Prashar & Anor v Tunbridge Wells Borough Council

In determining the true position of a registered general boundary, the court must construe the underlying conveyance and plans. A later physical feature or unilateral boundary marker cannot contradict clear and unambiguous conveyancing information. Subsequent conduct may assist only where the conveyance is unclear or ambiguous and the conduct has probative value. An alteration correcting the position of a general boundary is not necessarily rectification, even where a substantial area is involved, because it does not prejudicially affect a title to land never owned by the registered proprietor. An appellate court should accord measured deference to a specialist adjudicator, but must intervene where the decision cannot be reconciled with the conveyances.

Tunbridge Wells Borough Council applied to alter the registered file plan under Land Registration Act 2002 in order to correct the boundary between its land and adjoining land owned by Sandeep Prashar and Vasanti Rajenda Patel. The Adjudicator upheld the application and adopted the Council’s front-fit plan. The respondents appealed, arguing that the true boundary was shown by a rear-fit plan and that the alteration amounted to impermissible rectification. The central issues were whether the front-fit plan was consistent with the 1937 conveyances and whether the register could be altered accordingly.

1. The appeal was allowed. The file plan was ordered to be altered to reflect the more accurate general boundary identified by Mr Jackson’s Plan.

2. The alteration was an alteration to correct the position of a general boundary, rather than rectification. The boundary dispute concerned the accurate location of the line which had always defined the parties’ titles. It therefore did not prejudicially affect the respondents’ title. The reasoning in Derbyshire County Council v Fallon [2007] EWHC 1326, as endorsed in Drake v Fripp [2011] EWCA Civ 1279, applied. The quantity of land involved did not alter that conclusion.

3. The 1937 conveyances and plans clearly identified the boundary by reference to the western flank of the Pink Building. The front-fit plan could not be reconciled with the specified dimensions of the service road. It would imply that the development had been constructed in breach of the relevant covenant and that part of the service road lay within the Council’s title, contrary to the parties’ common position. The rear-fit plan and Mr Jackson’s Plan were consistent with the conveyances and the physical dimensions.

4. Although measured deference was owed to the specialist adjudicator, intervention was required because the Decision did not address the material inconsistency between the front-fit plan and the conveyances. The approach stated in Wilkinson v Farmer [2010] EWCA Civ 1148 was applied through Drake v Fripp.

5. The metal studs and notices placed approximately 50 years after the conveyances were unilateral acts and could not contradict their clear terms. The principle in Ali v Lane [2006] EWCA Civ 1532 permitted subsequent conduct only where the conveyance was unclear or ambiguous and the evidence was probative. The later failure to object did not establish mutual recognition or adverse possession.

1. High Court (Chancery Division): allowed the respondents’ appeal from the Adjudicator’s decision dated 10 August 2011 and substituted an order requiring alteration of the file plan by reference to Mr Jackson’s Plan.