REF/2004/0579

REF/2006/0261

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF REFERENCES FROM HM LAND REGISTRY

 

 

BETWEEN

(1)   MICHAEL CAMPBELL MATSON

(2)   MAUREEN MATSON

 

 

Applicants

and

 

(1)   IAN WILLIAM MAYNARD

(2)   FIONA JAYNE DICKSON

Respondents

 

 

Property Addresses: Orchard House, Hambleton Lane, Wass (YO61 4BH) and Stone Garth , Hambleton Lane, Wass (YO61 4BH)

Title Numbers: NYK176473 and NYK240239

 

Leeds Combined Court Centre

19 July 2006

Before: Deputy Adjudicator Ann McAllister

 

___________________________________________________________________________­

 

DECISION ON PRELIMINARY ISSUES PURSUANT TO RULES 31 AND 33 OF THE ADJUDICATOR (PRACTICE AND PROCEDURE) RULES 2003

___________________________________________________________________________

 

 

Introduction

 

 

1.                  The Applicants (Mr and Mrs Matson) are the registered proprietors of Orchard House, Hambleton Lane, Wass (Orchard House). The Respondents (Mr Maynard and Ms Dickson) are the registered proprietors of Stone Garth, Hambleton Lane, Wass (Stone Garth). Mr and Mrs Matson purchased Orchard House in March 1996. Mr Maynard and Ms Dickson were registered as proprietors in September 2000. It seems that this property has been owned by Mr Maynard’s family for some time.

 

2.                  Orchard House lies to the east of a gravelled lane (the Lane) leading from Hambleton Lane to the North to Stone Garth to the south. The Lane is within Stone Garth’s registered title.

 

3.                  The dispute between the parties relates to the precise location of the eastern boundary of the Lane. The dispute was triggered, in broad terms, by the erection of a fence by Mr and Mrs Matson on the western boundary of their property along the length of the Lane in April 1996 and the subsequent removal of this fence by Mr Maynard in September 2003.

 

4.                  On 15 March 2004 Mr and Mrs Matson applied for an alteration of the register of Stone Garth’s title (title number NYK2400239) pursuant to section 65 and paragraph 5(a) of schedule 4 to the Land Registration Act 2002 (the Act). I will refer to this application as the 2004 Application and will examine it in greater detail below.

 

5.                  In summary the basis of this application is that the land to the east of the line A-B shown on the Land Registry Notice Plan forms part of their property and was included in conveyances dated 30 September 1960 and 22 June 1964. By letter dated 10 May 2004 Mr Maynard and Ms Dickson objected to this application. Their objection, again in summary, is that it is not appropriate to alter or rectify the plan since the position of the boundary as shown falls within the general boundaries rule in section 60(1) of the Act. The 2004 Application was accordingly referred to the Adjudicator on 22 July 2004.

 

6.                  On 21 November 2005 Mr and Mrs Matson applied for the exact line of the boundary between their property and the Lane to be determined pursuant to section 60 of the Land Registration Act 2002 and rule 118 of the Land Registration Rules 2003 (the Rules). I will refer to this application as the 2005 Application. Mr Maynard and Ms Dickson objected by letter dated 6 January 2006. The 2005 Application was accordingly referred to the Adjudicator on 13 February 2006.

 

7.                  Both Applications have been beset with difficulties. The costs incurred by both sides are already out of all proportion with the issues in the case. I will summarise, in outline, the procedural steps which have been taken in relation to each Application before dealing with the substantive matters raised at the Case Management Conference on 19 July 2006 which are the subject of this decision.

 

The 2004 Application

 

8.                  Mr and Mrs Matson’s Statement of Case is dated 22 September 2004. This was accompanied by a report prepared by David Pickup FRICS dated 7 September 2004. Mr Pickup’s instructions were to determine the legal boundaries of Orchard House in connection with the First Application. Mr Maynard and Ms Dickson’s Statement of Case is dated 16 November 2004.

