1909 Holdings Limited v Paul Shaun Hollingsworth & Ors

1. The matters that have been referred to the Tribunal are competing application for first registration of a parcel of land described as Land on the East Side of Tor Top, Woolley Bridge Road, Hadfield, Glossop SK13 1PZ (“the Land”).

2. The Land is shown tinted blue on the extract from the Notice Plan to the Applicant’s application below (it may be that there is another Notice Plan specific to the Respondents’ application, but HM Land Registry provided this one with the referral of the Respondents’ application, and, even if there is another one, there is nothing to suggest they are not the same). To the north is Woolley Bridge Road (“the Road”), to the south St Charles Catholic School (“the School”), to the east land owned by the Applicant (“the Applicant’s Land”), and to the west land owned by the Second Respondent and occupied by the First Respondents (“Tor Top”). The Land

3. Broadly speaking, the Land slopes upwards from north to south, such that the “top” of the Land is adjacent to the School and the “bottom” is adjacent to the Road. It is steeper at the bottom, levelling out towards the top. The bottom is marked by a retaining wall, the Land being higher than the pavement. The competing applications

4. Tor Top has been tenanted to and occupied by the First Respondents since August 2007. They aver they began occupying the Land in 2008/2009. By an application dated 21 st December 2021, they applied for first registration of the Land based on adverse possession. The Applicant objected. HM Land Registry allocated the Land provisional title number DY559322; the Tribunal allocated the reference REF/2024/0492.

5. The Applicant purchased the Applicant’s Land from the Nottingham Roman Catholic Diocesan Trust (“the Trust”) in 2017. It comprises a wooded area adjacent to the Land (“the Wood”) and an old church hall (“the Hall”) further east. The Applicant’s position is that it believed it was buying the Land as part of the purchase, as it was only accessible from the Wood, but it does not claim to be able to demonstrate paper title. Rather, by an application dated 5 th October 2023, it made its own application for first registration of the Land based on adverse possession.

6. I note for completeness that this was the Applicant’s second attempt at an application, the first one having been made earlier in 2023. The earlier application relied on the evidence of a witness described on the ST1 as Reverend Canon Daniel Bowdren, who then appeared to change his position. Ultimately, that application was not progressed and the Applicant no longer relies on his evidence. Given there is no reliance on his evidence, and in light of my other findings below, I do not consider it helpful to consider the circumstances of the earlier application and its withdrawal further.

7. The First & Second Respondents objected to the Applicant’s second application. HM Land Registry allocated the Land provisional title number DY576464; the Tribunal allocated the references REF/2024/0493 (the First Respondents’ objection) & REF/2024/0562 (the Second Respondent’s objection). The Second Respondent was granted permission to withdraw his objection by an order dated 5 th November 2024, although he did participate as a witness. Any references to the Respondents in this Decision are to the First Respondents. I will refer to the First Respondents by name if I am referring to them individually. I will refer to the Second Respondent as Mr Wood to make clear that his involvement was as a witness rather than as a party.

8. At the final hearing, Mr Bell confirmed that the Applicant does not in fact object to the Respondents’ application insofar as it relates to the narrow strip at the western end of the Land, that is, to the left of the solid black line running approximately north-south through the Land near to Tor Top, and outlined (approximately) in red below. I will refer to this as the Agreed Strip and the remainder of the Land as the Disputed Land. Agreed Strip Preliminary points

9. Both parties represented themselves and provided their own bundles. Mr Bell on behalf of the Applicant repeatedly referred to aerial photographs but was not able to confirm whether they had been provided previously and so was not permitted to rely on the same. I note for completeness I had the benefit of a site visit the day before the hearing.

10. The parties both relied on statements from additional witnesses but had not apparently given proper thought to their attendance at the final hearing. As the hearing venue was able to accommodate it, I gave permission for some of the witnesses to give evidence by video, although this should have been raised in advance.

