REF/2007/1393

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
 HERTFORDSHIRE COUNTY COUNCIL

APPLICANT

and

NORTH HERTFORDSHIRE DISTRICT COUNCIL

RESPONDENT

Property Address: Land on the west side of Roman Road Letchworth
Title Number:  HD258447

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

 Sitting at:  Procession House
On: 27 and 28 November 2008

Applicants Representation:  Counsel
Respondent Representation:  Counsel

DECISION  

Dispute between local authorities as to the effect of Articles 6, 16, 19 and 39 of the Local Authorities (England) (Property etc) Order 1973 (1973 No.1861) 

1.	For the reasons given below I shall direct the Chief Land Registrar to cancel the application of the Applicant made on 9 November 2006 to alter the proprietorship register of title HD258447.

2.	This dispute concerns land of rather over quarter of a hectare adjoining Roman Road Graveley.  Until April 1974, the land appears to have been owned by, Letchworth Urban District Council (LUDC).  I have seen no title deeds, but it was clearly used by LUDC and both parties have proceeded on the basis that it was owned by that council.  The land was and remains undeveloped fenced land.  It has a history of being used for the deposit of various materials to which I shall return, but it appears to have been known by various names in the past 37 years.  I shall refer to it as the depot.

3.	Under the provisions of the Local Government Act 1972 (“the 1972 Act”), LUDC ceased to exist on 1 April 1974, and the Local Authorities (England) (Property etc) Order 1973 (1973 No.1861) (“the 1973 Order”) made provision for the transfer of its land, and land of other authorities that then ceased to exist, to other local authorities.  The first question for me to determine in this case is whether the depot passed to the Applicant (the County Council) or to the Respondent (the District Council).  I find it unfortunate that after more than 30 years two public bodies should be spending public money deciding which of them acquired title to this property in 1974.   

4.	Prior to 1 April 1974, LUDC was the local highway authority.  As a result of the reorganisation under the 1972 Act, from 1 April 1974 the County Council became the Highway Authority and all other relevant functions of LUDC passed to the District Council, apart from drainage and sewerage duties and other duties as the local water authority, which passed in part to Anglia Water and in part to Thames Water.

The 1973 Order

5.	Article 6 of the 1973 Order provided as follows:

“There shall be transferred to and vest in or attach to a county council as the highway authority for any highway

(a)	the interest of the former highway authority, as such, in the highway, insofar as such interest is not vested in the county council by virtue of section 226 of the Highways Act 1959;
(b)	any land held by the former highway authority, as such, for the purposes of their functions in relation to the highway or which has been acquired by them as highway authority for the highway and not appropriated for any other purpose;
(c)	any equipment on or near the highway belonging to the former highway authority, as such, including any road lighting system within the meaning of Part III of the Local Government Act 1966 and any other lighting system belonging to the former highway authority as highway authority for the highway; and
(d)	any traffic sign, on or near the highway, belonging to a county, county borough or county district council and not comprised in (c).”

6.	Article 6(b) is relied on by the county council in this case, it being said that the depot was transferred to and vested in it under that regulation.  In the light of my findings of fact below, I am satisfied that that contention cannot be right, because, even though the depot may have been used for general highway purposes, there is no evidence that the depot was held by LUDC as highway authority or that it was acquired by LUDC as highway authority for the highway.  I would add, although the point was not raised at the hearing before me, that the reference to “the highway” in regulation 6(b), as in the other paragraphs of that regulation, appears to me on the face of it to refer to a specific highway, in this case Roman Road, and not to highways generally.

7.	Various other provisions follow in the 1973 Regulations, which the parties agree do not apply here.  There is then provision in regulation 16 for the residual transfer of property.  Article 16(3) provides as follows:

“(3) Subject to the provisions of articles 9 to 15 or of articles 11(2) and (3) and 18 in their application to any matters provided for in articles 9 to 15 - 
all property and liabilities vested in or attaching to an authority described in column (1) of Part I or II of Schedule 4 ... shall by virtue of this order be transferred to and vest in or attach to the authority specified in respect of such authority in column (2)”

8.	LUDC falls in column (1) under the heading “The corporation or council of any other non-county borough or the council or any other urban or rural district”.  The property of LUDC is vested in “The council of the district in which the area of the borough or district is comprised.”  It is common ground that the council in question is the District Council.

