Lowe and another v William Davis Ltd

Land registration – Boundary dispute – Tribunal – Jurisdiction – Respondent applying to First-tier Tribunal (FTT) for determination of boundary with appellants’ land – FTT holding application plan inaccurate and directing Chief Land Registrar to cancel application – FTT making findings as to location of boundary – Appellants appealing – Whether FTT having jurisdiction to determine boundary — whether FTT making correct findings as to location of boundary – Whether FTT erring in costs order – Appeal dismissed The appellants were the registered proprietors of a property known as 10 Fishpond Way, Woodthorpe, Loughborough, Leicestershire, which was registered at the Land Registry. The respondent was the registered proprietor of a large area of adjoining land. The respondent applied pursuant to section 60(3) of the Land Registration Act 2002 and rule 118 of the Land Registration Rules 2003 for the determination of the exact line of the boundary between its land and the appellants’ land. The appellants succeeded in resisting the application in that the First-tier Tribunal (FTT) made an order directing the Chief Land Registrar to cancel the application. The FTT released a decision which gave its reasons for the direction which it made and also made findings as to the location of the boundary in favour of the respondent. The appellants obtained permission to appeal against the findings of the FTT as to the location of the boundary. They argued that the FTT did not have jurisdiction to make those findings in view of the direction it had given as to the cancellation of the application. They also appealed those findings on the basis that they were wrong in fact and law. The appellants also challenged an order that they had to pay 70% of the respondent’s costs. Held: The appeal was dismissed. (1) The FTT had jurisdiction to determine the matter referred to it but did not have an inherent jurisdiction. The procedure of an application for the determination of an exact line of a boundary was available in a case where there was no wider boundary dispute but it was desirable to identify more precisely the exact line of the boundary. However, the procedure could also be used where there was a general boundary dispute and no separate question as to the accuracy of the applicant’s plan, if the applicant’s case as to the general boundary were to be accepted; that was accepted in the present case until it emerged in the course of questions from the FTT that there was a separate question as to the accuracy of the plan. In a case where there was an issue as to the location of the boundary and also as to the accuracy of the application plan, it was open to the FTT to decide all the matters in dispute before it but it was also open to it to decide only the issue as to the accuracy of the application plan if that could be determined separately and might dispose of the entire application. It was for the FTT to decide as a matter of case management which course to take. Although the right order to make on an application for the determination of an exact line of a boundary would normally be either a direction to give effect to the application or to cancel the application, that did not limit the jurisdiction of the FTT to make findings and decisions. Further, pursuant to rule 40 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the FTT might include a direction to the registrar to give effect to the application “in whole or in part” and might add a condition to its direction. In a case where the issue between the parties was which of them was right as to the location of the boundary and there was no separate issue as to the accuracy of the application plan, the FTT’s direction whether the registrar should give effect to the application or cancel the application would be the means of resolving the dispute as to the location of the boundary. The power under section 110 of the 2002 Act allowed the FTT to decide the matter or to direct the parties to commence court proceedings to decide the matter; it had a genuine discretion as to which course to adopt: Bean v Katz [2016] UKUT 168 (TCC); [2016] PLSCS 205 followed. Murdoch v Amesbury [2016] UKUT 3 (TCC); [2016] PLSCS 14 not followed. (2) In present case, the FTT had jurisdiction to make the decision which it made. If it had not taken the initiative of asking about the accuracy of the plan, there could be no suggestion that the FTT lacked jurisdiction to determine the location of the boundary. That was the very thing which both parties were asking the FTT to do and it plainly had power to do it. The parties obviously envisaged that the FTT would determine the location of the boundary. When the FTT raised the question as to the accuracy of the plan and went on to hold that it was inaccurate, it had a case management decision to make. It could decide where the boundary was and then, having done so, it could go on to hold that the plan was not accurate as to the location of the boundary; or it could have said that even on the assumption that the respondent’s case as to the boundary was correct, the plan was inaccurate and the Chief Land Registrar should be directed to cancel the application. The FTT had jurisdiction to make that decision. There was no error of law, no critical fact which had no basis in the evidence, no demonstrable misunderstanding of the evidence and no demonstrable failure to consider relevant evidence. This was a case where the decision of the FTT could reasonably be explained and justified. There was no basis on which to reach a conclusion of fact different from that reached by the FTT. (3) The FTT had not erred in principle in its approach to the question of costs. Its decision on costs was well within the permissible range of the decisions it could have made to reflect the competing considerations which it properly took into account. John Small (instructed by Josiah Hincks Solicitors LLP, of Leicester) appeared for the appellants; Stephanie Tozer (instructed by Moss Solicitors LLP, of Loughborough) appeared for the respondent. Eileen O’Grady, barrister Click here to read a summary of Lowe and another v William Davis Ltd