Claire Baggott v Nina Jessie Wakefield

The Applicant is the registered proprietor of 22 Trinity Lane, title number LT346582. The Respondent is the registered proprietor of 20 Trinity Lane, title number LT118901. The Applicant has applied to be registered as the proprietor of a small paved area that lies behind the Respondent’s property and which is currently unregistered. The area in dispute has been described as being eight feet by four feet (roughly 2.44 m x 1.22 m). It is marked blue in the extract from the notice plan shown below.

I shall refer to this as the “Disputed Land”. Although not specifically marked on that plan, number 20 is the property in between numbers 18 and 22, as one would expect. The area that was claimed on the plan initially submitted by the Applicant was a little

The road that meets Trinity Lane is Manor Street, which provides ready access to the Disputed Land. In front of the Disputed Land is a paved area that is within the Applicant’s title to number 22. I will call this the “Undisputed Land” as it is agreed that this is part of number 22’s title. There is no obvious demarcation between the Undisputed Land and the Disputed Land, as can be seen below.

It was common ground that part of the single-storey building on the right forms part of number 22 and part of it forms part of number 20, and that the dividing line between the two is where the surface of the wall changes from white, or off-white, render to a brick surface. That also represents the boundary between the Disputed Land and the Undisputed Land. The Undisputed Land is therefore clearly several times larger than the Disputed Land.

To the left of the Undisputed Land is another narrow paved area, forming part of a passageway running behind the rear of the row of houses. The Respondent’s property has the benefit of a right of way over that passageway.

The Applicant acquired number 22 in 2003. She does not live at number 22 herself, but rents it out. Her property is split into two flats, known as number 22 and number 22A. Save where it is necessary to distinguish between the two flats, I shall refer to her property simply as number 22, which should be taken to include number 22A unless otherwise stated.

The Respondent acquired number 20 in 2021. A dispute arose and the Applicant made her application for first registration in 2022. Her primary argument is that the Disputed Land has been used with the Undisputed Land as a car-parking space for number 22. The Respondent objected to the application and the matter was referred to this Tribunal, and ultimately listed for final hearing.

There was a pre-trial review by telephone. During that hearing, I expressed some surprise that there were not any photographs showing the relevant area in use prior to the making of the application and queried whether the parties had considered using publicly available services such as Google Street View. The Applicant subsequently sought to rely on a short addition to the trial bundle comprising eight pictures taken from Google Earth and Google Street View.

I had the benefit of a site inspection in the presence of the Applicant’s solicitor, her mother and her stepfather (but not the Applicant or her counsel), and the Respondent. Due to the size and open nature of the Disputed Land, this was a very brief inspection, but it was still valuable to be able to see the land. The trial was heard via CVP the following day. During the hearing, I heard evidence from four witnesses: the Applicant, Peter Darley, the Respondent, and Paul Cartwright.

I will attempt to deal with all the key points in this decision (bearing in mind the Practice Direction from the Senior President of Tribunals on reasons for decisions), but I can assure the parties that I have had all of the points raised in evidence and submissions (both written and oral) well in mind when considering my decision.

The Applicant had provided some conveyancing documents dating back to the 19^th century, but no case was pressed in reliance on paper title, as I shall explain further below, and so I can start in more recent times.

Number 22 was owned by John and Barbara Darley from around 1972 to 2003, when it was sold to the Applicant. The Applicant relied on a statement from Peter Darley, one of Mr and Mrs Darley’s children, who had lived at number 22 as a child. In that statement, he described the land being used for parking a car, and having even done so himself when he was older.

The Applicant herself bought number 22 in 2003 and was registered as proprietor on 23^rd January 2003. The office copy entry records under the charges register that deeds and documents of title have been lost. As part of this process, the Applicant now appears to have recovered some of those documents, but it does mean that there is very little detail that is currently set out on her title documents.

After purchasing number 22, the Applicant arranged for it to be sub-divided into two residential properties, which have been let out to tenants. Although she had not addressed this in detail in her witness statement, her oral evidence to the Tribunal was that over the years there have been between ten and twenty tenants in total.

It is helpful in this Background section to seek to identify how it is that the Applicant says that she has been in adverse possession of the Disputed Land.

The Applicant provided a Statement of Case in accordance with directions given by the Tribunal. The effect of rule 26(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 and para.3.2 of Practice Directions: Property Chamber, First-tier Tribunal, Land Registration, is that the Statement of Case is required to set out her reasons for supporting the original application, identifying all relevant facts and matters relied upon.

At para.3 of the Statement of Case, the Applicant said this:

“Throughout my ownership of the Property, it has always been clear that I or my Tenants and/or other occupiers during my ownership have possessed the unregistered land that sits alongside the Property to the North East as if the same were my own to the exclusion of all others.”

No details are given of how the Disputed Land was possessed. Nor were any details given of when the Applicant says that it was possessed directly by her and when she says that it was possessed by her tenants on her behalf. As a pleaded case, this left a lot to be desired.

The Applicant also referred to a “statutory declaration” given by Mr Darley. The document that was attached to the Statement of Case was headed “Statement of Truth”. It did not include the necessary declaration to be a statutory declaration and gives no indication that any declaration was taken and received by an authorised person.

