[2024] UKUT 14 (LC)

Ground 1 - Zarb

Given that the status of the decision of the Court of Appeal in Zarb is central to Ground 1, it is convenient to start by summarising the decision. In this section of my analysis, references to the decision in Zarb and to matters decided in Zarb are made without prejudice to the question, to which I shall come, of what is included in the ratio of Zarb; that is to say what in Zarb constitutes binding authority.

Zarb was another case involving a boundary dispute. The claimants (Mr and Mrs Zarb) and the defendants (Mr and Mrs Parry) owned adjoining land. The dispute was over a strip of land on the southern boundary of the defendants’ property. The claimants’ case was that the true boundary, in accordance with the paper title to the claimants’ property, ran some 12 feet to the north of a hedge which the defendants and their predecessors in title had taken to be their southern boundary. There had for some years been a dispute over the correct location of this southern boundary. Attempts to resolve that dispute failed. On 29^th July 2007 a confrontation occurred when the defendants discovered the claimants attempting to fence off the disputed strip by installing fence posts on what the defendants regarded as their lawn. After about 20 minutes the claimants left the disputed strip. In 2009 the claimants commenced an action for a declaration that the boundaries were as they contended. Title to each of the properties was registered. In their defence the defendants relied upon Section 98, which provides as follows:

“(1)

A person has a defence to an action for possession of land if—

(a)

on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and

(b)

had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied.

(2)

A judgment for possession of land ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if the proceedings in which the judgment is given were commenced against a person who was at that time entitled to make an application under paragraph 1 of Schedule 6.

(3)

A person has a defence to an action for possession of land if on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 6 of Schedule 6 to be registered as the proprietor of an estate in the land.

(4)

A judgment for possession of land ceases to be enforceable at the end of the period of two years beginning with the date of the judgment if, at the end of that period, the person against whom the judgment was given is entitled to make an application under paragraph 6 of Schedule 6 to be registered as the proprietor of an estate in the land.

(5)

Where in any proceedings a court determines that—

(a)

a person is entitled to a defence under this section, or

(b)

a judgment for possession has ceased to be enforceable against a person by virtue of subsection (4),

the court must order the registrar to register him as the proprietor of the estate in relation to which he is entitled to make an application under Schedule 6.

(6)

The defences under this section are additional to any other defences a person may have.

(7)

Rules may make provision to prohibit the recovery of rent due under a rentcharge from a person who has been in adverse possession of the rentcharge.”

The defendants were therefore relying upon a defence of adverse possession. It will be noted that, by Section 98(1), the defendants were required to demonstrate (i) that, on the day immediately preceding the day on which the claimants brought their action, the defendants would have been entitled to make an application under paragraph 1, and (ii) that if such an application had been made on that day, the condition in paragraph 5(4) would have been satisfied. The reference to the condition in paragraph 5(4) refers to the sub-conditions in sub-paragraphs (a) to (d), including what I am referring to as the Reasonable Belief Condition.

The judge at first instance dismissed the action. The judge found that, by reference to the paper title, the southern boundary was in the location contended for by the claimants, with the consequence that the hedge was on the claimants’ land. He also found however that the defendants and their predecessors in title (Mr and Mrs Ceen) had been in adverse possession of the disputed strip for over ten years, and that this adverse possession had not been interrupted by the claimants’ attempts to fence off the disputed strip in July 2007. The claimants appealed to the Court of Appeal.

There were three issues in the appeal. The first issue was whether the judge had been wrong to reject the argument that the possession of the disputed strip by the defendants’ predecessors in title (the Ceens) had been with the consent of the claimants’ predecessor in title (Mr Little), so that possession could not be adverse. The second issue was whether the judge had been correct to hold that the adverse possession of the disputed strip by the defendants had not been interrupted by the claimants’ attempt to fence off the disputed strip in 2007, so as to start time running again. The third issue was whether the defendants satisfied paragraph 5(4)(c); that is to say the Reasonable Belief Condition. Success on any one of these issues would have been sufficient to defeat the defence of adverse possession, with the consequence that the claimants would have been entitled to a declaration of their ownership of the disputed strip. Accordingly, all three issues had to be dealt with by the Court of Appeal.

The appeal was heard by Lord Neuberger MR (as he then was), Arden LJ (as she then was) and Jackson LJ. The Court of Appeal heard from counsel for the claimants (the appellants in the Court of Appeal) on all three issues, but required the defendants’ counsel only to address them on the second issue. The Court of Appeal dismissed the appeal. The leading judgment was given by Arden LJ. Lord Neuberger gave a shorter judgment, agreeing with the dismissal of the appeal but expressing his reasons for that result in his own words. Jackson LJ agreed with both judgments. In relation to the second issue Jackson LJ preferred the approach of Arden LJ, so far as there was any difference of emphasis between Arden LJ and Lord Neuberger.

Arden LJ commenced her judgment with a summary of the factual background to the appeal. At [12] to [19] Arden LJ then provided a summary of the relevant provisions of the 2002 Act. At [12] Arden LJ introduced this summary in the following terms:

“12

The 2002 Act introduced a new legal scheme for acquiring title to registered land by adverse possession. I will confine myself to its essential features for present purposes. For the first time the adverse possessor was to be able to obtain registration by an application to the Land Registry, which is then notified to the paper title owner. The new scheme seeks to establish a fair balance between the interests of the paper title owner and those of the adverse possessor. To protect the paper title owner, the adverse possessor must satisfy certain conditions and on this appeal I have to consider one of those conditions, the first time that it has been considered in this court.”

Arden LJ explained the operation of paragraph 5(4) in the following terms, at [16] and [17] (underlining added):

“16

Paragraph 5(4) thus deals with a situation mentioned in para 1 of this judgment, which is very commonly met, namely the situation where the physical boundary between two properties does not accord with the paper title. People often make mistakes when laying out a physical boundary to a new plot.

