REF/2005/1604

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

THE TRUSTEES FOR METHODIST CHURCH PURPOSES

Applicant

and

 

GEORGE WILLIAM CHILD

Respondent

 

Property Address: Saffron Garth, Thorne Road, Snaith, Goole, East Yorkshire

 

Title Number: YEA39365

 

Before: Mr Simon Brilliant sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: York County Court, Piccadilly House, 55 Piccadilly, York Y01 9WL

 

On: 14 and 15 November 2006

 

Site inspection: 13 November 2006

 

Applicant’s Representation: Mr Fryer-Spedding of counsel.

Respondent’s Representation: In person.

 

DECISION

 

Adverse possession – charitable settlement of land in 1880 – settlement not enrolled in the High Court and subject to reverter to the settlor if land built on – Mortmain Act 1736 – is the settlement void? – if so have the trustees under the settlement been in adverse possession of the land?

 

Governors of Magdalen Hospital v Knotts (1879) 4 App Cas 324; Webster v Southey (1887) 36 Ch D 9; Churcher v Martin (1889) 42 Ch D 312; Re Lacy [1899] 2 Ch 149; Re Peel’s Release [1921] 2 Ch 218; Powell v McFarlane (1977) 38 P&CR 452; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; Smith v Waterman [2003] EWHC 1266 (Ch);

 

Introduction

 

1. The applicant, the Board of Trustees for Methodist Church Purposes (“the Board”), claims that it is entitled to be registered as the first proprietor of certain land in Snaith (“the disputed land”) by virtue of having been in adverse possession of it. Mr Child, the respondent opposes this claim.

 

2. The Board is a body corporate with perpetual succession and with the power to acquire and hold land. It was constituted by section 3 of the Methodist Church Act 1939. By section 10 of that Act, it is given power to receive and hold property as trustee and custodian trustee upon trusts connected with the Methodist Church. Being a custodian trustee, its function is to hold the title to properties belonging to the Methodist Church. The day to day management of those properties is left in the hands of managing trustees.

 

The dispute

 

3. The dispute between the parties has arisen in somewhat unusual circumstances. By an indenture dated 6 May 1880 (“the 1880 indenture”) Mr Thomas Brocklebank (“Mr Brocklebank”) settled the disputed land on certain trusts for the benefit of the local Methodist Church clergy.

 

4. The Snaith & Selby Circuit of the Methodist Church (“the Circuit”), which administers the disputed land, became concerned a few years ago that the indenture was void for infringing the Mortmain Act 1736. It was apprehended that, in those circumstances, title to the disputed land might have reverted to the descendants of Mr Brocklebank. It very properly wrote to a large number of such descendants, drawing their attention to the problem and enquiring whether a waiver would be given in exchange for a modest sum of money.

 

5. It has not proved possible to reach agreement with all the descendants of Mr Brocklebank. Mr Child is the great-great-great-great nephew of Mr Brocklebank. On 20 June 2005, he was granted probate of all the estate unadministered of Mr Brocklebank. He is of the view that, whether or not the 1880 indenture was void, he should be registered as the first proprietor of the disputed land.

 

6. The Board believes that it can rectify this uncertainty as to the title to the disputed land by being registered as proprietor on the basis of over 12 years adverse possession. There is old case law, referred to below, suggesting that time begins to run against the settlor as soon as he discontinues possession pursuant to a void indenture.

 

7. The Board applied to Land Registry to be registered as the first proprietor of the disputed land by an application in form FR1 dated 11 July 2005 (“the original application”). Mr Child objected to the original application by a letter dated 21 July 2005. He clarified his objections in a letter dated 10 August 2005.

 

8. Land Registry considered one of his objections properly arguable. This was that those in possession of the disputed land have always had permission or a licence to occupy it. Land Registry considered that the other objection was groundless. This was that Mr Child and 3 others had validly appointed themselves trustees of the disputed land by a document received by the Reverend Wilson on 14 July 2004 (“the 2004 retirement deed”).

 

9. As the parties could not resolve the dispute raised by Mr Child’s arguable objection, it was referred to me on 14 October 2005 under section 73(7) of the Land Registration Act 2002.