In reliance on that document, the Applicant’s Statement of Case pleads that “the area in question has been possessed to the exclusion of all others and has always been believed to be part of number 22 since the Property was purchased … in 1972”. In the statement, Mr Darley describes the area as having been used for parking cars.

The Respondent did not acquire her property until 2021. She was registered as proprietor of the freehold interest on 23^rd June 2021. For the period prior to her ownership, she relied on the evidence of Mr Cartwright. He is the owner of number 18, having acquired that property after the Applicant bought number 22. At that time, the owner of number

As I have indicated, I was able to inspect the Disputed Land and saw how it connected to the Undisputed Land. I have already referred to a photograph which shows no apparent visible demarcation between the two pieces of land. The visual impression that I gained at the site inspection was also that there was no obvious difference between them or anything on either piece of land to indicate where one ended and the other started.

During the brief site inspection, I was able to observe several nails in the flank wall of the Respondent’s property. Mr Keable had said in his witness statement that these were the old fixings for telephone cabling. He made the same point during the site inspection. I do not attach any weight to that as the site inspection is not the time for the parties to present evidence or argument.

I was also able to see that the paving slabs seemed to extend beneath the Respondent’s fence. By peering through a gap in the fence it was possible to see something under the Respondent’s decking which might have been part of one of the slabs, but it was very difficult to reach much of a conclusion.

Finally, a large concrete post for holding fence panels was lying on the ground in the Disputed Land, running parallel to the fence. This meant that the bins were not pushed right against the fence, but projected out by the width of that concrete post.

From my observations at the site inspection, the measurements that I have referred to at paragraph 1, above, seem to be broadly right for the Disputed Land, so I shall treat it as around 1.2m deep. I observed that the Undisputed Land was around 4m deep, so the total area was about 5.2m deep and about 2.4m wide.

I also add the observation that it was readily apparent from walking to and from the site inspection that parking spaces are at a premium in the immediate area.

A preliminary case management issue needed to be addressed at the start of the hearing, as the Applicant wished to rely on an additional witness, having provided a witness

The Tribunal had issued directions on 14^th October 2024. Those required all witness statements to be filed and exchanged by 6^th January 2025. Paragraph 2(5) of those directions made clear that a party may only call a witness if they had not complied with the direction to provide witness statements if the Tribunal granted them prior permission.

It is clear, and the Applicant agreed, that the Tribunal needed to assess the application to rely on Mr Keable’s statement by reference to the guidance given in Jalay Enterprises Ltd v Ramsdale [2023] UKUT 247 (LC).

In doing so, I must keep the overriding objective of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169) firmly in mind. That objective is to enable the Tribunal to deal with cases fairly and justly. Rule 3(2) identifies some aspects of dealing with a case fairly and justly:

“(a)

dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;

(b)

avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)

ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)

using any special expertise of the Tribunal effectively; and

(e)

avoiding delay, so far as compatible with proper consideration of the issues.”

In accordance with the guidance set out in Ramsdale, this Tribunal needs to consider three stages.

First, the Tribunal should assess the seriousness of the relevant failure to comply.

In my assessment, this is a very serious failure. Witness statements were required by 6^th January. Mr Keable’s statement was first provided on 6^th June. That was therefore five months after it should have been filed and served. I consider that to be extremely late. Furthermore, it was first provided to the Tribunal (and presumably also to the Respondent) at 16:02 on 6^th June, which was under a week before the trial was listed to start. That only serves to emphasise the lateness and heighten the seriousness of the failure to comply.

Mr Campbell realistically conceded that it was a serious breach.

Next, the Tribunal must consider why the default occurred. If there is a good reason for the default or breach then the Tribunal may be more ready to allow the witness statement in, despite the seriousness of the breach.

The explanation given by the Applicant’s solicitors in their letter of 6^th June is that although “there was never any prior intention of submitting a witness statement from Mr Keable, due to the fact that he has spent most of the year outside the UK for health reasons and was not expected to be available to give evidence at trial, it has become apparent that his insights are highly relevant”.

Mr Keable expands on this in the statement:

“1.1

I wish to apologise to the Tribunal for not having previously submitted a formal witness statement in this matter.

“1.2

The reason for this is that I spend a significant portion of each year overseas in Thailand due to ongoing health concerns. This includes regular periods of up to five months at a time during which I am not ordinarily resident in the United Kingdom.

“1.3

At the relevant time, it was uncertain whether I would be in the country and able to attend or provide evidence to the Tribunal, and therefore no statement was previously provided.”

In my view, this falls woefully short of offering any proper explanation. First, there is no supporting medical evidence demonstrating the health reasons or concerns. Secondly, even taking those statements at face value, the explanation makes no sense.

The obvious course of action would have been to file and serve a witness statement from Mr Keable in January. When it came to listing the case for trial, the Applicant could have provided details of his availability. It would then be for the Tribunal to take account of those as it considered appropriate. While it is rather unlikely that the Tribunal would have deferred listing for a whole five months, it might have been that no, or very little, adjustment was needed. It might even have been that the Tribunal would have contemplated such a lengthy delay if it had been supported by proper medical evidence. Either way, it was quite possible that Mr Keable would have been able to attend to give evidence.

