Sean Christian Phillips & Anor v Charles Mulira

Cases referred to: Littledale v Liverpool College [1900] 1 Ch 19 George Wimpey & Co Ltd v Sohn [1967] Ch 487 Powell v McFarlane (1977) 38 P&CR 452 Williams v Usherwood (1983) 45 P&CR 235 JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 ; [2003] 1 AC 419 Purbrick v Hackney LBC [2003] EWHC 1871 (Ch) ; [2004] 1 P&CR 34 Tower Hamlets LBC v Barrett [2005] EWCA Civ 923 ; [2006] P&CR 132 Chapman v Godinn Properties Ltd [2005] EWCA Civ 941 Terry v Dyer [2013] EWHC 209 (Ch) Thorpe v Frank [2019] EWCA Civ 150 ; [2019] 1 WLR 6217 Amirtharaja v White [2021] EWHC 330 (Ch) ; [2022] EWCA Civ 11 Smith & Guilder v Basildon BC [2025] UKFTT 181 (PC) Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC) INTRODUCTION

1. The Applicants are the registered proprietors of a property known as Marlpit Cottage in the village of Chadwick End, which is situated a few miles to the southeast of Solihull. The cottage itself is set back some distance from the road, as can be seen in this extract of their title plan.

2. The land shaded a sort of yellowish-brown does not form part of their title and is currently unregistered. They applied to HM Land Registry to be registered as proprietors of this land, claiming to have acquired it through adverse possession. HM Land Registry allowed the application to proceed in relation to most of the land shaded yellow, but excluded the northern tip, which was considered to be a part of the highway maintainable at public expense. Part of the notice plan showing the slightly shorter length of this area of land shaded blue is shown below, According to the Applicants’ title it is shaded brown , but it seems closer to yellow to my eyes.

3. I shall call the area covered by the referred application as the Disputed Land. The Applicants purchased Marlpit Cottage in 2017 and so must rely on adverse possession by their predecessors in title to achieve a sufficient period of adverse possession.

4. The Respondent is one of two registered proprietors of a plot of land lying to the west of the Disputed Land. It is referred to at HM Land Registry as “Land on the South side of Netherwood Lane”, but I shall refer to it as The Gables, which is the name given by the Respondent to the house that he has built on that land. The Respondent and his wife bought this land in 2018. An extract from their title plan showing this land edged in red is reproduced below (the difference between the two shaded areas is not relevant to this application).

5. The house built by the Respondent has not been plotted on that map. The house has been built slightly set back from the road, but very much in the top section of the plot, as shown in the notice plan extract reproduced at paragraph 2, above. A comparison of the two plan extracts shows that for most of its length, the Disputed Land runs along the eastern boundary of The Gables, but the southern-most portion of the Disputed Land (being perhaps about a quarter of its length) is not adjacent to the Respondent’s land and is actually sandwiched in between land owned by the Applicants. When the notice plan extract is also examined, this shows the current lie of the land and how the track on the Disputed Land now continues into a turning circle which is also situated on the Applicants’ land.

6. The Respondent objected to the Applicants’ application and the matter was referred to this Tribunal by HM Land Registry. Although at one point the Tribunal did raise the possibility of striking out the Applicants’ case, the matter was left to proceed, albeit with a clear warning given to the Applicants of the difficulties that they might face. See the order dated 6 th October 2023. See the order dated 6 th December 2023.

7. I am very grateful to the parties for allowing the Tribunal access to inspect the land in the afternoon before the hearing at Birmingham Civil Justice Centre. The parties represented themselves, assisted in the Respondent’s case by his brother. Both parties had prepared very detailed and helpful skeleton arguments. They also helpfully submitted copies of their speaking notes for their closing submissions to ensure that nothing was missed. They are to be commended with the way that they dealt with this and with the hearing generally, bearing in mind that they were all litigants in person. Particular mention must go to the Respondent’s brother for the support that he was able to offer and for the way that he dealt with the case.

8. Unfortunately, this co-operative approach between the parties to the Tribunal has not been reflected in their conduct towards each other. The referred matter is just part of a series of disputes between them and relations cannot be described as being remotely neighbourly. Not only have the parties had to call on the resources of the county court, as well as this Tribunal, to consider issues between them, but it was apparent that the police have been dragged into this dispute in an attempt to enforce a modicum of civility between these parties. All three parties are plainly intelligent people and I hope that they will reflect on the extent to which boundary disputes are a good use of police resources.

9. I must apologise to the parties that it has taken rather longer than I had hoped to be able to produce this final decision. While I was able to reach clear views about the evidence during the hearing, reaching a view on the legal consequences of the facts demonstrated by that evidence was something that I needed to take some time to reflect on. The parties had provided great assistance to the Tribunal by referring to numerous authorities and I wanted to be able to consider all of those and ensure that no relevant authorities had been inadvertently overlooked. I have, of course, been able to read, and re-read, the detailed skeleton arguments and closing submissions. I will attempt to deal with all the key points in this decision, but I can assure the parties that I have had every point that has been raised well in mind when considering my decision even if some of them are not mentioned for reasons of proportionality. Particularly as the original application dates back to 2021 and so this dispute has been rumbling on for several years. BACKGROUND

10. The relative positions of the parties’ properties have already been described above. It is noticeable, as I have already said, that the house at Marlpit Cottage is set some way back from the road. The Disputed Land is the only usable means of access to the house.

11. The area of the Disputed Land is unregistered and neither party knew who owned it. The Respondent did not claim to have any title to it, although (as I will seek to explain further below), he did assert that he had rights over the Disputed Land for the benefit of the Gables.

12. The Applicants purchased Marlpit Cottage in May 2017. Their application to HM Land Registry was made on 7 th June 2021. It follows that they cannot rely solely on their own period of ownership of Marlpit Cottage and that they must rely on adverse possession of their predecessors-in-title. This has caused a little confusion amongst the parties as the relevant application form was submitted after this, but HM Land Registry treated the application as made on this date for day list priority purposes and so the Applicants need to show that a period of adverse possession of at least twelve years had been completed by this date.

13. Prior to that it was owned by a Mr and Mrs Wheeler. They themselves had purchased the property in 1997. It will be necessary in due course to consider the evidence given to the Tribunal by Mr Wheeler, as well as some statutory declarations he made and some correspondence from him.

14. The Applicants’ title includes an entry on the property register recording that in 1997 the registered proprietor claimed that Marlpit Cottage had the benefit of a right of way, at all times and for all purposes, and with or without vehicles, over the Disputed Land. This is a feature of the background that will need further consideration later in this decision, because it forms a large part of the Respondent’s resistance to the application. As shown on the title plan, the right of way appears to extend slightly beyond the extent of the Disputed Land as I have defined it.

15. The Respondent himself is also a relative newcomer, having purchased his property in 2018. It seems that prior to this, the land on which his house now sits was used as a paddock. This had been owned by a Mr Fogarty.

16. The Applicants’ case in summary is that both they, and the Wheelers before them, exercised exclusive physical control of the Disputed Land. They rely on statements made by Mr Wheeler during his period of ownership of Marlpit Cottage as demonstrating that he had the intention to possess on his own behalf.

17. The Respondent advanced three main arguments, which can be briefly summarised as follows. First, the actions of the Applicants and their predecessor-in-title did not demonstrate a sufficient period of factual possession or the intention to possess. The latter part of that argument came to the fore in the Respondent’s second point, which was that any use of the Disputed Land by the Applicants and their predecessor-in-title was equivocal due to the existence of a right of way over the land. The Respondent also relied here on the evidence of Mr Wheeler, who asserted that he had never intended to possess the Disputed Land. Finally, the Respondent relied on his own alleged right of access.

18. I had the benefit of a site inspection in the presence of the parties. I was able to walk along the Disputed Land and view it from some of the Applicants’ land. I was also able to walk through the garden of The Gables and view the Disputed Land from the Respondent’s side. I am very grateful to both parties for facilitating this inspection, which was helpful in seeing the lie of the land.

19. There is a need to exercise some caution with any observations made during the site inspection because it took place in October 2025 and so was over four years after the referred application was made. Various features that I was able to see were either a result of changes made after the application was made, or only pre-dated the application by a very short period and therefore did not provide much of a useful guide as to how the Disputed Land had been used in the years before 2021. In particular, a fence between the Respondent’s land and the Disputed Land had only been in its present position since February 2022, having first been fitted in a slightly different location in June 2021. That fence is therefore of no relevance in resolving the adverse possession application, as the Respondent pointed out.

20. Subject to those caveats, the clear impression that I obtained from the site inspection was that the Disputed Land appeared to be part of Marlpit Cottage. It had all the characteristics of a private driveway for a house set back from the road in a village location. While mindful of the effects of recent alterations to the area, this general impression does not seem to be a new development, as a side-by-side comparison of the two photographs below demonstrates. The picture on the left is from 2008, while the picture on the right is from 2021. Although taken at slightly different angles, the general appearance is much the same, save that the track itself is visibly weathered and aged in the later picture. Taken from bundle pp.530 and 533.

21. Two more photographs should assist in setting the scene. These are taken from the survey requisitioned by HM Land Registry. The photograph on the left-hand side below is taken from a position on the Disputed Land looking to the south, with the edge of the Applicants’ house just visible to the left of the photograph (the fence on the right-hand side is a recent addition). The second photograph is taken from a position behind the Respondents’ land, looking to the east towards the Applicants’ house, with the turning circle clearly visible. And they therefore inevitably postdate the application. Again, the fence on the left-hand side of this picture is new and cannot be relied on to demonstrate adverse possession. LAW

22. In this section I will seek to set out the key principles relating to adverse possession. In doing so, I am mindful that the Practice Direction from the Senior President of Tribunals on reasons for decisions expressly states that it is not necessary to set out every relevant authority.

23. 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.

24. 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 Applicants need 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 they had dealt with the land as an occupying owner might normally be expected to do and no other person had done so. They also need to demonstrate the intention to possess on their own behalf and in their own name to exclude the world at large, including the paper title owner, so far as was reasonably possible.

25. 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 in the reported cases 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.

26. The nature of the land in question can be very important. Where land is of limited usefulness because of its location or the type of ground, the actions that amount to adverse possession are similarly limited. This has been explained by McCombe LJ in Thorpe v Frank [2019] EWCA Civ 150 ; [2019] 1 WLR 6217 , where his Lordship 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.

27. 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.”

28. Both parties referred to numerous illustrations of those principles of adverse possession being applied by the court and the Tribunal. Once the relevant principles have been identified, these examples are of limited assistance. As Chadwick LJ said in Chapman v Godinn Properties Ltd [2005] EWCA Civ 941 , at [28]: “But each case must turn on its own facts. In a case of this nature, the court must ask itself what it is that would be expected of somebody in possession of land of this kind. What would such a person be expected to be doing in order to demonstrate his intention to exclude the world at large.”

29. This point has also been explained by the High Court in Terry v Dyer [2013] EWHC 209 (Ch) , at [14(10)]: “Each of these cases turned on the particular features which struck each court in the context of other particular features present. They are an object lesson in the dangers of pointing to any particular case and using it as a transposable authority. They are no more than illustrations of the wider principles in action. Accordingly, a tribunal of fact asked to determine whether factual possession and the requisite intention to possess has each been made out has a degree of latitude within the factual parameters of the case before it which the evidence properly establishes.”

30. Therefore, while I have considered carefully each of the decisions that the parties mentioned, I have not found it necessary to refer to all of them in this decision.

31. The Respondent referred to authorities on how the relevant principles should be applied when the land in question is subject to a right of way in favour of the squatter and those authorities do require detailed consideration.

32. He relied heavily on the decision of Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19 . The defendants in that case owned a strip of land between two fields. The claimants had a right of way for agricultural purposes over that strip to a different field which they owned. The claimants, or their predecessors, had put up gates at both ends of the strip of land. The gate at one end was on the strip of land. The precise position of the gate at the other end was unclear and it may have been on the claimants’ field or it may have been on the strip as well. The gates were locked, with the keys held by the claimants or the tenants of their field.

33. The Master of the Rolls dealt with the gates as follows. “If the plaintiffs had been strangers, having no right to or over the strip in question, the natural inference would be that they put up these gates in order to exclude every one, and that every one was in fact excluded. But the erection of the gates and the fact that they were kept locked is in this case open to a very different explanation. Let us take the gates separately. The plaintiffs had a right to put up a gate in their own field, and if they put it up there and not actually in the strip of land, they in no way dispossessed the defendants of any land of theirs, nor interfered with any right of theirs, for the defendants had no right to go from the strip of land on to the plaintiffs’ field. The evidence does not shew exactly where this gate was. If it was in the strip of land its erection was a trespass and so far an invasion of the defendants’ rights, but far short of an eviction from the strip. The gate at the Penny Lane end of the strip may well have been put up to protect the strip and the plaintiffs’ right of way over it from invasion by the public, and not to dispossess the defendants. … there is no evidence to shew that the gate was put up with the intention of dispossessing … the defendants’ predecessor in title. The gate was in fact a protection to his property as well as to the plaintiffs’ rights. Nor is it, I think, true to say that, whatever the plaintiffs’ intentions may have been, the defendants or Solomon were in fact dispossessed of the land by the erection of these two gates. They could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi — i.e., occupation with the intention of excluding the owner as well as other people. The evidence that the plaintiffs never had any such intention is extremely strong. The correspondence shews that until quite recently they only claimed a right of way. Even when they commenced this action they claimed a right of way and no more. It was only at a later stage that they claimed the ownership of the strip. When possession or dispossession has to be inferred from equivocal acts, the intention with which they are done is all-important … I am myself convinced that the gates were put up, not to exclude the defendants, but to protect the plaintiffs’ right of way, and to prevent the public from going along the strip of land now claimed by the plaintiffs. … There is no evidence to shew that the plaintiffs or their predecessors ever themselves let the strip of land or dealt with it as their own otherwise than by shutting it in by the two gates already mentioned and by giving leave to put up a telegraph pole. … Combining all the evidence adduced by the plaintiffs, I think Bigham J. was right in holding that the plaintiffs had failed to prove the acquisition of a title to the strip of land in dispute. The evidence is not enough to prove that the defendants or their predecessors have been dispossessed for the statutory period of the strip which unquestionably was theirs.”

