1. This is an application under sec 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) for a determination of questions relating to (a) the accuracy of the Land Register, and (b) what is needed to rectify any inaccuracy. It concerns an area of land extending to 0.53 ha adjacent to Malcolm Road, Peterculter, Aberdeenshire, on which both the applicant and the interested party want to build houses.
2. The land was acquired by the applicant, Mr George Lawrence Souter, as part of larger subjects, by disposition in his favour by Theodore Crombie and Mrs Margaret Blaikie Crombie or Winn dated 24 and 31 August and recorded in the General Register of Sasines for the County of Aberdeen on 20 November 1979.
3. Although, as will be described more fully hereinafter, a conflict between the two titles was apprehended as early as 2010, it did not come to a head until 2015 when Mr Souter attempted to dispone part of the subjects he had acquired to a company he owned called Casa Developments SCO Limited (“Casa Developments”). A disposition was executed and an application was made for registration of the relevant subjects in the Land Register in the name of the disponees. In the course of processing that application the Keeper of the Land Register (“the Keeper”) discovered that part of the subjects was already registered to someone else, (Combined Corporation (BVI) Ltd, hereinafter “Combined” or “the interested party”) with the consequence, in terms of sec 12(2) of the 2012 Act, that it could not also be part of a cadastral unit registered to Casa Developments. Accordingly the application for registration was rejected. The area of overlap was identified by the Keeper in terms of a Pre-registration Plans Report dated 25 November 2015, production A1/5, and is the area shaded blue on the plan referred to in that report. It was in those circumstances that this application came to be lodged with the Tribunal on 22 February 2016. (It is convenient to record at this point that counsel for Combined raised a question as to the competency of Mr Souter bringing the application in his own name, rather than that of Casa Developments. However, following communication with parties by the Tribunal while the case was at avizandum, we understand it not to be insisted upon and accordingly we say no more about it.)
4. The Keeper is the respondent to the application. She lodged answers but took no further part in proceedings. In her answers she avers that it appears to her that the area of ground in question has been disponed twice, once in 1979 (to Mr Souter) and again in 1990 (to a predecessor in title of Combined). Combined entered the process as an interested party and it was between them, represented by Mr David Logan, and the applicant, represented by Mr Michael Upton, both counsel, that battle was joined when we heard the case over six days of evidence (8-10 August and 12-14 December) and one of submissions (19 December) last year.
5. There is no issue between the parties as to the fact and extent of the foresaid overlap. It is accepted that the Register is inaccurate in that way and to that extent. It is also agreed that rectification of the Register would prejudice Combined. The sole issue in the case is whether they were a proprietor in possession of the disputed area in terms of sec 9 of the Land Registration (Scotland) Act 1979 (“the 1979 Act”) and whether, therefore, in terms of the legislation we come to below, rectification is now possible.
9 Rectification of the register
(1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.
(2) Subject to subsection (3)(b) below, the powers of the court and of the Lands Tribunal for Scotland to deal with questions of heritable right or title shall include power to make orders for the purposes of subsection (1) above.
(3) … If rectification under subsection (1) above would prejudice a proprietor in possession—
(a) the Keeper may exercise his power to rectify only where—
(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;
(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;
(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or
(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;
(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies or the rectification is consequential on the making of an order under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
65 Meaning of “inaccuracy”SThis section has no associated Explanatory Notes
(1) A title sheet is inaccurate in so far as it—
(a) misstates what the position is in law or in fact,
(b) omits anything required, by or under an enactment, to be included in it, or
(c) includes anything the inclusion of which is not expressly or impliedly permitted by or under an enactment.
(2) The cadastral map is inaccurate in so far as it—
(a) wrongly depicts or shows what the position is in law or in fact,
(b) omits anything required, by or under an enactment, to be depicted or shown on it, or
(c) depicts or shows anything the depiction or showing of which is not expressly or impliedly permitted by or under an enactment.
80 Rectification of the register
(1) This section applies where the Keeper becomes aware of a manifest inaccuracy in a title sheet or in the cadastral map.
(2) The Keeper must rectify the inaccuracy if what is needed to do so is manifest.
(3) Where what is so needed is not manifest, the Keeper must enter a note identifying the inaccuracy in the title sheet or, as the case may be, in the cadastral map.
82 Referral to the Lands Tribunal of Scotland
(1) A person with an interest may refer a question relating to –
(a) the accuracy of the register, or
(b) what is needed to rectify an inaccuracy in the register,
to the Lands Tribunal for Scotland.
17 If there is in the register, immediately before the designated day, an inaccuracy which the Keeper has power to rectify under section 9 of the 1979 Act (rectification of the register) then, as from that day—S
(a) any person whose rights in land would have been affected by such rectification has such rights (if any) in the land as that person would have if the power had been exercised, and
(b) the register is inaccurate in so far as it does not show those rights as so affected.
18 For the purpose of determining whether the Keeper has the power mentioned in paragraphs 17 and 22, the person registered as proprietor of the land is to be presumed to be in possession unless the contrary is shown.
22 If there is in the register, immediately before the designated day, an inaccuracy which the Keeper does not have power to rectify under section 9 of the 1979 Act, then on that day it ceases to be an inaccuracy.
Burr v The Keeper of the Registers unreported decision of the LTS in LTS/LR/2008/09, dated 12 November 2010
Burton v The Keeper of the Registers 2014 SLT (Lands Tr) 69
Highland Ventures Ltd v The Keeper of the Registers unreported decision of the LTS in LTS/LR/2015/09, dated 28 June 2016
Kaur v Singh (No.1) 1999 SC 180
Mathers v The Keeper of the Registers 2015 SLT (Lands Tr) 109
Nicol v The Keeper of the Registers 2013 SLT (Lands Tr) 56
Rivendale v Clark 2015 SC 558
Safeway Stores plc v Tesco Stores Ltd 2004 SC 29
Sanderson v McManus 1996 SLT 750
Stevenson-Hamilton’s Executors v McStay (No.2) 2001 SLT 694
Tesco Stores Ltd v The Keeper of the Registers 2001 SLT (Lands Tr) 23
Wight v The Keeper of the Registers 2015 SLT (Lands Tr) 195
Gretton & Reid, Conveyancing, 4th ed, para 8-13
Gretton & Reid, Land Registration, p 198, para 11.4
Rankine, Land Ownership, pp 3-4
Scottish Law Commission, Report on Land Registration, SLC 222 (vol 1, 2010) para 36.13
Stair, Institutions of the Law of Scotland, II.I.13 and II.1.20
Stair Memorial Encyclopaedia of the Laws of Scotland, vol 18, para 118
6. For the applicant, evidence was given by the applicant himself, his wife, Mrs Sheena Elizabeth Souter, his daughters, Miss Pauline Jayne Souter and Mrs Donna Marie Souter or Bruce, Mr Callum John Baxter, who worked for the applicant for about 10-12 months in 2011-2012, and Mr Gilbert Massie, who worked on the building of Pauline Souter’s house for about three months in 2011 or 2012. In addition affidavits were lodged from Mr Shaun Henderson, who carried out a survey of the applicant’s land on 15 August 2009 and prepared productions A3/3 and A3/4 and who, on 18 August 2009, erected marker posts along the north-west boundary of that land, and Mr John Geddes Kelly, the managing director of a crane hire company, giving evidence of the hire of a crane to one of the applicant’s company’s for work on the site in November 2010 and related matters.
