UTLC LC-2022-533 - [2023] UKUT 167 (LC)

Boundaries shown on the register of title are general boundaries only and do not define the exact line of the boundary between adjoining parcels of land, unless they have been determined under the relevant statutory procedure (section 60(1)-(2), 2002 Act). That procedure is found in rules 118-122, Land Registration Rules 2003,which enable the exact line of a boundary to be determined and recorded in the register. The Land Registry provides a commentary on the rules and an explanation of its practice in its Practice Guide 40, supplement 4.

Rule 118(1) permits the proprietor of a registered estate to apply to the registrar for the exact line of the boundary of that registered estate to be determined. Such an application must be in a prescribed form and, by rule 118(2), must be accompanied by–

“(a)

a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and

(b)

evidence to establish the exact line of the boundary.”

The line of the boundary may already been agreed or determined by a court, in which case the registrar will give effect to the application. If not, and if the registrar is satisfied that the plan supplied with the application, or the plan and verbal description, identifies the exact line of the boundary claimed, and that the applicant has shown an arguable case that the exact line of the boundary is in the position shown, the registrar will give notice of the application to the owners of the land adjoining the boundary and will inform them of their right to object (rule 119(1)). If no objection is received the registrar will complete the application by making an entry in the register of the applicant’s title and in any registered title affecting the other land adjoining the boundary, stating that the exact line of the boundary is determined under section 60, 2002 Act. If an adjoining owner objects to the application and it is not possible to dispose of that objection by agreement, or on the basis that it is groundless, the registrar will refer the matter to the FTT under section 73, 2002 Act.

A determined boundary shows “the exact line of the boundary” between two titles, and for that reason rule 118 requires both a plan showing the exact line claimed and evidence that the exact line of the boundary is as shown on that plan. An application must be rejected if the plan submitted is inaccurate or insufficiently detailed. The Land Registry’s Guidance explains at paragraph 4.4 that the plan must identify the start, end and any turning points of the determined boundary, must describe the relationship with physical features where the boundary coincides with them (for example, on which side of the physical feature the boundary runs, or through which point it passes), and must describe points of reference. By paragraph 4.4.1 any measurement shown on the plan must be accurate to +/- 10mm. These are the Land Registry’s own requirements and do not form part of the Rules, but they indicate the degree of precision required to enable particulars of a determined boundary to be recorded on the title plan. It follows that the evidence necessary to establish the exact line of a boundary must be evidence from which the boundary can be identified with the precision required to enable such a plan to be prepared.

Between any two titles to land there will always exist an exact boundary, where the land in one title ends and the land in the adjoining title begins. When a court or tribunal is asked to resolve a boundary dispute it will always do its best with the material which exists to ascertain where, on a balance of probability, the boundary lies. In Neilson v Poole [1969] 20 P & CR 909, Megarry J explained why it was appropriate to refer to evidence of the subsequent behaviour of a common vendor as an aid to the interpretation of a conveyance:

“Secondly, in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances to reject the evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.”

It is important to note that Megarry J was not being asked to determine the exact location of the boundary for the purpose of section 60, 2002 Act (or its predecessor, rule 278, Land Registration Rules 1925) and was not required to consider whether the evidence satisfied the requirements of rule 118 that it establish the exact line of the boundary. The boundary in Neilson v Poole was eventually ascertained from the verbal description in the conveyance which was found to be consistent with evidence of a boundary agreement between the vendor and purchaser.

It will not always be possible to identify a boundary line with the precision required to enable it to be determined, because the evidence required to demonstrate exactly where the boundary lies may not be available. This was acknowledged by the Upper Tribunal (HHJ Dight) in Murdoch v Amesbury [2016] UKUT 3 (TCC), at [96] (referring to Megarry J’s exhortation to “produce a decisive result”):

“Notwithstanding that sentiment it seems to me that the tribunal can only take account of admissible evidence with probative value in seeking to ascertain the true position of the boundary. There may be occasions where it cannot be said, even on the balance of probabilities where the legal boundary lies having regard to the documents of title and the admissible extrinsic evidence. In such cases the resolution of the dispute might turn on adverse possession.”