11. This included (the Second Respondent) Mr Wood, who had provided a witness statement on behalf of the Respondents. He attended remotely, apparently using his mobile phone. At the end of his evidence, he failed to properly leave the virtual hearing room. More concerningly, it was apparent that he was showing someone the virtual hearing room and was about to discuss the proceedings with them, with his camera and microphone still on. Unfortunately, it was not possible to immediately remove him from the virtual hearing room or mute him, so the hearing was paused for a short adjournment for this to be rectified. I mention it only to confirm that the hearing was paused before anyone heard him say anything beyond his formal evidence.

12. Matters between the Applicant and the Respondents are evidently acrimonious. There was a certain amount of Mr Bell and Mr Hollingsworth wanting to challenge everything the other said, whether it was relevant to the case or not. I also note that Mr Bell said he did not want to engage in a “character assassination” of Mr Hollingsworth. For the avoidance of doubt, I have decided this matter based on the evidence available in the two hearing bundles (together with the two HM Land Registry surveys, which had been omitted), and the submissions made at the final hearing. I do not repeat everything in this decision, but rather focus on the matters most relevant to my determination.

13. One of the reasons for the acrimony is as follows. It is not in dispute that the Applicant has plans to develop the Applicant’s Land. At one point, it had planning permission that included a woodland management plan and the Disputed Land being used as a forest school area, although, as I understand it, this has lapsed. The gist of the Applicant’s evidence is that it wants to use the Disputed Land as some sort of community amenity. In contrast, the Respondents presently use the Disputed Land as their own smallholding.

14. I gained the impression, both from the papers and during the hearing, that Mr Bell considers the Applicant’s plans for the Disputed Land to be more commendable than the Respondents. For example, in closing, he described the Respondents’ actions as “ selfish ”. I remind the parties, as I did during the hearing, that this is not about who has the more commendable claim to the Disputed Land, in terms of use and/or intentions, but whether either party has done enough to prove adverse possession, as explained below. One possibility is that neither party can do so, in which case both applications will be cancelled and the Disputed Land will remain unregistered. Principles

15. For a party to succeed in an application for first registration based on adverse possession, they must demonstrate, on the balance of probabilities, both factual possession of, and an intention to possess, the land in question for a continuous period of 12 years.

16. Factual possession “ signifies an appropriate degree of physical control… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary to prevent intrusion… Everything must depend on the particular circumstance, 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" [Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470-1, cited with approval in J A Pye (Oxford) Ltd v Graham [2003] UKHL 30 ].

17. An intention to possess is the intention “ to exclude the world at large, including the owner with the paper title… so far as is reasonably practicable and so far as the processes of the law will allow” [Slade J in Powell at 471-2, cited with approval in Pye ].

18. The evidence of factual possession will often be sufficient to demonstrate the intention to possess, but this will not always be so: “ It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess ” [Lord Hutton in Pye at paragraph 76].

19. In those cases, an applicant must make it “ perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can ” [Slade J in Powell at 472]; he “ should be required to adduce compelling evidence that he has the requisite [intention to possess] ” [at 476]. Summary of the parties’ cases

20. I remind myself that, although the parties have been designated Applicant and Respondents, they have each brought an application. The Applicant

21. The Applicant’s application can be summarised as follows. It essentially avers that the Disputed Land is a continuation of the Wood that was, until more recent events, only accessible from the Wood. It accepts that there are remnants of an old wall in the vicinity of the boundary between the Disputed Land and the Wood, but that this does not form any significant obstacle or prevent access.

22. The Applicant has only owned the Wood since 2017. Prior to that, it was owned by the Trust for many years, but the evidence relied upon by the Applicant goes back to around the mid-1990s. In relation to this period, it avers that there has been maintenance of the northern and southern boundaries, but does not aver that there was any particular use of or entry onto the Disputed Land until around 2016, when the Applicant’s interest in buying/developing land began.

