Pilford & Anor v Greenmanor Ltd

Adverse possession requires factual possession, meaning sufficient physical custody and control, together with an intention to possess for the claimant’s own benefit. The assessment must reflect the nature of the land. Complete exclusion of others is unnecessary. Open and manifest acts such as fencing, closing an alternative entrance, constructing and using a step, storing materials and altering the land may establish possession.

An easement to park does not authorise driving across the servient land directly into the dominant property. That is a distinct actionable use. However, injunctive relief is discretionary. Delay and substantial expenditure by the trespasser may make an injunction inappropriate, with damages in lieu being assessed instead.

The respondents owned No. 125 and claimed title by adverse possession to adjoining compound land owned by Greenmanor. They also claimed easements over Greenmanor’s open land. HHJ Hollis found adverse possession from the early 1980s, declared parking and access easements, and dismissed Greenmanor’s counterclaim for removal of gates, reinstatement of the boundary wall, an injunction and damages.

Greenmanor appealed the adverse-possession finding and the dismissal of its counterclaim. The easement findings were not challenged. The central issues were whether the respondents’ acts established adverse possession and whether their direct vehicular access to No. 125 was authorised by the parking easement or should be restrained.

Disposition. Etherton LJ, with Aikens LJ and Maurice Kay LJ agreeing, allowed the appeal in respect of the counterclaim only. The finding of adverse possession was upheld. Direct vehicular access to No. 125 was actionable, but the issue of remedy was remitted.

1. Adverse possession. The applicable principles were those under the Limitation Act 1980, sections 15 and 17. Following the formulation in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419, the claimant had to establish factual possession and an intention to possess for the claimant’s own benefit. The nature of the land was relevant to both matters. Since the required period ran before the Land Registration Act 2002 came into force, the 2002 Act did not apply.
2. The respondents’ fencing, repair and partial replacement of the fence, nailing shut the alley gate, constructing and using the concrete step, maintaining the compound, storing materials and creating a driveway provided ample evidence of physical custody and control. Complete enclosure preventing all access was not legally required. The acts were sufficiently open and manifest to demonstrate possession to the owner and the world at large.
3. The parking easement did not authorise driving across the appellant’s land directly into No. 125. That was a distinct use for which no right existed, rather than an excessive exercise of the parking easement. The authorities relied on by the respondents, including Mills v Silver [1991] Ch. 271 and National Trust v White [1987] 1 WLR 907, were not analogous.
4. The court declined to grant an injunction. The amount of damages was unclear and was remitted to the county court for assessment. The appellant’s delay, together with the respondents’ substantial expenditure on the access and their property, made injunctive relief inappropriate. The rejection of proprietary estoppel, based on the appellant’s lack of knowledge, did not prevent consideration of delay and laches in the discretionary remedy decision.

• Court of Appeal (Civil Division): On 15 May 2012, allowed the appeal only in relation to the counterclaim, refused an injunction, and remitted assessment of damages in lieu to the county court: [2012] EWCA Civ 756.
• Brighton County Court: On 20 May 2011, HHJ Hollis found adverse possession, declared easements, and dismissed Greenmanor’s counterclaim.