17

Paragraph 5(4) sets out three sub-conditions. The relevant sub-condition on this appeal is sub-paragraph (c). This sub-condition is new. The adverse possessor has to show that he made a reasonable mistake in believing that he was the owner of the land of which possession is claimed. This seems to be a fair requirement for the law to impose before the paper title owner is deprived of his land, which may be very substantial in area and value, unlike the comparatively small area in this case. It reflects the fact that, by virtue of article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998, a fair balance must be shown to justify an interference by the state with a person’s possessions. The 2002 Act was no doubt intended to be Convention-compliant in this respect. But the necessary effect of the way that paragraph 5(4) is expressed is to make the unreasonable belief of the adverse possessor in the last ten years of his possession prior to the application for registration a potentially disqualifying factor even though his belief started out as reasonable but became unreasonable as a result of circumstances after the completion by him and/or his predecessor in title of a ten-year period of possession. The consequence of that is that the paper title owner will have a last chance to recover the land if the adverse possessor did not have a reasonable belief during the last ten years. The moral is that, as soon as the adverse possessor learns facts which might make his belief in his own ownership unreasonable, he should take steps to secure registration as proprietor.”

It will be noted that Arden LJ treated the period of ten years, during which the reasonable belief had to be shown, as the last ten years prior to the application for registration.

Arden LJ then proceeded to her consideration of the three issues raised on the appeal. It is not necessary to go into the detail of Arden LJ’s analysis of the first and second issues. Arden LJ concluded that the appeal fell to be dismissed on both of these issues.

This left the third issue. Could the defendants satisfy the Reasonable Belief Condition? In the context of the third issue, a difficulty which arose was that the judge at first instance had made no finding as to whether the defendants had a reasonable belief that they owned the disputed strip or not. Arden LJ recorded the position, in the following terms, at [46] – [47]:

“46

The judge referred to paragraph 5(4) in para 19 of his judgment before setting out his conclusions on the Parrys’ adverse possession claim. The judge made no finding as to whether the Parrys had a reasonable belief that they owned the strip or not. He did, however, find at para 16 that the Ceens used the strip because “they believed it was theirs and the boundary, the southern boundary, of the land they had acquired was marked by the middle of the hedge that was there to be seen and nowhere else”. By implication, the judge was satisfied that the belief of the Ceens was reasonable. Reading his judgment as a whole, I take the view that, by implication, he must have found that the Parrys similarly had a reasonable belief. The question is whether this finding was against the weight of the evidence because of matters that occurred after the possession of the Ceens.

47

While his order implies that he would have been prepared to find that the sub-condition in paragraph 5(4)(c) was satisfied, there is no finding to that effect and accordingly I have concluded that I should consider in detail whether that would have been the correct finding.”

Arden LJ thus considered for herself whether the Reasonable Belief Condition was satisfied. On the basis of the evidence to which Arden LJ made reference, she was satisfied that the required reasonable belief did exist. As her Ladyship concluded, at [51]:

“51

In my judgment, the belief of the Parrys was a reasonable one to hold. When they purchased Fleet House, the dispute was dormant as the Zarbs had not raised the dispute in response to Mrs Ceen’s communications. The dispute remained dormant for the next five years as there were no communications challenging the southern boundary from the Zarbs until 2007. By that time, they and the Ceens had together been in possession of the land for well over ten years. The report of Mr Powell confirmed the Parrys’ belief that the physical boundaries were correct. Mr Powell was a qualified surveyor and he gave reasons supporting his opinion. In those circumstances, the belief of the Parrys in my judgment continued to be reasonable. Mrs Collignon laid some emphasis on the fact that Mrs Parry was a barrister but she did not suggest that she would necessarily have had a detailed knowledge of this area of the law.”

In her consideration of the third issue Arden LJ did not, in terms, refer to the period of ten years over which the reasonable belief had to be demonstrated. In a postscript to her judgment however Arden LJ explained what she perceived as difficulties created by the 2002 Act in the following terms, at [55] (underlining again added):

“55

The 2002 Act creates difficulties for proprietors with disputed boundaries. If a person discovers that his boundary is in fact on his neighbour’s land and that he has been in possession for ten years, he can if he acts promptly apply to the Land Registry to be registered as proprietor of any land outside his title. The new provisions will, however, require the registrar to give notice of the application to the paper title owner of the land sought to be acquired. If the registered proprietor does not oppose the application, registration will follow. If the registered proprietor opposes the application, the adverse possessor may be unable to satisfy the third condition in paragraph 5 of Schedule 6 to the 2002 Act, and will fail to secure registration save in the exceptional case where he can show that another condition is satisfied.”

The reference to the need to act “promptly” must, as it seems to me, mean that Arden LJ was, consistent with her earlier analysis of paragraph 5(4), treating the period of ten years in paragraph 5(4)(c) as the last ten years of the period of possession prior to the application for registration.

Jackson LJ, as I have said, agreed with both judgments of his fellow members of the Court of Appeal. In his own shorter judgment Lord Neuberger dealt fairly shortly with the first issue, giving his own reasons as to why the appeal should be dismissed on the first issue. Lord Neuberger dealt at greater length with the second issue (interruption of possession), which he found more difficult to resolve than Arden LJ. Ultimately however Lord Neuberger, for his own reasons, concluded that the appeal on the second issue did fall to be dismissed. This left the third issue, which Lord Neuberger dealt with fairly shortly. It is easiest simply to quote Lord Neuberger’s reasoning and conclusion on this point, at [77] – [81]:

“77

That leaves the Zarbs’ third point, which is that, during the last couple of years while they enjoyed possession, the Parrys cannot reasonably have believed that they owned the strip: see paragraph 5(4)(c) of Schedule 6 to the 2002 Act. This argument was presented on the basis that the Parrys received a letter in October 2007 from the Zarbs’ solicitors which made it clear that the Zarbs were the paper title owners of the strip, and how they made that proposition out.

78

That does not seem to have been a point which was much canvassed below: certainly, the judge seems to have given it scant attention in his judgment, although Ms Collignon realistically accepts that he implicitly rejected it.

79

It is clear that the Parrys and their predecessors believed that they owned the strip, so the issue is whether that belief was reasonable after October 2007, and the judge, who was the primary fact-finder, albeit implicitly (as I have just mentioned), concluded that that belief was reasonable.

