Adverse possession of a highway

Can you acquire title to land over which a highway runs? There seems to be no reason in principle why not but R (Smith) v Land Registry (Peterborough) [2009] EWHC 328 (Admin) — wrongly in my view — suggests otherwise.

The Claimant had occupied land with his caravan and its associated structures for in excess of 12 years. He applied to the Land Registry to register his title to the land by adverse possession. The land itself formed a part of a public highway open to all traffic. Accordingly the assistant land registrar refused the application for two reasons: (1) “title cannot be acquired to highway by adverse possession” and (2) the Claimant had not shown a sufficient degree of exclusive physical control over the land in question to found a claim for adverse possession.

The Claimant applied for judicial review.

At first glance the case seems quite straightforward. The Claimant accepted conclusion (2) which would (surely?) mean his claim would be bound to fail. Nevertheless the court thought it was useful (given that the Claimant intended to make another application to the registrar) to decide whether conclusion (1) was right.

Even at second glance the case seems relatively straightforward. As any student of land law knows, adverse possession only affects corporeal not incorporeal hereditaments (other than tithes and rentcharges, although a typical student might be forgiven for ignoring them). For example, if a squatter takes over my neighbour’s property, their adverse possession won’t affect any easements my property has over theirs such as a rights of light or way. See s.38(1) of the Limitation Act 1980.

What is more, no amount of obstruction to a highway, for however long will destroy the highway (Harvey v Truro Rural District Council [1903] 2 Ch 638).  As the saying goes “once a highway always a highway”.

This is relevant because, unfortunately for Mr Smith, s.236 of the Highways Act 1980 provides that every highway maintainable at public expense (as was the one in question) vests in the highway authority “together with the materials and scrapings of it“.

In other words so long as the highway remained a highway the local highway authority (Cambridgeshire County Council) owned and continued to own the top surface of the highway and so Mr Smith’s attempt to acquire ownership of the same was doomed.

Unfortunately that relatively simple approach does not appear to have been enough for the court. Instead the court proceeded to decide that: (1) it is impossible to obtain title to a highway by adverse possession and possibly (2) possession which amounts to a criminal offence cannot found a claim for adverse possession.

The assistant land registrar had based his conclusion on a statement by Lord Justice Mummery in London Borough of Bromley v Morritt. There are two cases of that name, which were heard as conjoined appeals. Only the first was reported (as London Borough of Bromley v Morritt (No. 1) [2000] E.H.L.R. 24), it is the second (case number CCRTF 1998/0956/2) which relates to adverse possession of a highway.

The judge said:

As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.

One wonders why not. For example it is quite possible for the land subject to the highway to be held by a private individual who may then exercise rights (such as grazing of livestock) over the highway provided that exercise of those rights does not interfere with the right of the public to pass over the highway.

Possession, for the purposes of adverse possession, need only be possession that is consistent with the nature of the land in question. Provided I exercise the rights of the land owner, minimal though they might be, I should be able to establish possession of land subject to a public right of way.

Morritt is an unfortunate case because the Claimant was a litigant in person. There does not appear to have been any proper argument or consideration of the adverse possession claim, so that Mummery LJ’s conclusion must be treated with caution. Furthermore it is, at least technically, made by the way and not properly authoritative.

Recognising that Morritt was not binding authority, the trial judge relied on the case of Harvey that I referred to above. He said:

Joyce J concluded that this was an encroachment and said in relation to it:

“The possession of a squatter on the highway since 1886 cannot bar the public right.”

In other words, Joyce J held that adverse possession could not be asserted if (as is alleged here) the effect would be to exclude the public from part of a highway, and that was so even if the part concerned had not been used, as such, for a number of years.

Nonsense. In Harvey the Claimant had applied for a declaration that the land in question (part of the roadside waste) was not a part of the highway. Adverse possession was never claimed. In fact it was quite possible that the land formed a part of the Claimant’s estate. Joyce J did not think that had been proved to his satisfaction, but he did not determine the question because the parties wished him to consider the right of the public over the roadside waste.

Not content with misconstruing Harvey the judge went on to consider what he called the “illegality” point. The Defendant and the Council had argued that there was a principle of public policy which prevents a party acquiring a legal right by illegal activity. Mr Smith’s taking possession of a part of the highway with his caravan etc would amount to an obstruction of part of the highway contrart to s.137 of the Highways Act 1980. Public policy would intervene to prevent him from claiming adverse possession on that ground.

