Derbyshire CC v Fallon
| Jurisdiction | England & Wales |
| Judge | Mr Christopher Nugee QC |
| Judgment Date | 11 June 2007 |
| Neutral Citation | [2007] EWHC 1326 (Ch) |
| Docket Number | Case Ref 2005/0106 |
| Court | Chancery Division |
| Date | 11 June 2007 |
[2007] EWHC 1326 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Christopher Nugee QC Sitting as a Deputy Judge of the High Court
Case Ref 2005/0106
Appeal Court ref: CH/2006/PTA/0889
In the Matter of an Appeal from The Adjudicator to Her Majesty's Land Registry
And
In the Matter of 18 Ambaston Lane, Shardlow, Derbyshire, Title No: DY 185906
Mr Soofi P I Din (instructed by the County Secretary and Solicitor) for the Appellant
Mr Martin Strutt (instructed by Messrs Nelsons) for the Respondents
Hearing date: 25 April 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Mr Christopher Nugee QC
Introduction
I have before me an appeal by Derbyshire County Council (“the Council”) from a Decision dated 23 November 2006 (“the Decision”) made by Mr Michael Mark sitting as a Deputy Adjudicator to HM Land Registry under the Land Registration Act 2002 (“the 2002 Act”).
The office of adjudicator to HM Land Registry was created by the 2002 Act and is governed by Part 11 of the Act. The functions of the adjudicator are set out in s. 108 and include (by s. 108(1)(a)) “determining matters referred to him under section 73(7)”. The effect of s. 73(7) is that where an application is made to the registrar under the 2002 Act and an objection is made, then unless the registrar is satisfied that the objection is groundless or it is possible to dispose of it by agreement, the registrar must refer the matter to the adjudicator.
In the present case the Council applied to the registrar to alter the register of Title No. DY 185906. This is a freehold title of which Mr and Mrs Fallon are the registered proprietors and they objected to the application. It was therefore referred under s. 73(7) to the adjudicator, and in due course came before Mr Mark. Although sitting as a deputy adjudicator, I will refer to him as “the Adjudicator”. He refused the Council's application and directed the Council to pay one half of the Fallons' costs. An appeal lies from such a decision to the High Court under s. 111(2) of the 2002 Act; permission is required for such an appeal (see Practice Direction – Appeals, supplementing Part 52 of the CPR, paragraph 23.8B(1)) and was given to the Council by Warren J on 22 January 2007.
The Council owns the land adjoining the Fallons' land. Its title is unregistered. Its case before the Adjudicator was that the filed plan of Title No. DY 185906 showed the boundary between the Fallons' land and the Council's land in the wrong place so that part of the land shown on the filed plan as included in the registered title was in fact owned by the Council.
This gave rise to the following issues before the Adjudicator, which were set out in an Agreed Schedule of Issues: (1) where (ignoring the effect of registration) was the boundary between the Council's land and the Fallons' land (“the Paper Title Issue”); (2) if the Council won on that issue, whether its title was barred by limitation (“the Adverse Possession Issue”); and (3) if the Council won on both those issues, whether the dispute was a boundary or a property dispute, that is, whether the “General Boundaries rule” was to be applied in order to determine the exact line of the boundary (“the General Boundaries Rule Issue”). There were then set out a further three issues which arose if the Council lost on the General Boundaries Rule Issue, which I will refer to later.
In the event the Adjudicator held in favour of the Council on each of the first three issues, save for a comparatively minor point on the Paper Title Issue. But for reasons that I will come to in due course, he declined to grant the Council the relief it sought of amending the register. The Council appeals both the minor point on the Paper Title Issue and the refusal to amend the register and seeks an order altering the filed plan so as to exclude from the title the land in dispute. It also appeals the order for costs. There is no cross-appeal. In essence therefore there are only three points for me to decide: did the Adjudicator correctly identify where the pre-registration boundary lay ? Should he in the light of his findings have directed the registrar to alter the register ? Should he have made a different order for costs ?