80

Further, it is clear that a fellow of the Royal Institution of Chartered Surveyors, Mr Powell, who fully investigated the dispute well after the October 2007 letter, concluded that the strip was owned by the Parrys, and he was not called as a witness. In my view, in the absence of any other evidence to assist the Zarbs, that fact, coupled with the judge’s finding, renders it impossible to maintain on this appeal that the belief of the Parrys to the same effect was unreasonable. Mr Powell is experienced in neighbours_ dispute cases, and the fact that he may have exceeded the scope of his instructions when expressing his view as to the location of the paper title boundary (a point it is unnecessary to decide) is irrelevant: he thought it was part of his instructions, and he reached a clear and sensible conclusion, and one which he presumably thought minimised discontent and disruption. Between the provision of Mr Powell’s report and the issue of these proceedings, it was not suggested that there was any further evidence, which would have been relevant on the issue of the reasonableness of the Parrys’ belief.

81

For these reasons, which substantially reflect those more fully expressed by Arden LJ, I would dismiss the Zarbs’ appeal.”

It will be noted that Lord Neuberger, at [79], identified the key issue as being whether the defendants’ belief in their ownership of the disputed strip remained reasonable after October 2007, when the defendants received a letter from the claimants’ solicitors which explained that the claimants had the paper title to the disputed strip. In this context it should be noted that the judge at first instance in Zarb found that the period of adverse possession of the disputed strip commenced with the defendants’ predecessors in title (Mr and Mrs Ceen) who acquired, in 1992, the relevant part of what became the defendants’ property: see the judgment of Arden LJ at [23]. On this basis it seems reasonable to assume that Lord Neuberger was treating the period of ten years during which the required reasonable belief had to exist as the same period of ten years identified by Arden LJ; that is to say the last ten years of the period of possession prior to the application for registration. If Lord Neuberger had thought that any period of ten years during the period of adverse possession would suffice for this purpose, the inquiry would have been a different one. On that hypothesis the inquiry would have been as to whether a period of ten years of reasonable belief existed, between 1992 and 2009, on the part of the Ceens and then the defendants. On the same hypothesis, if the period of reasonable belief existed prior to 2007, but came to an end in 2007, this would not have been fatal to the claimants’ case on the third issue.

On the basis of the above summary of the decision of the Court of Appeal in Zarb, the following points seem clear to me:

The question which then arises is whether this approach (using a deliberately neutral phrase) to the question of whether the Reasonable Belief Condition was satisfied in Zarb constitutes part of the ratio of Zarb, and thus binding authority. This brings me to the next stage of my analysis of Ground 1.

Ground 1 - Is Zarb binding authority?

In R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] 1 QB 955, at [16], Buxton LJ, giving the judgment of the Court of Appeal, approved the following statement of what constitutes the ratio decidendi of a case:

“16

Cases as such do not bind; their rationes decidendi do. While there has been much academic discussion of the proper way of determining the ratio of a case, we find the clearest and most persuasive guidance, at least in a case such as the present where one is dealing with a single judgment, to be that of Professor Cross in Cross & Harris, Precedent in English Law, 4th ed (1991), p 72: "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him."

It is helpful to go into the decision in Kadhim in some further detail. The case came before the Court of Appeal pursuant to a challenge, by way of judicial review, to the decision of a housing benefit review board. The applicant in the case was denied housing benefit by the relevant local authority on the basis that he was residing with a close relative (his brother) and was thus not entitled to housing benefit by virtue of regulation 7(1) of the Housing Benefit (General) Regulations 1987. On a review of the decision of the local authority the housing benefit review board decided that because the applicant was sharing a kitchen and a living room with his brother, he fell to be treated, by virtue of regulation 3(4) of the same Regulations, as residing with his brother. The applicant challenged the decision of the board, seeking a declaration in the following terms:

At first instance Munby J took the view, as a matter of construction, that regulation 3(4) was not exhaustive in relation to the question of whether one party was residing with another. As a matter of construction regulation 3(4) did not, in the view of Munby J, impose a statutory rule that where persons shared any accommodation other than bathroom, lavatory or communal areas they necessarily resided with each other for the purposes of regulation 7(1). Regulation 3(4) imposed a necessary, but not a sufficient, condition for a finding of residence. The question of residence also had to be considered however, by reference to ordinary meaning. On this basis, the applicant was not necessarily residing with his brother, within the meaning of regulation 3(4) simply because they shared accommodation, namely a kitchen and living room, which extended beyond bathroom, lavatory and communal areas.

The problem which confronted Munby J was that there was a decision of the Court of Appeal, in Thamesdown Borough Council v Goonery (unreported – 13^th February 1995: Court of Appeal (Civil Division) Transcript No 147 of 1995), in which regulation 3(4) had been considered. Goonery was another case concerned with housing benefit. In very brief summary what had happened in that case was that Mr Goonery, who was in receipt of housing benefit, had married the sister of his landlord. This marriage brought Mr Goonery within the scope of the close relative provisions in regulation 7. In terms of the sharing of accommodation in the relevant property, the relevant facts were that Mr Goonery shared use of the kitchen with his landlord, although paying an extra charge to the landlord for this facility. This therefore raised the question of whether Mr Goonery had been entitled to receive housing benefit.

In the Court of Appeal Mr Goonery appeared in person. The judgment of the Court of Appeal in Goonery was given by Leggatt LJ. He took the view that the case was resolved by reference to regulation 3(4). On the evidence Mr Goonery shared the use of a kitchen with his landlord. As such, Mr Goonery resided with his landlord because they shared accommodation, namely a kitchen, going beyond a bathroom, lavatory and communal areas. No further inquiry into the question of residence was required.

In Kadhim Munby J took the view that Leggatt LJ’s statement of the effect of regulation 3(4) formed part of the ratio of Goonery, and was therefore binding upon him. As such, Munby J regarded himself as bound to refuse the declaration sought, notwithstanding his own views on the correct construction of regulation 3(4). Munby J did however grant permission to appeal, on the basis that he viewed the point as one of considerable importance.

The problem which the decision in Goonery created, in Kadhim, was summarised by Buxton LJ in the following terms, at [15]:

“15

In our view, as in the view of Munby J, it is therefore inescapable that this court in Goonery's case decided that Mr Goonery resided with Mr Carver because, and simply because, he shared a kitchen with him. The court reached that conclusion because it thought that the issue of residence was determined by the terms of regulation 3(4); and that the terms of that regulation defined the meaning of residence for the purpose of entitlement to housing benefit. If those two latter findings or assumptions are part of the court's ratio, and there is no means of excluding them from the normal rules of binding authority, then they bind us, as they bound Munby J, to decide this case in the sense adopted by the board. To determine whether that is so it is necessary to review some fundamental principles of the system of precedent.”