7. For the interested party evidence was given by Mr Eric Swan Stamper, principal thereof, his wife, Mrs Christina Stamper, his daughter, Mrs Ainslie Stamper or Scott, Mr Colin James Watt, an employee, who spoke to accompanying Mr Stamper on a visit to the site and to see the applicant on 3 March 2010 and Mr Kenneth Alan Clubb, Director of Operations and Technical Design at Churchill Homes (Aberdeen) Ltd (“Churchill Homes”), who have an option on Combined’s land in relation to a proposed housing development.
8. We do not think it would be useful to set out the evidence, much of which was repetitive, at length. Instead we summarise below the main themes and strands of the two bodies of evidence and then attempt to resolve the conflict between them.
9. The evidence for the applicant was to the following effect:
(a) That the land acquired by the applicant was part of a wood planted in or around 1926 and that at the time of his purchase, in 1979, the whole of what he had bought and the land north and south of it was afforested, mainly with mature Scots pine, without any differentiation or boundary between what he had bought and what remained in the ownership of Culter Estate.
(b) That the applicant had his land “clear-felled” of its mature trees by his wife’s brother-in-law, Mr Douglas Milne, now deceased, and the felled timber sold to Cordiner Timber Merchants, Banchory, said clear-felling being completed in a week in April of 1979. A belt of mature Scots pine was left standing along Malcolm Road at the insistence of planning officials.
(c) That (unnamed) professional surveyors had put marker posts along the boundary of the subjects, to guide Mr Milne as to the area he should clear.
(d) That the larger subjects, of which what the applicant had acquired formed part, were similarly clear-felled of mature trees by its then owners, the trustees of the Cordiner Pension Trust, in 1992/93.
(e) That over a period from around 1980 to 1991 the applicant built his present home, Nostra Casa, on the southeast corner of the site, largely doing the work himself as time permitted.
(f) That throughout that time during which the house was being built Mr & Mrs Souter, or one or other of them, would attend the site on an almost daily basis, during which time the disputed area would also be accessed and was used (along with the rest of the site) for the deposit of dug material from the house site. Tree stumps left from the clear-felling were dug up from the disputed area in 1983-84, by the applicant using a digger. Their three children, Pauline, born in 1975, Donna, born in 1979 and Wayne, born in 1981, would also visit the site frequently and would play all over it, including the disputed area.
(g) That Mr & Mrs Souter and their three children, Pauline (now 16), Donna (12) and Wayne (10) moved into their new home in July 1991 and “from day 1” regarded and used the whole property, including the disputed, area, as their back garden, in which the children would play with a scrambler bike and then a go-kart, and the dogs would run. Specific evidence was given of the children having created a pond, shown in production A3/5(c,) on the disputed are, and a ramp for the scrambler bike.
(h) That in the years following the clear-felling secondary growth began to appear on the cleared ground. This comprised largely silver birch and remained in place until 2006-7, when it too was cleared by the applicant.
(i) That in or around 1992 London & Clydeside Estates Limited, who were building a large housing development on the other side of Bucklerburn Road, south of the applicant’s property, deposited 400-600 tons of dug material from their site over the applicant’s property including the disputed area, the benefit to the applicant being a levelling out of undulations or declivities on the site.
(j) That over a period from about 1995 to 2005 part of the disputed area was used to store equipment, such as scaffolding, which had been used in the building of Nostra Casa.
(k) That by 2009 the intention had been formed to use part of the applicant’s land, including the disputed area, for a housing development and that a plan, production A3/3, was prepared by said Shaun Henderson for that purpose, he also placing marker posts along the boundary of what is now the disputed land at that time (18 August 2009).
(l) That the secondary growth which had replaced the original trees was dug up, across the whole subjects, during 2006-2007, using first a digger and then a JCB acquired in 2007.
(m) That in 2009 work began on a new house for Pauline Souter on a site to the west of Nostra Casa, the work involving the demolition of a previous house on that site and the excavation of a large quantity of material which was deposited along the belt of trees lining Malcolm Road and north and eastward into the disputed area as shown shaded green on production A3/6(c), which process continued until 2013.
(n) That throughout the building of Pauline Souter’s house, for the purpose of achieving a gentler gradient, construction vehicles accessed the site from Bucklerburn Road along tracks, created initially by use of said digger and then by the repeated journeys of the construction vehicles themselves, extending into the disputed area as shown on production A3/6(d), the use of these tracks continuing from 2009 to 2013.
(o) That until March 2010 the Souter family had never seen anyone in the disputed area except for a couple of solvent-abusers on a single occasion, nor any evidence of anyone else occupying or using it.
(p) That in March 2010 there was a confrontation in the disputed area between the applicant and someone questioning his ownership thereof followed by a similar incident shortly afterwards.
(q) That as a result of these confrontations the applicant consulted his then solicitor who told him that since his title to the disputed area had been recorded first he had nothing to worry about.
(r) That the above confrontations were followed by some correspondence between respective solicitors represented by production A2/1-8 and ending with unanswered calls upon Mr Stamper’s solicitors to produce their client’s title and concede that he was wrong.
(s) That from that point (March 2010) onwards the applicant and those authorised by him occupied and used the disputed area for similar purposes as theretofore without physical or legal challenge.
(t) That it was only in 2015, when the applicant had attempted to convey part of his property to Casa Developments and encountered the problem that the disputed area was already registered to someone else who was claiming to be a proprietor in possession, that it became necessary for him to bring the present application.
10. Carrying out the same exercise for the interested party’s evidence, the following propositions emerge:
(a) That Eric Swan Stamper, principal of the interested party, became aware of land at Peterculter being sold by the Cordiner Pension Trustees in the early 1990s, that he was interested in the site for its investment or development value and that he purchased it in the name of his son, Scott James Stamper, in 1993, with entry on 14 January 1994.
(b) That prior to the sale, in or around 1993, trees which had been growing on the land had been felled by said Trustees in terms of a Licence to Fell Growing Trees issued by the Forestry Commission, dated 12 August 1991, (production IP3/2), certain conditions of which continued to apply to the land albeit the trees had been felled.
(c) That one of these conditions was that the site be replanted with trees after felling and, to this end, David C Bilshen, Woodland Advisers, had been consulted and their Jackie Cumberbirch had visited the site and subsequently provided information about costs and available grants in her letter of 12 September 1994 (production IP3/3). The area covered by said licence and proposed to be replanted in terms of said letter included the disputed area.
(d) That it would have been impossible for one man to clear the applicant’s whole subjects, including the disputed area, in one week; that such clearing would have produced a far greater weight of timber, perhaps 4,000 tons, than the 300 tons vouched by the receipts produced and that those receipts referred not to mature trees but to boxwood probably cleared from the site of Nostra Casa.
(e) That, accordingly, the disputed area had not been clear-felled by the applicant, or on his behalf, in 1979 but by Culter House Estate sometime in the 1970s
(f) That at the time of Scott Stamper’s acquisition the applicant had cleared only a V-shaped area of the regrowth which had sprung up following the Culter Estate clear-felling, the base of the V being near the southern edge of the disputed area and the mouth being in the vicinity of the applicant’s house and that on either side of the area so cleared were trees about 20’ tall, comprising oak, silver birch and miscellaneous others.
(g) That before purchasing the land Mr Stamper (Senior) had walked its boundaries with the selling agents, carefully noting that the southern boundary was at a point marked by a dead pine tree across the road from a dip in the pavement to the west of Malcolm Road, which landmark subsequently became the means by which the Stampers identified the southmost boundary.
(h) That there were no boundary markers of any kind along the boundary of the respective subjects at the time of Scott Stamper’s purchase, such markers being erected by the applicant for the first time only in 2010, when matters had become contentious.
(i) That the trees referred to at (f) above remained in place until 2010, when they were removed by the applicant, as evidenced by production IP4/1, a Google Maps photograph, taken in 2007.
