Paton & Anor v Todd

Mr and Mrs Paton seek permission to appeal against a decision dated 1^st June 2011, whereby a Deputy Adjudicator to Her Majesty’s Land Registry dismissed their application to alter the title which was registered in the name of Mr Todd under Title Number DN514864. The application for permission to appeal was listed so that if I granted permission to appeal, I would immediately proceed to hear the substantive appeal. The application was heard over 2 days in March 2012 and each side put forward all of the submissions they wished to put forward in relation to the appeal, if permission to appeal were to be granted. Following the conclusion of argument, I reserved my decision. As I will explain in this judgment, I consider that it is appropriate for permission to appeal to be granted to Mr and Mrs Paton and, accordingly, this judgment deals with both the application for permission to appeal and the substantive appeal.

The intended appeal is under the Land Registration Act 2002 (“LRA 2002”), section 111. The appeal may be on a point of law or on the facts. Permission to appeal is required by Access to Justice Act 1999, section 54(1) and CPR PD 52 para. 23.8B. In a case, like the present, where there was no hearing before the Deputy Adjudicator, any appeal would be by way of a re-hearing: see CPR PD 52 para 9.1 and Starclass Properties Ltd v Dudgeon [2006] All ER (D) 203 (Feb).

Mr and Mrs Paton appeared in person. Mrs Paton presented oral submissions on behalf of herself and her husband. Mr Taylor of counsel appeared on behalf of Mr Todd.

Although it will be necessary in the course of this judgment to explain the conveyancing background to the matters in dispute, I will begin by referring to the circumstances in which the land which is currently in Title Number DN514864 came to be registered and then vested in Mr Todd.

Before 17^th November 2004, land known as Glebe Yard, Northlew, Devon was vested in Mr Isaacs and Mr Browne as the personal representatives of Rita Eleanor Bater, deceased. At that time, their title to that land was unregistered. On 17^th November 2004, Mr Isaacs and Mr Browne completed Form AS1 vesting title to Glebe Yard in themselves as bare trustees. The land which was the subject of Form AS1 was defined by reference to an attached plan. That plan showed the yard in question and included an area of land which provided an access to the yard from Queen Street, Northlew. On 1^st December 2004, Mr Isaacs and Mr Browne applied for first registration of the land the subject of Form AS1. They submitted Form FR1 to the Land Registry. That form referred to an attached plan which showed the land the subject of Form AS1. With effect from 2^nd December 2004, Mr Isaacs and Mr Browne were registered in relation to that land under Title Number DN505231. On 24^th March 2005, Mr Isaacs and Mr Browne contracted to sell that registered title to Mr Todd and Adrian Todd Building Limited. On 31^st March 2005, Mr Isaacs and Mr Browne executed two Form TP1s in relation to the land in Title Number DN505231 but divided into two parts described as Plot 1 and Plot 2. Plot 1 was transferred to Mr Todd and Plot 2 was transferred to Adrian Todd Building Limited. With effect from 30^th June 2005, the transferees were registered in relation to the land the subject of these transfers, Mr Todd under Title Number DN514864 and Adrian Todd Building Limited under Title Number DN514865. Plot 1, registered in the name of Mr Todd, included the land referred to above which provided the access from Queen Street to the yard behind.

Although the formal position was not clear at the hearing before me, I was told by Mrs Paton that on 19^th December 2007, she and her husband applied for first registration of their title to the property known as Clome Cottage, Queen Street, Northlew and at the same time they applied for alteration of the register of Title Number DN514864 to remove from it the land which formed the access from Queen Street to Glebe Yard, to allow that land to be registered (together with Clome Cottage) in their name. I am not clear what precisely happened in relation to their application to alter that registered title save that the Land Registry appears to have treated it as reinstated with effect from 26^th June 2008. If that is right, then the effective date for the application to alter Title Number DN514864 would be 26^th June 2008.

In this judgment, I will refer to Title Number DN514864 as “Mr Todd’s registered title” and to the part of it which is in dispute on the application for alteration as “the blue land” (as it is shown blue on the relevant plans before me).

The Land Registry gave notice to Mr Todd of Mr and Mrs Paton’s application to alter Mr Todd’s registered title and Mr Todd served notice of objection to that application. The Land Registry then referred “the matter” to the Adjudicator under Land Registration Act 2002 (“LRA 2002”) section 73(7). The matter was thereafter dealt with by the Deputy Adjudicator. I have not seen the terms of the reference but it is apparent from the decision of the Deputy Adjudicator that he considered that the reference related to the application for alteration of Mr Todd’s registered title, to which the registered proprietor had objected. Mr and Mrs Paton’s separate application for first registration in relation to Clome Cottage was not as such before the Deputy Adjudicator, although the decision he made in relation to the suggested alteration of Mr Todd’s registered title plainly had implications for Mr and Mrs Paton’s application for first registration.

The parties agreed that the Deputy Adjudicator should consider and determine the matter referred to him on the basis of written submissions and documents provided to him and without a hearing. He inspected the land in question in the presence of Mr and Mrs Paton and Mr Todd’s solicitor.

In his decision dated 1^st June 2011, the Deputy Adjudicator held that Mr Isaacs and Mr Browne did not have an unregistered title to the blue land and title to the blue land was only vested in them upon first registration under Title Number DN505231. Title to the blue land was then transferred by them to Mr Todd. The Deputy Adjudicator rejected the contentions of Mr and Mrs Paton that they had had an unregistered title to the blue land. The Deputy Adjudicator held that prior to registration of the blue land, it was owned by some unknown third party. Notwithstanding the fact that Mr and Mrs Paton did not have any property interest in the blue land, the Deputy Adjudicator held that they had standing to apply to alter Mr Todd’s registered title in relation to the blue land. He held that Mr Todd was not a proprietor in possession for the purposes of LRA 2002, schedule 4 para. 6(2) but if Mr Todd had been, then the application to alter the registered title would have been rejected. The matter was governed by LRA 2002, schedule 4 para. 6(3) and the Deputy Adjudicator held that there were exceptional circumstances which justified a refusal to alter the registered title in relation to the blue land. Accordingly, he directed that the application to alter the registered title be cancelled.

Following his decision of 1^st June 2011, the Deputy Adjudicator ordered Mr and Mrs Paton to pay Mr Todd’s costs of the application to alter Mr Todd’s registered title and refused permission to appeal.

Following the decision of 1^st June 2011, the Land Registry then dealt with Mr and Mrs Paton’s application for first registration in relation to Clome Cottage and with effect from 2^nd November 2009, title to Clome Cottage was registered in their name under Title Number DN594232. That title does not include the blue land. The filed plan to that title shows Clome Cottage and its garden to the north of the blue land and a smaller area to the south of the blue land. Thus, the blue land divides the two parts of the land in Mr and Mrs Paton’s registered title.

It is convenient at this point to mention the general boundaries rule in relation to registered land. The rule is stated in LRA 2002 section 60. By section 60(1), the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under section 60. By section 60(2), a general boundary does not determine the exact line of the boundary. In the present case the boundary of Title Number DN514864 and the boundary of Title Number DN 594232 are general boundaries. The filed plans for those titles do not show the exact line of the boundary which divides the blue land from Mr and Mrs Paton’s land. If Mr Todd’s registered title were to be altered by the removal of the blue land, then the boundary shown in Mr and Mrs Paton’s registered title would still only be a general boundary. A dispute as to the precise boundary between the blue land and Mr and Mrs Paton’s registered land will not be resolved by reference to the filed plans in this case. It is possible to apply to the Land Registry for the determination of the exact line of a boundary: see LRA 2002, section 60(3), (4) and Land Registration Rules 2003, rules 118 – 120, but no formal application of that kind has been made. In some cases, the exact line of a boundary can be determined without application: see Land Registration Rules 2003, rule 122 but the Land Registry plainly did not take that course in this case.

