Calverley Village Day Nursery Limited v Catherine Deborah Lynch & Anor.

For adverse possession under the former regime, the claimant must prove factual possession and an intention to possess for the whole limitation period. Where a statutory change makes a particular date critical, possession must be established by that date; later conduct cannot retrospectively prove the necessary quality of earlier possession.

Parking and storage are not necessarily merely easement-type uses. Their character depends on the nature, size and location of the land, the extent and exclusivity of the use, and the possessor’s intention. A semi-permanent skip occupying part of the land, combined with consistent parking which effectively excluded others, could amount to adverse possession. A mistaken belief that the land had been acquired could support the necessary intention to possess.

Calverley, the registered proprietor of commercial premises at 55 Rodley Lane, appealed against HHJ Gosnell’s decision that a smaller area immediately behind adjoining premises at 57 Rodley Lane was held on trust for Mrs Lynch by reason of adverse possession.

The trial judge rejected claims for trespass, rectification and estoppel, but found that Mr Lynch and his businesses had possessed the disputed land from mid-1991. The relevant issue was whether 12 years’ adverse possession had been completed before 13 October 2003, when the former regime under the Land Registration Act 1925 gave way to the regime under the Land Registration Act 2002. The appeal challenged the sufficiency of possession and intention before the critical date.

1. Appeal dismissed. The trial judge was entitled to find that possession of the disputed area had begun before 13 October 1991. Evidence that a skip and a car had been placed there from the outset was sufficient, notwithstanding uncertainty about later uses and the subsequent installation of racking and containers.
2. The court had to assess the quality of the use during the critical period itself. The approach criticised in Tennant v Adamczyk—using later acts of a different character to establish earlier possession—was impermissible. That did not mean that incidental or accessory use could never amount to possession; each case depended on the character of the use and the nature of the land.
3. Parking and storage can be equivocal uses, but the court must consider them in context. Here the disputed land consisted of approximately two spaces on rough, unimproved ground behind the adjoining property. A semi-permanent skip occupied one space, while the other was consistently used for parking. Together they made effective and exclusive use of the area and left no practical space for the paper owner or anyone else.
4. The evidence also supported an intention to possess. Mr Lynch and Mr Spence mistakenly believed that the equivalent of two parking spaces had been acquired with No. 57. That belief was evidence of an intention to treat the disputed area as their own. The later opportunistic use of adjoining parts of the larger Blue Land did not detract from the consistent possession of the smaller area.
5. The alternative claim under the Land Registration Act 2002 was not necessary to decide. The trial judge had given no reasons establishing satisfaction of paragraph 5(4) of Schedule 6, and the relevant period and factual circumstances were materially different.

The declaration that the specified land was held on trust for Mrs Lynch, with entitlement to registration, therefore stood. Any right to vehicle access was outside the scope of the appeal.

• High Court (Chancery Division): Appeal from the decision of HHJ Gosnell, following trial in August 2019 and an order dated 8 January 2020. Mr Justice Fancourt dismissed the appeal.