Elizabeth Roseanne Dobson & Anor v Alison Unsted & Anor

Introduction

1. This is an appeal from a decision of the First-tier Tribunal about adverse possession. The FTT directed the registrar to cancel the appellants’ application to be registered as proprietors of a small area of land next to the boundary of their property, forming part of the respondents’ registered title. Permission to appeal has been granted by this Tribunal on the ground that it is arguable that the judge erred in finding that the appellants’ actions and the conduct of their predecessors did not amount to adverse possession prior to 2018.

2. The appellants have been represented in the appeal by Mr John Aldis and the first respondent by Mr Robert Weatherley, both of counsel, and I am grateful to them. Mr Unsted did not take part in the appeal but I refer to Mr and Mrs Unsted as the respondents for convenience. The two properties and the disputed land

3. The appellants live at number 29 Westcott Hill, Dorking, Surrey, RH4, and the respondents at number 27 next door. The drive of number 29 does not lead straight on to the road at the front of the properties but joins up with the drive of number 27; the disputed land is a very small triangle (about 1m by 2.3m) of land between the edge of the drive and the boundary between the properties. It can be seen on the plan below, taken from the first conveyance of number 29:

4. The photograph reproduced on the following page is from the sales particulars of number 29 prior to its sale in 2002, when the original proprietors Mr and Mrs Curran sold to Mr and Mrs Hewetson. It will be seen that the front lawn has two levels, separated by a wall, and that the disputed land is on a slope from the upper to the lower level.

5. The photograph below was taken in 2012. It will be seen that concrete setts marked the boundary where it crossed the drive (they can also be seen faintly in the picture above), and also the boundary with the highway, so that the front corner of the boundary between the properties is at the intersection of the two lines of setts. The front lawns of each property are undifferentiated from grass verge owned by the local authority (on which the street lamp stands).

6. The land on which the two houses stand was formerly in common ownership. In February 1994 the plot for number 29 was sold by Stonecot Homes Limited to Peter and Alison Curran, who had the house built; that conveyance therefore created the boundary. The property of course has the benefit of a right of way over number 27’s drive. Number 27 was sold by Stonecot Homes Limited to Peter and Ann Sparks in May 1994. From then on the devolution of the ownership of the two houses was as follows: Number 29

7. Mr and Mrs Curran lived at number 29 until they sold it to Mr and Mrs Hewetson in 2002; the appellants bought it in 2009 and have lived there ever since. Number 27

8. Mr and Mrs Sparks transferred number 27 to their daughter, Mrs Chilton, in March 2000 but remained in occupation until September 2008.

9. Mrs Chilton then let number 27 to the appellants, who lived there for a year until they bought number 29 in September 2009.

10. After that Mrs Chilton continued to let the property, to a series of tenants: Mr Nick Ryman from September 2009 to September 2010 Mr Hugh Parry and his wife from September 2010 for over a year Mr Martin Butler and his wife from 2012 to October 2017 Mr Nicolas Gunning and his family from November 2017 to February 2020 Two further sets of tenants in 2020

11. The appellants say that they and their predecessors in title (Mr and Mrs Curran from 1994, and Mr and Hewetson from 2002 to 2009) have been in adverse possession of the disputed land from the very beginning when the two properties were built and the shared driveway laid. They say that they have all mowed and maintained the disputed land as part of their garden, and that no-one at number 27 has ever done so. Their children played on it freely and no objection was made. They introduced herbs and wildflowers into the grass, scarified it and tidied it.

12. Jumping ahead a little, the FTT found that the appellants were in adverse possession of the disputed land, but only from 2018 onwards by which time it was planted and kept as a flower bed by the appellants. The respondents purchased number 27 in August 2022; they re-took possession of the disputed land on 9 May 2023, by removing the appellants’ plants and installing a garden gnome. The appeal relates to the years prior to 2018, when the FTT found that the appellants were not in possession of the disputed land. The legal background

13. The titles to both properties have been registered since their creation in 1994; the appellants’ application for registration of title to the disputed land is therefore governed by the provisions of Schedule 6 to the Land Registration Act 2002. However, there is no need in this appeal for me to go into those provisions because it is not now in dispute that the appellants satisfied the requirements of paragraph 5 of that schedule: “(a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application.”

14. Only sub-paragraph (c) was in dispute before the FTT, and there is no appeal from the judge’s resolution of that in the appellants’ favour. What remains in dispute is the appellants’ claim to have been in adverse possession of the disputed land for the requisite period of ten years; accordingly the appeal is concerned only with the common law.