(j) That until 2010 the applicant had done nothing in the disputed area; only then had he “burst into it” (Mr Stamper’s description) and begun clearing what had been left by, or regrown since, the Culter Estate felling.
(k) That, likewise, there had been no occupation of the disputed area by the Souter family in the period from 1993 to 2010; there had never been a ramp for the scrambler bike on that land and the pond spoken to in evidence had always been situated much nearer the family home.
(l) That the dumping of dug material on the disputed area started only in 2013 but had continued ever since causing a rise of about 10’ in the level of the western end of that area.
(m) That Mr Stamper visited the land his son had bought two or three times a week during the first two years, or so, of ownership. His wife would often accompany him and they would go for walks over it, often taking a flask of coffee to enjoy while there. These walks included a walk along a path which took them into the disputed area and the only people they had ever seen there, during that time and until 2010 were occasional dog-walkers and, once, a couple of picnickers.
(n) That the requirement for restocking the land with trees was ultimately not insisted upon because the Forestry Commission were satisfied that natural regeneration had taken care of the problem.
(o) That in May 1996 an attempt was made to sell the land, which attempt, although unsuccessful, resulted in the conclusion of an option agreement for a housing development with Barratt Construction Ltd (“Barratts”), in August of that year.,
(p) That at that time the land was zoned as part of the “Green Belt” in the Aberdeen City Wide Local Plan, preventing such development, and that in or around 2001 attempts began to be made by Mr Stamper, through his daughter, Ainslie, a Chartered Architect, and Mr Kenny Clubb of Churchill Homes, with which company an options agreement was concluded in June 2007, replacing the one with Barratts.
(q) That the land bought by Scott Stamper in 1994 was disponed to a Stamper family-owned company, ECAS Ltd (“ECAS”), on 21 November 2003 and then to the interested party (then and now wholly owned by Eric Stamper) on 19 April 2006
(r) That Churchill Homes continued the efforts begun in or around 2001 by Ainslie Stamper to get the land zoned for residential development, as evidenced, for example, by a submission to the Council made by a planning consultant, Mr John Agnew, on their behalf on 10 February 2006, production IP3/27, which efforts continued, despite a series of reversals, until the land was entered as a recommended site for residential development in the Aberdeen Local Plan in February 2015, notwithstanding which the lodging of a planning application had been deferred pending the outcome of this application.
(s) That such submissions included not only the interested party’s land but the applicant’s and some other land extending outwith both titles, the purpose being to get that larger area, extending to 19.9 acres, approved for residential development, the whole area being of the same character, namely rough ground with regenerating trees.
(t) That in negotiating said option agreements representatives from both Barratts and Churchill Homes visited the site along with Mr Stamper (henceforth references are to Eric Stamper unless otherwise stated) and traversed its length and breadth, including the disputed area, and that Mr Clubb, accompanied by a variety of colleagues, planning consultants and planning officials, subsequently visited the site on numerous occasions for the working up of a housing development proposal involving the whole site, including the disputed area.
(u) That Mr Stamper planted some trees on the site and monitored their progress, clearing away bracken from around them and the like, during visits to the site, three or four of these being in the disputed area.
(v) That over time the regeneration of the woodland got to a stage where it was out of hand and Mr Stamper applied to the Forestry Commission for a licence to fell it, which was refused by the Commission by letter dated 11 February 2009, production IP3/43, following a visit or visits by the Commission to the site, including the disputed area.
(w) That it was only in 2008 that the applicant started removing secondary growth on his (undisputed) land, working northwards, so that in the course of 2009 he was approaching the disputed area onto which he finally “encroached” (Mr Stamper’s term) in 2010, at which time there were significant amounts of mature trees on the disputed area, mostly silver birch of a height of about 20’ to 30’ as well as some felled timber.
(x) That this encroachment was first noticed by Mr Stamper while driving by on 24 January 2010 and subsequently confirmed in the course of his wife taking friends to visit the site on 1 March 2010, a visit which involved the taking of photographs which are production IP3/48 and ended in a testy encounter with the applicant who accused them of trespassing.
(y) That subsequent enquiry and investigation unearthed the overlap in the two titles, its extent being plotted by Messrs Cameron & Ross, Consulting and Civil Engineers, on 5 March 2010; production IP4/15.
(z) That subsequent enquiry at the Land Register had confirmed that Combined had an indemnified title to the disputed area but when Mr Stamper went to discuss that letter with the applicant he was assaulted and the letter torn up, an event which caused Mr Stamper to largely stay away from the site from then on.
(aa) That spoil was dumped on the disputed area by the applicant only in or after 2013, when Pauline Souter’s house was being built and that the formation of a route to the site of that house extending into the disputed area was nonsensical from the point of view of it being an advantageous route and only explicable as a device to prove occupancy.
(bb) That, in summary, the disputed area had been possessed in turn by Scott Stamper, ECAS and the interested party up until 2010 in the form of (i) recreational visits by members of the Stamper family, (ii) visits and inspections by Forestry Commission inspectors and a variety of forestry contractors or consultants, (iii) inspections and surveys by representatives of, or surveyors and planning consultants instructed by, Barratts and Churchill Homes accompanied as appropriate by Mr Stamper or his daughter, Mrs Scott, during which time there was no occupancy or use of the ground by the Souter family, nor any boundary markers in place.
11. Mr Upton set out the statutory framework.
12. The 1979 Act had not defined “inaccuracy” but it included the case of a title sheet which was not justified by the deed which induced it; Gretton & Reid, Conveyancing 4th ed, para 8-13. A deed granted by a person without title to grant it was invalid and an entry in the Land Register giving effect to it was inaccurate; Gretton & Reid, Land Registration, page 198, para 11.4. That covered the present situation and the result was an inaccuracy in the Register as at 7 December 2014 which the Keeper could rectify provided it did not prejudice a proprietor in possession. In the present case it was accepted by the applicant that the interested party was proprietor of the disputed area in terms of the Land Register and that rectification would prejudice it but the question was whether the interested party was a proprietor in possession.
13. Paragraph 18 of Schedule 4 to the 2012 Act contained a statutory presumption that the person registered as the proprietor of the land was in possession unless the contrary was shown but it was intended to be “weak” and “readily rebuttable” (Scottish Law Commission, Report on Land Registration, para 36.13). Its purpose was administrative: to provide the Keeper, who was in no position to adjudicate on competing claims of possession, with a default position, leaving it to the challenger to pursue matters in this tribunal. Moreover, at this point in time, so near December 2014, it was weaker and less significant than it would become with the passage of time and increasing paucity of evidence as to what the position had been on 7 December 2014. This was consistent with the principle of the law of evidence that less strong evidence was required where there was a burden on a party to prove a negative. In any event, when the evidence was out, there was generally no need to rely on a presumption; Sanderson v McManus, per Lord Weir at p 765J.
14. Mr Upton dealt with the question of possession under 12 heads.
(i) Possession by whom? “Proprietor” referred only to the person who had registered title to the land; First Division in Kaur v Singh, p 190D. Possession by predecessors was no defence: in the present case only the possession of Combined was relevant. The question was not whether the true owner was in possession (although evidence of his possession was relevant) but “was the registered proprietor in possession?”
(ii) The statutory role of possession was as a criterion for choosing whether the person seeking rectification of the title should succeed or fail. It was relevant “not because it shows the registered proprietor has a better claim to the title, but because, for reasons of policy, the law chooses not to disrupt the proprietor who is in possession”; Kaur v Singh, 193I-194B.
