Call: 2007    
Paul Wilmshurst  

"Meticulous, thoughtful and with an open mind to new legal angles." - Legal 500 2021

 

"Provides clear advice and an exceptional knowledge of the law of commons. " Agriculture - Legal 500 2020

 

Practice Overview


Paul Wilmshurst is ranked by the Legal 500 as a leading junior in Property Litigation and Agriculture and by Chambers and Partners as a leading individual in Agriculture and Rural Affairs. His practice embraces all aspects of land law.

 

Paul deals with the full range of property litigation between individuals and businesses. For example: easements, boundary disputes, commercial landlord and tenant, agricultural tenancies, disputes over ownership, proprietary estoppel, trusts of land, unjust enrichment, manorial rights, profits à prendre, covenants and nuisance. He is an experienced trial advocate. Recent cases include appearing in a 5-day trial in High Court (Chancery Division): Stanning v Baldwin [2019] EWHC 1350 (Ch); [2019] 5 WLUK 544.

 

Secondly, Paul is particularly active and well-known for acting in cases which concern public rights over land or which have administrative law aspects. For example, town/village greens, commons, public rights of way, public open space, foreshore rights, and environmental cases. Paul is the author of the Village Green and Commons chapters of the Encyclopaedia of Forms & Precedents. He is a very experienced public inquiry advocate and has appeared in notable court proceedings.

 

Paul regularly contributes to legal journals and gives seminars (details of which appear below).

 

  • Property
    • Boundaries and Easements

      Paul has found that early advice and drafting clear statements of case can often make the difference in boundary and easement cases. In respect of easements, he is able to deploy his extensive experience of village green and public rights of way cases where,for example, the issue of user “as of right” arises. Recent representative work includes:

      • Stanning v Baldwin [2019] EWHC 1350 (Ch); [2019] 5 WLUK 544 (5 day High Court trial concerning private rights of way, drainage rights and a boundary dispute over a common). Reported in the Evening Standard and The Daily Mail. 
      • 5 day boundary dispute at the County Court at Birmingham.
      • 4 day boundary dispute at the County Court at Bristol.
      • 3 day boundary dispute (combined with a claim under the Party Wall etc Act 1996) at the Mayors & City County Court.
      • 7 day boundary dispute trial at Mayors & City County Court (combined with a harassment claim) where submissions were successfully made that the court should not follow the view of either expert surveyor, both of whom had advised there was a trespass. Reported in: The SunThe TimesThe ExpressThe Daily Mail
      • 4 day boundary dispute in the County Court at Brighton.
      • 4 day boundary dispute in the High Court
      • A 3 day rights dispute about an easement in the Property Chamber (1st Tier Tribunal)
      • Appearing in the High Court to oppose an interim injunction sought in connection with a private right of way that had been compulsorily acquired.

       

      Nuisance

      Paul regularly deals with cases involving nuisance and is presently involved in a number of matters coming on for trial involving for example nuisance concerning water damage occasioned by major alterations to topography of neighbouring land and building works. Paul also represented Bournemouth Borough Council in proceedings concerning an alleged statutory nuisance relating to flies emanating from a water purification plant.

       

      Other rights over land

      Paul deal with shooting rights and other profits.

       

      Town/Village Greens

      Paul has a wealth of experience representing both objecting landowners and applicants at public inquiries concerning new town / village green applications. He is also regularly appointed to sit as an Inspector by numerous registration authorities. Altogether he has acted in some 27 public inquiries (of which 12 have involved leading counsel).

      Paul has been involved in a number of court cases concerning village greens

      • St John’s College, Cambridge v Cambridge County Council [2017] EWHC 1753 (Admin) (known as “Meadow Triangle”) Paul successfully represented Cambridge County Council, against leading counsel, in this High Court challenge. The judgment of Sir Ross Cranston concerns issues inter alia of when an application can be adjudged to be duly made and establishes that a registration authority is entitled to give an applicant more than one opportunity to correct a defective application. 
      • R (Fellowes) v Powys County Council (2014) – refusal to appoint Inspector to preside over non-statutory village green inquiry. 
      • R (Burrows) v The Royal Borough of Windsor and Maidenhead & Anor[2014] EWHC 389 (Admin) (21 February 2014) – challenge on legal test for contentious user after 9 day village green inquiry. 
      • R (Newhaven Port & Properties) v The Secretary State for the Environment– submission in support of permission to appeal made to Supreme Court on behalf of Intervenor on “retrospective” application of s.15(7)(b) of the Commons Act 2006.

       

      • R (Halliday Properties Ltd) v Portsmouth City Council (2012) – involved (as led junior) in drafting of a challenge under s.14 of the Commons Registration Act 1965 based on res judicata and “lack of spread.”

       

      Examples of previous and ongoing work includes: “The Downs at Herne Bay” (ongoing) (2018); “The Community Green” at the Vandyke Gardens Estate, Leighton Buzzard (3 days) (2018); “Rokeby Playing Fields” (4 days) 2017); “Land in Somerset (as Inspector) (7 days) (2017); “Whitstable Beach”, Kent (18 days) (ongoing); Westward Ho!, Devon (as Inspector) (4 days) (2017); “Fletton Field”, Northamptonshire (5 days) (2016-17); “Top Field”, Hampshire (6 days) (2016); “Withy Bed”, Bath and North East Somerset (2016); Land south of Oxford Meadow, Essex (2015) (3 days); Maes Glas, Cardigan, Wales (2014) (1 day); “Woodcray”, Wokingham (2014) (7 days); The Knowle, Devon (as Inspector) (2014); Land at Cae Prior, Wales (2014); The Green, Tytherington, South Gloucestershire (2014); Land at Frenchay, South Gloucestershire (as Inspector) (2014); Land to the West of Friern Barnet Library (1 day) (2014); Falmouth Avenue, Gloucestershire; Shephall View Rec, Stevenage (2014); The Glades and Italianate Gardens, Bromley (as Inspector – 3 days) (2013); Land at Coulby Newham, Middlesbrough (2013); Brewery Field, Somerset (as Inspector – 1 days) (2013); Herts & Essex School Playing Field (7 days) (2013); Catshill, Worcestershire (1 day) (2012); Land at Oaktree Avenue, South Gloucestershire (2012); Ash Hill Woods, Devon (as Inspector – 3 days) (2012); Thamesfield, Wraysbury (9 days) (2012); Port Solent, Portsmouth (3 days) (2012); St. George’s Field, Headstone, Harrow (4 days) (2012); The Kayles, Old Ferry Drive, Windsor, Wraysbury (4 days) (2011); The Triangle, Tichbourne Way, Gosport, Hampshire (5 days) (2010)

