Mobile cafe owner fails in bid to claim adverse possession over council land

In Devanney v London Borough of Hounslow [2012] EWCA Civ 1660 the claimant, John Devanney, had sought to prove 12 years’ uninterrupted possession of the strip of land along the south side of Earhart Way from at latest 13 October 1991.

The reason for this timeframe was that s.15 of the Limitation Act 1980, which sets a 12-year limit on actions for the recovery of land, was disapplied by s.96(1) of the Land Registration Act 2002 from 13 October 2003, the date of the latter's coming into force.

Since then, any prescriptive title has had to be established by registration, which did not happen in this case, or by making out the defence set out in section 98 (1) and paragraphs 1 and 5 (4) of Schedule 6 to the Land Registration Act 2002, which the appellant could not and did not attempt to do.

Judge Oppenheimer ruled that the claimant could not show the necessary 12 years’ uninterrupted possession.

The judge had concluded that Devanney had started trading on the land in 1990 and had erected a shed and a toilet. He also found that the claimant had then left for Ireland and not returned until 1996.

Judge Oppenheimer did not reject Devanney’s evidence that during the years of his absence, his brother had run the business on his behalf. The council was able to adduce no evidence showing the contrary before 1999.

The judge ruled in Hounslow’s favour for two main reasons. The first was an aerial photograph, dated 1999, which showed nothing significant on the land in the way either of sheds or of a mobile café.

The claimant argued that the photograph could not be authentic, but Judge Oppenheimer ruled that the date was reliable.

He also based his decision on further evidence given by a senior employee at BA and a property manager for Hounslow.

The Court of Appeal upheld Judge Oppenheimer’s ruling, dismissing Devanney's claim that the photo had been tampered with.

Giving the ruling of the court, Sir Stephen Sedley also said an aerial photograph taken in June 2003 showed the claimant’s van on BAA’s land, to the west of a barrier. 

A further photo taken in September 2006 showed the van on the east of the barrier, on the council’s land.

“This is further evidence of non-occpupation of the land within the 12-year period,” Sir Stephen said.

The judge added that further evidence provided by Hounslow corroborated the inference, based on the photographs, that it was in late 2003 or early 2004 that Devanney moved his van and structures eastwards from BAA’s land to that owned by the council.