REF/2006/0441

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
GEOFFREY-ROYSTON DEVELOPMENTS LIMITED

APPLICANT

and

(1) MARGARET ANGELA DAVIS
and
(2) MICHAEL DAVIS

RESPONDENTS

Property Address: Land at Mill Farm, Yapham, East Yorkshire
Title Numbers: YEA17127 and YEA15173

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

Sitting at: York County Court, 55 Piccadilly, York YO1 1PL
On: 20 September 2006

Applicant’s Representation:  None
Respondents’ Representation:  Sam Healy of Counsel instructed by Powell & Young

___________________________________________________________________________

DECISION
___________________________________________________________________________

KEYWORDS – Boundary dispute.  Construction of plans.  Whether adjournment should be granted due to the  illness of the witness for the Applicant.   Whether the Applicant should be permitted to re-open a dispute previously determined by the Solicitor to the Land Registry

Cases referred to

Lee v. Barrey, [1957] Ch 251
Securum Finance v.  Ashton, [2001] Ch 291

1.	For the reasons set out below, I refuse the Applicant’s written application for an adjournment, I am not satisfied that the reasons given for the absence of the Applicant (GRDL) and its solicitors are justified and I consider that it would be unjust to adjourn the hearing.  I am not satisfied that there is any evidence that GRDL could adduce if an adjournment were granted that would have any effect on the outcome of this reference and I find that the Applicant’s pleaded case does not entitle it to have its application to alter the register acceded to.  I shall therefore direct the Chief Land Registrar to refuse the application.

2.	This is a reference by the Chief Land Registrar of an application by GRDL to alter the general boundary of titles YEA17127 and YEA15173.   In effect this is an application to undo an alteration to the general boundary directed by the Solicitor to the Land Registry in July 2005 on the application of the present Respondents (the Davises).

3.	Until 2000, both plots of land were owned by Ernest and Margaret Woodliffe (the Woodliffes), who are the parents of the Davises.  In May 2000 the Woodliffes wished to sell most of their land to GRDL, who intended to develop it, but they wished to retain a plot of land to give to the Davises, so that they could build a house on it.  

4.	There were discussions between the Woodliffes and GRDL as to the shape and size of the plot to be retained.  In paragraph 6 of his witness statement in REF/2005/0092, Roy Potter, the director of GRDL who conducted the negotiations with the Woodliffes, describes what happened as follows:

“During our negotiations to purchase from Mr. and Mrs. Woodliffe they were unclear as to precisely which area of land, its location and size they wished to retain and we became aware that this was because they were referring to Mr. and Mrs. Davis on this matter.  However, in the course of those negotiations (in which on at least one occasion Mr. and Mrs. Davis were present) agreement was reached and the lines were drawn to show the area to be retained and our purchase was completed on the basis of those plans.”

GRDL’s Statement of Case also states, at paragraph 6, that through negotiations between GRDL and the Woodliffes, lines were drawn on the relevant plans to show the areas being retained by the Woodliffes and GRDL’s purchase was completed on the basis of those plans.  The Statement of Case continues “Having negotiated the size of the plot they wished to retain, the Woodliffes put forward a design of their own for their planning application which resulted in a building with the same footprint as that of the plot”.

5.	By an agreement dated 12 May 2000, the purchase of the land other than the retained plot was agreed.  The property sold is described in the schedule to the agreement as the land shown edged red on Plan 1 annexed to the agreement.  Plan 1 (so far as relevant to this application) shows the land retained by the Woodliffes as having an eastern boundary of which the greater part is marked “(120’) 37m”, and the most northerly part of the boundary is unmeasured, although the plan is to a scale of 1:1250.  The northernmost point on the boundary is marked ‘D’.  The distance from the southernmost point on the eastern boundary of the retained land to a point E at the junction of the land sold and the public highway (Meltonby Lane) is given as 27 metres.  Plan 1 also shows a straight line running westwards from point ’D’ to a point ‘B’ on the north western boundary of the land sold.  The distance between points ‘B’ and ‘D’ is stated on the plan to be 57 metres.  The measurements have been added in manuscript.  I am unclear whether the outline of the retained land was in manuscript or not.  A curiosity of the measurements on Plan 1 is that most measurements are metric, but some, defining the boundaries of the retained land, are imperial.  This is explained by Mr. Potter in paragraph 21 of his witness statement in REF/2005/0092 as being because “Mr. and Mrs. Woodliffe used imperial measurements during negotiations because those would be the dimensions with which they were familiar.”

