Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| In the Matter of an Appeal from The Adjudicator to Her Majesty's Land Registry And In the Matter of 18 Ambaston Lane, Shardlow, Derbyshire, Title No: DY 185906 Case Ref 2005/0106
DERBYSHIRE COUNTY COUNCIL
|- and -
|(1) GLEN NEIL FALLON
(2) TRACY JAYNE FALLON
Mr Martin Strutt (instructed by Messrs Nelsons) for the Respondents
Hearing date: 25 April 2007
Crown Copyright ©
Mr Christopher Nugee QC:
The Paper Title Issue
i) Title No DY 185906 is the registered freehold title to land at 18 Ambaston Lane, Shardlow, Derbyshire. The filed plan shows a roughly triangular plot with a detached house built on it; it lies on the inside of a corner where Ambaston Lane turns from running north-west to roughly north, but it does not extend all the way to the road as the Council owns a substantial parcel of land between the plot and the road. The filed plan shows the Fallons' land as having a straight boundary to the north (adjoining a field), an almost straight but slightly kinked boundary on the east (adjoining No 16 Ambaston Lane), and a curved boundary on the remaining side (south-west), which is the boundary with the Council's land.
ii) The Council's case is that the true boundary between the two parcels is that shown on two conveyances to it each dated 16 August 1966. This boundary line has been plotted on a plan prepared by GreenHatch Ltd for the purposes of this dispute which shows that it lies some distance further to the north-east than the boundary shown on the filed plan. The Adjudicator referred to the strip between the two ("the disputed strip") as about 36 metres long and varying between about 2 to 4 metres wide. I would not myself have thought the disputed strip was quite as long as that but nothing turns on the precise length the disputed strip is identifiable from the GreenHatch plan.
iii) The Fallons' land and the Council's land (which together make up a roughly square plot on the inside of the corner of Ambaston Lane) were formerly owned by the Trustees of the Will of Sir Henry Sutton ("the Sutton Trustees"). There were then 4 cottages on them (part of a row of 5 cottages, the fifth of which appears to survive as what is now 16 Ambaston Lane). One of the cottages (the second nearest the road, then apparently called 4 Ambaston Lane) was sold off by the Sutton Trustees in 1950 to Esther Poulton, and Mrs Poulton in turn conveyed it on 5 July 1954 to Alice Wheeler.
iv) In 1964 the four cottages were the subject of a clearance order. The one that had been sold off was by then owned by Mrs Wheeler's executor and the Sutton Trustees retained the other three. The Council, which was the Highway Authority, became interested in acquiring the front part of the site for highway purposes; and a recommendation to purchase either the front part of the site for road widening purposes (said to be 410 square yards) or if necessary the whole site (said to be 785 square yards) was approved in September 1964.
v) Meanwhile the land had been surveyed by, or under the direction of, the County Surveyor, Mr S Mehew; the survey plan indicates that the land was surveyed in August 1964 and the plan drawn in September. This plan ("the 1964 plan") is drawn to a 1/500 scale and shows a curved boundary dividing the front part of the site from the remainder. The front part is itself divided into two pink areas and one green area, representing the land owned by the Suttton Trustees and Mrs Wheeler's executor respectively, and the plan is marked to show that these areas were 315 square yards (pink) and 95 square yards (green), thus together adding up to the 410 square yards mentioned in the report recommending purchase. The plan also shows the dimensions of the triangular plot that would be left; these are marked as 69' (the northern boundary), 77' (the kinked eastern boundary) and 95' (the curved southwestern boundary).
vi) A letter from the District Valuer to Mr Mehew of 16 February 1965 shows that purchase of the site had been agreed in principle with the Sutton Trustees' agents, and asked Mr Mehew to arrange for the boundary line to be pegged out. A reply of 26 March 1965 indicates that the pegging out had by then been completed.
vii) On 24 December 1965 Mrs Wheeler's executor conveyed to Donald Sharman the part of her land not wanted by the Council. The conveyance itself does not appear to be available, but it is referred to in a memorandum endorsed on the conveyance of 5 July 1954 under which the land was conveyed by Mrs Poulton to Mrs Wheeler. This memorandum refers to a plan, a copy of which was attached ("the 1965 plan"); it is a small plan which shows the general position of the curved boundary but is neither said to be to scale nor contains any dimensions.
viii) On 25 February 1966 the Sutton Trustees and Mrs Wheeler's executor entered into a contract of sale with the Council, under which they agreed to sell the front strip of land, described as an area amounting to 410 square yards or thereabouts. The plan annexed is similar (but not identical) to the 1965 plan; unlike that plan it does give dimensions of the triangular plot. These are difficult to read on the copy plan I have seen but appear to accord with those shown on the 1964 plan, namely 69' (north), 77' (east) and 95' (southwest).