 

10. Prior to the making of the original application, Mr Child and 3 others applied to Land Registry to be registered as the first proprietors of the disputed land by an application in form FR1 dated 29 September 2004. But that application was withdrawn after objection by the Circuit. The only dispute I can decide is whether or not the Board should be registered as proprietor. I have no jurisdiction to direct Land Registry to register Mr Child as the proprietor. Accordingly, I do not have to consider Mr Fryer-Spedding’s interesting argument that, under the Inheritance Act 1833, the real property of a person dying intestate at the time of Mr Brocklebank’s death in 1883 devolved directly to his heir or heirs: and not his personal representative.

 

The issues

 

11. The principal issues before me are as follows:

 

(1) Is the 1880 indenture void for infringing the Mortmain Act 1736?

 

(2) If so, can the Board demonstrate that it has acquired title to the disputed land by virtue of having been in adverse possession of it?

 

The witnesses

 

12. Mr Fryer-Spedding called:

 

(1) Mr Stanley Platt, who has held responsible office in the Circuit for many years, including treasurer and property steward. He is well acquainted with the disputed land.

 

(2) Mr George Ramsey, now in his eighties, who has worshipped at Snaith Methodist Church all his life and who is also well acquainted with the disputed land. He has also held responsible office in the Circuit and sat on various committees.

 

13. Mr Child made detailed submissions to me. He did so on oath, so that any factual matters which arose would count as evidence. He was not cross-examined.

 

The geography of the disputed land

 

14. The disputed land is known as Saffron Garth and is a strip of land, running south to north, situated between Thorne Road and George Street in Snaith, Goole, East Riding of Yorkshire. Its area is about 3 roods (three-quarters of an acre). It lies immediately to the west of a strip of land of the same length, but of greater width, on which is situated Snaith Methodist Church (“the church”), which was built in 1862, and a community centre which was built as a school in 1848.

 

15. The disputed land can be divided into 3 sections:

 

(1) At the southern end, abutting Thorne Road, is a well kept grassed area (“the green land”) which is used for activities connected to the church, such as car parking and garden parties. The cost of maintaining the green land is shared between the church and the Circuit.

 

(2) In the middle, there is an area containing 6 allotments, which are licensed to local people (“the yellow land”). The licence fees are paid to the Circuit.

 

(3) At the northern end, abutting George Street, is a bungalow standing in its own grounds (“the blue land”), which is let out on assured shorthold tenancies. The rent is paid to the Circuit.

 

16. The green land is enclosed at the south by a wall and railings. A large sign identifying the church and the community centre is erected on the green land behind this wall. The west side of the green land is enclosed by the hedge and fence of the houses to the west. The north side of the green land is enclosed by a hedge. The east side of the green land is partly open where it meets the car park in front of the church and is partly enclosed by a hedge.

 

17. The south side of the yellow land is enclosed by a hedge. The west side of the yellow land is enclosed by the hedges and fences of the houses to the west. The north side of the yellow land is enclosed by a fence. The east side of the yellow land is partly open, where it meets a path which runs south to north along the whole of the east side of the disputed land, and partly enclosed by a hedge.

 

18. The south side of the blue land is enclosed by a fence. The west side of the blue land is enclosed by the hedge of the house to the west. The north side of the blue land abuts George Street where it is partly fenced and partly open to enable a car to be driven from the street into the bungalow’s garage. The east side of the blue land is enclosed by a fence.

 

19. The above is a description of the disputed land as it now is. In 1880, its appearance was very different. It was agricultural land, believed to be arable.

 

The 1880 indenture

 

20. The 1880 indenture was made between Mr Brocklebank, as settlor, and 3 original trustees, Mr Baxter, Mr Bowman and Mr Latham (“the original trustees”). The disputed land was conveyed to the original trustees on trust. The terms of the trust were that the disputed land should be let out at a reasonable rent and the net income paid to the local Methodist minister or ministers. I shall call this trust “the Brocklebank trust”, and the trustees from time to time “the Brocklebank trustees”.

 

21. Mr Child made a number of clear and carefully prepared submissions to me. One of the principal submissions to me was that he was a beneficiary under the Brocklebank trust. He relied upon a line in the typed transcription of the 1880 indenture which appears at page D(1)(3) of the trial bundle. This reads, “To the use of the said Thomas Brocklebank his heirs and assigns for ever”.

 

22. But that passage comes from a preamble reciting an earlier indenture, dated 1879, whereby the disputed land was subject to a power of appointment by Mr Brocklebank. In default of any appointment, a life interest was given to Mr Brocklebank with remainder as set out in the line quoted above. But Mr Brocklebank subsequently used his power of appointment with the intention to create the Brocklebank trust. So, assuming for the present that the appointment was valid, any entitlement of Mr Brocklebank’s heirs to the disputed land thereby terminated.

 

23. I therefore find, as a matter of construction, that Mr Child was never a beneficiary under the Brocklebank trust. In my view, it is this mistaken belief that he was a beneficiary which has led Mr Child to see this dispute in somewhat personal terms. It has also lead to his criticisms of the activities and decisions over the years of the Brocklebank trustees and of the Circuit, especially the suggestion that they have not acted in good faith. I do not believe can these criticisms are objectively justified.

 

24. The original trustees covenanted on behalf of themselves and their successors not to build on the disputed land (“the building covenant”). Mr Brocklebank granted the original trustees a determinable fee simple. It was expressly provided that the estate granted would determine in breach of the building covenant.

 

25. Power to appoint new trustees was expressly given to Mr Brocklebank and, after his death, to the local Methodist Church minister or ministers. It was expressly provided that the number of trustees should not be reduced below 3 or increased above 4. It is common ground that since 1880 there have been periods of time when the number of trustees has fallen below 3 or has exceeded 4.

 

26. Mr Child’s first submission to me was that this deficiency or excess of trustees has had important consequences. As I understood his argument, this meant that the local Methodist Church minister or ministers had lost the power to appoint further trustees or even that the whole trust had come to an end. This is because the clause dealing with the appointment of trustees is prefaced by the words “Provided always”. This will be found in the typed transcription of the 1880 indenture which appears at page D(1)(5) of the trial bundle.

 

27. These words appear just after the place in the indenture where the objects of the trust are set out. Mr Child argues that these words amount to a proviso governing the carrying out of the objects of the trust. I am unable to accept that submission. It seems to me that the words “Provided always” simply provide a link to the part of the indenture containing the power of appointment and do not amount to a proviso governing the carrying out of the objects of the trust. I do not consider that the number of the Brocklebank trustees who have, from time to time, been appointed affects any of the issues I have to decide.

 

28. On 9 August 1880, the 1880 indenture was registered at the West Riding Registry of Deeds at Wakefield. It is common ground that the 1880 indenture was never enrolled at the Enrolment Department at the Central Office of the Supreme Court.

 

Events after 1880

 

29. Mr Brocklebank died in 1883. At the hearing, I was shown a copy of a lease dated 12 April 1882, whereby Mr Brocklebank demised the disputed land to Mr Latham, one of the original trustees, for one year and then from year to year, determinable by either party on 6 months’ notice. This is an extraordinary document, wholly inconsistent with the Brocklebank trust. Whether or not that document was ever acted upon no one could tell me, but it is plain that by 1916 Mr Brocklebank’s heirs had discontinued possession of the disputed land.

 

30. I say this because by an indenture dated 26 January 1916, the local Methodist Church minister appointed 3 new trustees to replace 2 of the original trustees who had died. It is clear, therefore, that at that time the disputed land was being used for the purposes of the Brocklebank trust.

 

31. The Methodist Church Union Act 1929 set out a new model deed of trust for property belonging to the Methodist Church. By a declaration, dated 19 December 1938, the Brocklebank trustees declared the disputed land to be held on the trusts of the new model deed. By a memorandum, dated 25 January 1939, a number of new trustees were appointed. By a memorandum, dated 4 December 1957, a number of new trustees were again appointed.

 

32. The Brocklebank trustees continued to let the disputed land out for agricultural purposes right up to 1960 when the last tenant, Mr Woods, decided that the disputed land was too narrow for modern farming.

 

33. It was in about 1960, after Mr Woods ceased farming, that the disputed land was divided up into 3 parts as explained above. The green land was laid out to grass. The yellow land and the blue land were both laid out to allotments, which were licensed out to local people. The licence fees were paid to the Circuit.

 

34. In 1972, the bungalow was constructed on the blue land as a manse for the local Methodist Church minister. The Circuit paid it for. On 19 April 1973, the Brocklebank trustees granted a 99 year lease of the bungalow and the blue land to the trustees of the Circuit. In 1984, an extension was added to the bungalow, also paid for by the Circuit. In 1992, the Circuit paid for central heating to be installed. Since 1996 the bungalow has been let out on assured shorthold tenancies and the rent paid to the Circuit.

 

Is the 1880 indenture void for infringing the Mortmain Act 1736?

 

35. The Mortmain Act 1736 (“the 1736 Act”) restricted the manner in which trusts of land could be established for charitable purposes. In particular:

 

(1) the deed creating the trust needed to be enrolled in the High Court of Chancery within 6 months of its creation;

 

(2) there must be no power of reservation to the grantor or any one claiming under him.

 

Enrolment

 

36. The High Court of Chancery had ceased to exist as a separate court by 1880. From 6 April 1880, the Enrolment Department of the Central Office of the Supreme Court was the place of enrolment of all deeds which by any statute were directed to be enrolled in any of the courts whose jurisdiction had been transferred to the High Court (RSC April 1880, rr45, 46). (In 1965, this provision became RSC O63 r10. It is now to be found in paragraph 6 of the practice direction to CPR Part 5).

 

37. As I have said, it is common ground that the 1880 indenture was never enrolled in the Enrolment Department of the Central Office of the Supreme Court. It was enrolled in the West Riding Registry of Deeds at Wakefield. Mr Child submits that this satisfies the requirements of the 1736 Act. He relies upon an email to that effect to him from the television presenter, Dr Nick Barratt. I acknowledge that Dr Barratt obtained a PhD in history from King's College London in 1996, editing the 1225 Exchequer pipe roll, and was an understandable port of call for Mr Child in his hour of need. But, in my judgment, the registration of a deed at the West Riding Registry of Deeds did not satisfy the enrolment requirements of the 1736 Act.

 

38. Mr Child submitted that section 9 of the Mortmain and Charitable Uses Act 1888 exempted the need for enrolment. I do not accept that submission. That provision relates only to registered dispositions under the then new land registration system. The 1880 indenture was not a registered disposition. Mr Child also drew my attention to section 5(1) of the Mortmain and Charitable Uses Act 1888, which contains a power to enrol out of time. But not only has no one ever sought to apply for such relief, it is only applicable where the assurance has been for full and valuable consideration (see section 5(2)), which is not this case.

 

Resevation

 

39. Assuming the indenture was valid, the fee simple intended to be granted by the 1880 indenture would have determined in 1972 when the bungalow was built in breach of the building covenant, as explained in paragraph 24 above.

 

40. I am satisfied that this constituted a reservation in favour of the grantor in contravention of the 1736 Act. Mr Child submitted to the contrary, referring me to footnotes (x) and (y) on page 96 of Chitty’s Statutes published in 1911, but I am unable to accept that submission. I must follow the conclusion reached in Webster v Southey (1887) 36 Ch D 9, where the reservation to the grantor of what Kay J described as “something in the nature of a right of pre-emption if the prescribed use of the building to be erected should be discontinued”, infringed the 1736 Act.

 

41. Mr Child argued that there was no reservation to the settlor in the 1880 indenture because the disputed land was always held to his use. But as I have already explained, Mr Child was not a beneficiary under the 1880 indenture.

 

42. Although there were a number of statutory exceptions to the requirements of the 1736 Act, such as trusts benefiting certain universities, there does not appear to be one saving the 1880 indenture. Mr Fryer-Spedding, who has conducted his case with both fairness and courtesy to Mr Child, has researched the statutory exceptions and brought them to my attention and I am satisfied that there are none in point.

 

43. Section 3 of the 1736 Act provided that any conveyance which failed to comply with the requirements of that Act, “shall be absolutely, and to all Intents and Purposes, null and void”.