 

9.                  On 3 December 2004 this office wrote to both parties stating that the Adjudicator was minded to make a direction under section 110(1) of the Act to the effect that Mr and Mrs Matson begin court proceedings. Mr and Mrs Matson argued that the matter should stay with the Adjudicator. Mr Maynard and Ms Dickson agreed that such a direction should be made, and made this point repeatedly in correspondence.

 

10.              In the event no section 110 direction was made, and directions pursuant to the Adjudicator (Practice and Procedure) Rules 2003 (the Practice Rules) were issued to both parties on 10 February 2005. Mr Maynard and Ms Dickson instructed David J Powell FRICS. His (initial) report is dated 7 March 2005.

 

11.              A pre trial review was held by Deputy Adjudicator Marc Dight on 17 May 2005. Following yet further extensive and protracted correspondence an order was made on 23 June 2005.

 

12.              Mr Powell prepared a report on 20 July 2005. The respective surveyors were able, in due course, to agree a schedule showing areas of agreement and disagreement by 5 December 2005.

 

13.              The 2004 Application was due to be heard on 24 January 2006. On receipt of notification of the 2005 Application, the Deputy Adjudicator decided that this hearing be adjourned.

 

14.              By order dated 2 June 2006 I required the parties to provide skeleton arguments in both Applications on various matters, including whether or not the Adjudicator has jurisdiction to determine that the boundary is not as shown on the Plan enclosed with the notice sent to the Respondents by the Land Registry in relation to the 2005 Application, but is elsewhere, and dealing with the relationship between the two Applications.

 

 

The 2005 Application

 

15.              The 2005 Application was accompanied by a plan (described by the Land Registry as Plan 1) showing the boundary as being between the letters C-D-H-I-L. The letter to Mr Maynard and Ms Dickson dated 7 December 2005 from the Land Registry stated that, if the application was completed, the exact line of the boundary would be determined as being in the position set out on this plan, and that their existing title plan would be replaced with a new plan (Plan 3). An entry would also be added to the register of their title to the effect that the exact line of the boundary of the land in their title lying between the points A-B-C on the title plan is determined under section 60 of the Act as shown on the plan lodged with the application to determine the boundary dated 21 November 2005.

 

16.              Mr Maynard and Ms Dickson objected by letter dated 6 January 2006. Their primary position is that they are content to have a general boundary only, and that there is there no power under the Act to impose a determined boundary against the will of the objector. Alternatively they take issue with Plan 1 saying that it does not comply with the Land Registry guidelines on determined boundaries. Their third argument is that in any event the Registrar (and consequently the Adjudicator) can only accept or reject the application as it stands, and that there is no power to make a finding that the boundary is somewhere other than as contended for by the applicants.

 

17.              As stated above the matter was referred to the Adjudicator on 13 February 2006. Since that date no steps have been taken in the reference, other than the directions made by me on 2 June 2006, and the steps taken to comply with those directions.

 

 

The Case Management Conference

 

18.              Two distinct issues arise, at this stage, in these references:

(1)               The first is whether the 2004 Application can sensibly proceed to trial given (i) the argument advanced by Mr Maynard and Ms Dickson that, in any event, the alteration sought by Mr and Mrs Matson to the filed plans will come within the general boundaries rule set out in section 60(1) of the Act and/or (ii) the existence of 2005 Application;

(2)               The second issue is whether I have the power to determine the 2005 Application in circumstances where (i) the respondents to the application object to a determined boundary and are content to have a general boundary and (ii) in the event that the true line of the boundary is found to be elsewhere than that shown by the applicants on Plan 1.

19.              The answer to the last point will not, of course, determine at this stage whether or not the case should go to trial. It may well be that Mr and Mrs Matson will succeed in establishing that the boundary is where they contend that it should be by reference to Plan 1. But as the point has been raised and it is clearly of some importance I propose to deal with it now. Nor am I am not in a position to determine at this stage whether or not Plan 1 complies with the Land Registry guidelines.

