[2023] UKUT 200 (LC)

The appellant, Mr Dunlop, is the registered proprietor of Lunsford Farm in Pett, and is the fourth generation Dunlop to have farmed this land; I refer to him as “Mr Dunlop” throughout. It was conveyed to his grandfather, Thomas Parker Dunlop, on 6 June 1918 by a conveyance made by Lieutenant William Noel Lucas-Shadwell as vendor and by Mr Percy Portway Harvey as purchaser, so that Thomas Dunlop was the sub-purchaser. Where I refer below to “the 1918 conveyance”, this is the one I mean. Figure 1 below is a much-reduced copy of the plan to that conveyance.

The land of which Mr Dunlop seeks to be registered as proprietor is part of a lane adjoining the farm: Figure 2 below is HM Land Registry’s notice plan depicting the application land.

By comparing the two plans it will be seen that the application land is to the south of the land conveyed in 1918, sticking out from the land edged red on the plan near the words “Chick Hill”.

Figure 2 also shows the position of Westcott, Mr Romanoff’s property. The judge in the FTT noted that Westcott is at a considerable height above the lane, which has a very steep and high bank mostly covered in vegetation. Neither Mr Romanoff nor any other person has ever claimed title to the application land. The judge in the FTT explained that Mr Romanoff has planning permission to develop his land and that Mr Dunlop wants to prevent him from using the application land for vehicular access to the development. Whether registration as proprietor to the application land would enable him to do so is not relevant to the appeal.

Mr Dunlop’s application to HM Land Registry, and his case in the FTT, was put on two bases. His primary case was that the application land was conveyed to Thomas Dunlop in 1918, despite its not being within the red edging on the plan, and that he is now entitled to all the land then conveyed. His alternative case was that he has acquired title to the application land by adverse possession. The FTT found against him on both these arguments. There is no appeal from the FTT’s decision about adverse possession. The appeal is about the claim based on the 1918 conveyance.

Mr Dunlop says that the 1918 conveyance did include the application land despite its not being shown as included on the plan, for reasons I shall explain. After Thomas Dunlop’s death in 1958 Lunsford Farm passed under his will to his executors and trustees. The appellant’s father, Andrew Dunlop was, from 1999, the last survivor of those executors and trustees.. He died in 2004, and on 26 September 2018 his executors executed a transfer transferring to the Andrew Dunlop the appellant “such right, title and interest as they may have” in the application land.

Mr Romanoff does not dispute the validity of that transfer; accordingly, if Thomas Dunlop bought the application land in 1918 then it passed to Mr Andrew Dunlop in 2018. So the only issue before the Tribunal in the appeal is whether by the 1918 conveyance Thomas Dunlop acquired the application land.