 

44. Mr Child drew my attention to a paragraph in counsel’s Advice in 2004 suggesting that where an indenture retains a possible benefit to the settlor in the context of a charitable trust, the indenture would not automatically be void under the 1736 Act. I do not, with respect, agree.

 

45. Mr Child also relied upon the preamble to the 1736 Act, which referred to the mischief of dispositions made by languishing or dying persons. There is no evidence that Mr Brocklebank fell into either of these categories in 1880. But, the operation of the 1736 Act is not restricted in such a respect.

 

46. In my judgement, the 1880 indenture is void for infringing the 1736 Act.

 

Does time run if the 1880 is indenture void?

 

47. Where a conveyance is void for infringing the 1736 Act, time begins to run against the settlor from when he was dispossessed. Authority for this proposition can be found in Governors of Magdalen Hospital v Knotts (1879) 4 App Cas 324; Webster v Southey (1887) 36 Ch D 9; Churcher v Martin (1889) 42 Ch D 312; Re Lacy [1899] 2 Ch 149 and Re Peel’s Release [1921] 2 Ch 218. Because of the curiosity of the 1882 lease, I propose to take 1916 as being a date by which I can be satisfied that Mr Brocklebank’s heirs were dispossessed.

 

Adverse possession

 

48. I shall now set out the law relating to adverse possession. The relevant statutory provisions are as follows. Section 15 of the Limitation Act 1980 (so far as material) provides:

 

(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, …

 

(6) Part 1 of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.

 

49. Paragraph 1 of Schedule 1 to the Act provides as follows (so far as material):

 

Where the person bringing an action to recover land …. has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.

 

50. Paragraph 8 of Schedule 1 to the Act provides as follows (so far as material):

 

(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

 

51. The 2 most important authorities on adverse possession are the decision of Slade J in Powell v McFarlane (1977) 38 P&CR 452 and of the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.

 

52. As Lord Browne-Wilkinson said in Pye at paragraph 36 “The question is simply whether the … squatter has dispossessed the … owner by going into ordinary (my emphasis) possession of the land for the requisite period without the consent of the owner”.

 

53. Possession, however, itself contains 2 separate elements namely:

 

(1) Factual possession consisting of a sufficient degree of physical custody and control.

 

(2) An intention to possess (“animus possidendi” in Latin) being an intention to exercise such custody and control on one’s own behalf and for one’s own benefit.

 

Factual possession

 

54. Lord Browne-Wilkinson expressly agreed at paragraph 41 with the attempt by Slade J to define this in Powell v McFarlane, where he said:

 

“The question what acts constitute a sufficient degree of physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. ... what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”

 

The intention to possess

 

55. In Pye Lord Browne-Wilkinson said at paragraph 42 that once it is accepted that the word “possession” in this context has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess. It is wrong to suggest that an intention to own the land or to exclude the owner as well as other people was required.

 

56. In Pye Lord Hope of Craighead said at paragraph 71:

 

“The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word “adverse” in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one’s own. … So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough.”

 

57. The intention to possess has 2 elements (1) a subjective intention to possess and (2) some outward manifestation of the trespasser’s subjective intention which makes clear that intention to the world at large (see Blackburne J in Smith v Waterman [2003] EWHC 1266 (Ch) paragraph 19).

 

Can the Board demonstrate that it has acquired title to the disputed land by virtue of having been in adverse possession of it?

 

58. The Brocklebank trustees were in possession of the disputed land, as against the heirs or estate of Mr Brocklebank, from at least 1916 and probably very much earlier. They had the necessary intention to possess.

 

59. In the light of the authorities I have cited it is not, in my judgment, open to Mr Child to argue that the Brocklebank trustees were ever in possession of the disputed land with the permission of Mr Brocklebank. Even if Mr Brocklebank could be said to have given a licence, it would have terminated on his death in 1883.

 

60. Since 1874, the limitation period in respect of actions to recover land has been 12 years. There is no question in this case, as Mr Child sough to argue, of any longer period of limitation being appropriate. I therefore find that by 1928, at the very latest, any entitlement to recover the disputed land from the Brocklebank trustees had become statute barred and any interest claimed through Mr Brocklebank had become extinguished.

