiring on 29 September in any year. Thus, as the recorder pointed out, the mistake which had occurred in the surrender agreement was perpetuated and found its way into the tenancy agreement. The knowledge of the Estate and its solicitors having been what it was and they having been prepared, as the recorder found, to let things go unless challenged, it appears at least possible that Messrs. Algy and Cyril Taylor would have been entitled to have the tenancy agreement rectified on the ground of unilateral mistake under the principle established by the decision of Pennycuick J in Roberts & Co. Limited v Leicestershire County Council [1961] Ch.555, and approved by this court in Thomas Bates and Son Ltd v Wyndhams(Lingerie)Limited [1981] 1WLR 505.

The tenancy agreement was signed on 6 July 1972. Notwithstanding the surrender agreement, the Taylors refused to vacate the green land. The Estate commenced proceedings for possession in the Evesham County Court and on 19 January 1973 a consent order for possession of the green land was duly made. However, it appears that it was necessary for bailiffs to attend the premises on 27 June 1973 in order to evict Mr Algy Taylor’s cattle from the farm buildings. Meanwhile the Estate’s solicitors had turned their attention to the orchard, in respect of which Mr Henry Taylor was claiming a right of occupation. Separate proceedings for possession of the orchard were issued in the county court on 29 March 1973. Those proceedings were settled by a consent order made on 21 December 1973, which provided that Mr Henry Taylor should give up possession of the red land in exchange for a conveyance by the Estate to him of an outlying rectangle of land to the west. It took a long time to agree the form of the conveyance, which was not executed until 18 December 1981. At this point Mr Henry Taylor (who died on 19 July 1984) drops out of the story.

The next material date was 30 September 1983, when there occurred the only payment and acceptance of the £1 rent for the Old Farmhouse. Up to that time Mr Cyril Taylor (who was unmarried), Mr Algy Taylor and the first defendant continued to occupy the farmhouse. However, on 19 November 1984 the Estate’s resident land agent, Mr Michael Hughes-Hallett, wrote to the first defendant expressing concern that there appeared to be no one living in the farmhouse. It appeared that the two Taylor brothers were living with their sister about five miles away and that the first defendant had moved to Shipston at some time in 1983.

On 20 March 1985 the Estate served on the two Taylor brothers a notice to quit the Old Farmhouse on 29 September following. To that there was an immediate response by solicitors acting on behalf of Mr Algy Taylor, asserting (though not quite accurately) his right to a tenancy of the farmhouse for life and that the tenancy agreement would be amended by the court. There was then a lot of to-ing and fro-ing between solicitors, into the details of which it is unnecessary to go. On 4 July 1985, during the course of those negotiations, Mr Algy Taylor’s solicitors wrote to the Estate’s solicitors a letter on which great reliance has been placed by the Estate in this court. Having referred to the Estate’s offer to pay £1,000 for the surrender of the tenancy of the farmhouse and asking for an increase in that offer, the letter continued:

The negotiations having proved unfruitful, on 30 September 1985, immediately after the expiration of the notice to quit, the Estate’s solicitors wrote to Mr Hughes-Hallett asking him whether he would like them to investigate starting proceedings or would he wish to let the matter drop. The letter continued:

The recorder said that it seemed clear that what then happened was that Mr Algy Taylor was having none of the legal advice, because on 24 February 1986 Mr Hughes-Hallett reported to the Estate’s solicitors that he had moved back into the farmhouse. Mr Hughes-Hallett’s letter continued:

On 13 August 1987 Mr Cyril Taylor died. Mr Algy Taylor and the defendants continued to live in the farmhouse. No further payments of the £1 rent were made. No attempt was made by the Estate to enforce any of the covenants in the tenancy agreement. It appears that in the spring of 1987 and on a number of other occasions the Estate arranged for the septic tank which served the farmhouse, but was not situated on the disputed land, to be emptied, a charge being made for that service, as it was for other Estate properties in the village; the charges were duly met. In December 1997 the Estate’s new land agent (Mr Hughes-Hallett had retired in about 1995) was allowed to inspect the interior of the farmhouse by Mr Algy Taylor.

On 3 March 2000 Mr Algy Taylor died. By his will he left all his estate to the first defendant, who obtained a grant of probate on 4 April 2000. On 26 November 2001 he registered a caution in respect of all the disputed land. On 25 June 2002 the Estate served on him a notice to quit expiring on 30 September 2002. On 22 July 2003 the Estate issued proceedings for possession in the Evesham County Court. By his defence and counterclaim the first defendant claimed a declaration that he was the fee simple absolute owner in possession of the disputed land. By its reply the Estate asserted that the 1985 notice to quit was invalid, alternatively that the two Taylor brothers would have been estopped from asserting its validity and, further or alternatively, that their occupation after 1985 was by permission of the Estate, such permission being implied from the Estate’s not having pursued the 1985 notice to quit and allowing the two Taylor brothers to continue to occupy the farmhouse.

In greater detail, the defendants’ pleaded case was that Mr Algy Taylor had acquired title to all the disputed land by adverse possession during his lifetime, because he had, since 1 October 1985, been continuously in possession of it, and any title which the Estate might have had to the land was extinguished at the expiration of twelve years from that date. Thus, Mr Algy Taylor’s title was perfected long before his death, at which point his interest passed to the first defendant under his will. The first defendant claimed only through Mr Algy Taylor.

The action was heard by the recorder, sitting in Worcester, over three days in the summer of 2004. His reserved judgment was delivered on 4 October 2004. He ordered that the defendants should deliver up to the Estate with vacant possession all the disputed land on or before 18 October 2004. He also made a declaration that the defendants had no right, title, estate or interest in the disputed land and he ordered the caution to be vacated. He refused the defendants permission to appeal, but permission was granted by Lord Justice Jacob on consideration of the documents on 5 November 2004; he also granted a stay of the order for possession over the hearing of the appeal.