 

20.              I have had helpful and detailed skeleton arguments on both sides, and submissions from Mr Elgot of Counsel who appeared on behalf of Mr and Mrs Matson, and from Mr Maynard and Ms Dickson who appeared in person. I propose to deal with both matters as preliminary issues pursuant to Rule 31 of the 2003 Rules, and to make a substantive decision without a hearing pursuant to Rule 33. This course is acceptable to both parties.

 

 

 

The 2004 Application: Rectification

 

 

21.              In October 2003 Mr and Mrs Matson asked for a re-survey of their property. Their title plan showed a frontage of about 130 feet: they claimed that their deeds and the position on the ground showed the frontage to be 140 feet. A further survey was carried out by Ordnance Survey in November 2003. There was then considerable correspondence between the Land Registry and Mr Maynard and Ms Dickson.

 

22.              In a letter dated 9 December 2003 the Land Registry explained that the 1979 edition and 1995 revision of the Ordnance Survey maps showed the physical boundary (the hedge) in a position some 1-2 metres to the southwest of the position in the recent survey. The 1902 edition of the map showed the physical boundary in a position virtually identical to that surveyed. The letter continued by saying that the proposed replacement of the title plan was intended to be an alteration under paragraph 5(b) of schedule 4, ie bringing the register up to date. The letter stated in terms that the proposal was not intended to amend the extent of land shown in the registered title. The correspondence continued thereafter.

 

23.              The 2004 Application was made by letter dated 15 March 2004. The letter states that the existing title plans are incorrect because they were prepared on a distorted OS base which significantly misrepresents the position of the boundary on the ground between Orchard House and the driveway leading to Stone Garth. The map of the locality had been revised by the OS in November 2003 and accordingly Mr and Mrs Matson asked that the title plans for both properties should also be revised so as to represent more accurately the boundary. The application was described as an application for rectification.

 

24.              On 23 March 2004 the Land Registry wrote to Mr and Mrs Matson asking them to confirm that the red edging on the plan accompanying the letter of 15 March was intended to extend slightly to the west of the black line A-B (that is to say, the line plotted as a result of the recent Ordnance Survey inspection). The letter also asked for details of the costs which Mr and Mrs Matson were seeking from the Land Registry. By letter dated 31 March 2004 Mr and Mrs Matson confirmed that the red edging on the plan submitted by them was to extend slightly to the west of the A-B line so as include their access gate, and stated that they estimated that their costs would be about £2,500. Notwithstanding the fact that the initial application was not in Form AP1 the Land Registry were prepared to accept it as an application for rectification. On 8 June 2004 the Land Registry sent a further plan to Mr Maynard. The covering letter stated that the access gate was not clear on the notice plan, and that the copy enclosed showed the plan with a green arrow.

 

25.              Mr and Mrs Matson maintain that the width of the Lane on the ground is 3.5m (or 11’ 6’’). On the existing title plans the width is shown as 5m (16’ 4’’). In the recent agreed/disagreed schedule, Mr Pickup, Mr and Mrs Matson’s surveyor, says the width of the Lane at the northern end is 3.6 m. Mr Powell, for the respondents, says that the width near the side gate is 4.06m, halfway down the Lane 4.16m and at the southern end of the Lane 3.90m. The average therefore is 4.04m. He also says that the gap scales at 4.6m from his mapping analysis. It is his view that all these discrepancies fall within the general boundaries rule. As I shall explain further below Mr Pickup agrees with this.

 

26.              As stated above, the 2004 Application was made pursuant to paragraph 5(a) of schedule 4. This paragraph allows the alteration of the register for the purpose of correcting a mistake. In such a case, where the alteration also prejudicially affects the title of the registered proprietor, the alteration is described as rectification. A person is only entitled to be indemnified by the Registrar for loss sustained as a result of rectification of the register. Paragraph 5 of schedule 4 allows an alteration to be made in three further circumstances: (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.