34. I note that Littledale was criticised in trenchant terms by Lord Browne-Wilkinson at [43] of Pye . In commentary on Littledale , and another case ( George Wimpey & Co Ltd v Sohn [1967] Ch 487 ), the learned editors of Adverse Possession have said that it “is unclear to what extent those cases still represent the law”. They draw attention to criticisms raised by Lord Neuberger as Neuberger J (as he then was) in S Jourdan QC & O Radley-Gardner, Adverse Possession , 2 nd ed . (2011), para.9-65. Although a supplement to this edition was published in 2017, it does not affect any of the passages referred to in this decision. Purbrick v Hackney LBC [2003] EWHC 1871 (Ch) ; [2004] 1 P&CR 34 , and as Neuberger LJ (as he had by then become) in Tower Hamlets LBC v Barrett [2005] EWCA Civ 923 ; [2006] P&CR 132.

35. At para.9-74, the editors of Adverse Possession say this: “There is no doubt that a person who does no more than use land in a way permitted by an easement or profit á prendre does not manifest the intention to possess. A person with an easement or a profit has no right to exercise exclusive control over the land. So, on the face of it, if he encloses the land over which he enjoys his right, by erecting locked gates, or fencing, so that no-one can get on to it except with his permission, his use cannot be attributed to the easement or profit, and does manifest the intention to possess.”

36. They address Littledale specifically at para.9-75. “As to Littledale , a person with a right of way over a track has no right to erect a locked gate at the end of the track. By erecting it, he does exclude the owner of the track and the world at large. It may be that his motive in erecting the gate is to prevent the public from interfering with his right of way. In Littledale , the public had thrown rubbish on to the strip, and it may be that the gate at the Penny Lane end was erected to address that problem. However, if the effect of erecting the locked gate is to exclude the world at large, including the owner, so that the squatter is in exclusive control of the strip, then it should not matter that his motive is to protect his existing right of way.”

37. I also note here para.9-77, which is as follows. “Where a person who enclosed land only claims an easement over it, that is clear evidence that he does not have the subjective intention to possess, even though his actions would suggest that he does have that intention. The decision in Sohn can perhaps be justified on that basis.”

38. That is an important passage, because it ties in with Mr Wheeler’s evidence about his use of the Disputed Land, which the Respondent relies on.

39. Returning to the question of the current status of Littledale , I have considered the decision in Amirtharaja v White [2021] EWHC 330 (Ch) . In that case, Michael Green J considered Littledale and Pye and held that the House of Lords had not overruled Littledale in relation to the potentially equivocal nature of the acts of enclosure where the person has a right of way: see [60]. This point was not in issue in the subsequent second appeal to the Court of Appeal: [2022] EWCA Civ 11 , see at [42].

40. The relevant land in the Amirtharaja case was a passageway about 1m wide and 5-6m long, which ran between the brick walls of an office building and a workshop. It was blocked at one end by a locked door and at the other end by rubbish. The respondents to the appeal, who had been the claimants in the county court proceedings at first instance, owned a house situated at one end of the passageway. They claimed to have acquired title to the passageway through adverse possession, relying on the acts of their predecessor-in-title to the house, a Mr Bright, which included enclosing the passageway and some storage use.

41. The trial judge had held that this was sufficient to demonstrate adverse possession, but this was reversed on appeal. Enclosing the passageway by means of a locked door (and, seemingly, a locked gate as well) was equivocal as it could be to protect a right of way along the passageway rather than to take possession of it.

42. Michael Green J also thought it significant that Mr Bright had not purported to transfer title to the passageway, saying at [85] that “the clearest evidence that Mr Bright did not truly believe that he owned the Passageway is the fact that he did not even purport to transfer title to it to the Respondents”. I confess to being slightly confused by this passage, because it is well-established that an intention to own is not part of the necessary intention to possess: see Pye at [42]-[43], where the contrary view in Littledale was described as “heresy”.

43. I have found some assistance in navigating through these issues in the recent decision of this Tribunal in the case of Smith & Guilder v Basildon BC [2025] UKFTT 181 (PC), which contains a very helpful discussion of the law of adverse possession of roadways and tracks: see [64]-[70] and [93], in which Judge Paton refers to Thorpe v Frank , which I have already cited above, and Williams v Usherwood (1983) 45 P&CR 235, drawing a distinction between those cases, as “domestic driveway” possession cases, and the Littledale and Amirtharaja line of cases.

44. It is perhaps useful at this point to refer to Williams v Usherwood . The facts of that case were rather different to the current case, because it concerned a common driveway that was split roughly in half, with two properties each owning one-half and having a right of way over the other half. One of the issues in that case was the relevance of having parked cars on part of the land. The Court of Appeal held that parking of cars is in its nature discontinuous, and different parts of the land must have been used for that purpose. The significance of parking varies greatly according to the exact circumstances of the relevant ground. Parking cars on a strip of waste land may have no evidential value whatever in relation to possession of the land. In the enclosed curtilage of a private dwelling-house, however, it may be regarded as evidence of possession.

45. The disputed land is unregistered and so the Applicants need 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 their favour.

46. Finally for the purposes of this section, I remind myself of an important and fundamental point, which is that it is the Applicants who claim title by way of adverse possession and so the burden of proof is on them. THE EVIDENCE

47. The Tribunal heard evidence from both Applicants and the Respondent. Each party also relied on one other witness who gave some evidence about the historic position. For the Applicants, this was Mr Paul Ashton. For the Respondent, this was Mr David Wheeler, the Applicants’ predecessor-in-title.

48. I discussed the Tribunal’s approach to witness evidence and fact-finding at some length in Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC), at [67]-[86]. I shall adopt that same approach here. I hope that I can be forgiven for not lengthening this judgment by repeating the points I made about that approach in Ebanks , save to note what is perhaps the most important point, which is that in determining disputes of fact, the Tribunal applies the civil standard of proof, being the balance of probabilities, or whether something is more likely than not.

