Boundary dispute – Tribunal – Jurisdiction – Appellants applying for determination of exact boundary with neighbours land pursuant to section 60(3) of Land Registration Act 2002 – Land Registry referring application to First-tier Tribunal – Tribunal dismissing application but going on to determine position of legal boundary –Appellants appealing – Whether appellants having standing to bring appeal – Whether tribunal having jurisdiction to resolve boundary dispute – Appeal allowed
The appellants and respondents were neighbours in Coombe Valley Road, Preston, Weymouth, Dorset. The First-tier Tribunal dismissed the appellants’ application for determination of the exact line of the boundary between their land and the respondents’ land pursuant to section 60(3) of the Land Registration Act 2002 and ordered the appellants to pay 80% of the respondents’ costs of the proceedings before the tribunal. Notwithstanding its dismissal of the application, the tribunal went on to make findings as to the position of the legal boundary between the two properties even though there had been no formal application by either party to HM Land Registry relating to the position of the legal or general boundary and no reference of such an issue to the tribunal by the Registrar.
The appellants appealed. They did not suggest that the tribunal was wrong to dismiss the application to determine the exact line of the boundary but argued that it had been wrong to go on to find the position of the legal boundary because she lacked jurisdiction to do so. Moreover, the tribunal had been wrong in its conclusions as the position of the legal boundary and also challenged its decision on costs.
The appeal raised issues whether the tribunal had erred: (i) in holding that it had jurisdiction to find the true position of the boundary; (ii) in concluding that it lay in the position found; and (iii) in purporting to determine an adverse possession claim by the respondents.
Held: The appeal was allowed.
(1) Section 111(1) of the 2002 Act conferred a right of appeal on “ a person aggrieved by a decision of the First-tier Tribunal”. Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 also referred to appeals from a “decision”. By the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the First-tier Tribunal was obliged to provide to the parties a “decision notice stating the tribunal’s decision” and “written reasons for the decision” (rule 36(2)(a) & (b)): the rules therefore appeared to distinguish between the decision and the reasons given for it, but the rules did not govern the construction of the provisions in the Acts relating to appeals and should not be construed as limiting the meaning of the word “decision” in sections 111(1) or 11(1) of the two Acts or the rights of appeal conferred by them.
In any event, the appellants here were not seeking to challenge either the decision, in the sense of the final order made, or the reasons which gave rise to that order, both of which related to the appellant’s formal application for a determined boundary. Before the court, the appellants sought to challenge the tribunal’s reasons and conclusions in respect of separate issues, namely a dispute as to the position of the legal boundary, which the tribunal purported to resolve only after having rejected their application for a determined boundary, and her jurisdiction to do so. It was those two decisions which the appellants sought to challenge, which were not part of the reasons which gave rise to the terms of the directions contained in the decision notice. As a matter of principle, it would be wrong to confine the interpretation of the word “decision” in the Acts to the terms of the “decision notice” and not to give it its ordinary meaning with the result that it would include the two decisions under appeal in this case. Therefore, the appellants had the necessary standing to prosecute their appeal: Lake v Lake [1955] P 336 and Cie Noga d’Importation et d’Exportation SA v Australia and New Zealand Banking Group Ltd [2002] EWCA Civ 1142 applied.
(2) The First-tier Tribunal had been created by Act of Parliament and, together with other statutory bodies, did not have the inherent jurisdiction enjoyed by the Senior Courts or an equivalent jurisdiction unless expressly granted. The appellants’ application to HM Land Registry had been made under section 60(3) of the 2002 Act. It was to be inferred that the purpose of section 60(3) was to prevent potential disputes between adjoining land owners in the future and provide a public record of boundaries which could not be disputed on grounds of inaccuracy. Therefore, the details and plan to be provided by the applicant for a determined boundary was to have a very high degree of accuracy, a tolerance of 10mm. The required accuracy was the key to understanding the scope of the subsection, the procedure for determining a boundary and the role of the tribunal in the event of a reference being made by the Registrar. It was the accuracy of identification of the line, rather than title to the line, which was the focus of the application according to the rules. If the plan was not accurate there was no requirement in the 2002 Act or related rules for the true position of the boundary to be identified and the application had to be rejected by the Registrar or the tribunal.
The procedure on an application for the determination of the exact line of a boundary was set out in rule 119 of the Land Registration Rules 2003 (SI 2003/1417) which required the Registrar to give notice of the application to the owners of the land adjoining the boundary if three conditions were satisfied. If they were not satisfied, the Registrar had to cancel the application without any determination of the position of the boundary. The correct analysis of those provisions was that the scheme intended that the outcome of the application would be completion or cancellation, not a general determination of boundary issues. In the circumstances of the present case, the tribunal lacked jurisdiction to decide the position of the legal boundary and to that extent its decision was outside its powers and the position of the legal boundary should be set aside: Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 applied. Silkstone v Tatnall [2011] EWCA Civ 801; [2011] 3 EGLR 47; [2011] 41 EG 2011 distinguished. Nielson v Poole (1969) 20 P & CR 909, Scott v Martin [1987] 1 WLR 841, Matson v Maynard (Ref 2004/579) and Jayasinghe v Liyanage [2010] EWHC 265 (Ch); [2010] 1 EGLR 61 considered.
Nathaniel Duckworth (instructed by Battens Solicitors Ltd, of Weymouth) appeared for the appellants; Philip Glen (instructed by Insley & Partners, of Bournemouth) appeared for the respondents.
Eileen O’Grady, barrister
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