ix) In June 1966 Mr Sharman applied for planning permission for erection of a house on the triangular plot, describing himself as owner of the land. The Adjudicator inferred that he had by then acquired the remainder of the plot from the Sutton Trustees, and this is not disputed on appeal; indeed before me Mr Din, who appeared on behalf of the Council, accepted that he probably acquired it at the same time as he acquired the Wheeler part of the plot, in December 1965. The plan accompanying the planning application ("the 1966 plan") is said to be 1/500 scale and gives the dimensions of the triangular plot as 67' (north), 77' (east) and 98' (curved boundary to southwest).
x) On 16 August 1966 the sale of the front strip to the Council was completed by two conveyances, one by the Sutton Trustees and the other by Mrs Wheeler's executor. Each conveyance annexed a copy of the 1964 plan and described the land conveyed by reference to the areas given on that survey, namely "95 square yards or thereabouts" in the case of the land conveyed by Mrs Wheeler's executor, and two parcels together comprising "315 square yards or thereabouts" in the case of the land conveyed by the Sutton Trustees.
xi) Mr Sharman built a detached house on his land called Sharman House. In 1972 he conveyed the land to a Mr and Mrs Ledger. The Adjudicator recorded that the plans to this conveyance (which appear to have been similar to the 1965 plan) showed that it purported to convey almost all the disputed strip. After a series of further conveyances and transfers (one of which led to the first registration of the land in 1989) the land was ultimately transferred to the Fallons in 1994 and they were registered as proprietors.
xii) The filed plan to the registered title shows the relevant boundary with a dotted line and there is a note on the filed plan to the effect
"The boundaries shown by the dotted lines have been plotted from the plans on the deeds. The title plan may be updated from later survey information."
The Adjudicator noted that the boundary as shown on the filed plan was in approximately the same position as in the plan to the 1972 conveyance; and inferred that in each case what was sold on after 1972 was that described as being sold in the 1972 conveyance. As a result the filed plan shows the disputed strip as included in the registered title.
The General Boundaries Issue
The Adverse Possession Issue
The Adjudicator's powers to amend the register
"the boundary is incorrectly shown on the Land Registry plan, and it is necessary to consider whether I should direct that it should be corrected."
The second issue on appeal is whether his decision not to do so was wrong.
1 In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which
(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor."
"Alteration otherwise than pursuant to a court order
5 The registrar may alter the register for the purpose of
(a) correcting a mistake,
(b) bringing the register up to date,
(c) giving effect to any estate, right or interest excepted from the effect of registration, or
(d) removing a superfluous entry.
6(1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.
(2) No alteration affecting the title of a registered proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to the land in his possession unless
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.
7 Rules may
(a) make provision about the circumstances in which there is a duty to exercise the power under paragraph 5, so far as not relating to rectification;
In the case of rectification therefore the powers of the registrar are restricted by paragraph 6(2), but if these restrictions are overcome, the registrar is under a duty to alter unless there are exceptional circumstances. In the case of an alteration which is not a rectification, schedule 4 does not itself make any provision but confers a rule-making power, which, I was told, has not been exercised.
"4 If the rule does not apply and the Register may be Rectified: are the Respondents registered proprietors "in possession" of the disputed land within the meaning of the LRA 2002 ("the Possession Issue") ?
5 If the Respondents are not in material possession of the disputed land, should the Register be rectified ?
6 If the Respondents are in material possession of the disputed land, "would it for any other reason be unjust for" the register not to be rectified ?"
(The reference in Issue 4 to "the rule" is a reference to the General Boundaries rule referred to in Issue 3.) It can be seen that the drafting of these issues assumed that Issues 4 to 6 would not arise unless the Council lost on the General Boundaries Issue. This seems to me to be right. Issues 4 to 6 are all concerned with the exercise of the power to alter in a case of rectification, but an alteration is only a rectification if it prejudicially affects the title of a registered proprietor. But if the Council succeeded on the first three issues, the alteration of the register would not prejudicially affect the Fallons' title: the effect of the Adjudicator's decision on the first three issues would be (and in the event was) that they did not have a registered title to the disputed strip and re-drawing the boundary on the filed plan would not therefore take anything away from them. In these circumstances I agree with Mr Din that Issues 4 to 6 did not in fact arise for decision.
