If, on an application to determine a boundary pursuant to s. 60(3) Land Registration Act 2002, a Judge of the FTT concludes that the plan upon which the application is based does not accurately plot the point of junction can he then go on to determine its true position ?

02 March 2016

Minority interest -  perhaps – but according to HHJ Dight, sitting as a Judge of the Upper Tribunal in Murdoch v Amesbury [2016] UKUT 3 (TCC), the answer in “No.”

This was an archetypal boundary dispute, the width of the land in dispute was a matter of inches. As we all know, those inches can sometimes be significant in context. In this case they were not !

HHJ Dight took what he acknowledged was the restricted view that an application to determine a boundary concerned only the marking with absolute precision (to the nearest 10 mm) of the position of the boundary on the plan in support of which the application was made. Not, as one might foolishly have inferred from the name, to determine the true position of the boundary between the plots in question. Consequently, because the Residential Property Division of the FTT has no original jurisdiction in such matters (it can only determine the matters which are referred to it by the Land Registry), once the Judge had concluded that the plan did not accurately depict the boundary her function was complete.

The decision flows from the Judge’s approach to the scope of ‘the matter’ which had been referred for decision by the Land Registry. To that extent the decision seems inconsistent with the decision of the High Court in Jayasinghe v Liyanage [2010] EWHC 265, which concerned the Adjudicator’s jurisdiction to determine whether a party had a beneficial interest in land, and of the Court of Appeal in Silkstone v Tatnell [2011] EWCA Civ 801. In the latter case Rimer LJ held in relation to an objection to the registration of an easement against the title to property that: “…'the matter' referred to the adjudicator was one that required him to decide the underlying merits of the objection.”  Where, as is generally the case, the objection to an application to register a determined boundary is founded upon a dispute as to the true position of that boundary, it would seem absurd to suggest that the Judge could or should determine the application without also determining the true position of the boundary and so create an issue estoppel in favour of the successful party in relation to that question.

The decision also ignores:

  •  The fact that the Tribunal Judge has power to give directions as to the entries to be made on the Register from which it is to be inferred that the Judge may make decisions which are further or other than those comprehended by the original application and objection; and
  • The extended terms of the overriding objective as set out in the Tribunal’s rules which include within the definition of ‘dealing with matters justly’: (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; and (e)  avoiding delay, so far as compatible with proper consideration of the issues.

Whatever the merits of these considerations, in the immediate term, the sensible advice is that where there is a dispute about the position of the boundary between two properties the better course is likely to be to file an application for the alteration of the Register so that it more accurately reflects the true position of the boundary rather than make an application to determine the boundary.