(iii) Possession of what? Where a dispute was confined to part of a larger area, possession of the rest of the larger area did not constitute possession of the disputed area;Stair, Institutions, II.1.13; Safeway Stores plc v Tesco Stores Ltd, para , p 54. Instead it was the land in respect of which rectification was sought that was the “proper focus” and “possession of the registered unit as a whole [did] not justify an inference of possession of the part in dispute”; Tesco Stores Ltd v The Keeper, pp 35L and 37E-F.
(iv) Title is not possession: Mere registration was not possession, else there would be no distinction between “proprietors” and “proprietors in possession”. Instead possession had to be based on physical facts and circumstances; Tesco Stores Ltd, p 36E-F.
(v) What amounts to possession? Physical use and enjoyment of the subjects was required; “the having or holding of a thing within the possessor’s control, with the intention of holding it as his own property”; Tesco Stores Ltd 36G-H, quoting Rankine, Land-ownership, pp 3-4. It required, in the words of Lord Hamilton in Safeway Stores plc “some significant element of physical control” and “actual use or enjoyment, to a more than minimal extent, of the subjects in question” (para ). Simple walking on the subjects from time to time was not possession; Burton v The Keeper, p 78G-H, para . A scattering of acts of a possessory character could be regarded as de minimis; Wight v The Keeper, p 200A-B, Mathers v The Keeper p 116I-J, para . Instead there had to be acts “which would indicate to a reasonably observant owner that someone was trying to occupy his property”; Stevenson-Hamilton’s Executors v McStay (No 2), pp 696-7, paras  to . With particular relevance to aspects of the possession claimed by the interested party in this case, reliance was placed on a passage from Lord Hamilton’s opinion in Safeway Stores plc at para  (reproduced in the consideration of our decision further on in this opinion) emphasising the need for both a mental and a physical element in possession, the physical element requiring some presence or activity on the site, mere preparation of plans and engagement with the planning authority being insufficient. In contrast, works which involved significant and permanent changes to the disputed area of ground, such as the applicant had performed here, were of particular importance; Rivendale v Clark, per the Extra Division at para .
(vi) Objections to adverse acts. Regard could be had to whether one party had objected to an adverse act by another party; Rivendale para , Burton, para .
(vii) The relevance of physical features. In Safeway Stores plc (at para ) Lord Hamilton had said: “The existence of physical features on the ground, including natural physical boundaries, and the activities of the ‘proprietor’ within or beyond such features may be material to what inference may properly be drawn as to the extent of his possession.” In the present case reliance would be placed on the fact that the boundary here in dispute was, from 1979 to around 1992, clearly demarcated by the edge of the mature plantation on what remained Culter Estate’s ground and the open land comprised by the applicant’s property.
(viii) Civil possession. Possession could be effected through the acts of third parties, for example, members of one’s family or contractors; Kaur v Singh at p 192G-H, Rivendale para , Burr v The Keeper, para .
(ix) The presumption of continuity. Possession, once established, may be presumed to persist (Tesco Stores Ltd at p 36F) and possession established by physical acts may be continued “animo” (Burton para ). The possession of the true owner at the outset of the actings relied on by the registered proprietor was not irrelevant (Burton para ).
(x) Possession for how long? The issue of possession was not to be looked at only as at the date of the application for rectification but over an appropriate tract of time preceding that date; Lord Hamilton in Safeway Stores plc para , so in this case it was appropriate to look at a tract of time prior to 7 December 2014.
(xi) Possession is exclusive. Except in situations of joint or complementary possession, no more than one person could be in possession of the same land at the same time; Stair, Institutes at II.I.20, quoted by Lord Osborne in Safeway Stores plc at p 52, para ; Stair Memorial Encyclopaedia of the Laws of Scotland, vol 18, para 118. Where a registered proprietor claimed to have taken possession of land it was highly material to consider whether the true owner was not already in possession of it; Burton, para .
(xii) Possession as part of a “tennis match”. Acts of possession which were proved to be merely intended “as an assertion of right” could be disregarded if “matters had reached a stage where [the] actings [could not] properly be regarded as having evidential significance”; Tesco Stores Ltd at pp 36L and 37D.
15. Mr Upton then went on to consider the evidence in the light of that legal framework. He attacked the credibility of Mr Stamper and invited us to find his own witnesses both credible and reliable. He attacked the vague nature of the interested party’s evidence as to possession; vague, he submitted, as to whose acts they were, when, how often and why, those people had been there and how we could be sure that they had been on the disputed land as opposed to the rest of the interested party’s ground. He emphasised what was missing from the interested party’s evidence: unlike the applicant they had not marked out their boundaries, they had made no challenge to the applicant’s manifest physical activities on the disputed ground from 2009 to 2014 nor had their solicitors responded to his solicitors’ repeated requests to produce their title and explain their position. He proposed certain findings-in-fact. In particular he moved us to find that the interested party had no significant element of physical control of the disputed ground at any time and in particular not between the date of its purported title, 19 April 2006, and 7 December 2014 and that, on the contrary, since 1979 the applicant had occupied and possessed the whole extent of the subjects then disponed to him.
16. The starting point was the rebuttable presumption of possession found in para 18 of Schedule 4 to the 2012 Act; Highland Ventures Ltd v The Keeper. It was for the applicant to refute that. It was wrong to describe the presumption as weak. What was to be determined was whether there was evidence to show the applicant being in exclusory possession in terms of the passages from Kaur v Singh and Stair quoted by Lord Osborne in Safeway Stores plc (at pp 51 and 52, paras  and ). Until what Mr Logan described as the applicant’s aggressive actions in 2010 any use he had made of the disputed area was not of that exclusory character.
17. The correct approach was the one taken by this Tribunal in Highland Ventures Ltd, which involved seeing whether the presumption had been rebutted. If it had not, the presumption ruled and the interested party was protected from rectification by sec 9(3) of the 1979 Act.
18. What was sufficient for possession depended upon the nature of the subjects; Nicol v The Keeper, at p 60, para . The nature of a wood was such that occupation of it was different from a building or a parking area. The character of legal possession, as described by Stair and the extract from the Stair Encyclopaedia which had been referred to was not use but exclusory control of the subjects. In Mr Logan’s submission it could not be clearer that this standard had not been met by the applicant in this case, with the result that his application must fail.
19. There was a “massive qualitative difference” in the evidence produced on each side. The multiple interactions spoken to by the interested party’s witnesses were vouched by a plethora of documentary evidence, including material from the Forestry Commission, Aberdeen City Council, Barratts and Churchill Homes. In contrast the applicant had produced hardly any documentary or other evidence of having dealt with third parties in relation to this land.
20. Mr Logan attacked the credibility of the applicant and his witnesses. If the applicant and his family had been making use of the disputed area as they had described, it was truly remarkable that the overlap was not discovered until 2010. The applicant’s denial of the account of their confrontation described by Mr Stamper and Mr Watt revealed him not to be a credible witness. The behaviour described by Mr Stamper when he went to see the applicant in March 2010 was of a piece with the applicant’s behaviour towards Mrs Stamper during her earlier visit to the site, his subsequent challenge of a surveyor instructed by Churchill Homes and the manner in which he had given evidence. The applicant was someone who was willing to be untruthful when the truth hurt his cause. There were also suggestions in the evidence of the Souter family having discussed what they were going to say in advance.
21. The applicant’s lack of credibility was also shown by his evidence about the removal of trees, asking the Tribunal to believe that the receipts referring to 280.65 tonnes of boxwood and pulp were, in fact, receipts for felled mature Scots pine, of which there would have been something of the order of 4,500 tonnes on the applicant’s property if it was covered, as he claimed, by such trees.