Even if Mr Keable had not been able to attend, the Applicant could have sought to rely on any properly served statement as hearsay (it being unlikely that he would have been able to give evidence via video from Thailand), with the weight to be afforded to the statement in those circumstances being a matter for the Tribunal.

A second reason was advanced, which was that the Applicant did not anticipate that his evidence would be necessary. The only reason that the Applicant seeks to rely on his evidence now is because the Tribunal asked at the pre-trial review whether there were Google images. Mr Campbell said that the Applicant did not think that these images existed. I do not accept that explanation, which was not supported by evidence. The reality is that the Applicant simply did not think to check to see if this potentially important evidence was available.

Finally, the Tribunal needs to consider all of the relevant circumstances so as to deal with the case fairly and justly.

Mr Campbell relied on five points in support of the application for Mr Keable’s witness statement to be admitted into evidence.

First, he submitted that the evidence was plainly of probative value on the physical state of the land since the Applicant acquired it, and in particular for the period from 2009 onwards when Mr Cartwright says that the fence was moved, and how the relevant land has been used. In my assessment, this greatly overstates the potential value of this witness statement. Other than a few specific and isolated incidents, it only speaks in the most general and vague terms about use of the land and for the most part it makes no distinction between the Disputed Land and the Undisputed Land. It can also be said that Mr Keable’s evidence about continual and sole use of the Disputed Land would be of extremely limited value given his lengthy absences from the UK.

Secondly, Mr Campbell submitted that it was not a lengthy statement and did not open up new questions that materially change the scope of the Tribunal’s enquiry. He characterised the statement as simply building on what others say in evidence and filling a void in time for which the evidence is not there. I agree that it is not a lengthy statement, but it does seek to introduce evidence of new incidents. As such, it is not “building” on what others say in evidence but is in reality an attempt to fill a void in the evidence. That void is not just as to a limited period in time, but is a vast absence of detailed evidence to cover any period of time. It would, in my judgment, be wholly unfair to the Respondent to allow the Applicant to attempt to fix the evidential deficiencies in her case in this way.

Thirdly, Mr Keable was ready, willing and able to be cross-examined. It was submitted that the Respondent had had the statement for week and a half. That was not quite correct as the witness statement seems to have been first sent towards the end of the working day on 6^th June, and so the Respondent had it for slightly under a week before the hearing commenced. Mr Campbell submitted that Mr Keable could be asked questions by the Tribunal and the Respondent, but it is not the Tribunal’s role to cross-examine a witness and it is unfair to expect the Respondent, as a litigant-in-person, to be in a position to properly cross-examine Mr Keable at such short notice. I was unimpressed by the submission that there was in effect no prejudice to the Respondent as she would not have an answer to Mr Keable’s evidence because there was no other evidence by exchange. That presumes that Mr Keable’s evidence had been provided in accordance with the Tribunal’s directions and it had not. A party who provides exceptionally late evidence, with the benefit of sight of the other party’s evidence, cannot rely on what the

Fourthly, it was submitted that any points in Mr Keable’s statement could be put to the Respondent and her witness in cross-examination. I do not think that helps the Applicant, because that could be done even if the evidence was not admitted. The Applicant would, admittedly, be in a weaker position in that case because there would be no evidence to counter any negative response, but that is a consequence of the Applicant’s failure to prepare the case properly.

Finally, Mr Campbell again relied on the point that this was only a relatively short statement and so should not necessitate an adjournment or re-listing. That may be correct up to a point, but it may also have been that fairness to the Respondent would have required an adjournment for her to consider how to address this late evidence. But either way, that is not so much a point in favour of admitting the evidence as it is the absence of what would be a very strong point against its admittance, and so it is really a neutral factor.

I am satisfied that, having particular regard to the overriding objective, the relevant circumstances all point towards refusing permission to rely on this statement.

I note that the Applicant’s skeleton argument for the pre-trial review had suggested that the pre-trial review hearing could be used to “give any last minute case management directions for the preparation of the final hearing, including any further evidence”. It was not suggested by the Applicant during that hearing that any further witness evidence would be required. In my judgment, the reality is that the Applicant and her legal advisors had belatedly realised that there were vast gaps in the evidence in support of her case.

In my view, the fair and just response to this application to rely on an extremely late witness statement was to refuse to allow the Applicant to call the witness but to allow

I announced that decision during the hearing, for reasons that I gave at the time and which have been replicated above.

I am mindful that the Practice Direction expressly states that as this Tribunal is a specialist Tribunal, it is not necessary to set out every relevant authority. I will therefore simply seek to set out the key principles relating to adverse possession.

Those principles can be primarily drawn from the key cases of Powell v McFarlane (1977) 38 P&CR 452 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419. I think those principles can be summarised as follows.

