British Waterways Board v Toor & Anor

Adverse possession requires both factual possession and an intention to possess. Factual possession depends on the nature of the land and how land of that kind is ordinarily used. Parking vehicles may establish possession in an appropriate setting, but it does not necessarily do so. The claimant must prove exclusive physical control for the relevant period.

The intention required is an intention to possess for the claimant’s own benefit and, so far as reasonably possible, to exclude the world at large, including the paper owner. A mistaken belief that the occupier has rights of way, or an intention to permit others to use the land, may be inconsistent with that intention.

A landowner is ordinarily entitled to a permanent injunction restraining trespass. Exceptional circumstances are required before damages are treated as sufficient instead.

The claimant sought a permanent injunction restraining the defendants from trespassing on part of an alleyway in Brentford and claimed damages. The defendants operated a motor repair business from adjoining premises and had regularly parked vehicles in the alleyway.

They contended that their use since 1987 had extinguished the claimant’s title by adverse possession. They also argued that, even if that claim failed, a permanent injunction should not be granted, relying on the parties’ disagreement about access rights and the circumstances of construction works at the defendants’ premises.

The central issues were whether the defendants had established factual possession and an intention to possess for the necessary period, and whether the claimant was entitled to permanent injunctive relief.

1. Adverse possession. The defendants failed to prove exclusive factual possession. Although they had parked cars in the alleyway, the evidence did not establish that they, and they alone, had done so continuously from the claimed date. Other occupiers might also have parked there. The nature of the alleyway and its continued pedestrian use further weakened the claim.
2. The defendants also failed to prove the necessary intention to possess. The first defendant appeared to believe that he had extensive rights of way, which was inconsistent with an intention to possess the land as against the paper owner. He also accepted that he did not intend to prevent the occupants of adjoining premises from using their rear exits. No dispossession of the claimant was therefore established.
3. Even if possession had been proved, the evidence suggested that the relevant parking began no earlier than about March 1988. The court would have reached the same conclusion whether the relevant end date was 1 October 2000 or October 2003.
4. Injunction. Following Patel & Ors v WH Smith (Eziot) Ltd [1987] 1 WLR 853, a landowner is prima facie entitled to an injunction restraining trespass, even where the trespass causes no measurable harm. No exceptional circumstances justified withholding relief. The defendants’ conduct and their failure to resolve uncertainty about their rights before building supported the injunction. The claimant’s inaccurate description of the defendants’ access rights and its incomplete disclosure on the interim application were matters to take into account, but did not outweigh the merits.
5. A permanent injunction was granted in substantially the form of the existing order, but without the express provision permitting access to erect guttering. The claimant’s damages claim required agreement or further assessment because the claimed professional fees might include litigation costs or work relating only incidentally to party wall matters.