Devere, R (on the application of) v Land Registry

Judicial review of a first registration decision is exceptional. Where an independent Land Registry adjudicator has determined an objection and directed registration, the registrar has no discretion to reconsider the merits or go behind that direction. Judicial review is confined to cases involving unlawfulness, perversity, jurisdictional error or an invalid direction. An objection may be treated as groundless where it fails the very low statutory threshold. A court may intervene in an especially limited case where registration would be legally invalid or would unlawfully interfere with Convention rights. Attempts to use registration objections or judicial review to relitigate conclusively determined proprietary or mooring issues constitute an abuse of process.

The claimant sought permission to bring two judicial reviews concerning registrations of land adjoining and forming part of the Grand Union Canal and the old River Brent at Brentford. The first registration followed an adjudicator’s determination that British Waterways Board owned the relevant canal land and should be registered. The second followed the registrar’s decision that an objection to the Port of London Authority’s registration application was groundless.

The claimant alleged defects in the applicants’ documentary and statutory titles, manorial ownership, procedural errors, and fraudulent evidence. The claims were heard together with related objections and litigation concerning mooring rights, title and adverse possession.

1. Permission refused. Both judicial review applications were an abuse of process and totally without merit. The first claim had no realistic prospect of success. The second claim was groundless and failed for the same reasons.

2. Under the Land Registration Act 2002, an objection to registration may be rejected as groundless under section 73(6), applying a very low threshold. Otherwise, the objection must be referred to the adjudicator. The adjudicator is an independent tribunal whose decision binds the parties and the registrar and may be enforced as an order of the court.

3. Where registration follows an adjudicator’s direction, the registrar has no discretion to reconsider the merits or go behind the adjudicator’s decision. Judicial review is available only in an extreme case involving an unlawful or invalid direction, want of jurisdiction, or an otherwise legally invalid registration. Any legal error in the adjudicator’s decision had to be pursued by an appeal to the High Court, for which permission had already been refused.

4. The court identified three possible categories of judicial review challenge: a groundless-objection decision; a plainly unlawful or perverse registration where no effective amendment or rectification remedy exists; and an unlawful registration following an adjudicator’s direction. The scope for intervention was extremely limited. A possible Human Rights Act case, such as an unlawful interference with a person’s home, would be rare.

5. The claimant’s objections sought to revive proprietary and mooring claims already determined against him. Those claims were also pursued while he was bankrupt and concerned property interests of monetary value. The court treated the proceedings as abusive, while accepting them as procedurally regular because the claimant asserted that his trustee had consented to their commencement.

6. The objections based on manorial ownership, absence of statutory title, alleged undisclosed disputes and alleged fraud or forgery did not establish any jurisdictional or legal defect. The relevant statutory successions and prior determinations supported the registrations. The allegation of fraud was unsupported and, in any event, concerned land removed from the application.

7. Mr Moore’s application to be joined as claimant was refused. It was made too late, the proposed claim had no prospect of success, and an alternative remedy existed by applying to amend, alter or rectify the register.

First-instance decision on two renewed applications for permission to apply for judicial review. No prior appellate stage is stated for these claims.