9.	Article 19 (which is not referred to in Article 16(3)) provides as follows:

“(1) Where any land, not being a property described otherwise that as an undertaking in column (2) of Schedule 1 or any extension thereof described in article 7, is held by an authority for the purposes of functions exercisable on or after 1st April 1974 by two or more authorities, or for the purposes of a function which will then be so exercisable, the land shall, subject to the provisions of paragraphs (2) to (6), for the purposes of this order be deemed to be held for the purposes of the function exercisable by such one of those authorities as shall be determined by the first mentioned authority to be the function for which the land is, immediately before that date, used to the greatest extent.”

In such determination the first-mentioned authority shall disregard any use of the land which is temporary.

(2) In the application of paragraph (1), where any function is exercisable on and after 1st April 1974 by an authority of the relevant class in relation to the authority first mentioned in that paragraph and by any other authority, the function shall be deemed to be exercisable only by the authority of the relevant class.

(3) Subject to paragraph (2), two (but not more) functions exercisable on and after 1st April 1974 by an authority shall be treated as a single function in the application of paragraph (1).

(4) Any land to which paragraph (1) applies shall be held by the authority to whom it is transferred for the purposes of the function determined under that paragraph, or where two functions have been treated as a single function under paragraph (3) for the purposes of such one of those functions as is determined by the authority to whom the land is transferred.

(5) If notice is given by any authority that they are dissatisfied with the determination in paragraph (1) the purposes therein described shall be determined by agreement between the two or more authorities so described or failing such agreement by the decision of a person appointed by the Secretary of State, and paragraphs (1) and (4) shall have effect accordingly.  Paragraphs (2) and (3) shall apply in the application of this paragraph.

(6) In this article “exercisable” means exercisable otherwise than by virtue of section 101, 110 or 187(2) or (3) of the Act [i.e. the 1972 Act].

(7) In the application of this article, any reference to the purposes of functions includes a reference to the purposes of an undertaking transferred by article 7.”

	The application of the 1973 Order to the depot and its effect on this reference

10.	The depot is not a property described otherwise than as an undertaking in column (2) of schedule 1.  The effect of this very convoluted provision as it appears to apply to the depot is that if it was held by LUDC for the purposes of functions exercisable after 1 April 1974 by the County Council and the District Council, then it was to be deemed to be held for the purposes of the function which LUDC was to determine to be that for which it was, immediately before 1st April 1974, used to the greatest extent.  I note that both counsel made their submissions, as I understand them, on the basis that if the land was in practice used for particular purposes it was also held for those purposes.  I am not clear if that is correct, but in the absence of any submissions to the contrary I have reached my decision on that basis.  

11.	There is no evidence that LUDC made any such determination and there is no evidence that it was ever asked to do so, or that anybody ever applied their mind to this question.  As there was no determination, so there was no notice that could have been given to bring into effect paragraph (5).

12.	Article 39(1) provides that any question as to the interpretation of this order may be determined by the decision of a person agreed on by the authorities concerned or in default of agreement appointed by the Secretary of State.  While this provision permits a question to be determined in this way, it does not preclude it from being determined judicially.  It also only provides for the determination of a question of interpretation.  It does not provide for any decision based on the order as so interpreted.

13.	Article 39(2) provides that where a determination required by, inter alia, article 19(1) has not been made by the transferor authority before 1st April 1974, notice that a question exists may be given by any authority concerned.  There is no suggestion that any such notice was given before the hearing of this reference.  Article 39(3) deals with the situation where notice had been given at 1st April 1974 and the question had not been determined and also where notice was given after 1st April 1974 but before 1st April 1976.   Article 39(3)(l) provides in relation to cases where notice has been given under Article 39(2) before 1 April 1976 that as an interim measure the property should vest under Article 16.  There is no equivalent provision where notice under Article 39(2) is given after that date although there is no express time limit for notice to be given under Article 39(2) if it is not to be implied to be that in Article 39(3)(b).