The Adjudicator's reasons for refusing the application
i) Having found that the boundary line as shown on the filed plan was a general boundary and shown in the wrong place, he held that this was clearly a mistake which might be corrected under paragraph 5 of schedule 4 to the 2002 Act (paragraph 45 of the Decision). This seems plainly right and is not challenged on appeal.
ii) He then identified three questions which arose under paragraph 6 of schedule 4, namely (1) whether the alteration, if made, would affect the Fallons' title; (2) whether the alteration would be in relation to land in the Fallons' possession; and (3) whether it would be unjust for the alteration not to be made. He then added a further question (4) whether there were exceptional circumstances which justified not making the alteration (paragraph 46).
iii) He then considered in some detail the history of events since the Fallons acquired Sharman House (paragraphs 48 to 67). He explained that the Fallons first built a garage, driveway and the angled breeze block wall in 1995/96; then in 2000 applied (to the planning authority, the South Derbyshire District Council) for planning permission to build a further double garage and a new brick wall, which was granted subject to the highway boundary (ie the boundary with the Council's land) being resolved; and that despite a site meeting in 2001 with Council officers, and about a year's correspondence between the Fallons' solicitors and the Council, the boundary was not resolved. The correspondence culminated in a letter from the Fallons' solicitors in May 2002 to the effect that unless the Council applied to HM Land Registry to rectify the title, the Fallons would continue to treat all the land shown on the filed plan as their own, and in particular that they proposed to build a garage on part of it. In September 2002 the Fallons submitted a revised application for planning permission; the Council's response this time was that "the Highway Authority would not want to restrict the grant of planning permission", and permission was granted in November 2002. The Adjudicator said he accepted Mr Fallon's evidence that he concluded from the lack of continued objection that the Council was not disputing his ownership to the boundary shown on the Land Registry plan. Work started in spring 2003 and the bulk of it had been carried out when the Council first wrote at the end of April 2003 saying that the garage wall and driveway appeared to conflict with the Council's ownership. Mr Fallon finished the work, and in July 2003 the Council noticed that it had been carried out; this led to the Council's application to the Land Registry in August 2003.
iv) The Adjudicator then turned to the first of the four questions he had identified, namely whether the alteration would affect the Fallons' title. He correctly said it would not affect their paper title; what it would do would produce "another general boundary in a more accurate position than the current general boundary" (paragraph 68).
v) He continued:
"69. However at this stage more than the paper title is in issue. In Lee v Barrey, there was no claim for an injunction to compel the defendant to pull down his house. No doubt there would have been an award of damages to compensate the plaintiff for the loss of the land, with the practical result that the area of land on which the house was built would have been incorporated into the defendant's registered title. In the present case there appears to me to be at least a serious issue as to whether, in the circumstances which I have described, a court would grant an injunction ordering the Fallons to demolish all or any of the work they have carried out and hand over the land to the Council rather than either simply awarding damages for trespass either in respect of the new garage or, possibly, in respect of the whole of the land built over and enclosed.
70. At the further hearing on 7 November 2006, counsel for the Council conceded that there was a triable issue as to whether the Council was estopped from pursuing any claim to the disputed land and as to whether, apart from any question of estoppel, the Council was entitled to a mandatory injunction to get the structures on the disputed land removed."
vi) He did not however answer the question whether the alteration could be said to affect the Fallons' title; but held that if it could, it would not be unjust for the alteration not to be made, relying on the fact that the land was of little value to the Council, that it had neglected to define its boundaries adequately for 35 years, that this had contributed to the confusion over the boundary and that it failed either to respond to the 2001 invitation by the Fallons' solicitors to apply for the plan to be altered or to object to the 2002 application for permission, leading Mr Fallon to believe that it had abandoned its claim (paragraphs 71 to 72).
vii) He then continued
"73. In the end I do not find it necessary to come to a conclusion on this issue because I have come to the clear conclusion that even if the alteration would not affect the Fallons' title, the facts to which I have referred constitute exceptional circumstances which justify not making the alteration unless and until a court has decided whether to order the Fallons to remove all or any of the wall, buildings and paving which trespass on the Council's property, taking into account, for example, the principles set out by the Court of Appeal in Jaggard v Sawyer  1 WLR 269, or agreement has been reached between the Fallons and the Council on this matter. To alter it while this issue remained unclear would not lead to greater clarity but only to confusion as the Fallons' development would be over the new boundary line and there would remain a real possibility, it not a likelihood, that all or some of it would remain and be effectively owned by the Fallons."
viii) He then pointed out that in a non-rectification case paragraph 5 of schedule 4 to the 2002 Act conferred a discretion on the Chief Land Registrar; that rule 126 of the Land Registration Rules 2003 required the Court, in a non-rectification case, to order alteration unless there were exceptional circumstances and concluded that he should apply a similar test on the assumption the present case were a non-rectification case (paragraph 74).
ix) He then identified the reasons for concluding that this was an exceptional case (paragraphs 75 to 81). I will deal with these below, but in essence he concluded that the alteration would achieve nothing of any value and it was inappropriate for the Council to proceed with an application for an alteration of the boundary when the real issues between the parties could only be resolved by the Court.
i) The boundary shown on the filed plan was a general boundary. If it were altered it would still be a general boundary, albeit drawn in a different place. So altering it would not change the ownership of the land.
