Timothy Lamont Milliken & Anor v John Charles Bavister

1. The matter that has been referred to the Tribunal is the Applicants’ application to be registered as proprietor of land currently within the title of the Respondent pursuant to Schedule 6 of the Land Registration Act 2002 . Although the application was initially made in the names of both Applicants, the Second Applicant took no active part in the proceedings. References in this Decision to the Applicant are references to the First Applicant only, unless otherwise stated.

2. The Applicant is one of the registered proprietors of 9, Riverside Gardens, Peterborough PE3 6GE, registered under title number CB162526 (“9”). He purchased 9 in June 1996 (it was later transferred into joint names).

3. The Respondent is one of the registered proprietors of the neighbouring property, 10, Riverside Gardens, Peterborough PE3 6GE, registered under title number CB159726 (“10”). He became registered proprietor in 2019.

4. The title plans show the boundary between the two properties as a straight line running approximately halfway between the parties’ houses. Title Plans 9 (left) 10 (right)

5. The subject of the Applicant’s application is a strip of grass to the front of the properties (“the Strip”). The Strip is coloured pink on the Notice Plan, extract below. Notice Plan

6. The Strip is shown in the image below. 9 is on the left, 10 on the right. The rear fence between the properties can just be seen at the top of the picture; the gate to the rear of 10 is open. Moving from back to front, the edge of the paving on 10 initially follows the line of the rear fence, but soon after kinks and follows a projection more in line with the side of the garage. The overall effect is that 10 has a paved driveway in front of the garage, and a paved pathway from this to the gate to the rear. The Strip

7. The Applicant’s position is essentially that the boundary between the properties should follow the line between the paving and the grass, leaving the Strip in contention. For the avoidance of doubt, nothing in this Decision is to be taken as any sort of determination of where the existing registered title boundary runs (it being clear that it does not follow the line contended for by the Applicant). The question is whether the Applicant can demonstrate adverse possession of the Strip, such that he should be registered as proprietor of the grass area up to the edge of 10’s paving. Principles Adverse possession

8. The Applicant’s application is made under paragraph 1 of Schedule 6 to the Land Registration Act 2002 . He must demonstrate that he has been in adverse possession of the Strip for the period of ten years ending on the date of the application, that being 4 th November 2022. To show adverse possession, he must demonstrate both factual possession of, and an intention to possess, the Strip

9. 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… 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 ].

10. The Applicant particularly relies on Thorpe v Frank [2019] EWCA Civ 150 , in which works to the surface of land were held to constitute factual possession.

11. 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 ].

12. 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].

13. 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].

14. It is not in dispute that possession of the land with permission of the paper title owner is not adverse. Paragraph 5

15. The Respondent gave a counter notice requiring the application to be dealt with under paragraph 5, which effectively adds further conditions that the Applicant must meet for the application to succeed. The Applicant relies on the conditions in paragraph 5(2) and/or 5(4).

16. Paragraph 5(2) is commonly referred to as the estoppel condition. The Applicant must establish that it would be unconscionable because of an equity by estoppel for the Respondent to seek to possess him, and the circumstances are that he ought to ve registered as the proprietor.

17. Paragraph 5(4) is commonly referred to as the boundary condition. The issue between the parties here is whether the Applicant can show that he reasonably believed that he owned the Strip for a period of ten years prior to the application (paragraph 5(4)(c)). Summary of the parties’ cases

18. The Applicant’s case is essentially that the Strip has always formed part of his front garden and that he has used it as such: he says he has used it as a rockery, planted lavender, placed potted plants on it, and mowed it. He also says he carried out works in 1998 and 2022, each time after the area had suffered from flooding. He avers that, both times, he excavated his front garden – including the Strip – removing rubble, replacing it with soil and re-turfing. He says the works in 2022 were more intensive due to deeper excavation: in 1998, he excavated to a depth of 2 feet in some areas (less near underground cables); in 2022, to 4 feet in some areas (less near underground cables).

19. The Respondent does not accept there was a rockery, lavender, or potted plants until recently. He also expressly denies that the Applicant has always mowed the Strip. This is in reliance on the evidence of one of his predecessors Mr Kilgallon. Mr Kilgallon purchased 10 in 1993, that is, three years before the Applicant. He says that, initially, he mowed the Strip himself, and that this continued after the Applicant moved in, until the Applicant offered to do it for him. After that, the Applicant did mow the Strip, Mr Kilgallon having accepted the offer. Mr Kilgallon did not recall a rockery or lavender.

