Site Developments (Ferndown) Ltd & Ors v Cuthbury Ltd & Ors

A transfer referring to a proposed road may grant an immediate right of way over the land intended for that road. The right is not postponed until the road is constructed. Where registered land was adversely possessed before October 2003, the former law applies. Factual possession requires exclusive physical control, and animus possidendi is assessed objectively. Possessory rights over separate registered land do not ordinarily pass automatically under Law of Property Act 1925, section 62, but may pass where successive squatters voluntarily transfer possession. A public highway may arise by dedication inferred from long public use and the landowner’s conduct, and may later be adopted under the Highways Act 1980. Restrictive covenants made for the benefit of an estate as a whole are not enforceable by every transferee of part of that estate.

The claim concerned development land and adjoining land at Mannings Heath Road, Dorset. Cuthbury claimed ownership of strips said to lie between the Claimants’ land and the road, together with the benefit of restrictive covenants in historic transfers. The Claimants disputed the existence of the strips and sought declarations concerning boundaries, rights of way, adverse possession, highway status, drainage and services.

The court determined the construction of the 1926 and 1927 transfers, the location of the relevant boundaries, whether parts of the land had been acquired by adverse possession or become highway, whether Cuthbury could enforce the covenants, and what relief should follow.

1. Rights of way. The references in the 1926 and 1927 transfers to a proposed road identified the land immediately adjoining the transferred plots over which an immediate right of way was granted. The rights were usable in a fair and reasonable manner. There was no intervening private gap between the transferred land and the road corridor. The rights also supported access to the Purple and Brown Land across the Orange Land.
2. Boundaries. The front boundary of the Orange Land was determined by reference principally to the front boundary of the adjoining Purple Land and the surrounding documentary and photographic evidence. The court preferred the approach of Mr Vaughan and rejected reliance on the rear point used by Mr Powell as insecure. The alleged Sliver was within the Claimants’ title.
3. Adverse possession. The court applied the requirements of factual possession and intention to possess. A bund would have been sufficient to establish adverse possession of the Sliver, but not of the larger ABCD or ABE areas. The Blue Land had been exclusively fenced and used for the caravan business for the necessary period. Successive companies had voluntarily relinquished possession to their successors, enabling KIL to rely on the earlier possession and CREL to succeed through KIL. The Blue Land was therefore held by Cuthbury on trust for CREL, and CREL was entitled to registration under paragraph 18 of schedule 12 to the Land Registration Act 2002.
4. Highway. Mannings Heath Road had been used openly by the public for at least 20 years and was presumed dedicated as a public highway by 1980 at the latest. The court did not rely on section 31 of the Highways Act 1980. The road was later adopted under section 238, to the extent shown on the Colour Wash Plan, including the relevant verge works.
5. Covenants and services. The restrictive covenants were made for the benefit of the Canford Estate as a whole and were not enforceable by Cuthbury. The easements permitted connection to storm-water sewers beneath the road; “surface water drains” referred to drains taking water from the road surface, not the sewers serving adjoining properties.
6. Relief. Cuthbury and Mr Simester were liable for trespasses and interference with rights. CREL received £15,000 and SDF £2,828.87. Mrs Simester was not personally liable. Declarations, registration and possession orders, and permanent injunctive relief were granted.