Two recent cases of the Upper Tribunal indicate clear differences in judicial opinion as to the jurisdiction of the Land Registration Division of the First Tier Tribunal (1) to make general findings as to the location of boundaries of registered titles and (2) to direct the Registrar to make entries in the Register reflecting those findings when those findings do not reflect an application that has been made for registration of a determined boundary.
General and Determined Boundaries
The general boundaries rule, reflected in section 60 of the Land Registration Act 2002, is well known. Unless the register records that a determined boundary has been registered under section 60(3) of the Land Registration Act 2002, the boundaries to registered titles shown at the Land Registry are general boundaries. That means that the boundary line shown on the register is no more than a general indication or approximation of the location of the boundary, rather that the precise boundary line. In contrast, in those (relatively rare) instances when a determined boundary is registered pursuant to section 60(3), then the register shows the exact line of the boundary.
Assuming that the exact line of a boundary between two registered titles cannot be agreed by the registered proprietors (in a boundary agreement, for example), a proprietor who wishes to clarify or determine the exact boundary line may apply to the Court for a declaration of the location of the boundary. The jurisdiction of the courts to make declarations is to be found in section 19 of the Senior Courts Act 1981 (or section 31 in judicial review proceedings) and section 38 of the County Courts Act 1984. Once the Court has declared the boundary, either owner can apply to the Land Registry pursuant to Rule 118 of the Land Registration Rules 2003 for registration of the declared boundary line as a determined boundary. Precisely because the issue has been determined by the Court, there ought to be no scope for any arguable objection by the other owner.
There is, however, nothing to prevent the proprietor of a registered title simply applying immediately to the Land Registry, pursuant to section 118 of the 2003 Rules, to register a determined boundary at the location – without first obtaining a court declaration. The Registrar will consider the application and, in particular, whether it satisfies the requirements of Rule 119. Those requirements are (a) that the plan identifies the exact line of the boundary claimed; (b) that there is an arguable case that the boundary is in the position shown on the plan; and (c) that the application has identified and provided addresses for all the owners of the land adjoining the boundary. Provided those requirements are met, the Registrar will send notification of the application to the registered proprietors of titles affected by the application and those so notified will have the opportunity to object. If an objection is raised, and the Registrar does not consider the objection to be groundless, and if the parties cannot resolve their disagreement, then the dispute will be referred to the Land Registration Division of the First Tier Tribunal for determination.
Such a reference to the FTT is made pursuant to section 73(7) of the Land Registration Act 2002; and section 108 of the Land Registration Act 2002 provides (amongst other things) that the FTT has jurisdiction to determine the matters referred to it under section 73(7).
The question that arises, therefore, and on which a judicial difference of opinion has become apparent, is whether the jurisdiction of the FTT is limited to determining whether or not the boundary is in the location contended for by the application; or whether, if it has concluded that the exact boundary is not in the location contended for by the application, the FTT can go on to determine where the exact boundary line is located, and then to direct the Registrar to give effect to its conclusions.
HHJ Dight in Murdoch v Amesbury  UKUT 3 (TCC)
On 4 January 2016, HHJ Dight handed down his judgment In Murdoch v Amesbury  UKUT 3 (TCC). An application had been made to register a determined boundary; objections were raised to the application on two bases: firstly that the plan was not accurate to within +/-10mm; and secondly that the boundary did not follow the line shown by the plan but, in fact, was elsewhere. The matter was referred by the Registrar to the Adjudicator (as it was then) for determination. The Adjudicator – who became a Judge of the First Tier tribunal – concluded that the plan was not satisfactory and therefore directed the Registrar to dismiss the application. It is important to appreciate that she was able to – and did – direct the Registrar to dismiss the application without actually determining where the correct boundary was. However, she then considered that she had jurisdiction to make findings as to the correct location of the boundary and that, in order not to encourage further expensive litigation, she should exercise that jurisdiction. Accordingly, having already directed that the application be dismissed, the Judge then made detailed findings as to where she concluded the boundary ran. She did not direct the Registrar to register a determined boundary in accordance with her findings, but she set out those findings in full in her decision – and they then were used by the respondents to the original application as the basis for their own application for a determined boundary. Although the original applicants did not question the Judge’s conclusion that the application should be dismissed, they appealed her conclusion that she had jurisdiction to determine the true boundary and the findings of fact made in her decision as to the location of the true boundary.
The first issue for Judge Dight was whether the appellants (the original applicants) even had locus to bring the appeal. After all, an appeal is conventionally brought against an Order, and they were not challenging the Order made by the Judge. Judge Dight noted that section 111(1) LRA2002 granted the Upper Tribunal jurisdiction to hear appeals from a decision of the First Tier Tribunal. He considered the Court of Appeal authorities of Lake v Lake  P 336 and Cie Noga D’Importation et d’Exportation SA v Australia and New Zealand Banking Group  EWCA Civ 1142, and concluded that the locus to bring the appeal turned on whether, if the findings made by the Judge had been recorded in a formal Order or Direction to the Registrar, the appellants would be seeking (and would be entitled) to appeal that Order. He concluded that they would; and that therefore they had locus to appeal the findings made by the Judge in her decision.
