Kingsalton Ltd and another v Thames Water Developments Ltd and others

Registered titles of adjoining owners based on plans at variance with pre-registration conveyance – Claimant obtaining rectification at first instance under section 82 of Land Registration Act 1925 – Order posing threat to vital access to defendant’s development of other land – Whether judge giving sufficient weight to defendant’s possession of strip in dispute – Whether judge correctly differentiating between subsections (1) and (3) of section 82 – Defendant’s appeal allowed Two brothers (M&M) owned a large plot of land near Alton in Hampshire, the south-west corner of which was formed by the junction of a main road and a narrow, unadopted lane, also belonging to M&M, that ran eastwards from the junction. In June 1973 M&M sold part of their land (the factory site), lying close to the junction, to a developer who planned to build a factory on the site. The brothers retained a strip of land separating the factory site from the lane, but the precise location of the southern boundary of the factory site, and, consequently, the width of the strip, was not readily ascertainable from the small-scale plan annexed to the conveyance. After building the proposed factory and letting it to another company, the developer sold the factory site to P Ltd , which in December 1977 obtained first registration of its title. The relevant registry plan showed the southern boundary to be the southern wall of the factory. In August 1989 the factory site was sold and transferred to the claimant (Kingsalton), which later erected a chain-link fence running parallel to the same wall. In October 1994 M&M obtained (voluntary) registration of the strip, the registered plan showing a common boundary with the factory site as registered. In April 1995 the first defendant (TWD) obtained title to the strip, its acquisition being required in order to widen the lane so as to afford access to a major development (the TWD development) on land lying to the east. In November 1995 TWD erected peg-and-rope markers to show the line of the intended access road and, while so doing, removed the chain-link fence. Kingsalton protested, pointing to the 1973 conveyance plan, which, on close examination, showed, inter alia, that the strip retained by M&M was at one point about 2m narrower than the strip as shown on the two registry plans. In July 1997 TWD began to widen the lane in line with the markers, knowing that nothing less would meet the access conditions imposed by the planning permission for the TWD development. Kingsalton applied to the High Court under section 82 of the Land Registration Act 1925, seeking to have the relevant titles rectified so as to accord with the 1973 conveyance. At first instance, rectification was ordered on the basis that: (i) if (as was arguable) TWD was in possession of the disputed part of the strip, then Kingsalton had succeeded in rebutting the presumption against rectification raised by section 82(3), by demonstrating that it would be unjust not to rectify against TWD; (ii) alternatively, if TWD was not in possession, rectification should be ordered under the discretion given by section 82(2) where there was no presumption either way. TWD appealed. Before the Court of Appeal, Kingsalton submitted, for the first time, that the court was not concerned with subsection (3), which, because of an amendment made by the Administration Act 1977, could not apply where rectification was sought for the purpose of giving effect to an order of the court. Held:The appeal was allowed. 1. Kingsalton’s submission, regrettably not made in the court below, was correct, it being immaterial that the order to which effect was given was made in the same proceedings as those in which rectification was sought. The court was, accordingly, able to exercise the discretion given by subsection (2), free from the supposed prerequisite that the person opposing the application should not be in possession. Moreover, where such a person was in possession, that fact would operate as a weighty factor against an order for rectification, as the policy of the 1925 Act was to leave possessory titles undisturbed. 2. By operation of sections 5 and 20 of the Act, the person obtaining registration, and any later transferee, obtained a fee simple in possession. It followed that TWD had to be taken to be in possession of the disputed part of the strip, unless and until dispossessed: Epps v Esso Petroleum [1973] 1 WLR 1071 considered. No such dispossession had occurred, nor had TWD acted at any time in bad faith. The rectification sought would cause considerable waste of expenditure, and could possibly bring the TWD development to a halt. In all the circumstances, the order made in favour of Kingsalton should be set aside and its application for rectification dismissed. David Elvin QC and Timothy Morshead (instructed by Dibb Lupton Alsop, of Birmingham) appeared for the claimant; Kim Lewison QC and Timothy Fancourt (instructed by Ashurst Morris Crisp) appeared for the defendant. Alan Cooklin, barrister