20. The Respondent accepts that works were carried out in 2022, at which time he was living at 9, but denies they were to a depth of 4 feet. He does not accept that the excavation works alleged by the Applicant were carried out in 1998, in part because Mr Kilgallon did not remember them, and in part because rubble he himself saw in 2022 is inconsistent with rubble having been excavated years before.

21. In any event, the Respondent denies that the acts carried out by the Applicant are sufficient to constitute adverse possession. Evidence & findings Alleged conversation between the Applicant and Mr Kilgallon

22. The most hotly disputed factual dispute is whether there was any conversation about the Strip between the Applicant and Mr Kilgallon. As this is a fact alleged by the Respondent, the burden is on him to prove it.

23. The Respondent’s case is as follows. In April 2022 (at around the time the dispute arose), the Applicant told the Respondent he had discussed ownership of the Strip with Mr Kilgallon, Mr Kilgallon had told him he was not sure who owned the Strip, but he did not mind if the Applicant looked after it. This was, the Respondent says, his primary reason for contacting Mr Kilgallon.

24. Mr Kilgallon owned 10 between 1993 and 2015. He was contacted by the Respondent when this dispute arose, and responded to some of his messages. It is helpful to set out his responses.

25. For context, there are some introductory messages from the Respondent, in which he explains who he is, refers to a dispute with the Applicant and that the Applicant has mentioned conversations with Mr Kilgallon, and asks to speak to Mr Kilgallon to check a few facts. Mr Kilgallon replies as follows: First Message

26. The Respondent then sends screenshots of the Applicant’s ST1, including the Applicant’s assertions that “ Previous owners of number 10 have led me to believe that the Strip belongs to my Property ”, and “ Mr and Mrs Kilgallon used to compliment me on how I looked after the area that the Strip is on, especially covering the manholes with flower pots, and placing lavender all along the edge, which include the Strip ”.

27. Mr Kilgallon replies: Second Message

28. Mr Kilgallon declined to provide a witness statement and did not want to attend to give oral evidence. The Respondent applied for a witness summons, which was issued. Mr Kilgallon then applied to set it aside, on the grounds that the case was nothing to do with him, the Respondent was harassing him, and due to a number of personal circumstances. These were not good reasons to set aside the summons (especially as the hearing was to be by video), and his application was dismissed.

29. I note for completeness a particular issue arising around the messages. It was apparent from the evidence that there were other messages between the Respondent and Mr Kilgallon, for example the Respondent contacting Mr Kilgallon later to ask him to act as a witness. Counsel for the Applicant invites me to draw an adverse inference from the Respondent’s failure to disclose those messages. I am satisfied that I have seen the complete exchange of messages from when the Repsondent first contacted Mr Kilgallon, and I do not see how those later messages are relevant.

30. Mr Kilgallon attended the remote hearing listed in June 2025. Regrettably, the Applicant experienced technical difficulties – he could hear and be heard, but could not see or be seen. Mr Kilgallon gave his evidence – I did not accept Counsel for the Applicant’s submission that there could not be a fair hearing without the Applicant having a visual link – and the matter was then adjourned and relisted for an in-person hearing.

31. He was asked about the Applicant maintaining the Strip. He said they had a conversation in which the Applicant offered to “ use my lawnmower to run off your bit ”, that they “ stood on the piece of land and he said he would cut it ”, that “ he cut grass when he had his mower out – that was it ”, it was “ friendly, neighbourly ”, “just two more strides ”. He maintained that, prior to this, he would mow grass on both sides of the drive, that is, he himself would mow the Strip.

32. He denied that he was confusing it with a conversation about the back fencing. He couldn’t recall anything about the fence, but said that it may have needed repair, and that, if it had, they would have shared the cost. He also denied that he was confusing it with a conversation with Tony, the Applicant’s predecessor, saying, “ he worked all hours… I don’t think he was bothered about cutting the grass ”.

33. He was pushed several times as to when the conversation happened. Initially he said he had “ no idea ”. Later, he said it was probably well into his time there, between 4 & 10 years. Later again, he said that the conversation was 2 or 3 years before he left, although he described this as “ complete guesswork… a sheer guess ”.

34. Although he could not remember when, he remembered it being a sunny afternoon and that they were wearing shorts. He was “ absolutely clear ” about the conversation, that it was “ one of those things you remember in life”.

