In Murdoch v Amesbury  UKUT 3 (TCC), His Honour Judge Dight, sitting in the Upper Tribunal, held that the First-tier Tribunal (FTT) had exceeded its jurisdiction by determining the line of a boundary. The FTT had already dismissed the applicants’ application for determination of the exact line of the boundary under s 60(3) of the Land Registration Act 2002 (LRA 2002) because the plan submitted was not within the required tolerance for a determined boundary plan (10mm). Having decided that the plan was inaccurate and the application to determine the boundary should be rejected, the FTT had no jurisdiction to go on to decide where the boundary did lie.
HHJ Dight noted that the FTT had no inherent jurisdiction, so the question was one of statutory construction. Section 60(3) itself merely provides for rules to be made, but HHJ Dight held that the section “properly construed, relates to the registration of plans which show the parcels, and boundaries, of the related registered titles…the purpose of s 60(3) is to prevent potential disputes between adjoining land owners in the future and provide a public record of boundaries which cannot be disputed on grounds of inaccuracy”.
Rule 119 of the Land Registration Rules 2003 provides that:
“(1) … where] the registrar is satisfied that–
(a) the plan, or plan and verbal description, supplied… identifies the exact line of the boundary claimed,
(b) the applicant has shown an arguable case that the exact line of the boundary is in the position shown on the plan, or plan and verbal description, … and
(c) he can identify all the owners of the land adjoining the boundary to be determined and has an address at which each owner may be given notice,
he must give the owners of the land adjoining the boundary to be determined (except the applicant) notice of the application and of the effect of paragraph (6)...
(6) Unless any recipient of the notice objects to the application to determine the exact line of the boundary within the time fixed by the notice (as extended under paragraph (5), if applicable), the registrar must complete the application.
(7) Where the registrar is not satisfied as to paragraph (1)(a), (b) and (c), he must cancel the application.”
HHJ Dight said: “It is only if the registrar is satisfied of the three matters and the adjoining owners object in time that the Tribunal has a role to play…In my judgment the correct analysis of these provisions is that the scheme intends that the outcome of the application will be completion or cancellation, not a general determination of boundary issues.”
Once an objection is made which cannot be resolved by agreement, the registrar must refer “the matter” to the FTT. The FTT’s jurisdiction is limited to “determining matters referred to it under s 73(7)”. What was the matter referred to the FTT?
According to HHJ Dight: “The subject matter of the reference here was the appellants’ disputed application for a determined boundary, as is apparent from the case summary…which gives by way of details of the objections to that application the respondents’ challenges to the accuracy of the appellants’ plan. The appellants’ application was not for resolution of a general boundary dispute and the registrar’s reference to the adjudicator did not cast it as such. It therefore seems to me that the matter which was referred to the adjudicator for determination was the application for a determined boundary, the issue for the adjudicator being the accuracy of the appellants’ plan… In the instant case the boundary dispute was not referred to the learned judge to determine, whereas the plan dispute was: the boundary dispute was not part of the ‘matter’ referred.”
The power of the tribunal to give directions was “binary, in that he may direct the registrar to give effect to or cancel the original application but nothing else. There is no power for the Tribunal to prefer the objector’s position and to direct the Registrar to give effect to that position”.
HHJ Dight said: “it is the accuracy of the identification of the line, rather than title to the line, which is the focus of the application according to the rules.” Accordingly, he considered that the appropriate route to resolving a boundary dispute properly so called would be for the Tribunal to direct the parties to refer the dispute to the court under s 110 of LRA 2002.
This decision surprised many, who had assumed that the FTT did have jurisdiction to determine the true line of the boundary under applications under s 60(3). The FTT had, for many years, purported to exercise just such a jurisdiction.
It was not entirely clear whether, following Murdoch , the FTT could never determine a boundary (save in accordance with the line identified on the plan submitted with the application), or whether it could only do so where the substantive issue referred to the FTT was one of title and not one relating to the accuracy of the plan (insofar as those concepts could be distinguished).