In order to establish adverse possession, there needs to be absence of the paper title owner’s consent, as possession cannot be adverse if permission has been given. Consent or permission may be actual or implied and need not take the form of a written tenancy or licence. The Applicant needs to establish physical control shown by such acts that demonstrate in the circumstances, in particular the nature of the land and the way that it is commonly used, that she had dealt with the land as an occupying owner might normally be expected to do and no other person had done so. She also needs to demonstrate the intention to possess on her own behalf and in her own name to exclude the world at large, including the paper title owner, so far as was reasonably possible.

There are some acts which are so drastic as to point quite clearly to an intention to appropriate the land concerned. Examples that have been given include the ploughing up and cultivation of agricultural land, the placing of “keep out” notices if those warnings are enforced, and the locking or blocking of the only means of access. Enclosure has been described as the strongest possible evidence of adverse possession but it is not indispensable.

The nature of the land in question can be very important. In Thorpe v Frank [2019] EWCA Civ 150; [2019] 1 WLR 6217, McCombe LJ said at [38] that “in considering the question whether the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it, the nature of the land in question is very important”. McCombe LJ went on to say in the following paragraph that although enclosure of land is an obvious way in which a squatter can take possession, it is not an absolute requirement. On the facts of that case, and having regard to the nature of the land (an open forecourt area), the applicant had dealt with the land as an occupying owner would by ripping up an old surface, digging out the land, inserting hardcore, levelling the surface with the area surrounding it, and replacing flags/tiles with flags and bricks of their own choosing.

The requirement to demonstrate an intention to exclude the paper title owner is explained in Powell v McFarlane in this way.

“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him.”

I was also referred in this case to the decision of the Court of Appeal in Hounslow LBC v Minchinton (1997) 74 P&CR 221. At p.232, Millett LJ said this:

“It is perfectly comprehensible that in the case of a field or agricultural land the mere building of a boundary within one’s own land and cutting off access to land on the other side may not constitute a discontinuance of possession, but I doubt very much whether that is a sensible inference to draw in the case of suburban land where the exact boundary between adjoining gardens is of much greater importance. Be that as it may, it seems to me clear and indeed was conceded that if the defendant or her predecessors in title had erected the fence and no objection had been made to it by the council that would have constituted a dispossession and would have been strong evidence of adverse possession. Since it was not erected by the defendant or her predecessors in title it could not

constitute in itself an act of dispossession nor could it be in itself an act of adverse possession. But in my judgment the fact that the council’s predecessor in title erected the fence and thereby denied itself access to the land lying beyond it was capable of constituting a discontinuance of possession.”

The disputed land is unregistered and so the Applicant needs to show a period of adverse possession of at least twelve years. If that can be done, there are no further hurdles to first registration in her favour.

With that legal framework in mind, I turn to look at the evidence. So far as evidence is concerned, I remind myself that in determining disputes of fact, I am applying the civil standard of proof (i.e. the balance of probabilities or whether something is more likely than not).

I start by clearing one point out of the way. The Applicant had suggested in her witness statement that it was possible that the Disputed Land already belonged to her irrespective of adverse possession, as she may hold paper title. Although that was not mentioned on the application to HM Land Registry, I would be most reluctant to hold that against her if she could prove paper title. In Patrick v Thornham Parish Council [2020] UKUT 36 (LC), Judge Cooke explained that an applicant who relied on paper title in their application could subsequently rely on adverse possession before the Tribunal. I consider that this works the other way around too, so that an applicant who had relied on adverse possession but subsequently realised that they could prove paper title should be allowed to raise that in the Tribunal (subject, as always, to matters of procedural fairness and the exercise of the Tribunal’s discretionary case management powers). In this case, however, the Applicant did not press her case on this basis at the final hearing, recognising (probably rightly) that the available documents were not sufficiently clear.

As I have already explained, I heard evidence from four witnesses. I will refer to specific aspects of their evidence below where it is relevant, but I can say at this stage that I

The Applicant’s case before the Tribunal is commendably simple. She does not herself give any evidence of possession of the Disputed Land, other than the extremely short assertion that throughout “my ownership of [number 22], it has always been clear, that I or my Tenants and/or other occupiers during my ownership have possessed the unregistered land that sits alongside the Property to the North East as if the same were my own to the exclusion of all others” (para.3 of her witness statement, which is in the same terms as her Statement of Case, quoted at para.17, above). No detail whatsoever is given in support of this assertion. Instead, the Applicant primarily relies on the statement of Mr Darley, the son of her predecessors-in-title.

Mr Darley’s evidence goes back as far as 1972, although as he was only born the year before that there is extremely limited weight that can be put on his evidence for the first few years of his parents’ ownership. He himself said that he had “fragmented memories” of living there in those early years. Even when we move forward to a time when he was a little bit older, it is important to remember that he was still being asked to recall events that happened several decades ago. According to his evidence, his last involvement with the land was in around November 2002, over 22 years before the hearing.

In addition to the inevitable problems with memory given the passage of time, Mr Darley’s evidence described use of land by reference to a plan which it was agreed did not accurately show the Disputed Land as part of it was within the title of number 20. I have already reproduced part of the notice plan showing the Disputed Land, but it is helpful at this stage to show that again, side by side with an extract from the plan showing what Mr Darley had called “the Disputed Area”.

