REF/2014/0022

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

1.	BARRY JOHN FACEY
2.	ANN PRUNELLA FACEY 

 APPLICANTS

and

BEDFORD BOROUGH COUNCIL

RESPONDENT

Property Address:   Land adjacent to 74 Hamble Road Bedford 
Title Number:  BD288898
 
Before: Judge Mark
Sitting at:  Bedford Magistrates Court
On: 7 August 2014

Applicant Representation:  In person
Respondent Representation: Mr. Geraint Jones, counsel
 
___________________________________________________________________________

DECISION

 As a result of misrepresentations by the Respondent and errors by the Land Registry in reliance on those representations, the Respondent was registered in 1998 not only as proprietor of land to which it had title, but of adjoining land to which it had no title and which was in the possession at the time of the Applicants, who were not given any opportunity by the Land Registry to object to the Respondent’s application.  Part of the land in the possession of the Applicants had been in their possession since the summer of 1991, so that a possessory title had been obtained prior to the coming into force of the Land Registration Act 2002 in October 2003, but part had only been occupied by them after October 1991 but before the Respondent obtained its registered title.  The Applicants applied under the transitional provisions to be registered with a possessory title of the whole of the land occupied by them.  The Respondent objected that as the title was registered, there was no right to succeed in respect of that part of the land which had only been possessed after October 1991.  

Held that the Chief Land Registrar should be directed to cancel the Respondent’s registration insofar as it affected all the land in the possession of the Applicants and to give effect to the Applicants’ application for a possessory title.
 
1.	For the reasons given below, I shall direct the Chief Land Registrar to (1) alter the register of title BD205252 so as to exclude from it the land which is the subject of this application, and (2) then to give effect to the application of the Applicants dated 5 July 2013.

2.	By a decision dated 11 September 2014, I directed that representations were to be made by the council as to why I should not direct the Chief Land Registrar to alter its registered title so as to remove from that title the land which is the subject of this application and to give effect to the Faceys’ application.  I made it plain that such submissions were to be limited to issues arising in relation to the question whether the registration of the council as proprietor of that land was a mistake that should be corrected and whether it could and should be ordered to be corrected in these proceedings.

3.	In that decision I made findings relating to all the issues except those on which I directed further submissions.  Despite this the further submissions made on behalf of the Council amounted to an attempt to re-argue much of the case.  I could only review the decision under Rule 55 of the Practice and Procedure Rules 2013, if there were an application for permission to appeal and I considered that a ground of appeal was likely to be successful.  There is no application for permission to appeal the decision and, if there had been, for the reasons given below, I do not consider that such an appeal would have any realistic prospect of success.

4.	The first point taken by the council is to seek to re-argue that the council asserted title to (and subsequently entered into occupation of) the disputed land in 1977.  Its arguments on this point begin with unsubstantiated allegations as to the transmission of the title to Freemen’s Common since 1858.  In view of the fact that there is no dispute as to the council’s entitlement to Freemen’s Common, or as to the title of the North Bedfordshire Borough Council (NBBC) before it, this is irrelevant, as is the unsupported allegation that the present council is NBBC but under a new name.  I note, however, that their own counsel, in his Opinion dated 17 April 1998, described NBBC as the council’s statutory predecessor.

5.	It is then submitted that as a matter of law the alteration of the brook had no effect on the ownership of the land which was cut off from the rest of the farm by the diversion.  That is not in dispute.  It is then said that the land could not be reached by the farmer except by boat.  That is not correct.  The brook was narrow and would appear also to have been shallow most of the time.  It may therefore have been reached by bridging the gap with planks, or, as it was usually shallow, by crossing on foot without planks.  

6.	It is then said that the land was of no interest to the owner and the proper inference is that the land was simply treated as part of the common for 35 years from 1942 to 1977.

7.	I reject this submission for the reasons given in paragraphs 4 and 5 of my earlier decision.  I also note that, as pointed out in paragraph 34 of the earlier decision, the first suggestion of a possessory title was in paragraph 8 of counsel’s Opinion of 17 April 1998, when counsel enquired if there was any evidence to support this.  There is no suggestion that any evidence to support it was ever found.  NBBC was well aware that it had no title to the land and there is nothing to suggest that it lost sight of this or that ever, as a charitable trustee, chose deliberately to trespass on land to which it knew it had no title.  In addition, the Agreement in 1977 for the diversion of the bridleway provides for it to be diverted to along the south-western boundary of the common.  The disputed land appears to be shown outside that boundary on the plan and this also suggests that the disputed land was not then regarded by NBBC as part of the common.

8.	There is nothing to suggest that at that stage NBBC was asserting any title to the disputed land as being part of Freemen’s Common, and this reinforces the conclusion to which I came in paragraphs 9-11 of my earlier decision in relation to the claimed acknowledgment of title, a conclusion which appears to be the same as that briefly expressed by the council’s then counsel in paragraph 4 of his 1998 Opinion.

9.	The council next tries to suggest that the conclusion that the assertion of title relates only to the land up to the fence is untenable.  It is said that the fence was not there and its actual position and the actual route of the bridleway were unknown.  This is wrong.  The precise route of the bridleway was still to be determined but it was along the south-western boundary of the common and not on the disputed land.  It is said that the route of the fence was to run along the north-eastern side of the bridleway.  If so (and the route is missing from the copy of the Agreement supplied by the council) then that would also define the position of the fence.  What is clear, however, is that at least where it crossed the disputed land, the fence, or a fence, ran on the south-western side of the bridleway.  A consideration of the plan annexed to the 1977 Agreement shows why this may have happened.  For most of its length, the south-western side of the bridleway was bounded by the brook.  The fence was needed, perhaps, on the north-eastern side (if that is where it was to be) to separate the bridleway from the rest of the common.  It was additionally needed on the south-western side where it bounded the disputed land to separate the bridleway from that land.  It may be therefore that the fence on the south-western side was not the fence erected by Flitwick pursuant to the Agreement, but was either an earlier boundary fence or an additional fence erected where needed by Flitwick.  

10.	Whatever the position in that respect, it was there and it defined the boundary between the disputed land and the common, with the bridleway running, as agreed, along the south-western boundary of the common.  The only different conclusion to which I might have come, on the basis that the fence agreed to be erected by Flitwick ran along the north-eastern side of the bridleway, is that the fence to the south-west of the bridleway belonged to Flitwick and not to the council.  As the Faceys have not claimed any title to the fence, that does not affect my decision.

11.	The next point taken on behalf of the council appears to be based on what is said to be a blown up version, at p.88 of the council’s trial bundle, of part of a plan taken from the 1998 declaration of David Joyce when the council applied to be registered with title to the disputed land.  It is plainly not a blown up version of part of that plan, which is at p.87 of that bundle.  It is a photocopy of a scale drawing by the council based on what appears to be part of an Ordnance Survey plan of uncertain date except that it postdates the 1977 development. The original scale is stated to be 1:1250.  It is said to show the bridle path some distance north of the 1977 channel, and this is used to claim that the gardens extended across the brook and across the line of the former bridleway and up to the fence.  I am unable to make any such deduction from this plan.   There is no suggestion of any bridle path having been occupied or cleared by the Faceys or their neighbours, and the Land Registry Illustrative Plan does not show any bridle path crossing that land.   

12.	If, indeed, the bridleway was constructed by Flitwick in part over the disputed land, that was not in accordance with 1977 Agreement and it does not appear to me that, in the absence of any evidence as to why it was so constructed I should assume that it was on the basis that Flitwick assumed the disputed land belonged to NBBC, which had never asserted title to it.  I also note that at no time in the 1990’s when the Faceys were questioning the council’s title, and when evidence as to the position of the bridleway on the ground is still likely to have been available, did the council contend that any part of the disputed land fell within its paper title.  Neither was any such possibility mooted with counsel in 1998 or with the Land Registry in the same year.

13.	I see no reason to revise my decision as to when the Faceys first took possession of that part of the disputed land which they now occupy.  Neither do I see any reason to revise any part of my reasons in paragraphs 51 to 53 of my earlier decision for finding that the letter from Mr. Facey of 14 January 1994 does not assist the council.

14.	I turn now to the events leading to the registration of the council with title to the disputed land.  Its application for registration followed a few months after the pessimistic advice in counsel’s 1998 Opinion and the failure of the Faceys’ attempt to register a possessory title.  I have set out the facts in paragraphs 35 to 49 of my earlier decision and it is unnecessary for me to repeat them here.  I note, however, that Mr. Joyce, who was the council’s property development manager, gave evidence as to an alleged lack of fencing off of the disputed land which was patently incorrect, and which could be seen to be incorrect both because the fencing had become visible as a result of the Faceys’ clearing and cultivating the land up to it and by reference to the 1977 Agreement as to fencing.  He also stated that he was not aware of any adverse claim in respect of it and that it had remained in a vacant state.  These statements too were patently false and self-serving, even if they did not in the event mislead the Land Registry.

15.	Then in response to an enquiry from the Land Registry whether there was any subsisting question or doubt or conflicting claims concerning which it ought to be aware, a Mr. Dixon from the office of the chief executive simply responded that he was not aware of any application having been made by any adjoining owner for registration of title to any part of the land.  While that is factually true, it fails to respond to the question as to questions, doubts and conflicting claims of which the council was well aware and of which Mr. Dixon should have made himself aware so as to reply to the enquiry.  No explanation has been offered how such a misleading omission came to be made.  I also note that there is no copy disclosed of the plan said to accompany Mr Dixon’s letter showing the area occupied by the Faceys and another adjoining owner, although it did make it plain that some area was occupied by the Faceys.

