Alistdair Barclay Brown v Richard John Ridley & Anor

A Court of Appeal construction of a statutory condition is binding where that construction was a necessary step in its decision, even though the point was not argued. Under paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002, Zarb v Parry established that the requisite reasonable belief must exist during the ten years ending on the application date.

An applicant must prove both an honest personal belief in ownership and that the belief was objectively reasonable. An appellate tribunal will not disturb a fact-finder's evaluation without an identifiable flaw or findings unsupported by evidence.

The respondents applied to be registered as proprietors of a strip within the appellant's registered title, claiming adverse possession. The First-tier Tribunal held that they had possessed the land for the necessary period and could rely on any ten years of reasonable belief in ownership under paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002. It directed the Chief Land Registrar to register them.

The appellant appealed. He contended that the ten years had to end on the application date and that the respondents' reasonable belief had ended by February 2018. The respondents advanced a contingent challenge to that factual finding, while seeking to uphold the First-tier Tribunal's direction.

The central issue was whether Zarb v Parry, [2011] EWCA Civ 1306, was binding on the temporal requirement in paragraph 5(4)(c).

1. Appeal allowed; cross appeal dismissed. Zarb v Parry, [2011] EWCA Civ 1306, was binding authority that the ten-year period of reasonable belief required by paragraph 5(4)(c) is the ten years ending on the date of the application. Arden LJ's construction was a necessary step in deciding whether the statutory condition was met, and was agreed with by the other members of the Court of Appeal. The narrow exception for a proposition merely assumed without argument did not apply.

2. The First-tier Tribunal therefore made a material error of law in treating Zarb v Parry as non-binding and in allowing the respondents to rely on an earlier ten-year period. On its factual findings, their reasonable belief had ended by February 2018. They did not satisfy the reasonable-belief condition when the ten-year period was measured up to their December 2019 application.

3. The Tribunal's preferred construction, stated on a hypothetical basis and with respect to the binding authority, was that paragraph 5(4)(c) naturally permits any ten years within the continuing period of adverse possession. That construction avoids implying an uncertain grace period after belief ends and avoids forcing a boundary claimant to issue an application promptly instead of pursuing negotiation. It could not affect the outcome because of Zarb v Parry.

4. The respondents' challenge to the factual finding failed. The statutory condition requires an applicant's own honest belief and its objective reasonableness. The First-tier Tribunal had correctly directed itself, evaluated the documentary and oral evidence, and was entitled to find that both elements had ceased by February 2018. There was no logical gap, inconsistency, omission of a material matter, or finding unsupported by evidence.

5. Permission was not required for the respondents' contingent grounds. They sought to uphold, rather than alter, the First-tier Tribunal's operative direction; this remained so although success might have required a remission for further findings.

6. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, the Tribunal set aside the First-tier Tribunal's decision and directed the Chief Land Registrar to cancel the application.

• Upper Tribunal (Lands Chamber): Allowed the registered proprietor's appeal and dismissed the respondents' contingent cross appeal: [2024] UKUT 14 (LC).
• First-tier Tribunal (Property Chamber): On 2 March 2023, directed the Chief Land Registrar to register the respondents as proprietors under Schedule 6 to the Land Registration Act 2002. That direction was set aside.