Before addressing the issues which arise on the application for permission to appeal and the appeal from the Deputy Adjudicator’s decision, it is convenient to refer to other court proceedings or applications which have been brought by Mr and Mrs Paton.

In around September 2011, Mr and Mrs Paton sued Mr Todd in the Exeter County Court in relation to a number of matters. In their Particulars of Claim, Mr and Mrs Paton claimed title to the blue land. In the alternative, they claimed a right of way over the blue land. Further, they claimed an injunction and damages in relation to various incidents involving themselves and Mr Todd in the vicinity of Glebe Yard and Clome Cottage. In his Defence and Counterclaim, Mr Todd relied upon his registered title to Glebe Yard which included the blue land. He counterclaimed against Mr and Mrs Paton on the basis that they had trespassed on the blue land by erecting a fence which was not along the true boundary line between Clome Cottage and the blue land. Counsel for Mr Todd told me that if the result of this appeal was that Mr Todd’s registered title was altered by the removal of the blue land, then he would wish to amend his pleadings to claim a right of way, with or without vehicles, acquired by prescription, over the blue land to gain access to Glebe Yard.

Mr and Mrs Paton have taken further steps in relation to a footpath which is said to exist across the blue land, leading from Queen Street to Glebe Yard. This footpath is shown on the Definitive Map prepared under the National Parks and Access to the Countryside Act 1949 and more recently maintained under the Wildlife and Countryside Act 1981. In around July 2009, Mr and Mrs Paton applied to Devon County Council for a modification of the Definitive Map so as to delete the footpath across the blue land and to substitute for it a footpath in a different place leading from Glebe Yard to Station Road. The Deputy Adjudicator was shown some documents which related to this application and also further documents, dating from around 1950, which indicated the basis on which the footpath was shown on the Definitive Map as crossing the blue land. I was not told what had happened, if anything, in relation to this application to modify the Definitive Map.

Further, Mr and Mrs Paton have issued a complaint in the Exeter Crown Court relying on the Highways Act 1980, section 56, and seeking a determination as to the correct line of the admitted public footpath. Mr and Mrs Paton appear to have contended in the Crown Court proceedings that the public right of way was a “road”. Mr Recorder Abbott, sitting in the Exeter Crown Court, held that there had never been a “road” across Glebe Yard and, it seems, that in particular there had not been a road before the coming into force of the Highways Act 1835. He further held that the line of the footpath was correctly shown on the definitive map as crossing the blue land. Mrs Paton told me that she has asked the Recorder to state a case for the High Court arising out of his findings.

The first point which Mr and Mrs Paton wish to advance by way of appeal against the decision of the Deputy Adjudicator is the contention that on the true construction of the conveyance (dated 1^st May 1981) by which Clome Cottage was conveyed to them, the blue land was within the land expressly conveyed. This first point is put forward as a matter of construction of the conveyance and without relying upon any presumption as to the ownership of the soil of a road. As will be seen, Mr and Mrs Paton have a second point as to the application of such a presumption in this case. I will consider their second point separately later in this judgment.

The Deputy Adjudicator considered in detail and with obvious care the conveyancing history in relation to Clome Cottage. He was shown abstracts of title of 1904, 1918, 1950 and 1980 and conveyancing documents in 1918, 1933, 1950 (twice), 1951, 1955, 1967, 1978, 1980 and, lastly, the conveyance to Mr and Mrs Paton on 1981. Before the Deputy Adjudicator, Mr and Mrs Paton did not assert a title by adverse possession. Accordingly, if they had title to the blue land it must have been conveyed to them by the conveyance of 1^st May 1981.

In addition to the abstracts of title and the conveyancing documents referred to above, Mr and Mrs Paton asked the Deputy Adjudicator to consider a large number of maps and photographs. The maps and photographs covered a lengthy period of time. The earliest map was the Tithe Map of 1843 and the earliest photograph dated from 1930.

The Deputy Adjudicator held that on the true construction of the conveyance of 1^st May 1981, putting the presumption about the soil of a road on one side, it was clear that the 1981 conveyance did not convey the blue land to Mr and Mrs Paton. He considered all of the material before him which was relevant to this question of construction. He gave clear and cogent reasons for his conclusion. If the question of the true construction of the 1981 conveyance, absent the presumption about the soil of a road, was the only question which Mr and Mrs Paton wished to raise by way of appeal, I would have had no hesitation in refusing permission to appeal on the ground that they had no real prospect of upsetting the Deputy Adjudicator’s conclusion. However, Mr and Mrs Paton wish to raise a large number of other points where I have concluded that it is appropriate to grant permission to appeal. In the course of considering all of the points raised by Mr and Mrs Paton, I have considered in detail the conveyancing history. It is open to me to refuse permission to appeal on the construction of the conveyance point and to grant permission to appeal on the other points, alternatively to grant permission to appeal generally to allow all points to be argued. I have concluded that I should grant general permission to appeal. It might be said to be somewhat artificial to distinguish, so far as permission to appeal is concerned, between construction of the 1981 conveyance without the presumption as to the soil of a road and construction of the 1981 conveyance taking into account that presumption.

However, as the question of the construction of the conveyance has been considered in detail by the Deputy Adjudicator and the parties have the benefit of his detailed reasoning on that point and as I agree with his reasoning, I will summarise my conclusions without traversing all of the ground that he covered.

In my judgment, taking the operative words in clause 1 of the conveyance together with plan number 1, on which the relevant part of the land was shown for the purpose of identification only, it is sufficiently clear that the land conveyed does not include an area or a strip which lies to the south of the dwelling house at Clome Cottage and to the north of an area on the other side of the blue land. In other words, it is clear that a piece of land separating the two parcels which are conveyed is excluded from the conveyance. In accordance with established principle (see, for example, Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462) plan number 1 can be used as an aid to the construction of the operative words in the conveyance. Indeed, if it were necessary, I would hold that the court should also take into account plan number 2, even though that plan is principally included in the conveyance to identify another parcel of land which was conveyed. If one takes into account plan number 2, that plan is very supportive of the above conclusion as to the exclusion of an area or strip between the parcels of land conveyed. Further, in accordance with established principle (see, for example, Pennock v Hodgson [2010] EWCA Civ 873 and Drake v Fripp [2012] 1 P&CR 69), the court may admit evidence of the physical layout at the time of the conveyance. There was no precise evidence as to the physical layout on 1^st May 1981 itself but plan number 2, referred to in the conveyance, and the other plans and the photographs, which were relied upon by Mr and Mrs Paton, show the position before and after that date with sufficient clarity to establish that the area or strip which was apparently excluded from the conveyance was then an access way to Glebe Yard. Therefore, it was readily understandable that the parties to the conveyance wished to convey land on either side of the access way, but not the access way itself.

