David Anthony Cunliffe v Daniel Makin

This dispute arises out of an application made by the Applicant on form FR1, dated 6 October 2021 and received by the Land Registry on 11 October 2021, for first registration of a strip of unregistered land (“the Land”) adjacent to his home. The Respondent objected to the application and the dispute arising from his objection was referred to the First-tier Tribunal by the Land Registry on 19 October 2023.

The Applicant, Mr Daniel Anthony Cunliffe lives at and owns 68 Lincoln Drive, Ashton in Makerfield, Wigan WN4 9HT, immediately to the west of the Land. On the eastern side of the Land is a brook. The Respondent, Mr Daniel Makin, lives at 39 Blenheim Road, Ashton in Makerfield, Wigan, WN4 9JP, around the corner from the Land. He owns, however, a field (“the Field”), registered under title number GM903714, immediately to the south of the Land and 68 Lincoln Drive. It is Mr Makin’s case that the Land provided access to the Field until September 2012. There is also access to the Field via 39 Blenheim Road but not, Mr Makin says, convenient access for large vehicles. Mr and Mrs Makin use the Field to keep horses.

Both the Applicant and the Respondent have represented themselves in these proceedings. On 15 April 2025 the Tribunal sent the parties notice of the hearing of this matter on 22-23 July 2025 with a site visit to take place at 2.00 pm on 21 July 2025. On the morning of 21 July 2025, a member of the Tribunal staff telephoned the Applicant and was told by him that he was on holiday abroad and would not be attending the hearing. He had arranged for a relative to attend the site visit.

At the site visit, the Applicant’s stepfather, Mr Colin de Leuce, was present. I asked that he communicate to the Applicant that if he did not attend the hearing the following day, the hearing might proceed without him with possible adverse consequences for his application.

Neither the Applicant nor anyone on his behalf attended the hearing. In a letter dated 29 July 2025 sent to the Tribunal after the hearing, Mr Cunliffe stated that “I completely misunderstood that my presence was required at the tribunal hearing, I understood the hearing was to consider the documentation/evidence which I had previously provided”.

At the beginning of the hearing on 22 July 2025, attended only by the Respondent and his wife, Denni Makin, I considered whether to proceed with the hearing in the absence of the Applicant. By rule 34 of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) 2013:

“34.

If a party fails to attend a hearing the Tribunal may proceed with the hearing if the

Tribunal—

“(a)

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)

considers that it is in the interests of justice to proceed with the hearing.”

I was entirely satisfied that the Applicant had been notified of the hearing. He had served a skeleton argument for the hearing, albeit only belatedly on 21 July 2025. He had attempted to provide a bundle for the hearing, as he had been directed to do, albeit it was not in satisfactory form.

I therefore went on to consider whether it was in the interests of justice to proceed with the hearing. After considering the guidance that could be drawn from the Court of Appeal’s decision in Williams v Hinton [2011] EWCA Civ 1123 I concluded that it was in the interests of justice to proceed with the hearing in the Applicant’s absence for reasons that I explained orally at the hearing. In short:

I therefore proceeded with the hearing and heard evidence from the Respondent and his wife and submissions from the Respondent.

As mentioned above, the Applicant emailed the Tribunal a week after the hearing apologising for his absence and saying that he had not understood that his presence was required. Even though the Applicant was unrepresented, I do not consider that there is any good excuse for the Applicant believing that the hearing was merely to consider documents and did not require attendance. At the very beginning of the proceedings, when the matter was referred to the Tribunal, the Tribunal sent the Applicant “A short guide for users” amongst other documents. That contained the following paragraph:

“6.1

What is a hearing?

A hearing we control is similar to a hearing in a court of law, although in some ways it is slightly less formal. It is usually held in public. The people involved come with their witnesses to argue their case and to present their evidence. Each side is expected to put their evidence together and let the other side see it before the hearing. This allows each side to see how strong a case they have and to prepare a reply to the other side’s evidence, if they need one. The people involved must also help us to maintain the ‘overriding objective’. Directions regarding the preparation and exchange of evidence will normally be given after the parties have served their statements of case.”

Other documents provided to the Applicant during the course of proceedings also made it obvious that his attendance would be required. For example, the notice of hearing sent to him on 15 April 2025 required him to serve a copy of the trial bundle on the Tribunal and on the other party and concluded, “You are also required to bring an extra copy to the hearing for witnesses to use”.

I therefore see no reason to review my decision to proceed with the hearing, which I continue to regard as the correct decision.

As the Land is unregistered, it is for the Applicant to show that he had been in adverse possession of it for at least 12 years at the date of his application for first registration, i.e. from at least October 2009. See sections 15 and 17 of and Schedule 1 to the Limitation Act 1980.

A person alleging adverse possession must show (1) factual possession of the land for the requisite period combined with (2) an intention to possess it. The leading case on the question of what amounts to adverse possession is J.A. Pye (Oxford) Ltd v. Graham [2002] UKHL 30; [2003] 1 AC 419 and I have borne it in mind when reaching my decision, but the meaning of factual possession is usefully summarised in para. 7-030 of the leading textbook, Megarry and Wade on the Law of Real Property (10^th ed.). That text gives the following summary:

“For a squatter, S, to prove factual possession, S must show that:

(i)

she had an appropriate degree of physical control of the land;

(ii)

her possession was a single possession: there can be a single possession by several squatters jointly, but not severally;

(iii)

her possession was exclusive —a squatter cannot be in possession at the same time as the dispossessed owner; and

(iv)

she dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done.”

An intention to possess (it is an intention for the time being to possess that is required, not an intention to own) is usually inferred from the actions amounting to the taking of factual possession, so long as they are not equivocal.

When considering whether there has been factual possession with an intention to possess, the nature of the land is crucial. For example, one would not necessarily expect someone dealing with the land as an occupying owner to enclose an area of open moorland in the way that an area of back garden might be enclosed. In Pye the House of Lords approved Slade J’s discussion of the meaning of factual possession in Powell v McFarlane (1977) 38 P&CR 452 where he said:

“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. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. … 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.”

Both the Applicant and the Respondent prepared skeleton arguments asserting that Schedule 6 to the Land Registration Act 2002 applies to the application, with its requirement of a period of 10 years of adverse possession (amongst other things). They were both mistaken about that. Schedule 6 only applies to land which is already registered. Since the Land is unregistered, 12 years of adverse possession must be shown as explained above.

The Applicant has lived at 68 Lincoln Drive since October 2002. The Respondent purchased 39 Blenheim Road and the Field in June 2011. The previous owners of 39 Blenheim Road and the Field was Mrs Marjorie Patricia Anten, now deceased and her son and daughter.

In 2002 Mrs Anten made an application to register ownership of the Land based on adverse possession. That application was not pursued but I was shown a statutory declaration dated 3 December 2002 made by Mrs Anten to support the application. It states that her late husband, George Anten, acquired 39 Blenheim Road and the Field in February 1966 and transferred them into the joint names of Mr and Mrs Anten in September 1991. It states that she had lived at 39 Blenheim Road since 1966. The statutory declaration contains the following account of the pre-2002 history of the Land:

“10.

In 1966 the plot of land shown on plan "A" [the Land] still formed part of Cooksons Farm. On 15th November 1972 G.C.T. Construction Limited granted a 999 year Lease to Robert John Sherman and Jennifer Margaret Sherman. That property is now registered under Title No. GM81178.

11.

From 10th February 1966 until 15th November 1972 the plot of land shown on plan "A" was used as access from Lincoln Drive for the land at the rear of 39 Blenheim Road.

12.

In late 1972 the builders preserved our access by putting up a gate for us on Lincoln Drive and also left a footpath access running immediately along the side boundary of 68 Lincoln Drive. They provided a padlock to the gates and gave the keys to my late husband.

13.

Even in 1972 the builders had treated my late husband as the true owner of that plot of land shown on plan "A". They originally had planned to acquire all of the land at the rear of 39 Blenheim Road and now registered under Title GM 903714 but decided against it because of costs

14.

From 1966 until 1972 the plot of land had been used as access for my family and for friends coming to play with my son and daughter.

15, A chain link fence runs parallel to the brook and had already been constructed at the time of our move to Blenheim Road in 1966

16.

From 1972 until his death in 1994 my late husband maintained the fence and carried out work of maintenance on the plot of land shown on plan “A”

17.

Since his death in 1994 maintenance work has been carried out by the owners of the horses grazing on our field, and my next, door neighbour, Mr, Frank Merry of 37 Blenheim Road, Ashton in Makerfield, on my behalf.

18.

Mr Merry has used the plot of land shown on plan "A" with permission from me and my late husband as a short cut to Ashton since 1973.

19.

When the property was bought in 1966 there were two large greenhouses, as the land had previously been used as a nursery. Until 1975 the land shown on plan "A" was used as access for deliveries of coke to the boiler house. The greenhouses and the boiler house were demolished in 1975. The plot of land was then used as access to remove glass, frames, bricks and rubbish.

20.

The plot of land was used continuously from 1966 for access by a tractor when the field at the rear of 39 Blenhem Road was cultivated

21.

Cultivation stopped in about 1978.

22.

The plot of land was then used by friends who we allowed to graze horses on the field; the footpath was used twice daily for access to feed and groom the horses and the wider access through the gate for getting the horses on and off the field and bringing in bulky items such as hay, straw, and for the removal of manure

23.

The land was then also used as access to bring in materials to build and maintain the stable. It was also used to bring in fencing material

24.

Mr. Merry of 37 Blenheim Road uses the plot of land, with my permission, to bring in and out bulky items to and from the shed on the land at the rear of 39 Blenheim Road

25.

Since about March 2000 the plot of land has been used regularly by my daughter, and granddaughter, who live in Dunsdale Drive, as a short cut to visit me.

26.

.In or about July 2001 Norweb (now United Utilities) used the plot of land to bring in machinery to bury overhead power lines. I was not at home when they had to break the padlock. When the work was completed by them they put on a new padlock and gave me all the keys

27.

I still have the key to the gate. No other person has any keys to the gate.”

While Mrs Anten is no longer alive to be asked questions about the account in her statutory declaration, I had no evidence before me to cast any doubt on the events she described between 1966 and 2001.

Mr Cunliffe did not make any witness statements for the purposes of the hearing before the Tribunal. He did provide statements of case bearing statements of truth but they contain little additional factual information relevant to the question whether he has been in adverse possession of the Land for the requisite time except that:

“When I first moved in, the Land adjacent to the house Title: MAN387717 was overgrown and there was a 30ft tree. I paid to have the tree removed and I have maintained the Land ever since.

In 2004 I made enquiries about the ownership of the Land through my Solicitor in the hope of buying the Land. It came back that no one owned the Land, so I just continued to maintain the Land.

I have had no issues until Mr Makin moved in. The new owners asked me if they could have access which I had no problem with, all I asked was that they give me 24 hours notice so I could unlock the gates.

I came home to find that they had driven across my drive with a 4 x 4 with a trailer attached and had damaged my drive in the process. This happened on more than one occasion even after I had spoken to them saying I no longer wanted them going across my drive.”

In his statutory declaration made in support of his application dated 25 November 2022, Mr Cunliffe said:

“In 2002 when I purchased the property the land at the side of the house was unmaintained and over grown with trees and brambles. As I was under the impression that the land was part of the property I worked to clear all the brambles and removed any trees over the next 2 years. Once these were all removed the land was bare soil. In 2004 I purchased turf and laid it on the land. Since then I have regularly mowed and watered the grass to maintain it.

In 2004 I also erected a shed on the land.

In 2018 I erected a large double shed on the land for storage.

In 2020 I erected another shed for extra storage. I also planted Laurel trees alongside the land where there is a small brook. This was to strengthen the bank as it was starting to fall.

I currently continue to maintain the land.”

“In 2004 I erected a 4ft fence around the boundary of the land to prevent my children having access to the brook. This fence is maintained and periodically stained.

In 2021 I installed double gates to secure the land and my property. These gates are secured with a key which I have in my possession.”

Mr Makin similarly did not make a witness statement but provided two statements of case verified by statements of truth. He also gave oral evidence before me. The substance of his relevant evidence was:

Mrs Makin made a statement dated 14 November 2024 and gave oral evidence before me. The substance of her evidence was:

Mr Cunliffe served one supporting witness statement from Diane Molloy of 25 Lincoln Drive. He statement is largely concerned with the risk of flooding if vehicles drive over the Land collapsing the bank to the brook. She does say, however, that as far as she can remember there has never been vehicular access over the Land, just a footpath.

In addition to Mrs Makin, Mr Makin served witness statements from three people who did not attend the hearing: Frank Merry, Anthony Goalen and George Draper.

Mr Merry’s statement, dated 11 December 2004, contains the following:

“2.

Use and Maintenance of the Land

From the late 1990s onward, I have actively utilised this land for access purposes. I have consistently taken care of the property, engaging in regular maintenance activities such as mowing to ensure it remained in good condition. I began to do this after my neighbour, who owned the fields that this access road led to, became ill and subsequently died leaving his widow to care for the land. Mr Anten, before his death used the fields as a garden nursery and all the traffic including deliveries and collections were made through this roadway. I continued to maintain the land right up to 2011 when Mr Makin purchased the land.

3.

Encroachment by Mr. Cunliffe

In 2002, I noticed that Mr. Cunliffe began moving his fence, which I believe attempts to encroach upon the land I had been using and maintaining for many years. His actions raised concerns regarding the rightful boundaries of the land. A subsequent case was presented by the owner of the fields that the land led to, my then neighbour, Mrs Anten but due to the stress of this and the subsequent ill health of Mrs Anten, the case wasn't pursued.”

Mr Goalen’s statement dated 2 October 2024 records that he has lived at 29 Blenheim Road for 58 years. His statement records that when he was 15 he used to ride over the Land on motor bikes on and off the Field and that he recalls a vehicle being driven over it deliver hay to the field and another one when stables were removed.

Mr Draper’s statement dated 12 November 2024 records that he has lived at 35 Blenheim Road since 1993. He says that the Land used to be the entrance to the Field on which he used to walk his dog. He says that not long after Mr Cunliffe moved in, Mr Draper observed him moving his fence over onto the Land and then building an extension on some of the Land. He says that he has observed the electric company and the Environment Agency using the Land as access to the Field. He says that until the Makins’ purchase in 2011, Mr Merry “looked after the fields and entranceway using a ride on mower”.

The burden of proof in this case lies on the Applicant, Mr Cunliffe. It is for him to prove that he had been in adverse possession of the Land for at least 12 years by October 2021 when he made his application to the Land Registry, that is, from October 2009.

It was obvious to me at the site visit that Mr Cunliffe is in possession of the Land now. It is enclosed behind substantial gates at the front which he controls. At the rear, he has built a large garage. Apparently there are opening doors on both sides and theoretically one could pass through the garage onto the Field with a vehicle but the garage was full of Mr Cunliffe’s possessions so that would not be straightforward. In any event I am satisfied that by the date of my 2025 site visit, Mr Cunliffe was in adverse possession of the Land.

However, in the absence of any oral evidence from Mr Cunliffe, I cannot be satisfied that he has discharged the burden of proving adverse possession since October 2009. Below is the July 2009 Google Street View photograph which Mr and Mrs Makin said in evidence reflected the condition of the Land in spring 2011 when they first viewed it, apart from a change in the front gates.

I accept Mr and Mrs Makin’s evidence that the Land had this appearance in 2011. The photograph is inconsistent with Mr Cunliffe’s assertion in his statutory declaration that he had erected a shed on the Land in 2004. No such shed is visible in that photograph or the June 2009 Google Earth aerial imagery, casting doubt on the other assertions in the statutory declaration. Perhaps if Mr Cunliffe had attended the hearing and been cross-examined he could have explained the apparent discrepancy, but he did not do so. As it is, the 2009 photographs available from Google and Mr and Mr Makin’s evidence that the Land had the same appearance in 2011 cast significant doubt on the proposition that Mr Cunliffe had been in adverse possession of the Land for a full 12 years at the date of his application for first registration.

I also bear in mind the conflict between Mr Cunliffe’s assertion that he maintained the land from soon after purchasing 68 Lincoln Drive in his statement of case and statutory declaration and the witness statements made by Mr Merry and Mr Draper. If they are to be believed, what Mr Cunliffe says about that cannot be correct. Their evidence that Mr Merry maintained the Land until 2011 is supported by Mr Makin’s evidence of what Mr Merry told him in 2011. I am unable to prefer Mr Cunliffe’s account to theirs in the absence of oral evidence from Mr Cunliffe when the burden of proof lies on him.

All in all, there is not sufficient evidence of 12 years or more of adverse possession by October 2021 for this application to succeed. It may be that the extension to Mr Cunliffe’s house mentioned above is partly situated on the Land and had been for over 12 years by the date of the application, which would support a finding of adverse possession to the extent of the footprint of the extension. However, I do not have enough evidence about the extension and its location relative to the land to which this application relates to make any finding about that.

Following the hearing, Mr Cunliffe sent the Tribunal (1) a letter of apology dated 29 July 2025 accompanied by a document entitled “Tribunal Summary – Applicant’s Case: Mr David Cunliffe” (2) a letter dated 30 July 2025 containing submissions, and (3) a letter from Ms Molloy dated 30 July 2025. The Tribunal also received, on 30 July 2025, a document from Mr Makin entitled “Closing Submissions of Mr Daniel Makin”, which comments on (1) above as well as making submissions generally. All of those items came too late in the day. I gave no permission for written submissions to be made after the hearing and do not give retrospective permission for reliance on any of the above. In any event, the further material from Mr Cunliffe, which I have read, does not compensate for the insufficiency of admissible evidence supporting his case at the hearing and would not have led me to change my mind if I had given permission to rely on it.

I therefore find that Mr Cunliffe has not proved that he had been in in adverse possession of the Land for at least 12 years by the time that he made his application to the Land Registry. So, I will direct the Land Registry to cancel his application for first registration.

Mr Makin’s main concern is with access over the Land between the Field and Lincoln Drive, rather than with ownership of the Land per se. If I had found that Mr Cunliffe’s application succeeded, I would have gone on to consider whether the Field had the benefit of a right of way over the Land. If so, I would have had the power to direct that the benefit and burden of a right of way be noted on the register pursuant to rule 40(3) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013. Since I have decided that the Applicant’s application should be cancelled, I do not think it necessary or appropriate for me to decide whether there is such a right of way.

I have not yet heard any submissions on costs, which I propose to decide with reference to written submissions. So, if any party wishes to apply for costs they should make a reasoned application in writing, accompanied by a schedule of costs within 35 days. The schedule should be limited to costs incurred after the matter was referred to the Tribunal by the Land Registry. Such an application should be served on the other party who will then have 28 days to respond to the application by way of written submissions sent to the Tribunal, copying any submissions to the applying party. Any response to such submissions should be provided to the Tribunal and the other party within 21 days of receipt of the submissions.