Defendant establishes adverse possession of farmland owned by council
A small livestock farmer has succeeded in the High Court in establishing that he has adverse possession of land on which Milton Keynes Council wants to build a housing development.
Tim Jones, of No5 Chambers, who appeared for defendant Nathan Wilsher, said: “The case shows that historic use can still lead to a successful adverse possession claim. It also shows the risk of that issuing proceedings for an injunction can be counter-productive.”
Mr Jones said Mr Wilsher, a Romany Gypsy, had to show 12 years’ adverse possession by himself and his late father Joseph Wilsher before 13 October 2003 when the Land Registration Act 2002 came into force.
He was able to do this by calling a substantial number of witnesses and relying on written evidence from others, including two veterinary surgeons and a local clergyman,
There was undisputed evidence that Mr Wilsher’s late father had constructed a bridge over a brook on the land before the end of 1990 and largely unchallenged evidence both men had grazed horses and other animals there.
In Milton Keynes Council v Wilsher & Anor [2022] EWHC 578 (QB) Mr Justice Eyre said he had to decide whether Mr Wilsher had shown on the balance of probabilities that there was a 12-year period before October 2003 in which he and/or his father had been in factual possession of the land with the necessary intention to possess.
The judge said: “The first matter of particular significance in addressing the central questions is the construction of the concrete bridge by Joseph Wilsher.
“I regard this as showing Mr Wilsher dealing with the land in the way in which an occupying owner would be expected to act. The action of constructing the bridge demonstrates his attitude to the land and goes markedly beyond merely grazing his horses on the land.
“The construction of the bridge undoubtedly did facilitate the use of the land for the grazing of horses but it went beyond the actions of a casual trespasser…it indicates both an intention and expectation of continuing unconstrained use of the land…common sense suggests that Mr Wilsher would not have installed the bridge unless he had already been using the land for some time and expected to continue to do so.”
Eyre J also noted that when Joseph Wilsher died in February 2004 his wake was held on the disputed land with some 2,000 people present.
“Initially I doubted whether this event bore the significance which Mr Jones sought to place on it,” the judge said.
"However, on reflection I am persuaded that it is a relevant and significant matter. It demonstrated the occupation and control of the land to a marked extent. It was an act of physical control of the land and showed [Nathan Wilsher] acting in relation to the land in the way in which an owner would be expected to act.”
Mark Smulian