In his judgment Buxton LJ then went on, at [16], to approve the statement of Professor Cross as to what constitutes the ratio of a case. I have set out [16] above. Applying that statement, or test, Buxton LJ was in no doubt that the understanding of the Court of Appeal in Goonery, as to the effect of regulation 3(4), formed part of the ratio of their decision:

“17

Judged by that test, there is no doubt that the assumptions in Goonery's case that the issue was to be decided solely by reference to regulation 3(4); and that because Mr Goonery shared the kitchen with Mr Carver he resided with him; were impliedly, and possibly also expressly, treated by the court as a necessary step in reaching its conclusion. Indeed, those assumptions were not merely a necessary step in the reasoning, but assumptions that determined the conclusion or took up the whole of the reasoning process. Although it is perhaps otiose to do so in this case, Professor Cross's test can be most easily applied by positing the negative of the rule of law under consideration. If the court in Goonery's case had proceeded on the basis that regulation 3(4) was not determinative (which, as indicated in paragraph 11 above, is the preferred view both of Munby J and of ourselves), then the result of the case might not have been different, but court's conclusion, in the sense of its finding that the sharing of the kitchen decided the matter, certainly would have been. Therefore, unless the present case can be treated as an exception to the general rule of precedent, we are bound to follow the same approach as did this court in Goonery's case.”

Buxton LJ then went on to consider whether an exception to the general rule of precedent could be found in relation to Goonery. He first considered whether the case could be considered to have been decided per incuriam or, avoiding the Latin expression, whether the case fell within that category of case, identified in Young v Bristol Aeroplane Co Ltd [1944] KB 718, where the ratio of a decision of a court is not binding because the court made its decision in ignorance of a statute or a rule of law or a previous relevant decision. As Buxton LJ noted, this exception to the rule of precedent was a narrow one, and could not be said to apply to Goonery.

This left the argument, advanced by the applicant’s counsel in Kadhim, that the ratio or part of the ratio of a case was not binding if it was assumed to be correct without the benefit of argument. After considering this argument Buxton LJ reached the following conclusion, at [33]:

“33

We therefore conclude, not without some hesitation, that there is a principle stated in general terms that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court. Since there is no direct Court of Appeal authority to that general effect we should indicate why we think the principle to be justified.”

Buxton LJ emphasized however the limited nature of this principle, at [38]:

“38

Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. That condition will almost always only be fulfilled when the point has not been expressly raised before the court and there has been no argument upon it: as Russell LJ went to some lengths in National Enterprises Ltd v Racal Communications Ltd to demonstrate had occurred in the previous case Davies Middleton & Davies Ltd v Cardiff Corpn 6z LGR 134. And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision.”

So far as the actual decision in Kadhim was concerned, Buxton LJ concluded that the principle which he had identified at [33] did apply to the relevant part of the decision in Goonery. As such, the Court of Appeal were free to make their own decision on regulation 3(4), which was that it did not impose an exhaustive statutory test of residence. The Court of Appeal therefore allowed the appeal and granted the declaration sought by the applicant.

I have spent some time on Kadhim because it seems to me to provide the appropriate guidance in determining whether Zarb constitutes binding authority on the identity of the ten year period in paragraph 5(4)(c). Indeed both Ms Tozer and Mr Goldberg addressed me on the basis that the appropriate guidance was to be found in Kadhim.

Returning to the Decision, the Judge took the view that he was not bound by Zarb. The judge dealt with this question at Paragraph 52, where he said this:

“52.

The wording of paragraph 5(4)(c) is ambiguous as is evidenced by the debate that it has engendered and there is no clear authority on its construction. In both Zarb v Parry and IAM Group plc v Chowdrey it was found that the reasonable belief continued until the date of the proceedings and construction was not argued. I am, therefore, not bound by either of them. What is clear to me is that Parliament cannot have intended that a squatter makes an application on the day his belief ceases to be reasonable. Such a construction would render the provision virtually useless and, indeed, Mr Adams acknowledges this by conceding that any de minimis period should be disregarded.”

Although this is not apparent from Paragraph 52, the Appellant’s skeleton argument for the appeal drew my attention to the fact that it was conceded in the FTT, by counsel for the Appellant, that what was said about the identity of the ten year period in Zarb was obiter. So far as was necessary, the Appellant sought permission to depart from this concession at the hearing of the appeal. For the Respondents Mr Goldberg referred me to the decision of the Court of Appeal in Singh v Dass [2019] EWCA Civ 360 and, in particular, to the identification by Haddon-Cave LJ, in his judgment at [15] – [18], of the principles which apply where a party seeks to raise a new point on appeal:

“15.

The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.

16.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

18.

Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] R.T.R. 22 at [29]).”

Mr Goldberg accepted that I could be satisfied that the Appellant’s argument that Zarb constituted binding authority did not offend against the first and second principles stated in [16] and [17], or against the principles identified at (a) and (b) in [18]. In relation to the principle stated at (c), in [18], Mr Goldberg’s position was that he was putting down a marker on costs. What I understood this to mean was that Mr Goldberg was not objecting to the Appellant being allowed to raise his new argument, but was reserving the Respondents’ right to make appropriate submissions on costs, at the point where the costs of the appeal and cross appeal come to be considered, by reference to the principle stated at (c) in [18]. Mr Goldberg’s position seemed to me to be both sensible and realistic. Applying the principles stated by Haddon-Cave LJ I am satisfied that the present case is one where it is appropriate to permit the Appellant to withdraw his previous concession and raise the new argument that Zarb constitutes binding authority on the issue of the identity of the ten year period referred to in paragraph 5(4)(c). I state this decision subject to any questions of costs raised by the withdrawal of the concession and the raising of the new argument. In that context I agree with Mr Goldberg that any such questions of costs can and should be left until the outcome of the appeal and cross appeal are known, and the costs of the appeal and cross appeal come to be addressed.