At para 52 of his judgment, the recorder said:

On these findings, it might have been thought that the legal position, at any rate in regard to the farmhouse (the blue land), was simple. If the notice to quit was ineffective, Mr Algy Taylor continued to occupy the farmhouse under the tenancy. If, on the other hand, the notice to quit was effective, the Estate must have impliedly permitted him to occupy it. Either way, the blue land was not “in the possession of some person in whose favour the period of limitation can run” (see below); Mr Algy Taylor was never in adverse possession of it. However, the arguments of counsel have not allowed us to adopt this simple approach. Though the matter remains straightforward, it must be considered more closely. The convenient course is to start with the recorder’s finding that Mr Algy Taylor’s occupation was with the consent of the Estate. If that finding is sustained, it will become practically unnecessary to consider any other question.

The relevant provisions of the Limitation Act 1980 are few in number. So far as material, s.15 headed “Time limit for actions to recover land”, provides:

The purpose of the first part of paragraph 8(4) was to reverse the decision of the majority of this court in Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94. However, the second part, which is in substance, though not in form, a proviso to the first, expressly permits a finding to the effect that a person’s occupation of land is by implied permission of the person entitled to it “in any case where such a finding is justified on the actual facts of the case.”

The recorder referred to Mr Algy Taylor’s having been in occupation (para 52) “with the consent” of the Estate, and (para 53) “with actual consent”. By the latter expression he cannot have intended to find that the occupation was with the express consent of the Estate, there having been no evidence to that effect. So the question is whether the occupation was with the implied consent of the Estate.

This question has recently been considered by this court (though without express reference to para 8(4) of schedule 1 to the 1980 Act) in Colin Dawson Windows Limited v Borough Council of King’s Lynn & West Norfolk (20 January 2005 unreported) [2005] EWCA Civ 09. In giving the leading judgment (with which Jonathan Parker LJ agreed) Rix LJ, having read extensively from the judgment of Dillon LJ in BP Properties Limited v Buckler [1988] 55 P&CR 337, 354, referred to an unreported decision (22 February 2002) of Mr Lewison QC, sitting as a deputy High Court judge, in Bath & North Somerset District Council v Nicholson. In that case Mr Lewison, having stated that the court is able to infer the grant of a licence if the facts of the individual case justify the inference, applied the following test propounded by Etherton J in London Borough of Lambeth v Rumbelow (25 January 2001 unreported):

Etherton J’s test was approved and applied by this court, in my respectful view correctly, in the Colin Dawson Windows case. Although both that case and Bath & North Somerset District Council v Nicholson were examples of the more familiar kind of case where the occupation of the person claiming a possessory title is in the course, or as a result, of negotiations for his acquisition of the land, the test is a general one which is capable of applying to a case such as the present. It is therefore necessary to consider whether the two requirements of the test are satisfied here.

Perhaps because he thought the answer to the question was so obvious, the recorder did not spell out his reasons for finding that Mr Algy Taylor’s occupation had been with the implied consent of the Estate. Provided, however, that it is supportable on the facts and by an application of the correct test, the finding cannot be impeached in this court.

Mr Morshead, for the Estate, relied on a number of matters, in particular on Mr Algy Taylor’s solicitors’ letter of 4 July 1985 (para 10 above) and the further facts, first, that Mr Algy Taylor never resiled from the position taken in that letter; second, that the Estate, though it refused to accept the rent in October 1985 (para 11 above), never took any further steps to obtain possession, even after Mr Algy Taylor had moved back into the farmhouse in February 1986 (para 12 above). In my judgment, though it may not be possible to point to some overt act by the Estate from which permission can be inferred, the matters relied on by Mr Morshead certainly constitute demonstrable circumstances from which the inference can be made. It is plain that by July 1985 the battle lines were drawn, and that thereafter the Estate, however reluctantly, accepted the status quo. Further, it is clear that a reasonable person (who must be assumed to have knowledge of the material facts) would have appreciated that Mr Algy Taylor’s occupation was with the permission of the Estate.

Mr Wonnacott, for the defendants, submitted that a permission to occupy land can only be implied if it is communicated by words or conduct. At all events in the context of adverse possession, that submission cannot be correct. Once communicated, the permission would cease to be implied and would become express. The concept of a communicated implied permission is difficult, if not impossible, to comprehend.

For these reasons, I would decide the first question in favour of the Estate and hold that Mr Algy Taylor’s occupation of the farmhouse (the blue land) was by the implied permission of the Estate within the second part of para 8(4) of schedule 1 to the Limitation Act 1980.

It remains to consider the position in regard to the green land and the red land. The recorder said that there was no dispute as to what had been done by way of acts of possession on either of those areas of land; Mr Hughes-Hallett had agreed in cross-examination that the acts relied on in the first defendant’s witness statement had been done. He continued:

The recorder then read the following passage from chapter 25 (headed “Encroachments”) of Jourdan on Adverse Possession under the sub-heading “The Presumption”:

Although no authority is cited in support of the general statement in Jourdan, there is no doubt that the principle is well established. As I understood Mr Wonnacott’s argument, on the footing that there was an implied permission in regard to the blue land, he did not suggest that the principle was not a sound basis for holding that there was also an implied permission in regard to the green land and the red land. That question having been effectively removed from our decision, I would hold that there was the necessary permission.

The Estate is entitled to possession of all the disputed land. I would therefore dismiss this appeal.

I agree.

I also agree.