49. The Applicants’ first witness was Paul Ashton. Mr Ashton had lived around a mile away from these two properties until 2002, when he moved out of the area. From 1991 he had, together with Cyril Needham, kept a flock of sheep on land belonging to Marlpit Cottage. Mr Ashton accessed the land where the sheep were kept by going over the Disputed Land. He said that he did this every day, sometimes multiple times a day. This continued for a while after Mr and Mrs Wheeler bought Marlpit Cottage and then at some point in 1998, Mr Wheeler asked him to stop using the fields and the Disputed Land. In my judgment, Mr Ashton was plainly a truthful witness doing his best to assist the Tribunal. He indicated where he could not be entirely sure of details, such as dates. He had not previously been friends with the Applicants and explained that he only met them for the first time at the hearing. He said that they would have found out about him because he was known locally by the wonderfully agrestic name of the “sheep man”. I accept his evidence, although it only takes the Applicants so far because Mr Ashton can only give direct evidence about the limited time that he would have spent going back and forth over the accessway.

50. There is a further point to make about Mr Ashton’s evidence. His witness statement was short, being only 15 paragraphs. His oral evidence lasted just over a quarter of an hour. Mr Ashton had travelled from Cornwall to give evidence. I understand that problems with the trainlines had made that an even more arduous journey than it ordinarily would have been. Even without those problems, which could not necessarily have been predicted, it was clear that he would have to travel a great distance. In the end, his evidence was not subject to any serious challenge. It seems rather surprising that it was not capable of having been agreed and his attendance spared.

51. The Applicant’s next witness was the First Applicant, Sean Phillips. He had submitted two detailed witness statements, running to 44 and 18 paragraphs respectively. The Respondent questioned the First Applicant quite fairly. There was little disagreement between them during this process. In my judgment, the First Applicant was an honest witness who was generally doing his best to assist the Tribunal. Some of his written evidence was commentary or effectively seeking to draw conclusions, but insofar as he gave evidence of facts, I accept his evidence. I will refer to relevant parts further in the next section of this decision.

52. The Applicant’s final witness was the Second Applicant, Elisabeth Phillips. She explained at the start of her oral evidence that she agreed with her husband’s evidence. I indicated to the parties that her evidence could therefore be treated as having been challenged in the same way that his evidence was, without the need for the Respondent to put all the same questions to her (bearing in mind that he was a litigant in person). The parties accepted this approach and so her evidence was dealt with quite briefly. This was a sensible and proportionate way for the parties to deal with her evidence. That is the case even though it should be recorded that she had actually submitted four witness statements. Two of these related to the disclosure process and the conveyancing file for the Applicants’ purchase of Marlpit Cottage. As I understood it, nothing about those statements was now in issue and so her relevant evidence was contained in the two substantive statements. In that regard, her factual evidence in support of the adverse possession application was, as I have already indicated, effectively the same as the First Applicant’s evidence.

53. I am satisfied that she was also an honest witness and I therefore accept her evidence on matters of fact.

54. Mr Mulira gave evidence in support of his case. His witness statement was extremely brief. That is not necessarily a criticism as (a) it is the Applicants’ adverse possession claim and the burden is on them to prove it (indeed, a respondent might choose to rely on no evidence where they say that even if an applicant’s evidence is all correct it does not amount in law to adverse possession), and (b) he had only been the owner of the neighbouring property for around three years before the application was made.

55. The statement itself was still not particularly helpful as it mainly consisted of assertions rather than evidence of fact. The Respondent was able to expand on some of this in his oral evidence. Having heard him give evidence, I am satisfied that he was also an honest witness.

56. I do, however, consider that there were times when he was prone to exaggerating slightly, particularly about the extent of his use of the Disputed Land and the ease, and practicality, of accessing it from The Gables. By way of example, he claimed that a large post knocker could have got onto the Disputed Land through gaps in the hedge. I was shown a photograph of this machine. I reject as entirely fanciful the suggestion that this vehicle could get through the hedge, at least without significant damage having been done to the vegetation. This slight element of exaggeration is a most natural tendency in an attempt to present the strongest possible case and does not detract from the majority of the Respondent’s evidence, but does mean that I need to exercise some caution with some of the new details that emerged for the first time in his oral evidence. At p.535 of the bundle.

57. The Respondent’s other witness was Mr Wheeler. As already explained, he was (with his wife) the Applicants’ predecessor-in-title. He has previous litigation history with the Applicants. He explained that he had won that case and been awarded costs in full, and so had no reason to seek to retaliate against them by supporting the Respondent in this case. It was, however, quite clear to me that he harboured some animus towards the Applicants. I suspect that this was because of that previous litigation, despite his denials, but whatever the cause of his ill-will towards them, it is my judgment that it has so coloured his approach to evidence in this case that his evidence cannot be relied on to any extent in these proceedings.

58. In several respects, Mr Wheeler’s evidence was just not credible. He told me that he had thought that the unregistered land stopped north of a turning circle and parking space that he used. He then accepted that he had seen a statutory declaration and plan showing the accessway running further south than that before purchase, and so knew at the time of his purchase that the accessway extended significantly further south than he said. He also accepted that his own statutory declarations made in 2016 and 2017 included plans showing the full extent of the unregistered land. His evidence to this Tribunal that he did not know that it continued as far as it did was not true.

59. Mr Wheeler’s evidence about the motivation for installing a gate was rather suspect. In his statutory declarations, he had said that this was fitted on 17 th February 1997, which was just 19 days after the purchase had completed. He explained in oral evidence that his builder had suggested this, to ensure the security of any of the builder’s tools and materials that were left there during building works, and so the gate was installed out of a fear of a potential break in. In his witness statement, however, he said that this was fitted following a break in. He sought to explain this as meaning that the gate had been installed as a combination of both factors, i.e. the break in and the builder’s suggestion. He confirmed that they were not living in the property at the time. Much later in his oral evidence, Mr Wheeler complained that a passage in Mr Ashton’s statement, in which Mr Ashton had said that he notified the Wheelers of a break in, was not correct because Mrs Wheeler’s wife had opened the curtains in the morning and discovered it. When I checked this with him as he previously said they were not living there at the time of the break in, Mr Wheeler replied with a shrug that he might be mistaken. In my judgment, he was so desperate to score points against Mr Ashton’s statement that he could not keep his timeline straight in his head.

60. Mr Wheeler was also prone to arguing about the meaning of words when they did not suit his purpose. He was asked what he meant about “occupied” in his statutory declarations. He said that this meant “owned”. When it was pointed out to him that he had said that he “occupied” the driveway, which by his definition meant that he owned it, he said that the word “occupied” there meant “used”. This did not help him either, as he had actually said “used and occupied” so one would expect the latter word to mean something slightly different to the former. The problem for Mr Wheeler was that he could not explain his pre-litigation wording with his dogmatic insistence in evidence in these proceedings that he did not have an intention to possess the access land.