22. The Souter family’s evidence of the whole area, including the disputed ground, being their back garden was completely untruthful. Until 2010 the disputed area had not been a garden but a wood and one to which the applicant had paid no regard. Although the children may well have played in that wood, it was impossible to access it with a vehicle of any description. Nor had the Stampers, whom Mr Logan invited us to accept as credible and reliable witnesses, seen any evidence of a pond or ramp as described by the Souters, which they surely would have done had these things been there.
23. On the whole evidence we should accept that it was the interested party who acted as if they were the owners of and in possession of the disputed land “from the time the Stamper family had first bought it in January 1994 until early 2010” and that they were proprietors in possession from 2006 until January 2010 and therefore entitled to the protection of sec 9(3). At all events we should accept that the applicant had not proved that he was in possession of the disputed area during that period and that the presumption contained in para 18 of Schedule 4 had not been rebutted.
24. We start with the applicant and his witnesses. The Souter family have the advantage of longer and more intimate involvement with this site than anyone else who gave evidence. We also bear in mind that the occupations of Pauline Souter and Donna Bruce, both Forensic Examiners with the Scottish Police Authority, one of whom has given evidence in court in that capacity on several occasions and the other who has been cited as a witness in that capacity a number of times, albeit without having had to give evidence. We consider that people in their position would not depart from the truth lightly.
25. For the most part the Souters gave their evidence in a straightforward manner. The only exception was the applicant himself, whose anger at the theft of his land, as he put it, made him a somewhat intemperate witness from time to time and, affronted by the suggestion that he was lying, caused him to refuse to answer Mr Logan’s questions at some points.
26. We also found the applicant’s rebuttal of Mr Stamper’s evidence as to the nature of the encounter between them in March 2010 unconvincing, given, as Mr Logan pointed out, (a) that Mr Stamper’s account was corroborated by Mr Watt, albeit Mr Watt was one of his employees, (b) that it was of a piece with the applicant’s reported demeanour when Mrs Stamper had arrived at the site a few days earlier, and Mr Ingram, to carry out his survey, a few months later, and (c) that it was not altogether out of character with the way in which the applicant gave his evidence.
27. Notwithstanding these qualifications as to the applicant’s evidence, we would have been inclined to accept his evidence and that of his family on the major issues to be decided were it not for the fact that it was, in a number of respects, at odds with documentary evidence which we have had to prefer as more objective. So, in summary, we have accepted the evidence of the applicant, Mrs Souter and Pauline and Donna Souter where it is uncontradicted by hard evidence (as opposed to speculation) to the contrary and rejected it where it is, all as more fully explained in the next section. The evidence given by Mr Baxter and Mr Massie was uncontroversial and we have accepted it.
28. The difficulty with the interested party’s evidence is not so much to do with issues of credibility and reliability (although there were some in Mr Stamper’s evidence, for instance as to the planting of trees on the disputed area, a matter not foreshadowed in his pleadings and not put to the applicant, and the frequency with which Mr & Mrs Stamper visited the site, which we regard as implausible for reasons of geography) but with what was missing. Thus in relation to a number of matters no evidence was led, or, at all events, the best evidence was not led, in support of propositions being advanced by Mr Stamper and we were invited to accept speculation as fact instead. These areas were (a) the impossibility of two men (Mr Milne assisted by the applicant) clear-felling the applicant’s land in a week, (b) the belief that this land, or, at all events, the disputed area, had been clear-felled not by the applicant or Mr Milne but by Culter Estate, and (c) the improbability of several hundred tons of spoil from the London & Clydeside site having been dumped on the applicant’s ground. It seems to us that evidence could have been led from Cordiners as to (a) and (b). Mr Stamper gave evidence that he had a letter from one of the Cordiners, possibly Mr James Cordiner, as to those matters but neither Mr Cordiner nor the letter featured in the evidence. As to (c), if direct evidence from London & Clydeside could not be got, as is entirely possible 25 years after the event, an expert witness could have spoken to the matter more authoritatively than Mr Clubb, who no doubt has a certain familiarity with such matters but whose expertise is not directly in this area. (We realise that the same criticism could be made of the applicant’s case but he and his witnesses were in a position to have direct knowledge of the matters to which they spoke, which Mr Stamper was not.)
29. In summary, we have slight reservations about the credibility and reliability of Mr Stamper and Mrs Stamper (where she supported her husband in relation to the matters mentioned above) but none in relation to Mr Clubb (save as to his lack of relevant expertise on the London & Clydeside matter), Mrs Ainslie Stamper or Scott and Mr Watt.
30. The result of those criticisms of the interested party’s evidence is that where it was contradicted (on those points) by direct evidence from the applicant and his witnesses, we have preferred the evidence for the applicant.
31. There were three major matters on which we had to resolve conflicts in the evidence; (i) whether the applicant clear-felled his land in 1979, (ii) the extent to which the Souter family used the disputed area between 1979 and 2009/2010, and (iii) whether the applicant had completed felling regrowth on his land, including the disputed area, by February 2009. We deal with those in turn.
32. Production A4/1, an aerial photograph from the National Collection for Aerial Photography in Edinburgh and, according to Ainslie Stamper, who obtained it (although it came to be lodged by Mr Upton in the course of the proof), certified by them as having been taken on 20 September 1995, shows a clear demarcation between the disputed area and the land north and east of it, with the regrowth in the disputed area (and on the western and eastern sides of the applicant’s land) far in advance of anything on the Stampers’ land. This can only mean that those two areas were felled of their trees at significantly different times which seems entirely consistent with the trees on the applicant’s land having been felled in 1979 and the ones on the rest of the land in 1992/93 (as is known to be the case).
33. Mr Stamper’s answer to that was that the felling on the applicant’s land had been done not by the applicant but by Culter Estate. But this is entirely unsupported by any other evidence. There is no evidence of anything in this area having been felled by Culter Estate at any time. In terms of the disposition to the applicant the land was sold with “the whole standing and fallen timber” on it. So, despite the considerable doubts to which the mismatch between the nature (and volume) of the timber said to have been felled and sold to the sawmill (mainly Scots pine) and what is recorded on the sawmill’s receipts (boxwood and pulp) give rise, the only explanation available to us is that it was indeed felled by Mr Milne in 1979.
34. Having accepted that the land was clear-felled in 1979 it is not difficult to accept that all through the 1980s the Souter children had the run of it while their father worked on their new home. Their home in Johnstone Gardens was small so they spent a lot of time at the family’s new property, in the evenings and at weekends. They got a scrambler bike in 1989 and rode that around this ground and we have no difficulty in accepting their evidence that this included riding it on the disputed ground. What we cannot accept, however, is that this went on all through the 1990s, with the bike being replaced by a go-kart in the mid-90s.
35. Here again production A4/1 is decisive. Although it is impossible to say what the height of the vegetation shown there is, given that it is an aerial photograph, it is possible to draw a conclusion as to its density and that conclusion clearly has to be that one couldn’t ride a scrambler bike or go-kart round it in September 1995.
36. This conclusion is supported by the interested party’s evidence to the same effect. It also explains why the Stampers never saw the Souters, nor the Souters the Stampers, on the disputed land until 2010. That is not to say that the Souters were never there – they certainly walked their dogs through it from time to time – but they could not have been using it for bike riding and go-karting.
37. Our finding on this chapter of the evidence is, therefore, that from 1995 to 2009, the only use being made of the disputed area by the Souter family was recreational, in the form of walking their dogs.
