Roberts v Crown Estate Commissioners

For limitation of actions, the Crown stands on the same footing as a subject. Under the Limitation Act 1980, ordinary exclusive possession for the statutory period can extinguish a paper title whether possession began through unlawful dispossession or lawful entry followed by discontinuance. The Crown need not prove a lawful origin for its possession, and no surviving constitutional rule prevents it acquiring title by adverse possession.

Adverse possession requires factual possession and an intention to possess for oneself, including an intention to exclude the world at large so far as reasonably practicable and as the law permits. A mistaken belief that the possessor is the true owner, or a willingness to recognise a better title if proved, does not defeat that intention.

Mr Mark Andrew Roberts appealed, with permission, from Lindsay J’s order dated 24 April 2007 following a trial of preliminary issues. The order declared that the Crown Estate Commissioners had extinguished whatever title he had to the Magor Land, part of the foreshore and bed of the Severn Estuary, by adverse possession.

The appeal concerned whether the Crown was constitutionally unable to acquire title by adverse possession where its possession originated in dispossession of a subject, and whether the Commissioners had the necessary intention to possess. The court considered the effect of the Crown Proceedings Act 1947 and the Limitation Acts 1939 and 1980. The central issue was whether the Crown could rely on the same limitation rules as a subject.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Mummery gave the judgment, with Lord Justice Jacob and Mr Justice Mann agreeing.

1. Statutory equality. Section 37(1) of the Limitation Act 1980 applies the Act to proceedings by or against the Crown in like manner as between subjects. The Crown is therefore neither advantaged nor disadvantaged in limitation matters, subject only to the express statutory exceptions.
2. Adverse possession. Applying the reasoning in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419, adverse possession depends on ordinary exclusive possession by a person in whose favour time can run, together with the necessary intention to possess, for the limitation period. The origin of possession is irrelevant. The statute does not require an inquiry into whether possession began by trespass or by lawful entry followed by discontinuance.
3. Constitutional argument. The historical materials did not establish a rule preventing the Crown from acquiring title by adverse possession after dispossessing a subject. Any such rule, if it had once existed, ceased by the combined effect of the Limitation Act 1939 and the Crown Proceedings Act 1947. No saving could be implied consistently with the statutory equality between Crown and subject.
4. Intention to possess. The relevant intention is an intention to possess on one’s own behalf and to exclude the world at large, including the paper owner, so far as reasonably practicable and as the law permits. A person who mistakenly believes that he is the true owner may still have that intention. The Commissioners’ policy of acknowledging a sufficiently proved superior title did not negate their intention to possess the land as their own.
5. Application. The Commissioners’ continuous dredging, licensing, regulation and management established factual possession and the requisite animus possidendi. The character of the land supported treating acts over part of the area as possession of the whole. The rival claimant had not exercised sufficient possession to prevent exclusivity during the relevant period.

The appeal was dismissed.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 98, the appeal was unanimously dismissed.
• High Court, Chancery Division, Cardiff District Registry: Lindsay J’s order dated 24 April 2007 declared that the Crown Estate Commissioners had acquired title to the Magor Land by adverse possession.