35. I pause to note the other pertinent parts of Mr Kilgallon’s evidence: (a) he said he knew “ exactly ” where his land was, that it went from the fence line in the back garden; (b) he could not remember any lavender along the edging, or any potted plants. It was, as far as he could recall, always grass; (c) when asked about complimenting the Applicant, he chuckled and said, “ I can’t recall anything like that ”; (d) he remembered a flood but could not say whether it was 1998 or not. He said it lasted about a day and a half (Counsel put to him that it lasted four days in reliance on a newspaper article, but, as I noted during the hearing, the article did not amount to clear evidence of this). He did not recall any works at the front, only at the back.

36. The Applicant denies the conversation. He says the only discussion with Mr Kilgallon regarding their properties was to do with the rear fence. He says he never offered to cut the Strip, he just did it. He also says he never saw Mr Kilgallon mow the Strip, noting that Mr Kilgallon’s garden was the other side of the drive.

37. I have to decide whether I prefer the evidence of Mr Kilgallon or the Applicant in relation to whether this conversation took place or not. Counsel for the Applicant submits that Mr Kilgallon was not credible, that there were inconsistencies and contradictions in his evidence. In particular, he points to the fact that Mr Kilgallon could not remember when the conversation took place, but could remember shorts.

38. In my judgment, there were no materially significant inconsistencies in Mr Kilgallon’s evidence. It is right to note that he did put forward different evidence as to when the conversation occurred, but it was apparent that these were guesses put forward in the face of Counsel returning to the same question even though he had already explained he could not be specific. In that particular regard, I do not consider there to be anything unusual or incredible in a witness remembering some features of a conversation without being to remember when it took place, particularly given that it was at least 10 years ago and in relation to a property in which the witness no longer has any interest.

39. Moreover, I am quite satisfied that Mr Kilgallon was truly an independent witness. It was clear from both his application to set aside the witness summons and his evidence that he was very much in attendance under sufferance. Before he had even begun his evidence, he said that he had been trying to stop this, which I took to mean his involvement/the Respondent asking him to be involved, for 2 years. Before cross-examination, he said he was “ only here because I have to be… I want to get it over with ”. He had to be asked to open the envelope containing the hearing bundle, which he had been ignoring. He said in his evidence that he felt harassed, that he was “ having to justify myself ”. Despite his obvious discomfort and unhappiness with the conduct of the Respondent, he maintained the position he had set out within hours of being contacted for assistance.

40. I also consider that the contents of the alleged conversation have the ring of truth about them. At the time, there were no issues between the Applicant and Mr Kilgallon. Mowing the Strip would indeed have been “ just two more strides ”, and would have been a neighbourly thing to do.

41. Against that background, it seems to me it is far more likely that the Applicant has forgotten a conversation – which even at the time he may not have considered significant – than that Mr Kilgallon has remembered one that did not happen (or happened with somebody else).

42. Aside from these considerations, I also have some concerns about the credibility of the Applicant’s evidence and his propensity to exaggerate, explained later, which only go to support my conclusion.

43. Overall, I prefer the evidence of Mr Kilgallon, and I am satisfied on the balance of probability that there was a conversation in which the Applicant offered to mow the Strip. Other acts of gardening

44. The Applicant avers that the Strip was at one point a rockery. Mr Kilgallon, for his part, said that, as far as he could recall, it was always grass.

45. The Applicant relies on a photograph contained in the sales particulars from when he purchased 9, which he avers was taken in 1994 but in any event must have been taken in 1996 or earlier. This, he says, shows the rockery. The difficulty, as he accepted in evidence, is that the photograph does not show the Strip. Sales Particulars Photograph

46. The Applicant also relies on a photograph from 1998 of the floodwater on the street, in which he says you can see the rockery. An extract from the photograph is below. He has underlined with green highlighter where he says the rockery can be seen – the whitish blurry dots. Floodwater photograph

47. It was put to him in cross-examination that the whitish blurry dots are in fact the reflection of the white window frames in the floodwater, but he did not accept this. He reaffirmed that this shows the rockery in re-examination.

48. In my judgment, it is obvious that the whitish blurry dots are not in fact dots, or rocks, but are the top of lines that are the reflection of the window frames. The continuation of these lines can be seen below the green highlighter. It casts doubt on the credibility of the Applicant’s evidence that he maintained that the rockery is visible as white blurry dots on this photograph when that is manifestly not the case.

49. The bundle also includes images from Google StreetView from April 2009, September 2012 and July 2014. In none of these is there a rockery on the Strip (although there does appear to be a rockery next to 9’s drive).

50. The Applicant avers that he has planted lavender. His oral evidence was he placed the lavender in around 1997/98 before the floods, but that it died due to chemicals in the floodwater. Mr Kilgallon did not recall this.