       

      Commons

      Paul is the author of the Village Green and Commons chapters of the Encyclopaedia of Forms & Precedents. Commons issues covered include de-registration & exchange, landowner rights, commoner’s rights, permitted works and enforcement. This work includes dealing with Metropolitan Commons or those covered by applicable schemes). Recent work includes submission to South Gloucestershire Council on behalf of a landowner who had submitted an application to de-register and exchange.

       

      Public rights of way

      Paul is experienced in appearing before at public inquiries held by the Planning Inspectorate into matter relating to public rights of way (including footpaths and bridleways). See for example the includes his successful defence of a farmer at a 5-day public inquiry against  the compulsory creation of a bridleway under s.53 of the Wildlife and Countryside Act 1981: see (Public Bridleway No. 47, Parish of Wooburn) Public Path Creation Order 2014 FPS/P0430/6/1 Decision dated 30 December 2016. 

       

      Paul has regularly advised local action groups, landowners and public authorities on the existence of public rights of way together with issues relating to them. He is an Associate Member of the Institute of Public Rights of Way also contributes to “Waymark” magazine.

       

      Landlord & Tenant 

      (Business and Agricultural)

      Paul is regularly advising and appearing in relation to all aspect of business tenancies, including contested forfeiture and renewal. Representative work includes:

      • A 2 day trial in the County Court at Central London seeking forfeiture of a business tenancy and defending a Counterclaim brought by the tenant.
      • A 5-day trial in the County Court at Central London in which a claim of unjust enrichment was successfully pursued in connection to a void business lease in circumstances where substantial amounts of work had been carried out on an Curry House in Brick Lane before the landlord forcibly took back possession relying on a supposed breach of agreement.
      • A complex case  concerning a business tenancy, listed for a 12 day trial, which was settled after mediation and further negotiation.

      Paul is very willing to take on cases (often on a CFA or similar basis) concerning residential and/or social tenancies in which there is an important point of law at stake or which are particularly deserving.

       

      Mediation

      Paul regularly represents clients at mediations and has co-written ‘Preparing to “Win” the Mediation’, Sharpening the Sword II: Tactics and Strategies for Lock n’ Load Litigation (OBA 2008), with Thomas Heintzman QC. Paul is willing to sit or act as an Arbitrator in appropriate disputes in much the same way that he has regularly acted as an Inspector at non-statutory public inquiries. Paul is also willing to give early neutral evaluations to assist parties resolve disputes.

       

      Direct Public Access 

      The vast majority of Paul’s work is by referral from a solicitor. However, in suitable cases he accepts instructions directly from members of the public, businesses and other organisations. 

      Initial specialist advice and analysis can normally be given. In some cases Paul will be able to continue deal with matters by himself but in others and where in the best interests of the client he is able to advise on bringing in suitable solicitors, paralegals, experts and other professionals in order to build a team to progress the case.

      Recent successful Direct Access proceedings that Paul has been involved in for example have involved property issues such as boundary disputes and rights of way.

  • Regulatory and Business Crime
    • Regulatory and Business Crime

      Paul has prosecuted and defended in criminal matters concerning the environment, property and highways. Representative work includes:

      • Paul’s successful defence of a proprietor of a “Shisha Bar” against a prosecution for alleged offences under the Health Act 2006. The acquittal at trial was upheld by Burnett LJ and Cranston J after the prosecutor appealed by way of case stated: London Borough of Newham v Iqbal [2016] EWHC 720 (Admin) (01 March 2016. 
      • Highway offences
      • Defending clients where prosecutions have been brought for contravention of Tree Preservation Orders.

      Paul’s practice also includes appearing in proceedings under s.80 of the Environmental Protection Act 1990 (e.g. smoke, noise, gases, dust, light, water, insects etc). For example, Paul appeared at the trial of a contested abatement notice for alleged statutory nuisance relating to flies emanating from a water purification plant. The case involved calling expert evidence on the methods involved in purifying water. Paul also deals with common law nuisance cases. For example, multi-track litigation concerning water damage caused by major alteration to the topography to construct a golf course and water damage caused to neighbouring land by defective building works.

      Paul has also represented clients before the Planning Inspectorate (PINS) in appeals against enforcement (for example change of use).

       

  • Trusts and Estates
    • Disputes over ownership

      Paul regularly advises and appears in proceedings concerning the ownership of property in which concern for example common intention constructive trusts or proprietary estoppel including:

      • Claims under TLATA
      • Co-habitation disputes arising after the breakdown of a relationship
      • Those arising in a business context

      Representative work in this field is a 5-day trial in the Central London County Court concerning an alleged constructive trust and proprietary estoppel.

      Charities

      Paul has advised and appeared in proceedings concerning charities, including those where interim relief is sought or where there are serious allegations of impropriety. 

  • Additional Information

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