[2024] UKUT 14 (LC)

This is an appeal and (on a contingent basis) cross appeal against a decision of Judge Bastin in the First-tier Tribunal (Property Chamber) dated 2^nd March 2023.

On 20^th December 2019 Mr and Mrs Ridley, the Respondents to this appeal, made an application to the Land Registry for their registration as proprietors of certain land at Moonrakers, The Promenade, Consett, County Durham DH8 5NJ, on the basis of adverse possession. The application was opposed by Mr Brown, the Appellant in this appeal and the registered proprietor of the relevant land. The application was referred to the First-tier Tribunal and came before Judge Bastin (“the Judge”) for determination.

For the reasons set out in his decision (“the Decision”) the Judge determined the application in favour of the Respondents. The Judge directed the Chief Land Registrar to give effect to the application and register the Respondents as proprietors of the relevant land pursuant to the provisions of Schedule 6 to the Land Registration Act 2002.

With the permission of the Judge the Appellant appeals against the Decision.

The appeal is concerned with a short and interesting point of statutory construction in relation to paragraph 5(4)(c) of Schedule 6. Sub-paragraph (c) is part of a set of conditions which, if met, entitle a person in adverse possession of registered land to be registered as the proprietor of the land, in place of the previously registered proprietor. The condition in sub-paragraph (c) is in the following terms (italics have been added to quotations in this decision):

“(c)

for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him”

Sub-paragraph (c) refers to a period of ten years. During this period the applicant or a predecessor in title must have held the reasonable belief that the land to which the relevant application relates belonged to him. The point of construction raised by the appeal is whether this period of ten years: (i) is the period of ten years ending on the date of the relevant application or (ii) can be any period of ten years within the period of adverse possession.

The Judge concluded that the answer was (ii). The Judge decided that the period of ten years during which the reasonable belief must exist can be any period of ten years within the relevant period of adverse possession. The Appellant says that the Judge was wrong, essentially on three bases. First, the Appellant says that there was Court of Appeal authority, binding on the Judge, to the effect that the answer was (i). Second, the Appellant says that the relevant Court of Appeal authority, even if not binding, was authority to which the Judge failed to give adequate weight. Third, and independent of authority, the Appellant says that the correct answer, as a matter of statutory construction, was (i).

In these circumstances the appeal is not confined to the construction of paragraph 5(4)(c). The appeal also raises a question of precedent. Specifically, the question of precedent is whether the point of construction is already the subject of Court of Appeal authority which bound the Judge and binds me to determine the appeal in favour of the Appellant or, in the alternative, carries sufficient weight to lead to the same result.

There is also what is described by the parties as a contingent cross appeal brought by the Respondents. The Judge found in the Decision that the Respondents had failed to prove the existence of the required reasonable belief that they owned the relevant land beyond February 2018, well short of the date (20^th December 2019) when the Respondents made their application to the Land Registry for registration as proprietors of the relevant land (“the Application”). As such, the Respondents would have fallen short of satisfying the condition in sub-paragraph (c), if the Judge had decided that the period of ten years referred to in paragraph 5(4)(c) was confined to the period of ten years ending on the date of the Application. If the appeal is successful the Respondents say, by their contingent cross appeal, that the Judge was wrong to find that the Respondents’ reasonable belief in their ownership of the relevant land ended in February 2018, and should have found that their reasonable belief continued to October 2019 which would, so the Judge decided, have been sufficiently close to the date of the Application to satisfy sub-paragraph (c).

It follows that the cross appeal is protective. It arises if the appeal is successful. If the appeal is successful the Respondents say that the Judge’s direction to the Chief Land Registrar, to give effect to the application for registration, can still be upheld. This is on the basis that the Judge should have found that the Respondents, even on the Appellant’s construction of paragraph 5(4)(c), still satisfied the condition in paragraph 5(4)(c). It also follows that it is not necessarily accurate to describe the Respondents’ challenge to the relevant part of the Decision as a cross appeal. While it is convenient to continue to refer to this challenge as a cross appeal, I use this expression while keeping in mind that the cross appeal, if it arises, is said to be advanced for the purposes of upholding the direction to the Chief Land Registrar given by the Judge.