Prashar and another v Tunbridge Wells Borough Council

[Boundary dispute – Alteration of register – Land Registration Act 2002 – Respondents obtaining alteration of register to show layby falling on their side of boundary with appellant’s land – Whether deputy adjudicator reaching conclusion open to him on evidence – Whether alteration amounting to rectification within para 1 of Schedule 4  Appeal allowed The appellants owned land on which there was a parade of shops and flats dating from the 1930s. A multi-storey car park stood on adjacent land belonging to the respondent council. The parade was separated from the respondents’ land by a service road with a layby running alongside it, abutting the respondents’ land. A Land Registry file plan, showing the boundary between the two properties, showed both the service road and layby as falling entirely within the appellants’ title. The respondents maintained that the layby belonged to them and that the boundary was incorrectly shown on the file plan; accordingly, in 2010 they applied to alter the register to correct that alleged mistake, pursuant to para 5 of Schedule 4 to the Land Registration Act 2002. The matter was determined by a deputy Land Registry adjudicator. It was common ground that the boundary was fixed by two conveyances of the parties’ respective properties affected by a common predecessor in title in 1937. The 1937 conveyance plan showed the boundary running along one wall of a building that had since been demolished. The plan was detailed and gave distances and dimensions between the various features. However, the parade of shops had been constructed in a slightly different position to the one shown on the plan. For the purpose of the application, the respondents’ expert surveyor drew up two plans: one plotted the position of the parade by fitting it to the front wall of the development as shown on the 1937 plan and the other fitted it to the rear wall. The respondents contended that the front fit plan best reflected the boundary while the appellant contended for the rear fit approach. The respondent also relied on the position of a line of metal studs that it had fitted along the wall of the car park. The adjudicator accepted the respondents’ contentions and ordered the alteration of the plan accordingly. On appeal from that decision, the appellants contended that the deputy adjudicator: (i) had not been entitled to order alteration of the register since that amounted to rectification, which was not available against the appellants in the circumstances of the case; and (ii) had erred in accepting the front fit plan. Held: The appeal was allowed. (1) The difference between a straightforward alteration and “rectification”, as defined by para 1 of Schedule 4 to the 2002 Act, was that rectification did not just correct a mistake but also prejudicially affected the title of the registered proprietor. Mere alteration of the register to show more precisely the line of a general boundary was not to be regarded as prejudicially affecting the title of the registered proprietor since that proprietor had never in fact owned any land beyond the line of the general boundary: Derbyshire Council Council v Fallon [2007] EWHC 1326 (Ch); [2007] 3 EGLR 44; [2007] 45 EG 164 and Drake v Fripp [2011] EWCA Civ 1279 applied. Although the area of the layby ran almost the entire length of the parties’ respective titles and was a significant area, the dispute over its ownership was none the less simply a dispute as to whether the line of the general boundary, as shown on the file plan, had been drawn in the correct place and, if not, as to where the line should more accurately be shown. Accordingly, the alteration ordered by the adjudicator did not involve rectification. (2) Although a court on appeal should be reluctant to interfere with the findings of the adjudicator as the expert fact-finding tribunal, the adjudicator in the instant case had not been entitled to conclude that the boundary was as shown on the front fit plan. The front fit plan did not, by a significant margin, match the dimensions shown on the 1937 conveyance plan and accordingly was not consistent with the terms of the 1937 conveyances. By contrast, the rear fit approach gave a good match and the respondents’ surveyor had conceded that it was a possibility. The adjudicator should accordingly have rejected the front fit plan, as being inconsistent with the 1937 conveyances, and instead have adopted the rear fit approach as the only remaining alternative and one on which both parties’ surveyors were effectively agreed. The adjudicator’s conclusion could not be justified by reference to the line of metal studs, which had been placed unilaterally by the respondents many years after the 1937 conveyance. In construing a conveyance, regard could be had to extraneous evidence and subsequent conduct only where the information in the conveyance was unclear or ambiguous. The 1937 conveyances were clear and unambiguous in showing the boundary as lying along the wall of the demolished building. The only difficulty was in determining where that wall would now be on the ground if the building had not been demolished. It was not permissible to admit evidence of the studs to contradict the terms of the 1937 conveyances. The adjudicator was not entitled to find that the line of the studs represented a mutual recognition as to the true boundary: Ali v Lane [2006] EWCA Civ 1532; [2001] 1 EGLR 71; [2007] 02 EG 126 distinguished. Anthony Allston (instructed by Denniss Matthews Solicitors) appeared for the appellants; Wayne Beglan (instructed by the legal department of Tunbridge Wells Borough Council) appeared for the respondents. Sally Dobson, barrister