Farrow v Boag

Land registration – Boundary dispute – Respondent applying for determination of boundary between land owned by appellant and respondent respectively – First-tier Tribunal giving effect to respondent’s application – Appellant appealing – Whether boundary capable of being determined with required precision on evidence available – Whether available evidence capable of establishing exact line of boundary – Appeal allowed The appellant owned a property comprising a house and gardens at 2 St Austin’s Grove, Sheringham, Norfolk. The appellant’s land was a proposed development site lying immediately to the west of the respondent’s land described as land on the North side of St Austin’s Grove, Sheringham. On 21 June 2019, the respondent made an application under section 60 of the Land Registration Act 2002 for determination of the exact boundary between land in his registered title and land in the registered title of his neighbour, the appellant. It was referred by the registrar to the First-tier Tribunal (FTT) under section 73 of the Land Registration Act 2002. The FTT directed the Chief Land Registrar to give effect to the respondent’s application for the exact line of the boundary between the two titles to be determined in accordance with a plan prepared by the respondent’s surveyors, as if the appellant’s objection had not been made. The appellant appealed against that order. It appeared that the Land Registry had already acted on the order and the appellant therefore sought an order for the deletion of the relevant entries in the two titles. The issues on appeal were: (i) whether the FTT had failed to ask itself whether the evidence supplied in support of the application established, with the required degree of precision, where the boundary between the two titles lay; and (ii) whether the available evidence was capable of establishing the exact line of the boundary. Held: The appeal was allowed. (1) Boundaries shown on the register of title were general boundaries only and did not define the exact line of the boundary between adjoining parcels of land unless they had been determined under the relevant statutory procedure (section 60(1)(2) of the Land Registration Act 2002). That procedure was found in rules 118-122 of the Land Registration Rules 2003, which enabled the exact line of a boundary to be determined and recorded in the register.  Rule 118(1) of the 2003 Rules permitted the proprietor of a registered estate to apply to the registrar for the exact line of the boundary of that registered estate to be determined. Such an application had to be in a prescribed form and, by rule 118(2), had to be accompanied by “(a) a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and (b) evidence to establish the exact line of the boundary”. An application had to be rejected if the plan submitted was inaccurate or insufficiently detailed. (2) If no objection was received, the registrar would complete the application by making an entry in the register of the applicant’s title and in any registered title affecting the other land adjoining the boundary, stating that the exact line of the boundary was determined under section 60 of the 2002 Act. If an adjoining owner objected to the application and it was not possible to dispose of that objection by agreement, or on the basis that it was groundless, the registrar would refer the matter to the FTT under section 73 of the 2002 Act. (3) The Land Registry’s Practice Guidance explained at paragraph 4.4 that the plan had to identify the start, end and any turning points of the determined boundary, described the relationship with physical features where the boundary coincided with them and describe points of reference.  By paragraph 4.4.1, any measurement shown on the plan had to be accurate to +/10mm. Those were the Land Registry’s own requirements and did not form part of the Rules, but they indicated the degree of precision required to enable particulars of a determined boundary to be recorded on the title plan. The evidence necessary to establish the exact line of a boundary had to be evidence from which the boundary could be identified with the precision required to enable such a plan to be prepared. Between any two titles to land, there would always exist an exact boundary, where the land in one title ended and the land in the adjoining title began. When a court or tribunal was asked to resolve a boundary dispute it would always do its best with the material which existed to ascertain where, on a balance of probability, the boundary lay: Neilson v Poole [1969] 20 P & CR 909 considered. (4) It would not always be possible to identify a boundary line with the precision required to enable it to be determined. The tribunal could only take account of admissible evidence with probative value in seeking to ascertain the true position of the boundary.  There might be occasions where it could not be said, even on the balance of probabilities where the legal boundary lay having regard to the documents of title and the admissible extrinsic evidence. In such cases the resolution of the dispute might turn on adverse possession: Murdoch v Amesbury [2016] UKUT 3 (TCC); [2016] PLSCS 14 considered. In the context of a conveyance of land, 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, subject always to that evidence being of probative value in determining what the parties intended. The qualification was crucial. When one spoke of “probative value” it was important to be clear what needed to be proved: Ali v Lane [2006] EWCA Civ 1532 considered. (5) In this case, there was insufficient evidence from which the FTT could find the exact location of the disputed boundary. It was impossible to ascertain whether the boundary line shown on the application plan was the exact line of the boundary and the application to determine the boundary should have been refused. This was not a case in which it could be determined that the exact position of the boundary was in a different location from that shown on the determined boundary application plan. For the time being, the boundary shown in the parties’ respective titles had to remain a general boundary: Bean v Katz [2016] UKUT 168 (TCC); [2016] PLSCS 205 and Lowe v William Davis Ltd [2018] UKUT 206 (TCC); [2018] PLSCS 117 considered.  Andrew Gore (instructed by Birketts LLP) appeared for the appellant; The respondent appeared in person. Eileen O’Grady, barrister Click here to read a transcript of Farrow v Boag