23. The Applicant relies on the following: (a) written evidence from Rachael Oxspring on behalf of the Trust, who gives evidence in relation to the boundaries. She has worked for the Trust since 2008. I attach less weight to this evidence as she did not attend to give evidence orally; (b) written and oral evidence from Mr Wynne, contractor, who gives evidence of maintaining the northern boundary from around 1995; (c) written evidence from Bryony Coram, former employee of Mr Bell, who gives evidence of the appearance of the Disputed Land from 2009 onwards. I attach less weight to this evidence as she did not attend to give evidence orally; (d) written and oral evidence from Helena Davies-Fawcett, whose office is on the other side of the Road to the Land, gives evidence of the appearance of the Disputed Land from 2009; (e) written and oral evidence from Ian Bradley, who gives evidence of the appearance of the Disputed Land from 2008 and a visit to the Disputed Land in 2016; (f) written and oral evidence from Mr Bell, director, who gives evidence of visiting the Disputed Land from 2016; (g) written and oral evidence from Mr Hampson, director, who gives evidence of visiting the Disputed Land from 2016. The Respondents

24. The Respondents application can be summarised as follows. They aver that the Land was always enclosed from the Wood. They say they began occupying the Disputed Land in 2008/2009. The evidence is that their activity on the Disputed Land has increased, beginning with walking dogs and clearing space for a vegetable garden, before keeping livestock. In more recent years, they have carried out more significant works, such as wholesale clearance of knotweed and trees, siting a caravan on there, and erecting substantial fencing.

25. The Respondents rely on the following: (a) written and oral evidence from the Mr Wood. The written evidence is limited to the Respondents’ use of the Disputed Land, but his oral evidence covered earlier knowledge of the Disputed Land; (b) written and oral evidence from Mr Hollingsworth about the Respondents’ use of the Disputed Land; (c) written and oral evidence from Mr Lester, a friend of the Respondents; (d) written evidence from Mr Neil Vere and Mr Brendan Ford, also friends of the Respondents. I attach less weight to their evidence as they did not attend to give evidence orally.

26. The Disputed Land is a relatively large area. The Respondents do not claim to have always used all of it. Different parts of it have been fenced at different times. One of the issues in this case is understanding (and, where this a dispute of fact, determining) how the Disputed Land has changed over the years.

27. Before turning to consider the evidence as to the use of the Disputed Land, it is convenient to deal with a further part of the Respondents’ case. This is their assertion that the Land has never been owned by the Trust, but rather was owned by a Mr Scholes. This assertion is seemingly made in response to evidence from the Trust that it believed the Disputed Land was theirs. However, the evidence from the Trust acknowledges that it has not been able to establish paper title. Moreover, it does not matter who has or had paper title to the Land: if adverse possession is made out, the paper title will be extinguished. Finally, I note that the evidence relied upon by the Respondents is an extract from an abstract of title only, and as such it is difficult to safely conclude anything from it. I do not need to make a determination as to the paper title owner for the purposes of this decision, and I do not do so. Evidence

28. It is convenient to deal with the evidence by starting with the Disputed Land in recent times and working backwards. HMLR 2023 survey

29. HM Land Registry’s 2023 survey, which relates to the Applicant’s application, is a useful starting point, not least as the appearance of the Land is not dissimilar now.

30. The survey includes three plans which combine to cover the entire area of the Land. The one below shows part of the Agreed Strip can be seen to the left, and a physical feature running across the middle from west to east, described as a chicken wire fence (“the Chicken Wire Fence”). I will refer to the area north of this as “the Bottom” and the area to the south as “the Top”.

31. The three images below show the Agreed Strip, from the Top to the Bottom.

32. The two images below show the Chicken Wire Fence, looking across from east to west. It is not in dispute that this particular arrangement of fencing has been erected by the Respondents relatively recently, although they say there has previously been fencing in this area.

33. The two images below show the view from the Road. It is not in dispute that the fence on top of the wall was installed in or around early 2022.

34. The image below shows a gate leading onto the Land from the Road. It is not in dispute that this is padlocked on the inside. It is in dispute whether there was always an access here, or whether it is something that has been created by the Respondents. By way of fixing the location of the gate, I note it is a good few feet to the left of a yellow hydrant symbol.