The notice plan showing the Disputed Land is on the left. The plan showing what Mr Darley called the Disputed Area is on the right. It will be seen that the Disputed Area is larger than the Disputed Land as it stretches from one end of the extension building at the rear of number 20 to the other, whereas the Disputed Land stops about halfway along the end of that building. On a very rough basis, the Disputed Area is about twice the size of the Disputed Land that the Applicant now claims.

This has the inevitable consequence of calling the accuracy of Mr Darley’s recollection into doubt. I am quite satisfied that his evidence was given honestly so far as he believed, but it was plainly wrong in part. That is not surprising, given the passage of time, and I make no criticism of Mr Darley for this. Nonetheless, I must exercise some caution with his evidence, when it has been shown that it is not fully accurate.

Mr Darley’s evidence about his parents’ use of the Disputed Land is very vague. He says that it was always used by his parents and their tenants as part of the parking area. Very little detail is given. Mr Darley says that he recalls his father renting out the parking area “including the Disputed Area” for £10 per month. To the extent that the Disputed Area extends beyond the Disputed Land, this cannot be correct. This illustrates a problem with the evidence, in that it does not seem that much attention has been paid by the Applicant or her witness to the difference between the Disputed Land and the Disputed Area, on the one hand, and the Disputed Land and the Undisputed Land, on the other.

In the context of a slightly different point, Mr Darley said in his oral evidence that it would not have been possible to park only on the Undisputed Land and that there would be difficulty getting a push bike on it. Having seen the land myself, the second part of this is plainly incorrect, although I accept that there might have been a degree of hyperbole for effect in Mr Darley’s evidence.

While it might be right that most modern cars are more than 4 m in length, there are still many that are shorter than this, and it is well-known that cars have, for the most part, been getting larger over time. While it is certainly possible that parked cars may have projected into the airspace of the Disputed Land, Mr Darley was not in a position to say how far over they projected or how often that might have happened. I do not think that on the extremely limited evidence that has been put forward by the Applicant I can be satisfied on the balance of probabilities that Mr Darley’s parents’ car would have projected beyond the area that was indisputably within their title and on to the Disputed Land. Similarly, that evidence does not allow me to be satisfied that the Disputed Land was used by their tenants or that it was included in any land that was rented separately.

In his statement, Mr Darley went on to say that he used to park in this area in the late 1990s and early 2000s, because he stored vintage comics at his parents’ property as part of a business he was running. He explained that in November 2002, he was asked by his parents to remove the comics as they were looking to sell number 22. He said as follows.

“I distinctly remember when doing so, parking my Ford Mondo estate vehicle on the parking space up to the fence that segregates the Disputed Area from the neighbouring property known as 20 Trinity Lane ...”

Again, this cannot be right insofar as the Disputed Area extends beyond the current fence, but I accept Mr Darley’s evidence that he parked his car up to the fence (there is an issue about where the fence was situated at that time, which I will address shortly). He explained in his oral evidence that he drove in forwards, so that the front of his Ford Mondeo would have been pointing at the fence, and that he was able to lean into the hatchback boot from the path at the side.

Mr Darley also gave further detail in his oral evidence about his car parking when he came to number 22. He said that he parked a Rover hatchback car when he would go into number 22 to carry out an inventory of the comics stored there. He could not say how long he was there on each occasions or how many times he went. He pointed out, quite fairly, that this was 25 to 30 years ago. He said that when he parked the Ford Mondeo, this was a long vehicle and it protruded onto the pavement. He explained that he would be loading and unloading late at night on many occasions between 1999 and 2002 and that this took 10 to 15 minutes at a time.

I was not provided with any evidence or information about the length of Mr Darley’s Ford Mondeo, which would require evidence about precisely which model he owned. I observe though that as the area is 5.2m deep, it is a little surprising that his car could not fit within that area and needed to protrude onto the pavement, even allowing for his description of the hatchback as a “very long vehicle”.

Nonetheless, I recognise that a driver would not want to drive right up to the fence and risk colliding with it, even at low speed, and so I accept that he could have been parking mainly in the Undisputed Land, but with his vehicle projecting also over the Disputed Land, at one end, and over the pavement, at the other end.

That rather assumes that the fence was in the same place as it currently is. Mr Darley’s evidence to the Tribunal was that it was. He said that he had gone back to look at the area the week before the hearing and considered that the fence remained in the same position, saying that the idea that it had been moved back three feet was “utterly ludicrous”. In fact, if it had been moved back as Mr Cartwright thought then the distance was probably more like four feet, as the Disputed Land is 1.2m deep, but I assume that Mr Darley’s objection would be even more forceful in that situation. It was in this context that he said that it would not be possible to get a push bike on the land if the fence had been that far further forward. As I have already indicated, I do not agree and I consider there is a degree of, possibly unconscious, exaggeration in this aspect of Mr Darley’s evidence. I nonetheless accept his evidence that the fence was in the same place as it is now when he was involved. I will say more about this when I come to Mr Cartwright’s evidence.