The Paper Title Issue
In order to explain this point I must set out some of the conveyancing history:
i) Title No DY 185906 is the registered freehold title to land at 18 Ambaston Lane, Shardlow, Derbyshire. The filed plan shows a roughly triangular plot with a detached house built on it; it lies on the inside of a corner where Ambaston Lane turns from running north-west to roughly north, but it does not extend all the way to the road as the Council owns a substantial parcel of land between the plot and the road. The filed plan shows the Fallons' land as having a straight boundary to the north (adjoining a field), an almost straight but slightly kinked boundary on the east (adjoining No 16 Ambaston Lane), and a curved boundary on the remaining side (south-west), which is the boundary with the Council's land.
ii) The Council's case is that the true boundary between the two parcels is that shown on two conveyances to it each dated 16 August 1966. This boundary line has been plotted on a plan prepared by GreenHatch Ltd for the purposes of this dispute which shows that it lies some distance further to the north- east than the boundary shown on the filed plan. The Adjudicator referred to the strip between the two (“the disputed strip”) as about 36 metres long and varying between about 2 to 4 metres wide. I would not myself have thought the disputed strip was quite as long as that but nothing turns on the precise length – the disputed strip is identifiable from the GreenHatch plan.
iii) The Fallons' land and the Council's land (which together make up a roughly square plot on the inside of the corner of Ambaston Lane) were formerly owned by the Trustees of the Will of Sir Henry Sutton (“the Sutton Trustees”). There were then 4 cottages on them (part of a row of 5 cottages, the fifth of which appears to survive as what is now 16 Ambaston Lane). One of the cottages (the second nearest the road, then apparently called 4 Ambaston Lane) was sold off by the Sutton Trustees in 1950 to Esther Poulton, and Mrs Poulton in turn conveyed it on 5 July 1954 to Alice Wheeler.
iv) In 1964 the four cottages were the subject of a clearance order. The one that had been sold off was by then owned by Mrs Wheeler's executor and the Sutton Trustees retained the other three. The Council, which was the Highway Authority, became interested in acquiring the front part of the site for highway purposes; and a recommendation to purchase either the front part of the site for road widening purposes (said to be 410 square yards) or if necessary the whole site (said to be 785 square yards) was approved in September 1964.
v) Meanwhile the land had been surveyed by, or under the direction of, the County Surveyor, Mr S Mehew; the survey plan indicates that the land was surveyed in August 1964 and the plan drawn in September. This plan (“the 1964 plan”) is drawn to a 1/500 scale and shows a curved boundary dividing the front part of the site from the remainder. The front part is itself divided into two pink areas and one green area, representing the land owned by the Suttton Trustees and Mrs Wheeler's executor respectively, and the plan is marked to show that these areas were 315 square yards (pink) and 95 square yards (green), thus together adding up to the 410 square yards mentioned in the report recommending purchase. The plan also shows the dimensions of the triangular plot that would be left; these are marked as 69' (the northern boundary), 77' (the kinked eastern boundary) and 95' (the curved southwestern boundary).
vi) A letter from the District Valuer to Mr Mehew of 16 February 1965 shows that purchase of the site had been agreed in principle with the Sutton Trustees' agents, and asked Mr Mehew to arrange for the boundary line to be pegged out. A reply of 26 March 1965 indicates that the pegging out had by then been completed.
vii) On 24 December 1965 Mrs Wheeler's executor conveyed to Donald Sharman the part of her land not wanted by the Council. The conveyance itself does not appear to be available, but it is referred to in a memorandum endorsed on the conveyance of 5 July 1954 under which the land was conveyed by Mrs Poulton to Mrs Wheeler. This memorandum refers to a plan, a copy of which was attached (“the 1965 plan”); it is a small plan which shows the general position of the curved boundary but is neither said to be to scale nor contains any dimensions.
viii) On 25 February 1966 the Sutton Trustees and Mrs Wheeler's executor entered into a contract of sale with the Council, under which they agreed to sell the front strip of land, described as an area amounting to 410 square yards or thereabouts. The plan annexed is similar (but not identical) to the 1965 plan; unlike that plan it does give dimensions of the triangular plot. These are difficult to read on the copy plan I have seen but appear to accord with those shown on the 1964 plan, namely 69' (north), 77' ( east) and 95' (southwest).
ix) In June 1966 Mr Sharman applied for planning permission for erection of a house on the triangular plot, describing himself as owner of the land. The Adjudicator inferred that he had by then acquired the remainder of the plot from the Sutton Trustees, and this is not disputed on appeal; indeed before me Mr Din, who appeared on behalf of the Council,...
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