35. The images below show the eastern boundary to the Bottom of the Land. This is described in the survey as follows: “ Collapsed dry stone wall. Appears to be over 50 years old. Please note, immediately adjacent to this is a chicken wire fence supported on wooden posts… There is also a collection of branches placed to denote the boundary where the chicken wire ends ”.

36. The images below show the eastern boundary to the Top of the Land. As explained in the survey, there is fencing from just south of the Chicken Wire Fence running to the southern boundary. It is not in dispute that this fencing was erected in or around 2022.

37. It is not in dispute that the Respondents erected the fencing along this boundary (both Bottom and Top) relatively recently. It is in dispute whether the collapsed dry stone wall amounts to any sort of enclosure. HMLR 2022 survey

38. There was a HM Land Registry survey in 2022, which related to the Respondents’ application. It is nowhere near as detailed as the 2023 survey. The main difference is that it does not record there being any sort of structure across the centre of the Disputed Land, nor is any obvious on the photographs. Earlier photographs

39. There are not many earlier photographs of the Land. They can be broadly summarised as follows: (a) aerial photographs from 2011, 2018 & 2021. It is hard to tell much from these photographs, and I do not reproduce them here. In summary however: in 2011, the Land appears largely overgrown/under tree cover, save perhaps in the southwest corner; by 2018, clearing in the southwest corner is noticeable; and by 2021, there has been clearance of much more of the Land; (b) photographs looking at the Disputed Land from the Road, in particular two showing the extent of knotweed (August 2016; undated), and another focusing more on the area near the gate (April 2019); (c) photographs of livestock and livestock sheds from around 2016 onwards. It is accepted these all show the southwest corner of the Disputed Land. There is no need to reproduce them here; (d) a historic wedding photograph, extract below, relied on by the Respondents to show that, historically, there was a gate from Tor Top onto the Land. Mr Wood in his oral evidence stated that his brother was in the photograph, and that it was from around 1990. Other evidence

40. The Applicant relies on a Woodland Management Plan from Lally Tree Management. Mr Lally inspected the land on 3 rd October 2020. It is evident from the report that Mr Lally inspected the Disputed Land as well as the Wood. He describes it as woodland, more particularly as follows: “ The woodland is set upon a steep slope with limited areas of open space ”. Much of the Disputed Land is marked as being Japanese Knotweed, an invasive species.

41. The Applicant also relies on a later letter from Mr Lally in which Mr Lally refers to his inspection and states, “ During the inspection, I found there to be no significant fencing throughout the site aside form [sic] a small section of fencing towards the south western corner of the site which to my memory was not visible from the road at the time of the inspection ”.

42. The Applicant relies on Facebook posts from 2020. The most relevant is the following exchange. First, there is a picture of chickens on a cleared area of land posted by Mr Hollingsworth; the second a reply from David Ashton saying, “ Didn’t realise you had so much land with the Bungalow pal ”; and the third and final post is Mr Hollingsworth’s reply, “ Fck mate been fencing shit loads off, you never know for future ”.

43. The Respondents rely on a number of planning communications, which describe the Land as “ not entirely within the control of ” the Applicant, as evidence that the Applicant cannot show sufficient control such as to amount to adverse possession.

44. There is also of course the evidence of the witnesses. Rather than rehearsing it here, I will refer to the pertinent parts where appropriate below. Findings

45. It is not necessary to determine every dispute of fact between the parties in order to make my decision. I set out the facts and findings I consider to be relevant below. Southern boundary

46. It is not in dispute that the southern boundary (with the School) is a wire fence with no points of access. The Respondents erected waney lap fencing inside the wire fence in recent years – they say in about 2019/10 – but this adds nothing to the question of enclosure.

47. I also note that, although Ms Oxspring mentions in her witness statement that the Trust was involved in maintaining this boundary, no particulars or supporting evidence are provided. I am not satisfied there is sufficient evidence for a finding that the Trust did carry out any maintenance here. The Applicant does not claim to have done so. Northern boundary/the gate

48. It is not in dispute that the northern boundary (with the Road) is marked by a retaining wall, and that the fence on top of the wall was only erected in around 2022.