With this preliminary point dealt with, I return to Paragraph 52. In considering the reasoning and conclusion of the Judge in Paragraph 52 it is, obviously, important to record that the reasoning and conclusion in this Paragraph took place in the context of a concession that the relevant part of the decision in Zarb was obiter. Now however that the concession has been withdrawn, I do not think that the reasoning or conclusion of the Judge in Paragraph 52 can stand. I say this for the following reasons.

So far as I can see, from the report of Zarb in the Weekly Law Reports, the issue of the identity of the ten year period in paragraph 5(4)(c) was not argued in Zarb. There is no record of any argument on this issue either in the judgment of Arden LJ or in the judgment of Lord Neuberger. I also note, from the judgment of Arden LJ at [21], that counsel for the defendants (the Parrys) was only called upon to address the Court of Appeal on the second issue; which was the issue of whether the judge had been correct to hold that the adverse possession of the disputed strip had not been interrupted by the incident in July 2007. Counsel for the defendants would not therefore have had the opportunity to address the Court of Appeal on the third issue of whether the Reasonable Belief Condition was satisfied. There would, I assume, have been a skeleton argument filed by counsel for the defendants for the hearing of the appeal, which would have addressed the third issue. I do not know however what that skeleton argument said about the third issue or, more specifically, whether that skeleton argument said anything about the issue of the identity of the ten year period during which the reasonable belief in ownership had to exist. There is no record in the report of Zarb of what submission, if any, counsel for the claimants (the Zarbs) made on the identity of the ten year period. So far as the position at first instance was concerned, it is not clear whether the issue of the identity of the ten year period was raised or dealt with by the judge. By reference to the judgment of Arden LJ, at [46], it looks as though this issue did not feature before the judge.

The absence of argument on this issue does not however mean that the approach of the Court of Appeal to this issue in Zarb cannot form part of the ratio of their decision. The test of what constitutes parts of the ratio of a decision in a case is that stated by Buxton LJ in Kadhim. The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching their conclusion, having regard to the line of reasoning they have adopted.

In her summary of the operation of the adverse possession regime in the 2002 Act, Arden LJ stated in terms, at [17], that the period of ten years referred to in paragraph 5(4)(c) was the last ten years of possession prior to the application for registration. As I have said, and while Arden LJ did not use the language of paragraph 5(4)(c), the statement made by Arden LJ must have been intended as a reference to the period of ten years ending on the date of the application for registration, as opposed to any period of ten years within the relevant period of adverse possession. Arden LJ effectively repeated this analysis of the operation of paragraph 5(4)(c), in the postscript to her judgment, at [55].

In making her actual decision on the third issue in Zarb it seems to me that Arden LJ must have approached the decision-making exercise on the basis that she was concerned only with the final ten years of the period of adverse possession, ending on the date which, by virtue of Section 98(1), qualified as the date of the application for the purposes of Schedule 6. As I have already noted, in my earlier summary of the judgment given by Lord Neuberger in Zarb, the period of adverse possession which the claimants were able to demonstrate went back to 1992. If therefore any period of ten years of reasonable belief, as from 1992, would have sufficed to satisfy the Reasonable Belief Condition, the coming to an end of the period of reasonable belief, as a result of correspondence in October 2007, was not necessarily fatal to the satisfaction of the Reasonable Belief Condition. Beyond this, it seems perverse to think that Arden LJ would not have had in mind her own construction of paragraph 5(4)(c), when she came to the third issue.

Jackson LJ agreed with the judgment of Arden LJ. Lord Neuberger, as I have already noted, approached the third issue in Zarb on the same basis as Arden LJ, subject only to the point that Lord Neuberger did not, at least in terms, identify the period of ten years in paragraph 5(4)(c) as the period of ten years ending on the date of the application for registration.

On this basis, and as in Kadhim, it seems to me that Arden LJ in Zarb, with the agreement of Lord Neuberger and Jackson LJ, proceeded on the basis that the period of ten years in paragraph 5(4)(c), during which the reasonable belief in ownership had to exist, was the period of ten years ending on the date of the relevant application for registration, and treated this construction of paragraph 5(4)(c) as a necessary step in reaching her conclusion that the defendants could satisfy the Reasonable Belief Condition. As such, it seems to me that Arden LJ’s identification of the period of ten years during which the required reasonable belief had to exist forms part of the ratio of Zarb.

Mr Goldberg took me through the decision in Zarb with considerable care and in considerable detail. His essential argument, on the basis of his analysis of the decision, was that the issue of the identification of the ten year period in paragraph 5(4)(c) was not raised as an issue within the third issue considered in Zarb. As he pointed out, principally by reference to [49] in the judgment of Arden LJ, the third issue was concerned, and only concerned with whether the reasonable belief of the defendants in their ownership of the disputed strip was brought to an end when they received the letter dated 16^th October 2007 from the claimants’ solicitors explaining and asserting the claimants’ title to the disputed strip. The problem with this argument seems to me to be this. I do not think that the argument is capable of going far enough to avoid Arden LJ’s identification of the ten year period in paragraph 5(4)(c) becoming part of the ratio of the decision in Zarb. As Kadhim demonstrates, the fact that a certain construction of a legislative provision is assumed by a court to be correct does not necessarily prevent that construction from forming part of the ratio of the decision. If anything, Zarb may be said to be a stronger case than Kadhim in this context, given that Arden LJ stated in terms her construction of paragraph 5(4)(c), and then proceeded, at least implicitly, to apply that construction when she came to the third issue.

Mr Goldberg also referred me to decision of the FTT in Crook v Zurich Assurance Limited [2023] UKFTT 00230 (PC). In this case the FTT considered the issue of the identification of the period of ten years in paragraph 5(4)(c), and concluded that it could refer to any period of ten years within the period of adverse possession. In reaching this conclusion the FTT cited two other decisions of the FTT and an earlier decision of a Deputy Adjudicator where the same conclusion on the construction of paragraph 5(4)(c) had been expressed. I did not find the decision in Crook to be helpful on Ground 1. In paragraph 54 of the decision in Crook the FTT simply stated that the interpretation of paragraph 5(4)(c) had not been argued in Zarb and the decision did not turn on this point because the reasonable belief was established to the date of the possession proceedings. On this basis the FTT appears to have assumed that Zarb did not constitute binding authority on the construction of paragraph 5(4)(c). It is not clear to what extent there was argument in Crook over the status of Zarb as precedent. There is no record of Kadhim having been cited to the FTT in Crook. Nor is there any analysis of the status of Zarb in the decision in Crook. The decision in Crook could not, in any event, constitute anything more than persuasive authority on the status of Zarb as precedent. It seems to me however, on examination of the decision, that Crook does not constitute any persuasive authority on the status of Zarb.

