Ike Khan & Anor v National Highways Limited

___________________________________________________________________________ Form ADV1 application to be registered as proprietor by virtue of adverse possession – Scheule 6 Land Registration Act 2002 (“ the 2002 Act ”) – land in issue part of an island in The Thames -exclusive possession – intention to possess – whether Registry served Notice on the Respondent - whether Respondent’s Form NAP filed at Registry within statutory time limit – whether Applicants have to establish a paragraph 5 condition Cases referred to Powell v McFarlane (1977) 38 P&CR 452 J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 Balevants Ltd v Sartori [2014] EWHC 1164 (Ch) Thorpe v Frank [2019] EWCA Civ 150

1. This is my decision in respect of Ike Khan and Justine Murrell’s (‘the Applicants’) Form ADV1 application in respect of land lying to the north of 24 Woodhaw, Egham (‘the Disputed Land’).

2. The Applicants have since 17 June 2005 been the registered proprietors of 24 Woodhaw. National Highways Ltd (‘the Respondent’) has since 29 July 2014 been the registered proprietor of what the Registry calls “Land at M25, Egham”. The Disputed Land is part of the Respondent’s title. The Disputed Land

3. The Disputed Land is an irregular quadrilateral shape as can be seen shaded blue in Figure 1 below – an excerpt taken from the plan that accompanied the Registry’s Notice Plan sent 13 April 2024. The Disputed Land is situated at the eastern end of an island that has to the northeast the River Thames, to the northwest the M25 and A30 roads (visible in Figure 2) and to the south by “Woodhaw”, a development of about 47 houses where the Applicants and many of their witnesses live. The island might be described as a low-lying wilderness prone to periodic flooding.

4. I conducted a site view on 26 January in the company of Mr Khan and Ms Doliveaux. We passed through the Applicants’ house and out through their rear garden and then crossed a modest tributary on a somewhat homespun wooden bridge in order to arrive on the island where the Disputed Land is situated. We walked all over the island and along the River Thames towpath as far as the bridges carrying the A30 and M25 to the west. It could be seen that a number of the Applicants’ neighbours had also bridged the tributary along the southern side of the island and enclosed modest gardens much as the Applicants have.

5. If the sole question was whether the Applicants are in exclusive possession of the Disputed Land with the requisite intention to possess as at the date of the site view, my firm conclusion would be “yes”. The Applicants have built up barriers of dead wood between the Disputed Land and both the towpath and their neighbours on the island to the west. There is a gap in this boundary feature with a padlocked gate allowing access to and from the towpath. This gate is approached from the Disputed Land side over several metres of loosely laid stone “crazy paving”. The Applicants have cleared the ground and cultivated a lawn dissected by brick-edged bark-laid paths. To the west of the Disputed Land there is an area where the Applicants store various bits and pieces (mainly wood) and keep a compost heap. It is clear to me that the Applicants have put a great deal of effort into enclosing and taming the Disputed Land and the fact that they have done so is plain to the world at large. The paper owner seeing what has been done would be in no doubt. The Applicants’ title

1. Excerpt from Registry Notice Plan 13 April 2024 2. Microsoft Bing aerial view as at 26 January 2026 The parties’ respective cases

6. The Applicants say that they have adversely possessed the Disputed Land for many years since buying 24 Woodhaw in 2005. They claim to have used and maintained the Disputed Land as part of their garden, even though separated from it by a tributary of the River Thames. They rely upon their own evidence, that of a number of neighbours and many photographs. The Applicants also argue that the Respondent failed to serve a Form NAP counter-notice to their application within the statutory time period.

7. The Respondent argues that the Applicants’ evidence does not establish the requisite 10 years adverse possession ending on the date of the application and nor have they satisfied Condition 2 (i.e. “some other reason”). It disputes the Applicants’ case that its Form NAP was served out of time or that the Applicants do not have to establish a condition. The legal framework

8. Section 97 and Schedule 6 of the 2002 Act introduced a new regime for adverse possession claims in respect of registered land which effectively abolished such claims save for some limited exceptions: 8.1 Paragraph 1(1) allows a person to apply to the Registrar to be registered as the proprietor of a registered estate if they have been in adverse possession of land for the period of 10 years ending on the date of the application. 8.2 Paragraph 2(1) provides that where a person applies pursuant to paragraph 1(1), the Registrar is required to notify certain specified people who are then entitled to require the application to be dealt with under paragraph 5. 8.3 If a registered proprietor requires the application to be dealt with under paragraph 5 (this is done by serving a Form NAP counter-notice), the applicant will be required to satisfy one or more of the three conditions set out in paragraph 5 Schedule 6 as well as establishing that they have been in adverse possession of the land for the period of 10 years ending on the date of the application as per paragraph 1(1). 8.4 Paragraph 11(1) provides that the requirement of adverse possession is satisfied if a period of limitation under Section 15 Limitation Act 1980 would have run in his favour in relation to the estate.

9. The general legal principles applicable to adverse possession claims are well-established and perhaps best taken from Powell v McFarlane , J A Pye (Oxford) Ltd v Graham , Balevants Ltd v Sartori and Thorpe v Frank . Insofar as relevant to the present matter, they can be summarised as: 9.1 The person with paper title is presumed to be in possession of the land which is the subject of the application. 9.2 The burden is on an applicant to show that they (a) are in factual possession of the land, and (b) have an intention to possess the land. 9.3 In order to establish factual possession, the applicant must demonstrate that they have an appropriate degree of exclusive physical control of the land. Their possession must be exclusive and they must deal with it as an occupying owner might have been expected to have done so and that no one else has done so. This is a matter of fact which will depend on all the circumstances which include, in particular, the manner in which the land is commonly enjoyed. 9.4 In order to establish the requisite intention to possess, the applicant must show that they intended to possess (not own) the land to the exclusion of all others. The intention to possess must be manifested clearly so that it is apparent that the applicant was not merely a persistent trespasser. 9.5 Whilst physical enclosure of the land may establish factual possession, it is not a prerequisite. The question is whether what was done, such as paving in Thorpe , were “...the sort of actions that one would expect an occupying owner to do in dealing with this land.”

10. Since it is the Applicants who have brought this application, the burden of proof is upon them to the civil standard (i.e. the balance of probabilities). The issues

11. The issues in this matter are pretty narrow: 11.1 Have the Applicants established that they have been in adverse possession (that is both exclusive possession with intention to possess) of the Disputed Land for 10 years from 11 September 2013 to the date of the application? 11.2 Was the Respondent’s Form NAP filed within the statutory time period? 11.3 If the Respondent’s Form NAP was filed within the statutory time period, have the Applicants satisfied the Second Condition (i.e. “some other reason”). How judges decide cases

12. Since the Applicants are representing themselves, they may find it helpful if I say a little about how judges in England and Wales decide civil cases such as this.

13. First, judges have no special abilities or superhuman powers that enable them to determine when someone is mistaken or lying, or to go back in time to see the land as it used to be other than perhaps with the aid of photographs. Rather, they consider the parties’ witness statements and supporting documents, listen to the witnesses giving live evidence at trial, listen to the parties’ arguments and then come to a decision. Judges decide cases on the basis of the material and arguments put before them by the parties; they do not investigate and or look for evidence. Each party is, therefore, responsible for putting forward the evidence and other material that they wish to rely upon, and formulating their legal arguments, so as to persuade the judge to find in their favour.

19. Secondly, there are two important procedural rules which judges have to observe. First, there is the burden of proof . Generally, the party asserting something in a civil case such as this, will bear the burden of proving it. In this case, the Applicants bear the burden of proving their case as to adverse possession. This is important because if the person bearing the burden of proof satisfies the Court or Tribunal that something happened, then for the purpose of deciding the case, it did happen. Conversely, if that person does not satisfy the Court or Tribunal that something happened, then for the purpose of deciding the case, it did not happen. The decision is binary: Either something happened or it did not and there is no room for maybe . Sometimes, therefore, the result of a case will depend upon who bears the burden of proof. Secondly, there is the standard of proof . In civil cases such as this, the standard of proof is simply the balance of probabilities. This means that if the judge considers that something that is in issue in the case is more likely to have happened than not , then for the purpose of deciding the case, it did happen. The more serious the allegation, the more cogent the evidence required to persuade the judge that something is more likely to have happened than not.

20. Thirdly, there is the issue of fallibility of memory . It is nowadays generally acknowledged that human memory is notoriously fallible. This can be particularly important in cases where, as here, some of the relevant facts occurred decades ago and memories may well have dimmed over the years. Civil judges prefer to rely upon contemporaneous documentary evidence, where available, as it tends to be more objective and reliable than memory alone.

21. Lastly, civil judges must give reasons for their decisions. They are not, however, required to address every piece of evidence tendered or every argument raised. They deal with the issues that matter most. It should be borne in mind that a judge’s findings of fact are inherently an incomplete statement of the impression made upon the judge by the evidence. Further, that although judgments are unlikely to explain all aspects of a judge’s reasoning, and might well have been better expressed, they should at least address the main issues and enable the parties to understand how the decision was reached. Adverse possession

16. I heard oral evidence from Mr Khan and his neighbours Michael Garrett (No. 23 Woodhaw since 2002), Jacqueline Duff-Turner (No. 19 since 1987), Alexandra Deller (No. 24 since 2005) and Richard Nowacki (No. 18 since 1982). Others provided witness statements but did not attend trial; these are Richard Burton (No. 22 since 1954), Dominic Mewburn-Crook (No. 25 since 1992), Ben Hash, Ben Frost, George Keppe and Suzi & Boonchorb Ruengsawang (No. 26 since 2006). The Respondent chose not to file any witness evidence. Additionally, during the hearing the parties agreed that I should also look at another neighbour’s “objection” to the Registry, that of Ms Mewburn-Crook, which was provided to the Tribunal upon referral.

17. As I said in paragraph 5 above, it is clear to me that as at today’s date the Applicants are in adverse possession of the Disputed Land. But, of course, that is not enough as they need to prove that they were in adverse possession since at least September 2013. I am satisfied, on the balance of probabilities that they were for the following reasons.

18. First, I accept the various live witnesses’ evidence. I found all of them to be honest and consistent generally in their own evidence and with each other as to what had happened on the island and the Disputed Land over the last two or three decades. As can be seen in my preceding paragraph, most of the witnesses live close to the Applicants and have been in their properties for a very long time. They have every reason to know what has been going on in what is, almost, their back gardens over the last 20+ years. There were occasional inconsistencies and omissions but that is to be expected given the absence of a trained lawyer managing the case, the number of witnesses, the period of time covered and the witnesses’ differing home locations and levels of interest in what was happening on the island. I think it telling that many neighbours support the application, although I bear in mind that a few may have similar applications pending. There is, of course, Ms Mewburn-Crook’s “objection” but I attach no weight to it as she has withdrawn from these proceedings and it does not even take the form of a Witness Statement in these proceedings.

19. The picture that I get from the witnesses’ evidence is that even at the time of purchase in 2005, the Applicants had in-mind the idea of making an adverse possession claim. Not only do the Applicants themselves say this but it is corroborated by their then conveyancer George Keppe. Although he did not give oral evidence and present himself to be cross-examined, I give weight to his Witness Statement because he is a solicitor (i.e. an Officer of the Court who should well understand his duty not to mislead the Tribunal, et cetera) and what he says is consistent with the Applicants’ evidence.

20. All the witnesses paint a picture of the whole island being an overgrown, untended wilderness left to the comings and goings of various undesirables who would camp, litter, defecate and set fires there. They also attest to how Clive Trunkfield (of No. 21) made extensive enquiries to establish who owned the island because prior to 2014 it was unregistered and, indeed, the Respondent had denied ownership. No one challenged any of the neighbours’ use of the island and, initially, it appears to have been treated rather as a community asset with some of the residents building bridges over the narrow dividing tributary to give easy access; the alternative was access by boat or by walking around to the towpath and using the public bridge. One such bridge-building resident was the Applicants’ predecessor in title Bill Lilburn – there was, I think, half a bridge in situ at the time of the Applicants’ purchase in 2005. Incidentally, the Applicants wanted to argue that the Respondent was never entitled to be registered as the proprietor of its title (and thus the Disputed Land) but since this was not the matter that was referred to the Tribunal, I declined

21. Mr Khan painted a vivid picture of how over the years since purchase of No. 24 he did more and more on the island. This started off with planting and clearing and developed into making the eastern end of the island what he called “a defensible space” in an effort to keep undesirables out. He describes the various problems that they had with strangers coming in off the towpath and how they wanted to exclude them. It is entirely understandable that the Applicants would have become emboldened over time by their unchallenged use of the Disputed Land and the desire for security. There is also the fact that, as Mr Khan said in oral evidence, that their take-over of the Disputed Land was somewhat gradual given that he was in full-time employment meaning that any work he did had to take place at the weekends.

22. The most compelling evidence of the Applicants taking exclusive possession was their developing what Clive Trunkfield started when he began to build a natural barrier between the towpath and the inland part of the island, including along part of the Disputed Land’s northern boundary. This was done by taking deadwood on the island and heaping it into a fence-like boundary structure. This can nowadays be seen in its current mature form but it can also be seen photographs such as the ones on pages 147, 148 and 155 – these photographs were taken between January and August 2014 not long into the relevant period. The nature of the island, as described above, is such that it would not be necessary for the Applicants to have built fences all around the Disputed Land. Simply clearing, maintaining and cultivating it, as they describe having done since 2005, would be enough.

23. I acknowledge the Respondent’s argument that there is no definitive documentary evidence showing the Applicants in exclusive possession by September 2013. I do, however, accept the Applicants’ evidence (given orally by Mr Khan) that the process started in 2005 and was well advanced by 2013. I also bear in mind the many neighbours’ supporting evidence, the photographs and the absence of any evidence to the contrary. Validity of the Respondent’s Form NAP

24. The relevant chronology: 11 September 2023 Form ADV1 filed at the Registry. At panel 11 the Applicants indicated reliance upon paragraph 5(3) Schedule 6 (namely, the Second Condition “some other reason”). 13 April 2024 Registry served notice on the Respondent at both addresses on its title. Copies of these notices were in the Trial Bundle. 6 May 2024 Helen Mewburn-Crook filed an objection by email. c. 16 July 2024 Approximate date by which a Form NAP would have to be filed at the Registry. 30 November 2024 Registry referred Ms Mewburn-Crook’s objection to the Tribunal – there may have been two other objections but they were not referred. 14 January 2025 Tribunal joined the Respondent, being the registered proprietor, as the Second Respondent and directed Statements of Case. 21 January 2025 Tribunal sent the Respondent the Registry’s Case Summary and evidence. This included the Form ADV1 and accompanying documents plus Ms Mewburn-Crook ’ s emailed objection sent 6 May 2024. 22 January 2025 Respondent filed at the Tribunal a Form NAP both objecting and requiring the Registrar to deal with the application under paragraph 5 Schedule 6. 11 February 2025 Tribunal gave Ms Mewburn-Crook permission to withdraw and directed the proceedings to continue between the Applicants and the Respondent.

25. The Respondent’s pleaded case is that its Form NAP was only filed on 22 January 2025 “due to an error at HM Land Registry in having failed to notify [the Respondent] of the application.” This is the extent of the Respondent’s pleaded case on the issue and it did not file a Witness Statement giving any further evidence on the issue. See paragraph 17 on page 17 of the Trial Bundle.

26. In submissions, Ms Doliveux argued that: 26.1 The Registry failed to serve notice of the application upon the Respondent. The Respondent had not received the notices and there is no evidence that they had been sent. She conceded that the notices before me were correctly addressed to the addresses given on the Respondent's title. 26.2 The Form NAP filed at the Tribunal in January 2025 is valid. The Respondent had filed it within days of learning about the proceedings from the Tribunal. 26.3 The Respondent could also rely upon any Form NAP served by anyone else such as Ms Mewburn-Crook.

27. The Applicants maintained their position that the Respondent had not filed a Form NAP within the statutory 65 working days – i.e. about mid-July 2024. They accepted that although this failure relieved them of the need to establish a paragraph 5 condition, they still needed to establish adverse possession. The Applicants also referred me to a letter, which is dated 14 January 2026, from the Registry in which a Lawyer Support Officer had written “I confirm that the Notices were duly sent to National Highways Ltd.” They had provided a copy to the Respondent at most a few working days before trial. There was some debate about the late appearance of this letter and its admissibility with the Respondent arguing that if I was to consider it, it should be permitted to put in a Witness Statement in response.

28. My analysis of this is as follows: 28.1. Paragraph 2 Schedule 6 requires the Registrar to give notice to the registered proprietor and certain other categories of person who are not relevant here – Ms Doliveaux argued that Ms Mewburn-Crook was a person required to be given notice pursuant to paragraph 2(1)(e) because the Registrar considered it necessary or desirable as per Rule 17 Land Registration Rules 2003 (“the 2003 Rules”) but I think that she is wrong about this; service of such notice on a neighbour does not elevate the neighbour to the status of someone who can served a Form NAP. I am satisfied that the Registrar sent the two notices dated 13 April 2024. This is a routine but important administrative task and we have copies of the correctly addressed letters. Further, we know that the notice to Ms Mewburn-Crook was sent because she filed an objection in response. 28.2 Rule 199(4) of the 2003 Rules deems any notice served by post in accordance with Rule 199(1) as served two working days after posting. Accordingly, the Registry’s notices to the Respondent were deemed served circa 15 April 2024. 28.3 The Registrar may also give notice pursuant to Rule 17 of the 2003 Rules to any other person considered appropriate. This is not a notice required to be given pursuant to paragraph 2 and so the recipient can only consent or object; they cannot serve a Form NAP. Such notice was served on Ms Mewburn-Crook “by virtue of the proximity of her house to the [Disputed Land]” – she lived next door to the Applicants (see the Case Summary). This is consistent with her filing an objection but not a Form NAP. The Case Summary makes no mention of her filing a Form NAP and when the matter was referred to the Tribunal, the Registry provided a copy of her objection only; there was no Form NAP. She simply did not have the requisite status to file a Form NAP and did not do so. I have seen nothing to suggest that anyone served a valid Form NAP and, in any event, in this matter only the Respondent had the status to do so. 28.4 Paragraph 3 Schedule 6 and Rule 189 of the 2003 Rules provide that a person given notice under paragraph 2 may require the application to be dealt with under paragraph 5 by giving notice to the Registrar within 65 working days of being given notice. The Respondent failed to do so. It says that this was because it never received them but its Statement of Case was short on detail on this and it did not put in any evidence to rebut the presumption of service. 28.5 The consequence is that paragraph 5 Schedule 6 is not in-play; the Applicants do not have to establish the Second Condition. This is important for reasons given below.

29. I should add that there is no issue as to admissibility of the Registry’s 14 January 2026 letter, it only came into existence a few weeks ago and the Respondent does not suggest that it is not genuine. Further, I am not prepared to give the Respondent permission to file and serve a witness statement. As will be apparent from the preceding paragraphs, I have decided the issue of service without reliance upon this letter. Additionally, the Respondent chose not to adduce evidence on the issue of service notwithstanding pleading the issue and it is too late to do so now almost at the conclusion of trial. Have the Applicants satisfied the Second Condition?

30. On my analysis above, the Applicants do not have to satisfy one or more of the paragraph 5 condition. But if I am wrong about that, then they have failed to persuade me that they come within the Second Condition (or either of the other two). This is because it became apparent in submissions that the Applicants had no understanding of what was required of them. When I asked Mr Khan what legal right he was relying upon for the Second Condition, he said “We were confused and ticked that box [i.e. at Panel 11 on the Form ADV1] because we did not know.” Conclusion and disposal

31. Accordingly, I will direct the Chief Land Registrar to give effect to the Applicants’ Form ADV1 application. Costs

32. As regards costs, paragraph 9.1(b)(i) of the Land Registration Division’s Practice Direction provides that if the Tribunal decides to make an order about costs, ordinarily the unsuccessful party will be ordered to pay the successful party’s costs.

33. My preliminary view is that the Applicants are entitled to payment by the Respondent of their reasonable and proportionate costs (i.e. on the Standard Basis) since referral by HMLR to the Tribunal on 30 November 2024. It may be that they have incurred no such costs, since they have represented themselves.

34. Any party who wishes to make an application for costs should file and serve by email (a) written submissions on the principle of who should pay costs and upon what basis (not on the amount of costs claimed), and (b) an estimate (not a bill or schedule of costs) of the total costs claimed, on the Tribunal and on the other party by 5 pm on 19 February 2026.

35. If such a costs application is served, then the recipient should file and serve by 5 pm 26 February 2026 their submissions in response.

36. The party applying for costs may then file and serve a response by no later than 5 pm 5 March 2026. Dated this 5 th day of February 2026 Judge Alexander Bastin By Order of The Tribunal