Mr Darley’s involvement with the parking area seems to end in 2002 and number 22 was bought by the Applicant in the following year.

The Applicant also said that the fence had remained in the same position as it had been when she bought number 22. It follows from what I have said above that I accept her evidence on this point.

Her evidence concerning the use of the Disputed Land from 2003 onwards is extremely vague. She said that sometimes she drives to number 22 herself and parks on the space. I accept her evidence in this regard, but it does not tell me anything about the extent of use of the Disputed Land.

She primarily relied on the use that her various tenants had made of the Disputed Land, explaining that the parking space was let with one of the two flats. She said that this was generally number 22A. None of the tenancy agreements were in evidence and so I cannot tell if they purport to grant any rights over the Disputed Land rather than possibly referring to an indistinct and undefined parking space. No statements had been obtained from any of the tenants to describe their use of the parking space. There was useful evidence about how often they would park there, how their cars would be positioned so as to be parked on the Disputed Land, or even what types of cars they had.

The Applicant also relied on acts of her tenants in storing wheelie bins on the Disputed Land. This did not feature in her Statement of Case or her witness statement. Nor did it feature in Mr Darley’s evidence, contrary to a submission made by the Applicant. The only mention of this before trial was in Mr Campbell’s skeleton argument, and in her statement of truth for the original application, which said that the “unregistered area … is used as a parking bay and bin store” and that “the bins which are stored at the far end of the unregistered area have also always been stored there throughout this entire period”.

A reasonable reader of the Statement of Case and the Applicant’s witness evidence filed in the Tribunal proceedings might have taken it that the Applicant had abandoned any reliance on bin storage as she had not made any mention of it once the matter had been

The Applicant’s evidence on this point was not of any great assistance. She did not know when the local authority had introduced new and different bins, so that the number of bins associated with each property had increased. She was not really able to say what bins had been stored on the Disputed Land and when they had been stored there.

Moving on, the Respondent relies on the evidence of Mr Cartwright as showing that the fence was moved back in 2009, so that the Disputed Land was only exposed and directly accessible from the Undisputed Land from that point onwards. I have already indicated that I accept the evidence of Mr Darley and the Applicant that the fence has remained in the same position. I should emphasise that I readily accept that Mr Cartwright was doing his best to assist the Tribunal and sought to give honest evidence. I have, however, come to the conclusion that he is mistaken in saying that the fence was moved back.

Mr Cartwright was understandably vague about dates and other details in his evidence. He candidly admitted that he did not really care who the parking space belonged to. I think it unlikely that he would have paid too much attention to precisely where the fence was in relation to land that he himself did not use and could not readily see from his property. He had given evidence that fixings that could still be seen in the flank wall had been used to hold a previous fence post, but he accepted that those fixings were more likely to have been used for cabling of some sort (this was the point that Mr Keable had made at the site inspection and which I could not take into account, as I have already explained, but Mr Campbell was able to put the point to Mr Cartwright in accordance with my ruling on Mr Keable’s witness statement and Mr Cartwright sensibly accepted the point). He also agreed that there was no sign of any hole in the ground for a fence post.

I will refer later on to a photograph from July 2009, which is the earliest photograph clearly showing the fence that anyone has been able to produce. The fence in that picture appears to be in the same location as now. That would mean that any movement of the fence would have needed to have taken place in the first half of 2009. That in itself would not mean that it could not have been moved in 2009, as that would still provide

Subsequent photographs also suggest that the fence had not been altered by July 2009. That is because in the next photograph, which is from September 2014, there is a trellis on top of the fence, the fence looks to have been painted (although the paint is already noticeably weathered), there is a new concrete post at one end, and the gaps between the slats have been addressed. From the photographs, it is not possible to tell whether the fence in 2014 is the same one as in 2009, but just tidied up and painted, or whether a wholly new fence was put in. Mr Cartwright only describes a fence being moved, rather than a new fence being installed. It is therefore more likely than not that it is the same wooden fence panels, but they have been fixed and painted, with a new concrete post and trellis added. In my judgment, when Mr Cartwright talked about the fence being moved he had inadvertently and quite innocently muddled up work done to renew or renovate the fence with steps taken by Mr Reeves to remove the fence on occasion for access and with other work done on and around number 20.

I therefore accept that the Disputed Land was, in principle, open to the Applicant and her predecessors-in-title to use before 2009.

The Respondent is a relative newcomer to the scene and so her evidence is of little significance in resolving this dispute. She accepted that the occupiers of one of the flats within number 22 would park in the area and that on the one occasion that she parked there she came back to find a note on her car informing her that the area belonged to number 22. None of this really assists the Applicant for several reasons. First, the Respondent’s evidence necessarily does not go back very far, so this does not prove that tenants of number 22 have consistently been using the Disputed Land for at least twelve years. Secondly, the Respondent would obviously have been parked on the Undisputed Land, which does belong to number 22, and so the note does not necessarily demonstrate anyone claiming ownership of the Disputed Land. Thirdly, she did not give any evidence of anyone parking on the Disputed Land, but only in the parking area, which could be limited to the Undisputed Land.