15. The principles of the common law are not in dispute, and could not be. The leading authorities remain Powellv McFarlane (1977) 38 P&CR 452 and JA Pye (Oxford) Ltd and another v Graham [2002] UKHL

230. A claim of adverse possession involves both factual possession (a sufficient degree of physical custody and control) and intention to possess.

16. Factual possession must be exclusive possession. In the words of Slade J in Powell v McFarlane, approved by the House of Lords in Pye, “The question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

17. Significantly, some land is of very limited usefulness because of its location or the type of ground, and the actions that could constitute adverse possession are therefore similarly limited; Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125 concerned uncultivable marshland. Cairns LJ said: If the defendant is to succeed here it must, I think, be on the basis of shooting by herself and shooting organised or permitted by her. It is contended that such shooting could not amount to possession. The authorities make it clear that what constitutes possession of any particular piece of land must depend upon the nature of the land and what it is capable of use for: see, for example, Tecbild Ltd v Chamberlain (1969) 20 P & CR 633, at p

641. I am quite satisfied that between 1945 and 1964 the only profitable use of this land was for shooting. Our attention was drawn by Mr Cullen, on behalf of the defendant, to the Privy Council case of Cadija Umma & Anr v S Don Manis Appu [1939] AC 136, where, as appears at p 140, cutting the grass was treated as possession in relation to the particular piece of land. So here I think that the learned judge was quite right to treat the shooting activity as constituting possession.”

18. Similarly in Hounslow LBC v Minchinton (1997) 74 P. & C.R. 221 at 233 Millett LJ said this: “The particular acts relied on were not substantial. Mrs Ritter and Mr Dunn maintained a compost heap upon part of [the disputed land] and kept it tidy in other respects and weeded and trimmed the hedge and so on. But that was the only sensible use of the land. It was rough land at the end of a garden.”

19. The Court of Appeal in Hounslow v Minchinton found that these actions were sufficient to amount to adverse possession.

20. Factual possession must be obvious, and unequivocal; whether or not the paper title owner actually saw what was going in, the acts of possession must be such that a properly informed owner would understand that the squatter was taking possession of the land and not, for example, claiming to exercise or be acquiring an easement. The question is whether the persons in possession: “were doing all that they could be expected to do, in relation to this land, to make their intentions unambiguously clear to the world at large” (Chadwick LJ in Chapman v Godinn Properties Ltd [2005] EWCA Civ 941 at paragraph 28).

21. It follows from that that intention to possess cannot be merely a private aspiration; it must be apparent from the acts of possession. The evidence before the FTT

22. The respondents had no knowledge of the land in question prior to their purchase in 2022. The appellants, by contrast, have lived at number 29 since 2009, and they also have the unique perspective of having also lived at number 27 for a year from 2008, so they were able to give extensive evidence, and also called a number of former residents of both properties who gave evidence for them. I can summarise the evidence before the FTT as follows: Mr Curran

23. Mr Curran bought the plot for number 29 in 1994, with his wife, and built the house. His brief witness statement acknowledged that the title plan for the properties showed a straight line boundary, but as to the disputed land he said “the freehold boundary between 27 and 29 was always the concrete edge on 29’s side”, and it never occurred to him or to Peter Sparks at number 27, to “apply a straight line as the boundary” and “we sold [number 29] under this understanding, in 2002.” Mr Curran was unable to give evidence at the hearing before the FTT because he was abroad at the time. Ms Dobson

24. Ms Dobson made two witness statements. It is clear from her statements that she is very knowledgeable about the area, and about soil types, plants and so on. The most important points in her evidence are: a. When she and Mr Pleming lived at number 27 they had to maintain the gardens, including the lawns. They did no maintenance on the disputed land and it was never suggested by their landlord Ms Chilton that the disputed land was part of number 27’s garden. Number 29 had a continuous lawned garden including the disputed land. b. While she lived at number 27 she saw the owners of number 29 mow their lawn, including the disputed land, as well as raking leaves and picking up sticks. c. When they moved into number 27 they were welcomed by their neighbours at number 29; Mrs Hewetson told them where to put their bins, on their side of the drive, and said that they put number 29’s bins on their side in an area that included the disputed land. d. She and Mr Pleming bought number 29 in 2009. The granite setts that mark the boundary across the drive to number 29, where it meets the shared drive, do not continue across the lawn. The disputed land has never been marked off and she regarded the concrete edging next to the drive as the boundary. “I had no doubt in my mind that the [disputed land] belonged to us.” e. In 2009 Ms Dobson and Mr Pleming mowed the lawns, including the disputed land, and raked up leaves there. In November 2009 the car belonging to their neighbour Mr Ryman, the then tenant of number 27, rolled down the shared driveway after the handbrake failed and across number 29’s garden including the disputed land, ran over a tree, and crashed into the garden wall across the street (she exhibited a photograph of the car in the garden opposite). Mr Ryman apologised and offered to pay for any damage including the tree and the tyre marks on the grass. f. On moving in they made plans for landscaping at the back, and for introducing more plants in the front garden while leaving it as a big playable area for their children. They bought a lot of topsoil, removed turf, dug out poor soil and replaced it with the purchased topsoil, and re-covered it with the turf, at the back and the front including the disputed land (the ‘cut and cover’, technique as she called it; paragraphs 22 to 24 of Ms Dobson’s statement) g. The front garden including the disputed land was a play area for their children (she exhibited photographs); there was a rope swing on which the boys would swing from the upper to the lower terrace and then run back up, round the end of the wall, over the disputed land. That was also the route for the mower and the wheelbarrow. h. From 2009 they mowed and maintained the lawns including the disputed land, added more plants, and cleared autumn leaves (the latter being a major task because of a large beech tree.) In 2011 Ms Dobson scarified the lower terrace, and Mr Pleming spread clover seed there, including the disputed land (paragraphs 30 and 31). i. In 2011 and 2012 there were some incursions on to the lower terrace from number 22’s driveway, on the other side, and decided to grow more plants there. They added plants along the edges, on the number 22 and 27 sides; the original plants included sweet Williams, oregano, and sweet peas (paragraph 32). j. They added to the planting over the years. Specifically on the disputed land they planted Californian poppies around the edges, next to the concrete strip adjoining the drive, as well as apple mint and hardy geranium. A photograph from 2016 showed the disputed land as a maturing flower bed. k. They put a “29” sign at the front of their house in 2016, first on the verge and then, on the disputed land. l. In 2011 Ms Dobson and Mr Pleming made an application for planning permission to install additional roof lights. Their location plan showed their boundary around the edge of the drive so that their land included the disputed land. The application was sent to neighbouring properties for comment and no-one commented.

25. The rest of Mrs Dobson’s evidence related to events from 2020 onwards which are not relevant to the appeal. Mr Pleming

26. Mr Pleming’s witness statement described the general layout of the street, with open gardens but clear boundary markers. He referred to the time when he and Ms Dobson lived at number 27, and said that number 29’s owners maintained their side of the drive, including the disputed land. They had no doubt when buying number 29 that the disputed land was theirs. When they bought, their surveyor said, on the subject of boundaries, “The front is open and needs no consideration.” They treated the disputed land as an integral part of their garden; “This includes continuously maintaining it, and using the whole garden for play”. Since 2009 that maintenance included “mowing the lawn, planting shrubs and other plants and pruning, weeding and replacing topsoil/grass where necessary.” They used the disputed land as a path for the mower and wheel barrow to the lower terrace, and put their “29” sign on the disputed land, and after 2010 added more plants to it, including sweet peas and lupins to improve the soil. He planted clover from 2012. From 2012 Mr Butler, the tenant at number 27, used number 25’s gardener, who would mow the grass on the other side of the drive but not the disputed land. Mrs Chilton

27. It will be recalled that Mrs Chilton is the daughter of Mr and Mrs Sparks, the first owners of number 27, and that they transferred the house to her in 2000 but continued to live there until 2008. The appellants were her first tenants. After the respondents took possession of the disputed land in 2023 the appellants sent a Whatsapp message to Mrs Chilton and asked her to confirm that she had always recognised the edge of the drive (next to the disputed land) as the boundary between the properties. She replied: “Notwithstanding the boundary (as a straight line) between number 27 and number 29 as described in the land registry records the curved bed adjoining number 29 has always been treated as the boundary.”

28. She was not willing to attend the hearing before the FTT, because it interrupted her holiday and, above all, because she did not wish to be involved in the dispute. She attended following the issue of a witness summons, and so gave evidence in chief at the hearing. The transcript of her evidence is in the bundle. It is clear that she felt to be under pressure from both parties. She explained that her reply to the Whatsapp message had been written by her husband but that she stood by it; she had never maintained the disputed land and had not even noticed that it was there, and gave no thought to the location of the boundary. Evidence for the appellants from the tenants of number 27

29. Mr Hugh Parry was tenant of number 27 for over a year from September 2010. He made a short witness statement to the effect that he looked after the garden of number 27, on his side of the driveway, and that his landlady never suggested that number 27 owned the land on the other side of the drive. Mr Parry did not attend the hearing.

30. Mr Martin Butler was tenant of number 27, with his wife, from 2012 to 2017, for over five years. His evidence was that he maintained the gardens of number 27 on their side of the shared driveway and not on the other side; their landlady never suggested that she owned land on number 29’s side. He produced a photograph showing that his lawn had been mown by his gardener, with visible stripes which are not evident on the disputed land – the grass is, one might say, greener on the other side of the drive.

31. The witness statements signed by Mr Parry and Mr Butler were in very similar terms and clearly prepared for them, I assume by the appellants, although Mr Butler’s included the additional information about their own gardener mowing only on their side of the lawn.

32. Mr Nicholas Gunning was tenant of number 27 from 2017 to 2020. He said that he understood that all the land on number 29’s side of the drive belonged to number 29, and that the owners of number 29 used the disputed land to access their lower terrace, for example to mow it. On the occasion that his daughter accidentally reversed over the land on number 29’s side of the drive he replaced the damaged “29” sign, “as the understanding was that this area was owned by number 29”.

33. Mr Butler and Mr Gunning attended the hearing and gave evidence for the appellants. The evidence for the respondents

34. The respondents’ own evidence related only to events after their purchase of number

27.

35. Mr Nicholas Ryman was tenant of number 27 from 2009 to 2010, and made a witness statement in support of the respondents but did not attend the hearing. Mr Paul Carpenter, the gardener at Pointers Hill also made a statement in support of the respondents but did not attend. Those two witness statements appear in the appeal bundle on a single page and are very short indeed. Mr Ryman simply recorded the incident when his car ran across the front garden of number 29; he said there was no damage to plants or to the disputed land although there were tyre marks. Mr Carpenter said that he had been gardening for clients on Pointers Hill for over 20 years and had not witnessed the owners of number 29 planting or maintaining the disputed land. The FTT’s decision

36. The FTT’s decision extended to 79 paragraphs and was clearly written with care. I say that because I do not want to give the impression – in light of what I shall have to say later – that it was a rushed job or was unduly brief. The judge described the land and helpfully included a plan and photographs, went through the relevant law, and set out a summary of each party’s case before going through the evidence.

37. The judge said at his paragraph 35 that Ms Dobson “was not really challenged on mowing and the like”, but two matters were much disputed. First, there was an issue as to whether she did in fact cut the turf on the disputed land, replace the topsoil, and recover it with the turf as she described in her witness statement (her paragraphs 22 to 24, summarised at 24f above). Secondly, there were “issues over planting”, and in particular as to when clover and herbs were introduced into the lawn. The judge said that her evidence was that clover was introduced from 2011 (I take that to be a reference to paragraphs 30 and 31 of her statement, see 24h above), and then that more planting was done after incursions from number 22 “in about 2013”; as we have seen, Mrs Dobson in her witness statement dated the problem with number 22 to 2011 and 2012 (see 24i above).

38. The judge said: “35. I consider that Ms Dobson presented her evidence in great detail and, in respect of plants, sometimes exhaustively so.”

39. He went on to say in paragraph 35 that Ms Dobson “did not convince” in two respects: first, in respect of the digging out of subsoil and recovering with turf in about 2011. Looking at photographs, the judge formed the view that the land was undisturbed in 2012 and took the view that she had confused the disputed land with other areas of the garden; I take it that the judge was rejecting Ms Dobson’s paragraphs 22 to 24, at 24f above.

40. The judge then went on to discuss Mr Pleming’s evidence, without stating what was the second respect in which Ms Dobson did not convince. However, it is clear from the judge’s comments on Mr Pleming’s evidence that he did not accept that clover had been planted by the date of a photograph taken in June 2013. Mr Pleming said that the darker green patches in the grass on the disputed land were patches of clover. The judge said “Whilst the darker green is little more than a suggestion of colour variation, the photograph shows there was no flower bed then present.” Mr Pleming’s evidence was not, as we have seen, that there was a flower bed, but that clover was planted in the grass.

41. The judge then summarised the evidence of the other witnesses. He was unimpressed with Mr Curran’s witness statement because the appellants had asked a leading question of Mrs Chilton in their Whatsapp message, and appeared to have produced the statements for the former tenants who gave evidence for them. He commented that Mr Curran’s evidence was insufficient to suggest any boundary agreement with Mr Sparks – which was not, in any event, the appellants’ case. He added that Mr Curran’s evidence “at its highest appears to suggest some de facto personal arrangement for garden maintenance with Mr Sparks only.”

42. Turning to the respondents’ evidence, the judge noted Mrs Unsted’s concession in cross-examination that from the early photographs of number 29 it would be a “reasonable assumption” that the disputed land belonged with number

29. The judge noted that the witness statements from Mr Ryman and Mr Carpenter took matters no further.

43. The judge then looked at the location of the legal boundary – which of course was not in dispute.

44. As to the evidence relating to the period before 2008 the judge said: “59. The Applicants’ case rests on mowing the Disputed Land as some sort of act of possession and I reject this in the context of these properties.”

45. He explained that the disputed land was part of an open area, and that mowing was not enough to assert possession. “To mow over the boundary was tidy and neighbourly.” In an open-fronted development more would be needed to establish factual possession and a demonstrable intention to possess.

46. The judge went on to consider the appellants’ evidence about what they had done themselves, and said that there was insufficient evidence to show that they applied their minds to the boundary when they bought number

29. The surveyor’s comment (paragraph 26 above) indicated that he had not done so. Ms Dobson’s inclusion of the disputed land in the plan for the planning application in 2011 “was a mistake”, but the judge took the view that the appellants did not apply their minds to the boundary until 2011. His findings about what happened thereafter were as follows: “65. (a) I reject the evidence for the introduction of top soil under the turf in 2011 for the reasons set out above (and having regard also to how much later the flower bed was apparent – see below);

66. (b) Even were I to be wrong about the topsoil, it was not a sufficient act of possession, because it was a one-off and did not change the usage or appearance of the land in question. It did not constitute more than a trespass of a rather technical nature and to the subsoil alone. It did not evince an intention then or thereafter to take and retain possession and it would not be sufficiently or continuously apparent to the legal title owner. …

67. (c) The introduction of clover has been exaggerated as a feature by the Applicants. It is simply insufficiently evident, then and in the photographs, to be treated as a departure from general lawn treatment. I consider that its significance has been unintentionally exaggerated in hindsight;

68. (d) Introducing clover is not an act of possession in any event. It may improve the lawn, but is not different in character from general maintenance with other lawned areas and would not evince an intention to possess;

69. (e) I am also not satisfied that the introduction of clover can be reliably or sufficiently dated to 10 or more years prior to dispossession. It is notable that Mr Butler thought the Disputed Land lawn for the period of his tenancy ending in 2017. Only with significant deployment in re-examination of photographs was there a suggestion of wild flowers, and then he did not give evidence as to a flower bed. He was, of course, an independent witness. Mr Gunning also considered the area lawn, and he was there after Mr Butler;

70. (f) The signs for No.29 are insufficient to indicate possession also. The original sign first appeared in the Verge and latterly the sign was so either just on No.29 or so near as to be of no real indication that the Disputed Land was thought by the Applicants to be in their possession. In any event, the sign had to be visible and was adjacent to the right of way serving No.29. It does not assist the Applicants;

71. (g) The use of the Disputed Land for taking the mower to and from the Lower Terrace was not an act of possession. At its highest it was equivocal, as consistent with a right of way rather than taking possession. In any event, it was merely an incident of lawn mowing which was not itself an act of possession in the context of the Disputed Land.

72. I find that there was no clear act of possession of the Disputed Land before it was properly laid as a flower bed. Installing a flower bed in the context of an open lawn area appears to me (and I find) to be an act of possession evincing also an intention to possess the land comprised in the bed. 73 … The burden of proof as to a flower bed earlier than about 2018 is on the Applicants and is not discharged.”

47. The appellants’ claim therefore failed; the judge found that they had only five years’ adverse possession, not the requisite ten. However, the judge went on to find that from 2011 onwards the appellants had applied their minds to the boundary and reasonably believed the disputed land belonged to them (thus satisfying the requirements of paragraph 5(c) of Schedule 6 to the Land Registration Act 2002 (see paragraph 13 above)). The appeal

48. The appellants have permission to appeal on the ground that it was arguable that the appellants’ actions and those of their predecessors did amount to adverse possession. There is no permission to appeal the judge’s rejection of Mrs Dobson’s evidence about her ‘cut and cover’ operation to replace topsoil on the disputed land in 2011 (paragraph 65(a) of the FTT’s decision, set out at paragraph 46 above). The appellants’ arguments in the appeal

49. The appellants’ arguments in the appeal have to a considerable extent already been set out by virtue of the account I have given of the evidence for the appellants. Mr Aldis stressed the variety of activities carried out on the land by the appellants and their predecessors, the conversation with Mrs Hewetson, the extent of the appellants’ planting – the judge found against them only about the clover – and their other uses of the land as a passage to the lower terrace, as a play space for the children, and their “29” sign.

50. Mr Aldis submitted that the nature of the disputed land determines what amounts to an assertion of exclusive physical control over it. This was part of an open-plan front garden laid to lawn. The immediate neighbourhood is similar. All that was done to the open land at the front was mowing it and keeping it tidy – what more could the appellants have done? This was not adverse possession up to an unmarked line (which is very difficult to prove: Nielson v Poole (1969) 20 P & CR 909); the concrete edge of the drive indicated the extent of the land the appellants maintained. The judge was wrong, at his paragraph 59 (above, paragraphs 44 and 45), to conclude that more than mowing was required in such an area. The disputed land looks exactly as if it is part of number

29. It is in full view of number 27 and the owners of number 27 could have protested when they saw children playing there, but they did not. Moreover, maintaining a lawn is an intensive activity requiring machinery and garden products.

51. Essentially, Mr Aldis argued, the appellants had done all that they could be expected to do to possess the land, given its position, its use as lawn, and its physical context. The judge should have looked at their activities cumulatively rather than taking them in isolation as he appeared to do in his paragraphs 65 to

71.

52. By contrast, there was no evidence that anyone at number 27 ever did anything on the disputed land. The Currans, said Mr Aldis, treated the land as their own. Mrs Chilton did not even know it existed and adamantly disavowed all knowledge of it. Mr Aldis submitted that Mrs Chilton's evidence was the clearest possible evidence of discontinuance of possession. Not only did she do nothing with the disputed land, it did not occur to her to do so because she was not even conscious of its existence. The tenants, too, confirmed that the land was treated as part of number

29. The arguments for the respondents

53. For the first respondent, Mr Weatherley went through the evidence and argued that it will be only rarely that mowing a lawn can amount to adverse possession. He made it clear that he did not say it could never do so. The problem for the appellant, he said, was that they gave no evidence of frequency or intensity. He disagreed with Mr Aldis’ view that maintaining a lawn is an intensive activity; it might happen only occasionally. The appellants had gone nowhere near far enough to show that their mowing, and their predecessors’, was sufficiently frequent to amount to possession. This was a weak, borderline case and it fell short of what was needed. The area was small, and capable of cultivation or enclosure, but there was no enclosure and insufficient cultivation until 2018.

54. As to the acts other than mowing, the use of the disputed land to pass over it to the lower terrace is not sufficiently unequivocal to amount to possession; it is consistent with a claim to an easement. Mowing itself is analogous to a profit of turbary and therefore, again, equivocal.

55. Accordingly, as to factual possession, mowing and passing over the land were together insufficient to amount to adverse possession.

56. Furthermore, the appellants also had to show that their activities demonstrated their intention to possess the disputed land. Mr Weatherley maintained that “occasional mowing” and passing over this area of ordinary lawn did not indicate intention to possess. “Having not found proven the earlier acts of cultivation, the remaining activities found proven fall significantly short of the ‘unequivocal’ threshold.” Discussion and conclusion

57. I remind myself that this is not an appeal against the FTT’s findings of fact; it is a challenge to the conclusions the judge drew from the facts.

58. The appellants’ case in the FTT relied on events over nearly three decades. In the appeal I am concerned with the period from 1994 to 2018, and it is convenient to divide that into three periods: 1994 to 2002, when the Currans owned number 22; 2000 to 2009, when Mrs Chilton owned number 27 and before the appellants bought number 29; 2009 onwards when the appellants owned number

29. 1994 – 2002

59. Mr Aldis argued that Mr and Mrs Curran treated the disputed land as their own during this period. I do not think the evidence went that far. The judge accepted that they had an arrangement with Mr and Mrs Sparks that they, the Currans, would maintain the disputed land along with their own. It is not possible to go further than that. Adverse possession is possession “as of wrong”; essentially it is trespass, and the maintenance of a lawn with a neighbour’s agreement or permission, express as it seems to have been, will not do.

60. The judge was right to reject the suggestion that the disputed land was in adverse possession during this period. But it is important to note that there is no evidence whatsoever that Mr or Mrs Curran ever did anything on the disputed land; that becomes relevant when we look at the next period. 2002 – 2008: Mrs Chilton owns number 27, the Hewetsons own number 29

61. Here the picture changes. We have, literally, a picture: the photograph in the estate agent’s particulars. As Mrs Unsted conceded, anyone looking at that picture would think that the disputed land was part of number 29’s front garden.

62. For this period, the judge heard the appellants’ evidence about what the Hewetsons did do, and Mrs Chilton’s own evidence about what she did not do. He heard that Mrs Hewetson put her bins on an area that included the disputed land, and that the Hewetsons mowed the area and raked up leaves and twigs. He did not make any express findings about anything other than mowing, but there is nothing to suggest that he rejected that evidence.

63. The judge accepted Mrs Chilton’s evidence that she was not even aware of the disputed land. That is unsurprising. She was not, if I have understood correctly, a purchaser (or if she was, she was buying from her parents); it is not unlikely or implausible that she did not look at the title plan.

64. In light of that, and of the nature both of these two properties and of the surrounding ones with their open front gardens, it is difficult to follow the judge’s reasoning in his paragraph 59 (referred to above at paragraphs 44 and 45).

65. It is well-established that the nature of the land in question dictates what can or must be done with it in order to establish adverse possession. If all one can do on a marsh is to go shooting, that will suffice (Red House Farms); in a rough garden area, keeping a compost heap, weeding, tidying and trimming hedges was enough (Hounslow LBC v Minchinton). With that mind, what does one have to do to prove adverse possession of an area of lawn in an open front garden with no fencing to mark the boundary either with number 27 or with the verge? It cannot be correct to say that the only way to adversely possess such land is to change its use by digging a flower bed or putting up a fence (which, as I think is obvious from the photographs I have included above, would have looked incongruous).

66. Mr Weatherley’s answer to that question was that mowing would be sufficient if the appellants had produced sufficient evidence of frequency of mowing. Mr Aldis’ position was that they had, because mowing and lawn maintenance is an intensive activity.

67. Lawn maintenance can be intensive but is not necessarily so. It may be only occasional. It may or may not extend into the autumn. Some people – the appellants included – like to observe “no mow May”, although there is no evidence that the Hewetsons did so. What the evidence does show is that insofar as the disputed land was maintained, it was maintained by the Hewetsons.

68. The judge’s own comment on Hounslow LBC v Minchinton is instructive in this context. He set out the words I quoted above at paragraph 18 and then said: “The acts [of weeding etc and keeping a compost heap] were sufficient for possession, although the case was a good deal more complex because the Council as paper title owner had given up possession and disabled itself from trimming the hedge.”

69. It seems to me that, similarly. the owners of number 27 had discontinued possession of the disputed land. That seems to me to be the inescapable conclusion from the evidence that the judge accepted. Mrs Chilton did not even know it was there. There is no suggestion that whatever express arrangement Mr Curran had made with Mr Sparks was continued with Mrs Chilton, nor that Mr Sparks might have explained to his daughter that the disputed land was his but that Mr Curran was mowing it along with his own. She never even noticed it. The fact that she gave no conscious thought to boundaries is beside the point. Even if Mr Sparks did not intend to give up possession of the disputed land, Mrs Chilton never intended to take up possession of the disputed land when she took on the property. The same is clear from the appellants’ own evidence that when they were her tenants, nothing was said to them about the disputed land.

70. The words of Slade J in Powell v McFarlane (paragraph 16, above) come to mind: “I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.” (emphasis added)

71. And as Slade J explained, again in Powell v Macfarlane at page 468, “merely very slight acts by an owner in relation to the land are sufficient to negative discontinuance”; but there is no suggestion that even “very slight acts” took place.

72. In an open-front mown front garden, what an occupying owner might have been expected to do would be to mow the grass and keep it tidy, for their sake and their neighbours’. The appellants’ predecessors in title, the Hewetsons, did so from when they bought the property in 2002, and no-one else did so. In my judgment that was what was needed to establish adverse possession in this period, both in terms of the relevant conduct and in terms of the objective manifestation of intention.

73. Accordingly I disagree with the judge’s comments about “mowing … as some sort of act of possession” in his paragraph

59. For one thing, the evidence (which he did not reject) showed that there was more than simply mowing. But more importantly, mowing and tidying was what the owners of number 27, 29, and their neighbours did with their front gardens. It was clearly not what the owners of number 27 did with the disputed land.

