Robert Charles Hayward v Suffolk County Council

For adverse possession, factual possession requires effective physical custody or control of the land. An assertion that members of the public may use land, including through a public-access scheme or sign, ordinarily concerns intention to possess only. It does not establish factual possession where the claimant has not excluded or controlled the public.

On appeal, factual findings and evaluative assessments should not be reconsidered afresh. Interference requires a material error, a conclusion unsupported by the evidence, or a conclusion outside the range of reasonable disagreement.

Where registration was obtained despite failure to satisfy the statutory adverse-possession period, later administrative failures by the paper owner do not necessarily make rectification unjust.

The appellant had been registered as proprietor of land adjoining his farm on the basis of adverse possession. The First-tier Tribunal found that the land had remained openly accessible to local residents until 2014 or 2015 and that the appellant had not established ten years’ adverse possession. It directed alteration of the register under Schedule 4 to the Land Registration Act 2002 because the registration was a mistake.

The appellant challenged the findings on factual possession and the conclusion that rectification would be just. He also sought to introduce new evidence, including signs relating to public access under the Countryside Stewardship Scheme. The central issues were whether the FTT had erred in its factual and evaluative conclusions, and whether the new evidence could affect the outcome.

1. Appeal dismissed. The FTT’s direction to correct the register was upheld. If the Land Registry had not already implemented it, it was directed to do so.

2. Legal possession requires both factual possession and an intention to possess. Factual possession requires an appropriate degree of physical control, assessed in the circumstances and having regard to the ordinary use of the land. The claimant’s acts must demonstrate exclusive possession and control.

3. The FTT was entitled to find that the appellant had not obtained factual possession before 2014 or 2015. Public access had remained open and extensive, the Council had continued to maintain the land, and the appellant’s claimed acts were insufficient to establish effective control. Even putting the land to grass would not, without further acts of possession, have established possession to the exclusion of the Council.

4. The appellant’s nomination of the land for public access under the Countryside Stewardship Scheme, and signs identifying public access, could evidence his subjective intention to possess. They were not acts of factual possession. The signs were remote from the land’s entrances and involved no physical presence, custody or effective control over the land.

5. The rule concerning failure to challenge evidence in cross-examination is one of fairness but is flexible. It does not place the tribunal in a straitjacket requiring acceptance of the evidence. The FTT was entitled, in the context of the evidence as a whole, to reject uncorroborated evidence from witnesses whose recollections it found unreliable.

6. New evidence on appeal was assessed by reference to the factors identified in Ladd v Marshall [1954] 1 WLR 1489, together with the overriding objective. The additional witnesses and payment records were properly excluded. Although the signs might have corroborated participation in the scheme, they could not have altered the conclusion on factual possession and therefore could not affect the outcome.

7. Appellate restraint applied to the FTT’s factual findings and evaluative assessment. The Tribunal was not entitled to conduct the balancing exercise on rectification afresh. The FTT was entitled to conclude, consistently with Baxter v Mannion, [2011] EWCA Civ 120, that it would be unjust to allow the appellant to retain an unwarranted windfall when he had never satisfied the conditions for registration. The Council’s administrative failures did not require a different result.

• Upper Tribunal (Lands Chamber): appeal against the First-tier Tribunal’s decision of 28 February 2025 dismissed. The FTT’s direction to alter the register was upheld.