Murdoch v Amesbury  UKUT 3 (TCC)
1st March 2016
A First-tier Tribunal hearing an application under s.60(3) of the Land Registration Act 2002 for determination of a boundary was limited to either giving effect to the application or directing that it be cancelled. Having made a cancellation direction, it could not go on to determine the position of the legal boundary.
The Appellants had applied to the Land Registrar for a determination of the line of the boundary between their land and that of their neighbours, the Respondents (Rs). Rs objected on the basis that the plan submitted by the Appellants was inaccurate. The application was therefore referred to the First-tier Tribunal, where the judge directed that it be cancelled. Nevertheless, the Judge went on to make findings about the position of the legal boundary, relying on Neilson v Poole (1969) 20 P&CR 909 and Matson v Maynard, despite that issue not having been referred to her. The Judge expressed those findings in her written reasons but made no order in respect of them.
The Appellants did not challenge the cancellation of their determined boundary application. Instead, they challenged the Judge’s finding that she had jurisdiction to determine the position of the legal boundary, and her conclusion as to its position.
The appeal raised three main issues:
- whether the Appellants had standing to challenge the Judge’s findings as to the position of the general boundary notwithstanding the fact that they did not form part of an order and success on the appeal would not result in the direction by the Tribunal to HM Land Registry to cancel the determined boundary application being set aside;
- whether the Judge had jurisdiction to decide where the legal boundary lay;
- whether the Judge was wrong in her conclusions as to the position of the general boundary.
The appeal was allowed:
- The Appellants had standing to pursue the appeal. Section 111(1) of the Land Registration Act 2002 gave them the right to appeal against a “decision”. Whilst Rule 36 of the Tribunal Procedure (Property Chamber) Rules 2013 appeared to distinguish between the ‘decision’ and the reasons for it, that did not limit the meaning “decision” in the Acts to the terms of the decision notice. Second, the true ratio in Lake v Lake  P. 336 is not that one can only appeal against something that is contained in the order made at the conclusion of the hearing but that if the appellant would not be seeking to challenge or vary the decision were it recorded in a formal order, there was no jurisdiction to entertain an appeal. That was not the position in the instant case.
- The Judge had no jurisdiction to determine the position of the legal boundary. The FTT was the creation of statute and did not have the inherent jurisdiction enjoyed by the senior courts. Section 108(1) of the LRA 2002 clearly means that the FTT is limited to determining “the matters referred” to it, which in this case was the accuracy of the submitted plan. Further, when it became clear that the parties were disputing the boundary rather than the accuracy of the plan, the Judge could have and should have used the power in s.110 of the LRA 2002 to transfer the case to the courts as a boundary disputes as the courts would not have been constrained in making the appropriate findings of fact and law, or making the appropriate orders. The Judge had relied on a decision in another First-tier Tribunal matter, Matson v Maynard, which it was suggested is authority for the jurisdiction which the Judge purported to exercise. The Upper Tribunal disagreed with the views expressed in Matson, and considered it did not give the Judge jurisdiction – the answer instead lies in s.110 of the LRA 2002. Further, the decision in Neilson does not support a contention that the FTT had statutory jurisdiction to resolve boundary disputes where it could, in accordance with the overriding objective or otherwise. Properly understood, Neilson gives guidance as to how the court should approach the evidence in a boundary dispute. Finally, contrary to the Respondents’ assertions, the decisions in Jayasinghe v Liyanage  EWHC 265 (Ch) and Silkstone v Tatnall  EWCA Civ 801 did not support the existence of jurisdiction which the judge purported to exercise.
- (Obiter) Given the lack of original jurisdiction, the question of whether the judge was correct in her identification of the position of the boundary was not properly before the Upper Tribunal. However, as it had been fully argued and bearing in mind what happened in the Essex County Council v Essex Incorporated Congregational Church Union  AC 808 case, some brief observations would be made albeit obiter. The Appellants argued the Judge had failed to direct herself correctly in accordance with Ali v Lane  EWCA Civ 1532. The Upper Tribunal had misdirected herself and her error fatally undermined her conclusion on the position of the legal boundary.