 

27.              The changes made by the 2002 Act therefore centre on the distinction between alteration which involve correcting mistakes in the register to the prejudice of registered proprietors and other alterations.

 

28.              By paragraph 6(2) of the schedule no alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to 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.

 

29.              Thus if the alteration involves the correction of a mistake and it prejudicially affects the title of a registered proprietor, the Registrar (and accordingly the Adjudicator) may not make this alteration without the proprietor’s consent unless he has either by fraud or negligence caused the mistake or it would be for any other reason unjust for the alteration not to be made. This might be the case, for example, where the registered proprietor is the unintended beneficiary of a mistake which leaves him in the position of having a ransom strip (as happened in James Hay Pension Trustees Ltd v Cooper Estates Ltd [2005] EWHC 36). These restrictions do not apply to cases of alterations to bring the register up to date, to remove superfluous entries, or give effect to an alteration of estates, rights or interests excepted from the effect of alteration because these alterations do not involve prejudice to the proprietor or involve giving effect to rights to which the land was already subject.

 

30.              At this point it is necessary to refer to the general boundaries rule. Section 60(1) provides that the boundary of a registered estate as shown for the purposes of the register is a general boundary unless shown as determined. Subsection (2) provides that a general boundary does not determine the exact line of the boundary. The provision as to general boundaries in the previous legislation was found in rule 278 of the Land Registration Rules 1925.

 

31.              Both surveyors agree that (i) OS maps (used by Land Registry to prepare title plans) have accuracy limitations (ii) that title plans do not show exact or precise boundaries. Most importantly, Mr Pickup has stated that he is not trying to go behind the general boundaries rule or to impose precise boundaries around Orchard House. Use of the amended OS plan would still, he says, fall within the general boundaries rule but would show the position on the ground more accurately than the current plan.

 

32.              On this basis it seems to me that Mr Maynard and Ms Dickson must be correct when they says no area or parcel of land can or has been identified that is to be removed from their title and placed in the Matsons’ title. The correct general boundary features have been shown: namely the Lane (in the respondents’ title) and Orchard House (in the applicants’ title). I do not see, therefore, how a claim under paragraph 5(a) of schedule 4 can be sustained. There is no mistake on the title plan which needs to be corrected.

 

33.              I also agree that one of the difficulties which has beset this reference is a lack of clarity on the part of Mr and Mrs Matson and their advisors as to whether they were properly seeking rectification (in the sense intended by the Act) or merely seeking to bring the register up to date by replacing the existing OS plan with a revised one. I have no doubt that the application was under paragraph 5(a) (correcting a mistake). This is clear from the Land Registry correspondence, the case summary and the statement of case. But it is not helpful to read, for instance, the letter from Mr Pickup dated 8 June 2005 to this office stating that the application is merely a correction of the Title Plan using the current published OS plan. No boundaries, he said, are being moved and no land is being taken from the objectors.

 

34.              At the heart of this dispute is the question of whether the legal boundary between Orchard House and the Lane is to be found. This question cannot be answered by replacing one OS plan with another on the register if, as it plainly the case, the area in dispute remains covered by the general boundaries rule. General boundaries may, but will not necessarily, show legal boundaries. They are not intended to show legal boundaries.

 

35.              The position was considered by the Court of Appeal in Lee v Barrey [1957] Ch 251 and subsequently in Hambrook v Fox (unreported) 8.3.1993 and Cutlan v Atwell (unreported) 30.11.1994 where it was said that there may be cases where the court will be assisted by looking at the title plan to determine the boundary. More recently the point has been considered in Michael John Hunt v Weston Homes Plc [2003] EWHC 2546 where Peter Smith J held that on the facts before him the title plans were of no assistance in determining the location of the boundary. In this case, as I have said, the experts accept that they are not precise enough to be used to determine the boundary.

