Court of Appeal affirmed His Honour Judge Hodge QC on meaning of "Actual Occupation"

• In Rock Ferry Waterfront Trust v Pennistone [2020] EWHC 3007 H.H. Judge Hodge QC sitting as a Judge of the Chancery Division in Liverpool dismissed the Defendant’s application to rectify the registered titles of the two Claimants to three parcels of land at the waterfront at Rock Ferry, Birkenhead. The decision at first instance was discussed in a Note dated 24th November 2021.
• Following a further change of Counsel, the Defendant eventually obtained permission to appeal solely upon the issue of whether it was in “actual occupation” within the meaning of paragraph 2 of Schedule 1 to the Land Registration Act 2002. Again I represented the Claimant.
• The Defendant only appealed in respect of one of the three parcels of land, namely “the Vestor Oil Site” and it did not appeal in respect of “the Slipway” or “the Pier”. Had the Defendant succeeded in its appeal in respect of “the Vestor Oil Site”, this would have led to the interesting issue of whether easements could be reserved or granted where the ownership of a single title was severed as a result of an incumbrancer being in “actual occupation” of part only of a single title (compare the “Centre Point” case of Sovmots Ltd v Secretary of State [1979] AC 144). This issue is addressed in neither the Land Registration Act 2002 nor the Law Commission Reports leading to the Act.
• The Defendant served a Respondent’s Notice seeking to have the appeal dismissed upon the Land Charges Act, notice and estoppel grounds which the Trial Judge rejected. The Court of Appeal (Lewison, Coulson and Dingemans LJJ) dismissed the Appeal in relation to “actual occupation” ([2021] EWCA Civ 1029) which meant that it did not address the issues raised in the Respondent’s Notice which were described as “interesting questions”.
• In the single substantive judgment Lewison LJ addressed the principal argument of the Appellant that the Defendant was in “actual occupation” through a caretaker. Following the decision of Robert Walker J in Stockholm Finance Ltd v Garden Holdings Ltd [1995] NPC 162 he held that occasional visits by a caretaker would not be sufficient to constitute “actual occupation”. Stockholm Finance Ltd v Garden Holdings Ltd was followed on almost identical facts by Mr Anthony Elleray QC sitting as a Deputy Judge of the Chancery Division in AIB v Turner [2015] EWHC 3994 (Ch). Lewison LJ further noticed that when the caretaker in the present case, a Mr Robertson, visited the site, he generally observed from the outside and did not enter. When he did enter the site, he did so for his own purposes and not in a representative capacity.
• Lewison LJ went on to consider the decision of the Court of Appeal in Malory v Cheshire [2002] EWCA Civ 151; [2002] Ch 216. He said,
• “I can not see that Malory lays down any new principle of law. It was a decision on particular facts. All that this court said that the trial judge was entitled to find as he did. Whether or not particular facts amount to “actual occupation” is a question of fact for the trial judge. It is a finding of fact based upon an evaluation of all the evidence. Unless the judge misdirected himself in law; or has plainly misunderstood the evidence; or has reached a conclusion that no reasonable judge could have reached (in the sense of being rationally insupportable), an appeal court should not interfere” [para 40].

This is a welcome clarification of the decision in Malory v Cheshire.Lewison LJ went on to say that in Malory there was a finding that the land did not appear to be “abandoned”, whereas in the present case there was a finding that the land had been “abandoned” [para 40]. While the test of appearing to be “abandoned” was a neat way of distinguishing the two cases, it remains to be seen whether it is an appropriate touchstone for other cases of “actual occupation” involving derelict or semi-derelict land.

•  For those interested in the issues raised in the Respondent’s Notice, my Skeleton Argument is available in the link below. It has been corrected to remove an error in relation to the difficult decision of Marcus Smith J in Knight v Fernley [2021] EWHC 1343 (Ch). Because the issues in relation to equitable notice and the Land Charges Act 1972 were raised only at the trial, I had the opportunity of improving the submissions which I made to the Trial Judge. The submissions in relation to estoppel were improved to take account of the pertinent points made by the opposing Counsel at trial and the trial Judge.

Richard Oughton

15th July 2021 

Click below links to Counsel's Skeleton Argument and the Judgement.

rock_ferry_v_pennistone_ca_skeleton_word.doc

_2021__ewca_civ_1029.pdf