6.	Mr. Potter states in paragraph 5 of that witness statement that the plan used was a modernised ordnance survey plan which had been used for GRDL’s planning application.  The Woodliffes’ solicitors asked if it could be used for the transfer and GRDL agreed “although we gave no warranties as to the accuracy of the plan nor made any charge in respect of its use.  I believe that this is where the problems started in that Mr. and Mrs. Woodliffe had failed to prepare a proper plan to begin with.”  

7.	According to paragraph 13(a) of its Statement of Case the Woodliffes and “their successors in title the Applicants took no steps to verify the accuracy or otherwise of the plan, and all expenses incurred in relation to plans was borne by the Respondent “who satisfied itself of their accuracy in relation to physical features on the ground.”  On the assumption that the reference to the Applicants should be to the Davises and the reference to the Respondent should be to GRDL, this is confirmed by Mr. Potter in paragraph 15 of his witness statement.  The transposition is, I suspect due to the fact that this is a re-run of a previous dispute which was referred to the Solicitor to the Land Registry under the old pre-2004 procedures where the Davises were the Applicants and GRDL was the Respondent.  I shall return to the previous reference in due course.

8.	The same plan with the same dimensions was used both when the agreement between the Woodliffes and GRDL was completed and when the Woodliffes subsequently transferred the retained land to the Davises.  The only difference on the latter transfer was that some of the measurements shown on Plan1 to the agreement were omitted.

9.	This reference was listed for hearing in York County Court on 20 and 21 September on an application by GRDL, to be heard at the same time as REF/2005/0092, which had already been listed for hearing on those dates, and I gave directions for evidence, disclosure and other matters in that reference to enable that hearing date to be achieved.

10.	Unfortunately, in August of this year, Mr Potter became unwell.  It was feared that he may have had two small strokes, and medical evidence to that effect and that he was undergoing tests, was provided to the Adjudicator with a request for both hearings to be adjourned.  No evidence was provided at that stage that he would be unable to give evidence at the hearing, and the request was therefore refused.  The request was renewed on 1 September and was again refused.

11.	A further request for an adjournment was made by fax on 15 September 2006 supported by a witness statement from Mr. Simon Smith of Irwin Mitchell, GRDL’s solicitors.  This, and the application made on 1 September, included medical evidence, which I accept, that Mr. Potter was unfit to give evidence.  The letter from a consultant physician dated 14 September 2006 stated that Mr. Potter needed to avoid all stresses and in particular attending court until he recovers fully and his identified modifiable risk factors have been addressed and controlled, particularly with regard to his blood pressure.  No time scale within which such recovery might be expected was put forward by the consultant physician, although a letter from Mr. Potter’s GP stated that he would be unfit to attend court for 3 months.

12.	By a further e-mail dated 18 September, Irwin Mitchell wrote that Mr. Potter had confirmed that even if the adjournment was refused he would not be attending the hearing and would not instruct Irwin Mitchell to attend the hearing to represent GRDL.  The reason given was that he was not physically well enough to attend and as he was the only person who could give evidence on behalf of GRDL, the application could not proceed in his absence.

13.	While I fully appreciate that Mr. Potter cannot be expected to attend court, I was not satisfied that there was any issue of fact on which any evidence was needed from him beyond what was already contained in his witness statement in REF/2005/0092 and anything further that might be necessary to verify the few additional facts contained in GRDL’s Statement of Case in this reference.  I was also concerned that that if there was an adjournment, it was unlikely that a new hearing could be arranged before next summer and I bore in mind that Mrs. Woodliffe, who had provided a witness statement for the Davises, was 80 years old.  Further, one of the principal issues was whether this application should be dismissed on the ground that the issues raised by it had already been determined on the reference to the Solicitor to the Land Registry, to which I have referred, and that the present application was an abuse of process.   

14.	I therefore caused e-mails to be sent on 18 September to Irwin Mitchell advising them that they should make their application for an adjournment at the start of the hearing on 20 September, when the Davises would have the opportunity to respond.  The e-mails drew attention, inter alia, to my impression that the abuse of process issue did not require Mr. Potter’s attendance or evidence, my concerns whether any cross-examination of witnesses was necessary, or whether this was essentially a dispute as to the construction of the agreement for sale and the transfer, whether any necessary cross-examination of Mrs. Woodliffe could take place even if there was otherwise an adjournment.

15.	I strongly recommended that Irwin Mitchell attended the hearing to put forward their case as to an adjournment and to address any issues which could properly be dealt with in Mr. Potter’s absence.

16.	In response, Irwin Mitchell stated that they still had no instructions to attend, and in the event they did not attend the hearing or the previous site view.

17.	I bore in mind also that in their e-mail of 18 September, Irwin Mitchell stated that they had had detailed discussions with Mr. Potter and his son over the weekend as to what they would do if their application for an adjournment was refused.  It is plain that Mr. Potter is well enough to have detailed discussions and to give instructions, and I can see no acceptable excuse for GRDL’s representatives failing to attend to deal with the issues raised by me, to argue their case for an adjournment, and to explain the substance of any additional evidence that might be forthcoming from Mr. Potter.  If there were to be an adjournment, it would be unlikely that a new hearing could be arranged before next summer, which would involve further sterilisation of the Davises’ land and, if her evidence was to be challenged in any way, it would involve an elderly witness of about 80 having to recall events which were becoming increasingly distant, while her own memory would be in danger of deteriorating.

18.	When this matter was before the Solicitor to the Land Registry on the Davises’ application to alter the same boundary to its present position, directions had been given for pleadings and witness statements.  Ultimately, witness statements were due by 10 June 2005.  GRDL failed to serve any witness statements by that date.  It was then warned by the Land Registry a few days later that a failure to comply with the directions could lead to sanctions which could include the cancellation of their objection (see the letters to the Davises from the Land Registry dated 16 June 2005 at pp.290-291 of the trial bundle).  By letter dated 28 June 2005, Irwin Mitchell, GRDL’s solicitors wrote that “Mr. Potter, the main witness on behalf of Geoffrey-Royston is currently away not returning until 1 July.  We anticipate therefore that our client’s witness statement will be served shortly after that.”

19.	By letter dated 30 June 2005, Powell & Young, the Davises’ solicitors wrote to the Land Registry asking for a sanction to be imposed that in the light of the failure to provide witness statements GRDL’s objection to their application should be cancelled (trial bundle, pp.170-171, especially the last paragraph of the letter, which was copied to Irwin Mitchell – see the last sentence of the letter to Irwin Mitchell at pp.168-169).  

20.	It appears that the Land Registry then wrote to Irwin Mitchell by letter dated 1 July 2005 asking Irwin Mitchell to show cause why the Solicitor should not impose such sanctions and asking for a reply by 8 July 2005.  In fact Irwin Mitchell only replied at all by letter of 11 July, and then simply stated that they were in the process of completing a full reply which would be sent on the next day.  Their subsequent letter dated 12 July contended, wrongly, that Powell & Young were asking that a sanction should be imposed without stating what that sanction was and also that a sanction should be imposed preventing GRDL from relying on witness evidence.  The letter then went on to argue against a sanction being imposed and explained that Mr. Potter was now back in the country from his holiday and they anticipated being able to serve witness statements “shortly” and expected to do so by no later than 15 July.

21.	The dispute might have been resolved on the merits by the Solicitor to the Land Registry in 2005, but was instead resolved in favour of the Davises after the objection of GRDL was rejected by way of sanction when, despite warning of the consequences, it failed to produce any evidence within the extended time limits stipulated by the Solicitor to the Land Registry.  On 13 July 2005, the Solicitor to the Land Registry made a decision, the precise terms of which are not in the trial bundle, but the effect of which must have been to cancel GRDL’s objection and to give effect to the Davises’ application.

22.	This led to GRDL bringing judicial review proceedings against the Land Registry in the High Court, which were subsequently stayed by an order dated 28 February 2006 to enable GRDL to bring this application, while recognising that the new application may raise the issue of abuse of process and other objections.  Even by that time there was no complete witness statement by Mr. Potter as to the merits of the original application, although an incomplete draft, which was produced at my request at the hearing contended that the most appropriate measurement for the purpose of determining the dimensions of the retained land to be shown on the Land Registry plan were to be taken from the length of the plot itself, rather than the distance of the south eastern corner from the corner of Meltonby Lane.  He denied that there had been any error in plotting the southern boundary of the retained land.

23.	In paragraph 10.4 of GRDL’s Statement of Case on this application, it is contended that the most appropriate measurement was the length of the plot “purchased” by the Objectors.  Paragraph 10.4 continues 

“Although the original plan to the Applicant’s transfer shows a measurement of 37 metres for the north/south boundary, as this did not represent the full length of the Objectors’ property retained by their predecessors, this dimension was deleted.  Further the line marked “37 metres” does not run the full length of the Objectors’ property.  This dimension was the original size required by the Woodliffes however prior to completion of their purchase, the Objectors agreed to extend the plot up to the boundary marked as “57 metres” on both plans and carving off a triangle adjoining plot 7.  The Applicant believes that the length of their property is 45 metres which accurately reflects the land retained by their predecessors.”

24.	GRDL brought judicial review proceedings in the High Court to overturn the decision of Solicitor to the Land Registry, but these were adjourned at the suggestion of those acting for the Solicitor to the Land Registry to enable GRDL to make this application.  It was made plain that this adjournment was without prejudice to any question whether this application was an abuse of process.

25.	It is difficult to tell from the Applicant’s Statement of Case how it is said that the current general boundaries should be amended.  The Applicant’s case appears to be that the boundaries should be restored to the position they were in before the alteration directed by the Solicitor to the Land Registry, but there is no pleading to that effect, the order made by the Solicitor is not in evidence and the pleaded case is that the correct boundaries are shown on the conveyancing plans.  If the claim is to restore the boundaries on the plans to their position before the Solicitor’s order, then it is understandable that, pending its resolution, the Davises have felt unable to develop the retained land.  

26.	However, having considered the Statements of Case of both parties and the written evidence both in this reference and in REF/2005.0092, I was satisfied that, subject to any question of abuse of process, this reference turns on the construction of Plan 1 in the context of the surrounding circumstances, as to which I am unable to find any significant disagreement.  I am also satisfied that the “strike out” issue and the question whether this application was the appropriate way to deal with this dispute were issues that I could determine in the absence of Mr. Potter.  In those circumstances, and bearing in mind the Davises’ land has effectively been sterilised until this application is resolved I decided not to adjourn but to proceed with the hearing, bearing in mind that if at any point anything emerged in respect of which further evidence from Mr. Potter might be needed, or anything new which the should have the opportunity to reply to, I might have to reconsider my decision not to adjourn.  In the event, nothing new of that kind emerged.

27.	The general boundary lines on the Land Registry plans do not define the exact line of the boundary, but are simply a general indication of where the boundary comes (Land Registration Act 2002, section 60(2).  A procedure for determining the exact line of the boundary is laid down by rules made pursuant to section 60(3) of the Land Registration Act 2002.  

28.	Both Plan 1 and the Land Registry plans are stated to be on a scale of 1:1250.  The transfer plans are, as I have indicated, copies of Plan 1.  It is not possible to scale precise measurements from these plans in view of their scale and possible minor distortions, but I have scaled the following approximate measurements from Plan 1, using the copy at page 38 of the trial bundle:

(1)	From point E to the point indicated just to the north of the southern end of the border of the retained land is about 27 metres as stated on Plan 1 in a straight line and ignoring the kinks in the boundary.
(2)	The distance marked on Plan 1 as 120 feet or 37 metres scales on that plan to about that length.  I note that 120 feet is over a foot less than 37 metres, although the difference on Plan 1 at a scale of 1:1250 would only be about 0.3mm.
(3)	The distance from the southern point on the eastern boundary of the retained land to point D at the northern end of that boundary measures about 35mm, or about 43.75 metres.  This compares with about 45 metres which GRDL pleads to be the length of that boundary of the retained land.  The difference of 1.25 metres is represented by a millimetre on the plan.

29.	On the plan forming part of the transfer from the Woodliffes to GRDL, the total length of that boundary also measures about 3.5cm.  On the Land Registry plans for YEA15173 (the land sold to GRDL) and for YEA171127 (the retained land) at pp.52-53 of the trial bundle, which appear to be the original plans for the titles as it shows the old layout of the land, the length of the eastern boundary to the same scale is shown as only 30mm, or about 37.5 metres on the ground, while the distance from Meltonby Lane to the southern point on the boundary is shown as 33 metres or more.  This was plainly incorrect.

30.	Curiously, there is a new title plan for YEA17127 prepared following GRDL’s development of the land which it had bought.  On this plan, as pp.68 and 85 of the trial bundle, the length on the plan of the eastern boundary is shown as about 3.4cm.  This is said to show the state of the title plan on 10 March 2004, although it also appears to show the Davises’ boundaries as shown on a notice plan dated 20 June 2001 at p.84 of the trial bundle, which presumably relates to their successful application to amend the original boundaries.  The original eastern boundary shown on the previous plan appears from the notice plan to have been only about 3.0cm in length.