61. At points in his evidence, Mr Wheeler repeated, almost as a refrain, that he had not had any intention to possess. The Respondent got him to confirm this in re-examination. I asked Mr Wheeler if he understood what that meant. He said that he did, but then proceeded to give an incorrect explanation.

62. While Mr Wheeler then agreed with the Respondent, who in attempt to salvage the situation asked him if he had intended to exclude the world at large and the paper title owner, I am unable to accept Mr Wheeler’s evidence. He had demonstrated that he was willing to agree with any proposition put to him by the Respondent, even when he did not understand it, and so I do not place any weight on his answer to that question.

63. In 2014, Mr Wheeler had written an email intended for potential purchasers who were asking about the status of the driveway. He wrote that “I’m led to believe it’s unregistered and think I’m correct in saying we could have registered as part of the cottage but not having any problems we couldn’t see the point”. He agreed that this meant that they could have applied for adverse possession but did not need to. As I explained, they could only have applied if they had had the requisite intention to possession, so this suggested that they did. Mr Wheeler accepted this.

64. It is worth noting that in his oral evidence the Respondent had, in my view quite correctly, accepted that he would not necessarily know if any of Mr Wheeler’s written evidence was wrong, although he made the fair point that he had no reason to think that any of it was wrong. This was, of course, before Mr Wheeler had given his oral evidence. In my judgment, it was quite apparent after that process that much of Mr Wheeler’s evidence was worthless, as I have already indicated. DISCUSSION & ANALYSIS

65. It can immediately be observed that this is far from being a clear case of adverse possession. The acts relied on by the Applicants are generally rather slight, particularly given the difficulties they face in establishing adverse possession as they already have the benefit of a right of way over the Disputed Land. Furthermore, they are forced to rely on the actions of their predecessor-in-title, despite Mr Wheeler’s strident protestations that at no point was he in adverse possession of the Disputed Land.

66. There is one point to make here about the right of way. The entry on the title for Marlpit Cottage is only to the effect that a right of way is claimed to exist. Some of the authorities draw a distinction between cases where there is a right of way and cases where the purported squatter’s actions could form the basis for an easement by prescription. There may be a possibility that, if the paper title owner was to emerge and challenge the Applicants, there is no right of way for the benefit of Marlpit Cottage and the claim recorded on their title is, in fact, wrong. That might be thought to be extremely unlikely in this case, but it remains at least a theoretical possibility. In my judgment though, the Tribunal should approach this as a case where the Applicants do already have the right of way claimed, because that formed the basis for their county court proceedings against the Respondent and they cannot now argue in these proceedings that they do not have the benefit of a right of way. It is only fair to the Applicants to record that they did not seek to argue to the contrary.

67. The next point which can conveniently be addressed at this stage is the status of Mr Wheeler’s evidence that he did not intend to possess the Disputed Land. The Applicants submitted that this evidence was self-serving and of little evidential value, in just the same way that statements made by people claiming to have the requisite intention are often criticised. I do not accept that this will necessarily follow in every case. In Powell , Slade J said that “past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi ”, suggesting that statements pointing one way will normally be afforded more weight than statements pointing the other. In this case though, Mr Wheeler’s evidence was so thoroughly discredited that I cannot place any weight on his claims that he did not intend to possess the land. That is not because they are as equally self-serving as claims by a squatter that they did have the necessary intention, but because on the particular facts of this case Mr Wheeler’s evidence was simply not credible.

68. In any event, as Michael Green J explained in Amirtharaja , at [50], “actions speak louder than words”. The actions relied on by the Applicants are, I think, best and most clearly summarised at paragraph 74 of the Second Applicant’s witness statement, dated 30 th April 2024. In my view, the key points that they rely on are as follows (taking them in a slightly different order to the witness statement).

69. First, insofar as the Disputed Land is a driveway, this driveway has been to all appearances completely incorporated into Marlpit Cottage, with brick edging and gravel surface, and a turning circle built by the Wheelers, which makes it all appear to be a seamless part of one driveway solely for Marlpit Cottage. The brick edging and gravel along the Disputed Land matches that on the Applicants’ registered land.

70. As part of the argument that the driveway is all incorporated as part of Marlpit Cottage, the Applicants also point to the installation of house signs and letterboxes.

71. Secondly, planting boundary treatments, in the form of hedges, and maintaining those and mature hedges and trees. The Applicants rely on the planting of leylandii and laurel hedges. The latter can be discounted for the purposes of the present application, as it did not take place until 2022. The former is still relevant, although this was in 2018 and so can only cover a limited time span.

72. Thirdly, the Applicants rely on having erected wooden fencing. Again, it is worth noting here the timing of this. The Applicants say that they installed an 11m post and rail fence on 30 th May 2021 and a close board fence in April 2022. As before, the latter must be discounted for the purposes of the current application. In my view, the former is so close to the date of the application as to be of no real value in this referred matter.

73. Fourthly, installations of water and electricity services under the driveway, including for a lamp post.

74. Fifthly, the installation of a gate by the Wheelers. The Applicants subsequently replaced that with an electric gate, but that was in the month before the hearing and therefore not relevant.

75. Sixthly, the Disputed Land had repeatedly been referred to as “our driveway” by successive owners of Marlpit Cottage and referred to as a “private driveway” in sales particulars. Mr Wheeler had also described it as being “used and occupied” by him and his wife, as I have already indicated.

76. The Respondent made two particularly powerful points in response.

77. The first is that the Disputed Land had not been fully enclosed by either the Applicants or their predecessors-in-title, because no fence was ever put up by them along the western edge of the Disputed Land until the Respondent himself arranged for a fence to be installed in June 2021 (which was then relocated the following year). This is a particularly important point in the present case because when I asked the Respondent what an occupying owner would have done that the Applicants had not done, his answer was commendably short and to the point, saying that an occupying owner would have fenced the land (precisely as the Respondent himself effectively did).

78. The second key point made by the Respondent is that such use as there may have been of the Disputed Land was entirely consistent with the lawful use of the right of way for the benefit of Marlpit Cottage.

79. I start with the argument that the driveway has, in effect, been incorporated into Marlpit Cottage. It is helpful to consider the state of the Disputed Land before the Wheelers came onto the scene. I was referred to a photograph of Marlpit Cottage taken at some point prior to 1997. Two parallel lines of a track can be seen running through the Disputed Land in front of the house, demonstrating the state of the Disputed Land prior to the purchase by the Wheelers.