51. There is little by way of supporting evidence. In the image from 2014, there are edging plants near to the pavement, some of which appear to be lavender, but they do not appear in the earlier photographs. One of these plants is on or close to the Strip. The Applicant’s evidence in any event appears to be that the lavender he is relying upon was planted earlier than that, and was only there for a year or two in any event.

52. Finally, the Applicant avers that he placed potted plants on the Strip. His oral evidence was that he would keep some potted plants in his garage over the winter and get them out in spring. They were sometimes on the manhole covers (and there is a recent photograph of this in the bundle), but they were moved around so this was not always the case. Again, Mr Kilgallon did not recall this. The Respondent accepted that it has happened but only in recent years.

53. There is, in general, a lack of detail in the Applicant’s evidence. It is not clear when he is saying these acts took place, for how long/how often, or where (exactly). As to this latter point, there is in my view a risk that he is recollecting his front garden more generally, rather than the Strip specifically. There is a lack of supporting evidence.

54. Overall, I am not satisfied on the balance of probability that there was a rockery on the Strip. Nor am I satisfied that there was lavender on the Strip. I am satisfied that potted plants have been placed on the Strip, but only in recent years and only intermittently. The works in 1998 and 2022

55. The Applicant avers that he carried out works to his front and back gardens in 1998 (after the flooding visible in the photograph above) and in 2022. In 1998, he excavated to around 2 feet, removing rubble, replacing it with soil, and returfing. In 2022, he excavated to around 4 feet, repeating the same process. In both cases, the works to the front garden included the Strip. The Applicant relies on invoices and photographs. However, they all relate to the 2022 works, and indeed come after the dispute between the parties has arisen. There is no supporting evidence in relation to the 1998 works.

56. Mr Kilgallon does not recall works to the front garden in 1998. The Respondent cannot give direct evidence of what happened in 1998, but he does give indirect evidence: he says that, based on what he saw in 2022, the works could not have happened as alleged as rubble was still present at depths which would have been cleared in 1998 if the Applicant were correct.

57. It is accepted that the Respondent assisted the Applicant in 2022, helping to remove a stone within 2 feet of the surface with a sledgehammer. When asked about this, the Applicant said he had not done this in 1998 because anything cemented or bolted he did not touch as he did not have the tools. The Applicant accepted that the front garden/Strip looked the same before and after the works.

58. I accept that the Applicant probably did carry out some works to the front garden and Strip in 1998. It would certainly make sense to do some tidying up after the flooding, it is accepted that works were carried out to the rear, and those works would have been more substantial (if only in terms of surface area) and so likely more memorable to Mr Kilgallon.

59. I do not, however, accept that the works were of the extent alleged by the Applicant. I do not consider his explanation of why the stone was still present in 2022 to be a good one – it was not as though specialist tools were used in 2022. Also, generally, I consider him to be prone to exaggeration, as discussed elsewhere. In my view, they are properly described as “tidying up”. The Respondent and his predecessor acknowledging the Strip was not theirs

60. Part of the Applicant’s case is that the Respondent and his immediate predecessor Mr Titchener both told contractors not to put materials on the Strip. His evidence is that Mr Titchener said, “ please do not put items on the garden near the block pavement (the Strip), that is the neighbour at number 9’s garden”, and the Respondent instructed builders not to lay gazebo parts on the Strip, saying “ That is not part of my garden ”. In cross-examination, he said that he overheard these conversations from his front room, being able to hear through the fireplace vent. When asked how he knew they were talking about the Strip, he said he saw them gesticulating through the window.

61. Mr Titchener did not provide a statement or give evidence, but did state in an email to the Respondent that “ We did not ask the roofer not to place items on the garden area near the block paving because it belonged to No. 9 ”. The Respondent’s evidence was that he did not recall such a conversation with a builder, but he was not saying it did not happen.

62. The difficulty I have with the Applicant’s case here is the significance he attaches to the alleged comments. Mr Titchener and the Respondent may well have instructed contractors where to put materials, this may well have included a direction not to put them to the left side of 10’s drive, and the left side of 10’s drive may even have been described as 9’s garden. None of that would be at all surprising in the context of instructions being given to contractors, who would not be interested in the detail of ownership and/or the distinction between the Strip and the remainder of the front garden area. I cannot see that any of this should be attributed any significant meaning.

