Is HHJ Dight’s decision in Murdoch v Amesbury, that the FtT has no jurisdiction to resolve boundary disputes on an application to determine a boundary, good law ? No, says Morgan J in Lowe v William Davis Limited [2018] UKUT 0206 (TCC).

September 10, 2018

I have been keeping a close eye on this one, for reasons which will be obvious if you read the judgment!

The jurisdiction of the Land Registration Division of the FtT is limited by the scope of ‘the matter’ referred to it by HM Land Registry. HHJ Dight’s decision in Murdoch v Amesbury [2016] UKUT 3 threw a counter-intuitive cat among the pigeons which represented the LRD’s understanding of its jurisdiction to determine the position of the boundary between two parcels of land upon an application to determine the position of that boundary.

Sounds stupid, huh ? The difficulty arises because s. 60 LRA 2002 and rr. 118 & 119 LRR 2003 require that the boundary be depicted accurately on the application plan. Given the accuracy required by HM Land Registry of such plans, +/- 10mm, it is hardly surprising that the adversarial process frequently reveals defects. Until Murdoch v Amesbury the FtT had not troubled itself unduly with this technicality and even where it was apparent that the application plan was deficient in some respect had gone on to determine the matter in a broad way by deciding, if possible, the true position of the boundary thereby creating an issue estoppel in that regard between the parties so that the ‘unsuccessful’ applicant could then re-apply on the basis of the decision.

The nub of Morgan J’s decision is this. The question whether to treat an application to dismiss the reference on the ground that the plan is defective without deciding all the other matters which may be in issue, including the position of the boundary at any or all point along its length, is a case management decision for the FtT. Even an admitted deficiency in the plan is not a matter which strikes immediately and necessarily at the heart of the Tribunal’s jurisdiction.

This decision brings a very welcome dose of common sense to the question of the LRD’s jurisdiction to determine boundaries. Caution as to the extent of any issue estoppel which may arise from a decision of the FtT as to the position of the boundary when the application plan is obviously defective is still required though. Morgan J’s decision in Ihenagwa v Onyeneho [2017] EWHC 1971 (Ch) makes it clear that an issue estoppel will only arise in relation to issues and/or facts which are essential to the Tribunal’s decision.

Max Thorowgood