80. Mr Wheeler agreed in his oral evidence (albeit a little reluctantly in relation to some points) that he and his wife had excavated the driveway and extended it to create a turning circle, which was partly on the Disputed Land and partly on their registered land. This had involved laying base layers, with gravel chippings on top. Brick edging lined the gravel surface. There is an invoice suggesting that at least some of this work was carried out in 1999, and it is clear from the following extract of an aerial photograph that it had been completed by 2001.

81. Three points can be made about this photograph. First, the majority of the “turning circle” can be seen at the bottom, near to the cottage building. Although not clearly visible in this picture, I am satisfied from other evidence that the left-hand part loops back around and joins up under the tree cover with the main track, thus facilitating turning. From the notice plan reproduced at paragraph 2, above, the right-hand part of the track is on the Disputed Land, with the left-hand loop on what is now the Applicants’ registered land. Secondly, although also obscured by the tree cover, it was agreed by Mr Wheeler that the same gravel surface ran all the way to the road. Thirdly, the extent of the vegetation along the western side of the majority of the Disputed Land is readily apparent, which is relevant to the Respondent’s argument that this did not create a sufficient barrier. It is perhaps closer to an oval than a circle.

82. I find that the brick edging was the same for the parts of the driveway that were on the Disputed Land and the parts that were on Marlpit Cottage land. Mr Wheeler did not suggest to the contrary and it makes sense if this was all done as one piece of work.

83. In my judgment, the effect of this work was very much to incorporate the accessway on the Disputed Land into the broader Marlpit Cottage setting and made it indistinguishable from the parts that the Wheelers incontrovertibly owned. Furthermore, in my judgment this went well beyond mere maintenance. It was active and substantial development. This work was much more than would have been necessary to allow the Wheelers to exercise the right of way over the Disputed Land.

84. Mr Wheeler was asked about the arrangements for parking cars. He explained that they had three cars, two of which were parked in the garage and one of which would be parked on the driveway. The position that he identified for that other car was very firmly on the Disputed Land, and I am therefore satisfied that the Wheelers routinely used at least part of the Disputed Land for parking a car. While it may sometimes be possible to acquire a parking easement, it is my judgment that the parking of a car was plainly an act of possession when the nature of the location as the curtilage of a private dwelling-house is taken into account (and see Williams v Usherwood ).

85. The impression given of the Disputed Land being incorporated with Marlpit Cottage is enhanced by the Wheelers’ acts of installing a letter box and house sign at the northern end of the Disputed Land. That does not, as was suggested to me, indicate some kind of direction to the house. The most natural interpretation of that arrangement is that it is marking the start of the Marlpit Cottage property. I also accept the Applicants’ evidence that in 2019 they replaced the house sign with a new one that they had purchased.

86. I turn now to the maintenance and planting of boundary features. The hedge and tree line along most of the western side of the Disputed Land is also extremely important when considering the Respondent’s powerful point that the Applicants cannot succeed in their claim for adverse possession without a fence having been installed along this line.

87. The evidence demonstrated that the Wheelers regularly carried out maintenance to the hedge. Mr Wheeler was oddly evasive about this, but I am satisfied on the balance of probabilities that they were responsible for doing so and that this went beyond the degree of maintenance that might be required purely to safeguard the route of access along the right of way.

88. I also accept the Applicants’ evidence that they have continued the maintenance of the boundary features and latterly bought and planted leylandii.

89. There was also some evidence that trees might be cut back by utility companies such as Western Power or National Grid, because there were above-ground electricity wires. I accept the Applicants’ case that the relevant operatives would ask them for permission before coming on to the Disputed Land and carrying out this work. I agree with the Respondent that these operatives would not necessarily know who the owner of the land was, but that only serves to illustrate the effect of the appearance of this land, in that third parties assumed that it was part of Marlpit Cottage and, so it would appear, the Applicants did not do anything to disabuse them of that notion but acted as the owners might.

90. In his Statement of Case, the Respondent had pleaded that he had also maintained the trees and hedges, referring to invoices that showed he had incurred the cost of this work. In his oral evidence, he was asked about an invoice addressed to him and explained that he was not present when the work was carried out and so did not know whether work had been carried out from The Gables side or from the Disputed Land. I was referred to an email from the contractor who said that he was “pretty positive” that it had been carried out from The Gables. The Respondent also accepted that it was possible that his contractors were cutting back limbs that were overhanging his property (something that he would be entitled to arrange).

91. While it is possible that the Respondent may have arranged for some works to be carried out with access from the Disputed Land, the First Applicant’s evidence was that there had been a conversation at one point in which he had given permission for the Respondent’s contractors to use the Disputed Land for access should they need to. The Respondent said in his oral evidence that he did not recall asking for permission but accepted that it was possible that he had done. The First Applicant was not otherwise expressly challenged on the point and I accept his evidence.

92. I am therefore satisfied that, prior to the dispute breaking about between the parties, any maintenance that the Respondent carried out either did not involve any use of or access to the Disputed Land or was with the Applicants’ permission.

93. While the Respondent suggested that his predecessor-in-title might also have made use of the Disputed Land for maintenance of the hedges or some other reason, there was no good evidence to suggest that this was the case. Mr Ashton’s evidence was to the contrary, albeit he clearly would not have been monitoring the area around the clock. There is no apparent reason why any previous owner of the Respondent’s property would need to make use of the Disputed Land. The only potentially useful evidence for the Respondent on this point was some oral evidence given by Mr Wheeler. He said that Mr Fogarty would cut the hedges back, by walking through the hedge and tidying it up. I do not accept Mr Wheeler’s evidence on this point. He had not mentioned this at all in his written witness statement. It is entirely contrary to his earlier statutory declaration, in which he had said that the “adjoining properties do not use the Accessway and have no access to their properties leading from the Accessway … I and my wife have had sole use of the Accessway for the period in which we have lived in the property”. He attempted to explain away this inconsistency by saying that the point being made in the statutory declaration was that there was no vehicle access, but that is not what he had said in the statutory declaration.

94. The Respondent’s view that Mr Fogarty might have made use of the Disputed Land was purely supposition based on an overly fanciful and rather tendentious interpretation of some very limited evidence. He drew the Tribunal’s attention to photographs from May 2018, and a topographic survey from shortly after he purchased his property. At p.549 of the bundle. He submitted that it was possible to see large gaps of sunlight through the treeline at ground level and that the vegetation was not dense. I do not interpret the photographs in quite the same way as the Respondent. I accept that there are some gaps, but this is vegetation, not a brick wall. I realise that even then the existing vegetation might be compared with a feature such as a formal hedge, which would represent more of an obstacle, but the point here is that there is nothing to suggest any sort of sufficient break in the treeline for regular access except in an extremely inconvenient way. Even if there were any gaps, it is a huge leap, unsupported by any other evidence, to say that they were used for access to the Disputed Land. In my judgment, the Respondent’s analysis of the available evidence is wholly unrealistic. At p.402 of the bundle. He also referred to a boundary plan from 2021, but it is my view that this is less significant than the other two pieces of evidence, because th ose assist him in showing what the l ie of the land was in the period before his purchase ( which he himself cannot give much evidence about ) .

