REF/2010/0982

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
(1) CHARLES WILLIAM LECHMERE BARWELL
(2) ANTHONY GRAHAM INGHAM
APPLICANTS
and
JOSEPH MICHAEL SKINNER 
RESPONDENT

Property Address: Swn Y Nant and Arfon House, Holyhead Road, Betws-Y-Coed LL24 0AP 

Title Numbers: WA526117 and WA576299

Before: Mr Simon Brilliant sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Chester Crown Court, The Castle, Chester, Cheshire CH1 2AN 

On: 2, 3 and 4 August 2011

Site view: 1 August 2011

Applicants’ Representation:		Mr T Walsh of counsel.

Respondent’s Representation:		Mr DC Green of counsel.

DECISION

Rectification and alteration of the register – adjoining properties once in common ownership – the respondent’s property sold off first in 1975 and registered first in 1990 – at the time of first registration the title plan of the respondent’s property included the disputed land – application to remove the disputed land from the respondent’s title and to add it to the applicants’ title – issues as to whether the disputed land was conveyed to the respondent’s predecessors in title in 1975 -  whether the application was for rectification or alteration of the register - whether the respondent was a proprietor in possession - whether there were exceptional circumstances justifying not making the alteration. 

Lee v Barrey [1957] Ch 251, Neilson v Poole (1969) 20 P&CR 909, Wiggington & Milner Ltd v Winster Engineering Ltd [1978] 3 All ER 436, Cutlan v Atwell (1994) unreported, Partridge v Lawrence [2004] 1 P&CR 14, Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch), Ali v Lane [2007] 1 P&CR 14, Strachey v Ramage [2008] 2 P&CR 8, Ramzan v Brookwide Ltd [2010] EW Misc 13 [EWCC] and  Drake v Fripp [2011] EWCA Civ 1279.

Contents

Introduction.	1-17	
The witnesses.	18-20	
The issues.	21	
The layout of the site		
Generally.	22-26	
The south car park.	27-30	
The brown land. 	31-33	
The green land.	34-35	
The blue land.	36-37	
The mauve land.	38-40	
The conveyancing history		
The 1975 conveyance.	41-57	
The 1981 conveyance.	58-59	
The 1990 transfer.	60	
Mr Skinner’s purchase of Swn Y Nant. 	61-77	
Was the inclusion of the disputed land within Swn Y Nant’s title plan a mistake when the respective titles to Arfon House and Swn Y Nant were registered? 	78-92	
If there has been a mistake, is the application to alter the register one for rectification of the register?	93-115	
If the application is for rectification, is there a restriction on how the power to alter the register must be exercised, pursuant to paragraph 6(2) of schedule 4 to the Land Registration Act 2002?	116-120	
If there is a power to rectify, are there exceptional circumstances which would justify not making the alteration, within paragraph 6(3) of schedule 4 to the Land Registration Act 2002?	121	
If the application is not for rectification, are there exceptional circumstances which would justify not making the alteration, by analogy with rule 126(2) of the Land Registration Rules 2003?	122-133	
Conclusion.	134-137	

Introduction

1.	Mr Barwell and Mr Ingham, the applicants, have since 1990 been the freehold proprietors of Arfon House, Holyhead Road, Betws-Y-Coed LL24 0AP (“Arfon House”), which is registered at HM Land Registry under title number WA576299.  Arfon House is a substantial Edwardian detached property.  It was originally built as a house.  It was later adapted for commercial use on the ground floor and residential use on the first floor.  Since 1990 it has been used entirely for commercial use.  

 2.	Mr Barwell and Mr Ingham bought Arfon House for use as a retail shop by Cotswold Camping Ltd (“Cotswold Camping”), the outdoor clothing company they then controlled.  They granted a lease of Arfon House to Cotswold Camping in 1990.  In 1997 they sold the company and granted a new lease to it for 15 years from 1 March 1996. Cotswold Camping or an associated company remains in possession under the 1997 lease.

3.	Mr Skinner, the respondent, is a solicitor in private practice in Birkenhead. He specialises in employers’ liability litigation.  Since 2008 he has been the freehold proprietor of Swn Y Nant, Holyhead Road (“Swn Y Nant”), which is registered at HM Land Registry under title number WA526117.  Swn Y Nant is also a substantial detached house, and it is the neighbouring property to Arfon House. It is agreed that both properties were built at the same time.  

4.	Mr Skinner bought Swn Y Nant, which is at present empty, for development.   He has planning permission to turn Swn Y Nant into two separate units.  He hopes to use these units partly to provide a holiday home for himself and his family, and partly for holiday lettings to produce an income.

5.	The properties were in common ownership until 1975.  By a conveyance dated 10 April 1975 (“the 1975 conveyance”) the then owners of both properties, Mr and Mrs Jack Childs, sold off Swn Y Nant to Mr and Mrs Stephen Childs. It is believed that Stephen was Jack’s son. 

6.	By a conveyance dated 1 April 1981 (“the 1981 conveyance”) Mr and Mrs Jack Childs sold Arfon House to Mr and Mrs Stephen Childs.   It is not known whether Mr and Mrs Stephen Childs still owned Swn Y Nant at that date.  If they did, the properties then reverted to common ownership.

7.	If the properties never reverted to common ownership the 1975 conveyance still determines the boundaries between the properties, unless there was a subsequent transfer of part of Arfon House to Swn Y Nant.  

8.	If the properties did revert to common ownership the 1975 conveyance will still determine the boundaries between the properties, but only if on the subsequent sale of Swn Y Nant by Mr and Mrs Stephen Childs the boundaries used on the 1975 conveyance were used again.

9.	It is not known when Mr and Mrs Stephen Childs sold Swn Y Nant but they must have done so before its title was first registered on 30 January 1990.  No copy of the conveyance or transfer has been found.

10.	By a transfer dated 10 August 1990 (“the1990 transfer”) Mr and Mrs Stephen Childs sold Arfon House to Mr Barwell and Mr Ingham.  It follows that if the properties did revert to common ownership after 1975, Mr and Mrs Stephen Childs sold off Swn Y Nant before selling Arfon House.

11.	When the title to Swn Y Nant was first registered on 30 January 1990, the title plan included within its boundaries an area of land which Mr Barwell and Mr Ingham contend does not fall within its title, but falls within Arfon House’s title.  I shall refer to this land as “the disputed land”.   When the title to Arfon House was first registered on 24 January 1991, the title plan did not include the disputed land within its boundaries.

