In a new weekly page, we publish two Practice Points from EGi Legal: one dealing with a mistake in land registration and one addressing enforcement notice appeals
An owner can’t be in adverse possession of, or acquire prescriptive rights over, land registered in his own name
It is a fundamental principle of registered conveyancing that registration vests title in the registered proprietor. What then is the position if the Land Registry registers the same piece of land to different people? To paraphrase the Court of Appeal in Parshall v Hackney [2013] EWCA Civ 240; [2013] PLSCS 95, concurrent registration of title to the same land to different proprietors is bad news. The mistake can be remedied by rectifying the register and the Land Registry operates a statutory scheme to indemnify anyone who suffers loss as a result. However, it will become more difficult to unravel mistakes of this nature as time passes.
The Land Registry compounded its mistake in Parshall by excluding the land from one of the titles while computerising its title plans. The land in question had formed part of the property for almost a century, until it was excluded from the title. In due course, the landowners made an application to recover the title to the land.
The Land Registration Act 2002 (the 2002 Act) precludes rectification of the register without the consent of a registered proprietor who is in possession of the land, unless the proprietor caused or substantially contributed to the mistake by fraud or negligence, or it would be unjust for any other reason not to make the alteration. The landowners claimed that it would be unjust to refuse rectification because this would have the effect of compulsorily transferring the land to someone who would have had no title to it at all, but for the mistake of the Land Registry.
The landowner who was still registered with title to the land claimed to have acquired the title by adverse possession under the regime that applied before the 2002 Act came into force. The High Court upheld her claim, despite the fact that she, and her predecessors in title, had been registered as the proprietors throughout the relevant period. The Court of Appeal has overturned the decision. It decided that the registered proprietors were in lawful possession, as opposed to adverse possession, because they had been registered with title to the land.
The registered proprietor tried to persuade the court that her neighbours could have issued possession proceedings in 1988, when they were dispossessed of the land and that they did not lose their right to do so when the Land Registry removed the land from their title. She claimed that this meant that the limitation clock had been ticking since 1988, with the result that the claim was now statute-barred.
The Court of Appeal disagreed. Time had not begun to run because the landowners could not issue possession proceedings unless and until the register was rectified, and there is no time limit for making an application for rectification (as distinct from bringing an action to recover possession of land) because the Limitation Act 1980 does not apply to applications to rectify the register.
The court delivered a final blow by rejecting the registered proprietor’s claim to have acquired prescriptive rights to park on the land on the ground that it is impossible for someone to acquire an easement while he is the registered owner of both the dominant and the servient land.
PP 2013/61
Allyson Colby is a PSL at Pinsent Masons
Enforcement notice appeals and the risk for a local planning authority of a costs award
The costs of planning – and related – appeals are normally borne by the parties that incur them. However, the secretary of state may make an award of costs where a timely application is lodged, the party against whom the award is sought has acted unreasonably and that unreasonable behaviour has caused the applicant to incur unnecessary or wasted expense in the appeal process. (An award, therefore, does not necessarily follow the outcome of the appeal.) The court has held that the word “unreasonable”, in this context, is used in its ordinary meaning and not in the Wednesbury sense. Detailed guidance is set out in Circular 03/2009: Costs Awards In Appeals And Other Planning Proceedings.
In R (on the application of Shepherd) v Secretary of State for Communities and Local Government [2013] EWHC 359 (Admin) the claimant sought to quash the decision of an inspector to refuse a costs award in his favour. The local planning authority (LPA) had issued an enforcement notice against the claimant, requiring the cessation of tipping on land that he occupied. It was unequivocal in its terms, and gave no indication that planning permission might be considered on a conditional basis. The claimant had incurred expense in appealing against the enforcement notice. At a late stage in the appeal, the LPA had granted planning permission, subject to conditions, to a third party for the carrying out of tipping operations on the same land, thereby causing the appeal to collapse. On the facts, the court dismissed the claim, but the case draws attention to the following principles reflected in Part B of the Annex to Circular 03/2009.
(1) Costs are awarded in enforcement appeal cases on much the same basis as for planning appeals; (2) Withdrawal of an enforcement notice after an appeal has been made is likely to put a LPA at risk of a costs award; (3) Serving an earlier planning contravention notice – requiring provision of relevant information – may assist the LPA later; (4) It will generally be considered unreasonable to issue an enforcement notice solely to remedy the absence of a planning permission; (5) Where appropriate, the LPA’s stated reasons for withdrawing the enforcement notice during the course of an appeal will be examined in order to assess whether any material change of circumstances has occurred since the date of issue.
PP 2013/65
John Martin is a planning law consultant
Practice Points are published daily on EGi Legal and cover developments in conveyancing, landlord and tenant, planning and environment. The full archive is available at wordpress.egi.co.uk