Mrs Paton made detailed submissions to the effect that Mr Todd’s predecessors in title did not own the blue land. That was not disputed by Mr Todd at the hearing before me. Mrs Paton appeared to suggest that if she could establish that Mr Todd’s predecessors in title did not own the blue land, then it must follow that Mr and Mrs Paton (and their predecessors in title) did own it. That conclusion does not follow at all. It is perfectly possible that the blue land was owned neither by Mr Todd’s predecessors in title nor by Mr and Mrs Paton’s predecessors in title.

Mrs Paton also relied heavily on the earlier conveyances of Clome Cottage, in particular those before the conveyances of 15^th September 1978 and 1^st May 1981. The earlier conveyances did not include a plan identifying the land intended to be conveyed, whereas the conveyances in 1978 and 1981 did contain such a plan. Mrs Paton submitted that the language used in the earlier conveyances showed that the blue land was conveyed by each of those earlier conveyances. However, I doubt if the earlier conveyances provide any real help when one construes the 1981 conveyance. If one assumes that the 1981 conveyance was intended to convey the same land as the earlier conveyances (and Mrs Paton does assume that) then the wording and the plans in the 1981 conveyance are much clearer than the wording in the earlier conveyances, with the result that the earlier conveyances do not throw any real light on the meaning of the 1981 conveyance. Further, if one does not assume that the 1981 conveyance was intended to convey the same land as the earlier conveyances (and such an assumption is not inevitable), then the description of the land in the earlier conveyances is of no help at all when construing the 1981 conveyance. In any event, for the reasons I will give later in this judgment, I do not consider that the earlier conveyances did convey the blue land.

Mr and Mrs Paton next submit that the court must apply a presumption when construing the 1981 conveyance. They contend that the blue land is a road and that the presumption should be that the 1981 conveyance conveyed, together with the land on each side of the road, the soil of the road up to the half way point. As the land expressly conveyed was on both sides of the road, then all of the soil of the road was conveyed by force of the presumption.

Mr and Mrs Paton’s invocation of the presumption is very odd in the light of the fact that Mrs Paton told me that her case was that there was no public right of way over the blue land, except for the mistaken entry of a footpath on the Definitive Map in around 1951. She submits that while the Definitive Map shows that mistaken position one might have to proceed on the basis that the Definitive Map is correct but as and when Mr and Mrs Paton establish, whether by way of a modification of the Definitive Map or by their proceedings under the Highways Act 1980 section 56, that the Definitive Map has been mistaken since 1951, then the blue land will not be subject to a public footpath and it will have been established that there was no public footpath across the blue land prior to the mistaken entry on the Definitive Map in 1951. Mrs Paton also told me that when it is established that Mr Todd does not have title to the blue land, she will further contend that he has no private right of way over the blue land.

I will consider the case which Mr and Mrs Paton wish to put forward as to the presumption about the soil of a road even though Mrs Paton’s submission was that there was no public or private right of way over the blue land (with the possible exception of the effect of a mistaken Definitive Map since around 1951). I will presume that Mr and Mrs Paton will wish to put forward their case as to the presumption in the alternative to the other cases they wish to run about the non-existence of a public or private right of way. However, whether the submission is an alternative submission or a primary submission, as I am sitting in an appellate capacity, I can only consider the submission on the basis of the material which was put before the Deputy Adjudicator.

Mr and Mrs Paton’s reliance on a presumption requires me to consider precisely what the relevant presumption is. It will be seen that there are two presumptions which are potentially relevant. I also have to consider the types of roads or other ways to which the presumptions potentially apply. I also wish to consider the purpose of the presumptions to help me determine whether either presumption applies in this case. Finally, I have to consider whether either of the presumptions applies to the facts of this case.

The presumptions are described in Halsbury’s Laws, 4^th ed., 2004 Reissue, Vol 21 (Highways, Streets and Bridges) at paras. 217 – 218. Para. 217 states that there is a presumption that the owner of land adjoining a highway is owner also of the soil of one half of the highway up to the middle line and that the presumption applies also in the case of a private or occupation road. Para. 218 describes the presumption which applies for the purpose of construing a conveyance (amongst other things). Where a conveyance of land adjoining a highway is made by a grantor owning land on one side of it only, then if he can be proved, or is presumed, to own also the soil of the highway up to the halfway line there is a presumption that the soil of one half of the highway is included in the grant. Both of these presumptions may be rebutted.

The two relevant presumptions are described again in Halsbury’s Laws, 5^th ed., Vol 4 (Boundaries) at para. 323. As regards the first of the two relevant presumptions, it is stated that the presumption applies to land adjoining a highway or a private right of way.

The two presumptions were helpfully described by Brightman J in Giles v County Building Constructors (Hertford) Ltd (1971) 22 P&CR 978 at 981 – 982 in these terms:

“As I understand the law, there are two presumptions relative to the ownership of the soil of a roadway. One presumption operates in certain circumstances when the conveyancing history of the land and the road is unknown. This presumption supplies a fact of which there is no direct evidence, namely, the ownership of the road. The presumption is that the owner of the land abutting on the road is also the owner of the adjoining section of road up to the middle line, There is no room for this presumption when the conveyancing history of the land and the road is known from the time when they were in common ownership as in the case before me. In such a case, there is, in certain circumstances, a totally different presumption which is more in the nature of a canon of construction that a conveyance of the land includes half the adjacent roadway. The distinction between the two presumptions, if the second one can properly be called a presumption, is clearly drawn by Joyce J. in Mappin Brothers v Liberty & Co Ltd[1903] 1 Ch 118. I need not refer to that case because Mr. Jopling, in his able argument, accepted the distinction and told me that he based his submission only on the second presumption, as indeed I am sure he must. Mr. Jopling relied on Norton on Deeds, 2nd ed. (1928), p. 252, for a correct statement of the nature of the second presumption.

A conveyance of land abutting on a highway, or a non-tidal river, passes the adjoining half of the highway, or of the river bed.

The presumption may be rebutted, but it is not rebutted (i) by the land being described as containing an area which can be satisfied without including half the road or river bed; (ii) by the land being described as bounded by the road or river bed; (iii) by the land being referred to as coloured on a plan, whereon the half of the road or river bed is not coloured; (iv) by the grantor being owner of the land on both sides of the road or river; or (v) because subsequent events not contemplated at the time of the grant show it to have been very disadvantageous to the grantor to have parted with the half of the road or river bed, but which if contemplated would probably have induced him to reserve it.

It is a well-settled rule of construction that, where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side by a public thoroughfare, then half of the road passes unless there is enough in the expressions of the instrument or in the surrounding circumstances to show that this is not the intention of the parties”: per Swinfen Eady J., Central London Railway v City of London Land Tax Commissioners [1911] 1 Ch 467, 474.”

The purpose of the presumption has been variously described. In St. Edmundsbury v Clark (No. 2) [1973] 1 WLR 1572 the second presumption was considered by Megarry J. At 1583H – 1584D, he said:

“Various reasons had been given for the presumption. It has been based on convenience and the prevention of disputes, and in the case of public highways on a supposition that the proprietors on each side of the road each contributed half of it. Theobald's Law of Land, 2nd ed. (1929), p. 235, states:

“It is unlikely that the grantor intended to reserve the narrow strip under the road or stream ad medium filum; there is therefore a presumption that such strip was intended to pass, but the presumption may be rebutted by the language of the conveyance, or the surrounding circumstances.”