49. There is, however, a dispute in relation to the gate: Mr Bell says that this was an access point created by the Respondents in around 2022; Mr Hollingsworth says there was always an opening there – the gate had fallen down and he just put it back up. The only other witness evidence in relation to the gate was from Ms Davies-Fawcett, who said she had never noticed the gate before, and that she thought she would have noticed it if it had been there.

50. It seems to me the issue is not so much whether there was a gate or gateway as whether there was an access point to the Land from the Road. The photograph of the gate above shows a gap in the retaining wall and steps up to the gate itself. However, the Google Streetview photographs show no such gap. Whether there was a gateway higher up the slope or not, I am satisfied that the Respondents created an access point to the Land from the Road by creating the gap in the retaining wall, in or around 2022. Maintenance of the northern boundary

51. The Applicant’s case is that, from 1995, Mr Wynne, initially on behalf of the Trust and latterly on behalf of the Applicant, carried out maintenance to this boundary by trimming the frontage.

52. Mr Michael Wynne gave evidence on behalf of the Applicant. In his written evidence, he says that he has been trimming trees and bushes under instruction from the Applicant since 2016, and under instruction from Father Don and Father Sullivan prior to that, going back to 1995. He says he does this twice a year, and particularly mentions cutting back the knotweed overhanging the pavement in the summer.

53. In his oral evidence, he said his grandmother made him do it as she was a churchgoer. He explained he had a machine that would smash up the vegetation and leave a mess, like mush, on the floor. He referred to the knotweed “ at the far end ”. He confirmed that he did not go onto the Land, that his machines had an arm that meant he could reach over.

54. It was put to Mr Wynne that he only trimmed up to the end of the Wood, and not the Disputed Land, with particular reference to a photograph of one of his machines which looks to be at the edge of the Wood but no further along. Mr Wynne maintained that he carried on up to the boundary with Tor Top (at least until 2022, when the fence on top of the retaining wall was erected, meaning that he cannot do it).

55. I found Mr Wynne to be a straightforward witness, who gave his evidence clearly and without exaggeration. His repeated references to knotweed are consistent with him continuing along the Disputed Land and not just trimming the frontage to the Wood.

56. Moreover, his evidence is supported by the written evidence of Ms Oxspring and Ms Coram, and the written and oral evidence of Mr Bell. When Mr Bell was asked why he instructed Mr Wynne to trim the frontage of the Disputed Land, he said because “ we thought we owned it ”, and the vegetation was overhanging the Road.

57. The Respondents do not accept that Mr Wynne trimmed the frontage to the Disputed Land, the inference being that they did not see the trimming itself or any evidence of it. However, it seems to me it is entirely conceivable that they would not have noticed or registered this until recent years, in line with their own increased use of the Disputed Land, which I discuss further below.

58. This is particularly so bearing in mind a separate dispute that arose as to the existence of bluebells on the Disputed Land. For the Applicant, Ms Davies-Fawcett insisted that she had seen bluebells coming back every year, which she described as “ periodic clumps here and there up against trees ”, and said that “ everyone likes bluebells ” and would note “ ah the bluebells are out ”, and Mr Bradley commented that “ when the bluebells die down, the knotweed comes up ”. There is also a photograph on which clumps of lighter-coloured vegetation can be seen (the electronic copy I have available is of too poor quality to bother reproducing here, but a good quality blown up image was available during the hearing). Notwithstanding this evidence, Mr Hollingsworth denied there being bluebells on the Disputed Land: he said that the lighter patches were a reflection, or possibly other plants. I do not see what these patches would be reflecting. Their appearance is entirely consistent with clumps of bluebells. Having considered the evidence, I am satisfied that there were bluebells on the Disputed Land. This suggests either that the Respondents were unaware of what was happening on the Bottom of the Disputed Land and/or that their evidence is not reliable.

59. The Respondents’ position is essentially that these witnesses have colluded to present evidence of maintenance which is inaccurate. I do not accept there is any real basis for alleging collusion between the witnesses.