 

36.              So, even if the 2004 Application were to be treated merely as an application under paragraph 5(b) (bringing the register up to date) it would not of itself assist in determining the exact line of the legal boundary. But again I agree with Mr Maynard and Ms Dickson that the applicants’s application goes further than this: the plan attached to the letter dated 15 March 2004 and enclosed with the report dated 7 September 2004 attempts to show a defined boundary which deviates from the OS plan.

 

37.              It was no doubt because of these difficulties that the 2005 Application was made. Mr Elgot rightly stated that the revision of the plans is a matter of form, and that the real issue between the parties is the position of the legal boundaries. Nonetheless he argued that the application was necessary because the former OS plan was misleading and was so misleading as to lead to the dispute. Moreover, as I understand his case, he argues that the 2004 Application should proceed to trial. I have to say that I really see no point in this.

 

38.              I should add that I do not agree that the two applications are necessarily inconsistent: an application to remove part of one title under paragraph 5(a) of schedule 4 could stand alongside an application for a determined boundary. But in this case, as I have stated, there is in reality no such application since both sides are agreed that such changes as may be made to the title plans would fall within the general boundaries rule. Certainly it is not possible to have both a general and a determined boundary.

 

39.              In my judgment the correct course to take is to order the Chief Land Registrar to cancel the application dated 15 March 2004 and I so order.

 

 

The 2005 Application: Determined Boundary

 

40.              Section 60(3) provides that rules may be made enabling or requiring the exact line of the boundary of a registered estate to be determined. The relevant rules are to be found in part 10 of the Rules.

 

41.              A boundary may be determined either on application or by the Registrar without application. A proprietor of a registered estate may apply: see rule 118(1). The application must be made in a specified form (Form DB) and must be accompanied by a plan, or a plan and verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map and evidence to establish the exact line of the boundary.

 

42.              The Land Registry’s detailed and exacting requirements as to what is required are not contained in the Rules but are set out in Practice Guide 40. In particular measurements need to be both precise and accurate to 10mm and should be taken from at least two defined points on surrounding permanent features.

 

43.              Rule 119 provides that where the Registrar is satisfied that (a) the plan (or plan and description) identifies the exact line of the boundary claimed (b) the applicant has shown an arguable case that this is the exact line of the boundary and (c) he can identify all the owners of the land adjoining the boundary to be determined, then he must give notice to all the owners of adjoining land. There is no need to give such notice where the evidence supplied includes an agreement in writing as to the exact line of the boundary with an owner adjoining the boundary (Rule 119(2)). Time limits are then given for any objection to be made. Rule 119(6) provides that unless an objection is made within the time fixed the Registrar must complete the application.

 

44.              If there is an objection then, in my judgment, the matter will be dealt with in the usual way under section 73 of the Act. Rule 120 provides that where the Registrar completes an application under rule 118, he must make an entry in the individual register of the applicant’s registered title and any registered title affecting the other land adjoining the determined boundary stating that the exact line is determined under section 60 and add such particulars as he deems appropriate to the title plans.

 

45.              Mr Maynard and Ms Dickson’s primary case is that the Registrar (and accordingly the Adjudicator) has no power to determine a boundary in the event that a recipient of a notice objects. They argue that the rules do not provide for the situation where there is an objection. The position is to be contrasted to the position where the Registrar determines the exact boundary without an application under rule 122. As they put it, the supremacy of general boundaries means that it is perfectly lawful for a registered title holder to decline to have the exact boundary determined on the basis that they are content with the general boundaries. They also make the point the exact line of a boundary as determined for the purpose of the register is a creature of statute, distinct from a declaration as to where the legal boundary lies.

 

46.              I do not agree with this analysis. Rule 119(6) specifically refers to the situation where there is no objection. If there is an objection then I see no reason, either in principle or by reference to the wording of the legislation, why section 73 does not apply. If the matter cannot be disposed of by agreement, then the objection is to be referred to the Adjudicator. The Adjudicator is then empowered to determine the matter referred to him: see section 108(1) (a).