This, perhaps, is an expansion of “convenience”: it also may be based on intention. It seems in some degree improbable that a grantor of land should intend to retain for himself an adjoining long thin strip of land over which there is a public highway or an easement of way. When from a practical point of view such a strip of land is unlikely ever to be capable of beneficial enjoyment by anyone save the grantee of the adjoining land and his successors in title, not only is it improbable that the grantor intended to retain the strip but also it would not be very long before serious difficulties in tracing the title to the strip might arise. As Lord Moulton said in City of London Land Tax Commissioners v Central Railway Co [1913] AC 364, 384, “The law cannot permit that the land under the highway should belong to nobody.” This consideration seems to me to apply with equal force whether the thin strip is subject to a highway or an easement of way over its whole width, or whether the way merely runs down the middle with thinner strips on each side of it. ”

Although that case went to the Court of Appeal, the presumption was not discussed on the appeal: see [1975] 1 WLR 468.

In Commission for the New Towns v J J Gallagher Ltd [2003] 2 P&CR 24 at [28], Neuberger J said in relation to the second presumption:

“So far as principle is concerned, the highway presumption is that, in the absence of a good reason to the contrary, where a vendor conveys land adjoining the highway and (as is usual) he therefore owns the land of the adjoining highway ad medium filum, he should be presumed to have conveyed away that land, which he owns under the highway, together with the land the subject of the express conveyance. The rule is essentially one of convenience, both in public terms and bearing in mind the interests of the parties. It is undesirable, in terms of public interest, to have odd pieces of land, whose ownership is largely academic in practice (unless, for instance, the highway is diverted), vested in persons who have no interest in any adjoining land, and who may well not even be aware that they own part of the highway. It is in the interest of the parties to a conveyance that the purchaser takes the adjoining highway land, essentially for the same reason. On that basis, if the adjoining owner happens to own more than half the width of the adjoining road, even all the adjoining road, it would seem logical that the presumption should lead to his being deemed to convey away the whole of his interest in the adjoining road. To put the point more simply, if the rule is that, in the absence of good reason, a person should not retain the half of a highway adjoining land which he sells, it seems almost a fortiori that he should not retain the other half of the adjoining highway, if he happens to own that half as well. Further, there is no inherent reason why the soil of the whole of the highway should not be deemed to be conveyed away: consider a case where the vendor owns, and is conveying land on each side of the highway.”

It is clear that both presumptions apply in the case of a public road. There is no distinction between a highway in the country and a street in a town: see In re White’s Charities [1898] 1 Ch 659. There is authority for the first presumption applying in the case of “a private or occupation road”: Holmes v Bellingham (1859) 7 CBNS 329. This case was applied in Smith v Howden (1863) 14 CBNS 398, where the land in question was a green lane leading to only one parcel of land, which had the benefit of a private right of way over the lane. In St. Edmundsbury v Clark (No. 2) [1973] 1 WLR 1572, it was considered that the second presumption applied to “an easement of way” as well as to a highway. In Pardoe v Pennington (1996) 75 P&CR 264, it was held that the second presumption applied to a bridleway. In that case, the strip of land was described as a bridleway but also as a road or a farm track. There were private rights of way over the track: see at page 266. It was common ground that the second “highway” presumption applied (see at page 269) but on the facts it was held that the presumption was rebutted. I was not referred to any case which discussed the possible application of either presumption to land which was subject to a right of way on foot only (whether a public or a private right of way).

Both presumptions may be rebutted. The first presumption may be rebutted by acts of ownership inconsistent with the result achieved by applying the presumption: Holmes v Bellingham (1859) 7 CBNS 329; Beckett v Leeds Corporation (1872) 7 Ch App 421.

Many of the cases which discuss the second presumption also discuss what suffices to rebut the presumption. Many of the relevant cases on that point were considered in The Commission for the New Towns v J J Gallagher Ltd [2003] 2 P&CR 24. The decisions in many of those cases turned on matters of detail and involved some fine distinctions. The presumption may be rebutted by internal evidence within the relevant conveyance itself or by reference to practical and common sense factors which would have been known to the parties at the time of the conveyance: see at [41].

Mrs Paton submitted that the second presumption applied to the conveyance of 1^st May 1981. That submission depends on it being shown, whether by direct evidence or by the operation of a presumption, that the blue land was owned by the person who was the vendor under that conveyance. If that vendor did not own the blue land at the date of the 1981 conveyance, then he could not have conveyed the blue land to Mr and Mrs Paton. If they established that the blue land was then owned by their vendor, then it would be necessary to consider whether the blue land was of a character, whether as a public or private road or a public of private “way” to attract the second presumption.

As is made clear in the authorities, the second presumption applies where one knows the conveyancing history from the time that the land expressly conveyed and the soil of the road or way were in common ownership. It is therefore necessary to examine the conveyancing history leading up to the conveyance of 1^st May 1981 to see if one can establish a time at which the relevant parcels of land were in common ownership.

I have already considered what is expressly conveyed by the conveyance of 1^st May 1981. The terms of that conveyance do not establish that the blue land was in the ownership of the vendor at that time. The same comment applies to the immediately preceding conveyance of Clome Cottage on 15^th September 1978. The earlier conveyances which go back to the indenture of 6^th October 1897, the subject of the 1904 abstract, describe the land conveyed in various ways. It is clear that the land conveyed by those conveyances included the land expressly conveyed to Mr and Mrs Paton in 1981. The question is whether the description of the land conveyed by those conveyances allows one to conclude that the blue land was in common ownership with the land expressly conveyed in 1981.

The conveyances from 1897 onwards and prior to 1978 describe the land being conveyed in slightly different terms. Mrs Paton relies heavily on the fact that in those conveyances, the phrase “all that close of land” appears and it is reasonably clear that the land described by that phrase includes the site of Clome Cottage itself (to the north of the blue land) and the further area of land (to the south of the blue land). Mrs Paton says that for both those areas of land to be within a single “close”, the close in question must include the blue land also. That argument is on the face of it a strong one. However, there is a considerable body of evidence which covers the period from 1897, and indeed before that date, which shows that the site of Clome Cottage to the north of the blue land and the area of land to the south of the blue land were not a single close, in that the area to the south was not enclosed with the site of Clome Cottage and neither the site of Clome Cottage nor the area to the south was enclosed with the blue land. The many plans which Mrs Paton put before the court, dating from before as well as after 1897, together with the photographic evidence from 1930, shows that there was throughout an open area between the two areas of land expressly conveyed to Mr and Mrs Paton in 1981. In my judgment, it is not possible to hold on the basis of the conveyances which are in evidence that the blue land was in common ownership with Clome Cottage and the land to the south of the blue land in the period from 1897 onwards. Mrs Paton submitted that the blue land was not in common ownership with Glebe Yard during that period. She appears to be right about that but it does not follow that the blue land had to be in common ownership with Clome Cottage.

Accordingly, before I would be able to apply the second presumption to the 1981 conveyance or any earlier conveyance, I have to consider whether the first presumption applied at any relevant time. For this purpose, it is convenient to start at the earliest point for which there is any potentially relevant evidence. Mrs Paton showed me what she said was the Tithe Map of the area prepared in 1843. This showed the site of Clome Cottage, the blue land and the land to the south of the blue land marked in three different colours, namely, light brown, mid-brown and darker brown. Clome Cottage itself was coloured darker brown and was given a separate number, 935. The blue land was coloured light brown. This colouring was also applied to what appear to be the streets in Northlew. The land to the south of the blue land was coloured mid-brown and was the site of a building; it was not separately numbered. The mid-brown colour was also applied to a very large area of land in and surrounding Northlew, including what later became Glebe Yard. There was a line which might indicate a barrier between the blue land and the land now forming Glebe Yard. This 1843 plan is revealing for present purposes as it shows that the site of Clome Cottage and the land to the south of the blue land were not in common ownership in 1843 and were not enclosed together and neither was enclosed with the blue land. This lack of enclosure, as I have said, is shown on many later maps and in photographs.