By an extremely convoluted route, the judge found support for the existence of such a proposition in the House of Lords decision in Bakewell Management Limited v Brandwood [2004] 2 AC 519. That case was about rights acquired by prescription not by adverse possession. They are quite different legal principles. As Edward Burn my old land lecturer used to say: prescription is based on use as of right, but adverse possession is use as of wrong.

The decision in Bakewell concerned whether the Defendants could acquire a prescriptive right of way over a common for their vehicles. They had been driving over the common to their properties for at least 20 years but that action was criminal in nature because it was done without the consent of the owner of the commons. The Lords found that, even so, they could acquire a prescriptive right under the doctrine of lost modern grant which presumed that use as of right for 20 years implied the existence of a grant from the land owner (now unfortunately lost). If they owners of the common had granted a right to the Defendants their use would not have been criminal.

At first sight Bakewell looks rather unpromising as a case to found a general principle of public policy that a party cannot acquire a legal right by illegal activity because that is exactly what the Defendants were found to have done. Nevertheless the trial judge appeared to be able to so find on the basis that Bakewell was an exception to a general principle. In Mr Smith’s case the local authority could not have granted him a right to obstruct the highway and so he fell outside the Bakewell exception and could not succeed. Of course that is not how the decision in Bakewell operated and in any event referred to prescription not adverse possession which is based on wrong not right.

Worse was to come. The judge relied on Glamorgan County Council v Carter [1963] 1 WLR 1 (which has absolutely no relevance whatsoever but that should be no surprise to readers by now) on the basis that it was approved by Lord Scott in Bakewell. He said (my apologies for the length):

In his opinion in B akewell , Lord Scott approved Glamorgan County Council v Carter [1963] 1 WLR 1 in these terms:

Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947 . The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12 (5) ( of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purposes for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was a context in which Salmon LJ, at page five, made the statement cited by Dillon LJ, namely: “It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land.” Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. ”

In my judgment it is the principle stated in the Glamorgan County Council case and approved by Lord Scott in Bakewell (rather than the exception to it by which Bakewell was actually resolved) that applies in a case of this sort.

It is regrettable that the judge ended his citation of Lord Scott at that point for he continues:

But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ’s statement out of context and treat the principle he expressed as applicable to prescriptive use.

In my view the judge’s use of the authority was equally unconvincing.

I do not think I need to go on. In my view the judge was either badly mislead by counsel or did not properly understand the authorities that were put before him. That is very unfortunate as he appears to have stated a general principle which does not, on closer examination, stand up.

Readers have fellow blogger “J” to thank for this lengthy diatribe. I am about to blog about an elegant case involving the acquisition of tidal foreshore in the Thames by adverse possession but, before I was permitted to do so, I was told I had to report this case.

Posted in Adverse possession, Housing law - All and tagged , .

36 Comments

    • Mr Smith is a Romani Gypsy and, just so that readers appreciate the factual position, I should hasten to add that he is at the side of what is effectively a bridleway…and I am pleased to confirm that Mr Smith has been given permission to appeal by Mummery LJ and continues to be represented as expertly as ever by Mr Watkinson of Garden Court chambers.

      In passing , another Traveller case is coming before the House Of Lords on June 10th and 11th , namely the case of SSEFRA v Meier & ors, concerning the question of obtaining wider possession orders for parcels of land that the Travellers are not currently on and an injunction ocvering those parcels of land.

    • Chris, thanks. I did wonder whether to spell out that the caravan etc were on the “side of the road” as it were, but my post was already quite long.

      A different division of the High Court had no difficulty with this point it would seem:

      http://nearlylegal.co.uk/2009/05/adverse-possession-of-the-river-bed/

      I am glad to hear he has been given permission to appeal and has good representation. I will look to see what the Court of Appeal decide with interest. I am not nearly as convinced by the Highways Act argument as I was when I wrote the post – it certainly bears some closer scrutiny.

