Brown v Ridley and another

Land registration – Adverse possession – Reasonable belief – Respondents applying for registration as proprietors of land based on adverse possession – Appellant appealing against First-tier Tribunal decision determining period applicants reasonably believed land belonged to them within paragraph 5(4)(c) of schedule 6 to Land Registration Act 2002 – Respondents cross-appealing – Whether Court of Appeal authority binding on tribunal – Appeal allowed – Cross-appeal dismissed In December 2019, the respondents applied to the Land Registry for their registration as proprietors of land at Moonrakers, The Promenade, Consett, County Durham, based on adverse possession. The application was opposed by the appellant, who was the registered proprietor of the land. The First-tier Tribunal (FTT) determined the application in favour of the respondents and directed the chief land registrar to register the respondents as proprietors under schedule 6 to the Land Registration Act 2002. The appellant appealed. Paragraph 5(4)(c) of schedule 6 provided that the following condition must be met: “for at least 10 years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”. An issue arose whether that period of 10 years was: (i) the period of 10 years ending on the date of the relevant application; or (ii) any period of 10 years within the period of adverse possession. The FTT decided that the relevant period was (ii). The appellant contended that the FTT was wrong because the Court of Appeal decision in Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 EGLR 1 bound the FTT, to the effect that the answer was (i). Further, even if Zarb was not binding, it was authority to which the FTT failed to give adequate weight. In any event, the correct answer, as a matter of statutory construction, was (i). If the appeal succeeded, the respondents cross-appealed, arguing that the FTT erred in its findings concerning their reasonable belief in their ownership of the land. Held: The appeal was allowed. The cross-appeal was dismissed. (1) In Zarb, the Court of Appeal treated the period of 10 years referred to in paragraph 5(4)(c), during which the reasonable belief had to exist, as the period of 10 years ending on the date of the application for registration. The question was whether that approach to the question of whether the reasonable belief condition was satisfied constituted part of the ratio of Zarb and was thus binding authority.  The issue of the identity of the 10-year period in paragraph 5(4)(c) did not appear to have been argued in Zarb. However, that did not mean that the approach of the Court of Appeal to that issue in Zarb could not form part of the ratio of its decision. The ratio decidendi of a case was any rule of law expressly or impliedly treated by the judge as a necessary step in reaching their conclusion, having regard to the line of reasoning they had adopted. The fact that a certain construction of a legislative provision was assumed by a court to be correct did not necessarily prevent that construction from forming part of the ratio of the decision: R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] 1 QB 955 followed.  The court in Zarb treated that construction of paragraph 5(4)(c) as a necessary step in reaching its conclusion that the defendants could satisfy the reasonable belief condition. As such, its identification of the period of 10 years during which the required reasonable belief had to exist formed part of the ratio of Zarb. (2) Therefore, Zarb constituted binding authority on that question, unless that part of the ratio was otherwise disqualified from constituting binding precedent. However, the means of escape from the ratio of a previous decision of the Court of Appeal were very limited. It was clear that Zarb was not a decision reached per incuriam or a decision falling into any of the other categories of case identified in Young v Bristol Aeroplane Co Ltd [1944] KB 718. Consequently, Zarb constituted binding authority for the proposition that the period of 10 years, during which the required reasonable belief in ownership had to exist, was the period of 10 years ending on the date of the application for registration. In the present case, by treating itself as not bound by that decision, the FTT made a material error of law. It should have concluded that the 10-year period during which the respondents had to demonstrate their reasonable belief in their ownership of the disputed land was 10 years ending on the application date. Consequently, on the FTT’s findings as to the period during which the respondents’ reasonable belief continued, they had not satisfied the reasonable belief condition, with the consequence that the application fell to be dismissed. (3) As regards the cross-appeal, there was no basis on which the FTT’s conclusions on the evidence could be challenged. There was nothing wrong with its approach to the evidential questions concerning reasonable belief which the judge had to address. The FTT directed itself correctly as to what it had to decide on the issue of reasonable belief. There was no gap in the FTT’s logic, lack of consistency, or failure to take account of some material factor, which undermined the cogency of the FTT’s conclusions. Equally, there was ample evidence to support those conclusions.  (4) With due respect to the Court of Appeal in Zarb, if that decision had not been binding on the tribunal in the present case, it considered that the correct construction of paragraph 5(4)(c) was that the period of 10 years during which the reasonable belief in ownership had to exist could be any period of 10 years within the relevant period of adverse possession, assuming that the relevant period of adverse possession ending on the date of the relevant application was longer than 10 years and provided that the period of reasonable belief fell within the relevant period of adverse possession. Furthermore, if Zarb was not binding authority, it was a matter for the FTT to decide what weight to give to that decision. If the FTT found itself in disagreement with Zarb, as it did, it was entitled to decide the construction issue for itself. The FTT committed no error of law in making its own decision.    In the circumstances the tribunal would exercise its powers under section 12 of the Tribunals, Courts and Enforcement Act 2007 and direct the chief land registrar to cancel the application.  Stephanie Tozer KC and Brynmor Adams (instructed by DWF Law LLP) appeared for the appellant; Simon Goldberg KC (instructed by EMG Solicitors Ltd of Durham) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Brown v Ridley and another