The question which arises from the 1843 map is: what information is given about the status of the blue land? It might have been suggested that since the blue land was coloured in the same way as the areas which appear to be the streets in Northlew, then the blue land was also a street or road of some kind. The difficulty in that approach is that neither party before me has contended that the blue land was in 1843 or at any time thereafter a street or road. Mrs Paton’s case is that there was no public right of way of any kind over the blue land until, in 1951, the Definitive Map wrongly showed a footpath across the blue land and that error should now be corrected by removal of that footpath marking. Mr Todd does not contend that the blue land was ever a street or road although he does wish to contend (if the register is altered) that Glebe Yard has the benefit of a private vehicular right of way, acquired by prescription, over the blue land. In those circumstances, I do not think it would be right for me to speculate further as to the possibility that the 1843 map supports the suggestion that the blue land was a street or road in 1843. I also note that whenever the highway authority has been asked in the past to identify the roads which are maintainable at public expense, it has always excluded the blue land. If the blue land had been part of the highway before the coming into force of the Highways Act 1835, then it would have been a road maintainable at public expense (there being no need for adoption before 1835) but yet the records of the highway authority do not show that to be the case. Of course, the records may be wrong or something may have happened between 1835 and the Tithe Map in 1843 but, so far as it goes, the records are consistent with the position of the parties that the blue land has not been a public road.

In any case, I have also considered the possible application of the first highway presumption on the alternative bases, the first being that the blue land was not part of a public road and the second being that the blue land and the adjoining street in Northlew were a public road. What does seem clear is that Queen Street, which is the road which passes in front of Clome Cottage and in front of the blue land, has always been a public road. If one applied the first highway presumption to Queen Street, on the assumption that the blue land was not part of the highway, the result would probably be that one half of the width of Queen Street where it passes in front of Clome Cottage is owned with Clome Cottage and one half of the width of Queen Street as it passes the blue land is owned with the blue land. On the alternative basis that the blue land was itself part of a public road, then applying the presumption, the result would probably be that one half of the width of Queen Street (for this purpose, including the blue land), as it passes in front of Glebe Yard, is owned with Glebe Yard.

Before reaching my conclusion as to the first presumption, I should consider the possibility that there was at all times a public footpath across the blue land. Mr and Mrs Paton contend that there has only been a right of way on foot since 1951 and only because of the alleged error in the Definitive Map. However, so far that contention has not prevailed and so I ought to consider the position, contrary to their case, which would apply if the blue land was subject to a public right of way on foot.

There is no evidence as to when the right of way on foot across the blue land was created. The evidence relied on for the Definitive Map suggests that the footpath came into existence as a result of long user i.e. presumed dedication at common law. It seems to me that it is difficult to apply either highway presumption to a public footpath, and certainly to the public footpath in this case. The Definitive Map shows the footpath running across other land where there is no suggestion that the path is along a boundary between land in different ownerships. Further, the way in which a public right of way on foot typically comes into existence is sufficiently different from the way that a public or even a private road comes into existence to produce the result that the purpose of the presumptions does not really apply to such a footpath. Further, typically and in this case, the width of the area of land subject to the right of way on foot is such that it would be surprising if landowners or conveying parties would intend to define a boundary by reference to the mid-point of such an area of land. In addition, so far as I can tell on the limited material before me, the footpath in this case runs along the wall of Clome Cottage so that it is much narrower than the blue land. Even if one tried to apply the presumptions to the footpath, they would at most give to Mr and Mrs Paton the soil of a fairly narrow strip (i.e one-half of the width of the footpath) along the wall of Clome Cottage, and not the full width of the blue land.

Taking all these points together, in my judgment, there is no basis here for applying the first presumption as to ownership of the soil of the blue land at any time in the history of this matter. Further, that being so, there is no evidence that any of the conveying parties to the various conveyancing documents had title to the blue land so as to be in a position to convey it. Accordingly, there is no room for the operation of the second presumption. Further, even if there was common ownership of the blue land and the land expressly conveyed, the nature of the blue land and the nature of the rights over it (being confined to a public right of way on foot) would not cause the second presumption to apply.

Mrs Paton also relied on section 62 of the Law of Property Act 1925. She submitted that the effect of section 62 was to read into the conveyance of 1^st May 1981 the general words in section 62(1) with the result that the blue land was conveyed to Mr and Mrs Paton because it was a “way” which was appertaining or reputed to appertain to Clome Cottage or it was occupied with or enjoyed with or reputed or known as part of Clome Cottage, which was otherwise expressly conveyed by that conveyance.

I do not accept that submission, for several reasons. First, the vendor in respect of the 1981 conveyance did not have title to the blue land and so could not have conveyed it by that conveyance. Secondly, on the evidence of the photographs relied upon by Mrs Paton, the blue land does not appear to be a way which was occupied with or enjoyed with Clome Cottage and I have no other evidence that it appertained to, or was reputed or known as part of, Clome Cottage. Thirdly, it is probably the law that sections 62(1) and (2) do not normally operate to convey corporeal as distinct from incorporeal hereditaments: see The Commission for the New Towns v J J Gallagher Ltd [2003] 2 P&CR 24 at [61] – [65], London Borough of TowerHamlets v Barrett [2006] 1 P&CR 132 at [117] and Site Developments (Ferndown) Ltd v Cuthbury Ltd [2011] Ch 226. As to the last point, if on the facts of this case, section 62 applied to a “way” in respect of the blue land, the most that would have passed under, or been created by, section 62 would have been an easement of way and not title to the blue land.

It follows from the above, that I hold, in agreement with the Deputy Adjudicator, that Mr and Mrs Paton do not have any title to the blue land. It is accepted by Mr Todd that until Mr Isaacs and Mr Browne were registered in relation to the blue land with effect from 2^nd December 2004, Mr Todd’s predecessors in title did not have any title to the blue land either.

Against that background I now turn to consider the application by Mr and Mrs Paton to alter Mr Todd’s registered title by removing the blue land from it. It might be suggested that it is a little odd that Mr and Mrs Paton should be entitled to apply to alter Mr Todd’s registered title when they have not established that they ever owned the blue land. I do not overlook the claim by Mr and Mrs Paton to have a right of way over the blue land but that right has not been established and, in any case, that right of way is not directly affected by whether the blue land is owned by Mr Todd or by a third party. In Wells v Pilling [2008] 2 EGLR 29, it was conceded that if a right to alter the register was a matter of private law (as was held to be the case) and not public law, then the applicant had to show an interest in the land in question. However, the correctness of that concession was considered in detail by the Adjudicator in Burton and others v Walker and others REF/2007/1124 and he held that there was no requirement that an applicant for alteration of the register had to show an interest in the registered land. That decision was followed by the Deputy Adjudicator in Mann v Dingley REF/2010/0582 and his decision was upheld on appeal to the High Court, by Judge Mc Cahill QC sitting as a High Court Judge, 21^st July 2011, unreported. That view of the law is also supported by Megarry & Wade, the Law of Real Property, 8^th ed., para. 7-139. In the present case, Mr Todd does not challenge this view of the law and, accordingly, I will proceed on the basis that Mr and Mr Paton can apply for alteration of Mr Todd’s registered title even though they cannot show that they ever owned the blue land.

Section 65 of the LRA 2002 gives effect to Schedule 4 to the LRA 2002 which contains the relevant provisions dealing with alteration of the register. Paragraphs 5, 6 and 7 deal with alteration of the register otherwise than pursuant to a court order. These paragraphs allow the registrar to alter the register in certain circumstances. Mr and Mrs Paton applied for an alteration to be made by the registrar. He referred the matter to the Deputy Adjudicator.

Pursuant to para. 5(a), the registrar is entitled to alter the register for the purpose of correcting a mistake. It was common ground before me that it was a “mistake” within the meaning of this paragraph to register Mr Isaacs and Mr Browne as registered proprietors in relation to land which included the blue land when they did not have title to the blue land. There was no submission made to me as to whether it could be said that the registration of Mr Todd involved a further mistake.

Although Mr and Mrs Paton argued that they remained the beneficial owners of the blue land, notwithstanding the registration in the name of Mr Isaacs and Mr Browne, and that their beneficial interest was an overriding interest under LRA 2002, schedule 3 para. 2 at the time of Mr Todd’s application to register the transfer to him, that argument falls away in view of the finding that Mr and Mrs Paton had never been the unregistered owners of the blue land. It is therefore not necessary to consider whether Mr and Mrs Paton were in actual occupation of the blue land at any relevant time, although the material before me suggests that they were not. Further, although some unknown third party had previously been the unregistered owner of the blue land, that third party was not in occupation of the blue land and did not have an overriding interest in it. Thus there was no scope for the application of LRA 2002, schedule 4 para. 5(c).

There might have been a question as to whether the making of a mistake in the registration of Mr Isaacs and Mr Browne in relation to the blue land would give the registrar jurisdiction to alter the register as against Mr Todd (a successor in title of Mr Isaacs and Mr Browne). No point of this kind was raised before the Deputy Adjudicator and he proceeded on the basis that he had such jurisdiction. No point of this kind was raised on behalf of Mr Todd at the hearing before me. Thus I did not hear any argument on the point which has caused considerable difficulty in other cases as to whether there can be rectification where the relevant mistake occurred on the registration of Mr Isaacs and Mr Browne and where it might be said that there was no separate mistake on the subsequent registration of Mr Todd. I have looked into earlier cases where a point of this kind has been considered. The point was addressed (without being decided) in Barclays Bank plc v Guy (No 2) [2011] 1 WLR 681. As Lord Neuberger of Abbottsbury pointed out in that case at [35], it can be argued that there is jurisdiction to rectify as against someone in the position of Mr Todd either on the ground that (a) in order to correct the original mistake it is necessary to remove the blue land from Mr Todd’s registered title, or (b) that the registration of Mr Todd flowed from the original mistake and should be treated as part and parcel of the original mistake. These arguments appear to have been accepted by a different Deputy Adjudicator in Knights Construction (March) Ltd v Roberto Mac Ltd, REF/2009/1459, 9^th February 2011: see at [132]. That Deputy Adjudicator also added the possibility that one might treat the transfer to Mr Todd as a separate mistake. This last suggestion seems to have the support of Megarry & Wade, The Law of Real Property, 8^th ed., at para. 7-133 footnote 894. It was, in effect, common ground before me that the registrar has jurisdiction to alter the register as against Mr Todd on account of the mistake in the original registration of Mr Isaacs and Mr Browne. In view of that fact and with the further assistance of the authorities to which I have referred, I am prepared to proceed on that basis.

Para. 1 of schedule 4 describes the kind of alteration which amounts to “rectification”. An alteration is a rectification if it involves the correction of a mistake which “prejudicially affects the title of a registered proprietor”. The decisions in Derbyshire CC v Fallon [2007] 3 EGLR 44, Strachey v Ramage [2008] 2 P&CR 154 and Drake v Fripp [2012] 1 P&CR 69 show that there can be an alteration of the register to change the general boundary on the filed plan of the registered title which does not prejudicially affect the title of the registered proprietor. This was because, in those cases, the boundary on the filed plan was a general boundary which did not define the exact extent of the land owned by the registered proprietor. In such a case, the alteration may only involve replacing the first general boundary with a more accurate general boundary. In the first of these cases, no alteration of the general boundary was ordered; in the other two, the general boundary was altered.

In the present case, in my judgment, a dispute as to whether Mr Todd’s registered title includes the blue land is more than a dispute about an accurate depiction of a general boundary. To use the distinction made in Lee v Barrey [1957] Ch 251 between a boundary dispute and a property dispute, this is a property dispute. The difference between the two types of dispute has been said to involve a question of fact and degree: Drake v Fripp at [21]. The ratio of the area of the land in dispute to the area of the other land in the registered title is a relevant consideration: see the same case at [20]. In the present case, although it has not been calculated, that ratio appears to be quite small. But the ratio is not the only relevant consideration. In this case, the fact that the blue land can provide an access to the land behind gives it an importance beyond that suggested by assessing its ratio to the remainder of the land. Accordingly, in my judgment, an alteration of Mr Todd’s registered title to remove the blue land involves rectification of that title.

The fact that the alteration which is sought amounts to rectification of a registered title means that this case is governed by schedule 4 para. 6 which is in these terms:

“6(1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.

(2)

No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless--

(a)

he has by fraud or lack of proper care caused or substantially contributed to the mistake, or

(b)

it would for any other reason be unjust for the alteration not to be made.

(3)

If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.

(4)

In sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land.”

Mr Todd submitted to me that he was a proprietor in possession and he had the benefit of para. 6(2). The Deputy Adjudicator held that Mr Todd was not a proprietor in possession within para. 6(2). Mr Todd has not served a Respondent’s Notice seeking to challenge the decision that he was not in possession for the purposes of para. 6(2). However, the application before the court is an application for permission to appeal. In my judgment, for the purpose of opposing the application for permission to appeal, Mr Todd was entitled to rely on matters which he could put forward by way of a Respondent’s Notice if permission were given and the appeal were to be heard. Although I have already decided to grant permission to appeal in this case, I am able to consider this point when I turn, as I have done, to deal with the substance of the appeal and I can dispense with the need for a Respondent’s Notice to be served raising this point.

The Deputy Adjudicator directed himself that the reference in para. 6(2) to the land being “in his possession” brought in the definition of “proprietor in possession” in LRA 2002 section 131 which refers to land being “physically in his possession”. Mr Todd did not challenge the application to para. 6(2) of the definition in section 131. I note that Henderson J applied the definition in section 131 in this context in Baxter v Mannion [2010] 1 WLR 1965 at [58]; not affected by anything said on appeal at [2011] 1 WLR 1594. In [33] of his decision, the Deputy Adjudicator made his finding that Mr Todd was not a proprietor in possession by referring to what he had seen on his inspection of the land. However, in [34] of his decision he referred to what he would have decided if Mr Todd had been in physical possession of the blue land at the time the application to rectify was made. Thus, the Deputy Adjudicator was effectively holding that Mr Todd was not in physical possession at the time of the application to rectify, although he based his decision on what he saw at the later date of his inspection. Mr Todd submits that the relevant time is the date of the application to rectify. That seems to me to be right and it is also what the Deputy Adjudicator appears to have thought. The date of the application to rectify was not completely clear from the material put before me but may have been 26^th June 2008. Mr Todd’s difficulty in challenging the Deputy Adjudicator’s finding is that Mr Todd did not put forward any evidence to the Deputy Adjudicator as to the physical possession of the blue land at any date. I was shown various photographs of the blue land at dates which fell before and after the relevant date. Based on the position as revealed in those photographs, I would not be able to hold that Mr Todd was in physical possession of the blue land at the relevant time. The requirement that there be physical possession of the land is to be interpreted in accordance with the general law as to the meaning of possession: see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and Ruoff & Roper on Registered Conveyancing at para. 46.013. Physical possession requires there to be a sufficient degree of exclusive physical custody and control: see Pye at page 435. At the relevant time, the blue land seemed to have been available for use, and/or used, as an unenclosed accessway to Glebe Yard behind. That did not amount to physical possession of the blue land by Mr Todd.

If Mr Todd is not within para. 6(2) of schedule 4, then strictly speaking it is not necessary to consider whether he caused or substantially contributed to the mistake by fraud or lack of proper care or whether it would be unjust not to rectify the register. The Deputy Adjudicator indicated that if the point had arisen he would have held that Mr Todd did not cause or substantially contribute to the mistake by fraud or lack of proper care. The Deputy Adjudicator did not see anything which would have made it unjust not to rectify the register and he stated that if Mr Todd had been able to rely on para. 6(2) as a proprietor in possession, then the Deputy Adjudicator would have directed the registrar to cancel the application to rectify the register.

In case it is material for matters which remain to be considered, I will comment briefly on these alternative findings made in relation to para. 6(2). Mrs Paton suggested that the case was one of lack of proper care by Mr Isaacs and Mr Browne and that Mr Todd should be held responsible for their lack of care. In my judgment, before there can be rectification as against Mr Todd it must be shown that there has been a lack of proper care on his part. It is not enough to show there was a lack of proper care on the part of his predecessor in title. If and in so far as Mr and Mrs Paton would wish to argue that there was a lack of proper care on the part of Mr Todd himself, they did not put any evidence before the Deputy Adjudicator which would have allowed him to make that finding. As to whether it would be unjust not to rectify the register, the Deputy Adjudicator seemed to think that if Mr Todd had been a proprietor in possession of the blue land, then in view of the fact that Mr and Mrs Paton did not own the blue land, and had not lost any interest in the blue land by reason of Mr Todd’s registration, then it would not be unjust to leave matters as they were, with Mr Todd remaining registered in relation to the blue land.

As Mr Todd cannot bring himself within para. 6(2) of schedule 4, the case falls to be dealt with under para. 6(3) of schedule 4. Under that sub-paragraph, the application for rectification of the register must be approved “unless there are exceptional circumstances which justify not making the alteration”. It was submitted to me that in effect the court has a discretion whether or not to rectify. That submission was based upon the terms of the earlier legislation and the Law Commission report which led to the LRA 2002.

Under section 82 of the Land Registration Act 1925, the court was given power to rectify the register in certain circumstances. Section 82(1) stated that “the register may be rectified” (my emphasis). This power was limited, by section 82(3), in the case of a registered proprietor in possession of the registered land. In Epps v Esso Petroleum [1973] 1 WLR 1071 at 1078H – 1079A, Templeman J said that even where the limitation in the case of a proprietor in possession did not apply:

“… the power of rectification given by section 82(1) never ceases to be discretionary, so that where section 82(3) does not apply there may still be circumstances which defeat the claim for rectification.”

The LRA 2002 gave effect to the recommendations of the Law Commission in its report: Land Registration for the Twenty-First Century, a Conveyancing Revolution: Law Com No 271. At paragraph 10.18 of that report, it was stated that the provision now contained in para. 6(3) of schedule 4 was to “codify” what had been said, as quoted above, in Epps v Esso Petroleum Ltd.

Whilst the statement in the Law Commission report can be taken as accurate for most purposes, it may in some cases be necessary to analyse the position a little more closely. There is no doubt that section 82(1) of the 1925 conferred on the court a residual discretion as to rectification. That position is indeed repeated in para. 5 of schedule 4 to the 2002 Act where, in a case of alteration which is not rectification, the registrar has a discretion to alter the register; the statutory wording is: “the registrar may alter the register” (my emphasis). However, in a case of rectification which falls within para. 6(3) of schedule 4 to the 2002 Act, the court must adopt a more structured approach. First of all, the paragraph imposes a duty to rectify the register. Secondly, that duty does not apply in a case where there are exceptional circumstances which justify not rectifying the register. Thus, in a case within para. 6(3), the court must ask itself two questions: (1) are there exceptional circumstances in this case? and (2) do those exceptional circumstances justify not making the alteration? The first of these questions requires one to know what is meant by “exceptional circumstances” and then to establish whether such circumstances exist as a matter of fact. Thus the process involved in the application of para. 6(3) of schedule 4 to the 2002 Act is not identical to the exercise of the discretion involved in section 82(1) of the 1925 Act.

“Exceptional” is an ordinary, familiar English adjective. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual or special, or uncommon; to be exceptional a circumstance need not be unique or unprecedented, or very rare but it cannot be one that is regularly, or routinely, or normally encountered: see R v Kelly [2000] 1 QB 198 at 208 C-D (a decision from a very different context but nonetheless helpful as to the ordinary meaning of “exceptional circumstances”). Further, the search is not for exceptional circumstances in the abstract but those which have a bearing on the ultimate question whether such circumstances justify not rectifying the register.

In Derbyshire CC v Fallon [2007] 3 EGLR 44, a Deputy Adjudicator had to consider whether the registrar should alter the register under para. 5 of schedule 4 to the 2002 Act. The case involved an alteration which did not amount to rectification (and so para. 6 of schedule 4 did not apply). The Deputy Adjudicator held that if it had been appropriate to ask whether there were exceptional circumstances which justified not altering the registered title he would hold that there were such exceptional circumstances. He considered that the suggested alteration would serve no practical purpose. The alteration which was sought in that case was to replace the general boundary on the filed plan with a more accurate general boundary. Although the registered proprietor had built on land owned by the county council (the applicant for alteration), there was a distinct possibility that the county council would not be able to obtain an injunction to remove the part of the building erected on its land so that the building would remain where it was. It was held in those circumstances that alteration of the registered title would serve no practical purpose and the Deputy Adjudicator exercised his discretion under para. 5 of schedule 4 to the 2002 Act to refuse to alter the register.

In Strachey v Ramage [2008] 2 P&CR 154, as I read the decision, the alteration which was sought was an alteration not amounting to rectification. However, because the alteration was sought from the court (rather than from the registrar), the matter was governed by para. 2, rather than para. 5, of schedule 4 to the 2002 Act. An application under para.2 is subject to rule 126 of the Land Registration Rules 2003 which states that an alteration to correct a mistake must be made unless there are exceptional circumstances which justify not making the alteration. The position was therefore the same as under para. 6(3) of schedule 4 to the 2002 Act. The Court of Appeal held that there were no exceptional circumstances which justified not making the alteration. (The Court of Appeal referred to para. 3(3) of schedule 4, which did not apply, rather than to rule 126, which did apply, but nothing turns on that.)