  1. Issues for adverse possession against the highway need to be resolved on a more pragmatic basis.

    I have just recently had the Adjudicator to Land Registry cancel my application for registration to a piece of land between a former builder’s workshop and the roadside drain / ditch arrangement at the highway. The determination the Adjudicator had to make was for either a “hedge to hedge presumption” or a “hedge to ditch presumption” and for which he concluded that the hedge was for an 18th century boundary and that the ditch was at face value “highways installed in the 1930’s”. I do not agree with the judgement delivered on 30th July last as the area is flood plain with a record of flooding and further believe the hedge and ditch to have always been a common feature. For what little value it has, the adjudicator also determined that the case for adverse possession was unequivocal.

    The judgement resolves nothing in practical terms and now affects a number of other parties whereby a directly neighbouring registered property has the status of its garden as former highway verge and a further nearby registered property has its complete extent for both the house and garden as sitting upon former highway verge.

  2. No one should be allowed to claim Adverse possession, it should be made a criminal offence. What kind of self respecting person makes a claim on land they do not own! It appears even tenants of farms are now making such claims and the courts are up holding them. I have lost acres of land due to this, land I worked hard for and some dishonest person comes along and effectively steals it. This act is nothing more than THEFT.

    • It would be unusual for a tenant (in their capacity as the same) make a claim for adverse possession, since (in very simple terms) having a tenancy will involve recognising that someone else has better title to the land than you and that you’re using it with their consent.

      With the advent of the LRA 2002, adverse possession will, I suspect, become a thing of the past given that registered owners should now have a period of about 2 years when they will be on notice of the claim for adverse possession and can take steps to defeat the claim by, eg, issuing possession proceeedings.

    • That may be the case, if land is registered, but in this instance the tenant is registering all the unregisterd land on the estate. He became the tenant fraudulently and as he is my brother at the time of my father’s death as there was no will he obtained ‘Letters of administration’ this seems to allow him to wear two hats, both to suit his own needs and for his own gain. As he is the administrator he seems by law to beable to do as he pleases without notifying me, despite my being part owner. I understand my name should also now be registered as part owner, but when he applies for lands to be put in his name on the grounds of adverse possession, he clearly states he is the sole owner on the grounds vested to him by way of probate. I do not have the funds to fight him. This law is silly and allows greedy theives like my brother to abuse it. If my name is not on the registry, how can I be notified. I have no paperwork to prove I am the owner and as there was no will, by law this land should have been divided equally, yet as tenant and administrator, he has both paperwork and the revenue to do as he pleases. I say unfair.

    • That does not sound like adverse possession at all. You should go and talk to a solicitor specialising in property and inheritance *litigation* to get advice. There’s a lot going on in what you say.

    • And – point of law – a tenant cannot adversely possess land *against* their landlord (since they are there permissively) nor can an administrator against the heirs.

      As I said, you need legal advice about this.

    • Francis
      My point exactly, a tenant should not be able to adversely possess land against their landlord, and an administrator should not be able to either. But the tenant is one of the heirs, he is also part owner as he is my brother, so a joint landlord. As for ‘adverse possession’ the unregistered land he is claiming was used uninterupted for 50 years by my father, some of it belongs to the Highways, he now has much of this in HIS own name and is currently fighting for more. Surely if this is adverse possession and as it was used by my late father, then if successfully claimed, should be owned by the estate. The point being there are many points of law regarding Adverse Possession, whilst it may appear black and white, it is not. It does not take into consideration, this tangled web… if the owner (or part-owner) cannot register the land because of a greedy deceitful family member / adminstrator /tenant, not doing his job correctly and registering the land to both of us…what can be done. He will not communicate with me, ignores all letters etc. It is simple to say seek legal advice, but how is one to do this, given one has no funds and most lawyers require payment up front and as they go. I have spoken to many many solicitors regarding Arg tenancies, holding acts 1986 and the legal duties of an administrator. I know my brother is breaking the law and I assume many other people are having their land stolen under their noses, but if like me are unable to pay for legal services, these theives get away with it. Adverse possession, esp where the Land Registry is concerned should look deeper into ownership, should actually realise esp when, as I have notified them of the situation, should make contact or ask the applicant about information received from me. It appears these authorities, just do not care. I am not sure if you and J are in the legal service, you seem to have a good knowledge. Yes this situation is complicated and I am at a lost as what to do or where to go. I had an accident a few years back and this left me unable to work. So it is hopeless. Thank you for you comments and input, some of which have been most helpful, in as much as you have comfirmed in your last reply, that this should not be happening. Therefore, why is it, that it is. I still stand by my first comment, the law is an ass and does not allow for situations like mine. The law makes it easy for people like my brother, whom given he receives a terrific income from the estate has the funds to take legal advice on how he can get away with it. Thank you

