MILTON KEYNES COUNCIL v NATHAN WILSHER

Adverse possession requires both factual possession and an intention to possess, maintained for the requisite limitation period. The assessment is fact-sensitive and depends on the nature of the land and how an occupying owner might be expected to use it. Grazing livestock alone may be equivocal, but acts such as constructing access works, maintaining boundaries, controlling access and dealing with the land as an owner may establish the necessary possession and intention. The intention must be clearly manifested and directed to excluding the paper owner. A claimant may also rely on a predecessor’s possession where the legal requirements for succession are satisfied. Proprietary estoppel requires detrimental reliance, knowledge of that reliance, and acquiescence making it unconscionable for the legal owner to assert title.

Milton Keynes Council, the registered proprietor of three fields forming part of Two Mile Ash Farm, sought an injunction restraining Nathan Wilsher from trespassing. Mr Wilsher, a Romany Gypsy and livestock farmer living at an adjoining travellers’ site, claimed that he had succeeded to rights acquired by his late father through adverse possession before 13 October 2003. Alternatively, he relied on proprietary estoppel.

The court had to determine whether Mr Wilsher and his father had established factual possession and the requisite intention to possess for at least 12 years before the relevant date. It also considered whether the evidence established the elements of proprietary estoppel.

1. Adverse possession. The applicable principles were those approved in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 and summarised in Food Convertors Ltd v Newell [2018] EWHC 926 (Ch). The claimant had to prove factual possession, an intention to possess to the exclusion of others including the paper owner, and the necessary period. Equivocal acts could not establish possession or intention.
2. The inquiry was fact-sensitive. The court considered the nature of the land, its ordinary use, and whether the alleged possessor had acted as an occupying owner might be expected to act. Grazing horses was not, by itself, conclusive. However, Joseph Wilsher’s construction of a concrete bridge before the end of 1990 demonstrated significant control and an expectation of continuing use. The subsequent maintenance, installation of a locked gate and erection of a private-property sign materially reinforced that conclusion.
3. The evidence established use of all three fields from at least the mid-1980s, with sufficient physical control and intention to possess established by no later than 1990. That possession continued through October 2003. The adverse-possession claim therefore succeeded.
4. The proprietary-estoppel case was academic in light of that conclusion and failed in any event. Detrimental expenditure in reliance on an assumed right, the Council’s knowledge of such reliance, and unconscionable acquiescence were not established.
5. The claim for an injunction failed. Mr Wilsher was entitled to the declaratory relief sought in the counterclaim, subject to submissions on the precise form of the declaration.