Following Murdoch v Amesbury, it became inadvisable for a party to use an application to HM Land Registry under s 60(3) to resolve any boundary dispute, since it would run the risk of the Tribunal not having jurisdiction to decide it. As explained by the Law Commission in their Consultation Paper No 227 Updating the Land Registration Act 2002 , the full implications of this case—and the extent to which the tribunal has jurisdiction to determine the exact position of the boundary upon a reference under s 60(3)—are unclear. It would appear that jurisdiction might depend on the nature of the precise matter referred and on whether the tribunal can answer the “matter” referred without determining the position of the “boundary”. Even if the FTT could sometimes determine boundaries, whether the substantive underlying boundary dispute could be determined by the FTT in any given case would be out of the applicant’s hands, since it could depend upon the precise form of objection to the application, and the way in which the reference was framed by the registrar.
Instead, a party could only properly be advised to apply to the county court for a declaration as to the true location of the boundary. Following that decision, the successful party could then apply to HM Land Registry. Under r 119(2), the registrar can give effect to an application supported by a court order determining the line of the boundary without giving notice to neighbours.
This position was considered unsatisfactory by the Law Commission since: “Section 60(3) can give rise to disputes which are referred to the Tribunal, but which the Tribunal may not be able substantively to resolve. This is the case even though the Tribunal may have heard all the evidence necessary to make a decision as to the exact location of the boundary. Indeed, an applicant whose application is rejected following a reference to the Tribunal might continue to make further applications (which might in turn be referred to the Tribunal) until his or her application is successful.”
Bean and Saxton v Katz and Katz
On 6 April 2016, Judge Elizabeth Cooke, sitting in the Upper Tribunal, handed down her decision in Bean and Saxton v Katz and Katz  UKUT 168 (TCC). In that case the FTT determined that the boundary was on the line contended for by the applicants, save for a small section in respect of which the boundary was held to be a right angle, rather than the curve shown on the applicants’ plan. Judge Cooke considered that the FTT had jurisdiction to make an order determining the boundary in those terms, although she provided the following disclaimer: “Jurisdiction was not regarded by the parties as an issue at first instance or on appeal and…therefore I have not heard argument on jurisdiction; my discussion on jurisdiction goes no further than is necessary in this appeal.”
Judge Cooke considered that there was a distinction to be drawn between cases in which the application is dismissed on the basis of r 119(1)(a), ie where the plan identifying the line of the boundary claimed is technically unsatisfactory, and cases where the application is dismissed on the basis that the applicant has failed to establish that the exact line of the boundary is in the position shown on that plan.
Judge Cooke explained: “I think it is important that I make clear that the FTT has jurisdiction to dispose of determined boundary references…where the objection is not to the quality of the plan but to what the plan says about the boundary and where therefore it is necessary to look at the title to the properties concerned…If that were not so, then the FTT would be unable to follow the scheme of the rules, which require a determined boundary application to be assessed not only on the accuracy of the plan (r 119(1)(a)) but also on whether the line on the plan is in fact the boundary (r 119(1)(b)). The latter is a question about title.”
This depended upon Judge Cooke taking the view, contrary to that taken by HHJ Dight, that r 119(1)(b) was part of a scheme creating a statutory jurisdiction to resolve substantive boundary issues beyond the accuracy of the submitted plan, as opposed to a mere arguability threshold (as to the accuracy of the submitted plan in reflecting the true boundary) which must be crossed before notice of the application is given to potential objectors.
Since the plan was “technically satisfactory”, albeit it did not exactly identify the true boundary, the instant case was not “within the scope of the guiding principle of Murdoch”. HHJ Dight’s remarks to the effect that the focus of any application under s 60(3) was not title, but rather accurate identification of the line, were characterised as obiter and not binding on the FTT.
