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The anachronistic roundabout


An odd appeal on an adverse possession case, of no legal interest per se, but entertaining on the facts.

Devanney v LB Hounslow [2012] EWCA Civ 1660 [not on baili yet. Transcript on lawtel]

Mr D operated a mobile cafe from a layby on the edge of Heathrow Airport. He had done so for a number of years. Hounslow owned the layby, which adjoined land owned by BAA. A fence was put up between these strips of land at some time after early 2004. It was common ground that in early 2004 Mr D was in occupation of the strip owned by Hounslow.

Hounslow brought a claim for possession of the layby. Mr D defended by claiming adverse possession. The only way this could be done was if Mr D had 12 years uninterrupted possession of the land from October 1991 (So 12 years prior to the Land Registration Act 2002 coming into force on 13 October 2003).

Mr D claimed to have started trading on the land in 1990 and to have done so uninterruptedly since then, or at least having his van and some sheds there, while the business was run by his brother for a while between 1900 and 1996, which would be sufficient for occupation.

However, Mr D’s case at first instance fell on the basis of an aerial photography, stated to be from 1999, which showed the layby without the van or Mr D’s structures on it. There was also oral evidence from two witnesses that a catering van had been brought onto the land in 1999, and was not there earlier in the year.

Mr D argued at trial that the photo couldn’t be authentic precisely because it didn’t show either his van or the sheds he had erected. That wasn’t accepted.

Mr D sought to appeal in person, even getting permission, on the basis that the photograph had been doctored.

His argument, apparently supported by various maps he sought to introduce as evidence, was that the photograph showed a roundabout which did not exist until 2003 or 2004. The photograph must therefore have been doctored by adding in the roundabout.

The Court of Appeal was understandably bewildered by this argument. The Judge below had noted that the photo was from a CD-ROM with an embedded file showing the date of the photo as July 1999. Even if the photo had been subsequently doctored to add in the roundabout, the key part was apparently still from 1999 and showed the layby free of Mr D’s structures. Mr D’s argument got him nowhere and his maps, even if admissible as new evidence, could make no difference at all.

Worse for Mr D were other aerial photos. One from June 2003 did indeed show Mr D’s van and sheds, but on the strip of land owned by BAA, not Hounslow’s. A letter from BAA in 2004 corroborated the suggestion that Mr D had moved his van and structures on to Hounslow’s strip from the BAA strip in late 2003 or early 2004.

Noting that having heard Mr D, the Court could well imagine how he had persuaded  Tomlinson LJ to grant permission, the appeal was dismissed and the stay on possession lifted 28 days after judgment.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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