In a recent edition of this publication I had occasion to complain about the decision of the Upper Tribunal in Murdoch v Amesbury  UKUT 3 (TCC).
In that case a landowner applied to Land Registry for the determination of the exact line of a boundary. The adjoining landowner objected and the dispute was referred to the First-tier Tribunal. The judge did not accept that the boundary was where the applicant said it was and the application failed. The judge in the course of her decision made a finding as to where the true boundary was. For the last year 11 years it has been assumed that the judge had power to do this and that a new application could be made consequential to this finding.
In Murdoch the Upper Tribunal said that 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?
Judge Cooke has now ridden to the rescue. Sitting in the First-tier Tribunal (Smith v Davis (2016) REF/2015/447-450), she noted that Murdoch was a case where the application was rejected because the plan did not meet Land Registry’s technical requirements. It was not concerned with the far more typical situation where no objection is made to the technical quality of the plan, but the issue is whether the line on the plan is in fact the boundary. She held that the observations in Murdoch about investigating questions of title were therefore obiter and that she did have jurisdiction to make a decision by examining the title to a property. Subsequently, sitting in the Upper Tribunal (Bean v Katz  UKUT 168 (TCC)), she re-iterated this.
It is good that the correct position has been restored so quickly. Land Registry’s inappropriately enthusiastic reception to Murdoch in a specially reissued Practice Guide and in their blog was premature. The Law Commission in its recent Consultation Paper No 227 has provisionally proposed that the First–tier Tribunal should be given an express statutory power to determine where a determined boundary lies. If there remains any lingering doubt after these two recent decisions Parliament can now make the position crystal clear.
Simon Brilliant / 6th May 2016
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