38. It was the applicant’s clear evidence, supported by his family, that he set about clearing his land of regrowth in 2006 and had finished it by the end of 2007. This included both his undisputed land and the disputed area. That is contradicted by the photographs said to have been taken by Mr Clubb in February 2009, production IP4/5, which clearly show secondary growth, in the form of Silver Birches, still standing on various parts of that land at that time. A lot of felling has been done, certainly, but there are a lot of standing trees as well. The applicant disputed the date of those photographs but was not able to disprove it and we have no reason to doubt Mr Clubb’s evidence on the matter. Indeed his evidence is supported by the fact that it was not until 2010 that Mr Stamper challenged what was going on. If, as the applicant asserts, the whole of the disputed land was cleared of its trees as early as 2007 Mr Stamper would surely have intervened earlier. Instead the trigger for intervention did not come until 2010. Accordingly, on this matter we reject the evidence of the applicant and his family and accept that of Mr Stamper and Mr Clubb.
39. Having resolved those matters, we have found the following matters admitted or proved:
1. By disposition in his favour by Theodore Crombie and Mrs Margaret Blaikie Combie or Winn dated 24 and 31 August and recorded in the division of the General Register of Sasines for the county of Aberdeen on 20 November 1979 the applicant acquired title to an area of ground extending to 1.36 ha or thereby being the area delineated in red on the plan annexed to said disposition with entry at 6 March 1979.
2. The subjects so acquired formed part of the Estate of Culter which retained ownership of the land immediately to the north and east of the subjects disponed to the applicant, all of which land and the area disponed to the applicant was then afforested predominantly with mature Scots pine planted around 1926.
3. In April 1979 the applicant had the land he had acquired clear-felled of its trees by his wife’s brother-in-law, Mr Douglas Milne, now deceased, save for a belt of mature Scots pines along Malcolm Road, on the western boundary of the property, which Aberdeen Council Planning Department insisted be retained.
4. For the purposes of guiding Mr Milne as to its whereabouts, the applicant had marker posts erected at intervals along the northern and eastern limits of his property.
5. This clear-felling created a marked distinction between the applicant’s land and the land in the continued possession of Culter Estate, which remained afforested, such as is seen in production A3/5(b), a photograph of the northeastern corner of the applicant’s subjects taken sometime in the early 1980s.
6. In 1980 the applicant began work on the building of a house in the southeastern corner of the land so acquired, a project which took 11 years to complete because he was, in the main, doing it himself, working in the evenings and at weekends.
7. In the spring of 1980 the Souter family, then comprising Mr & Mrs Souter and their daughters Pauline (aged 5) and Donna (not yet a year old) moved from the Lang Stracht area of Aberdeen to live in Johnstone Gardens, Peterculter, a few minutes’ walk from where their new home was being built.
8. Throughout the time during which the house was being built, Mrs Souter, often accompanied by the children, was an almost daily visitor to the site and walked the family dog on the property her husband had acquired, including the disputed land and the afforested area beyond. The children had the freedom of the whole cleared area, including the disputed area, and played all over it. In particular they rode a scrambler bike, acquired in the late 1980s, over the whole area, including the disputed ground.
9. In July 1991 the Souter family moved into their new home, Nostra Casa. By that time much of the land which had been clear-felled by Mr Milne in 1979 had begun to regenerate with a mixture of trees, mainly silver birch, gorse and bracken, as can be seen in production A3/5(a), a photograph taken in 1990.
10. By September 1995, when the aerial photograph which is production A4/1 was taken, that regrowth had established itself so densely on the disputed area that it would have been impossible to ride the scrambler bike, or the go-kart which replaced it, on it.
11. From around 1989 or 1990 to around 1995 the Souter children maintained a frog pond on the disputed land. After that a replacement was created nearer the house and the original pond became overgrown and lost to view.
12. The clear-felling done by Mr Milne in 1979 had left tree stumps all over the applicant’s land, including the disputed area, which the applicant removed over a period of five years until 1984.
13. In or around 1992 London & Clydeside Estates Limited, who were developing a large housing estate on the south side of Bucklerburn Road, at the invitation of the applicant, deposited 400-600 tons of spoil over a large area in the middle of the applicant’s land but extending into the disputed area as shown on productions A3/6(a) and (b).
14. It was not until 2006, however, that the applicant began to address the regrowth referred to in findings 9 and 10 above, starting in the vicinity of Nostra Casa and working northward.
15. By February 2009, when the photographs taken by Mr Clubb which are production IP4/5 were taken, much of the regrowth on both what was undoubtedly the applicant’s land and on the disputed land had been felled but much also remained, particularly to each side of the wedge previously referred to, as shown in said photographs.
16. Sometime in 2009 Pauline Souter and her partner, Gary Henderson, bought the site of a property to the southwest of her father’s subjects and in connection with their plans to build a new house on it, Mr Henderson’s brother, Shaun, a site engineer with a construction firm, was instructed to carry out a topographical survey of the site. The applicant asked him to check the boundaries of his property while he was at it, because he had it in mind to develop the site, so Mr Henderson carried out a survey of both sites on 15 August 2009, subsequently producing the detailed plan which is production A3/3. He returned on 18 August and inserted a number of fence posts to act as boundary markers where indicated on his subsequent plan.
17. In or around late 2009 work began on Pauline Souter’s new house, which involved the demolition of the previous house on the site. The work continued until 2013 and during that time the applicant and those assisting him dumped several hundred tons of dug material from the site along the western and part of the northern boundary of the applicant’s subjects, as shown on production A3/6(c), including the western end of the disputed area. Material produced by the re-profiling of land in the vicinity of Nostra Casa in 2009 was also dumped in this area.
18. In the course of work on Pauline Souter’s house a vehicular track came to be formed over the applicant’s land, reaching into the disputed area, as shown on production IP4/13. After some initial preparation by the applicant with his digger, it was further established by its use by construction traffic going to and from the house site in the years between late 2009 and 2013.
19. From the time of the purchase of his property in 1979 until March 2010 the applicant’s entitlement to use the disputed area was not challenged by anyone nor did the applicant or members of his family witness anyone else using it.
40. Before moving on we should explain why we have made finding in fact 4 above and why we haven’t made another finding-in-fact the applicant invited us to make.
41. The applicant and his wife spoke to some boundary posts being erected in 1979. No one else appears to have seen these. Yet we are persuaded that they were put in because (a) it would have been a natural thing to do if one was instructing the felling of part of a wood where there was no natural boundary and (b) production A4/1 makes clear that the felling followed a very clear, straight line.
42. The finding we haven’t made has to do with items used in the construction of Nostra Casa having been stored on the disputed land. These items included scaffolding poles and a diesel tank. The photographic evidence, production A3/5(r) is merely of scaffolding poles lying in grass, which could be anywhere. Mr Stamper and Mr Clubb said they would have seen those things had they been on the disputed land when they walked over it. On the whole we have considered the evidence to be too equivocal for a finding-in-fact that these items were stored on the disputed area.
1. In 1990, Mrs Elsie Crombie, disponed eight areas of ground, parts of the Lands and Estate of Culter, to the Trustees of the Cordiner Pension Trust, including parcel number 872 comprising the land bounding the applicant’s subjects to the north and east.
2. In or around 1992/1993 the Cordiner Pension Trustees clear-felled plot 872.
3. In 1994 said Pension Trustees sold plot 872 to Mr Scott Stamper, with entry on 14 January of that year, his title being recorded in the General Register of Sasines on 21 November 1994.
4. In 2003 Scott Stamper disponed the subjects he had acquired to ECAS, a Stamper family company, triggering the first registration of the subjects in the Land Register under Land Certificate number ABN69460 on 21 November 2003; production A1/4.
5. The subjects so registered included the area now in dispute, which is shown shaded blue on production A1/5 and, in more detail, on production IP4/15.