63. I do not accept that either Mr Titchener or the Respondent said anything that amounts to an acknowledgement that the Strip was not theirs. In my view, this is an example of the Applicant’s propensity to exaggerate. Other matters

64. I also note the following more peripheral matters in relation to the evidence.

65. First is a point pursued by Counsel for the Respondent in relation to the Applicant’s credibility. It is clear from the correspondence that, in the early days of the dispute, the Applicant maintained that he had documents to support his assertion that the boundary was not a straight line. It was put to him that he had not produced any documents because he did not have any. The Applicant’s evidence was that, at the time, he thought he had such a document, that he was sure he had seen one. He referred to documents in his loft, mentioned “ hundreds and hundreds ” of documents, and said he stopped searching because he was exhausted. In my view, this is an example of the Applicant’s propensity to exaggerate.

66. Second, it is noteworthy that the Applicant accepted that, in a conversation with the Respondent, he said “ Didn’t you check the plans when you moved in?... I went over every inch of my property three times ”.

67. Third, the Applicant made reference to the boundary on the other side, that is, between 9 & 8. I heard some evidence about its maintenance. I do not, however, find that useful in determining issues relating to the Strip. Analysis

68. Having made my findings of fact, I turn to consider whether the Applicant’s acts on the Strip amount to adverse possession.

69. Firstly, mowing. I am satisfied that there was a conversation in which the Applicant offered to mow the Strip. In my judgment, this is fatal to the Applicant being able to rely upon mowing as an act of adverse possession. The mowing was with the owner’s permission. I note for completeness it matters not exactly when the conversation took place: it must have been before 2015, when Mr Kilgallon left 10, such that it affects some of the mowing that occurred within the relevant ten-year period.

70. Even if the conversation is not construed as a general, open-ended, ongoing permission (and I have not considered this in detail as (a) it was not argued by the Applicant; and (b) it is not necessary for my decision), it casts considerable doubt on whether the Applicant’s continued mowing is evidence of an intention to possess. Rather, it seems to me that it was an equivocal act, that could and should be attributed to good neighbourliness.

71. I have to say that, even without the conversation, I do not accept that mowing would be sufficient. It is a trivial act that can be attributed to good neighbourliness and/or a desire for aesthetic uniformity, particularly bearing in mind the size and nature of the Strip. I am not satisfied that it demonstrates factual possession or an intention to possess.

72. Secondly, other acts of gardening. The only one of these I was satisfied of was placing potted plants on the Strip, but this was only recent and intermittent (for the avoidance of doubt, not throughout the relevant ten-year period). In any event, I do not accept that the other acts of gardening would be sufficient, for the reasons given in relation to mowing.

73. Finally, the works. It is the 1998 works that are key, the 2022 works coming too late to assist the Applicant.

74. I am satisfied that the Applicant did carry out some works to the Strip in 1998, albeit not to the extent alleged by the Applicant. Rather, the works are properly described as “tidying up”. I am not satisfied that this amounts to an appropriate degree of physical control, and, again, given the size and nature of the Strip, I am not satisfied it demonstrates an intention to possess.

75. Even if I am wrong and the Applicant did excavate to 2 feet, remove rubble, replace with soil, and returf, I still would not be satisfied that this amounts to adverse possession. The Applicant places much reliance on Thorpe v Frank [2019] EWCA Civ 150 , but the works there – removing flags, levelling the ground, and paving – are considerably more significant and substantial. The works here ultimately left the Strip looking much the same as it did before, and to that extent could be considered maintenance as much as anything else. Moreover, it seems to me that the works are equivocal, and could be attributed to good neighbourliness and/or aesthetic uniformity as much as an intention to possess. There is something in Counsel for the Respondent’s submission that, if anything, the works should be construed as a one-off act of trespass insufficient to demonstrate adverse possession.

76. In the circumstances, I do not need to consider paragraph 5, but I do briefly note that (a) the height of the Applicant’s submissions as to estoppel was that no-one told him not to use the Strip, which is not enough to amount to a representation; and (b) it is hard to see how the Applicant can have reasonably believed that he owned the Strip when he told the Respondent he “ went over every inch of my property three times ”. Conclusion

77. For the reasons give above, I am not satisfied that the Applicant has demonstrated adverse possession of the Strip, and I shall direct the Chief Land Registrar to cancel his original application.

78. 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. Here, that would mean an order that the Applicant pay the Respondent’s costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case.

79. My preliminary view is therefore that the Applicant should pay the Respondent’s costs from the date that matter was referred to the Tribunal, that is, 9 th February 2024, to be summarily assessed if not agreed.

80. Any application for costs should be sent to the Tribunal and the other side by 5pm on 9 th January 2026, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate. Dated this Monday 8 th December 2025 Laura D’Cruz By Order of The Tribunal