60. I accept Mr Wynne’s evidence and find that he did trim the frontage of the Disputed Land from 1995 until 2022, initially on behalf of the Trust, latterly the Applicant. Western boundary

61. The issue here is whether there was historically access onto the Land from Tor Top. The Respondents rely on the wedding photograph shown above as showing a gate onto the Land; the Applicant denies there was access.

62. The wedding photograph was provided without any supporting detail or explanation. Mr Wood’s oral evidence shed a little more light – he stated that his parents owned the adjoining bungalow from the 1960s, he lived there as a child until the late 1980s, his brother was in the photograph, there was a gate onto the Land, and the Land was used as a shortcut to the church.

63. Although this evidence goes beyond what Mr Wood had set out in his statement, which focused on what the Respondents had been doing on the Land without reference to any earlier period, it is supported by the photograph and did have the ring of truth about it. Moreover, although the Applicant denied there was any access, the reality is its witnesses cannot really speak to any period as early as the 1980s/1990. I accept that, at around this time, there was a gate onto the Land from Tor Top, and that it was used as a shortcut to the church.

64. The Respondents do not say anything about a gate in relation to their own period of occupation. It may be that any access was restricted to the Agreed Strip rather than the Disputed Land, or that it was closed off altogether. Either way, at some point between 1990 and 2007, access onto the Disputed Land has been stopped. Eastern boundary

65. This boundary is important to both parties’ cases: the Applicant says there is no real boundary feature here at all, meaning that the Disputed Land is just a continuation of the Wood; the Respondents say that there has always been a boundary feature, meaning that the Disputed Land has always been enclosed from the Wood.

66. In terms of the factual position, however, there is not much dispute. It is accepted that fencing in the vicinity of this boundary was only erected recently (2020/21/22). It is also accepted that there are the remnants of a wall/a wall in disrepair along this boundary. Witnesses on both sides gave evidence that they crossed this boundary. Where the evidence perhaps differs is in relation to the extent of the remnants, that is, how much of an obstruction they are.

67. For the Applicant, Mr Bell, Mr Hampson and Mr Bradley all gave evidence of going onto the Disputed Land from the Wood. Mr Bell said that the remnants did not all the way along the boundary, that they were just a few stones, and that you could walk through. Mr Hampson said that he could cross over, that he “ won’t have paid it any mind ”, that it was one course of stone. Mr Bradley said there were numerous bits of wall but nothing to climb over, nothing more than 2-300mm (so no more than a foot). None of the witnesses say they walked through the area of knotweed; the evidence was that they crossed the Top of the Disputed Land rather than the Bottom.

68. I pause to note that, in his evidence, Mr Hollingsworth appeared to suggest that no-one on the Applicant’s side went onto the Disputed Land: when it was put to him that people had gone on to carry out surveys (for example, Mr Lally), he maintained that nobody went on it. Again, this seems to be based on a suggestion that there has been collusion between the witnesses. Mr Lally’s report clearly includes the whole of the Disputed Land. Again, it is not inconceivable that the Respondents would not have noticed the access taking place. There is no real basis for alleging collusion. I accept these witnesses did access the Disputed Land as alleged.

69. For the Respondents, Mr Wood described it as a stone wall in disrepair some 2 ft high that he “ clambered over ”, albeit I note his evidence relates to an earlier period. The Respondents themselves also aver that there was always a drystone wall enclosing the top part of the Disputed Land, enclosing their chickens. They accept that they could have clambered over the wall, although they never did.

70. What is clear is that the remnants did not prevent any of the witnesses crossing the boundary. This is consistent with the fact it does not appear to have been mapped by Ordnance Survey on any recent maps as a solid black line (a solid black line indicates an impediment to a pedestrian). I do not accept that the Disputed Land was enclosed in any meaningful sense along this boundary. Enclosure

71. There is also a related but slightly different issue in relation to enclosure. Various witnesses on behalf of the Applicant aver that the Disputed Land and the Wood were enclosed together, for example, Mr Bell saying they were fenced as one and that this was the case long before the bungalow was built. This is an allegation not just that there is no physical feature between the two, but that the Disputed Land and the Wood have always been deliberately enclosed together as part of the same parcel.

72. It seems to me, however, that this is an assertion without any real substance. The Applicant’s witnesses simply cannot speak to the historical position. It is, at best, an inference from the fact there was, until the recent fencing, no longer any enclosure along this boundary. But there is evidence that tells against this inference – there was previously a wall along the eastern boundary, there was a gate from Tor Top, and, to a lesser extent, there is the fact the Applicant accepts it cannot show paper title to the Disputed Land. I do not accept the Applicant’s allegation that the Disputed Land has always been enclosed as part of the Wood. Use of the Disputed Land

73. The Applicant does not rely on any use or even entry onto the Disputed Land by itself or the Trust until around 2016. I pause to note that there is no evidence of use of the Wood either.

74. The Respondents’ case, that they have been using the Disputed Land from around 2008/09, is denied by the Applicant. However, when the Respondents’ case is broken down, there is again not much in dispute.

75. The thrust of the Respondents’ evidence is that they began using the top area of the Disputed Land first, before clearing further down towards the Road. They say that, initially, they walked dogs on it, cleared parts for use as a vegetable garden, kept chickens on it from around 2010, and pigs from 2011. They say chicken wire fencing was put up when they first got chickens, but say that the fencing was in different positions on the Disputed Land over time, according to their use. I pause to note this is consistent with the fact the Chicken Wire Fence is noted on the 2023 HM Land Registry survey but not the 2022 one. They say they cleared the knotweed, but it would come back, and it was only in 2020 that it stopped coming back. They accept they could not really cross the knotweed areas, only in the winter when it died off.

76. Mr Hollingsworth was cross-examined about the Facebook posts as showing that he had only recently begun fencing. He did not accept this, saying it was a friend who had not been in touch for a while, and he was just updating him. That said, even on his own case, there was only internal chicken wire fencing for some time, before the boundaries themselves were fenced. In my judgment, the inference of the posts is that fencing had been going on recently (as at 2020).

77. Mr Wood and Mr Lester gave evidence supporting the Respondents’ assertions, particularly that livestock has been kept on the Disputed Land. Neither provided details as to dates. I note Mr Wood accepted that, when driving past the Disputed Land, he could not see past the knotweed.

78. On the Applicant’s side, the evidence is that clearance and fencing did not start until later. The witnesses who crossed the Top of the Disputed Land do not mention fencing, although they appear to accept that, unlike the Bottom, it was passable. Mr Lally, who inspected the Disputed Land in 2020 said there was “ no significant fencing throughout the site aside form [sic] a small section of fencing towards the south western corner of the site which to my memory was not visible from the road at the time of the inspection ”. Ms Davies-Fawcett’s evidence was that there was no real activity on the Disputed Land until April 2022, although she accepted she would not have been able to see all activity (consistent with Mr Wood accepting he could not see past the knotweed).

79. Taking all of this evidence together with the photographic evidence, I find that: (a) the Respondents did keep chicken and pigs on parts of the Disputed Land; (b) the Respondents used temporary internal fencing which moved over time according to their use. The Chicken Wire Fence as it is now has only remained in this position since 2022/3; (c) initially, the Respondents only cleared and used the southwestern corner; (d) wider clearance of the Disputed Land did not take place until around 2020/21/22; (e) fencing of the northern and eastern boundaries did not take place until a similar time. Analysis Respondents’ application

80. I can deal with the Respondents’ application shortly. They have evidently done a lot of work on the Disputed Land in recent years, including making concerted efforts to enclose it and to control access. However, they must show a continuous period of 12 years’ adverse possession in order to succeed.

81. On their own case, the first real use of the Disputed Land was keeping chickens, from 2010. Their application was made in December 2021, that is, less than 12 years later.

82. More importantly, this use only extends to a small part of the Disputed Land, the southwestern corner. It is only in recent years, since 2020 at the earliest, that the Respondents have done anything significant with the remainder of the Disputed Land. It is only in recent years that others have been excluded from the Disputed Land.

