National Trust for Places of Historic Interest or Natural Beauty & Anor v Timm

Permission for a second appeal requires exceptional circumstances and a compelling reason. Where there is no point of principle of general importance, a clear arguable defence and little or no responsibility for failing to raise it earlier may be relevant to that question. Adverse possession cannot run against a freeholder while land is subject to a tenancy. If occupation began with the tenant’s consent, it becomes adverse only if that consent was permanently revoked before the relevant surrender and regrant. Temporary disputes followed by reconciliation do not suffice. A landlord’s inaction or willingness to negotiate does not, without a positive representation and reliance, establish proprietary estoppel. Summary judgment may be given at the trial hearing where there is no arguable defence.

The National Trust sought possession of farm buildings and land occupied by Timm since about 1974 or 1975. The County Court gave summary judgment after hearing the principal claimant’s witness, rejecting alleged gifts, proprietary estoppel and reliance on the Trust’s inaction as possible defences. Timm’s appeal to the High Court, before Mr Englehart QC sitting as a deputy judge, failed.

On an application for permission for a second appeal, Timm advanced an adverse-possession case based on a 1976 surrender and regrant by operation of law. He also raised a separate issue concerning a disused railway line. The central question was whether either point disclosed a clear arguable defence and a compelling reason for a second appeal.

Application refused. Hughes LJ gave the judgment, with Rix LJ and Sir David Keene agreeing.

1. Second appeal. Exceptional circumstances were required. There was no point of principle of general importance. The court was prepared, for present purposes, to assume that a compelling reason might arise where there was a clear arguable defence and the appellant bore no, or no significant, responsibility for failing to raise it at trial or on the first appeal. Timm did not satisfy that threshold.
2. Adverse possession. Adverse possession could not run against the freeholder while the land was subject to a tenancy. The 1976 enlargement of the agricultural holding operated as a notional surrender and regrant, having the same effect as the conscious surrender and regrant in 1997. Time could therefore run against the Trust from 1976, but the period after 1997 was less than the required 12 years.
3. Timm’s own case was that his occupation began with Mr Stay’s consent. It could become adverse before 1976 only if that consent had been permanently revoked. Arguments which were resolved by the following day and followed by a return to normal relations did not terminate the continuing licence. Evidence from about 1979 or 1980 was too late. The Trust’s later inaction and negotiations, and evidence concerning Timm’s employment status, did not establish the character of his possession in 1976.
4. The separate railway-line point could not assist. The railway land was held under a separate yearly tenancy and was not included in the 1976 surrender and regrant. The point was new and had never been distinguished in the pleadings or evidence.
5. Other defences and procedure. The land had never belonged to Mr Stay, so any proprietary estoppel against him could not assist against the Trust. Inaction was not a positive representation on which reliance could support estoppel, and willingness to negotiate did not itself create a proprietary interest. Summary judgment was properly given at the hearing once no arguable defence remained. Jones v Evans [2003] Estates Gazette Law Reports 1 demonstrated that there was no procedural bar to that course.

• Court of Appeal (Civil Division): Permission for a second appeal refused, [2010] EWCA Civ 128.
• High Court (Chancery Division): Mr Englehart QC, sitting as a deputy judge, dismissed Timm’s appeal from the County Court decision.
• County Court: On 6 March 2008, HHJ Barrett QC gave summary judgment for the National Trust.