The FTT could examine the evidence as to the true line of the boundary and make findings about its true position, even where that true position was not the line identified on the applicants’ plan. This was because it was open to the Tribunal under r 40(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 to give effect to the application “in whole or in part” and any direction may, under r 40(3)(a), include “a condition that a specified entry be made on the register of any title affected”. The FTT could accordingly permit the application to succeed in part (ie save where the line diverged from that on the plan) and require a further entry on the register to give effect to the true line of the remainder of the boundary.
Can parties in boundary disputes once again be advised to apply to HM Land Registry for a boundary determination? Bean and Saxton suggests that, so long as a plan (or a plan and a verbal description) is supplied that identifies the precise line of the boundary claimed in a technically satisfactory manner, the FTT will become seized of, and have jurisdiction to determine, the substantive underlying boundary dispute, if any objection is made. However, parties who want to guarantee a determination of the true line of the boundary may still be better advised to apply to the county court for three reasons.
First, it is still open to an unsuccessful objector to appeal a decision of the FTT and argue that the reasoning in Murdoch ought to apply equally to r 119(1)(b), so that the FTT does not have jurisdiction to determine questions of title. There is a particular risk of this since argument was not heard in relation to the jurisdiction issue in Bean and Saxton , and the Upper Tribunal will not in future be bound by either of its earlier decisions. It may agree with HHJ Dight’s obiter statements since, as the Law Commission explains: “Section 60(3)…was not designed as a means of resolving boundary disputes, but rather to allow proprietors to determine their boundaries where they have good evidence of the exact location.”
Second, the applicant cannot guarantee that no objection will be taken about the technical specifications of the plan supplied. If the plan is found to be technically deficient, the case will fall squarely within the ratio of Murdoch .
Third, it is not clear that the FTT can determine the true line of the boundary if no part of that boundary matches the line identified on the submitted plan. After all, the FTT’s jurisdiction is limited to directing the registrar to give effect to the application made in whole or in part.
The Upper Tribunal’s decision in Bean and Saxton suggests that the FTT may in some cases properly continue to exercise a jurisdiction to determine the exact line of a disputed boundary, so long as it does not first decide that the application to the registrar should be dismissed for technical non-compliance with the requirements for accurate plans.
There appear to be two situations in which repeat applications to the Tribunal may be required. The first is where the plan submitted does not sufficiently accurately identify the line claimed or where no part of the proposed boundary line forms part of the position of the true boundary. In those circumstances, one might not be unduly concerned since the onus should be on the applicant to ensure his plan is compliant with HM Land Registry’s specifications.
The second is where no part of the proposed boundary line on the application plan matches the position of the true boundary. In those circumstances, the Law Commission’s concern following Murdoch that repeated applications to the Tribunal may be necessitated to get the line exactly right may still be justified.
The Law Commission’s Consultation Paper has recommended that the Tribunal should be given an express statutory jurisdiction to determine where boundaries lie on a reference under s 60(3). This is said to have the advantages of: (i) reducing lengthy litigation between neighbours; (ii) diminishing the stress and inconvenience of parties; and (iii) reducing costs to parties and the courts service, since numerous applications in relation to the same boundary will not have to be made and considered.
These advantages may be somewhat overstated, since although the forum for resolving the substantive dispute might be the tribunal, the same evidence will need to be considered to resolve it. However, the author supports the proposal since it would have two further related advantages. First, it would prevent the FTT’s time being wasted hearing lengthy evidence about the true position of the boundary only for it to decide it has no jurisdiction to determine that boundary in light of its conclusions about the adequacy of the plan. Second, it would enable parties safely to refer any boundary dispute directly to the registrar rather than the county court without worrying that the underlying dispute may not be resolved in light of Murdoch.
Toby Boncey, barrister, Falcon Chambers (www.falcon-chambers.com)
At the boundaries of permissible & impermissible boundary determinations. Toby Boncey reports