12.	The disputed land, as shown on the title plans, is coloured brown, blue and mauve on the Land Registry plan at page 19 of the trial bundle.  The position of the disputed land as it is on the ground is agreed by both parties’ expert surveyors to be as shown on the plan prepared by Mr Welch at page 307 of the trial bundle. For illustrative purposes only, a plan is attached which shows the approximate position of the disputed land on Mr Welch’s plan.  I have divided the land coloured blue on the Land Registry plan into two, and coloured part of it green. 

13.	Mr Barwell and Mr Ingham applied to Land Registry on 9 January 2009 to alter the register by removing the disputed land from Swn Y Nant’s registered title and adding it to Arfon House’s registered title (“the original application”). They argue that, on is true construction, the disputed land was not included within the land conveyed by the 1975 conveyance. They contend that the properties never reverted to common ownership after 1975, and that the 1975 conveyance determines the boundaries between the properties.  

  14.	Mr Skinner objected to the original application by a letter dated 20 March 2009.  He argues that, on its true construction, the mauve land at least was included within the land conveyed by the 1975 conveyance. He contends, in addition, that the properties did revert to common ownership after 1975, so that the 1975 conveyance is not determinative of the boundaries between the properties.  

15.	The dispute was referred to the adjudicator under section 73(7) of the Land Registration Act 2002 on 24 September 2010.

16.	Mr Skinner is not, and has never claimed to be, in possession of the brown, blue or green land, all of which has used by Cotswold Camping as part of Arfon House since 1990.   Mr Skinner does not suggest he has any use for any of this land.   It became apparent during the hearing that Mr Skinner’s real concern is about the use of the mauve land, which is part of the car park at the front of Swn Y Nant.  

17.	The planning permission for the development of Swn Y Nant requires four car parking spaces to be provided.  Mr Skinner believes that there is not enough room to lay out four parking spaces in front of Swn Y Nant unless use is made of the mauve land.  If the mauve land cannot be used as car parking space for Swn Y Nant he will be unable to complete his development, and will incur a substantial financial loss.

The witnesses

18.	Mr Ingham gave oral evidence.  He put in a statement under the Civil Evidence Act 1995 by Mr Pierce, a local builder, who carried out work to Arfon House after it was purchased by Mr Barwell and Mr Ingham in 1990.

19.	Mr Skinner gave oral evidence.  He called Mr Aiken, the manager of the Cotswold Camping shop.

20.	Both sides relied upon written expert surveying evidence.  Mr Barwell and Mr Ingham instructed Mr Stephen Welch FRICS of Byrom Clark Roberts who wrote a report dated 21 April 2011.  In response, Mr Skinner instructed Mr Euan Elliott MRICS of Dixon Webb LLP who wrote a report dated 14 July 2011.  

The issues

21.	The issues I have to decide are as follows:

(1)	Was the inclusion of the disputed land within Swn Y Nant’s title plan a mistake when the respective titles to Arfon House and Swn Y Nant were registered? 

(2)	If there has been a mistake, is the application to alter the register one for rectification of the register?

(3)	If the application is for rectification:

(a)	Is Mr Skinner in possession of any of the disputed land so that there is a restriction on how the power to alter the register must be exercised, pursuant to paragraph 6(2) of schedule 4 to the Land Registration Act 2002?

(b)	If there is a power to rectify, are there exceptional circumstances which would justify not making the alteration, within paragraph 6(3) to schedule 4 to the Land Registration Act 2002?

(4)	If the application is not for rectification, are there exceptional circumstances which would justify not making the alteration, by analogy with rule 126(2) of the Land Registration Rules 2003?
 
The layout of the site

Generally

22.	Arfon House and Swn Y Nant lie at the apex of a triangle between Holyhead Road to the east and Ffordd Craiglan to the west.  Arfon House lies to the north and to the east of Swn Y Nant.  Access to Swn Y Nant from Holyhead Road is along an express right of way, 9 feet wide, granted over the eastern edge of Arfon House (the right of way”).  

23.	The right of way leads to a strip of land, also 9 feet wide, running along the southern edge of Swn Y Nant (“the strip”).  The strip leads to Swn Y Nant’s detached garage.  It does not lead directly to the front gate of Swn Y Nant.

24.	Ffordd Craiglan rises steeply from its junction with Holyhead Road, and there is no access to that part of Swn Y Nant which is relevant to this reference from Ffordd Craiglan.

25.	At the front of the Swn Y Nant a low wall runs north east from point G to point F, and then north from point F to a pillar at point E (“the low wall”).  There is another pillar at point B.  There is a gate between these pillars giving access to the front garden of Swn Y Nant, which has been terraced.

26.	A wall runs west from the pillar at point B to point A (“the southern wall”).   A short distance to the east of the pillar at point B, a wall built in 1990 runs north from point D to meet the southern wall of Arfon House at point C (“the eastern wall”).  

The south car park 

27.	The land to the south and east of the low wall (“the south car park”) is surfaced in tarmac, and has historically been used as a car park by the occupiers of both properties regardless of the boundary between the properties which runs through it.  There is nothing on the ground to show where the boundary is. 

28.	Since 1990 the south car park has been shared by the staff of Cotswold Camping and the occupants of Swn Y Nant.  Mr Ingham said that car parking arrangements were left to the manager.  Mr Aiken said that three or four staff cars were usually parked in the south car park.

29.	There are no individual spaces marked out for parking, and drivers park where they can regardless of who owns the land.  There is give and take.  The staff of Cotswold Camping regularly park on the strip, whilst visitors to Swn Y Nant cut across the south car park and park where they can rather than keeping to the right of way and the strip.

30.	The customers of Cotswold Camping do not use the south car park.  But because the members of staff mainly drive to work now, space in the south car park is at a premium. This is exacerbated by the need for Cotswold Camping to store trade waste in the south car park pending collection.

The brown land

31.	A small triangular area at the north west corner of Swn Y Nant’s registered title protrudes to the west of the south west corner of Arfon House’s registered title.  This triangle, the sides of which measure approximately 2.6, 5 and 4.6 metres respectively, consists of the brown land, and an even smaller triangle of land between the brown land and Ffordd Craiglan (“the small triangle”)

32.	Mr Barwell and Mr Ingham do not seek in the original application to remove the small triangle from Swn Y Nant’s title.

33.	The brown land and the small triangle are physically part of Arfon House.  A stone wall to the south of the brown land and the small triangle marks the physical boundary with Swn Y Nant.  A stone staircase of five steps, abutting the stone wall, is situated on the brown land and gives access from Ffordd Craiglan to the first floor rear door of Arfon House. Since 1990 the rear door has given access to the stock room above the shop, and was used in the past for deliveries.

The green land

34.	The green land is an open area or courtyard with a stone floor to the south of Arfon House, bounded by the southern wall, the eastern wall and the blue land.  It is approximately 6 metres long and 3 metres wide.

35.	The green land is used as a place of recreation by the staff of Cotswold Camping and for the storage of rubbish. 

The blue land

36.	The blue land comprises a single storey two room extension to Arfon House.  It is approximately 5 metres long and 3 metres wide. The blue land has been used by Cotswold Camping since 1990 as part of Arfon House.  The smaller of the rooms is a WC.  The larger of the rooms was originally used as an office, but is now used for staff refreshments.  There has been an extension to Arfon House on the site of the blue land since at least 1924.

37.	The blue land is not accessible directly from Arfon House. Each room has a door opening east onto the green land.  Arfon House has a door opening south onto the green land used by Cotswold Camping staff.  This door was built in 1990, replacing one a door a short distance to the east.  

The mauve land

38.	The mauve land is a thin almost rectangular strip of the south car park lying immediately to east of the low wall.  It is bounded at its southern end by the strip.  It is bounded at its northern end partly by the green land, and partly by the southern side of Arfon House.

39.	According to both surveyors the mauve land is 2 metres wide.  It is 9 metres long on its western side and 11 metres long on its eastern side. Both surveyors point out that the mauve land provides access to the front gate of Swn Y Nant from the strip, which would otherwise be prevented by the low wall.  If the mauve land does not fall within Swn Y Nant’s title, access to the front gate could only be obtained along a separate right of way over Arfon House’s part of the south car park.

40.	Mr Green in his skeleton argument raised an argument Mr Skinner had acquired prescriptive rights to cross Arfon House’s part the south car park and to park on the mauve land.   I ruled that these were not issues I could determine.  There has been no application to Land Registry to register the benefit of prescriptive easements.  It would also be unfair and prejudicial to Mr Barwell and Mr Ingham to raise the issues at trial without any opportunity for them to investigate the evidence they might wish to call. 

The conveyancing history

The 1975 conveyance

41.	In 1975 ownership of properties was divided for the first time when Mr and Mrs Jack Childs conveyed the freehold of Swn Y Nant to Mr and Mrs Stephen Childs.  

42.	The parcels clause in the 1975 conveyance is to be found in the first schedule.  The parcels clause relevant to this reference is as follows:

	AND SECONDLY ALL THAT freehold piece or parcel of land situate at Betws-y–Coed in the County of Gwynedd TOGETHER WITH the messuage or dwelling house and other buildings erected thereon known as Swn Y Nant Betws-y-Coed aforesaid all which said property is for the purpose of identification only more particularly delineated on the plan annexed hereto and thereon edged red TOGETHER WITH the right of way with or without vehicles over the land coloured yellow on the said plan annexed hereto

43.	The parcels clause also contained the following:

	AND TOGETHER ALSO WITH all easements quasi-easements liberties privileges rights and advantages now or heretofore occupied or enjoyed therewith or which would be implied against the vendors on the severance hereby effected except rights of light and air or other rights which would restrict or interfere with the free use of the vendors adjoining property known as Arfon House for building and other purposes

The construction of the 1975 conveyance

44.	The 1975 conveyance plan is at page 110 of the trial bundle.  In two obvious respects it is defective. First, the blue land is shown too far to the west, and there is no space for the brown land to the north of it.  Secondly, the strip appears to be less wide than the right of way, although both are of equal width.

45.	However, the blue and green land is clearly identifiable on the plan and is shown outside the boundary of the land conveyed.  

46.	The boundary to the front of Swn Y Nant appears to run along the line of where the low wall now stands, through points G, F E and B.  The location of the pillars at points E and B is specifically marked.  The boundary line extends north through the green land to meet Arfon House to the west of where the eastern wall now stands.  

47.	Mr Welch’s survey plan at page 307 of the trial bundle shows that the disputed land is situated outside the land edged red on the 1975 conveyance plan.  However, the small triangle does fall within the land edged red.

48.	In construing the 1975 conveyance I bear in mind the following propositions:

(1)	Whether a particular parcel of land is or is not included within a conveyance is a mixed question of fact and law.

(2)	Since a conveyance invariably deals with some estate or interest in a physical and unique plot of land, the parties must connect the words of the document with the reality on the ground. Consequently, extrinsic evidence is admissible to identify the plot of land of which the conveyance speaks.  

(3)	If the terms of the conveyance clearly define the land or interest conveyed, evidence is not admissible to contradict the conveyance.  But if the conveyance is not clear, evidence of the physical features of the land is admissible to enable the court to arrive at the most sensible result.

(4)	In Scarfe v Adams [1981] 1 All ER 843, Griffiths LJ said, “But if the terms of the transfer do not clearly define the land or interest transferred, then extrinsic evidence is admissible so that the court may … do the best it can to arrive at the true meaning of the parties upon a true consideration of the language used.”

(5)	In Jackson v Bishop (1979) 48 P&CR 57 Bridge LJ said, “It seems to me that the decision is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible conclusions seems to give the more sensible result.”

(6)	In Partridge v Lawrence [2003] ECWA Civ 1121 Peter Gibson LJ said that extrinsic evidence of the background is always admissible.

(7)	In Ali v Lane [2007] 1 P&CR 14 Carnwarth LJ said that where the information contained in the conveyance was unclear or ambiguous, it was permissible to have regard to extraneous evidence, including evidence of subsequent conduct, provided the evidence was of probative value, in determining what the original parties intended.

(8)	The conveyance and any accompanying plan must be interpreted objectively.  The ultimate question is: what would a reasonable layman think he was buying?

(9)	Whether a plan controls a verbal description or a verbal description controls a plan is a question of construction of the particular conveyance. Where the introductory phrase is to the effect that the property is “more particularly described” in the plan, the plan will prevail over the verbal description.  Where, however, the introductory phrase is to the effect that the plan is “for the purpose of identification only”, the verbal description will prevail over the plan.

(10)	In Neilson v Poole (1969) 20 P&CR 909, both the above phrases were used in the same conveyance.  Megarry J said, “Where both forms of expression are used together, as in the present case, they may indeed tend to be mutually stultifying.  Certainly I do not think that they give the plan any predominance.”    

(11)	In Wiggington & Milner Ltd v Winster Engineering Ltd [1978] 3 All ER 436 the Court of Appeal held that although a plan annexed to a conveyance and described as “for the purpose of identification only” could not contradict anything which was explicit in the description of the parcels, it could be used to elucidate the identity of the property which the conveyance was intended to convey where it was not made explicit in the description of the parcels.

49.	I am entitled to give some weight to the 1975 conveyance plan despite the mutually stultifying phraseology. I am entirely satisfied from the 1975 conveyance plan, the relevant physical features on the ground and the known use of the properties that the blue, green and brown land was not within the land conveyed by the 1975 conveyance.

50.	I prefer Mr Walsh’s submissions to those of Mr Green as to whether or not the mauve land was within the land conveyed by the 1975 conveyance.  Over six weeks after the close of the evidence, Mr Skinner disclosed a file of planning documents.  It included a plan drawn on 10 February 1975, only two months before the 1975 conveyance, which suggests that there was no wall in front of Swn Y Nant at that time as parking bays have been marked directly in front of the building.

51.	In my judgment, the 1975 conveyance shows the intended line of the boundary at the front of Swn Y Nant running along the line where the low wall was subsequently built, thus excluding the mauve land from the land conveyed by the 1975 conveyance.  This is entirely consistent with the expert surveying evidence.

52.	It is true that the boundary shown on the 1975 conveyance plan continues north from point B through the green land towards Arfon House, and that there is no wall there now.  But Mr Ingham’s evidence is that he built the eastern wall, which is close to that boundary, in 1990.  It is likely that the eastern wall replaced an earlier wall in a slightly different position.

53.	I am not persuaded that there was another wall, since demolished, to the east of the low wall which was the boundary feature in 1975.  There is no evidence of the existence of such a wall, and the plan drawn on 10 February 1975 suggests the opposite.  I do not accept that the plan prepared in 1969 and found in the planning file, which shows an intention to build a wall between 23 and 29 feet to the front of Swn Y Nant, is of any assistance to me.  There is no evidence that such a wall was built and the particular project to which the plan relates was never carried out. 

54.	The inset location plan on the 1975 conveyance plan indicates by broken lines a pedestrian right of access to the front gates of Swn Y Nant across Arfon House’s part of the south car park.  This counters any argument that the mauve land had to be been conveyed with Swn Y Nant to enable access to be gained to the front gate. 

55.	In 1997 Mr Barwell and Mr Ingham granted a new lease of Arfon House to Cotswold Camping.  The plan to the lease, which was for the purposes of identification only, does not include the mauve land.  The plan was copied from the Land Registry title plan, and I do not find it probative of what the boundary was intended to be in 1975.
 
56.	In my judgment the 1975 conveyance did not convey any of the disputed land to Swn Y Nant.

57.	Mr Barwell and Mr Ingham have not applied to alter the register in respect of the small triangle.  It was agreed at the hearing that I did not have jurisdiction to deal with the small triangle in this reference but the parties would find it of assistance if I made findings of fact in respect of it.  I will simply record that the small triangle was physically part of Arfon House in 1975, and was not physically part of Swn Y Nant.

The 1981 conveyance 
 
58.	In 1981 Mr and Mrs Jack Childs conveyed the freehold of Arfon House to Mr and Mrs Stephen Childs.  The parcels clause in the 1981 conveyance is to be found in the schedule, which reads as follows:

	ALL THAT land and property know as Arfon Stores Betws-y-Coed Gwynedd as the same are firstly secondly and thirdly described in the [1965 conveyance] TOGETHER with the rights and benefits contained or referred to in the [1965 conveyance] SAVE AND EXCEPT the property conveyed by the Vendors to the Purchasers by [the 1975 conveyance].

59.	Since I have found that the 1975 conveyance did not include the disputed land, it follows that the 1981 conveyance necessarily include the disputed land.

The 1990 transfer

60.	The 1990 transfer of Arfon House, which prompted first registration, contained the following parcels clause:

	...the land comprised in [the 1981 conveyance] TOGETHER WITH but SUBJECT TO the rights and other matters contained in [the 1975 conveyance].

Mr Skinner’s purchase of Swn Y Nant 

61.	I must now set out in some detail the circumstances in which Mr Skinner purchased Swn Y Nant.

62.	Mr Skinner has for many years enjoyed spending recreational time with his family in Snowdonia, and in 2005 decided to purchase a property in or around Betws-y-Coed.  

63.	He first saw Swn Y Nant in late 2006.  It was for sale at an asking price in the region of £250,000.  He viewed the property and met the owner, Ms Monti.  She lived in Liverpool and used Swn Y Nant partly as a holiday home and partly for holiday lettings to produce an income.

64.	Ms Monti explained that the south car park was shared by both properties and had been throughout her predecessor in title’s ownership. She understood that the parking area had been shared in this way since the 1950’s.  Ms Monti told Mr Skinner that the front boundary of Swn Y Nant was 4 metres forward of the low wall.  

65.	Ms Monti explained that the employees of Cotswold Camping were allowed to park three or four vehicles on the strip. In return visitors to Swn Y Nant would not be confined to driving along the right of way, but would cut across onto Arfon House’s part of the south car park and park where they could. 

66.	Mr Skinner spoke to Mr Aiken and his assistant.  They confirmed what Ms Monti had said.  It was explained that if the Cotswold Camping staff could not park along the strip, they would not be able to manoeuvre three or four vehicles in and out of the south car park 

67.	I asked Mr Skinner whether in his conversation about shared parking he was referring to the whole of the south car park in front of the low wall, or just to the land to the front of the mauve land.  He replied that it was the latter, but I consider it more likely that this conversation was in respect of the whole of the south car park including the mauve land.  There was nothing on the ground separating the mauve land from the rest of the south car park.  Mr Skinner was aware from his own observations when visiting Swn Y Nant before he purchased it that sometimes the employees of Cotswold Camping would park on the mauve land.

68.	Mr Skinner became very interested in buying Swn Y Nant and considered converting it into two separate units.  Each would have two bedrooms and would be suitable for holiday lets.  He planned to rent one of the units out all year round.  The other unit would either be occupied by himself and his family or let out.  He found out from the planning authority that he would need to provide two car parking spaces per unit.

69.	Mr Skinner put in an offer to purchase Swn Y Nant for £230,000, which was accepted by Ms Monti.  Mr Skinner instructed his conveyancing team to act for him, and Ms Monti instructed Canter Levin.  The replies to enquiries in the Seller’s Property Information Form dated 28 February 2007 included the following:

7.1		Is access obtained to any part of the property over private land, common land or a neighbour’s land?  If so, please specify.  	Yes.  Via car park of Cotswold Outdoor Clothing.	
7.3	Are there any other formal or informal arrangements which you have over any of your neighbour’s property?
(Examples are for access or shared use)	No.	
7.4	Are there any other formal or informal arrangements which [give] someone else has over your property?
(Examples are for access or shared use)	No.	

70.	Mr Skinner told me that he did not review this document.  He left matters to the conveyancing solicitor in his practice, Ms Anderson.  She would then have been of around eight years post qualification experience.  Mr Skinner said that no further queries were raised in respect of the reply to enquiry 7.3 because of the reply to enquiry 7.1.  But enquiry 7.1 was concerned with the right of way.  Enquiries 7.3 and 7.4 related to the shared use of the whole of the south car park and were not consistent with what Mr Skinner had been told by Ms Monti.

71.	Mr Skinner shortly afterwards discovered that the cost of carrying out the proposed conversion work was in excess of the cost projected by his architect.  Ms Monti would not reduce the asking price, and he withdrew his offer.  In September 2007 Mr Skinner discovered that Ms Monti’s mortgagees were now in possession of Swn Y Nant and they accepted a reduced offer of £205,000.

72.	Mr Skinner and his surveyor saw the registered title plan of Swn Y Nant prior to his purchase of the property.  He appreciated that the blue and green land was shown as being within the title, although used as part of Arfon House.  He did not appreciate the brown land was shown as being within the title.  The title plan also showed the mauve land as being within the title. Although the mauve land is only 2 metres wide, Mr Skinner and his surveyor calculated it to be 4 metres deep.  They did this by comparing its width as shown on the title plan to the known width of the front terrace of Swn Y Nant.

73.	Mr Skinner told me that he did discuss with Ms Anderson whether the owners of Arfon House might have various claims to the mauve land.  These claims included adverse possession, a licence to park which might need to be terminated by notice, and a prescriptive right to park.  Mr Skinner was also concerned with the trade waste left on the south car park in case this put holidaymakers off wanting to rent Swn Y Nant.

74.	In October 2007 Mr Skinner’s firm wrote to Land Registry asking for a copy of a 1953 conveyance but was told that no copy had been retained.

75.	Despite the concerns about possible adverse claims to the mauve land and the trade waste left on the south car park, Mr Skinner and Ms Anderson decided together that Mr Skinner should go ahead and purchase Swn Y Nant.  It was considered likely that any problems would be overcome, as everyone appeared to have behaved reasonably in the past. 

76.	Mr Skinner knew he was going to have no use for the blue or the green land.  He referred to it as a bargaining chip.  Mr Skinner told me it only became a bargaining chip after the dispute between the parties developed.  But he was very anxious to complete the purchase of Swn Y Nant.   I think it is more likely that he regarded the blue and green land as a bargaining chip at the time of the purchase.  Trading it in would assist not just in persuading the owners of Arfon House to clean up the south car park, but also assist in any dispute which might arise about the mauve land.

77.	Mr Skinner completed the purchase of Swn Y Nant on 11 January 2008.  He had not seen any of the pre-registration conveyancing documents, and enquiries of Land Registry suggested that none had been retained.  It was only after the dispute arose that the pre-registration conveyancing documents came to light.  

Was the inclusion of the disputed land within Swn Y Nant’s title plan a mistake when the respective titles to Arfon House and Swn Y Nant were registered?

 78.	In respect of alteration of the register, I am exercising the powers of the registrar.  Paragraph 5(a) of schedule 4 of the Land Registration Act 2002 provides that the registrar may alter the register for the purpose of correcting a mistake.  

79.	I have to decide whether the inclusion of the disputed land within the title plan of Swn Y Nant was a mistake.  

80.	I have set out above my conclusion that the disputed land was not included within the 1975 conveyance.  But when Mr and Mrs Stephen Childs sold Swn Y Nant, was it sold with the 1975 boundaries? 

81.	Mr Walsh argues on behalf of Mr Barwell and Mr Ingham that, on the balance of probabilities, Mr and Mrs Stephen Childs sold Swn Y Nant before they purchased Arfon House in 1981, so that when Swn Y Nant was sold it must have been with the 1975 boundaries.

82.	Mr Green argues on behalf of Mr Skinner that, on the balance of probabilities, Mr and Mrs Stephen Childs sold Swn Y Nant after they purchased Arfon House in 1981, so that both properties were owned by Mr and Mrs Stephen Childs at the same time.  

83.	Mr Green further submits that since no one has had sight of the conveyance or transfer by which Mr and Mrs Stephen Childs did sell off Swn Y Nant, it is impossible for me to know whether the boundaries shown on its registered title are incorrect.  The original application is bound to fail.

84.	A more moderate version of that argument is that, on the balance of probabilities, the conveyance or transfer by which Mr and Mrs Stephen Childs did sell off Swn Y Nant did indeed convey or transfer the disputed land.  This argument is particularly relevant to the mauve land which, it is suggested, was required to provide access to the front gate of Swn Y Nant.

85.	For Mr Green to succeed on this argument, he will need to show both that Mr and Mrs Stephen Childs sold Swn Y Nant after they purchased Arfon House in 1981 and that when they did so the conveyance or transfer differed from the 1975 conveyance and included the disputed land.

86.	Although I consider it more likely than not that the properties did revert to common ownership after 1981, I prefer Mr Walsh’s argument that the subsequent conveyance or transfer of Swn Y Nant was of the same land as was included in the 1975 conveyance and did not include the disputed land.

87.	When title to Swn Y Nant was registered in 1990 entry number 4 in the property register referred to the following rights reserved in a Conveyance of the land in this title dated 10 April 1975.  These rights were the right of way and the quasi easements expressly granted by the 1975 conveyance.  This suggests that the land registered in 1990 was the land conveyed in 1975.

88.	There is simply no evidence that any additional land was conveyed or transferred to Swn Y Nant from Arfon House as the surveying experts invite me to find.  The inset location plan on the 1975 plan indicates by broken lines a pedestrian right of access to the front gates of Swn Y Nant, countering the argument that the mauve land must have been conveyed with or to Swn Y Nant to enable access to be gained to the front gate. 
   
89.	The 1990 transfer, which prompted first registration, contained the following parcels clause:

	...the land comprised in [the 1981 conveyance] TOGETHER WITH but SUBJECT TO the rights and other matters contained in [the 1975 conveyance].

90.	The 1990 transfer purported to follow the earlier conveyances of Arfon House and Swn Y Nant.  The land comprised in the 1981 conveyance did include the disputed land.  So it was transferred to Mr Barwell and Mr Ingham.  If Mr and Mrs Stephen Childs had conveyed or transferred the disputed land out of Arfon House to Swn Y Nant prior to the 1990 transfer, the 1990 transfer would not have been drafted in these terms.

91.	The eastern boundary of the mauve land is delineated on both properties’ title plans by a dotted line.  The legend on the title plan states that the boundaries shown by dotted lines have been plotted from the plans on the deeds.

92.	The relevant deed is the 1975 conveyance.  The dotted line showing the eastern boundary of the mauve land on both properties’ title plans does not accord with the correct position of the boundary as determined by the 1975 conveyance. I am therefore satisfied that there is a mistake in the title plan of Swn Y Nant in that it includes the disputed land.

If there has been a mistake, is the application to alter the register one for rectification of the register?

93.	Paragraph 1 of schedule 4 to the Land Registration Act 2002 provides that alteration involving the correction of a mistake and prejudicially affecting the title of a registered proprietor amounts to rectification.  

94.	Paragraph 6(2) of schedule 4 to the Land Registration Act 2002 provides:

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.

95.	At the hearing both counsel were agreed that the original application involved a claim for rectification of the register as the removal of the disputed land from Mr Skinner’s title would prejudicially affecting his title.  It was therefore common ground that, if Mr Skinner was in possession of any of the disputed land, he was entitled to the protection of paragraph 6(2) to schedule 4 in respect of such land.

96.	Following the hearing Mr Walsh invited me to consider whether in fact the original application was for alteration rather than rectification of the register.  He relied upon Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) in which it was held that correcting as a mistake a general boundary shown in the wrong place did not prejudicially affect the party’s title, because the boundary indicated on the title plan did not represent the actual boundary of the party’s title. What the alteration would do would produce “another general boundary in a more accurate position than the current general boundary.”  This statement by a deputy adjudicator and approved on appeal by the judge, has been expressly approved by the Court of Appeal in Strachey v Ramage [2008] 2 P&CR 8, [47] and Drake v Fripp [2011] EWCA Civ 1279, [22].

97.	The difference between alteration and rectification is important to Mr Skinner.  In a case of alteration, rather than rectification, Mr Skinner would not be entitled to the protection of paragraph 6(2) to schedule 4, and would not be entitled to an indemnity if I were to correct the mistake.

98.	I invited both parties to make written submissions on this issue, which raises the question whether any given dispute is properly characterised or classified as a boundary dispute or a property dispute.  Both counsel provided me with full and careful submissions.  Subsequently, the Court of Appeal delivered its judgment in Drake v Fripp [2011] EWCA Civ 1279, and counsel made further written submissions on the light of that decision.

99.	Mr Walsh submitted that the answer to the question of whether the application involved rectification or alteration is not necessarily the same for the brown, blue, green and mauve land.  I do not consider that to be the correct approach in principle, at least where, as here, the disputed land is contiguous. As is explained below, it is a question of fact and degree whether a given dispute is a boundary dispute or a property dispute. 

100.	In 1990 the then owners of Swn Y Nant applied for first registration.  I have already found that the land being registered was the land conveyed by the 1975 conveyance. What should have been shown on the title plan was the land conveyed by the 1975 on its true construction.  Instead, because of a serious mapping error on the title plan, a strip of land in three directions and between 2 and 3 metres wide was shown included within the northern and eastern boundaries of Swn Y Nant. This strip is the disputed land, and I propose to treat its inclusion within the boundary as a single mistake. 

101.	Registered land has to be identified or described.  Section 76 of the Land Registration Act 1925 provided that the description could include a plan based on the Ordnance Survey map.  This was known as a “filed plan”.  Rule 5(a) of the Land Registration Rules 2003 now provides that the description must refer to a plan based on the Ordnance Survey map.  This is now known as the “title plan”.

102.	It is well known that the boundaries on the filed plan or title plan are only general boundaries.  Rule 278 of the Land Registration Rules 1925 provided: 

(1)	Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed 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 portion of an adjoining road or stream. 

103.	Nowadays, section 60 of the Land Registration Act 2002 provides:

(1)	The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

(2)	A general boundary does not determine the exact line of the boundary.

104.	The starting point of any discussion must be the decision of the Court of Appeal in Lee v Barrey [1956] 1 Ch 251.  The defendant purchased a plot of land.  The plan on the transfer showed the plot with an angle in the side boundaries. The transfer was registered, but the file plan showed the side boundaries to be straight.  The frontage actually transferred was 42 feet.  The extra land included on the file plan was at least 10 feet wide. The defendant assumed the file plan had given him extra land, and he built part of his house on it.  The plaintiff brought a claim in trespass, although he sought damages not an injunction that the house be torn down.  He did not ask for rectification of the register.

105.	The defence to the claim for trespass was that the title plan gave the defendant a registered title, and that the plaintiff’s only remedy, if at all, was rectification of the register.  The argument on his behalf by Mr JA Plowman QC (as he then was) is recorded as follows:

	The reference in section 76 of the Land Registration Act 1925, to boundaries is not a reference to symbolic boundaries.  They must be fixed with some precision.  The discrepancies which have to be allowed for on the filed plans are only minor discrepancies.  Here the discrepancy between the transfer plan and the filed plan is so great that this is not a case of a boundary dispute but of a property dispute. At its widest the area in dispute amounts to one quarter of the width of the plot.  The defendant has been registered in respect of the wrong property and the plaintiff should have asked for rectification; he has not done that.

106.	This argument was rejected by Lord Evershed MR in the following passage:

	But with all respect to Mr Plowman’s argument, which he has put before us with his customary skill and force, I find myself to be in this respect of entirely the same opinion as was Jenkins LJ.  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. 
	
107.	Mr Green asks me to find this case of limited assistance.  He points out that the 10 foot divergence was only at the frontage and it reduced over 250 feet to nothing at the bottom of the plot.  Its correctness appears to have been doubted by Peter Gibson LJ in Cutlan v Atwell (1994) unreported.   In Ramzan v Brookwide Ltd [2010] EW Misc 13 [EWCC] Ms Geraldine Andrews QC held that the general boundaries rule did not extend to include the flying freehold of a small store room.  She said at [77]:

	In Cutlan v Atwell (unreported) 30 November 1994, which was followed in Chadwick v Abbotswood, Peter Gibson LJ expressed the view that the judge may have been misled by a decision in an earlier case into thinking that a divergence of 10 feet was acceptable under the general boundaries rule. Mr Clarke therefore submitted that if a divergence of 10 feet is unacceptable, one could not rely on the general boundaries rule to extend the boundary drawn on a plan so to embrace an entire room. I accept that submission. In a case such as the present, the general boundaries rule is of limited assistance to the Court. At most, the rule is indicative that the party wall is not necessarily where the true boundary between No.123 and No.125 lies (at least, at first floor level) even though the plans, on their face, may appear to suggest otherwise.
	 
108.	I see the force of Mr Green’s submission, especially in respect of the brown, blue and green land.

109.	However, the Court of Appeal in Strachey v Ramage [2008] 2 P&CR 8 and Drake v Fripp [2011] EWCA Civ 1279 has confirmed that Lee v Barrey [1956] 1 Ch 251 lays down the correct approach, and has approved Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) where Lee v Barrey [1956] 1 Ch 251 was applied.  

110.	The size of the disputed land is not insignificant.  I have already given the measurements of the disputed land.  I was not given the measurements of the whole of the land within the boundaries shown on the title plan.  But doing the best I can from Mr Welch’s plan, the disputed land is between 15% and 20% of the whole.  

111.	In Drake v Fripp leading counsel argued that the general boundaries rule is not concerned with appreciable discrepancies in the representations of the positions of boundaries on a title plan.  Lewison LJ said this at [20]:

Nor do I accept that there is some limit to the quantity of land that might be encompassed in a boundary dispute. It must depend on all the circumstances and in particular the quantity of land abutting the boundary. A dispute over a strip of land a few centimetres wide but running the whole length of, say, a railway or a canal would plainly be a boundary dispute even if the area involved was many hectares. In Lee v Barrey [1957] Ch 251 an alteration in the filed plan to move the boundary by 10 feet fell within the scope of the general boundaries rule, even though the whole frontage of the plot in question was only 42 feet. On the other hand an alteration in the proprietorship of a small strip of land registered under a separate title may well fall outside the scope of the general boundaries rule. In truth whether a change is "appreciable" must depend on all the circumstances; and I can see no objection to the ratio between the quantity of land at issue and the quantity of land remaining being a relevant consideration. Mr Falkowski suggested that the approach might be different if the contest is between two physical features, as opposed to a contest between a physical feature on the one hand and an imaginary line on the other. I do not accept that there is any difference in principle. If parties were to dispute whether the boundary was a hedge as opposed to a ditch; or whether the boundary did or did not include a road, the dispute would still be a boundary dispute. 

112.	I accept that in Strachey v Ramage and Drake v Fripp there was a very small ratio between the disputed land and the quantity of land remaining.  But in Lee v Barrey it was not a mere trifling divergence.  

113.	In Derbyshire County Council v Fallon a plot of 785 square yards (656 square metres) was divided by a plan drawn in 1964.  In 1965 the Fallons’ predecessor in title purchased 375 square yards (313 square metres).  In 1966 the council purchased the remaining 410 square yards (343 square metres). The deputy adjudicator said the disputed area was about 36 metres long and varying between 2 and 4 metres wide.  The judge thought it may not have been quite so long but that nothing turned on its precise length.  On the deputy adjudicator’s figures the area of the disputed land was therefore in excess of 72 square metres and may have been around 100 square metres. 

114.	In his first instance decision in Derbyshire County Council v Fallon (2006) Reference 2005/0106 [40] the deputy adjudicator said of the disputed area:  

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.  

115.	In my judgment, I should apply the approach taken in Derbyshire County Council v Fallon to the facts of this case.  Mr Skinner’s title plan gives him the correct property, Swn Y Nant as conveyed in 1975, with its general boundaries not being indicated with sufficient correctness and precision.  It does not give him title to the wrong property.  I therefore find this is a case of alteration, not of rectification.

If the application is for rectification, is there a restriction on how the power to alter the register must be exercised, pursuant to paragraph 6(2) of schedule 4 to the Land Registration Act 2002?

116.	If I am wrong on this, and it is a case of rectification, is Mr Skinner entitled to the protection afforded to a proprietor in possession by paragraph 6(2) to schedule 4?

117.	Section 131 of the Land Registration Act 2002 provides:

(1)	For the purposes of this Act, land is in the possession of the proprietor of a registered estate in land if it is physically in his possession, or in that of a person who is entitled to be registered as the proprietor of the registered estate. 

(2)	In the case of the following relationships, land which is (or is treated as being) in the possession of the second-mentioned person is to be treated for the purposes of subsection (1) as in the possession of the first-mentioned person— 

(a)	landlord and tenant; 

(b)	mortgagor and mortgagee; 

(c)	licensor and licensee; 

(d)	trustee and beneficiary.

118.	It is common ground that Mr Skinner is not in possession of the brown, blue or green land.  Is Mr Skinner in possession of the mauve land?

119.	Mr Skinner has parked from time to time on the mauve land but his use of it amount to no more than that.  The mauve land is not physically in his possession.  Mr Green argued ingeniously that the car parking arrangements between Mr Skinner and the staff of Cotswold Camping meant that Mr Skinner was to be treated as being in possession of the mauve land through his licensees.  However, I do not regard the use made of the mauve land by the staff of Cotswold Camping for parking as amounting to possession of the mauve land.
	
120.	Accordingly, I find that Mr Skinner is not a proprietor in possession of the mauve land and is not entitled to the protection afforded to a proprietor in possession by paragraph 6(2) to schedule 4.  

If there is a power to rectify, are there exceptional circumstances which would justify not making the alteration, within paragraph 6(3) of schedule 4 to the Land Registration Act 2002?

121.	Paragraph 6(3) of schedule 4 of the Land Registration Act 2002 provides that if on an application for alteration amounting to rectification, the registrar has power to make the alteration, it must be approved, unless there are exceptional circumstances which justify not making the alteration.  I have found that this is an application for alteration not amounting to rectification so this issue is more appropriately considered below.

Are there exceptional circumstances which would justify not making the alteration, by analogy with rule 126(2) of the Land Registration Rules 2003?

122.	Where the court has before it an application for alteration not amounting to rectification, rule 126 of the Land Registration Rules 2003 provides that the court must make an order unless there are exceptional circumstances that justify not doing so.

123.	There is no equivalent rule where the application for alteration is made to the registrar. Where there is a dispute, the registrar’s powers are the ones exercised by the adjudicator.  In Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) [28], it was held that the adjudicator is entitled to adopt a similar approach to that set out in rule 126.  

124.	It is submitted on behalf of Mr Skinner that there are exceptional circumstances:

(1)	If this is not a case of rectification, Mr Skinner will not be entitled to an indemnity.

(2)	The title plans of both properties are consistent and have remained so for 20 years.

(3)	Mr Barwell and Mr Ingham were registered as the first proprietors of Arfon House.  They or their solicitors ought to have been aware that there was a mistake on their title plan and should have taken steps at the time to have had it corrected.  They are culpable for having allowed this mistake to be perpetuated, and have exposed purchasers of Swn Y Nant to substantial prejudice.

(4)	Mr Barwell and Mr Ingham have let Arfon House using what, on their case, is the wrong plan.

(5)	Mr Skinner acted reasonably on his purchase of Swn Y Nant and was entitled to rely on the title plan even with knowledge that the blue land was occupied and the mauve land was shared.

(6)	Mr Skinner would be substantially prejudiced financially if he was unable to proceed with his proposed development of Swn Y Nant.  He will lose the expected rental income and future capital growth.  He will stuck with the continuing costs of financing the purchase and running costs of Swn Y Nant without the benefit of any income from it.

(7)	There would be little or no prejudice to Mr Barwell and Mr Ingham as they do not use the mauve land and it is not demised to Cotswold Camping.  The ongoing use of the mauve land by Cotswold Camping would not be affected by any refusal of alteration but would depend on any ongoing informal arrangement.

125.	There is weight to some of these submissions.  It is true that Mr Barwell and Mr Ingham or their solicitors failed to appreciate that the title plan of Swn Y Nant was incorrect.  I am also prepared to accept that Mr Skinner will not be able to provide sufficient car parking for the proposed development at Swn Y Nant if he is unable to make use of the mauve land, and that this will cause him substantial financial loss.  There is no suggestion that the removal of any other part of the disputed land from the title plan will cause Mr Skinner any loss.

126.	The difficulty I have in finding that there are exceptional circumstances in favour of Mr Skinner is caused by the unusual circumstances in which he purchased Swn Y Nant.  I have set out the facts in paragraphs 61-77 above.  Firstly, I am satisfied that Mr Skinner knew the title plan of Swn Y Nant did not accord with reality, in that it showed the blue and green land within the title, although the land was being used as part of Arfon House.  

127.	Secondly, he aware that employees of Cotswold Camping were parking on the mauve land and discussed potential problem from this with Ms Anderson.  Despite this he elected to go ahead with the purchase at what appeared to be a favourable price.  My finding is that at the time of buying he had decided to use the blue and green land as a bargaining chip to help in the future secure his position on the mauve land, and to help persuade the owners of Arfon House to clean up the south car park.  Unfortunately, negotiations after the purchase did not lead to a successful outcome from his point of view.

128.	Although Mr Skinner completed the purchase of Swn Y Nant on 11 January 2008, Ms Anderson wrote to Land Registry on 8 January 2008:

	We write with reference to the above where we have recently completed the purchase of the above property on behalf of our client Mr J Skinner...

	Our client now wishes properly to define the extent of his boundaries so that he can progress certain works which are intended.  To this end it is important we obtain a copy of the conveyance dated 24 December 1953...

	It is important we are able to define the dimensions of the portions of land comprised in both these two title numbers. 

129.	Mr Skinner told me that when this letter was written he knew he had the mauve land and simply wanted the exact measurements.  Nevertheless the measurements were important to the carrying out of the development.   This letter reinforces my impression that Mr Skinner was anxious to complete the purchase and sort out the details of the boundaries later. 

130.	Mr Skinner did not raise any queries about the boundaries with Mr Barwell and Mr Ingham until after he had purchased Swn Y Nant.  He wrote to them on 28 June 2008, six months after the purchase, with his proposals to put car parking spaces where the terraced front garden of Swn Y Nant is situated.  Mr Ingham asked his solicitors to investigate the matter and by September 2008 they had obtained the 1975 conveyance from Land Registry and the question of whether a mistake had arisen over the mauve land arose.  In December 2008 Mr Ingham wrote to Mr Skinner saying that he did not accept there was joint ownership of the area described as “car park” on the 1975 conveyance.

131.	If Mr Skinner had approached Mr Barwell and Mr Ingham and waited for an answer to his suggestions about the proposed development before purchasing, he would have appreciated that there would be a dispute about the mauve land.

132.	Moreover, I do not accept that Mr Barwell and Mr Ingham would not be prejudiced by the loss of the mauve land.  Cotswold Camping needs as much space as it can find in the south car park for parking and for storage of trade waste.  If permission to use the strip for parking were to be withdrawn the loss of the mauve land would be particularly acute.

133.	For these reasons I do not find that there are exceptional circumstances 

Conclusion

134.	I will direct the registrar to give effect to the original application as if the objection had not been made.  

135.	The general rule is that costs should follow the event.  If there are any particular reasons why Mr Skinner consider that costs should not follow the event, his solicitors should serve written submissions on the Mr Barwell and Mr Ingham’s solicitors and on the adjudicator by 4.0pm 6 January 2012.  

136.	In the meantime Mr Barwell and Mr Ingham’s solicitors should serve on Mr Skinner’s solicitors and on the adjudicator a schedule of costs incurred since the reference on 24 September 2010 by 4.0pm 6 January 2012, together with any submissions as to whether the assessment should be conducted summarily or by way of a detailed assessment.  Mr Skinner’s solicitors should by 4.0pm 13 January 2012 write to Mr Barwell and Mr Ingham’s solicitors and the adjudicator stating whether or not they consider the assessment should be conducted summarily or by way of a detailed assessment.  A decision will then be made as to how the costs are to be assessed and further directions will be given.

137.	I would like to thank both counsel for their very thorough and careful arguments both at the hearing and in the subsequent written submissions.

Dated 19 December 2011

 
BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY