Applicants for first registration must provide sufficient details to identify the extent of the land that is to be registered. Patrick v Thornham Parish Council [2020] UKUT 36 (LC) concerned a field belonging to a farmer in Norfolk, whose northern neighbour – to quote the farmer – was King Neptune. The field was bounded on the south and east by ditches that drained into the sea – and, when the farmer applied voluntarily for first registration, the Land Registry gave notice of the application to the owners of the adjoining land, pursuant to rule 30(a) of the Land Registration Rules 2003.
The ownership of the ditch on the eastern boundary was disputed because drainage was particularly important in the locality. So the Land Registry referred the dispute to the First-tier Tribunal (FTT). The judge suggested that the farmer did not own the ditch on the southern boundary (but considered that the southern line on the proposed title plan was correct because the ditch was too small to delineate), and went on to direct the Land Registry to exclude a strip of land on the eastern boundary from the title plan.
The farmer asked the Upper Tribunal whether the FTT had exceeded its jurisdiction. He argued that the boundary lines on the proposed title plan were not definitive; they were susceptible to alteration to more accurately reflect the boundaries under the “general boundaries rule” in section 60 Land Registration Act 2002 (LRA 2002). And he also argued that the FTT should not have considered and rejected the argument that he had acquired title to the ditches by adverse possession (which it did) because it had jurisdiction only to decide whether he had a paper title to the field, since that was what he had asked the Land Registry to consider.
The farmer argued that, when objections to first registration applications are referred to the FTT, its jurisdiction is limited to determining matters referred to it: sections 73(7) and 108(1) LRA 2002. The tribunal cannot arrogate any wider jurisdiction to itself and parties cannot, by consenting, confer on a court or tribunal with limited statutory jurisdiction power to go beyond that jurisdiction. Nor can a consenting party be estopped from arguing that a court or tribunal has acted without jurisdiction.
The FTT’s practice is to consider evidence of adverse possession when dealing with first registration references where the paper title is challenged. And the Upper Tribunal took the view that the practice was correct because, ultimately, title to unregistered land is founded on possession. So, when paper titles are challenged, landowners have to resort to proof of possession.
The Upper Tribunal also considered that the FTT has jurisdiction to consider the boundaries of application land, because it can require the Land Registry to alter a title plan to more accurately reflect the general boundaries. The judge had expressed an opinion about the ownership of the southern boundary, which did not bind the parties. And he did not say that he was creating a determined boundary when he directed the Land Registry to exclude a strip of land on the eastern boundary from the title plan. Furthermore, the Upper Tribunal’s own decision would not determine its ownership, any more than the decision of the FTT did. If the parties wanted to know who owned the ditch, they should apply for the determination of the boundary under section 60 of the LRA 2002, on the basis of accurate plans.
Allyson Colby, property law consultant