Derbyshire County Council v Fallon and another

Land – Registered title – Council seeking to alter boundary with adjoining land – Adjudicator finding boundary in wrong place – Whether exceptional circumstances justifying refusal to alter boundary – Appeal dismissedThe appellants owned unregistered land that adjoined freehold land owned by the respondents. The appellants applied to the Land Registrar to alter the register of the respondents’ freehold title. They argued that the boundary between the two sites was incorrectly shown and that they owned part of the land included in the registered title on the filed plan.The respondents, as registered proprietors, objected to the application. It was therefore referred, under section 73(7) of the Land Registration Act 2002, to the adjudicator, who found that the boundary was shown incorrectly on the filed plan. He held that that was a correctable mistake under para 5 of Schedule 4 to the 2002 Act. However, he declined to amend the register since exceptional circumstances, within para 6(3) of Schedule 4, justified not making the alteration. He regarded as relevant to the exercise of his discretion the unresolved question as to whether the appellants would be able to recover the disputed land from the respondents. Although the adjudicator had concluded that the appellants had a paper title to the land, the respondents had already built on it and he considered that it was arguable whether a court would grant an injunction ordering the respondents to demolish their work and give the land to the appellants rather than merely award damages. The adjudicator concluded that an application to alter the paper title was not appropriate to resolve the issues between the parties and that the registrar ought not to be troubled by questions of altering the general boundary before the real issues between the parties had been resolved and the future of the disputed land determined. The appellants appealed, against the refusal to amend the register and sought an order altering the filed plan to exclude the disputed land. They submitted that the adjudicator’s analysis was flawed since the purpose of the Land Registration Acts was to ensure the accurate registration of title; having decided where the ownership of land lay, there was no good reason why the register should not be amended to accurately reflect that ownership. Held: The appeal was dismissed.The adjudicator’s decision could not be impugned. In the normal case, if the registrar or adjudicator had determined that the boundary was in the incorrect place, it could be expected that the filed plan would be altered to accurately show the boundary. However, the critical question was whether the adjudicator had been right to regard as relevant the unresolved issue of whether the appellants would be able to recover their land from the respondents. It was trite law that the exercise of a discretion was flawed if the decision maker took account of an irrelevant factor; but, if the factor was relevant, the weight to be given to it was a matter for him: Claridge v Tingey [1967] 1 WLR 134 distinguished.In the present case, the adjudicator had been entitled to regard as relevant to the exercise of his discretion the fact that altering the register would not actually change the title to any of the land and that the only purpose of altering the general boundary to show it in a different place was to make the register more accurate. Moving the boundary to show that the respondents had no rights to the disputed land would not achieve anything useful. It would not be more accurate, except in the limited sense of according with the paper title. It would not accord with the practical reality on the ground but would be unhelpful and lead only to confusion. Accordingly, the question of whether the appellants were able in practice to recover the disputed land from the respondents, although irrelevant to the paper title, was relevant to the de facto right to enjoy the land and to whether any useful purpose would be served by amending the register by substituting one general boundary for another.Soofi Din (instructed by the legal department of Derbyshire County Council) appeared for the appellants; Martin Strutt (instructed by Nelsons, of Birmingham) appeared for the respondents.Eileen O’Grady, barrister