REF/2005/0106

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
DERBYSHIRE COUNTY COUNCIL

APPLICANT

and

(1) GLEN NEIL FALLON
and
(2) TRACY JANE FALLON

RESPONDENTS

Property Address: 18 Ambaston Lane, Shardlow, Derbyshire DE72 2GU
Title Number: DY185906

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Chesterfield County Court
On: 26 and 27 July 2006
And at Procession House on 7 November 2006

Applicant Representation:  Mr. Soofi Din of Counsel, instructed by the Applicant
Respondent Representation: Mr. Martin Strutt of Counsel instructed by Messrs Nelsons

___________________________________________________________________________

DECISION
___________________________________________________________________________

KEYWORDS – Boundary dispute – general boundaries rule – whether alteration of line of general boundary affects the title of a proprietor of a registered estate in relation to adjoining land in his possession – an application to the Chief Land Registrar to correct a mistake on the registered plan as to the boundary is generally inappropriate when the disputed land has been built upon by the adjoining owner until a court has decided whether to grant damages or an injunction against the adjoining owner.

Cases referred to

Lee v. Barrey, [1957] Ch.251
Jaggard v. Sawyer, [1995] 1 W.L.R. 269

1.	This case concerns ownership of an elliptical strip of land on the corner of Ambaston Lane Shardlow which, from rough calculations from the scale plan produced for the purpose of this reference, is in the region of 36 metres long and varies in width between about 2 and 4 metres.  The disputed area appears from the Land Registry plan to be included in the Respondents’ title DY185906, but is claimed by the Derbyshire County Council (“the Council”) to be included in land acquired by it in 1966.  The Council has applied to alter the register of title DY185906 to show the disputed area as excluded from that title.

2.	I originally heard this case on 26 and 27 July 2006 and provided the parties with a draft decision in the middle of August.  Submissions on behalf of the Council which followed included submissions that the Council had not had a proper opportunity to address me on the question whether, having found substantially in its favour on the question of title, I should nevertheless decline to direct the Chief Land Registrar to amend the general boundary as the Council sought.  Having considered those submissions, I directed that there should be a further hearing limited to that issue, and the questions of costs and permission to appeal.  That further hearing was held on 7 November 2006.

The conveyancing history 

1964-1966
3.	In 1964 the whole of the land now owned by the Respondents (“the Fallons”) and the Council consisted of four cottages which were the subject of a clearance order.  Three of the cottages were owned by the trustees of the Will of Sir Henry Sutton (“the Sutton Trustees”) and the remaining cottage was owned by the executor of a Mrs. Wheeler.  The Sutton Trustees were contemplating redevelopment, but the Council became interested in the site in connection with the then proposed Shardlow by-pass.  There was correspondence in 1963 with the planning authority, the South East Derbyshire RDC which indicated that the Council’s requirements for the new by-pass coupled with a 20 feet building line would make development of the rest of the site virtually impossible, but the planning authority appears ultimately to have accepted a 15 feet building line, which made it possible to erect one house on the part of the site which the Council did not require.

4.	At that stage, the major portion of the site was required for highway purposes.  By a report which appears to have been prepared in September 1964, there was a recommendation to the Council that if the site became available the opportunity should be taken to purchase the land necessary to open up viability (stated to be 410 square yards) or if necessary the whole of the site (stated to be 785 square yards).  This recommendation appears to have been approved by the relevant committee on 25 September 1964.

5.	By the beginning of 1965 negotiations had begun for the purchase of part of the land by the Council on the basis that planning permission would be granted for a single dwelling on the remainder of the land.  It is clear that at that stage the old cottages had still to be demolished and there is a letter on the file from a public health inspector to the Council asking if anything could be done by the Council to speed up the demolition process.  

6.	It appears from a letter dated 16 February 1965 that preliminary discussions had taken place with agents for the Sutton Trustees and that it had been agreed that the Council would have no responsibility for any fencing along the new boundary line but that the line should be pegged out so that disposal of the remaining plot for development could proceed.  The county surveyor was asked to arrange for this to be done, and it would appear from a subsequent letter dated 26 March 1965 that pegging out of the new boundary line had then been completed.

7.	It is unclear what part the executor of Mrs. Wheeler played in these negotiations.  His participation was clearly needed in relation both to the sale to the Council and the redevelopment of the remaining land, and I am willing to infer that he must have known in general terms of what was happening and to have been willing to go along with it so that he could sell the cottage to best advantage.

8.	There is no evidence of what may have occurred between March and December 1965, but it appears from a memorandum endorsed on the conveyance of her cottage to Mrs. Wheeler dated 5 July 1954 that by a conveyance dated 24 December 1965 her executor conveyed to Donald William Sharman “the freehold property coloured pink and brown on the plan annexed hereto being part of the within described property”.  The plan annexed is not stated to be to scale, but shows there to have been conveyed to Mr. Sharman part of the site which it had been proposed that a dwelling should be erected.  The plan used appears to have been to the same proportions as a plan subsequently used in 1972 when the developed site was sold on, and the division between the land sold to Mr. Sharman and the other land also appears to be the same on both plans. 

9.	It is clear that Mr. Sharman also acquired from the Sutton Trustees the additional land he needed to build his new dwelling, but there is no record of when this happened and no copy of either the conveyance or any plan used in connection with it.  However, by a planning application in June 1966, Mr. Sharman applied for planning permission to build the new dwelling, describing himself as owner of the whole of the land to which the application related.  In the absence of any evidence to the contrary I consider that, on the balance of probabilities, by June 1966 Mr. Sharman had completed his purchase from the Sutton Trustees.  It is inherently improbable that he would have purchased from Mrs. Wheeler’s executor unless he had already by December 1965 secured the remaining land he needed, and I see no reason to suspect his or his agent’s statement that by June 1966 he was owner of the relevant part of the Sutton Trustees’ land.  