95. I accept the Second Applicant’s evidence that when they purchased Marlpit Cottage, the Disputed Land was bordered on its western side by a dense hedgerow that nobody could get through. To the extent that anyone could possibly have squeezed through, this would have been a difficult exercise. To all intents and purposes, the line of vegetation operated as an enclosing feature. I therefore respectfully disagree with the Respondent’s suggestion that it was necessary to enclose the Disputed Land by erecting a fence.

96. Indeed, this is one area where Mr Wheeler’s oral evidence was quite illuminating. He said that he considered the hedge as a suitable alternative boundary feature to a fence and that there was no need to install a fence for security reasons.

97. It is also important here to have regard to the reality of the situation on the ground in the particular circumstances of this case. There is no need to separately enclose the southern part of the Disputed Land as it is bordered on both sides by the Applicants’ land. It would be entirely artificial to expect the Applicants, or their predecessors-in-title, to have fenced the edges of this part of the Disputed Land and made it harder for themselves to access it.

98. As I have already said, the fencing erected by the Applicants does not really assist them in this application due to the relative lateness of its installation. It is my view, however, that this is not fatal to the current claim for the reasons given above.

99. The Applicants’ next point is the installation of electricity and water services. They had referred to a lamppost, which they considered might have been installed by Mr Wheeler. He had said in his witness statement that this had been installed by the previous owners. In oral evidence, when faced with compelling evidence that the electrical wires serving this lamp cannot have been installed until after he and his wife purchased the property, Mr Wheeler accepted that they had installed the electricity supply for the lamp. His witness evidence about the lamppost was therefore a little disingenuous, as I think he was driven to acknowledge, but I have already expressed my criticisms of his evidence and do not need to labour the point here.

100. Based on Mr Wheeler’s admission on this point, I find as a fact that he and his wife had the electricity supply for the lamp installed. I am satisfied on the balance of probabilities that the lamppost had been installed by a predecessor-in-title of the Applicants. To the extent that it matters, I consider it more likely that this was before Mr Wheeler came on the scene. Although I have considerable doubts about much of his evidence, it would not make sense for him to deny installing the lamp, while accepting responsibility for installation of the electricity supply, unless this part of his account was true.

101. It is also apparent that other services, for water, electricity, and telecommunications, have been installed below the surface of the Disputed Land in order to serve Marlpit Cottage.

102. It appeared to be common grounds that mains water pipes serving Marlpit Cottage had been installed in the Disputed Land during the Wheelers’ ownership of the house.

103. Although Mr Wheeler denied having had work carried out to enable water and electricity services to be installed for the garage, I reject his evidence on this point. As it had been necessary to lay pipes for a mains water supply for the house, I am satisfied that it is more likely than not that water pipes would also have needed to be installed for the garage to have any water supply. I also find that the Wheelers had new electric services installed, because this is what they had said in their replies to enquiries when selling the property. Mr Wheeler accepted in his evidence that telecommunications cables had been laid under the driveway and I am therefore satisfied that this was done through part of the Disputed Land.

104. The Respondent relied on an observation made by the Tribunal when declining to strike out the Applicants’ case that “the fact that a party may have laid pipes or other services under a road does not necessarily amount to possession of that road, although it might in time generate an easement for the use of those pipes or services”. He accepted though that this was really a question of fact and degree. In my judgment, he was right to do so. Whether the installation of the various pipes and services helps to demonstrate possession needs to be considered in the context of the totality of acts relied on.

105. Next is the important issue of the gate. I am satisfied that a gate was installed by the Wheelers in 1997. I am also satisfied that they sometimes kept this gate locked. Although Mr Wheeler had argued in his oral evidence that it was not locked routinely, this was at odds with his evidence of when and how the gate was locked, which very much suggested a routine. Having heard his oral evidence about the gate being locked at night when he was away working in London, I find as a fact that the gate was locked on more nights than it was not. I also accept that the gate was locked when the Wheelers would go away for holiday. The Wheelers therefore had full control of the gate, as Mr Wheeler acknowledged in his oral evidence. I confess to some considerable doubts over Mr Wheeler’s evidence that the key for the lock would be kept inside the house when they were away on holiday, as this seems an extremely impractical arrangement, but I do not think that anything really turns on whether the key was kept with them or in the house. The significant points are that the gate was kept locked at those times and the Wheelers were in full control of it.

106. The final key point made by the Applicants relies partly on descriptions of the Disputed Land as a “private driveway”. I do not think that this provides them with any great assistance. As Judge Paton has previously said, this description would be consistent with use through a right of way or possession. See the learned judge’s order of 6 th December 2023, at pp.662-663 of the bundle.

107. Of more relevance are other statements made by Mr Wheeler. I was shown two statutory declarations sworn by him on 14 th December 2016 and 13 th April 2017. In both of these, he had said that he had “used and occupied the Accessway continuously since the date of purchase”.

108. It is only right to note that the statutory declarations were clearly prepared in the context of a discussion about a right of way. That is apparent from a passage which talks about using the land “without force, without secrecy and without permission”, which is the language of prescriptive easements. It would also seem to follow from additional text which features in the later statutory declaration, so that it became a claim that he had “used and occupied the Accessway continuously since the date of purchase, for both vehicle and pedestrian access to the Property.”

109. Even allowing for that purpose, it seems to me that there is some significance in the phrasing that was chosen. As I have already observed, Mr Wheeler talks in those declarations of having occupied the Accessway (which is the Disputed Land), and his evidence at the hearing was initially that this meant that he and his wife owned it. In my judgment, that was the meaning that he intended in his statutory declarations at the time that they were made. His attempts to row back from this in oral evidence were most unimpressive.

110. I was also referred to an email exchange involving Mr Wheeler in 2014. I have already referred to part of this above, but it is perhaps helpful at this point to set it out in a little more detail. On 11 th December 2014, some potential purchasers had written to an estate agent raising several questions. One of the topics for questioning was as follows. “From the Land Registry plan and documents it would appear that the driveway access (including down and past the main house) are not owned by Marlpit. Do you or the vendors know: - Is that Land Registered or Unregistered land? - who actually owns it? - who else has access to/ along it? - who maintains it? - have the vendors got a legal opinion on this-it would appear to be a claimed right not a given, so for example, could the land owner in theory, for example, park vehicles in front of the cottage?”

111. This was passed on to Mr Wheeler by the estate agent, and his response on the relevant point is set out below. “I was led to believe the church was involved many years ago and it was thought at the time of our purchase it would be best to take an indemnity policy out which we did. The church has since been demolished and I can categorically state not one incident has occurred in the years we’ve lived here. We maintain the driveway and have done so since our purchase. I understand nobody has the right of way. I’m led to believe it’s unregistered and I think I’m correct in saying we could have been registered as part of the cottage but not having any problems we couldn’t see the point.”

