Land registration – Reference to Land Registry adjudicator – Section 73(7) of Land Registration Act 2002 – Appellants lodging unilateral notice of right of way against first respondent’s title – Appellants objecting to first respondent’s application to cancel notice – Dispute referred to adjudicator – Appellants seeking to withdraw objection – Adjudicator refusing request – Whether appellants entitled to withdraw – Whether adjudicator having discretion to permit withdrawal – Appeal dismissed
The appellants and the first respondent owned adjoining residential properties. The appellants claimed to have a right of way on foot over the first respondent’s garden. In February 2008, they lodged a unilateral notice on the first respondent’s title in respect of the claimed right of way. The first respondent applied to cancel the notice. The registrar appellants submitted an objection to the cancellation.
The matter was referred to a deputy adjudicator in June 2008, pursuant to section 73(7) of the Land Registration Act 2002. The first respondent was the applicant in the proceedings before the adjudicator, as the person applying to cancel the unilateral notice. Witness statements were subsequently exchanged and a hearing date was fixed for June 2009.
In May 2009, the appellants wrote to the adjudicator, indicating that they were experiencing difficulties in obtaining certain evidence and requesting permission to withdraw from the proceedings, so as to enable them to bring court proceedings at a later date. The adjudicator refused permission to withdraw on that basis at such a late stage and proceeded to hold a hearing on the merits in the appellants’ absence. At that hearing, he decided that no case could be made for a right of way and directed that the unilateral notice should be cancelled, but that a mutual right of access for maintenance and repair existed and should be noted on the title to both properties.
The appellants appealed on the grounds that: (i) the adjudicator had no power to refuse to accept their withdrawal and, accordingly, had lacked jurisdiction to give a decision on the merits; or, alternatively, (ii) if the adjudicator did have the power to refuse withdrawal, he had erred in his exercise of that power. The Chief Land Registrar joined the proceedings as second respondent.
Held: The appeal was dismissed.
A distinction had to be made between a party stating that it wanted to take no further part in proceedings, on the one hand, and, on the other, that party purporting to withdraw its underlying objection, which had given rise to the reference to the adjudicator, and consenting to the cancellation of its notice. There was nothing to prevent an objector from taking the former stance or the adjudicator from coming to a substantive decision on the merits in that party’s absence.
However, an objector could not withdraw an objection unilaterally once a dispute had been referred to the adjudicator. Section 73(7) of the 2002 Act contemplated that an objection to an application to the registrar might be disposed of by agreement, including by unilateral withdrawal, prior to such a reference. If the objection were so withdrawn, the register would be cleared of the notice asserting the existence of the right of way and the former beneficiary of that notice would not normally be prevented from asserting the claim to that right in separate proceedings. However, the position changed once a dispute was referred to the adjudicator. The reference provided a mechanism for the disposal of applications in which the objection was not obviously groundless and the parties had not achieved agreement as to the correct state of the register. In contrast to the straightforward administrative procedure before the registrar, the purpose of such a reference was to determine underlying rights. In the absence of full agreement between the parties, the mechanism for disposing of the objection was by the determination of the adjudicator. It was not possible to withdraw the objection by giving notice to the registrar, and any purported notice of withdrawal given to the adjudicator would likewise be ineffective. The adjudicator did not have the power to accept or reject a withdrawal of the original objection; his sole function was to determine the proceedings before him.
Accordingly, in the instant case, the proceedings before the adjudicator had continued notwithstanding the purported withdrawal of the appellants. The first respondent was seeking a substantive remedy and was entitled to show that he was entitled to it by obtaining a decision of the adjudicator to that effect. The appellants had not withdrawn their underlying objection by withdrawing it from the registrar and could no longer do so. In order to extricate themselves from the reference before the adjudicator, they would either have had to settle with the first respondent or concede his entitlement to the relief that he sought; they had done neither. The case had continued to be referred to the adjudicator for his decision and there was no question of an exercise of discretion in permitting the appellants to withdraw.
Bruce Monnington (instructed by Bates Wells & Braithwaite, of Sudbury) appeared for the appellants; the first respondent did not appear and was not represented; Timothy Morshead (instructed by the Treasury Solicitor) appeared for the second respondent.
Sally Dobson, barrister