74. I therefore disagree with the judge’s conclusion that the applicants’ predecessors in title the Hewetsons, were not in adverse possession of the disputed land. 2009 onwards: the appellants at number 29

75. If that is right, then the appellants were entitled to succeed, since there is no evidence of any owner of number 27 re-taking possession of the disputed land until 2023.

76. But in case that is wrong, I turn to the appellants’ evidence and the judge’s conclusions about what they did on the disputed land.

77. The judge’s findings of fact about the appellants’ own evidence are set out, first, in his paragraph 35 where he said that two aspects of Ms Dobson’s evidence did not convince but explained only one of them, second at his paragraph 38 where he expressed scepticism about Mr Pleming’s evidence that he had planted clover, and finally at paragraphs 65 to

73. The judge rejected the evidence that the appellants had cut turf from the disputed land and replaced the topsoil underneath in 2011 – the ‘cut and cover’ operation claimed to have been done in conjunction with the rest of the garden. He also rejected the evidence that Mr Pleming had planted clover. He accepted that the appellants had mowed the disputed land, but had already made it clear when looking at the earlier period that he did not consider mowing to be an act of possession. He accepted the evidence about the “29” sign but judged that it did not indicate possession; he accepted that the disputed land was used to move the mower from the upper to the lower terrace but thought that was equivocal, consistent at its highest with a right of way.

78. The judge’s findings as set out in paragraphs 65 to 71 do not mention all the parties’ evidence. There is no mention of a number of things said to have been done on the disputed land and not rejected. One is raking and clearing twigs – which I think would be part of the “mowing and the like” which was not even challenged (paragraph 37 above), another is children playing. Another is replacing topsoil and turf as necessary, aside from the operation in 2011 (Mr Pleming’s evidence, see paragraph 26 above). Importantly, the judge did not reject Ms Dobson’s evidence of planting of a variety of herbs in 2012 in the grass, after the incursions from number 22; the judge rejected the evidence that Mr Pleming had planted clover but made no mention of the other plants.

79. Did the judge accept the evidence that he did not mention in paragraphs 65 to 71? In my judgment he must have done so. At most he may have intended to reject the evidence of the planting of herbs other than clover – apple mint, oregano and so on. But what I think he intended to reject was the creation of a flower bed prior to 2018 (his paragraphs 69 and 73); whilst he rejected Mr Pleming’s evidence about clover, he did not reject the other evidence of planting in the grass to produce a more diverse lawn and deter incursions (Ms Dobson’s evidence at her paragraph 32 (paragraph 24i above).

80. Putting together the evidence considered in the judge’s paragraphs 65 to 73 with the other items of evidence that he does not appear to have rejected, the full picture is that since the appellants bought the property they have mowed, raked and scarified the lawn, and replaced topsoil and turf where necessary now and then, let their children play on the grass, used it to take the mower and barrow to the lower terrace, put a sign on it, and introduced herbs into the grass following incursions from number

22. Looking, again, at the nature of the land, I fail to see what more an occupying owner could have done. And, again, no-one else was doing so, as is clear from the evidence of Mrs Chilton and her tenants.

81. I agree that some of those activities in isolation were not enough. Children playing on the open frontage would not be enough. The “29” sign certainly would not be. Using the land as a pathway for the mower, by itself, would not be. But taken together the picture is a persuasive one. As to whether any of those uses were equivocal, I am sceptical. Moving the mower over the land might by itself be equivocal, but not when combined with the mowing itself. I reject the idea that mowing might be referable to the profit of turbary – an ingenious suggestion, but a profit involves taking something from another’s land to use or consume, whereas mowing a lawn is done to maintain the lawn.

82. People do not generally mow their neighbours’ grass without their agreement. Nor do they let their children play on it. Nor do they replace topsoil on it or plant herbs in it. Taken together it seems to me perfectly obvious that the appellants were in possession of the disputed land, and that their acts of possession taken together demonstrated their intention to possess it. The judge failed to put side-by-side all the separate activities and see the whole picture, and in my judgment came to the wrong conclusion. Conclusion

83. I set aside the decision of the FTT; the conclusions that the judge drew from the facts were incorrect so far as Mr and Mrs Hewetson were concerned, and likewise so far as concerned the appellants’ activities prior to 2018. I substitute the Tribunal’s decision that the appellants have shown that they and their predecessors Mr and Mrs Hewetson have been in adverse possession since at least 2002 until the respondents dispossessed them in 2023.

84. I will therefore direct the registrar to respond to their application for registration as if the respondents’ objection had not been made. Judge Elizabeth Cooke 2 March 2026 Right of appeal  Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision.  The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties).  An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking.  If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.