In 2003 responsibility for the judicial determination of disputed applications to Land Registry passed to the newly created post of the Adjudicator.
In 2013 the role of the Adjudicator was transferred to the First-tier Tribunal but the jurisdiction remained the same. In Murdoch v Amesbury  UKUT 3 (TCC) the Upper Tribunal has decided that the Tribunal’s jurisdiction is to be construed narrowly. Indeed so narrowly, that the jurisdiction is effectively being neutered.
The case concerned a determined boundary application. Land Registry boundaries are usually general ones only. But a party can apply to have the exact line of a boundary determined. The application must be accompanied by evidence to establish the exact line of the boundary and a plan with measurements accurate to +/-10mm. The applicant must show an arguable case that the exact line of the boundary is in the position shown on the plan. For the last 11 years Adjudicators/the Tribunal have been finding where the exact line of the boundary is. If it is not where the application says it is, the application fails but the parties have a binding decision as to where it is which can be the subject of a further application.
We are now told the Tribunal cannot do this. Either the application succeeds or it fails. There is no power to determine where the boundary really lies. A detailed investigation into questions of title are not to be undertaken, the emphasis is on the accuracy of the line claimed. But how is the accuracy of the line to be determined without deciding where the boundary lies? Apparently, the solution is for the Tribunal to refer the matter to the court. This subliminal reverse forum shopping overlooks that, with notable exceptions, the civil courts lack the interest, expertise and resources to undertake complicated investigations into title involving far flung site visits and reserved written judgments.
Does it mean that if an application is made for an implied easement based on necessity the Tribunal cannot decide there is an implied easement under the rule in Wheeldon v Burrows (assuming that has been properly pleaded)? Surely, Parliament is not such an ass? The decision may be obiter (reasons of space do not permit this point to be expanded). It remains to be seen whether Tribunal judges follow it.
Simon Brilliant / 11th Feb 2016
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