10.	The dimensions on the amended plan annexed to the planning application are relevant in indicating what he or his agent understood him to have purchased.  The curved boundary with the land to be acquired by the Council is shown as having a length of 98 feet and the lengths of the two other sides of the roughly triangular piece of land are given as 67 feet to the north and 77 feet to the east.  A 15 feet building line is shown between the proposed new dwelling and the 98 feet curved boundary.  The plan is stated to be to a scale of 1:500, and the area of his land is stated to be 340 square yards or thereabouts.

11.	Meanwhile, by a contract dated 25 February 1966 the Sutton Trustees and Mrs. Wheeler’s executor agreed to sell to the Council for £1000 land at Ambaston Lane containing an area of 410 square yards or thereabouts edged red and green on the plan annexed to the contract.  A completion date of 11 April 1966 was provided for in the contract.  In fact the subsequent conveyances are both dated 16 August 1966.  Both describe the land conveyed as being more particularly delineated on the annexed plan for the purpose of identification only.  The land conveyed by Mrs. Wheeler’s executive is stated to contain 95 square yards or thereabouts and the land conveyed by the Sutton Trustees is stated to contain 315 square yards or thereabouts.  The total area purportedly conveyed was therefore about 410 square yards.  In both cases, the annexed plan was a 1:500 scale plan prepared by the County Surveyor’s department.  According to the plan the survey was in August 1964 and the plan was drawn and traced in September 1964.  The curved boundary with the land sold to Mr. Sharman is stated on the plans to be 95 feet, and the two other boundaries of what had become Mr. Sharman’s land were described as being 69 feet and 77 feet respectively.

12.	As the Sutton Trustees and Mrs. Wheeler’s executor sold part of the property to Mr. Sharman before anything was sold to the Council, it is clear that they could only convey to the Council what they still had left after the sale to Mr. Sharman.  Counsel for the Fallons has invited me to conclude that land sold to Mr. Sharman included the disputed land, pointing out that the plan referred to by the memorandum on the 1954 conveyance divides the land in essentially the same way as it was subsequently shown to be divided by the 1972 conveyance from Mr. Sharman to a Mr. and Mrs. Ledger, and as it was subsequently registered at the Land Registry.

13.	I cannot accept that submission.  The land which the Council wanted to acquire was identified on a scale plan prepared in 1964.  The boundary was then staked out on the ground so that the vendors knew what they could sell for development and their purchaser knew what he was acquiring.  The measurements on Mr. Sharman’s plan with his 1966 planning application has measurements which correspond very closely with those on the 1964 plan attached to the two conveyances of the remaining land to the Council.  They do not coincide with the area enclosed by the plan attached to the 1972 conveyance or the Land Registry plan.  It appears to me that the boundary between the land conveyed to Mr. Sharman and the land conveyed to the Council was the boundary staked out on the ground in February or March 1965.

14.	Precisely where that boundary ran is now impossible to say.  The approximate position is shown on a plan prepared by Greenhatch Limited on the instructions of the parties to this reference using the measurements on the 1966 conveyances to the Council.  However, that plan was prepared in 1964 before the land was staked out.  The measurements taken on behalf of Mr. Sharman after the land had been staked out are slightly different.  One or both sets of measurements may be slightly wrong, or the staking out in 1965 may not have been in precisely the position intended when the 1964 plan was drawn.

15.	On balance, I conclude that it is marginally more likely that the measurements in Mr. Sharman’s plan were correct as they appear to be on a plan made after the staking out, and therefore presumably by reference to it.  In any event, I do not consider that the Council has established a paper title to the small area of land which would be included within its measurements but excluded using Mr. Sharman’s measurements, so that if I were to conclude that it was entitled to have the Land Registry plan altered, the alteration would be on the basis of Mr. Sharman’s measurements and not those of the Council.

16.	There is no evidence that any step was taken by any party to preserve the boundary line as marked in 1965.  Mr. Sharman appears to have built a dwelling, known as Sharman House, on his land, but, so far as I can tell from the house as it now stands, this was not done precisely in accordance with the 1966 drawing.  He also appears to have acquired a further piece of land to the north of his other land.  

1972-1994
17.	By a conveyance dated 20 April 1972, Mr. Sharman conveyed his property, including the additional piece of land to the north, to a Mr. and Mrs. Ledger.  The conveyance is of specified pieces of land shown on three plans.  Apart from the fact that the property is described as Sharman House, there is no description of it except by reference to the plans, which are not stated to be for purposes of identification.  The first two plans relate to the land acquired from the Sutton Trustees and the executor of Mrs. Wheeler.  The agreed expert evidence shows that these plans include almost all of the disputed strip, and in places a fraction more than the disputed strip, as part of the land purportedly conveyed.  There is no evidence that the new purchasers, or any subsequent purchasers, had any knowledge of how the boundaries had been pegged in 1966 or that they had any other information as to the boundaries.

18.	The property was then resold in 1977 by Mr. and Mrs. Ledger to Mr. and Mrs. Simkin and by a transfer dated 10 June 1988, Mrs. Simkin transferred it to Nigel Shaw and others.  The property so transferred was described as the land comprised in the 1977 conveyance, but that conveyance, like the earlier conveyances to Mr. Sharman, is not in evidence although it was lodged at the Land Registry in December 1989 some months after the property was first registered on 20 February 1989.  This appears to have followed a conveyance of the property by Mr. Shaw and his co-owners to a Mr. Brown.  Finally, in June 1994, the property was transferred, apparently by Mr. Brown although the transfer is not in evidence, to the Fallons.  The property is described as the freehold land shown edged with red on the plan of the above title filed at the Registry and being 18 Ambaston Lane, Shardlow.  The plan is on a scale of 1:1250, enlarged from 1:2500 and shows the boundary of the property in approximately the same position as in the plan with the 1972 conveyance.  The boundary is shown with a dotted line and there is a note on the title plan which reads:

“The boundaries shown by dotted lines have been plotted from the plans on the deeds.  The title plan may be updated from later survey information.”

19.	I infer from the fact that the Land Registry plan shows the boundary in approximately the same position as the 1972 plan that what was sold on after 1972 was the same land that had been described as being sold in the 1972 conveyance.  It is apparent that the Council did not maintain the land acquired by it or do anything to indicate where the boundary came.  It would appear that at least since the mid-1970’s the whole of the front part of the land was maintained as a lawn by the Fallons’ predecessors in title (see, for example, Mr. Shaw’s statutory declaration at pp.264-5 of the trial bundle and Mr. Brown’s letter to the Council dated 14 January 1992 at p.404 in that bundle).  I am not willing to infer, in the absence of any documentation or other evidence, that any information as to the actual 1965/6 boundaries was ever communicated to the successive purchasers from 1972 onwards, although I would expect that enquiries before contract would have been made as to the boundaries, the results of which would have been inconclusive.  

20.	By the time the Fallons acquired the property, the plan for a Shardlow by-pass in the area had been abandoned by the Council and a different by-pass had been built on the other side of the village.  It appears from a statutory declaration sworn by Nigel Shaw and dated 14 February 1989 that the Council’s land had been used and tended by him and his co-owners as an open lawn to the edge of the roadway until they had left the property after agreeing to sell it in January 1989, and that they were not aware of anybody having any claim to the land.   

21.	It would seem that the new owners then erected a fence about 2 feet and 6 inches high around the outside of the Council land, incorporating it into their garden, and that they then claimed to be registered with title by adverse possession.  The claim was rejected by the Land Registry by letter to their solicitors dated 16 January 1991 which referred to the area as a long established lawn maintained by the occupants of 18 Ambaston Lane but considered that the usage shown was insufficient to establish a possessory title.  It appears from a letter dated 17 January 1991 from the then owners’ solicitors that there was also an earlier statutory declaration by Mrs. Simkin covering the period from 15 April 1977 until the sale to Nigel Shaw in 1988.

22.	It was only following this that enquiries seem to have been made of the Council about the land by South Derbyshire District Council and the local parish council enquiring whether the land should be kept open for visibility purposes.  Eventually, in January 1992, following internal enquiries, the Council wrote to Mr. Brown, the then owner of 18 Ambaston Lane, advising that this section of land was the responsibility of the Highways Authority and asking for the fence to be removed as soon as possible.  This provoked a brief exchange of correspondence, but no other action from Mr. Brown, and nothing happened until early 1993 when the Council again wrote asking for the fence to be removed.  Attempts by Mr. Brown to arrange a meeting on site to discuss the position were unsuccessful and by letter dated 20 August 1993 a formal notice was served by the Council requiring its removal on the basis that it had been set up in the highway.  By November 1993, Mr. Brown had removed the fence but not the fence posts.

23.	Somewhat remarkably, the Council made no effort to identify or agree the boundary of its land with Mr. Brown and matters rested until Mr. Fallon wrote to the Council’s Planning and Highway Department by letter dated 7 April 1994, explaining that he was buying 18 Ambaston Lane, asking for the boundaries of the Council’s land to be identified, and enquiring, inter alia, whether he could buy or rent the land.  It was only by letter dated 23 May 1994 that the Council replied, asserting that the land was adopted highway, serving a useful purpose in providing visibility for highway users.  A copy of the plan to one of the 1966 conveyances was enclosed, but the Council stated that it did not have any similar plan showing the land in relation to the new house.  So far as appears from the evidence, including a photocopy of one of the plans in the court bundle, the dimensions to which I have previously referred were illegible on the copy plan supplied to Mr. Fallon and he could not ascertain from it where his boundaries came. 

24.	None of the other information as to the way in which the land was divided in 1965/6 which has been produced by the Council on this reference appears to have been available to the Fallons’ predecessors in title or to the Fallons themselves until 2001 and later.

25.	By letter of the same date, the Fallons’ solicitors wrote to the Council enclosing the Land Registry plan and asking who owned the land between the boundary of the property and Ambaston Lane, to which the Council responded promptly that it owned the land.  While there was correspondence about rights over the land, it is clear that nobody at that time noticed any discrepancy between the Land Registry boundary and the boundary shown on the 1966 conveyance plan.

26.	Although each conveyance and transfer from 1972 to 1989 was of land as shown on a plan, and the plan was not expressed to be for the purposes of identification only, the plan was not a scale one and did not give any measurements.  It was therefore unclear as to the exact boundaries of the land being conveyed, which could only be ascertained by considering the surrounding circumstances at the time of each conveyance, which I have described.  In those circumstances, it appears to me that, so far as can be ascertained from the evidence before me, each of the successive vendors of this property was conveying the land which had been sold to that vendor.  There is no evidence of any intention to convey more than had been conveyed to that vendor, and no expectation on the part of any purchaser that he or she was acquiring more than had been conveyed to that person’s vendor.  To hold the contrary would mean that one or more of the vendors had inadvertently sold to his or her purchaser more land than he or she owned, putting them at risk of a claim for damages from the purchaser, although that vendor had on the face of it conveyed no more than what had been sold to him or her.

The effect of registration of title
27.	 The question then arises whether registration of the title to Sharman House, or any subsequent dealing with the registered title, had any effect on the legal ownership of the disputed area.  The plan on the register is a scale plan, although the scale is only 1:1250.  Under section 3 of the Land Registration Act 1925, “registered land” meant land or any estate or interest in land the title to which was registered under that Act.  Under section 4 of that Act, a freehold estate owner could apply to be registered in respect of that estate, and by section 5 the registration of the freehold estate owner as first proprietor with an absolute title vested in him an estate in fee simple in possession in the land.

28.	Under section 18(1), where registered land was a freehold estate, the proprietor could transfer the registered estate in the land or any part thereof.  “Registered estate” was defined by section 3, in reference to land, except in the case of a registered charge, as the legal estate, or other registered interest, if any, in respect of which a person is for the time being registered as proprietor.  Section 19 provided for the completion of a registered disposition by the registrar registering the transferee as proprietor of the estate transferred.  By section 20(1), in the case of a freehold estate registered with an absolute title, a disposition of the registered land for valuable consideration, when registered, conferred on the transferee an estate in fee simple in the land.  By section 69(1), the proprietor of registered freehold land was deemed to have vested in him the legal estate in fee simple in possession.  

29.	By section 76, registered land could be described, inter alia, by means of a verbal description and a filed plan, “regard being had to ready identification of parcels, correct descriptions of boundaries, and, so far as may be, uniformity of practice; but the boundaries of all freehold land and all requisite details in relation to the same, shall, whenever practicable, be entered on the register or filed plan, or general map, and the filed plan, if any, or general map, shall be used for assisting the identification of the land.”  

30.	Rule 278 of the Land Registration Rules 1925 provided as follows:

“(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the file plan or General Map shall be deemed to indicate the general boundaries only.
 (2) In such cases the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any part of an adjoining road or stream.
 (3) When a general boundary only is desired to be entered in the register, notice to the owners of the adjoining lands need not be given.
 (4) This rule shall apply notwithstanding that a part or the whole of a ditch, wall, road, stream or other boundary is expressly included in or excluded from the title or that it forms the whole of the land comprised in the title.”

31.	Rule 284 of the Rules then provided for renewal, revision or correction of plans and verbal descriptions, and of any part of the general map, at any time on the application in writing of the proprietor of the land.

What is the scope of the Fallons’ registered title?
32.	The Fallons claim title to the disputed land on the basis that the description of the land in the property register and as transferred to them, and conveyed and transferred to their predecessors in title, was the land edged red on the various plans, and that that land included the disputed area.

33.	The Council contends, relying on the decision of the Court of Appeal in Lee v. Barrey, [1957] Ch.251, that the boundary shown in the Land Registry plan was only a general boundary and could not be relied on as showing the extent of the land to which the Fallons had title.

34.	In Lee v. Barrey, a vendor had divided a piece of registered land into five plots, the side boundaries of which in effect followed the line of the vendor’s eastern boundary, which was irregular.  The defendant purchased plot 4, being aware of the layout.  The transfer also correctly showed the layout of the plot, but the plan on the land certificate showed the two irregular boundaries as running in a straight line at right angles to the other two boundaries, forming an approximate rectangle.  The defendant, misled by the plan on the land certificate, erected a house, and laid out his garden, on his plot on the basis of that plan, so that it was built in part on land which had not been transferred to him but formed part of plot 3, although it appeared to have been shown as his on the land certificate.  The plaintiff, the owner of plot 3, claimed a declaration that the boundaries were as transferred to him, an injunction to prevent trespassing, an order requiring the defendant to remove certain concrete paving, and damages.  The plaintiff did not ask that the defendant should be ordered to remove any part of his house which encroached on the plaintiff’s land.

35.	Jenkins L.J., sitting as an additional judge of the Chancery Division, gave judgment for the plaintiff, although the precise terms of that judgment, and of the order he made, are not reported.  It does appear, however, that Jenkins LJ found that the encroachment effected by the errant common boundary line at the Land Registry was over a sliver of land ranging from nothing to 10 feet.  The whole frontage of the plot was 42 feet.

36.	The essential issue between the parties on appeal was whether the dispute was a boundary dispute or a property dispute.  The defendant contended that the dispute was a property dispute and that the plaintiff should have asked for rectification of the register.  It was contended that had he asked for rectification he might not have obtained it having regard to the provisions of section 82(3) of the Land Registration Act 1925, which were similar, although not identical, to those in paragraph 6(2) to Schedule 4 to the Land Registration Act 2002.

37.	The Court of Appeal dismissed the appeal.  In delivering judgment, Lord Evershed M.R. drew attention to the fact that the filed plan indicated a general boundary only.  He continued at p.260

“In those circumstances, as we are concerned with a general filed map or plan, the sole question for us is whether, notwithstanding the transfer and the facts I have mentioned, the effect of the statutory provisions, sections 19 and 69 in particular, is that as matters stand what the defendant has, and is entitled to say that he has, is a piece of land identified by reference to the map on his certificate; and the argument is that, if you look at that map, it is as plain as possible that there is no question of an angled division; the piece of land of which the defendant is certified as proprietor is regular in shape... and the defendant contends that if the plaintiff desires to say that it is wrong, then what he should do is to make application to rectify the register.... It seems to me ... that the matter comes down to this, in the light of the statutory provisions and looking at the land certificate: is this a case in which the defendant can, as things now are, say: “I have got a piece of land, the boundaries of which are sufficiently identified and are such that my house at no point trespasses upon the plaintiff’s property”?  Or, on the other side, is the right answer that the identification in the certificate is not, and does not purport to be, a precise signification – a precise showing – of the boundaries, which boundaries can properly be discerned from other material in the case?  That is the point.

There is no doubt that, at the kink itself, the divergence between the transfer plan and what appears on the face of it from the certificate plan, is not negligible.  On the plan marked No.1 attached to the statement of claim, measurements indicate that it is in the region of 10 feet, and it may even be that if another method of measurement were adopted, the extent of that divergence would be substantially greater.  Since the whole frontage to Oakleigh Park South is only 42 feet, it can be seen at once that this is not a mere trifling divergence.

But with all respect to Mr. Plowman’s argument, ... I find myself to be in this respect of entirely the same opinion as Jenkins L.J.  I would go with Mr. Plowman this far, that a boundary dispute and a property dispute may be two things quite different.  It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed you may say that the matter has passed from any sensible use of the phrase “boundary dispute” and becomes something else.  But, applying the common sense test, if, as Mr. Plowman invited us to do, you put the question here: is the plaintiff saying in truth that the defendant got the wrong property by the land certificate? I would answer the question negatively.  I think for my part, that there is no doubt that the certificate purported to give him, and gives him, the right property.  What, on the evidence, it has failed to do is to indicate its boundaries with sufficient correctness and precision.

I agree with Mr. Salt that sections 19 and 69 are directed to bringing registered land into the general scheme of the property legislation of 1925, and are not concerned with the sort of question which arises in this case.  I further agree with Mr. Salt that section 76 and the rules provide... that in the case of a general map or filed plan the boundaries are not intended to be more than indicated and not precisely defined.  If there were any doubt about that, I think the matter is really made plain beyond a peradventure by the land certificate here in question.  For under the heading on the attached general map of “Friern Barnet Parish” occurs a note, which has obviously been stamped on the document, as follows: “The boundaries shown by the dotted lines have been plotted on the transfer plan and are subject to revision on survey after the erection of fences.”

38.	Evershed M.R. went on to refer to a paraphrase of rule 278 on the back sheet of the land certificate and to the absence of any dimensions on the plan except for the frontage, which was not in dispute.  The dotted lines indicated the boundaries in dispute where there were not, and substantially still were not any fences.  He found that the document did “no more than indicate the boundaries, and – what I think is far more significant – that what they are intending to do is to show what you would find on the transfer plan.”  He concluded

“I am for my part left in no doubt that this plan cannot be set up so as to overturn the plain effect of what otherwise would have resulted from the bargain made between the defendant and his vendor as has been recorded in his contract and his instrument of transfer.”

39.	Birkett L.J. agreed with Lord Evershed M.R., as did Romer L.J., although Romer L.J. did refer to the discrepancy revealed by the plan as only 10 feet at one point and as decreasing both to the north and south of that point until it ceased to exist as a divergency.

40.	The disputed area in the present case is larger than that in Lee v. Barrey.  At its narrowest point it is about 2 metres and at its widest point it is about 4 metres.  It also clearly represents a more substantial area in relation to the Fallons’ land than did the disputed area in Lee v. Barrey to the plots in that case.  I bear in mind, however, that in the present case the boundary was unfenced and impossible to distinguish on the ground, that even when Mr. Fallon received a small scale 1966 plan from the council he was unable simply by looking at it to identify where the boundary came, and that there is nothing to suggest that anybody over a period of 22 years between 1972 and 1994 knew where the boundary came or acted on the basis that it was in any particular place.  It required detailed scaled measurements to establish the discrepancy between the position of the boundary as shown on the 1996 plan and as shown on the Land Registry plan and the 1972 plan.  Further, even at its widest the disputed area is no wider than a road might be (see rule 278(4) of the Land Registration Rules 1925) and the note on the land certificate plan makes it plain that the boundary line has simply been plotted from the plan on the title deeds and may be updated.

41.	I am driven to the conclusion, therefore, that the Fallons’ registered title is no greater than that of their unregistered predecessors in title since 1965, and that the legal boundary of their land is the same as it was following the conveyances to Mr. Sharman.  It follows that 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 Council’s claim
42.	The Council’s Statement of Case before the Adjudicator simply claims amendment of the register.  It does not appear to be a claim for rectification.  Under paragraph 1 of Schedule 4 to the Land Registration Act 2002, in that Schedule references to rectification, in relation to alteration of the register, are to alterations which (a) involve the correction of a mistake and (b) prejudicially affect the title of a registered proprietor.  Paragraph 5 of that Schedule gives the registrar power to alter the register for the purpose of correcting a mistake, but paragraph 6 provides in relation to the exercise of that power that –

“(2) 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. 
(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.”

43.	The Council’s pleaded case is essentially that it has documentary title to the land which it claims should be excluded from the Fallon’s title, and that the Fallon’s continued with their development proposals in the knowledge that there was a dispute between them and the Council as to the extent of their ownership.  

The Fallons’ case
44.	The Fallons contend that they are registered proprietors of the land and in possession of it, and that they have built upon the disputed area in circumstances to which I shall now turn.  On that basis they contend that, there being no suggestion that they contributed to the hypothetically mistaken registration, no alteration affecting their title ought to be made as it would not for any reason be unjust for the alteration not to be made.  There is also a claim to a possessory title to the disputed area, but in my judgment that must fail.  There was no attempt to exclude the world at large prior to 1995 or 1996, or to deal with the land in any way differently from the way that the land which clearly belonged to the Council was dealt with.  There was a fence erected around virtually the whole of the Council’s land but that was taken down at the request of the Council.  Thereafter there was nothing done to assert entitlement to the disputed area until a wall was erected in late 1995 or early 1996.  That was clearly too late to give rise to any possessory title up to the present date, except possibly pursuant to an application under paragraph 1 of Schedule 6 to the Land Registration Act 2002.  No such application has been made, and it is unlikely that it could have been made at the date of the reference as the evidence does not establish on the balance of probabilities that the wall had been erected prior to that date.

45.	The Fallons also contend that this application is misconceived in that the proper application to the Land Registry should have been to determine the exact line of the boundary.  It is said that the general boundary does not purport to show the exact line and an application to rectify it is misconceived.  This is a surprising submission in view of the facts that the general boundary is clearly shown in the wrong place, that fact has actually misled the Fallons as to the extent of their land, and in 2002 the Fallons actually invited an application to rectify.  The position of the boundary line is clearly a mistake which may be corrected under paragraph 5 of Schedule 4 to the Land Registration Act 2002.  

46.	However, three questions arise for decision under paragraph 6 of that Schedule.  The first is whether, notwithstanding my decision as to the land to which their registered title extends, the alteration, if made, would affect the Fallons’ title.  If so, the second question is whether, or to what extent, the alteration would be in relation to land in the Fallons’ possession.  Insofar as the alteration would be in relation to land in the Fallons’ possession, while there can be no suggestion that the Fallons had any responsibility for the mistake in the plan, there is a third question whether it would for any other reason be unjust for the alteration not to be made.  The fourth question is whether there are exceptional circumstances which justify not making the alteration.

47.	Before considering these questions, it is necessary to consider the history of events since the Fallons acquired Sharman House.

Development 1994 onwards
48.	The Fallons proceeded with their purchase despite the lack of clarity as to the exact position of the boundary, and they were registered as proprietors with title absolute on 27 June 1994.  Subsequently a licence for the cultivation of the highway was granted to Mr. Fallon, but the area covered by the licence was again left undefined except by reference to a small scale plan.  A planning permission by South Derbyshire District Council for a new garage for the Fallons’ home dated 30 December 1994 provided that the future use of the highway land (hatched red on the submitted plan) as residential cartilage would require planning permission.

49.	Following the grant of planning permission, the garage was built.  In addition, the existing driveway was resurfaced, a new three car wide driveway to the front of the house was constructed and a 3 feet high breeze block wall was erected, with a pedestrian gateway.  The new driveway appears to have been constructed in part over what was on any footing the Council’s land, apparently without seeking the consent of the Council.  The new wall was said by Mr. Fallon in his witness statement to follow part of the Land Registry title boundary, although it is now common ground that even on his own case it extended in part into the Council’s land.  The work was completed towards the end of 1995 or early 1996, and remained until 2003.

50.	In May 2000, the Fallons sought to buy the whole of the Council’s land fronting the highway.  They also applied for planning permission in July 2000 to build a further double garage.  The plan with the application showed a new 2 metre high brick boundary wall on what was described as the approximate position of the site boundary and the garage in two alternative positions within that boundary.

51.	Mr. Fallon himself realised that the boundary was still unascertained and wrote to the Council by letter dated 5 September 2000 pointing out that he wished to upgrade the boundary of his land with a new perimeter wall.  By letter dated 8 September 2000, he pointed out that the identification of the boundary was still outstanding and urgently required agreement between the Council and himself, and sought a site meeting to clarify the position.  It is clear, however, that at this stage he assumed that the boundary was approximately as shown on his Land Registry title.  A revised drawing showed the new garage moved to what he considered to be the boundary.

52.	By a planning permission dated 20 December 2000 Mr. Fallon was given permission to erect a garage in accordance with a further amended drawing which has not been put in evidence.  The permission contained the following statement:

53.	“The Highway Authority has advised that it is seeking to establish the extent of the highway boundary to the front of the property.  The Local Planning Authority wishes to make it clear that this permission does not convey any right whatsoever to undertake building works in the highway.  Therefore if it is determined that the proposed garage would encroach onto highway land, then the further permission of the Local Planning Authority would be required for an amended scheme.”

54.	Mr. Fallon appears then to have queried whether he had permission to build a wall, and by letter dated 10 January 2001 the South Derbyshire District Council wrote that “the attached plan is approved and you are at liberty to build the wall, subject to the matter of the highway boundary being resolved.”  There is no attached plan in the trial bundle.

55.	Mr. Fallon also contacted the Land Registry as to the extent of his property, and by letter dated 28 February 2001 the Land Registry wrote to him confirming “that the registered extent shown edged red on the filed plan of DY185906 is correct and I am including an office copy of the filed plan as agreed.

56.	There followed a site meeting between Mr. Fallon and Mr. Robert Crossley and Mr. Graham Fairs for the Council at which it became apparent to Mr. Fairs and Mr. Crossley that Mr. Fallon’s ownership indicated in his deeds conflicted with the boundaries shown on the 1966 conveyances to the Council.  The possibility was also discussed of Mr. Fallon buying land from the Council to resolve the matter, but Mr. Fairs was only prepared to contemplate that if enough land was retained to provide a forward visibility sightline of 50 metres at the bend.  It was explained to Mr. Fallon that if he wanted to proceed in this way he first needed to commission an updated 1:50 scale survey.  It is apparent from Mr. Fair’s record of the meeting that he appreciated at the meeting that the wall built by Mr. Fallon in 1995/6 encroached on the Council’s land, although he appears to have assumed that it was built before Mr. Fallon bought the property.

57.	Following this meeting, Mr. Fallon consulted his solicitors, H.T. Atkins & Sons, who wrote to the Council by letter dated 27 April 2001, referring to the meeting, and raising the issue of the position of the boundary.  The letter asked the Council either to confirm that it accepted that the boundary was where it was shown on the Land Registry plan or to provide copies of their own title deeds and documents and say where the Council believed that that boundary was.   Correspondence with the Council about title, and about a possible sale of part of the land claimed by the Council, and correspondence with the Land Registry, continued for about a year.  Finally, by letter dated 14 May 2002, H.T. Atkins wrote to the Council:

“We are disappointed to note that we have had no reply to our letter of 18th March.  As it does not seem possible to make progress by negotiation with you, our clients propose to deal with the matter by relying on the registered title which they already own.  They have been in possession of the land in question since they bought Sharman House and it is already many months since you asserted a discrepancy between your title documents and the extent of our clients registered title.  Unless you apply to H.M. Land Registry for the register to be rectified within 21 days our clients will continue to deal with all of the land in their title as their own.  In particular they propose to erect a double garage upon part of it as you are aware.”

58.	The Council replied by letter dated 20 May taking issue as to the need to reply to the letter of 18 March, but ignoring the remainder of the letter of 14 May.  No application was made by the Council to rectify the title, and in the absence of any application the Land Registry had already confirmed by letter dated 17 May 2002 that it was closing the file of correspondence.

59.	There matters rested until the following September, when Mr. Fallon submitted a revised planning application in relation to the proposed garage.  This involved the conversion of the existing garage into a study and utility and a new double garage.  It certified that the whole of the land to which the application related was owned by Mr. Fallon.  The boundary with the land belonging to the Council was shown in approximately the position shown on the Land Registry Plan.

60.	On this occasion the planning application was referred by the planning authority, as the earlier ones had been, to the Council.  On previous occasions the Council had referred to the ongoing dispute as to the boundary, but on this occasion, by a letter dated 4 October written in the name of Mr. Fairs, the Council simply stated that “the Highway Authority would not wish to restrict the grant of planning permission.”  Mr. Fairs has given evidence that he was away at the time and the letter ought not to have been written, but nothing was done on his return to correct the letter or to draw the attention of the planning authority to what the Council saw as a continuing issue, nor was there any further communication on the subject with Mr. Fallon or his solicitors, and on 11 November 2002 planning permission was granted for the revised garage, study and utility.

61.	The planning permission contained a condition that unless otherwise approved in writing by the Local Planning Authority there should be no alterations to the existing access to the site, and a note that the land to the front of the site was highway land and should only be used in accordance with the Requirements of the Highway Authority.  In his witness statement, Mr. Fallon stated that he believed that the application was dealt with by the same department which had previously disputed the boundary and the extent of his and his wife’s ownership and the same department to which his solicitors had sent the 21 day notice the previous May.  He concluded from the absence of any objections by the Council and the absence of the previous conditions about the boundaries that the Council no longer disputed his ownership to the boundary as shown on the Land Registry title.  I accept Mr. Fallon’s evidence as to this.

62.	In early January 2003, Mr. Fallon also applied to the Council for permission to extend the driveway across the land which it was common ground that the Council owned.  There was no response from the Council beyond an e-mail acknowledgment despite an e-mail reminder from Mr. Fallon stating that he would like to carry out the proposal by the end of February.  Mr. Fallon then decided to proceed with the development in any event and between about the end of February and May 2003 he took down the old breeze block wall he had erected in 1995/6 and replaced it with the new 2 metre high wall, taken back from the road so that it did not encroach on what he accepted to be the Council’s land.  He also built the new garage, extending to what he regarded as the boundary of his land, and a new driveway which, although reduced in size compared with the area shown on the access application, still covered not only the whole of the area between the end of the boundary wall and the new garage but also a substantial part of the Council’s land which had been grassed until then.

63.	By a letter dated 25 April 2003, the Council finally responded to the claimant’s application to construct the vehicle access, refusing to approve it because of the complications concerning the ownership of the land.  This letter, very belatedly, also stated that the garage for which he had been given planning permission could not be constructed if it encroached onto the Council’s land and that the 2 metre wall and proposed pathway extension referred to in the plan enclosed with the access application also appeared potentially to conflict with the Council’s ownership.  The copy letter in the trial bundle has a council “received” date stamp of 28 April, and was probably received on that date by Mr. Fallon.  By that time the bulk of the work had been carried out, and Mr. Fallon went on to complete it, apparently ignoring the letter.

64.	The Council has offered no explanation for the delay in re-asserting its claims between May 2002 and the end of April 2003.  The Council’s disclosure of earlier documents includes a substantial quantity of memoranda and other internal documents discussing the issues, yet, although there plainly were ongoing discussions for at least part of that time, no internal document has been disclosed from that period.

65.	It appears that it was only in July 2003 that the Council noted that the work had been carried out, and that at last prompted action by the Council, which wrote to H.T. Atkins by letter dated 29 July 2003, suggesting a possible meeting, and to the Land Registry by letter of 6 August 2003 applying to rectify the Fallons’ title.  

66.	Both the Land Registry and the Council at this stage appear to have regarded this as an application for rectification within the meaning of the Land Registration Act 2002, and by letter dated 30 October 2003, the Land Registry drew the Council’s attention to the fact that the Fallons appeared to be in possession of the land.

67.	Matters proceeded slowly, and it was only in January 2005 that the matter was referred to the Adjudicator by the Land Registry.

The application of paragraphs 5 and 6 of Schedule 4 to the Land Registration Act 2002
68.	This paragraph gives rise in this case to the four questions posed by me in paragraph 44 above.  The first question is whether the alteration would affect the Fallons’ title.  It is plain that it would not diminish the paper title.  It is also plain that it is not the actual alteration which determines the extent of that title.  What will be produced by the alteration is only another general boundary in a more accurate position that the current general boundary.

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 the 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.

71.	If the alteration could be said to affect the Fallons’ title, then I would conclude that it would not, in all the circumstances, be unjust for the alteration not to be made.  The land is of little value to the Council – so little value that the Council took no adequate steps for 35 years to define its boundaries and failed to ascertain them even when asked by Mr. Fallon to do so in 1994 or earlier when there had been a dispute over the incorrect fencing around the perimeter.  Although it has been suggested that the land is needed for a visibility splay for the highway, the Council has shown little interest in checking or maintaining it as such – the 1996 wall was on the land for many years without objection and without any suggestion that it affected road safety.  There is still far greater visibility at this corner than on many country roads, and although there is a school nearby there has been no suggestion by anybody over many years that the corner presents any sort of safety hazard through lack of visibility or at all. 

72.	In my judgment, the Council’s neglect contributed to the confusion over the boundary.  Subsequently, when there was a plain issue as to whether the boundary was as shown on the Land Registry plan or whether the plan was incorrect, and negotiations got nowhere slowly, Mr. Fallon advised the Council that they should apply for the plan to be altered or he would proceed to build on the basis of the boundary as shown.  The Council not only failed to respond to that invitation but also failed to object or raise any point subsequently when Mr. Fallon applied for a new planning permission for his garage, understandably leading him to believe that it had abandoned its claim.  Indeed, despite the ultimatum it had been given, it did, wrote and said nothing at all for over 10 months, except to confirm to the planning authority that it had no objection to the Fallons’ new propose development.  That confirmation was in contrast to the position it had adopted on previous planning applications.

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, [1995] 1 W.L.R. 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 be a real possibility, if not a likelihood, that all or some of it would remain and be effectively owned by the Fallons.

74.	In cases which do not involve rectification under paragraph 6 of Schedule 4, paragraph 5 of that Schedule gives the Chief Land Registrar a discretion whether to alter the register for the purpose of correcting a mistake.  Under Regulation 126 of the Land Registration Rules 2003, if a court decides that there is a mistake in a non-rectification case, it must order the alteration of the register unless there are exceptional circumstances that justify not doing so.  In my judgment, that is the test that should be applied in this case on the assumption that this is a non-rectification case.

75.	For the reasons given below, I have concluded that this is an exceptional case.  Assuming that paragraph 6 of Schedule 4 does not apply, the alteration is only of the general boundary line, which is not determinative of any question of title.  The change would achieve nothing except, in the usual case, greater accuracy.  That would have been the case if the application to alter had been made before the garage was built and the new wall erected.  At that stage, particularly as the Fallons intended in any event to remove the breeze block wall then on the Council’s land, there would seem to be no reason why the Council should not have the disputed area.  

76.	Once the Fallons had built over the land, the time for that application had passed.  The question whether the Fallons should be excluded from part of their garage and compelled to pull it and the wall down was one which neither the Chief Land Registrar nor the Adjudicator has power to determine.  In practical terms, the issues of title are bound up with the issues of the extent of any injunction which might be granted to restore the land to the Council and court proceedings were required.

77.	To move the general boundary line would not change the ownership of any land, nor would it resolve the question of whether the Fallons might be able to resist the grant of an injunction whether by reason of an estoppel or otherwise, issues which the Council has conceded to be arguable.  Those are matters which remain to be resolved by a court.

78.	Mr. Din, for the Council, conceded in argument that the alteration of the general boundary line would achieve nothing but greater accuracy, and his main concern, if it was not to be changed, was as to the effect that would have on any award of costs.

79.	So far as accuracy is concerned, it is correct that the present general boundary line does not accurately reflect where the paper title boundary line lies.  But to alter it at this stage is in my judgment wholly unhelpful to anybody, except possibly on the question of costs, to which I shall turn.  It ignores the practical fact that there is at least a seriously arguable case, and in my view a very strong one, for leaving the Fallons in possession of the land on which they have built and which they have enclosed, with or without an award of damages equal to the value of that land.  At some point in those circumstances, and possibly sooner rather than later in respect of the land enclosed since 1995 or 1996, unless a court order is obtained restoring the land to the Council, the Fallons are likely to acquire a possessory title to that land.

80.	Nor is the Council’s case for an injunction strengthened by its failure to apply promptly for an injunction when it found that the disputed land had been built on, and I take note of the fact that even as late as the hearing on 7 November 2006, almost three months after I had handed down a draft decision which found in favour of the Council on the paper title question, it had still not decided what to do. 

81.	In the circumstances, it appears to me that an application to alter the general boundary 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.  

82.	I shall therefore direct the Chief Land Registrar to refuse the Council’s application.

Costs
83.	I heard submissions on costs at the hearing on 7 November 2006.  It is normal when bringing proceedings to make all claims in relation to the same subject matter at the same time.  If, instead of applying to Chief Land Registrar for the register to be altered, the Council had brought court proceedings, all issues could have been dealt with at the same time.  In my judgment, on the facts of this case, that is the course which it should have taken.  This is all the more the case when the Council’s own claim to the disputed land was dependent in part on that title not being affected by the general boundary it was seeking to alter.  The order would not assist it in any real way in the dispute with the Fallons.  

84.	It is true that the Council would be assisted by the decision as to paper title, but it would be no closer to regaining the land without a court order, and so far as damages was concerned, the Fallons had offered to compromise the whole dispute by purchasing the disputed land. 

85.	Although part of the costs of this reference would have been incurred in any event if court proceedings had been commenced, much of the case has been concerned with detailed evidence as to the conduct and motives of the parties leading to the events which have happened.  That evidence had nothing to do with the paper title, and had little to do with the claim for a possessory title, which was not seriously pursued, but was very relevant to the issues arising under paragraphs 5 and 6 of Schedule 4 to the 2002 Act.  

86.	The same evidence will also be highly relevant to any proceedings for a mandatory injunction or to any question of estoppel which might arise.  If the Council brings any such claim now, the total costs of the two sets of proceedings will substantially exceed the costs of a single set of proceedings in which all the issues could have been raised together.  In addition, the Fallons have been deprived of the opportunity of protecting themselves in respect of costs by offering to settle the entire proceedings by either purchasing the disputed land or paying damages in respect of their permanent or semi-permanent occupation.  That offer would probably have entitled them to their costs if all the issues had been determined in court proceedings, and they had been able to resist the claim for injunctive relief.

87.	Even if I had concluded that the academic question whether the general boundary should be altered should be determined in favour of the Council, I would not have regarded that question as determinative of where the costs should lie.  In the absence of an order effectively restoring the disputed land to the Council, that decision would be at least to a degree comparable to finding that the Fallons were liable in law but awarding only nominal damages.  

88.	I do not find the question of costs an easy one to decide in this case.  I am satisfied that there should be no order for costs in favour of the Council, but in all the circumstances, I do not consider that it would be right to order the Council to pay all the Fallons costs, including costs of issues on which the Council succeeded that would have had to be litigated had court proceedings been brought, just on the basis that in court proceedings they might have made a settlement offer that the court might find ought to have been accepted.

89.	In the end I conclude that the appropriate order as to costs is that the Council should pay one half of the Fallons’ costs to be assessed on the standard basis if not agreed.  The Fallons should submit their claim for costs in writing to the Adjudicator and the Council in the first instance following the form used for the summary assessment of costs in the High Court.  They should do so by 20 December 2006.  The Council should submit any arguments that it may have as to those costs in writing to the Fallons and the Adjudicator by 18 January 2007 and the Fallons should submit any response to the Adjudicator and the Council by 1 February 2007.  I will then decide whether to summarily assess the costs, if they are not agreed, or to direct a detailed assessment.

Permission to appeal
90.	The Council has sought permission to appeal in respect of my finding that the paper title measurements should be as shown on their title documents and not as shown on Mr. Sharman’s planning application.  I reject that application.  It appears to me that I am entitled to find as a question of fact that the measurements taken after the boundary had been staked out are to be preferred to measurements apparently taken from a document prepared before the boundaries were staked out, although incorporated in a later document.  This is particularly so as the sale to Mr. Sharman preceded the sale to the Council and Mr. Sharman and his advisors do not appear to have had any knowledge of the intended measurements.

91.	My decision not to direct the Chief Land Registrar to alter the general boundary was made in the exercise of my discretion in the light of all the circumstances, as was my decision as to costs.

92.	In the circumstances I am not satisfied that an appeal would have a real prospect of success.  I also consider that an expensive and time consuming appeal ought to be discouraged when an alteration of the general boundary at the present time would be an academic exercise and the Council remains entitled to bring court proceedings to deal with the real issues between the parties.

Dated this 23rd November 2006

By Order of The Adjudicator to HM Land Registry