Smith, R (on the application of) v Land Registry (Peterborough)

Adverse possession cannot extinguish a public right of way or confer possessory title to a highway where the acts relied on would necessarily constitute unlawful obstruction. A claimant must establish factual possession involving an appropriate degree of exclusive physical control, assessed in light of the nature and use of the land. Because the public is entitled to use the whole width of a highway, possession inconsistent with that right would require conduct criminalised by Highways Act 1980, section 137. A highway cannot be extinguished by adverse possession. The claim was therefore dismissed, although the issue was not academic because the claimant intended a renewed registration application and the authorities might pursue possession or obstruction proceedings.

The claimant sought judicial review of the Assistant Land Registrar’s cancellation of his application for first registration of land at Willingham. He claimed title by adverse possession, relying on the presence of a caravan and associated structures for more than 12 years. Cambridgeshire County Council opposed the application because the land was recorded as a public highway.

The application was cancelled on two grounds: adverse title could not be acquired over a highway, and the evidence did not establish adverse possession. The claimant challenged only the first ground. The central issue was whether adverse possession could confer title to part of a public highway or extinguish the public right of way.

1. Application dismissed. The claimant accepted that the land was a public highway and did not challenge the independent factual conclusion that he had failed to establish adverse possession.
2. Adverse possession requires factual possession involving an appropriate degree of physical control and exclusive possession, assessed by reference to the nature of the land and how land of that nature is commonly used. The public is entitled to use the whole width of a highway. Mere disuse cannot deprive the public of that right.
3. On the facts and legal principles applicable to highways, the possession required to establish adverse possession over part of a highway could only be achieved by conduct substantially preventing public access. Such conduct would constitute wilful obstruction contrary to section 137(1) of the Highways Act 1980.
4. The illegality principle applied. Bakewell Management Limited v Brandwood was concerned with prescription and lost modern grant, and its exception depended on the landowner’s ability lawfully to make the relevant grant. That qualification did not assist the claimant. The principle stated in Glamorgan County Council v Carter, and approved in Bakewell, supported the conclusion that a legal right could not be acquired by conduct which primary legislation made criminal.
5. Harvey v Truro District Council was plainly right. London Borough of Bromley v Morritt was technically obiter on the land-law issue, but the dictum was plainly correct and was followed. Haigh v West was distinguishable because any title there remained subject to the public right of way. Seddon v Smith, Lord Advocate v Lord Lovett and Lambeth London Borough Council v Blackburn did not concern conduct which was itself criminal possession of a public highway.
6. The issue was not academic. It could arise on a renewed registration application, in possession or removal proceedings, or in a prosecution for obstruction. The claimant was ordered to pay the defendant’s costs, enforceable only with permission because he was publicly funded. Permission to appeal was refused.

First-instance judicial review in the Administrative Court. Permission to appeal was refused. An extension of time to serve an appeal notice was granted because of the anticipated delay in obtaining the transcript, with directions requiring the claimant to notify the proposed respondents and the court when it was received.