Exploring the boundaries

Those advising clients who are involved in boundary disputes will be aware that the costs of litigation can often exceed the value of the dispute. One way of potentially reducing these costs is to have the dispute resolved by the First-Tier Tribunal (FTT), pursuant to section 60 of the Land Registration Act 2002, rather than the county court.

The recent Upper Tribunal decisions in Murdoch v Amesbury [2016] UKUT 3 (TCC) and Bean v Katz [2016] UKUT 168 (TCC) will be of interest to property practitioners as they contain contrary views as to the jurisdiction of the FTT in determined boundary applications.On 4 January 2016, Judge Dight handed down his decision in the Murdoch case. The Murdochs had made an application pursuant to section 60(3) of the Act for the determination of the exact boundary line between their property and that of their neighbours, the Amesburys.

The Amesburys objected on the basis that, first, the plan submitted by the Murdochs did not comply with the Land Registration Rules 2003 in that the measurements were not accurate to within ten millimetres, and second, the correct boundary lay elsewhere.

The matter was heard by the FTT in a two-day trial involving a site visit and several witnesses of fact and law. The judge in the FTT considered that the plan was deficient and rejected the boundary line asserted by the Murdochs, ordering the Land Registry to cancel their application for a determined boundary. She then went on to make findings, based on the evidence given by the experts and the observations made at the site visit, as to the true legal boundary.

The Murdochs appealed to the Upper Tribunal. They did not seek to challenge the final order by the judge in the FTT cancelling their determined boundary application; rather, they submitted that the judge had no jurisdiction to make a finding as to the legal boundary.

Judge Dight considered that the starting point was to recognise that the FTT was a statutory body with no inherent jurisdiction and that the scope of its powers was therefore a question of statutory construction.

He considered the relevant provisions of the 2002 Act and of the 2003 Rules, and concluded
it was plain the parliamentary intention was for the FTT to have only a binary power, either to direct the registrar to give effect to the application or to cancel the application. There was, however, no power to direct the registrar to prefer the position of the objector or to give a direction requiring the registrar to give effect to other findings.

Judge Dight held that once the judge in the FTT had concluded the plan did not comply with the required rules, she had no jurisdiction to go on to make other findings.

Some three months later, Judge Cooke handed down her decision in Bean, which raised similar issues to Murdoch but differed in one crucial respect, namely that the plan submitted complied with all technical requirements. The FTT in this case held that the line submitted by the applicants was accurate, save for one small section in relation to which the FTT prescribed a different line.

In the appeal to the Upper Tribunal, Judge Cooke considered the effect of Murdoch. She considered that the case was distinguishable on the basis that its ratio was limited to applications involving deficient plans, and that it was not a precedent for any other, broader proposition. All other comments relating to the jurisdiction of the FTT
were obiter.

Judge Cooke noted that
the appellants might have sought to rely on these obiter paragraphs to argue that the FTT had no jurisdiction to prescribe a different line for part of the boundary, but stated that they were correct not to do so. According to Judge Cooke, the scheme of the 2003 Rules envisaged that the FTT should consider not only the accuracy of any plan submitted but also whether the line on any such plan was the boundary line.

In deciding whether the line was the boundary or not, Judge Cooke considered that the FTT would inevitably make findings about the true position of the boundary in order to give reasons for its conclusions. Thereafter, it was entitled to proceed as it had in many previous cases by giving directions to the Land Registrar to give effect to its decision.

Property practitioners advising clients as to whether
to bring a dispute via the section 60 procedure or in the county court will need to bear these two decisions in mind.
It is respectfully suggested
that the conclusion reached in Murdoch could lead to undesirable practical consequences, notably the need for an applicant to bring multiple applications. For this reason, the decision in Bean is very welcome and it is to be hoped that future tribunals will follow it in confining Murdoch to applications involving non-compliant plans.

Tamsin Cox, pictured, and Julia Petrenko are barristers practising from Falcon Chambers @FalconChambers1 www.falcon-chambers.com