    • Janet, we can’t give legal advice on people’s specific problems via the blog, so I’m afraid we won’t be able to go any further. Both J and Francis are lawyers with considerable expertise and from what you have said in all your comments I would agree that this does not sound like adverse possession at all, at least against you. I think you mean that someone has obtained registered title in which your view is that you should at least have a share in the title. This is not adverse possession in legal terms. There may be an issue of adverse possession of the Highways land, but this could only be on the part of your father’s estate against the Highways, NOT against you.

      But it does sound like a complex matter, even if adverse possession is not involved.

      If your case is reasonably strong, you may be able to find a solicitor willing to take it on on a ‘no win no fee’ (Conditional Fee Agreement) basis. Otherwise, depending on your income and assets, you may be eligible for legal aid. Try the Community Legal Service website, link at top right, which has a calculator to assess eligibility for legal aid. In any event, from the situation you describe, it sounds like it would at least be worth paying for an initial advice on your position and options.

      But, to be blunt, you do not give enough information for us see what your case would involve – we could not advise on it anyway – and simply saying that ‘the law doesn’t help’ or ‘the Land Registry should do X’ is not going to get you anywhere. The law might well help, but you have to pursue your legal rights. I know very well that funding is difficult, but I hope that either a CFA or legal aid funding may help – you should certainly try these options.

    • I’d just like to underline that we can’t advise on this website on individual cases, but you really ought to go and see a lawyer in their professional capacity. If you talk to a CAB or law centre they might be able to refer you to either the bar or solicitors’ pro bono units, and there may be other options. Do have a look around.

    • I’d add that with a strong claim, after-the-event insurance coupled with a CFA may help. Litigation funders may be available. Any competent solicitor can discuss funding options with you.

  3. Francis NL & J
    I stumbled upon this site in the early hours (another night when I could not sleep) I never really bothered to read who you all were and responded really through anger. I never expected a response. Reading what you all have replied and the fact that you all even bothered listening to my view, has truly brought tears to my eyes. The latest reply has been of help and I most certainly will search the net in hope. You have given me incentive and for that I thank you. I also apologise for taking your time. It was not my intention to seek either Free legal advice or a personal response. Thank you all

  4. I will follow the Smith case with interest I had an LR adverse application turned down for a very small piece of land PARTWAY accross my drive between my boundary and the grass verge this piece of land about 20 square meters is deemed as Highway even though they have been very helpful and told me they don’t own it! I paved the area in 1992 and before that since 1985 it was a gravel drive put down by myself. I can apply for a stopping up order but it will be a further 12 years before I can register the piece of land! hence my interest in the Smith case!

    • For those like John interested in Mr Smith’s case it is floating with a one day time estimate over two days in the Court of Appeal on either Nov 24th or 25th.
      John, thanks for sending me the judgment in your case. Please inform your solicitor or adviser of the above.

  5. Thanks Chris can I keep track of the case on line?
    I have not engaged a solicitor yet! if the ruling is in favour of Mr Smith I can register the small piece of land, otherwise it will be the stopping up order waiting 12 years and the piece of land during this time in theory it would belong to no one and if I sell my house it will cause a problem!

    • John, as soon as there is a transcript of the case out, we will report it here – that won’t be straight after the hearing though.

  6. John, as you know the hearing took place on Tuesday 24th and I’m afraid you’ll have to be patient because it may be a while before the judgment appears. Hopefully before the end of the year but could possibly creep into next year. NL will probably know before I do due to their amazing psychic powers.

  7. Thanks Chris I will wait for the Psychic to get a message! I am not impatient! just not aware of the process and how long these things take?

  8. It will be interesting to see if the Appeal court is brave enough to tackle an issue previously fudged by one Lord Justice. An opportunity exists to put right a ridiculous piece of legislation in the form of a Local Government Act that only allows Councils as public bodies and not private individuals to apply to the courts to extinguish highway rights.

