When is a boundary dispute not a boundary dispute?

For litigants and property practitioners alike the FFT Property Chamber Land Registration has a number of advantages; not least no tribunal fees and a free mediation service. However the recent case of Murdoch & or v Amesbury & or [2016] UKUT 3 (TCC) is a timely reminder that the tribunal is not simply an alternative for the county court.

The Murdochs applied to Land Registry for the boundary between the parties’ properties to be determined pursuant to s60 of the LRA 2002. The Amesburys objected and the Murdochs’ application was referred to the FTT.

At the site visit, the Tribunal Judge raised the question whether she had jurisdiction to decide the location of the true boundary if she concluded the determined boundary advanced in the Murdochs’ application was not made out. The Murdoch argued it was open to the Tribunal Judge to make findings as to the location of the legal boundary in any event. The Amesburys argued that there was no jurisdiction to make such a decision. Neither party suggested that they were not in a position to present their evidence and case on that question. The Tribunal Judge concluded, if she decided the Murdochs’ proposed determined boundary was inaccurate, she nevertheless had jurisdiction to decide the location of the true boundary and she should do just that.

At the two-day trial both parties called factual and expert evidence. The principal area of dispute between them was the proper construction of a 1960 conveyance by which the first of the properties was sold by the previous common owner. The Murdochs urged the Tribunal Judge to allow their application as accurate, or in the alternative, make findings as to the location of the true boundary rather than leave the parties with no finding after a full trial. The Amesburys argued the Murdochs’ application was flawed because their plan did not comply with the required tolerances. Further they argued the line on the Murdochs’ plan diverged from the legal boundary which in part was at least determined by their adverse possession. It follows both parties put forward a case as to the location of the legal boundary albeit not to the tolerances required for a determined boundary.

The Tribunal Judge concluded the determined boundary application must be cancelled not least because it was not sufficiently accurate to satisfy the requirements for a determined boundary. The adverse possession case was also rejected. The learned judge made findings as to the location of the legal boundary, describing it in detail.

The Murdochs appealed the decision. They did not seek to overturn the cancellation of their application but challenged the Tribunal Judge’s conclusions as to the location of the true boundary. The appeal saw each party taking a different stance from that taken below. The Murdochs argued that the Tribunal Judge had no jurisdiction to decide the location of the legal boundary, notwithstanding the fact they urged her to take that course. The Amesburys argued that the Murdochs could not simply appeal the reasoning when they were not challenging the order made to cancel the application.

The Upper Tribunal undertook a detailed analysis of Lake v Lake [1955] P 336 and Cie Noga d’Importation v Australia & New Zealand Banking Group [2002] EWCA Civ 1142. If a decision properly analysed would not be appealed if it were recorded in a formal order, there is no jurisdiction to appeal. However in circumstances, where if the decision was reflected in an order there would be a winner and a loser and the loser would have an interest in appealing it then usually there will be jurisdiction. In this instance the Upper Tribunal concluded there was jurisdiction. The inherent unfairness in the Amesburys’ arguments were noted. They sought to argue that the findings as to the location of the legal boundary were potentially binding on the parties as an issue estoppel but not appealable. That unfairness although noted was not determinative of the question.

The Upper Tribunal went on to consider the extent of the FTT’s jurisdiction. The FTT’s jurisdiction is purely the product of statute; the LRA. It has no inherent jurisdiction. As such the Upper Tribunal concluded the extent of the jurisdiction was a matter of construction of the statute, particularly s60 and the associated rules. The rules provided for an application to be based on a plan setting out the “exact line of the boundary” claim. The rules make no provision for a respondent to put in an alternative plan. Rather the applicant must make out a prime facie case that the plan accurately shows the exact line and a respondent must object to a determination on that exact line. The Upper Tribunal concluded that, on a proper construction of the relevant statutory provisions, the determined boundary procedure is concerned only with a binary decision. Is the relevant plan compliant and accurate or not? The regime is not concerned with the underlying question of what the location of legal boundary is. The Upper Tribunal therefore allowed the appeal against the Tribunal Judge’s findings of fact although the substantive order remained intact.

The effect of the decision is therefore that the FTT, when it is dealing with a determined boundary application, may not decide any underlying boundary dispute. By way of contrast, it was acknowledged that where the application referred is to alter the register, particularly the title plan, the FTT does have jurisdiction to make findings of fact deciding the wider boundary dispute. 

The moral of this sad tale is to give proper consideration to the jurisdiction of your tribunal, particularly where it is a creature of statute. It may well be, as with boundaries in the FTT, there is more than one way to go. It is important that consideration is given to what relief is being sought and what the position will be if you are unsuccessful.