Furthermore, the Respondent’s evidence was that bins for number 20 had been stored on the Disputed Land and that she and the occupiers of number 22 would move each other’s bins out, presumably to the edge of the road on collection days. She also said that the dispute only arose when a new tenant moved in and tried to claim the Respondent’s bins as their own.

Unlike the Applicant, the Respondent has direct and daily knowledge of the use of bins at her property. On the balance of probabilities, I accept her evidence. Her evidence about a neighbourly approach to moving the bins on collection days had the ring of truth about it.

Returning to the Applicant’s evidence, this is severely lacking in detail, owing to her limited personal involvement with number 22 and both the Undisputed and Disputed Land. The most useful evidence is therefore the objective evidence of photographs which, on the Applicant’s case, should show the Disputed Land being used for car parking and storing bins associated with number 22. As I have indicated, this was not originally produced by the Applicant, but (prompted by the Tribunal) she attempted to fill the evidential gap by producing eight pictures spanning a range of 16 years from Google services.

The oldest photograph that the Tribunal was shown was an overhead photograph from July 2006. The nature of the angle that this is taken from means that the fence that ran between number 20’s garden and the paved area is not very clear, although the fence at the rear of number 20 running along the passageway can be seen a bit more clearly. There is a white vehicle parked on the Disputed Land. The quality of the picture and the angle make it difficult to assess the vehicle’s position with any great precision, but I do not consider that this picture shows that it is projecting over the Undisputed Land. It is not possible to make out any bins on the Disputed Land.

The earliest photograph taken at ground level was from July 2009. That showed a green van. The van is predominantly on the Undisputed Land, although at least part of the rear wheels sit on the Disputed Land and the rear of the vehicle behind those wheels projects over part of the Disputed Land. Behind that there are two black bins. It is not possible to see any markings on the bins, as they are behind the van. Down one side of the van,

Based on the Applicant’s case, one would assume that this green van belonged to her or one of her tenants. It was, instead, accepted by her that this van belonged to the then owner of number 20, Mr Reeves. In his statement, Mr Keable explained that he had agreed to allow Mr Reeves to park on the “driveway” for about a month in exchange for Mr Reeves carrying out some electrical work for him. I did not hear from Mr Keable, as I have already explained, but out of fairness to the Applicant, I am prepared to accept that there was some agreement between Mr Reeves and Mr Keable to this effect. The problem for the Applicant is that this does not help the Tribunal in its assessment of the Disputed Land. The vast majority of the green van is parked on the Undisputed Land. Mr Reeeves would clearly need the agreement of the Applicant, or Mr Keable on her behalf, in order to be allowed to park on the Undisputed Land. This tells me nothing about whether he thought that he was entitled to use the Disputed Land for parking, provided that he could get to it through the Undisputed Land, or whether he was requesting permission to use any part of the Disputed Land, or whether Mr Keable actually granted him any right to use any part of the Disputed Land as opposed to the Undisputed Land.

The Tribunal was shown another overhead photograph, said to be from September 2011. A large red vehicle can be seen. In this picture it appears to be parked over the Disputed Land, the Undisputed Land, and projecting past where the fence would be into the garden of number 20. Mr Cartwright said that this van belonged to Mr Reeves and that Mr Reeves used to remove the fence at weekends to allow access into the garden for moving a kart around. While Mr Cartwright did also say that he was in France between 2011 and 2014, and so would have less knowledge about what went on during that time, I accept his evidence. Importantly, it was not suggested by the Applicant that this van belonged to her, Mr Keable, or any of her tenants. No bins can be seen in the Disputed Land. There would not realistically be space for any bins, given the position of the red van.

The next ground level photograph is from September 2014. There is no vehicle parked on the Undisputed or Disputed Land. There is one black bin and one brown bin towards

The next photograph after this is from June 2015. Again, there is no vehicle parked on the relevant land. Only one bin, a brown one, can be seen, right in one corner of the Disputed Land. It is not possible to make out any markings on that bin. The concrete fence post looks to be in the same position on the ground.

There is then a gap until a photograph from October 2020. There is still no vehicle visible. There are now two black bins in the corners of the Disputed Land, both of which are clearly marked “22”. I do not consider that this means that the Respondent’s evidence about number 20’s bins also being stored on the Disputed Land is incorrect, as she did not become involved until 2021. The horizontal concrete post appears to have remained in position on the ground in the Disputed Land.

After this, there was one final overhead picture, from May 2022. Again, the angle and resolution make interpretation of this picture a little difficult. There is a line of something at the back of the Disputed Land. It is not clear from this picture what that represents, but taking into account the December 2022 picture which I shall consider next, I am satisfied on the balance of probabilities that this is a line of bins. There is a space in front of those bins and then a blue vehicle can be seen. The vehicle is plainly parked on the Undisputed Land. Judging by the gap in between the line of the bins and the vehicle, I cannot be satisfied that any part of that vehicle is on the Disputed Land.

Finally, there is a picture from December 2022. That is after the Applicant made her application and so is not evidence showing possession during the necessary period. It may nonetheless be of some assistance to the Applicant insofar as it is consistent with her case on usage during the relevant time.