    The administration of justice is all about striking a balance between public and private rights and a nonsensical situation exists whereby a private individual cannot legally challenge certain public rights. Current UK law in respect of adverse possession against the highway is more akin to the judicial systems of the eastern European countries after WW2. The falling out of use and changes in law that precluded private individuals from applying to the courts for writ of “Ad Quod Damnum” to stop up the highway means that the scales of justice have been quite wrongly and permanently tipped in favour of public rights to the exclusion of all and any private rights.

    Possession is possession and there is no tangible difference between securing real property illegally via adverse possession or via legal prescription. The only difference is that transfer of the former is without a contractual arrangement. It cannot be in the public interest for a person applying for first registration of land to face eviction and given an alternative housing provision at public expense. Just because a person’s home is sitting on highway waste, not a past or present traveller’s route to cause an obstruction, why should their caravan, albeit not subject to planning and to which no complaint has been made, be destroyed. The Human Rights Act issues here probably direct that another ludicrous legal cost burden exists for the taxpayer.

    There is no reason why an application for adverse possession cannot consider a land transfer mechanism that extinguishes highway rights and enacts a new title if encroachment from an existing title is not taking place. The notion that the highway estate automatically assumes the greatest title and that it is not possible to create a new lower class of title out of it is bonkers.

  9. So, if I understand this correctly, adverse possession of the highway is possible, but the over riding highway rights remain in force. If so this would mean that despite ‘ownership’ transferring, the highway rights would still prevent any form of occupation which could be an obstruction to the public right of passage (e.g. a caravan), furthermore, the ‘owner’ could not enclose, excavate, plant or carry out any works thereon as these would be contary to the Highways Act and the highway authority could legitmately atke action useing it’s powers there under (Part IX sections 130 to 185).
    This then begs the question, what practical use would it be to ‘own’ a highway?

    • Mark, the simple answer is that not all highways are maintainable at public expense and are therefore not caught by the 1980 Act. So there are situations where this – ownership of the surface – principle would not apply.

      The owner of land over which a highway runs has another useful right: to sue in trespass. If someone uses a highway for a purpose that falls outside the right to freely pass etc (eg to stage a static demonstration) the owner of the highway may sue for trespass to their land. There are situations in which that could be a useful right.

      You might also take the long view that the highway might be stopped up some time in the future.

      There are many and varied reasons why it might matter.

  10. ” the simple answer is that not all highways are maintainable at public expense and are therefore not caught by the 1980 Act. So there are situations where this – ownership of the surface – principle would not apply.”

    HA80s1(2) states the HA is the HA for al highways, whether maintained at the the public expense or not.

    The HA has control of the top two spits, so I would suggest it does for most sections of the HA80.

    • I’m afraid I don’t understand your question. I think I have explained myself quite clearly. Not all highways are maintainable at public expense. See for example Part IV of the Housing Act 1980. You will see in section 47 a power to convert one that is to one that isn’t. Hopefully that makes it clear that the possibility is not merely theoretical. Section 1 determines who is the highway authority for a highway not whether it is maintainable at public expense.

      The Bond Pearce article you link to in your next comment does not say “Confirmed, adverse possession does not apply to highways.” I suggest you read it again. The actual quote is “The CA held that title by adverse possession could not be established over land which is public highway pursuant to the vesting provisions of section 263 of the Highways Act 1980.” which is not the same thing.

      Yes, once a highway always a highway, but adverse possession is certainly possible over a highway to which s263 does not apply. The adverse possessor would not extinguish the highway (“once a highway…”) but would own the land over which the highway ran. That ownership would permit (say) an action for trespass against someone who was standing on the highway but not using the highway for its purpose. The point about s263 is it creates a statutory vesting which prevents adverse possession. Its s263 that does it, not the fact that its a highway.

  11. Does this apply to a bridleway which runs across a farm, the bridleway once used to be a highway in the 19th Century? The land either side of the bridleway is owned by the farmer but the bridleway is unregistered. The farmer maintains the bridleway.

    • This decision was overturned on appeal, see our post at:

      http://nearlylegal.co.uk/2010/03/adverse-possession-of-a-highway-ii/

      There is no reason why a farmer, maintaining unregistered land over which a bridleway runs, should not obtain title to that land through adverse possession (assuming the various conditions are made out and there is nothing else unusual going on). The bridleway will remain of course. The practical result would be that anyone interfering with the way (eg building on it) could be sued by the farmer in trespass.

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