He then considered the jurisdiction of the Judge of the FTT. He considered that the appropriate starting point was that the FTT was a creature of statute; it had only the jurisdiction granted to it by statute. That jurisdiction was set out in section 108 of the LRA 2002 and was limited to determining the matters referred to it by the Registrar under section 73(7). The subject matter of the reference to the Adjudicator had been defined in the case summary accompanying the reference as the appellants’ application for registration of a determined boundary to which the objections had been raised. Having determined that the plan was not accurate and that the application should therefore be dismissed, the Judge lacked jurisdiction to go on to make findings as to the location of the boundary. Judge Dight was of the view that:
''The power of the Adjudicator/Tribunal to give directions to the Registrar is binary in that he may direct the Registrar to give effect to or cancel the original application but nothing else. There is no power for the Adjudicator/Tribunal to prefer the objector’s position and to direct the Registrar to give effect to that position. Nor is there any power to give a direction requiring the Registrar to give effect to other findings and conclusions made by the Adjudicator/Tribunal in the course of giving his ‘written reasons for the decision.''
Accordingly, he allowed the appellants’ appeal and set aside the findings in the decision of the Judge of the FTT.
Judge Elizabeth Cooke in Bean v Katz  UKUT 168 (TCC)
On 6 April 2016, Judge Elizabeth Cooke issued her decision in Bean v Katz  UKUT 168 (TCC) in which similar issues arose. An application had been made for registration of a determined boundary. Objections were raised and the dispute was referred to the Adjudicator – which became the FTT. The FTT determined that the boundary was on the line claimed by the applicants save for one section, ‘the Front Section’, at which the FTT considered that the boundary followed a right angle rather than the curve shown in the application. The FTT could not, therefore, direct the Registrar to give effect to the application in the form made. Rather than direct that the application be dismissed, however, the FTT directed that the Registrar give effect to the application save that, as to the Front Section, the determined boundary should be registered as following the right angle that it had determined. The applicants appealed, contending for the curved boundary at the Front Section. Although the Upper Tribunal allowed the appeal and directed the Registrar to register a determined boundary in accordance with the application, Judge Elizabeth Cooke discussed whether the FTT had jurisdiction to direct the Registrar as it had, and the extent to which HHJ Dight’s judgment in the Murdoch case should be regarded as authority that it did not.
It is clear that Judge Elizabeth Cooke fundamentally disagreed with the views expressed by HHJ Dight in Murdoch; and she therefore distinguished the Murdoch very narrowly. It was, she explained, a decision based upon the unsatisfactory nature of the plan and was authority for no greater proposition than that, if the application is to be dismissed because the plan was not in accordance with the rules, the FTT had no jurisdiction to go on to consider the proper location of the boundary. It followed that Judge Dight’s further comments that the FTT’s jurisdiction was binary in that it could only direct the Registrar either to register the determined boundary in accordance with the application or to dismiss the application, and no more, were all obiter and neither she nor the FTT were bound by them.
Having so distinguished Murdoch, she then made it clear that there was no doubt in her mind that the FTT did have jurisdiction to consider the title to land in dispute, to dispose of determined boundary references by determining where the true boundary lay and then by direct the Registrar to register a determined boundary in accordance with that determination. If that were not so, she explained, the FTT would be unable to follow the scheme of the Land Registry Rules which require a determined boundary application to be assessed not only as to the accuracy of the plan (rule 119(1)(a)) but also as to whether the line on the plan is, in fact, the boundary (rule 119(1)(b)). Further, not only did the FTT have jurisdiction to make findings as to the true location of the boundary, it was inevitable that it would do so in each case in which an objection was raised as to the purported location of the boundary. She noted that the rules did not require the Registrar to use the plan appended to the application when registering a determined boundary and concluded that success or failure with an application for a determined boundary may be in whole or in part.
Judge Cooke’s substantive decision on the appeal was that the FTT had been wrong to find that the boundary was not curved as shown on the application, and she therefore directed the Registrar to register a determined boundary in accordance with the application. Her decision did not turn upon or require a finding as to the FTT’s jurisdiction to direct the registrar to register a determined right-angled boundary at the Front Section and therefore that part of her judgment in which she sought to distinguish Murdoch is arguably obiter. It is clear, however, that these two cases represent a fundamental judicial disagreement as to the jurisdiction of the FTT. Judge Dight’s reference to the jurisdiction being binary could not have been clearer; nor could Judge Cooke’s statement that she had no doubt that success or failure before the FTT on a determined boundary reference could be in whole or in part.
Which is likely to be followed? Both approaches are internally coherent; but Judge Dight’s permits the possibility that, even after a number of rejected applications for a determined boundary, the precise location of the boundary might remain undetermined. The public interest in discouraging unnecessary and repeated litigation is therefore likely to lead to Judge Cooke’s view being preferred. In the meantime, however, and until the position is clarified, litigants can issue court proceedings seeking a declaration, the result of which will usually be that findings as to the true location of the boundary will be made (and those findings will be binding on the litigants and their successors in title).