General boundary lines
31.	It is plain, as I have already indicated that a general boundary does not determine the exact line of the boundary.  It is therefore not the case that the fact that an area of land is on one side of a general boundary line rather than another means that that area of land is necessarily the property of the person within whose title it appears from the Land Registry plan to belong (see Lee v. Barrey, [1957] Ch.251, CA).  The fact that I am directing the Chief Land Registrar to refuse GRDL’s application does not mean that I am making any decision as to where exactly the boundary comes. It means that I am not satisfied that the boundary as presently depicted on the Land Registry plan does not show sufficiently closely the approximate line of the boundary.  In this case GRDL’s case is that the eastern boundary is 45 metres long running south from point D.  The measurements from the various plans suggests that the figure may be closer to 44 metres, but in either event there is no reason to suppose that it is any longer and the difference between those lengths and the approximate length shown on the current Land Registry plan is not enough to justify directing that the boundary be altered, particularly when there is no clear evidence as to precisely where it does come, and I make no findings on the point beyond that it would appear to be between about 43.75 metres and 45 metres long.  

32.	Further, it is plain that wherever the exact boundaries come, no amendment is called for of the general boundaries shown on the title plans so as to reduce the current size of the Davises’ land as shown on those plans.

33.	I would add that there is no evidence or pleading on the part of the Davises as to exactly how long the eastern boundary of the retained land should be.  It may be that they consider that it should be longer than the 45 metres put forward by GRDL.  Their case was largely directed to the contention that GRDL’s application was an abuse of process.  Had I found it necessary to hear evidence from them as to the length of the boundary and that evidence had been that the length should be more than 45 metres, I would have considered granting an adjournment so that Mr. Potter could respond to that evidence.

34.	In my judgment, the sensible course would be for the parties to measure out and agree boundaries based on my findings, but if they cannot agree them, then one of them must either apply for the exact boundary to be determined following the procedures laid down in the Land Registration Rules 2003, or commence court proceedings to enable any remaining difference to be resolved.  

Striking out as an abuse of process
35.	The Davises contend that I should strike out GRDL’s application as an abuse of process because the issues were determined by the decision of the Solicitor to the Land Registry.  In the end I consider that it is unnecessary to decide whether such a power exists or should be exercised in this case, since I have decided that the application fails in any event.  It does not appear to me that the approach to the question should necessarily be the same as that in litigation in court as illustrated by Securum Finance v.  Ashton, [2001] Ch 291 at 308, to which I was referred by counsel for the Davises.  

36.	It is common, for example to direct the Chief Land Registrar to refuse an application because an applicant has failed to commence litigation as directed by the Adjudicator.  This may have been for want of evidence at the time, or for want of finance.  I see no reason why this should prevent future litigation or, if litigation is subsequently commenced, why application should not then be made for an appropriate entry in the register.  So too, if an application to alter the general boundary is refused, but an application is subsequently made for the exact line of the boundary to be determined, and the line determined differs from the general boundary, I see no reason why the general boundary line should not be altered accordingly.

Costs
37.	GRDL must pay the Davises’ costs to be assessed on the standard basis except for the costs of preparing the trial bundles, which are to be assessed on the indemnity basis.  This is because it was GRDL which was directed to prepare the trial bundles, but failed to do so.  The Davises therefore had to undertake the task because GRDL was in breach of an order of the Adjudicator and in those circumstances, it is right in my judgment that the burden of showing that any costs claimed by the Davises in preparing the bundle were not reasonably incurred should fall on GRDL.

38.	I direct that the Davises are to serve on GRDL and file with the Adjudicator by 31 October 2006 a statement of their costs so far as possible in the form N260 used for the summary assessment of costs in the High Court.  A copy can also be found in the Supreme Court Costs Office’s “Guide to the Summary Assessment of Costs” 2005 edition.  Any objection to any costs so claimed must be served by GRDL on the Respondent and filed with the Adjudicator by 21 November 2006 and any reply to those objections must be served by the Davises and filed with the Adjudicator by 12 December 2006.  I will then either summarily assess those costs or direct that they be subject to a detailed assessment.

Dated this 13th day of October 2006

By Order of The Adjudicator to HM Land Registry