ii) Altering a general boundary therefore changes nothing, except, in the usual case, providing greater accuracy. That would have been the case if the Council had applied before the garage and wall were built. There would then have been no reason why the Council should not have the disputed land.
iii) But the position changed once the Fallons had built over the land. At that stage the question whether the Council could have the land restored to it depended on whether it could obtain an order excluding the Fallons from part of their garage and compelling them to pull it and the wall down. This was not a question which either the registrar or the Adjudicator could answer, but one which could only be answered by the Court.
iv) The Council conceded it to be arguable that the Fallons might be able to resist an injunction by reason of an estoppel or otherwise. There was therefore at least a seriously arguable case (and the Adjudicator himself thought a very strong one) for leaving the Fallons in possession of the land they had built on and enclosed "with or without an award of damages equal to the value of that land."
v) In these circumstances although the present boundary line did not reflect where the paper title lay, changing it would be "wholly unhelpful to anyone". An application to alter it was not an appropriate way of resolving the issues between the parties:
"The Chief Land Registrar ought not to be troubled by questions of altering the general boundary before the real issues between the parties have been fully resolved and the future of the disputed land has been determined." (paragraph 81)
" it seems to me that there must certainly be circumstances in which it would not be just to make an order for rectification. I am not referring now to a mere matter of hardship. What I have in mind is the type of case in which the true owner, having learnt that the registered proprietor is doing work upon the land, stands by and allows him to do the work before he intervenes with an application for rectification. In an extreme case of that kind, it is I think abundantly clear, that it would not be just to make an order for rectification."
At first blush this seems very pertinent, but Mr Din submitted, and I agree, that the position Pennycuick J was considering is rather different from the present. In the case he was considering, rectification would deprive the registered proprietor of his registered title to the land in dispute, and refusing it would leave him with such a title. The outcome of the application for rectification would therefore directly affect his title. In the present case, as the Adjudicator correctly identified, the alteration would not affect title at all, as the Fallons do not have either a paper or a registered title to the disputed strip.
i) In Ground 3 the Council says that the Adjudicator was wrong to say that the issues of title are "bound up with" the question of injunctive relief. I do not think he was wrong. What the Adjudicator said is that this was so "in practical terms" (paragraph 76); as I read this, he did not mean that the injunction had any effect on the paper title but that it had a practical effect on who was de facto entitled to the land. For the reasons I have given this seems to me to be right.
ii) In Ground 4 the Council says that the Adjudicator was wrong to take account of the prospects of the Fallons acquiring title to the land by adverse possession. I have already referred to this. I do not think the Adjudicator relied on this prospect as a reason for not altering the register: the reason for not altering the register was the possibility (or in his view likelihood) of the Fallons already having acquired what I have called a de facto title.
iii) In Ground 5 the Council says that the Adjudicator was wrong to say that the application for alteration should await a decision on injunctive relief in the courts. This seems to me to be another way of putting the main point which I have already rejected.
iv) In Ground 6 the Council says that the Adjudicator was wrong to conclude that the matters referred to constitute exceptional circumstances. I accept, as Mr Din submitted, that many boundary disputes are only triggered where there is an encroachment across the disputed boundary line. But this does not seem to me to prevent the Adjudicator from regarding the facts of this case as "exceptional circumstances". Paragraph 5 covers all instances of mistake in the register of whatever sort, as well as the other grounds for alteration referred to (bringing the register up to date, giving effect to entries excepted from the effect of registration and removing superfluous entries); and what is exceptional must be judged against the whole range of circumstances in which an alteration might be asked for. And even judged against the ordinary case of encroachment over a boundary line the circumstances in which the Council might have lost its right to recover the land can be seen as an exception to the normal case. I therefore consider that the Adjudicator was fully entitled to regard a case where altering the register would only redraw the general boundary in a place which more accurately reflected the paper title but might not more accurately reflect the de facto right to the land as exceptional.
Appeal on costs
"42. (1) In this rule
(a) "all the circumstances" are all the circumstances of the proceedings and include
(i) the conduct of the parties during (but not prior to) the proceedings;
(ii) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(iii) any representations made to the Adjudicator by the parties; and
(b) the conduct of the proceedings includes
(i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(ii) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(iii) whether a party who has succeeded in his case in whole or in part exaggerated his case.
(2) The Adjudicator may, on the application of a party or of his own motion, make an order as to costs.
(3) In deciding what order as to costs (if any) to make, the Adjudicator must have regard to all the circumstances.
(4) An order as to costs may
(a) require a party to pay the whole or such part of the costs of another party and
(i) specify a fixed sum or proportion to be paid; or
(ii) specify that the costs are to be assessed by the Adjudicator if not agreed; and
(b) specify the time within which the costs are to be paid."