Boundaries – Evidence – Boundary agreement – Section 60 of Land Registration Act 2002 – Land Registration Rules 2003 – Appellants and respondents owning adjacent properties – Appellants applying for determination of boundary – First-tier tribunal finding boundary lying along line of right angle according to position on ground in 1880s – Whether boundary agreement reached since that date establishing boundary along curved line – Whether such agreement to be inferred from conduct – Appeal allowed
The appellants and the respondents owned adjacent properties in Longford, Market Drayton, Shropshire. In 2011, the appellants applied to the registrar of the Land Registry for a determination of the boundary between the two properties, pursuant to section 60 of the Land Registration Act 2002 and rr 118 and 119 the Land Registration Rules 2003. The application was accompanied by a plan, prepared for the purpose in accordance with the Land Registry’s technical requirements, which showed the boundary line claimed by the appellants. The respondents objected to the determination of the boundary along the line shown in the plan and the matter was accordingly referred to the first-tier tribunal (FTT).
The FTT considered evidence as to the location of the boundary. The conveyance that had originally divided the two properties in 1875, and which should have defined the boundary, had been lost. A plan of the area dating from 1880 showed the boundary as a right angle. However, the appellants’ plan showed the boundary as following a curved line at that point, corresponding to a hedge on the appellants’ side of the claimed boundary and an old fence on the respondents’ side, of which the fence posts still remained in place. A conveyance of the appellants’ property dating from 1974, with a plan marked “for purposes of identification only”, similarly showed a curved line, as did an aerial photograph from 1982. The appellants argued that the boundary followed the curved line, rather than the right angle, by reason of a boundary agreement reached between the respective owners of the two properties at some time in the past.
The FTT found that the boundary had formed a right angle in the 1880s. It therefore determined that the boundary was on the line claimed by the appellants save in respect of the front section, where it rejected the curved line and found that the boundary formed a right angle. The appellants appealed.
Held: The appeal was allowed.
(1) The FTT had jurisdiction to dispose of determined boundary references in cases where the objection was not to the quality of the plan submitted with the application but to what the plan said about the boundary, and where it was therefore necessary to look at the title to the properties concerned. If there was an issue as to whether the line on the plan was in fact the boundary, the FTT could examine the evidence and decide either that the application succeeded, because the line claimed was the boundary, or that it failed, because the line claimed was not the boundary. It was inevitable that the FTT would make findings about the position of the boundary in order to give reasons for its decision: Murdoch v Amesbury [2016] UKUT 3 (TCC); [2016] PLSCS 14 distinguished.
Moreover, the jurisdiction of the FTT was not confined to a binary choice between success and failure. Success or failure could be in whole or in part and, where the FTT had found that the actual boundary departed from the line in the application plan in one small section, it could make a direction to the registrar to give effect to the application subject to a condition that a specified entry, namely the line along the right angle, be made on the register in accordance with r 40(3) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2014. It followed that the FTT had jurisdiction to make that order that it had made in the instant case.
(2) However, the FTT had erred in fact and law in making its findings as to the location of the boundary. While a boundary agreement might, on occasion, amount to a contract to convey land, in which case a written agreement would be required, in general a boundary agreement was simply a clarification. Whether there had been a boundary agreement was a question of fact, not of law, and the existence of a boundary agreement could be inferred from conduct: Neilson v Poole (1969) 20 P&CR 909 and Charalambous v Welding [2009] EWCA Civ 1578 applied.
In the instant case, it was appropriate to find the existence of a boundary agreement establishing the boundary along the curved line. Although there was no evidence of an agreement in words, there had been actions from which an agreement could be implied or inferred. The precise line of the original boundary was unknown since the original conveyance dividing the two properties had been lost. The FTT’s finding about the position of the boundary in the 1880s was not a finding about the original line, on which it had no evidence, but a finding about how things were on the ground at the time. While the boundary on the ground might have been a right angle for some of the 19th century, the 19th century plans were of limited assistance and did not claim to define the boundary. Since that time, more than 35 years ago and possible longer, someone had planted the hedge around the front section, certainly before 1980 and possible before the 1974 conveyance. While there was no evidence as to why the hedge was planted and the fence put in, no one had objected to either of them. It was highly unlikely that the intention was to plant the hedge on a line that fell partly on one side of the boundary and partly on the other, which was where the FTT’s decision would place it. The natural inference was that the boundary lay along the line of the fence on the other side of the hedge from the appellants’ property. That evidence supported the finding that, at some stage in the past, there had been a boundary agreement creating a curved boundary in the front section. The FTT had erred in discounting that possibility: Burns v Morton [1999] EWCA Civ 1514; [2000] 1 WLR 347; [1999] PLSCS 140 and Stephenson v Johnson [2000] PLSCS 162 applied.
George Tedstone (of Tedstone George & Tedstone, of Penkridge) appeared for the appellants; the respondents did not appear and were not represented.
Sally Dobson, barrister
Read a transcript of Bean and another v Katz and another here