14.	Article 39(3)(m) provides that where notice has been given under paragraph (2), the question shall be determined by agreement between the authorities concerned or failing such agreement by the decision of a person agreed on by such authorities or in default of agreement appointed by the Secretary of State.  I note that counsel for the District Council has expressly refused to consent to my determining the question, so that if the issue under Article 19(1) is still capable of determination under Article 39(3)(m), it cannot be determined by me.  In any event, my jurisdiction under section 108 of the Land Registration Act 2002 is to determine the matter referred to the Adjudicator by the Chief Land Registrar, which relates to the Applicant’s application made in November 2006 to close the Respondent’s possessory title.  It does not appear to me that that jurisdiction can encompass determining whether, two years later, the land ought to be transferred to the Applicant pursuant to a decision made under Article 39, and at the same time to determine what if any user rights one or other of the parties to this reference, and possibly on the evidence in this case two water authorities, ought to be awarded.  Insofar as this may be wrong, I make the findings of fact set out below, most of which are in any event relevant to the pleaded issue in relation to Article 6.

The evidence

15.	Unsurprisingly, 34 years later, there is very little evidence as to the use to which the depot was being put immediately before 1st April 1974.  It would seem both from evidence as to its condition in the 1980’s and 1990’s that much of it was overgrown and unusable but that there was an area which was used for temporary storage of materials.  An aerial photograph dated May 1972 shows that area partially sub-divided with a vehicle entrance from the highway towards the northern end of that area.

16.	The only witness with any information as to the use to which the depot was put immediately before 1974 was Mrs. Linda Menzies, who was an assistant engineer with LUDC between 1971 and 1974, and who later worked first for the District Council and later for the County Council.  Until April 1974 she had been engaged in Letchworth as an engineer on municipal engineering projects, sewage and foul and surface water drainage.  In April 1974, when she had been transferred to the District Council, she had moved to Hitchin.  The sewage functions of LUDC had been transferred to Anglia and Thames Water – the region partly drained into the Thames and partly elsewhere.  Land drainage had been a purely district council function and was transferred to the new District Council, while drainage on council land, for example in relation to council housing, had also transferred to the District Council, as had the provision of car parking on council land and the maintenance of private roads on council property.  She had not been involved in highway works except in terms of highway design on estates.  This would appear to have been before the developments were complete and some of the roads were dedicated as public highways.  In 1974 she had had the task of making up LUDC plans showing which roads and footpaths were highways and which were council estates.

17.	Between 1971 and 1974 there were various development projects with which Mrs. Menzies had been involved, many of which involved work to council house gardens which were up to one third of an acre each.  In the context of these various works, material, including rejected pipes, fence posts and manhole covers, would be taken to the depot and stacked for reuse.  She regarded it as a misnomer to call the land a depot.  It was fenced land where reclaimed material could be stacked for possible reuse – she did in fact reuse some of the pipes herself.  These pipes were about 6 feet long and had a diameter of about 450mm or 18 inches.  I note that some of this work was carried out by LUDC in the exercise of its functions as the local water authority, functions which were taken over subsequently by Thames Water and Anglia Water.

18.	Mrs. Menzies was unable to recall how many manhole covers were stored at the depot by her.  When a figure of 50 was put to her, she was unable to say, but plainly did not regard that figure as out of the question.  The manhole covers had been reused, but not by her.  She accepted, however, that only a small proportion of the land was used for fence posts and manhole covers.  The use of the land by her to store pipes related to one particular estate, and she accepted that it was one off temporary use.  She also accepted that the depot was a probable place for the storage of road materials.

19.	Mrs. Menzies visited the depot about 6 to 8 times.  She was not involved in highway maintenance and was unable to apportion the use of the depot.  She had seen granite chips there which were not what she would have used.  She stated that the depot was not mainly used for highway materials – highway works were just one of LUDC’s functions.  She could not recall the divisions into bays that appeared in the 1972 aerial photograph, although she accepted that there could have been bays for different materials.  In cross-examination, she was unable to recall large quantities of road salt, but accepted that there could have been a small quantity.  She could also recall gravel in small quantities, but not large heaps of it.  She identified another depot as being the prime site for road salt.  Like other witnesses, she described the other depot as more convenient and secure.  To collect road salt or gravel from the depot would have required an excavator which would have to have been brought from the other depot, which was about 1.5 to 2 miles away.  That would have taken half an hour to drive there.

20.	The only other evidence as to user anywhere close to 1st April 1974 is to be found in statutory declarations of Robert Cooper dated 1st February 1989 and 19th November 2008.  Mr. Cooper is apparently now in his 80’s and did not attend to give evidence.  He has stated that he was employed by the District Council as Highways Manager from April 1974, and had previously been employed in the same capacity by LUDC from 1964 to 1974.  He gave evidence in 1989 in connection with the District Council’s application for a possessory title to the depot that he knew that the depot was used as a storage depot for highway materials at that time and continuously since then and that the land was fenced and maintained by the District Council.  In his subsequent statutory declaration dated 19 November 2008, he states that he was not intending to indicate that the depot was exclusively used for highway materials and was aware that other officers of the District Council had access to it for storage purposes, although he did not know the details.  He also states that as far as he could remember the use of the depot was the same before and after the 1974 restructuring of local government. Given that this evidence accords with other evidence in this case I see no reason not to accept it, but I bear in mind that at least some personnel were moved after 1 April 1974 and the proportions in which the depot would have been used by LUDC for various purposes would not necessarily have been the same as those in which they were used by the District Council, the responsibilities of which covered a wider area than those of LUDC.  Also town centre developments and other works which were taking place before 1 April 1974 would have been different from those occurring after that date.

21.	The remaining evidence of the use of the depot related to the 1980’s and the 1990’s, when the highways functions of the County Council were being carried out by the District Council under an agency agreement.  It is unnecessary for me to set out in detail the evidence as to that user.  I am satisfied that I can accept all the evidence of the witnesses as to user, so far as they were able to recall it.  During that period, the depot was used much more for general highway purposes than for other functions, although gravel and salt left there appears to have been used indiscriminately for highway purposes and for non-highway purposes such as cemeteries, private roads, parks and other open spaces.  Pipes were also left there from time to time.  If there were accounting procedures in place to enable the gravel and salt to be apportioned between the different uses, those procedures were not in evidence.  The bays had disappeared.

22.	The depot was very much a secondary storage site, and I was left with the impression that it was not always in use, although it was fenced and secured.  At those times, there would be the remains of what had previously been deposited, but no significant storage.  There were two better equipped depots with offices and facilities for those working there, none of which were available at the depot, which was just fenced open space.  One of the other witnesses thought of it as a dump rather than a depot.  There was also a problem when storing salt there that it leached into a local farmer’s field causing damage, and it does not seem to have been suitable for that purpose.  There were two other depots for salt and I consider that it is unlikely that it was used for salt or gravel except either when there was an overflow from the main depots or for brief periods when the salt or gravel was needed locally.  It was described by one witness as full of rubbish and was also squatted by gypsies at one point.  The gates became damaged and it was said to have been used for fly tipping.  None of the witnesses visited the site very often.

The registration of the District Council’s possessory title

23.	In 1988, the District Council decided to seek to register a possessory title to the depot.  I am not clear why it took this course rather than seeking to rely on having acquired title from LUDC under the 1973 Regulations.  A memorandum dated 1 November 1988 indicates that an enforcement officer at the County Council had asserted that the depot did not belong to the County Council but that as far as the County Council was concerned it belonged to the District Council.  A different view had been taken by the writer of the memorandum, Andrew Wearmouth, a surveyor with the District Council, but in view of that opinion, described in the memorandum as “the firm opinion expressed by the only other natural claimant”, it was decided to proceed to apply to the Land Registry for a possessory title, and in due course the depot was registered in the name of the District Council with a possessory title.

The County Council’s contentions under Article 6

24.	Until 2002, the statutory functions of the County Council as highway authority was delegated to the District Council as its agent under two written agreements, the first of which (“the 1979 Agreement”) was made in 1979 but applied retrospectively to 1 April 1974.  The County Council has contended that the depot was transferred to it under the 1973 Order, and that by registering the depot in its name, the District Council was in breach of the 1979 Agreement, as the depot should have been registered in the name of the County Council.  The only provision of the 1973 Order pleaded by the County Council in its Statement of Case was Article 6.

25.	As I have already indicated, Article 6 would only have applied in this case if the depot had been held immediately prior to 1 April 1974 by LUDC as highway authority for the purposes of its functions in relation to the highway or which has been acquired by them as highway authority for the highway and not appropriated for any other purpose.  There is no evidence that the land was either held or acquired by LUDC as highway authority.  Rather, the evidence is that it was used for both highway and other purposes, without there being any suggestion that it should not have been used for those other purposes, and I am satisfied therefore that it was not held by LUDC as highway authority or acquired by it in that capacity.

26.	It follows that it did not pass to the County Council under Article 6.  Further, insofar as it may be relevant, I am satisfied that its user for highway purposes was in relation not just to the highway beside which it stood but also other highways.  If therefore, as I am inclined to think to be the case (although without coming to any decision on the point which was not argued before me), Article 6 is concerned only with land which is held, in effect, as ancillary to a particular highway and not with land held for highway purposes generally, on this account also, the County Council’s attempt to invoke Article 6 would fail.

27.	It appears to me to follow that under the provisions of Article 16(3) of the 1973 Order, the title of LUDC to the depot passed to the District Council.

The application of Articles 19 and 39 to this reference

28.	At the hearing, counsel for the County Council sought to amend the County Council’s  Statement of Case to rely on Articles 19 and 39.  No formal amendment was submitted and permission to amend was opposed by counsel for the District Council on the grounds that that was not the case the District Council had come to meet and in relation to which it had prepared evidence.  If it had appeared to me that there were any real prejudice to the District Council in having Article 19 raised at this very late stage, I would have felt obliged either to refuse permission to amend or to adjourn the case, with a suitable provision as to costs, to enable the District Council to consider its position.  

29.	However, I do not consider that the County Council has any realistic prospect of success on this reference even if it were to amend to rely on Articles 19 and 39, and it is on that ground that I refuse it permission to amend its Statement of Case.  It appears to me that any rights under Article 19 are dependent at this stage upon a determination being made in future under Article 39(3) vesting the depot in the County Council.  For the reasons given, I have no jurisdiction to make any such determination.  The fact that a determination may possibly be made in the future by somebody else does not alter the fact that in my judgment at present the depot is vested in the District Council under Article 16.

30.	Article 16 is not expressed to be subject to Article 19.  Nor does Article 19 purport to affect the legal title to the land.  It simply provides for what purposes land is to be held. LUDC’s legal title to the depot would therefore have vested in the District Council under Article 16 unless Article 19 both applied and had the effect, as counsel for the County Counsel asserted, of making Article 6 apply to the depot.  The most that can be said, however, if Article 19 did apply, is that the depot would be deemed to have been held by LUDC for the purposes of its highway functions.  For the reasons that I have given, that would be insufficient to bring it within Article 6.  I note that Article 39(3)(n) provides, following a determination under Article 39(3)(m) property is to be vested in the authority specified in the determination, but determinations under that provision include determinations required by Articles 10(2), (3), (4), (5) and (5A) which are ancillary to Article 9 and may be required to determine in which authority property vests under that Article.  In my judgment, it is unclear whether a determination under Article 39(3) of an issue under Article 19 could properly affect the legal title to the depot as opposed to the right to use it, but in any event, there has been no such determination.

Findings of fact in relation to Articles 19 and 39

31.	I am satisfied, in the absence of any evidence of any such decision or of any claim by the County Council, that there was no decision by LUDC under Article 19(1), and that no claim was ever made by the County Council either that the depot was to be deemed to be held for the purposes of the functions of the highway authority, or that as a result it was entitled to the depot.

32.	I am also satisfied that the depot was used both for temporary deposits of materials for highway purposes, and for the temporary deposit of materials for other purposes of LUDC, including some purposes which involve functions which have since vested in the two water authorities to which I have referred.  It was being used for general storage purposes immediately before 1 April 1974, including storage of highway and other materials.  The depot was in permanent use for the temporary deposit of materials pending their reuse or disposal.  I do not consider that such use in general terms was temporary in the sense in which the expression is used in Article 19(1), although the storage of particular items was necessarily temporary whether highway items or otherwise.   There is no satisfactory evidence as to what use was more frequent immediately before 1 April 1974.  The only real evidence of user for highway purposes by LUDC was that of Mr. Cooper in his latest statutory declaration, and that is a distant and not very specific recollection which was untested in the witness box and which was not addressed to the questions raised by Article 19.  The burden of proof is on the County Council to establish that the depot was used to the greatest extent by LUDC for the purposes of its function as highway authority. So far as relevant on this reference, it has failed to discharge that burden.

33.	The unsurprising paucity of the current evidence is in my judgment an indication as to the reasons why issues in relation to Article 19 needed to be dealt with around the time of the re-organisation in 1974.  This is why, in my judgment, LUDC was given the job of deciding the matter before it ceased to exist.  Article 19 provided an appeal mechanism if an authority was dissatisfied with a decision of LUDC.  Article 39(2) and (3) provided a mechanism for a determination where LUDC failed to make a determination.  There is no indication that the County Council ever sought to invoke that mechanism before the hearing of this reference, and on the evidence before me I find that on the balance of probabilities it did not.  Had it done so, there would have been some record, and matters would not have progressed without any further reference to it.  I consider that rightly or wrongly the County Council, in the 1970’s did not regard itself as having any claim to the depot and that is why no claim was pursued.

34.	As counsel for the District Council pointed out, this was not a case of the prescribed mechanism failing.  It is a case in which it was never invoked.   There is therefore no failure of inessential machinery such as that referred to by Lord Fraser in Sudbrooke Trading v Eggleton, [1983] AC 444, such that a court would substitute its own machinery.  Indeed, I doubt that, even if the court would have substituted its machinery in the 1970’s, it would be right to do so now when almost all the evidence has been lost, and there is no surviving explanation as to why the County Council did not make any claim to the land for over 30 years.

35.	In the circumstances, it is unnecessary to consider the drafting problems presented by Article 39, but I note that in the version of the 1973 Order put before me, Article 39(3)(l) provides that where notice was given before 1 April 1976, Article 16 was to apply to the property as a temporary provision pending determination of the question.  In other words, until the matter was determined, the depot was to vest in the District Council.  For the County Council to succeed, it would have to show that although the property would have vested in the District Council at least temporarily had it given the appropriate notice before 1 April 1976, its failure to give notice until 2008, possibly because, for good reason which has since been lost, it did not consider in the 1970’s that it had any claim to the depot, meant that the depot did not vest in the District Council under Article 16 at any stage, or possibly at any stage until it gave such notice at the hearing before me.

Conclusion

36.	The depot did not vest in the County Council by virtue of Article 6.  Nor did it vest in the County Council by virtue of Article 19(1).  The only possible claim of the County Council is that a question exists under Article 39(2).  Notice of that question was only given in the course of the hearing.  If, which I doubt, that question is still capable of determination, in default of agreement that question must be determined by an appointee of the Secretary of State under Article 39(3)(m).  Even if that determination can properly specify the authority to whom the property is to be transferred, and does so, for the reasons I have given that authority would only be the County Council if (a) the appropriate findings of fact were made in its favour and (b) it was determined that on that basis the County Council was entitled under Article 19 to have the depot transferred to it, rather than have it held by the District Council for the purposes of the County Council’s function as highways authority.  Meanwhile, the depot ceased to be vested in LUDC on 1 April 1974 and vested in the District Council under Article 16.  Had it not done so, it would have been entirely without an owner for the past 34 years.  As a result, the District Council was entitled to be registered with at least a possessory title in 1989.  

Costs

37.	It is unfortunate that this dispute between two local authorities serving in part the same communities should have had to be determined in litigation at the inevitable expense of the local residents being served by those councils.  However, it appears to me that subject to any representations which the County Council may wish to make by 28 January 2009 that the District Council’s costs of this reference from the date of the reference should be paid by the County Council and should be assessed if not agreed.  If the County Council wishes to make any such representations, it should do so by 28 January 2009.  The District Council should indicate by the same date the total amount of costs being claimed.

Dated this 13th day of January 2009

By Order of The Adjudicator to HM Land Registry