Devanney v London Borough of Hounslow

To defeat a registered freehold title by adverse possession under transitional provisions, a claimant had to establish 12 years’ uninterrupted adverse possession by 13 October 2003. A reliable aerial photograph showing no van or shed on the disputed land during that period was sufficient to disprove continuity. Evidence that the claimant’s business occupied adjoining land, and later moved onto the disputed strip, reinforced that conclusion. Fresh cartographic material did not alter the evidential position. An appellate court will not reverse a trial judge’s factual conclusion where the evidence provides a sufficient basis for it and the proposed new material could not affect the outcome.

Mr Devanney operated a mobile café and claimed adverse possession of a strip of land owned by Hounslow. HHJ Oppenheimer found that he had begun trading there in 1990, but had then left for Ireland and did not return until 1996. The judge relied principally on a 1999 aerial photograph showing no van or shed on the land, together with supporting witness evidence, and concluded that possession had not been continuous.

Permission to appeal was initially refused by Lord Neuberger MR. On renewal, Tomlinson LJ granted permission because of alleged evidential discrepancies and left the question of admitting new evidence to the full court. The central issue was whether the new maps could establish 12 years’ continuous adverse possession of Hounslow’s land by 13 October 2003.

Appeal dismissed. Sir Stephen Sedley gave the judgment, with Lord Justice McFarlane and Lady Justice Arden agreeing.

1. Applicable period. Section 15 of the Limitation Act 1980 provided a 12-year limitation period for actions to recover land. Section 96(1) of the Land Registration Act 2002 disapplied that provision from 13 October 2003. Thereafter, a prescriptive title had to be established by registration or through the defence under section 98(1) and paragraphs 1 and 5(4) of Schedule 6 to the 2002 Act. The appellant did not rely on, or satisfy, that defence. He therefore had to prove 12 years’ continuous adverse possession by 13 October 2003, beginning no later than 13 October 1991.
2. Evidence of discontinuity. The trial judge was entitled to rely on the aerial photograph purchased and digitally recorded in July 1999. It showed no significant occupation of the land by a van or shed. Even if the appellant’s criticism of the roundabout shown in the image were accepted, the photograph still demonstrated the absence of such occupation at a material point in the 12-year period. That evidence alone was sufficient to defeat the claim.
3. Location and later occupation. A June 2003 photograph showed the van and sheds west of the security barrier, on BAA’s land. A September 2006 photograph showed them east of the barrier, on Hounslow’s land. A January 2004 letter corroborated the inference that the move occurred in late 2003 or early 2004. The evidence therefore did not establish continuous occupation of Hounslow’s strip.
4. New evidence and order. The court considered the new maps without determining whether they had previously been available. They could not alter what the 1999 photograph showed or affect the outcome. The appeal was dismissed. The stay of possession ended 28 days after formal hand-down of the judgment.

• Court of Appeal (Civil Division) — Considered the appeal from HHJ Oppenheimer, examined the new cartographic material, and dismissed the appeal: [2012] EWCA Civ 1660.
• Permission stage — Lord Neuberger MR initially refused permission. On renewal, Tomlinson LJ granted permission and left the admission of new evidence to the full court.
• First instance — HHJ Oppenheimer found that the required continuous adverse possession had not been established, relying principally on the 1999 aerial photograph and supporting witness evidence.