This picture shows four black bins in a line across the back of the Disputed Land. There are some identifying markings on the top of some of the bins. Although they are a little

All in all, the photographs do not support the Applicant’s case. Despite her assertion when making the application that the “unregistered area in question is parked on for the majority of the day and evening”, no vehicle can be seen in the majority of the pictures. There are parked vehicles in three of the eight photographs, but two of them belonged to the then-owner of number 20, and in only one of those pictures is the parked vehicle clearly over the Disputed Land.

The photographs do show bins on the Disputed Land, but this is not consistent, fluctuating between one and two bins when they are shown, and without anything to signify that the bins belong to number 22 prior to the October 2020 photograph. There are also pictures in which the bins cannot be seen. I accept that the July 2006 overhead picture is not clear, but it is quite apparent from the September 2011 overhead picture that there are no bins on the Disputed Land. When bins can be seen, they are all wheelie bins and so easily moved. It may well be that bins had been on the Disputed Land, but Mr Reeves moved them so as to be able to get access through the fence. That only serves to demonstrate that the wheelie bins do not show possession of this land. They cannot realistically do so if they can be so easily moved to gain access.

Indeed, Mr Campbell made a similar point in his cross-examination of both Mr Cartwright and the Respondent when he put to them that there was nothing to stop a driver of a vehicle from moving the wheelie bins and parking right up to the fence. Both sensibly agreed with this proposition, but this only serves to undermine any reliance on the presence of the bins as possession of the Disputed Land.

More fundamentally, the September 2011 picture shows Mr Reeves making use of the Disputed Land. His van appears to be occupying almost the entirety of the Disputed

There is also the, admittedly rather small, matter of the horizontal concrete post. It is more likely than not that this was left over as a result of alterations that Mr Reeves made to the fence, possibly with Mr Cartwright’s assistance. It follows that the owner of number 20 left that fence post taking up part of the Disputed Land, again demonstrating that the Applicant did not have exclusive possession of the land.

Furthermore, even if the Applicant had been able to substantiate her assertions as to use, I have considerable doubts as to whether they would show possession of the Disputed Land, rather than being consistent with some lesser right over that land, such as an easement, particularly as the effect of any parking would, even on the Applicant’s best case, be primarily to project over the Disputed Land, rather than to have any part of the car touching the surface of that land.

I do not consider that the Applicant’s case is assisted by the fact that the paving slabs appear to be the same across the Disputed and Undisputed Land. There was no evidence about who fitted those slabs or the circumstances in which they were laid. As already noted, the slabs appeared to continue under the fence of number 20, which could be consistent with there being some agreement or shared approach to laying slabs in this area. The lack of useful evidence about the origin of these slabs means that this cannot be said to be alteration of the surface of the Disputed Land by the Applicant’s predecessor-in-title, and so the current case is a long way from the situation in Thorpe.

Mr Campbell submitted that if the fence had been moved back then this was evidence of discontinuing possession, relying on the passage from Minchinton, cited above. This does not arise as I accept the Applicant’s case that the fence had not been moved back. If I am wrong about that then the facts in that scenario would be rather different to Minchinton, because in that case the respondent local authority had no access to the strip

Mr Campbell also submitted that the owner of number 20 had not installed a door or gate in the part of the fence immediately behind the Disputed Land, but had done this in the connecting fence, opening on to the passageway. He queried why a landowner would do this rather than put the opening so that it allowed direct access onto land that they owned. I do not think that there is much force in this point, because when one considers the position of the landowner seeking to go from the rear garden out to Manor Street, it would be necessary to go via the passageway in any event. The alternative would be to cross over the land that falls within number 22’s title, but there would be little reason to do that when there was ready access with the benefit of a right of way over the passageway.

As Mr Campbell accepted in his closing submissions, the Applicant relied on fairly low- level acts of possession. I accept that this is a small piece of land and there must be realistic limits on what the Tribunal could expect an owner to do with it. As he submitted, it is unlikely that an owner would have enclosed the Disputed Land and Undisputed Land together as that would make parking difficult. I also accept that this is not the sort of area where one would expect to see a “Private Parking” or similar sign in order to demonstrate possession. Even allowing for that, the Applicant has not produced evidence to support her claims of possession of the Disputed Land.

I have considered the Applicant’s case at great length (probably far greater than is warranted by the paucity of evidence in support). Having done so it is readily apparent that the problem for her is that she has not even been able to prove those acts to anywhere near the extent claimed or that would be necessary to demonstrate possession.

For the reasons given above, the Chief Land Registrar will be directed to cancel the Applicant’s application.

It follows that the Respondent is the successful party. My preliminary view is that in accordance with the Tribunal’s normal practice, she would be entitled to her costs. I am unclear if she has actually incurred any costs or if she wishes to make any claim for her time as a litigant in person. There may also be good reasons from the Applicant as to why the Respondent should not be entitled to her costs.

Accordingly, the order that accompanies this decision will make provision for the parties to make written submissions on liability for costs. The parties should consider paragraph 9 of the Practice Directions: Property Chamber, First-tier Tribunal: Land Registration, dated 30^th July 2013.