6. By the time of Scott Stamper’s acquisition of what is now the interested party’s land the mature trees which had been growing there since about 1926 had been felled by the Cordiner Trustees as aforesaid under a licence granted to them for that purpose by the Forestry Commission dated 12 August 1991 and all that was left was scrub and tree stumps.
7. Because it was a condition of said licence that the land be restocked, Mr Stamper set about applying for a Woodland Grant from the Forestry Commission for that purpose. In the process of doing so he was advised by David C Blishen, Woodland Advisers, whose Jackie Cumberbirch visited the site for that purpose on several occasions in 1994. The subsequent application having been granted by the Commission on 16 November 1995, the Stampers approached several forestry advisers to assist with restocking and Mr Stamper had a number of meetings , described by him as “countless”, with such contractors on site in the course of 1998. For reasons beyond the Stampers’ control nothing came of those approaches and by 2009 the woodland had regenerated naturally to the satisfaction of the Commission, their Mr Dan Cadle having visited the site and found that to be the case on 10 December 2008. The land covered by both the tree-felling licence and the Woodland Grant application included the disputed area and, indeed, part of what was undeniably the applicant’s land; see production IP4/11, where its boundaries are superimposed on an aerial photograph of the subjects.
8. In the first two years of Scott Stamper’s ownership of the land his parents would visit the site fairly frequently, although we reject as improbable that they travelled from their home in Kintore, a distance of several miles (even if by a shorter route than the 11miles put to Mr Stamper by Mr Upton), two or three times a week to do so. These were recreational visits although in the course of some of them Mr Stamper would do some weeding and cut away bracken around some young trees. In later years the visits were less frequent but even now Mr & Mrs Stamper stop at the site, although not at the disputed area, when returning home from walking their dogs at Crathes Park every second Saturday.
9. In the spring and summer of 1996 the Stampers tried to sell their land and intending purchasers came to view it, probably traversing the disputed area in order to see where that boundary was and as a means of access to the rest of the land. No acceptable offer to purchase having been received they decided to develop it for housing and concluded an option to purchase with Barratts on 6 and 16 August 1996; production IP3/16. In all of these proceedings it was the Stampers’ intention to include the disputed area and it was covered by the option agreement.
10. Prior to the conclusion of said option agreement unnamed representatives of Barratts attended an unspecified number of on-site meetings with Mr Stamper and, sometimes, his daughter, Ainslie.
11. The option to purchase with Barratts led nowhere and was eventually replaced with a similar agreement with Churchill Homes. Although that agreement was not formally concluded until June 2007, their Mr Kenneth Clubb took an active part in matters from a much earlier stage.
12. Mr Clubb and the Stampers had to contend with the problem that the land was part of the Green Belt and a prolonged process of objecting to successive versions of Aberdeen City Council’s Local Development Plan was embarked on from 2001 onwards, the campaign being conducted by Miss Ainslie Stamper, as she then was, and Mr Clubb.
13. As part of that process Mr Clubb, who was then a Technical and Design Manager with Churchill Homes but who was later (in 2011) to become one of their directors, made many visits to the site (again the number is impossible to quantify), sometimes accompanied by Mr Stamper and sometimes by a variety of consultants and walked over the disputed area on many of those occasions, all with a view to advancing the case for residential development on the site.
14. The site in question – the land which the Stampers and Churchill Homes wanted rezoned for residential development – included not only the disputed area but the whole of the applicant’s property, on the basis that to have excluded it would have been to leave a pocket of Green Belt zoning in what would otherwise, should they succeed, be zoned for residential development.
15. Bearing in mind that the disputed area formed only 0.08 of the whole subjects acquired by Scott Stamper in 1994, all of the visitors to the site, for whatever purpose, in the following years would have spent by far the greater part of their time outwith the disputed area, the only particular significance of the disputed area being as one of the possible access routes to the main body of land.
16. On 5 February 2006 ECAS disponed the Stamper land to the interested party and it was between the interested party and Churchill Homes that an option agreement was finally concluded in June 2007. The ground covered by that agreement includes the disputed area.
17. At no time did Scott Stamper, ECAS or the interested party, do anything to mark the boundaries of the subjects they had acquired on the ground.
18. The campaign to change the zoning of the land, by then being conducted almost exclusively by Mr Clubb, continued after the change of ownership and Mr Clubb continued to visit the site from time to time. In the course of one such visit, on 17 February 2009, he noticed the presence of heavy plant and machinery on the applicant’s undisputed land close to its boundary with what was to become the disputed area and that a significant number of trees had been felled close to the boundary. It was on that occasion that he took the photographs which are production IP4/5.
19. On 10 June 2009 Mr Clubb and the applicant found themselves attending the same planning consultation meeting at Cults Academy, both their with their development proposals. Although it does not appear that the existence of an overlap became apparent to either of them at that time, Mr Clubb tried to interest the applicant in advancing their proposals together since that would have made good sense, he thought, in planning terms. The applicant was non-committal and did not take up Mr Clubb’s offer to discuss matters further.
20. On 24 January 2010, while driving past the site, Mr Stamper noticed that the foresaid tree felling operation might have now encroached on what he thought of as his land and asked Mr Clubb to investigate. Mr Clubb instructed a survey to be carried out by Messrs Cameron & Ross, whose Mr Darren Ingram surveyed the site on 4 March 2010 and subsequently produced a plan, production IP4/15, showing the area of overlap between the two titles.
21. On 1 March 2010 Mrs Christina Stamper took friends, Mr & Mrs Grocott, to see the site and had a confrontation with the applicant on the disputed area. The photographs which are IP3/48 were taken by Mr Grocott on that occasion.
22. On 3 March 2010 Mr Stamper, accompanied by an employee, Mr Colin Watt, went to see the applicant at his home, taking a copy of the interested party’s land certificate with them. This too ended in confrontation and the inconclusive correspondence between solicitors comprising productions A2/1-8 ensued.
23. Since March 2010 Mr & Mrs Stamper have avoided going onto the disputed area, for fear of further confrontation, and the interested party has made no attempt to possess the disputed area nor challenge the applicant’s possession of it until now.
24. At no point, prior to March 2010, did the Stampers or Mr Clubb see any of the Souters on the disputed area nor was their right to be on that area challenged.
25. In February 2015 the battle to have the land rezoned was finally won by Mr Clubb when it was entered as a site recommended for residential development in the latest Aberdeen Local Plan but an application for planning permission has been deferred pending the outcome of the present proceedings.
43. What those findings come to is this:
(a) That there was a very obvious act of possession, use and control of the land by the applicant in 1979 when the disputed area was clear-felled of its trees.
(b) That from then until some point in the early 1990s the applicant’s family made use of the disputed area, with the rest of their land, as their back garden for a variety of recreational purposes and no one else used it. Material for the London & Clydeside site was deposited on part of it in or around 1992.
(c) That from a point no later than 1995 until 2009 the disputed area was used by the applicant’s family only for dog-walking.
(d) That over a period from Scott Stamper’s acquisition of what is now the interested party’s land in January 2004 until March 2010, Mr & Mrs Stamper made numerous recreational visits to it and it was visited by people from the Forestry Commission, forestry contractors, intending purchasers, developers, planning consultants and planning officials. Only a small number of those were identified in evidence and it is impossible to quantify, even roughly, how many visits there were and how often the disputed area was included in those visits, save to say that, given the points of entry to the site, from Malcolm Road and the top (western) side, it seems likely that parts of it would be walked over on most of those occasions.
(e) That at some point in late 2009 or very early 2010 the applicant’s process of clearing his land of secondary growth reached the disputed area and from then until the lodging of this application he has been in unchallenged, active and exclusive occupation of it.