Mr Goldberg also referred me to the commentary on this question in Megarry & Wade, The Law of Real Property (Ninth Edition), at 7-098, which reads as follows:

“One aspect of the third condition remains the subject of uncertainty. It is not known whether the 10 years of reasonable belief must continue until immediately before the date of the application. Clearly a requirement that S submit her application on the very day her belief ceases, or ceases to be reasonable, is impracticable and cannot have been the intention of Parliament. The wording of the statute leaves it unclear as to whether any period of ten years within the period of adverse possession will suffice, or whether a reasonable period may elapse between the ending of the belief or of its reasonableness provided that the squatter acts promptly.⁵⁶⁵ The Law Commission has recommended the introduction of a fixed period of 12 months’ grace for the making of the application after the point when S no longer has a reasonable belief that she owns the land.⁵⁶⁶”

Mr Goldberg submitted, on the basis of this commentary, that the law on this point was unclear, as opposed to being governed by authority. I cannot see however that this commentary assists Mr Goldberg in relation to Ground 1. The question is whether Zarb constitutes binding authority on this particular point. The commentary in Megarry & Wade does not, at least in terms, address the question of the status of Zarb. There is a footnote to the commentary (footnote 565) which states that Zarb favours “the latter interpretation”, but there is no express consideration of the question raised by Ground 1.

I therefore conclude that Arden LJ’s identification of the period of ten years, in paragraph 5(4)(c), during which the required reasonable belief had to exist, forms part of the ratio of Zarb. In these circumstances Zarb constitutes binding authority on this question, unless this part of the ratio in Zarb is otherwise disqualified from constituting binding precedent. As Buxton LJ explained in Kadhim however the means of escape from the ratio of a previous decision of the Court of Appeal are very limited. It is clear that Zarb was not a decision reached per incuriam or a decision falling into any of the other categories of case identified in Young v Bristol Aeroplane.

This leaves the principle, the existence of which is confirmed by Kadhim, that a ratio or part thereof is not binding if it was assumed to be correct without the benefit of argument to that effect. This is however a strictly limited principle; see Buxton LJ in Kadhim at [38]. For ease of reference, I repeat Buxton LJ’s identification of the limits of this exception, at [38]:

“38

Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. That condition will almost always only be fulfilled when the point has not been expressly raised before the court and there has been no argument upon it: as Russell LJ went to some lengths in National Enterprises Ltd v Racal Communications Ltd to demonstrate had occurred in the previous case Davies Middleton & Davies Ltd v Cardiff Corpn 62 LGR 134. And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision.”

Mr Goldberg submitted that this principle was capable of applying to Arden LJ’s construction of paragraph 5(4)(c) if, contrary to his primary submission, this construction formed part of the ratio of Zarb. I cannot however accept this submission. It seems quite clear to me, looking at what Buxton LJ said at [38], that the excepting principle is nowhere near wide enough to extend to what I have decided is part of the ratio of Zarb. I refer to my earlier discussion of whether Arden LJ’s construction of paragraph 5(4)(c) formed part of the ratio of Zarb. The short point is that the acceptance of this construction by the Court of Appeal in Zarb went well beyond assumption in relation to a point not expressly raised. As I have explained, Arden LJ set out in terms her identification of the ten year period referred to in paragraph 5(4)(c). The case was quite clearly not one of mere assumption.

Accordingly, I conclude that the Respondents cannot rely on the exception to the rule of precedent stated by the Court of Appeal in Kadhim. Given my earlier conclusion on the ratio of Zarb, the consequence is that Zarb constitutes binding authority on the identification of the ten year period in paragraph 5(4)(c). Zarb constitutes binding authority that this period of ten years, during which the required reasonable belief in ownership must exist, is the period of ten years ending on the date of the application for registration.

Ground 1 - Is IAM binding authority?

Given my decision on the status of Zarb, it is not strictly necessary to answer the question of whether IAM constitutes binding authority on the identity of the ten year period. Zarb constitutes binding authority on this question. For the sake of completeness I will however consider, as briefly as possible, the status of IAM.

IAM was concerned with two adjacent properties known, respectively, as Numbers 26 and 26a Rye Lane. A deed entered into between the owners of the two properties in 1928 showed the boundary between the two properties as a clear and straight vertical boundary. Although this is not entirely clear from the report of the case which I have seen, it appears that this boundary was not a fence boundary but comprised, or at least included the boundary between the buildings on each property, which were joined to each other, either as semi-detached buildings or as part of a terrace of buildings. In March 1993 the defendant in the action (Mr Chowdery) became the registered freehold proprietor of Number 26a, having previously been the tenant of this property. During his tenancy the defendant had had exclusive possession of rooms on the first and second floors of Number 26, which were only accessible from Number 26a and had not been used by the owners of Number 26 for very many years. Following his purchase of the freehold of Number 26a the defendant remained in exclusive possession of the premises on the first and second floors of Number 26

In 2001 the claimant in the action (IAM Group plc) became the registered freehold proprietor of Number 26. Subsequently, in 2009 the claimant challenged the defendant’s apparent ownership of the premises on the first and second floors of Number 26, referred to as the disputed property, on the basis that the claimant was the registered proprietor of the disputed property. On 16^th August 2010 the claimant commenced an action for possession of the disputed property. The defendant contended, as had the defendants (the Parrys) in Zarb, that he had a defence under Section 98, on the basis that he had been in adverse possession of the disputed property since March 1993. In particular, the defendant’s case was that he had reasonably believed that the disputed property belonged to him since his acquisition of the freehold interest in Number 26 in March 1993, so that he was able to satisfy the Reasonable Belief Condition. The judge at first instance accepted this case, holding that the defendant had believed at all times from March 1993 that the disputed property belonged to him, and that this belief had been a reasonable one.

The claimant appealed to the Court of Appeal on the basis that the judge should have inferred that the conveyancing solicitors who acted for the defendant on his acquisition of Number 26a in March 1993 should be taken to have known that the disputed property did not form part of Number 26a and did not form part of the property which the defendant was acquiring. This knowledge could, in turn, be attributed to the defendant, with the result that the defendant could not reasonably have believed, at any time since March 1993, that he owned the disputed property. The claimant also argued that the correspondence which the defendant received from the claimant’s solicitors in 2009 and 2010 would have been sufficient to dispel any remaining misconceptions on the part of the defendant as to his ownership of the disputed property.

Judgment in the Court of Appeal was given by Etherton LJ (as he then was), with whom Ryder J and Thorpe LJ agreed. The issue before the Court of Appeal was whether the Reasonable Condition was satisfied. Etherton LJ identified the principal issue which the Court of Appeal had to determine at [18] in his judgment:

“18

The principal ground of the appeal is a short one. It is that the Judge ought to have inferred that the respondent's solicitors not only saw the 1993 transfer to the respondent and the copy entries in the Land Registry, but also conducted all necessary searches on the respondent's behalf. In the light of all of those documents, and assuming suitable enquiries, there was nothing to lead to a reasonable belief that the disputed property belonged to the respondent. Mr Evans points out that the plans at the Land Registry give no indication of a flying freehold covering the whole of the first floor of No.26 being comprised within the registered title of No.26a. He emphasises that the boundaries on the register plans show a vertical division of the boundary between the two properties. He says, moreover, that it is clear from the transfer itself that the transfer was of—and only of—the property comprised in the registered title of No.26a. He says that on the face of the register entries relating to both No.26 and No.26a there is reference to the 1928 Deed. Accordingly, Mr Evans says, not only is the inevitable inference that the solicitors acting for the respondent in 1993 would have seen and understood the Land Registry documents and the transfer as indicating only vertical boundaries between the two properties and the absence of any flying freehold owned by No.26a over No.26, but, if they had ever sought to investigate the point, it would have become perfectly clear from the 1928 Deed which they could have obtained from the Land Registry (and which in due course was in fact obtained from the Land Registry by the appellant) that any doubts on the point would have been resolved in favour of the Judge's ultimate conclusion, namely that there was no flying freehold over No.26 within the title of No.26a.”

Etherton LJ then identified the further issue raised by the appeal, on the question of reasonable knowledge, at [19]:

“19

Mr Evans further says that, if that was not enough, in 2009 and in 2010 there was correspondence from the appellant's solicitors to the respondent asserting that the respondent was not the owner of the first and second floors over the ground floor of No.26 but that the appellant was, and they enclosed copies of the relevant entries at the Land Registry. Mr Evans submits that, whatever misconception the respondent may have had up until that time about his ownership of the disputed property, he could not reasonably have continued to believe that he owned the disputed property after that time.”

Etherton LJ first dealt with the principal argument advanced on behalf of the defendant; see the judgment at [25] – [28]. As Etherton LJ pointed out, the relevant question was what was known to the defendant, not what was or might have been known to his conveyancing solicitors in March 1993. On this basis, as Etherton LJ explained at [28], the principal argument in the appeal failed:

“28

On the basis of the facts found by the Judge there was nothing to put the respondent on notice in 1993 that he needed to raise with his solicitors whether his title to No.26a included the disputed property, of which he had enjoyed exclusive possession without challenge or question from the time he first acquired an interest in 1990 and the access to which obtained solely from No.26a. That, in my judgment, is the end to the ground of appeal based upon the respondent's inferred knowledge derived from the assumed conduct of what would have been hypothetically competent solicitors.”

Etherton LJ then proceeded, at [29] and [30], to deal with the claimant’s further argument, based on the correspondence in 2009 and 2010:

“29

So far as concerns the letters from the appellant challenging the title of the respondent to the disputed property in 2009 and 2010, it is clear from Zarb v Parry that the mere fact that a paper title owner challenges the asserted ownership of land by the adverse possessor is not in every case sufficient to render unreasonable any continuing belief of ownership on the part of adverse possessor. On the facts in Zarb v Parry the adverse possessor satisfied the requirement of reasonable belief even though that the paper title owner had challenged the assertion of ownership by the adverse possessor.

30

The question in each case is what, in all the circumstances, is the proper conclusion as to the reasonableness or otherwise of the continued belief as to ownership by the adverse possessor. In the present case, by the time of the letters from the appellants challenging the respondent's asserted title of the disputed property, the respondent had enjoyed unchallenged exclusive occupation for some 18 years. During that period the respondent's exclusive occupation of the disputed property had never been challenged or questioned by anyone who had any interest in No.26, and indeed the appellant's own tenants had seemingly acknowledged that the disputed land was not being used by them, and access was only obtained via No.26a. In the light of those facts the Judge was not only entitled but right to conclude that the letters from the appellants did not result in the continuing belief of the respondent that he owned the disputed property ceasing to be a reasonable one.”

The appeal in IAM was thus dismissed. It should be noted that the judgment of Etherton LJ makes no reference to the question of the correct identification of the period of ten years referred to in paragraph 5(4)(c). There is no other reference, in the report of this decision, to this question being considered or argued before the Court of Appeal. The broad issue in the appeal was whether the Reasonable Belief Condition was satisfied. The specific issues were however (i) whether the belief of the defendant had never been reasonable, by reason of what was said to have been the knowledge of the defendant’s solicitors in 1993, and (ii) whether the belief of the defendant, if it existed as a reasonable belief prior to 2009, came to an end in 2009 when the defendant’s ownership of the disputed property was challenged. In considering these specific issues Etherton LJ did not find it necessary to state what period of ten years he was considering. It looks as though this question was not argued, or at least was not the subject of dispute in the Court of Appeal. Etherton LJ did make reference to Zarb in his judgment, which raises the inference that he was following Arden LJ in taking the period of ten years to be the period of ten years ending on the date which, by virtue of Section 98(1), would have been the date on which the defendant was deemed to have made an application for registration as owner of the disputed property.

This inference is strengthened by the fact that, at first instance, the judge clearly took the period of ten years to be the period of ten years ending on the deemed application date; namely 15^th August 2010, which was the day immediately before the day on which the claimant commenced its possession action. This is clear from Etherton LJ’s judgment at [17], where he set out an extract from the judge’s judgment. The extract is lengthy but I need only set out the following two parts of this extract, both of which demonstrate the judge’s identification of the period of ten years.

“This then leaves sub-paragraph (c) and the remaining attack is directed at whether the Defendant reasonably believed that throughout the period of 10 years ending on 15th August 2010 the disputed land belonged to him.”

“I am also satisfied that notwithstanding such correspondence as the Defendant may have seen from the Claimant's solicitors he continued reasonably to hold the belief for the whole of the material 10 years.”

It is not clear whether this identification was the subject of argument at first instance. It was not commented upon by Etherton LJ, presumably because identification of this period was not argued before the Court of Appeal. As I have said, my inference is that Etherton LJ simply proceeded on the basis that the ten year period was as identified by the judge, and as identified by Arden LJ in Zarb.

Where does this leave IAM, in terms of its status as binding authority on this question? Returning to Kadhim, and applying the identification of ratio established in that case, it seems to me this question is not an easy one to answer. The question is whether, in IAM, identification of the period of ten years in paragraph 5(4)(c) as ending on the deemed application date (15^th August 2010), was impliedly treated by Etherton LJ as a necessary step in reaching his conclusion that the Reasonable Belief Condition was satisfied, having regard to his line of reasoning. It can be argued that the answer to this question is no. In his reasoning Etherton LJ made no reference to the identification of the ten year period, which is understandable if I am right in thinking that the point was not argued in the Court of Appeal.

The problem with this analysis, which reflects the equivalent point which I have already made in relation to Zarb, is that Etherton LJ did consider the effect of the correspondence in 2009 and 2010. If any period of ten years of reasonable belief would suffice to satisfy the Reasonable Belief Condition, what happened in 2009 and 2010 was strictly irrelevant. If the period of reasonable belief could be traced back to 1993, as Etherton LJ considered it could, the Reasonable Belief Condition would have been satisfied well before 2009, if any period of ten years would suffice. The question seems to me to be more difficult to answer in relation to IAM than it is in relation to Zarb, but ultimately I conclude that the ratio of IAM includes a decision that the period of ten years referred to in paragraph 5(4)(c) is the period of ten years ending on the relevant application date and not any period of ten years during the relevant period of adverse possession.

This leaves the question of whether what I have decided to be part of the ratio of IAM can be treated as non-binding by reason of the narrow principle identified by Buxton LJ in Kadhim. Again, this is not an easy question to answer. The basic question to be answered, in the context of the decision in IAM, is whether the Court of Appeal (specifically Etherton LJ, as the other members of the Court of Appeal agreed with his judgment) assumed the relevant proposition of law, namely that the ten year period in paragraph 5(4)(c) was the ten year period ending on the relevant application date, to be correct without argument before or consideration by the Court of Appeal. In answering that question one must bear in mind Buxton LJ’s warning in Kadhim, at [38], that very little is likely to be required to draw the conclusion that the acceptance of the relevant proposition of law by Etherton LJ went beyond mere assumption.

In my view IAM does belong in the category of cases, which I accept is likely to be a small one, where the excepting principle in Kadhim does apply. Reading the judgment of Etherton LJ, with which the other members of the Court of Appeal agreed, there is no trace of any argument over or consideration of the identification of the ten year period. It seems to me that the Court of Appeal in IAM simply proceeded on the assumption that this identification was correct, no doubt because they were following the lead given by the judge at first instance and what was said in Zarb. I cannot find anything in IAM to suggest that the approach of the Court of Appeal to this question went beyond mere assumption. It is true that Etherton LJ considered an issue, namely the effect of the correspondence in 2009 and 2010 which did not arise if any period of ten years would suffice to satisfy the Reasonable Belief Condition, but I am unable to conclude that this converted the acceptance by the Court of Appeal of the relevant proposition of law into something more than mere assumption.

I therefore conclude that, taken in isolation, IAM does not itself constitute binding authority on the question of the correct identification of the ten year period referred to in paragraph 5(4)(c). I state the conclusion in these terms because, given my decision on the status of Zarb, IAM can be described as a decision consistent with binding authority on the identification question, even if not itself binding authority.

Ground 1 – conclusion

The Judge treated himself as not bound by either Zarb or IAM on the question of the identification of the ten year period in paragraph 5(4)(c); see Paragraph 52. I have decided that Zarb does constitute binding authority on this question. The Judge’s treatment of Zarb as non-binding authority on this question is understandable, given that this was conceded before him by the Appellant. The concession has however now been withdrawn, and it follows from my own analysis of Ground 1 that the Judge should have treated Zarb as binding authority on this question.

It seems to me that the Judge thereby made an error of law, which was a material error of law. If, as I have decided, Zarb constituted binding authority on the identification of the ten year period in paragraph 5(4)(c), it seems to me that the Judge should have followed Zarb and concluded that the ten year period during which the Respondents had to demonstrate their reasonable belief in their ownership of the Disputed Land was the period of ten years ending on the Application Date. Subject to the cross appeal this had the consequence, on the Judge’s findings as to the period during which the Respondents’ reasonable belief continued, that the Respondents had not satisfied the Reasonable Belief Condition, with the consequence that the Application fell to be dismissed.

Accordingly, I conclude that the appeal falls to be allowed on Ground 1. The consequences of this conclusion for the Decision depend however on the cross appeal. My decision on Ground 1 means that the cross appeal arises directly for decision. For the reasons given in the Decision the Judge directed the Chief Land Registrar to give effect to the Application. Whether that direction can stand depends upon the cross appeal. I will therefore defer consideration of the consequences for the direction given to the Chief Land Registrar (if any) of my decision to allow the appeal until after I have considered the cross appeal.

My conclusion on Ground 1 renders it strictly unnecessary to consider Grounds 2 and 3. In particular, it may be said that it is not appropriate for me to consider Ground 3 at all, given my decision that the question of construction raised by Ground 3 is the subject of binding Court of Appeal authority.

Mr Goldberg did however urge me to set out my views on Ground 3, whatever my decision on Grounds 1 and 2. I have decided, not without some hesitation, that I should, as briefly as I can, set out my views on Ground 3. I have taken this decision for the following reasons:

I will also set out my views on Ground 2. I find it convenient however to deal first with my views on Ground 3, given that those views are, in my judgment, relevant to my consideration of Ground 2.