Determined boundary applications are not intended to resolve underlying boundary disputes, the Upper Tribunal has ruled. Assistant Land Registrar Richard Hill examines the case

boundariesDisputed applications to Land Registry, which are not disposed of by agreement, are referred to the Land Registration division of the Property Chamber, First-tier Tribunal (the tribunal) for resolution.

One such case, following an appeal to the Upper Tribunal, has shed light on the purpose of applications under s.60 Land Registration Act 2002 (LRA 2002) to determine the exact line of a boundary.

Murdoch v Amesbury [2016] UKUT (TCC) contains interesting discussion of the jurisdiction of the tribunal in determined boundary applications, and resulted in a change to Practice Guide 40 Supplement 4 Boundary agreements and determined boundaries, highlighting the extra definition which the judgment gives to the purpose of an application under s.60.

Murdoch v Amesbury

Mr and Mrs Murdoch applied to determine the boundary between their home, a detached dormer bungalow in Dorset, and that of their neighbours the Amesburys, in 2011.

As is so often the case in boundary disputes, the difference between the parties amounted to no more than a matter of inches.

The Amesburys objected, on the basis that the plan submitted with the application was inaccurate, being based on unreliable fixing points, and that it did not match evidence on the ground as to the true boundary position. They also alleged that plans submitted to the local planning authority by the Murdochs were inconsistent with it.

The matter was referred in 2012 for a judicial hearing to the Adjudicator to HM Land Registry (as it then was, now the tribunal, which replaced the Office of the Adjudicator during the course of the proceedings). Although s.110 LRA 2002 allows for such cases to be directed into court for determination, the tribunal chose to hear the matter itself.

The matter was hotly contested, and took three days to deal with. There was a site visit, and experts were appointed by both sides.

The tribunal’s order

Judge Sarah Hargreaves in the tribunal made a simple order at the conclusion of the hearing; that the Chief Land Registrar should cancel the applicant’s application made on form DB.

Orders of the tribunal are often expressed in simple terms such as these, directing completion or cancellation of the application; the tribunal procedure rules provide that a substantive order may include a requirement on the registrar to give effect to the original application in whole or in part as if the objection to the original application had not been made, or cancel the original application in whole or in part.

Clear enough, one might think, especially since the Murdochs did not seek to overturn the order directing cancellation of the application. The application could be cancelled and the matter concluded.

Not so, said the Murdochs. They took issue with findings the tribunal judge went on to make in relation to the true position of the boundary, and sought leave to appeal to the Upper Tribunal on that point.

They did this even though they had raised the question of the true position of the boundary with the tribunal judge during the hearing, and had agreed that the judge should make a determination as to the location of the boundary, if, as turned out to be the case, the determined boundary application was not successful.

The Upper Tribunal’s decision

The Upper Tribunal therefore faced a number of important questions. Did the Murdochs have standing to challenge the findings as to the true position of the boundary, even though this would not result in any change to the order made by the judge? Did the judge have jurisdiction to decide where the boundary was, having rejected the determined boundary application?

The Upper Tribunal also dealt with costs and reviewed the basis of the findings made as to the boundary, overturning both decisions, but it is the point relating to standing and jurisdiction which carries greatest interest.

The Upper Tribunal decided that the Murdochs did have standing to appeal the decision as to the true location of the legal boundary. The findings made by the tribunal judge as to the true position of the boundary involved a question of law, and were not linked to the order to cancel the application. The latter point was significant because the Murdochs were not seeking to overturn the order made. Had the subject matter of the appeal formed the basis of the reasoning behind an order that itself was not being challenged, an appeal may not have been possible; Lake v Lake [1955] P336.

The Upper Tribunal then carefully considered the extent of the jurisdiction of the tribunal.

Was its function merely a binary one; to say whether the application for a determined boundary should be completed or cancelled? Or was there power for the tribunal to go further, and make a finding as to the true position of the boundary, and thereby do justice between the parties on a wider basis and resolve a boundary dispute beyond the confines of the determined boundary application itself, as it had sought to do in this case?

The function of the tribunal

The Upper Tribunal found that the function of the tribunal was a strictly narrow one when dealing with a determined boundary application. The tribunal is a creature of statute, and does not have a wider inherent jurisdiction beyond that conferred on it by s. 73 LRA 2002 and the applicable rules.

The question to be determined is a binary one; whether to order that the application is to be cancelled, or completed. The Upper Tribunal expressed the view that, where there was an underlying boundary dispute, the parties should be directed by the tribunal to send an application such as this to court, rather than conduct the hearing itself.

The judgment therefore provides a valuable analysis of the function of determined boundary applications. Their purpose is not to resolve underlying boundary disputes. Applications for alteration of the register or to register title acquired by adverse possession are better suited to that.

Determined boundary applications are intended to prevent potential disputes between landowners in future, and provide a public record of boundaries at a high level of accuracy. Any finding which the tribunal goes on to make as to the true position of the boundary may not be within the jurisdiction of the tribunal.

Richard Hill
By Richard Hill,
Lawyer at HM Land Registry, Guarantee & Litigation Group