 

47.              I also note that paragraph 3.3.3 of Practice Guide 40 clearly envisages that there may be a need to resolve a disagreement over a determined boundary application. The comment is made that such an application is not the solution to a boundary dispute. I do not agree with this comment if it is intended to mean that a boundary can never be fixed by the process of adjudication.

 

48.              This leads to the second objection, namely that the jurisdiction of the Adjudicator is limited to either accepting or rejecting the proposed determined boundary, and that he has no jurisdiction to find the boundary to be somewhere other than that proposed boundary.

 

49.              In my judgment it is correct to say that the jurisdiction of the Adjudicator is limited to either accepting the determined boundary application or rejecting it. If it is accepted, then the Registrar will be directed to give effect to it.

 

50.              If it is rejected, it seems to me that the position is more complex. The Adjudicator will have to give reasons for rejecting the application. The only sensible reason, it seems to me, is that the true line of the boundary is not where the applicant claims it to be, but somewhere else. Having therefore determined where the boundary is, the Adjudicator will make findings of fact to that effect. Those findings, in my judgment, will be binding on the parties. Either party could then make an application for a determined boundary based on those findings, so long as sufficient evidence and technical details were produced to satisfy the Land Registry. In the alternative the boundary as found could be put before the Registrar in the same way as any order made by the Court as to the position of the boundary.

 

51.              Mr Maynard and Ms Dickson argued that the very fact that the application must either be accepted or rejected supports their argument that the process of determining a boundary for the purpose of the Act must be consensual. They argue that only courts can determine boundary disputes.

 

52.              To restrict the jurisdiction of the Adjudicator to a simple yes or no outcome would, in my view, be unduly restrictive and contrary to good sense. The Adjudicator will have had (almost always) the benefit of a site view. He will have heard expert evidence and argument. An outcome which is to the effect that the applicant has to keep trying in order to ensure that the application is correct (so as to satisfy the Land Registry and so as to defeat any objection) is plainly undesirable. The underlying issue is the true position of the boundary. That is what is being sought when an application for a determined boundary is made. This boundary will be both a boundary for Land Registration purposes and a legal boundary. If the Adjudicator is in a position to make this determination, then a further application to the Land Registry, though necessary, becomes a formality. There are many instances where the Adjudicator has to make findings of fact or determinations of law in order to resolve the underlying dispute which was the subject of the original (disputed) application. These findings will be binding even if it is necessary to obtain (in some cases) further relief from the Court (such as damages for trespass).

 

53.              Of course, it is always open to either party to issue proceedings at any time. Rule 10 of the 2003 Rules will then apply. In the event that this course is taken (and subject to any representations made) the 2005 Application would be stayed pending the outcome of those proceedings.

 

54.              I should just add this. The experts have already been able to agree on a large number of points, and have narrowed the issues considerably. The costs of taking this matter to a hearing (whether by the process of adjudication or in the court) will be considerable. I remind the parties of their obligation to help the Adjudicator to further the overriding objective and of the wide discretion as to costs. I very much hope that the parties and their experts will be able to find a resolution to this unhappy litigation without the need for a further hearing.

 

55.              In any event, I give the following directions:

 

(1)               The evidence in the 2004 Application is to stand as evidence in this application;

(2)               The applicants do have permission to file and serve such further evidence (if any) as advised in support of 2005 Application by 5pm on 8 September 2006;

(3)               The respondents do have permission to file and serve expert evidence in reply to Plan 1 (accompanying the notice dated 7 December 2005) and such other evidence as may be relevant by 5pm on 29 September 2006;

(4)               The parties’ respective experts shall meet no later than 13 October 2006 with a view to narrowing the issues between them and shall file and serve by 27 October 2006 a joint statement identifying those issues upon which they are agreed and upon which they disagree and giving brief reasons for them;

(5)               The case is to be listed with a time estimate of 2 days including a site visit.

 

56.              I will reserve any costs application which may be made to the end of the forthcoming hearing.

 

 

 

By Order of the Deputy Adjudicator

 

 

ANN McALLISTER

Dated this 17 day of August 2006