Food Convertors Ltd & Anor v Newell & Anor

For adverse possession of registered land under the pre-2003 regime, the claimant must prove both factual possession and an intention to possess. Factual possession requires an appropriate degree of physical control, assessed in context, together with exclusive possession and conduct consistent with that of an occupying owner. A boundary feature may support possession without being impenetrable, but the court must assess the whole area and the claimant’s control over it. Possession must continue for the full limitation period, although physical presence at every moment is unnecessary. Regular use by the paper owner or others, lack of demarcation, and absence of reliable evidence of the claimant’s use may prevent the claimant establishing possession.

The appellants appealed from an order of the Bristol County Court dated 30 March 2017. The order declared that the boundary between the parties’ registered land followed the red line on Plan C, leaving the disputed land within the respondents’ title.

The first appellant and its director, Mr Rothschild, argued that a bund and fence constructed along the blue line had resulted in an enforceable boundary agreement or, alternatively, that Mr Rothschild had acquired the disputed land by adverse possession. Permission to appeal was granted only on the adverse-possession issue. The central question was whether Mr Rothschild had entered into and retained possession of the disputed land for 12 years before 13 October 2003.

1. Appeal dismissed. The Recorder was entitled to find that the disputed land remained within the respondents’ registered title and that the appellants had not established adverse possession for the required 12-year period.
2. Under the pre-13 October 2003 regime, the relevant principles were those stated in Powell v McFarlane (1979) 38 P&CR 452 and approved by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. The claimant had to prove factual possession and the requisite intention to possess. Factual possession required an appropriate degree of physical control, exclusive possession, and dealing with the land as an occupying owner might have been expected to do.
3. The bund and stock-proof fence were capable of supporting factual possession and the necessary intention. They did not need to be impenetrable. However, they did not demarcate the western and southern boundaries of the disputed land. The respondents and members of the public continued to use the land, while there was no reliable evidence that Mr Rothschild used it after constructing the bund and fence.
4. Those circumstances justified the conclusion that Mr Rothschild had not established factual possession. It was therefore unnecessary to decide the intention-to-possess issue, although the objective evidence made that intention difficult to infer. Possession also had to continue without interruption for 12 years, although continuous physical presence was unnecessary if the claimant retained the requisite degree of control.
5. The court proceeded on the basis that the respondents retained a right of way over the land coloured yellow to reach the disputed land. The possible abandonment of that right had not been argued below; abandonment was not to be lightly inferred, applying the principles discussed in Dwyer v Westminster City Council [2014] 2 P&CR 7. The point did not affect the result.
6. Even on the alternative assumption that the land had initially been incorporated into Mr Rothschild’s field, his non-use combined with the respondents’ and others’ use would have justified the conclusion that he ceased to retain sufficient physical control from 1992. The authorities Bligh v Martin [1968] 1 WLR 804, Smith v Waterman [2003] EWHC 1266 (Ch) and Zarb v Parry [2012] 1 WLR 1240 were considered in that alternative analysis.

• High Court (Chancery Division): On appeal from the Bristol County Court, Morgan J dismissed the appeal and upheld the order declaring that the disputed land belonged to the respondents.
• Bristol County Court: Mr Recorder Watson QC rejected the claims based on an enforceable boundary agreement and adverse possession and ordered that the boundary followed the red line on Plan C.