16.	There followed a failure by the Land Registry to inspect the relevant areas despite a statement that they were only accessible from the rear gardens of the adjoining properties, further misunderstandings of the law by the Land Registry and a failure to address the simple question why if the council had no title to land which it had pretended to the occupiers to own, and to be willing to sell, the Land Registry should give it a paper title that it did not otherwise have, so that it could sell that which until then it did not have.  There were also further misleading statements by the council, which totally failed to disclose the position that had been taken as to its title by Mr. Facey.  Its statement that “the main purpose of the application for registration was to regularise the situation for all concerned” is seriously misleading when Mr. Facey had made it plain to the council that he contended that it had no title to the land.  The statement that no action had been taken by the Faceys to incorporate the land into their garden was also misleading (again apparently deliberately so) when the land plainly had been incorporated into their garden, and the council either knew this or had not bothered to look.

17.	There was then the further mistake by the Land Registry in taking at face value what it had been told by the council in the circumstances which I have described in more detail in the earlier decision.  Although, as is now pointed out by the council, the Land Registry had had Mr. Facey’s claim a few months before, there is nothing in the correspondence to suggest that those dealing with the council’s claim were aware of it.   Nor were they aware of Mr. Facey’s clear assertion that the council did not own the land, that it had no right to try to sell it and that he would maintain his possession of the land against the council up to the fence which he had asserted to the council was the boundary of the common.  

18.	Further, while it is true that the council had told Mr. Facey that it would apply to the Land Registry to determine ownership, he was fully entitled, contrary to the position now adopted by the council, to wait to see what would happen.  He had every reason to believe that, if and when such an application was made, details of his claim would be made available to the Land Registry and he would be given the chance to put his case.  Particularly bearing in mind the dilatory behaviour of the council up to then, he was not to be expected to contact the Land Registry himself to find out what was going on, and even if sensibly, and contrary to my finding, he ought to have done so, this does not alter the fact that the council’s registration was a mistake occasioned by a combination of misleading information from it, the Land Registry’s failure to contact the Faceys or properly to assess the situation even given the limited information it had, and, as it proved, the misguided faith it had in the council’s ability and willingness fully to explain the position.

19.	For the reasons given above, and in the earlier decision, the registration of the council with title to the disputed land was a mistake.  I have no doubt that I should exercise the power which I have under rule 40 of the First-tier Tribunal (Property Chamber) (Practice and Procedure) Rules 2013 to direct the Chief Land Registrar now to exercise his power under paragraph 5 of Schedule 4 to the Land Registration Act 2002, to remove from the council’s title that part of the disputed land which is the subject of the Faceys’ claim and then to give effect to the Faceys’ application by registering them with a possessory title to that land.  I reject the submission that this is an issue that I cannot decide.  The entitlement of the Faceys to succeed in their application, other than in respect of land in their possession before October 1991, depends on its determination.  I have found that the Faceys has been in adverse possession of part of the land form 12 years before October 2003, and that as a result had acquired a possessory title to that part of the land before the Land Registration Act 2002 came into force.  To give effect to that title must involve directing the cancellation of the council’s title at least to that extent and I see no reason why the power to give such a direction should not extend to the rest of the disputed land at least insofar as it is land in the possession of the Faceys.  That would also accord with the overriding objective set out in Rule 3 of the Practice and Procedure Rules and is in accordance with my duty under Rule 3(3) to seek to give effect to the overriding objective when exercising powers under the Rules and when interpreting them.

20.	The Faceys had, and retain, the right to apply for the registration to be amended to exclude their land and, given the circumstances, it would be a pointless waste of time and money to require them to go back to the Land Registry to make that application when the issues are plainly before me now.  The Faceys’ application for a possessory title was of necessity an application to alter the boundaries of the council’s title.

21.	Dealing with the matter in accordance with the overriding objective to deal with this matter fairly and justly requires that I should deal with this now.  There is no suggestion that there was any further relevant evidence available for counsel in 1998 and no suggestion that any further relevant evidence is available now.  Given that whoever has title to the land has no apparent interest in it, there is no reason to expect any application by any other landowner than the Faceys in respect of their land.  The council has not, even now, suggested that it wishes to adduce additional relevant evidence, merely that if an application to alter the boundaries of the title had been made by somebody else, a much wider investigation of the history might be made with unknown consequences. 

22.	While I accept that dealings between the council and other residents since 1998 may be relevant to the question whether any further alteration should be made to the council’s title, it is rightly accepted that they are not relevant to the claims in respect of the land possessed by the Faceys.  If there are any further claims, such additional defences can be considered if and when they arise.  

Costs
23.	The Faceys are the successful parties and are on the face of it entitled to their costs, which would appear to include both their reasonable expenses in pursuing this claim and remuneration as litigants in person at the standard hourly rate subject to the usual regulatory limitations.  If the council wishes to contend that some other order for costs ought to be made, it should set out its reasons in writing, to be served and filed within 14 days of receipt of this decision.  Subject to any such submissions, I will give directions for the filing of a costs claim by the Faceys.   

By Order of the tribunal

dated the 17th day of november  2014