[2023] UKUT 200 (LC)

To explain Mr Dunlop’s claim further I need to say more about the title to Lunsford Farm and to the application land.

The conveyance of 6 June 1918 was one of a number of documents executed on that date by Lt Lucas-Shadwell, who was the owner of the Fairlight Hall Estate comprising some 4,000 acres. At an auction held on 24 November 1917 he put up for sale some 3680 acres in 75 lots. Lot 23 was stated in the auction particulars to be a “Compact Mixed Farm … known as Lunsford Farm” of 163 acres 1 rood and 8 perches said to be tenanted by TP Dunlop. There was a schedule of parcels in the auction particulars with their Ordnance Survey numbers, including OS 210, described as “Road”, with a stated acreage of 0.389 acres.

The application land is part of OS 210 (Footnote: ¹). Figure 3 is a copy of part of the 1909 OS map showing the whole of that parcel; by comparing figures 1 and 3 it can be seen that just over half of it was included within the red edging on the 1918 conveyance but the rest of it was not:

At paragraph 28 of his decision the judge in the FTT stated that it was common ground between the parties that the measurement of 0.389 acres is a reliable measurement of the whole of OS 210.

The judge explained that by the time of the auction on 24 November 1917 Lt Lucas-Shadwell had already contracted to sell a large part of his land to Mr Harvey, including Lunsford Farm. The judge considered the evidence about Lt Lucas-Shadwell’s title and about what Mr Harvey had agreed, by a contract of 27 September 1917, to buy; no copy of that contract survives but it is referred to in other documents including an abstract of title. On the basis of that evidence at paragraph 32 of his decision the judge found:

“that at the date of the 1917 auction and prior to the conveyance of 6 June 1918…, both Lt Lucas-Shadwell (as legal owner) and Mr Harvey (as beneficial owner having exchanged contracts on 24 September 1917) at the very least understood themselves and purported to have title to the whole of the road or lane by then known as OS 210 and comprising 0.389 acres; and so including the lane in issue in these proceedings. … Since that was in 1917 or 1918, such assumed or purported title would normally be regarded as a sufficient root of title for first registration now.”

In light of that finding, from which there is no appeal, it follows that if on a proper construction of the 1918 conveyance Lt Lucas-Shadwell and Mr Harvey did convey the application land to Thomas Dunlop, there can now be no suggestion that they did not have title to do so.

And so we turn to the events of 6 June 1918, when two documents were completed to which Thomas Dunlop was a party. It is agreed that the documents were completed in the following order: first, a conveyance of Westcott, and second the conveyance of Lunsford Farm upon whose construction this appeal turns.