83. In any event, I am not satisfied that this use shows sufficient control, or an intention to possess, even in relation to a smaller area. The clearance was piecemeal, and the fencing erected was temporary and moveable. It is not possible on the available evidence to say what area was fenced when. The fencing is also open to the interpretation that it was to keep livestock in, rather than demonstrating an intention to possess (that is, an intention to exclude the world at large).

84. I am not satisfied that the Respondents can show sufficient physical control of, or an intention to possess, the Disputed Land for a continuous period of 12 years. Applicant’s application

85. I turn to the Applicant’s application. This is somewhat unusual, in that the Applicant does not allege that it, or the Trust before it, has made any use of the Disputed Land. Rather, the application rests on two points: enclosure as part of the Wood, and maintenance of the boundary conducted from outside the perimeter.

86. I first dispose of a particular point taken by the Respondents. This is their reliance on the planning communications as showing that the Applicant was not in control of the Disputed Land. Taken in context, it seems to me that these communications are a reflection of the discovery that the Applicant did not hold paper title to the Disputed Land rather than any sort of comment on adverse possession. In any event, the question of sufficiency of control is a matter for the Tribunal. I do not accept the Respondents’ submission on this point.

87. I consider next enclosure. It is right that enclosure of land is said to be the best evidence of adverse possession. This is because it often demonstrates both sufficient physical control and an intention to exclude the world at large as it acts to control access. It is also right that a party does not have to erect the enclosure itself to rely on it.

88. However, here, historic enclosure is the main plank of the Applicant’s case. The Applicant itself and the Trust before it have not shown, subject to the question of maintenance, that they have done anything to demonstrate factual possession or an intention to possess. This is far removed from a situation where, for example, a small part of a back garden has been fenced in and the whole has been used as one – it is a large area of land that was at one time separated from the Wood by a wall, without any evidence of use at all.

89. The Applicant argues that the enclosure means access has been controlled because the only access to the Disputed Land is through the Wood. I am not satisfied that this is right in circumstances where (a) there was previously a gate from Tor Top; and (b) the northern boundary was, until recently, not so much enclosed as demarcated by the retaining wall – the Respondents were able to and did create their own access from the Road without any real difficulty. In any event, I am not satisfied that this demonstrates a sufficient degree of control in the particular circumstances of this case.

90. There is also the question of maintenance. I have found that the frontage to the Disputed Land was trimmed, twice yearly, from the Road. I am not satisfied that this is sufficient to show adverse possession. In my judgment, in the context of the area of the Disputed Land and the extent of the trimming that was done, it can properly be characterised as trivial, and does not show a sufficient degree of physical control. Moreover, it seems to me it is an equivocal act – trimming an additional length in order to clear the pavement might be considered as neighbourly – and does not of itself demonstrate an intention to possess.

91. For the reasons given, I am not satisfied that the enclosure and/or maintenance of the Disputed Land is enough to establish factual possession and/or an intention to possess, and I do not accept that Applicant can demonstrate 12 years’ adverse possession. Conclusion

92. For the reasons given above, I am not satisfied that either Applicant or the Respondents are entitled to first registration of the Disputed Land. The Respondents are, however, entitled to first registration of the Agreed Strip.

93. I will direct the Chief Land Registrar to allow the Respondents’ application, insofar as it relates to the Agreed Strip only, as if the objection of the Applicant had not been made, and to cancel the Applicant’s application.

94. There were some matters in dispute between the parties that were not relevant to these proceedings. I urge the parties to try and co-operate and/or negotiate in relation to any outstanding issues to avoid the need for further litigation.

95. I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. It seems to me that the dispute between the parties has always been about the Disputed Land as distinct from the Agreed Strip, in respect of which neither party has succeeded. In the circumstances, my preliminary view is that there should be no order for costs.

96. Any application for costs should be sent to the Tribunal and the other side by 5pm on 2 nd February 2026, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate. Dated this Monday 5 th January 2026 Laura D’Cruz By Order of The Tribunal