 

61. Mr Child argues that the Board cannot succeed on adverse possession because it has not acted nec vi, nec clam and nec precario. Such a state of affairs prevents an easement by prescription from arising, but is not relevant to adverse possession. In any case, I have found that the possession was nec precario: it was not with permission. The possession was nec clam: it was very open. Mr Child submitted there was secrecy because he was a beneficiary and he was never informed of important matters affecting the Brocklebank trust. But he was not a beneficiary. The possession was nec vi: it was peaceable and, in any event, force would not matter (see Megarry & Wade 6th ed para 21-018).

 

62. I have explained that by a declaration, dated 19 December 1938, the Brocklebank trustees declared the disputed land to be held on the trusts of the new model deed. Since the Brocklebank trustees had acquired title to the disputed land by that date, the effect was that ever since 1938 the disputed land has been held on the trusts of the new model deed.

 

63. By virtue of section 9(2) of the Methodist Church Act 1976, all land then held on the trusts of the new model deed were automatically vested in the Board on 16 April 1977. Accordingly, it is the Board which is entitled to be registered as first proprietor of the disputed land. It is appropriate in all the circumstances for the title to be absolute title.

 

64. Before I had appreciated the effect of section 9(2) I had entertained doubts as to whether, where the Methodist Church is advancing an adverse possession claim, the Board is the obvious claimant or applicant. I therefore suggested to Mr Fryer-Spedding at the outset that the correct applicant should be the body alleged by him now to be in possession of the disputed land. This is the Circuit. This is consistent with what was said to Land Registry by those instructing him on 13 January 2005, when an objection was made to the earlier application made by Mr Child and others to be registered as the first proprietors of the disputed land.

 

65. As the Circuit is a voluntary unincorporated association, I gave Mr Fryer-Spedding permission to add Mr Ramsey and Mrs Gregory as representing the Circuit as additional applicants pursuant to rule 24(1)(a) of the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003. However, in the light of my finding above that it is the Board which is entitled to be registered as first proprietor, no useful purpose would be served by adding additional parties.

 

The 2004 retirement deed

 

66. Any argument based on the 2004 retirement deed is groundless for the reasons given by Land Registry:

 

(1) Section 19 of the Trusts of Land and Appointment of Trustees Act 1996 does not apply when the instrument creating the trust nominates the person who may appoint new trustees. As explained above, the 1880 indenture does this.

 

(2) Only beneficiaries may give a direction. As explained above, neither Mr Child nor any of the other parties to the 2004 retirement deed is a beneficiary under the 1880 indenture.

 

(3) A beneficiary giving a direction does not automatically become a trustee; the retiring trustee has to take certain steps.

 

Conclusion

 

67. I find that the Board is entitled to be registered as first proprietor of the disputed land with absolute title. Because Mr Child has made repeated criticism of the conduct of the Circuit and of the Brocklebank trustees in the voluminous correspondence I was asked to read in the trial bundles, it is right I say this. There is no doubt there was considerable confusion over the years in the minds of all those involved about the precise legal status of the Brocklebank trust and the disputed land. That confusion appears to have been shared on many occasions by those giving legal advice in years gone by: this does not include those presently instructing Mr Fryer-Spedding.

 

68. I find this confusion entirely understandable, given the complexities involved. I am also quite satisfied that there is no evidence that the Circuit or the Brocklebank trustees have ever behaved other than in an entirely honourable way.

 

Direction and costs

 

69. I shall direct the Chief Land Registrar to give effect to the original application. Costs normally follow the event, and I propose to make an order that Mr Child pays the costs. If he wishes to make a submission otherwise, then he must send his reasons to the Adjudicator, with a copy to the Board’s solicitors, by 4.0pm on 8 December 2006. Meanwhile the Board should by the same date serve on the Adjudicator, with a copy to Mr Child, a final schedule of costs. This should limit the costs to those arising after the date of the reference on 14 October 2005. This means the existing items 1-18 of the statement of costs already served must go. The fact that the hearing did not go into a third day must also be reflected. Mr Child must serve his objections to those costs on the Adjudicator, with a copy to the Board’s solicitors, by 4.0pm on 22 December 2006.

 

 

Dated this 23rd day of November 2006

 

 

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY