Hicks Developments Ltd v Chaplin & Ors

On an appeal alleging inadequate reasons, the appellate court may infer the lower court’s reasoning from the judgment, evidence and submissions. Reasons may be implicit, particularly where the decision turns on competing oral evidence. A rehearing is required only if the appellate court remains unsatisfied that the reasons are apparent and the decision may be unjust.

For adverse possession, permission requires an overt act or demonstrable circumstance probative of permission, either express or necessarily implied. Mere non-objection, acquiescence or inspection is insufficient. An agreement to position a boundary fence so as to preserve a natural screen does not, without more, imply permission to occupy and possess the land.

The claimant appealed from a decision of Professor Robert Abbey, sitting as a Deputy Land Registry Adjudicator, directing registration of Thomas and Joyce Chaplin as proprietors of a strip of land adjoining their property. The Adjudicator concluded that the Chaplins had acquired title by adverse possession.

The claimant argued that the Adjudicator had failed to make findings about the acts said to constitute possession and had wrongly rejected the case that the occupation was permissive. The appeal therefore concerned both the adequacy of the Adjudicator’s reasoning and whether the facts established permission to occupy the strip.

1. The appeal was dismissed. The Adjudicator’s decision was not unjust within CPR rule 52.11(3)(b), despite the absence of an express finding and detailed reasons concerning the Chaplins’ acts of possession.
2. The principles in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 3777, Smyth v Greenhouse Stirton (unreported, 4 October 1999), Jawad v Rahim (unreported, 8 December 2000) and English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 permitted the appellate court to infer the Adjudicator’s reasons from the decision, evidence and submissions. The issue depended principally on competing oral evidence, and it was sufficiently apparent that the Adjudicator preferred the Chaplins’ evidence.
3. Applying J.A. Pye (Oxford) Ltd v Graham [2003] 1 AC 419, possession had to be without the paper owner’s consent. The correct test, derived from Batsford Estate (1983) Ltd v Taylor [2005] EWCA Civ 489, required an overt act or demonstrable circumstance from which permission could be inferred. The circumstances had to be probative of permission, not merely consistent with it.
4. There was a real distinction between permission and mere non-objection or acquiescence. The consensual positioning of the fence preserved an existing natural screen and did not imply permission for the Chaplins to occupy, possess, alter or maintain the strip. Subsequent inspection and lack of objection added nothing, since they were equally consistent with acquiescence.
5. The Adjudicator had erred in treating the Chaplins’ belief that they occupied the land as of right as fatal to permission. Nevertheless, on the facts, the conclusion that there was no express or implied permission was correct, so the error did not affect the result.

The judgment was a first-instance appeal from the order of Professor Robert Abbey sitting as a Deputy Land Registry Adjudicator dated 9 June 2006. The High Court dismissed the appeal.