John Crofts v Valerie Jean Welsh

Introduction

1. At paragraph 1 of the decision in Campbell v Cammarano [2025] UKUT 122 (LC) the Tribunal said: “In London Borough of Waltham Forest v Marble Properties (London) Limited [2025] UKUT 2 (LC) the Tribunal (the Deputy Chamber President, Martin Rodger KC) observed at paragraph 1 that the temptation for the First-tier Tribunal to review a decision of its own should usually be resisted, and he referred to the Court of Appeal's decision in Point West GR Ltd v Bassi [2020] 1 WLR 4102. The present decision is a similar cautionary tale about the difficulties that can arise on a review.”

2. So is this one.

3. This is an appeal from a decision of the First-tier Tribunal about adverse possession, brought with the permission of the FTT. My Gary Donaldson represented the appellant, Mr John Crofts, and Ms Holly Hickin the respondent, Mrs Valerie Welsh; I am grateful to them both. The FTT’s decision of January 2025

4. In April 2021 Mrs Welsh made an application for registration of title by adverse possession to part of a field in Melling, Liverpool, and the appellant Mr Crofts objected; HM Land Registry referred the matter to the FTT under section 73(7) of the Land Registration Act 2002. The FTT conducted a hearing on 7 January 2025, and on 9 January 2025 it issued its decision and directed the registrar to respond to the application as if the Mr Croft’s objection had not been made.

5. In its decision the FTT explained that the field had been part of Bank Hall Farm to the north. Physically a single field, legally it comprises three parcels with three registered titles. The registered proprietor of one of those parcels was formerly Mr Peter Pope of Bank Hall Farm; in 2021 Mrs Welsh, who owned a neighbouring farmhouse, was registered as proprietor of the two parcels following her application on the basis of adverse possession, to which Mr Peter Pope made no objection.

6. Mr Crofts is the registered proprietor of the remaining parcel, which is the disputed land in the present case (“the Disputed Land”). Between 1987 and 1997 it was owned by the North House Property Company (Liverpool) Limited, and it was then transferred to Mr Crofts’ parents (who were registered as proprietors on first registration in 2008). He now has a grant of probate to the estate of his surviving parent who died in 2020. The field, as I said, is a single field and it appears that back in the 1980s neither Mrs Welsh nor the Pope family knew that there were three parcels and that one of them did not belong to the Pope family.

7. The FTT in its decision accepted Mrs Welsh’s evidence that: “after she and her husband purchased the farmhouse … from David and Peter Pope, between about 1984 and 1986 one or more of the Pope family “landfilled” and grassed over what then became the field.”

8. She therefore thought the Popes owned the field and knew nothing about the different titles within it. She started grazing horses on the field in 1987, initially with a friend’s horses but after about 6 months she had sole use of the field for her horses. Access was through a padlocked gate to which she had the only key. I have to set out paragraph 18 of the FTT’s decision in full: “The Applicant was quite clear in her oral evidence that she did not deal with any of the Pope family in this matter. She did not ask their permission to place her horses in the field. That invitation came from Jane alone. After Jane left, she continued to keep her horses there. She then installed a metal gate at a point between her then new driveway and the field, and put a lock on it. In oral evidence, she described only one exchange with a member of the Pope family, David Pope, which took place when she was visiting the farm shop. She said that she told him that she was keeping her horses in the field, to which he replied that he had seen them. She said that he was not bothered by this, and even welcomed it, since he said it brought visitors to the shop.”

9. Paragraph 19 continues: “In the years which followed, her evidence was that she and her family had exclusive use and control of the whole field for their horses.” The FTT accepted that evidence “without reservation” (paragraph 21) and went on to find that she had both exclusive factual possession of all the land in the field, including the Disputed Land, and the intention to possess it. I need not go into the requirements for adverse possession because they are not in dispute; those were the findings of fact needed to establish that Mrs Welsh had been in adverse possession of the Disputed Land, and for long enough to bar the title of the paper owner in the absence of any legal reason why she had not acquired title by possession (title to the Disputed Land being unregistered at the time).

10. Mr Crofts argued that Mrs Welsh had been in possession of the field with the permission of “a member of the Pope family”, and “appeared to be hinting” (paragraph 24) that she had a tenancy of the field granted by a member of the Pope family. The FTT judge found that there was “not a shred of evidence” of any such arrangement (paragraph 25). There was no evidence from any member of the Pope family. At its paragraph 50 the FTT said: “[Mrs Welsh] was, as I have found, quite clear that she had no dealings or arrangements with the Popes as to her use of the land- still less any licence or, as was suggested to her, “tenancy”. Although it was not pleaded or argued to be such, I do not consider that her evidence of her brief exchange with David Pope in the shop could be construed as the grant of an express or implied licence to use the field as a whole. Even if it could have been so construed, or even if there had been any evidence of the grant of a licence or tenancy by the Popes (which there was not), it bears repeating that the disputed land now the subject of these proceedings was never owned by any of the Popes. It was not therefore theirs to licence or let.”

11. The FTT therefore found that Mrs Welsh had been in exclusive and adverse possession of the Disputed Land from 1988 at the latest; Mr Crofts’ parents’ title was barred by 2000 at the latest; her title remained an overriding interest on first registration (Schedule 1, paragraph 2 to the Land Registration Act 2002); she was and remained entitled to be registered as proprietor. The review proceedings in the FTT

12. Mr Crofts applied to the FTT for permission to appeal. He produced new material. It seems that in July 2024 (six months before the hearing in the FTT) Mr Peter Pope was prosecuted for arson and for criminal damage to fixtures in the field (but not, if I have understood correctly, on the Disputed Land). The Crown Court judge ruled that there was no case to answer, after a hearing during which Mrs Welsh was cross-examined. Mr Crofts sought to adduce a transcript of the judge’s ruling, together with a statutory declaration made by Mr Peter Pope, with a view to showing that a Crown Court judge had found on the basis of Mrs Welsh’s own evidence that she was in possession of the land with permission from Mr David Pope.

13. The FTT gave directions on 12 March 2025 and said that it would undertake a review of its decision and order of 9 January 2025, and that the review would be conducted by way of an oral hearing with a time estimate of one day. In its reasons for that order the FTT acknowledged that new material cannot normally be adduced on appeal and referred to Ladd v Marshall [1954] EWCA Civ 1, and that no reason had been given why the new material could not have been produced at the January hearing. Nevertheless the judge took the view that Mrs Welsh herself should have disclosed the new material and therefore that it would not be right to exclude it from consideration “on a review or appeal” on the basis that Mr Crofts should have produced it earlier (paragraph 7 of the reasons). The judge also acknowledged that Mrs Welsh had made a witness statement commenting on the new material and maintaining that her evidence in the Crown Court had not been that she had permission from Mr David Pope. The judge therefore said that there was a conflict which he could not resolve on paper and was therefore ordering a hearing.

14. Rule 55 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 provides: "(1) The Tribunal may only undertake a review of a decision— (a) pursuant to rule 53 (review on an application for permission to appeal); and (b) if it is satisfied that a ground of appeal is likely to be successful."

15. The power of review can safely be exercised in cases where the matter is clear cut. If the judge is alerted to a piece of evidence that he or she has forgotten, for example, or to a case that has been overlooked, then it may be obvious that success on appeal is likely and that the decision should be set aside and re-made. In circumstances such as these, however, a review hearing was inappropriate (see Campbell v Cammarano at paragraph 7); as things turned out, permission to appeal was given and the review hearing itself was a waste of time, effort and costs.

16. The review hearing took place on 29 May 2025 and I am told that the new material was put to Mrs Welsh and she was cross-examined on it.

17. In a decision dated 29 May 2025 the judge in the FTT concluded that it was not open to him to make any fresh findings of fact for the purpose of deciding whether, on a review, to set aside his previous decision, because the rules permitted him to make new findings only if he first set aside his decision. Moreover, in any event he took the view that the new evidence was “unproductive” because such information as the Crown Court ruling provided about what Mrs Welsh said in the Crown Court trial was consistent with what she had said to the FTT. He took the view that his own finding of fact that Mrs Welsh did not have permission to occupy the Disputed Land was not a ”clear error” and therefore it was not the case that an appeal was likely to succeed; therefore he did not set aside his decision. However, he gave permission to appeal on the question: “whether [Mrs Welsh’s] possession of the disputed land was exercised pursuant to the express or implied licence or permission of another person.”

18. What appears to have happened is that the judge’s ruling of no case to answer against Mr Peter Pope led the FTT judge to doubt his own conclusion that Mrs Welsh did not have permission to occupy the land from Mr David Pope. That was a finding of fact, with which the Tribunal will not interfere on appeal unless it was clearly wrong, for example because of an error of law. And he seems to have been persuaded at the review hearing that: “the fact that David Pope (or any of the Popes) was not actually the owner of this land would not matter for this purpose: see Sze v Kung [1997] 1 WLR 1232.”

19. Following the grant of permission to appeal Mr Crofts filed a Notice of Appeal with the Tribunal, and the Deputy President gave directions for an appeal by way of review. The appeal

20. Faced with an appeal by way of review of the decision of 9 January 2025, permission having been granted on the basis of material that had not been before the judge at the hearing on 7 January 2025, with no permission for that new material to be adduced on appeal and therefore no opportunity for Mrs Welsh to be cross-examined on it, I confess that I was mystified. I was further mystified by the argument that Mrs Welsh was not in adverse possession vis-à-vis Mr Crofts’ parents on the basis that she had been given permission to occupy the land by a third party who did not own the land, there being no appeal from the FTT’s finding that none of the Popes owned the Disputed Land and that they had no right to licence or let it.

21. Mr Donaldson sought to persuade me of three matters. (i) did Mr Crofts have permission to produce the new material in the appeal?

22. The first was that permission was given for the new material to be adduced on appeal on the basis, first, of paragraph 7 of the FTT’s decision of 12 March 2025 (see above at paragraph 13) and second that since permission to appeal was granted on the basis of the new material the judge must have expected it to have been before the appeal Tribunal.

23. I do not accept that the FTT gave permission to adduce the new evidence on appeal. The reasoning at paragraph 7 of the decision of 12 March 2025 was an explanation of the order actually made on that date, which permitted Mr Crofts to adduce new evidence in the review; the judge at that point did not contemplate an appeal. Moreover the judge clearly took the view that the new evidence added nothing (paragraph 17 above) and therefore did not expect it to be produced in the appeal. Nevertheless, I can see that Mr Crofts probably thought he had permission to produce the new evidence in the appeal, and I allowed Mr Donaldson to make submissions about it.

24. Mr Donaldson was nevertheless very restrained in his reference to the transcript of the Crown Court judge’s remarks and confined himself to the argument that, correctly interpreted, Mrs Welsh’s evidence about her conversation with Mr David Pope amounted to a grant of permission from Mr David Pope to occupy the land. (ii) did Mrs Welsh have permission from Mr David Pope to occupy the Disputed Land?

25. So I turn to the second matter of which Mr Donaldson tried to persuade me, that Mrs Welsh’s evidence in fact disclosed that she had permission to occupy the Disputed Land. I have set out the FTT’s account above. Importantly the FTT made a finding of fact that Mrs Welsh did not have permission to occupy the land, and the FTT heard her evidence. This Tribunal will not interfere with such a finding of fact unless it was clearly wrong. Mr Donaldson pointed out that “I am not bothered” might mean indifference but in many contexts is a permission. I agree that that is so, but in this case the judge heard all of what Mrs Welsh had to say, and found that she was “quite clear that she had no dealings or arrangements with the Popes as to her use of the land- still less any licence or, as was suggested to her, “tenancy”.” There is no basis on which I can say that the FTT was clearly wrong to find that David Pope did not give her permission to use the field.

26. The transcript of the Crown Court ruling of no case to answer in the proceedings in July 2024 takes matters no further. It is – with every respect to the Crown Court judge – a hearsay account of what Mrs Welsh said in evidence in the Crown Court; it was not intended to be a transcript of what she said for use against her in later proceedings. I do not know what she said about her Crown Court evidence in cross-examination at the FTT review hearing because there is no transcript of that hearing but it seems that the FTT judge himself concluded that the Crown Court transcript added nothing. (iii) the effect of permission by a third party

27. In any event it is impossible to understand how permission to occupy the land, given by a third party who did not own it, can possibly help Mr Crofts’ case. The third matter of which Mr Donaldson sought to persuade me was that Mr David Pope’s permission would prevent Mrs Welsh from acquiring title as against Mr Crofts’ parents. Even if correct it cannot avail him, because I have found that the judge’s finding of fact was correct; but I will deal with it for the sake of completeness, and because the judge in the FTT appears to have regarded Mr David Pope’s alleged permission as potentially relevant.

28. Mr Donaldson made his argument in two different ways.

29. His first approach was to start from the obviously correct proposition that if A gives B permission to occupy A’s land, then B is not in adverse possession of A’s land (JA Pye (Oxford) Limited v Graham [2002] UKHL 30). Why, he asked, should it be any different if permission is given by C who does not own the land? Adverse possession has to be possession “as of wrong”, and permission means that the possession is not wrongful.

30. The answer to that is simply that C’s permission does not mean that B’s possession is not “as of wrong” vis-à-vis A. If a third party gives permission to B to occupy my garden, B is still trespassing so far as I am concerned. In Sze v Kung [1997] 1 WLR 1232 the Privy Council found that in those circumstances, B’s possession was that of the third party who has given him permission to occupy the land. But the land was still in adverse possession – in Sze v King, and as a general proposition.

31. Mr Donaldson then elaborated his argument by explaining that Mr David Pope was in possession of the field by virtue of having landfilled it and grassed it (see paragraph 7 above); therefore, he said, Mr David Pope had a possessory title to the Disputed Land and was entitled to give Mrs Welsh permission to occupy it. He appreciated that that made his client’s title vulnerable to a claim by Mr David Pope but maintained that therefore Mrs Welsh could not have been in adverse possession.

32. That argument does not begin to get off the ground for three reasons. First, there is no appeal from the FTT’s finding that none of the Popes owned the land or had any right to give permission to occupy it (see paragraph 10 above); it is impossible to construe the FTT’s grant of permission to appeal as a grant of permission to appeal on that point. Second, it has always been Mr Crofts’ case that the land is his; it is not open to him to change horses in effect on the day of the appeal and say that someone else has a better right than he has. Third, if the argument is that Mrs Welsh has been in possession by permission of a third party, that does not take away from the fact that, as the FTT found, she was in adverse possession of the land and that the title of Mr Crofts’ parents was barred in 1990 at the latest. She is entitled to be registered as proprietor; if she took possession as agent of a third party that is a matter between her and the third party. Conclusion

33. The FTT in January 2025 made an unimpeachable decision on the basis of the witnesses it saw and heard. It appears that the judge then doubted his conclusions about Mrs Welsh’s conversation with Mr David Pope, on the basis of material that could have been produced at the hearing but was not. Even if there was any basis on which that new material could have been produced on appeal, it does not show that the judge’s finding of fact about the conversation with Mr David Pope was clearly wrong and that finding stands.

34. And as I have explained, even if that finding were wrong, it cannot avail Mr Crofts. It may be that in giving permission to appeal the FTT judge misconstrued Sze v King, which says that where A gives B permission to occupy C’s land, B is in adverse possession as an agent of A. That is the sense in which it “does not matter” (paragraph 19 above); the fact of adverse possession is unaffected.

35. The appeal therefore fails, leaving the land in the ownership of Mrs Welsh who has had exclusive possession of it since 1988 at the latest. Upper Tribunal Judge Elizabeth Cooke 2 February 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.