44. The question is whether the interested party – not Mr Stamper, who has never been proprietor – was a proprietor in possession of the disputed area as at 7 December 2014. In order to answer that we have to look at the position over “an appropriate tract of time preceding it”; Lord Hamilton in Safeway Stores plc p 60, para . We consider that the whole period of its proprietorship, from April 2006, is the appropriate period. We do not think it appropriate to go back further than that because the question we have to answer has to do with the interested party’s proprietorship and no one else’s. So all the evidence we heard about Mr & Mrs Stamper’s visits to the site in the early days, the efforts to sell the land in 1996 and the early stages of the campaign to change the zoning of the land for planning purposes tells us nothing about the interested party’s subsequent possession of the subjects although it is relevant in another context which we come to below.
45. As has been noted in almost all the authorities to which we were referred, the legislation does not define “possession” or tell us what is necessary to constitute it. So the term has had to be clarified by case law. The opinion of the court, delivered by Lord President Rodger, in Kaur v Singh contains a very illuminating discussion of the thinking and policy behind Parliament’s desire to protect a proprietor in possession. Much of the discussion focuses on the meaning of “proprietor”, which the court decided should be confined to someone with a title as owner of the land in question; p 191E. On the facts of that case, less required to be said about the meaning of “possession”, but the court held that it referred to possession of the land rather than possession of a legal interest; p 191H-I.
46. It fell to a later Inner House decision to say more as to what is required to constitute possession of land for the purposes of sec 9(3) and the clearest exposition of it is to be found in the opinion of Lord Hamilton in Safeway Stores plc first at page 59 and para , where he said:
“In my view it is necessary, in the circumstances of this case, to make some attempt to divine what the legislature had in mind by a proprietor ‘in possession’ who ex hypothesi does not ‘truly’ have the right accorded to him on the register but whose possession (and registered proprietorship) is nonetheless, as a matter of policy, not to be disturbed. In my view the term ‘in possession’ in this statutory context imports some significant element of physical control, combined with the relevant intent; it suggests actual use or enjoyment, to a more than minimal extent, of the subjects in question as one’s own. It is a ‘proprietor’ who has, on the faith of the register, had such enjoyment or use who is protected against rectification. A ‘proprietor’ who has not had such enjoyment or use is not so protected and may require to seek his remedy, if any, in the form of indemnity.”
47. And then, at para , where he said this:
“Possession requires … both a mental and a physical element. I am prepared for present purposes to assume, without deciding, that, in the case of a corporate body, the requisite mental element may include the state of mind of an independent agent, such as a professional member of a company’s development project team, and is thus not restricted to that of directors or other officers of the company. On that assumption [certain agents of Safeway] held during the requisite period a belief that the overlap area was, or at least might be, within Safeway’s property. The steps which they took against that belief were taken with a view to exploiting that believed proprietorship for the benefit of Safeway (by providing access to the development site by means of a less expensive structure). But, in my view, the steps taken by these agents fell short of constituting the necessary physical element of possession. The making, in offices remote from the site, of plans for an alternative structure and the making of relative enquiry of the local planning authority cannot, in my view, constitute physical acts of possession of the site, nor, in the circumstances of this case, can the carrying out of survey operations which involved no physical presence or activity on the site …”.
48. How does the evidence of possession by the interested party match that description? As seen in our findings-in-fact, it comprises a number of people visiting the land and walking over the disputed area for the purpose of showing it to intending developers and allowing those developers to work up a planning proposal for the eventual development of the land. There is no element of physical control; they never even marked out the boundaries of their property on the ground. There is no element of use of the land; nothing was done on it, not a spade was put in the ground (we have rejected Mr Stamper’s evidence of tree-planting for the reasons given when discussing credibility) and it was not even surveyed, for aught heard in the evidence. Any “enjoyment” of it by Mr & Mrs Stamper was recreational and cannot in our opinion be attributed to the interested party which did not, so far as we know, have as one of its purposes recreational use of the land. Similarly negotiations with the planning department do not, on Lord Hamilton’s view, constitute acts of possession, albeit those were informed by site visits.
49. In our opinion, therefore, the positive case for possession made by the interested party does not satisfy the requirements for possession as explained by the Inner House in Safeway Stores plc and it fails.
50. Absent other evidence, however, the interested party would still succeed because of the presumption contained in para 18 of Schedule 4. This is where it becomes necessary to look at the counter-evidence; the evidence that the disputed area was possessed by the applicant. On the facts found, it is beyond dispute that the applicant acquired possession of the disputed area in 1979 and retained it at least into the early 1990s. The question is whether the cessation of acts of possession, save for dog-walking, from then until 2009 means a loss of possession. In Tesco Stores Ltd the Tribunal (Lord McGhie, Mr A R MacLeary) said, at p 36F, that “[o]nce possession is established it may be presumed to persist”; persist, that is, until there are acts of contrary possession which displace it.
51. In this connection, the passages from Stair quoted by Lord Osborne in Safeway and relied upon by both counsel before us are of relevance. The first, from the Institutions, II.1.13, has to do with the relationship between possession of part of subjects and possession of the whole:
“[W]hen the earth began to be divided by limits and bounds, and to have common denominations, then the possession of the whole was attained by exercising possessory acts upon a part; as he who possesseth a field needs not go about it all, or touch every turf of it, by himself or his cattle, but by possessing a part, possesseth the whole, unless there were contrary possessory acts.” [Our emphasis].
52. The second described how possession can be lost by contrary acts:
“Possession then is lost by a contrary possession, and it is interrupted by contrary acts or attempts of possession, which if they do not attain the effect to expel it, it is called a troubled or disquieted possession; for nothing can be possessed in solidum by more than one, either simply or in relation to the same right; for as there cannot be more proprietors than one of the same kind, though one may be superior, and another vassal; so there cannot be more possessors than one … and therefore the entry to possess that which is already possessed, must expel the prior, or else introduce a partial and common possession.” (Institutions, II.1.20)
53. In our opinion there were no acts of possession by either the interested party or its predecessors, Scott Stamper and ECAS (this is where their actions are relevant) which amounted to an expulsion of the applicant’s possession. What acts there were were not even such as put the applicant on alert that his possession was being challenged. Had they been he would undoubtedly have challenged them. In those circumstances the applicant’s possession is to be taken as having continued until 2009 when it came to be very obviously affirmed again, first by the depositing of spoil from the site of Pauline Souter’s house and the re-profiling of land around Nostra Casa, and then by the continuing work of clearance of trees as the applicant worked his way northward over his land.
54. As to whether those actings of 2009 and beyond are to be ignored because they were done at a time when the applicant realised that his ownership was under threat, we think not. For one thing it has not been proved that the meeting at Cults Academy had indeed alerted him to the interested party’s claim on the land. In that connection it is significant that there is no evidence of the applicant having consulted his solicitors at that point and challenged the interested party’s intentions. Instead he simply continued a process of clearing his ground of regrowth which had started as long ago as 2006.
55. Accordingly we do not think that this chapter of evidence, from late 2009 to 7 December 2014 falls to be discarded as having no evidential value. Instead we accept it as being what it appears: very strong evidence of exclusory possession which went unchallenged until this application was lodged.
56. Our decision is accordingly that there was on the Register as at 7 December 2014 an inaccuracy which was capable of being rectified and that the Keeper was not prevented from rectifying it by sec 9(3) of the 1979 Act, the interested party not being proprietors in possession. What is required to rectify it is the removal from the interested party’s title sheet of the area marked blue on the pre-registration report which is number A1/5 of process.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 15 February 2018
Neil M Tainsh – Clerk to the Tribunal