[2024] UKUT 112 (LC)

So Mr Mackenzie has the registered title to those two small areas forming part of the proposed developed that do not fall within the applicant’s registered title. Ms Cunningham suggested that the discrepancy could be accounted for by the fact that the boundaries on title plans are general boundaries unless there has been a determined boundary under section 60 of the Land Registration Act 2002; but in our judgement that argument could not succeed since the registered title boundary matches the conveyance plan.

At the start of the hearing Mr Fuller made an application to strike out the application on the basis that it could not succeed since the applicant’s proposed development encompasses land that he does not own. We refused that application on the basis that it was made without notice at the last minute.

That said, the applicant has had ample warning of the problem. It must have been obvious to those advising him from the title plans. It was raised in the amended statement of case filed by the 10 objectors represented by Mr Khakhar and Mr Fuller on 7 March 2024. Ms Cunningham explained that the applicant believes he owns the two disputed areas of land by adverse possession over many years and that he will have no difficulty in making an application for alteration of the register; if that fails, he believes he will have no difficulty in applying for a variation of the planning permission so as to move the gates in the north-east and the garage in the south-west back inside the registered title. Ms Cunningham applied to amend the applicant’s application so as to encompass, in the alternative, a development that did not involve use of land outside the applicant’s title. We refused that application on the basis that it was made without notice and at the last minute; in any event we have no evidence, other than the applicant’s opinion, that the variation proposed would be acceptable to the local planning authority.

Accordingly, the application proceeds on the basis that the proposed development encompasses the two disputed areas, and we consider it on the basis that the applicant owns the necessary land to put into effect the modification that he seeks. Had the applicant succeeded in establishing that the Tribunal has jurisdiction to modify the covenants under section 84 of the Law of Property Act 1925, we would not have exercised the discretion conferred by the statute to modify the covenant (see paragraph 19 above) in a way that would be pointless if the applicant did not own the necessary land. We would have adjourned the application in order for him to establish ownership, if he was able, of the disputed areas. As it is the applicant has succeeded as regards only one of the covenants; for the reasons explained below we do not have jurisdiction to modify the rest, and so the issue of the applicant’s title to the land needed for the development does not arise.