112. This is, of course, relatively caveated in its terms, but as already noted above, Mr Wheeler agreed that it meant that he had been led to believe that he could have the Disputed Land registered as part of Marlpit Cottage, because he could have claimed adverse possession of it, and that this meant that he had the requisite intention to possess.

113. In my judgment, his position in 2014, and 2016-17, was inconsistent with his witness statement given in these proceedings.

114. Furthermore, there was additional material which was consistent with having treated the Disputed Land as part of Marlpit Cottage, such as a site plan for a planning application. At p.267 of the bundle.

115. In my view, it is important at this stage to consider the nature of the Disputed Land because that is key to understanding what can or must be done with in order to establish adverse possession. It is a long and thin strip of land, running from the road up to and alongside a residential property. There is no meaningful or realistic access to or from any other property. It is quintessentially a driveway for a single property, i.e. Marlpit Cottage.

116. I consider that it is also important to step back and look at all the activities carried out by the Applicants and their predecessors-in-title to get a complete picture, rather than examining each in isolation and failing to add them all up. An act that may, of itself, not be enough to demonstrate adverse possession may still be relevant when considered alongside various other acts, even if each of those taken on their own might not be sufficient. The Tribunal needs to consider the cumulative effect of the use of the land and reach what is, in effect, an evaluative judgment. See, e.g. , Terry v Dyer (“a degree of latitude within the factual parameters of the case before it which the evidence properly establishes”, cited at paragraph 29, above).

117. In my judgment, the cumulative effect of the various acts done to and on the Disputed Land is sufficient to paint a picture of the owners of Marlpit Cottage being in adverse possession of it. It seems to me that there was little more that they could do with this land. The only “missing” step was that identified by the Respondent, who said that they could have fenced in the Disputed Land. In my judgment, for reasons that I have attempted to set out above, fencing was not required on the facts of this particular case. The hedge and tree line already formed a boundary feature that secured the Disputed Land along the majority of its western edge. Any fence along the remainder would have been artificial as the southernmost portion of the Disputed Land is sandwiched between land owned by the Applicants.

118. It seems to me that there is much to be said for the view expressed about gates at para.9-74 of Adverse Possession , but I shall proceed on the basis that the gate is equivocal because of the right of way. I have to say that I would be inclined to consider that, even if a gate could be equivocal, there is no equivocality about gate in this case when it is analysed in the context of the other matters identified by the Applicants. It is my view though that this is the correct conclusion on the particular facts of this case even if the gate is left out of account entirely because of Littledale and Amirtharaja . While I recognise that some of the other acts are relatively minor, it is my judgment that the totality of the relevant acts, as I have assessed them above, is sufficient to demonstrate both physical control and an intention to possess. Although the case for the Applicants is stronger if the gate is taken into account, I consider that they still succeed if it is ignored.

119. I accept the Respondent’s oral evidence that there have been occasions when he has trespassed onto the Disputed Land and not been challenged by the Applicants about it. This tied in with some of the entries on a table of incidents recorded by security cameras that had been produced by the Applicants. The Respondent accepted that it was reasonable that he was not challenged at the time, either because the Applicants were not present or because the First Applicant was away and the Second Applicant was home with young children. His point was that no challenge, such as a letter or other correspondence, was made later. At p.610 of the bundle.

120. I do not consider that these instances mean that the Applicants have not been in adverse possession of the Disputed Land. They were all after the application had been made and so not directly relevant, although I acknowledge that they might shine some light on the pre-application position. Even then, these incidents do not show much. The Applicants need to establish they had dealt with the land as an occupying owner might normally be expected to do and that they intended to exclude the world at large, so far as reasonably possible. This was a situation where the Applicants had made their position perfectly clear to the Respondent. He chose to continue to go onto the Disputed Land, despite their repeated objections. It would be, quite frankly, futile and waste of time and energy for the Applicants to follow up every incursion with a letter or some other complaint, given that the Respondent had by his actions made it plain that he was not going to listen. I do not consider that an occupying owner would necessarily have done any more. Nor do I consider that a failure to challenge on every single occasion means that the Applicants did not intend to exclude the Respondent and the world at large.

121. In his skeleton argument, the Respondent had asked the Tribunal to make an order requiring the Applicants to remove a fence which was obstructing his access and to provide a means for him to enter onto the Disputed Land at any point in accordance with his established practice. This was based on his understanding that the Tribunal could make orders to remove obstructions or to ensure access and in his skeleton argument. This was based on Tribunals, Courts and Enforcement Act 2007 , s.11 , but that is about rights of appeal to the Upper Tribunal.

122. The Respondent’s understanding was mistaken, as the role of this Tribunal is to reach a decision on the referred matter, which is the Applicants’ application to be registered as proprietor. In an appropriate case, the Tribunal may be able to give an additional direction to the Chief Land Registrar to make a specific entry on the register of any title affected, which could potentially include an entry regarding a right of way. That would not, however, extend to making orders to control any interference with a right of way. That is the province of the courts.

123. In any event, this is not an appropriate case to make any direction about a right of way for the benefit of the Respondent’s land. The Respondent’s evidence does not get anywhere close to demonstrating that a right of way has been established for the benefit of his land. Use by the Respondent himself would not be for a long enough period to establish a right of way by prescription, but I am also not satisfied that the nature of his use would be sufficient. First, his access has, in my view, been too infrequent and does not demonstrate the exercise of a particular right of way because, on his own account, he was on some occasions doing nothing more than nipping between gaps in the vegetation and back again rather than following a specific route. Secondly, the Respondent’s use has not been of right. It has plainly been contentious because the Applicants have repeatedly objected. There might be an interesting argument about whether their objections would be sufficient to make the Respondent’s use contentious if they only had the benefit of a right of way themselves, but that does not arise given my findings about adverse possession. I have dealt above with the suggestion that the Respondent’s predecessor-in-title may have made use of the Disputed Land. Even if Mr Fogarty did occasionally trim the hedge from the Disputed Land, this falls a long way short of establishing any easement. CONCLUSION

124. For the reasons given above, the Chief Land Registrar will be directed to give effect to the Applicants’ application as if the Respondent’s objection had not been made.

125. As the Applicants have been successful in these proceedings, my preliminary view is that they should be entitled to their costs. That is no more than a provisional view and the order that accompanies this decision will allow both parties to make written submissions on liability for costs. I would, however, strongly urge the parties to see if it is possible to reach agreement on that and on any other issues. They are going to continue to live beside each other and will need to find a way to get along. Now is a good time to start. Dated this 9 th March 2026 Judge Robert Brown By Order of The Tribunal