In Drake v Fripp [2012] 1 P&CR 69, which concerned an alteration within para. 5 of schedule 4 to the 2002, which did not involve rectification within para. 6 of schedule 4, it was held that the adjudicator was right to direct the registrar to alter the register to show a more accurate general boundary.

In both Strachey v Ramage and Drake v Fripp, the alteration of the register was ordered in relation to a boundary between the land of the applicant seeking the alteration and the land of the registered proprietor.

It is relevant at this point to discuss the nature of an appeal from an adjudicator who has considered an application for alteration under para. 5 of schedule 4 or an application for rectification under para. 6 of schedule 4 to the 2002 Act. In Derbyshire CC v Fallon [2007] 3 EGLR 44, the Deputy Adjudicator was exercising a discretion under para. 5 of schedule 4. The Deputy High Court Judge hearing an appeal in that case held that he should not interfere with the decision not to alter the register, unless the case was one of those cases where an appellate court is entitled to interfere with a discretionary decision by the lower tribunal or court. The appeal before me does not involve an appeal against the exercise of a discretion under para. 5 of schedule 4. Instead, I have to consider whether the Deputy Adjudicator was right to hold that there were “exceptional circumstances” within para. 6(3) and, if so, whether those circumstances “justified” a refusal to alter the register. However, in relation to the second of those questions, in particular, such a decision is likely to involve a multi-factorial evaluation, with which an appellate court should be slow to interfere. Further, in Drake v Fripp [2012] 1 P&CR 69, Lewison LJ at [3] and [21], citing Mummery LJ in Wilkinson v Farmer [2010] EWCA Civ 1148 at [25], referred to an appellate court attaching a measure of deference to the reasoned decision of the Adjudicator which is under appeal.

The Deputy Adjudicator dealt with the questions arising under para. 6(3) of schedule in paragraph 35 of his decision where he said:

“Paragraph 6(3) of Schedule 4 provides that if on an application for alteration of the register, the registrar has power to make the alteration then "the application must be approved, unless there are exceptional circumstances". The question then is whether in this case there are exceptional circumstances justifying the registrar refusing the application to alter the register. I consider that there are in this case exceptional circumstances justifying the registrar refusing to alter the register. If the register is altered, the land will be left with no known owner. The task of tracking down the true owner is likely to be difficult. The rectification would be contrary to a general policy of the Land Registration Act 2002 which is to provide a register open to public inspection from which the proprietor of any particular piece of land can be identified. Rectification would serve no practical purpose. It would not give Mr and Mrs Paton the right to stop Mr Todd or his successors driving over the strip. It is unlikely to prevent Mr Todd from developing Glebe Yard. It is likely to serve only to benefit an insurance company from which Mr Todd would seek to purchase insurance against the true owner appearing and preventing him or his successors in title from crossing the strip. If the register is not altered and the person who would have title but for the registration appears, that person would be entitled to apply for rectification and if rectification is refused, then for an indemnity under Schedule 8 to the Land Registration Act 2002.”

On the question as to whether there were exceptional circumstances with justified a refusal to alter Mr Todd’s registered title, Mrs Paton made submissions to me on the basis that she and Mr Paton were indeed the true owners of the blue land. In so far as she addressed the question on the same basis as the Deputy Adjudicator, she submitted that there were no exceptional circumstances and that a refusal to alter the registered title was not justified.

Counsel for Mr Todd submitted to me that the reasons relied on by the Deputy Adjudicator were compelling and should be upheld. It was further submitted that it was in all parties’ interests that there should be certainty as to the title and that there should not be a free for all with the interested parties competing with each other to assert possession over the blue land.

The Deputy Adjudicator’s reasoning in paragraph 35 of his decision considered together the questions whether there were exceptional circumstances in this case and whether those circumstances justified a refusal to alter Mr Todd’s registered title. His reasoning appeared to be that leaving the blue land without a registered proprietor and the fact (as he saw it) that alteration of the register would serve no practical purpose were exceptional circumstances. Counsel for Mr Todd submitted to me that the real exceptional circumstance in this case was that the persons applying for alteration of the register did not own the blue land but yet were seeking to divest Mr Todd of his registered title to it. The more usual case, which would not be exceptional, would be where the applicant for alteration of the register was seeking to divest the registered proprietor so that the applicant could then be registered as the owner of the disputed land. I agree that this fact can qualify as an exceptional circumstances and the real question is whether that circumstance, taken together with all relevant circumstances, does or does not justify a refusal to alter Mr Todd’s registered title.

The Deputy Adjudicator did not get much help from the parties as to the decision he had to make under schedule 4 para. 6(3). Mr and Mrs Paton presented their case to him on the basis that this was not an exceptional case because they were the true owners of the blue land. They do not appear to have made any worthwhile case as to what the Deputy Adjudicator should do if he reached the conclusion, as he correctly did, that they did not own the blue land. Further, Mr Todd focussed on the dispute as to whether Mr and Mrs Paton could establish that they had been the owners of the blue land prior to Mr Isaacs and Mr Browne becoming the registered proprietor of it. Mr Todd appears to have played a fairly limited role in relation to the proceedings before the Deputy Adjudicator. He was content for the decision to be made without a hearing. He did not put in witness statements explaining a number of matters which he might have been able to deal with and which could conceivably have presented his case in a persuasive way. I will later refer to some matters where there was simply no evidence as to Mr Todd’s position and I will later explain the effect of this on my decision at this stage.

Returning to the reasoning of the Deputy Adjudicator, he began by referring to general matters such as the policy, as he saw it, of the LRA 2002. He then considered whether rectification would serve any practical purpose and he considered the positions of the parties. In the absence of any evidence from the parties on that question, this part of his reasoning was speculation by him as to the possible effect of altering the registered title.

In my judgment, the first thing which ought to have been considered in this case, as to whether the exceptional circumstances justified a refusal to alter Mr Todd’s registered title, was the effect on both parties of (1) an alteration of that title and (2) a refusal to alter that title. That was the choice which the Deputy Adjudicator had to make and, accordingly, the starting point should have been to consider the consequences of altering or not altering the title before considering whether a refusal to alter the title was justified.

As to the effect on Mr Todd of an alteration of his registered title, it would have been of great assistance to the Deputy Adjudicator to have been told: (1) what precisely Mr Todd wished to do with Glebe Yard; (2) how important the registered title to the blue land was for that purpose; (3) what Mr Todd would be able to do without a registered title to the blue land; (4) what would Mr Todd be able to do if he established that he had acquired a right of way by prescription over the blue land; (5) whether Mr Todd would have been able to develop Glebe Yard using the blue land for access and obtaining title insurance in relation to ownership of the blue land or a right of access over the blue land; (6) the likely cost of such insurance; and (7) whether Mr Todd would have been able to develop Glebe Yard using an access somewhere else and not using the blue land. Some of those matters might have involved some degree of speculation as to future events, but many of those matters could have been the subject of evidence. Further, in my judgment, it would have been highly relevant to have had evidence as to whether Mr Todd bought Glebe Yard in the belief that he was acquiring an indefeasible title to the blue land or whether he was conscious that there was likely to be a dispute about title to the blue land. In their submissions, Mr and Mrs Paton had made allegations about Mr Todd’s awareness of a difficulty when he bought the land but the Deputy Adjudicator did not have evidence on which he could any finding, one way or the other, on that subject.

Mr Todd did not put forward the evidence that he might have been able to put forward to help his case in relation to some or all of the above matters. In the event, the Deputy Adjudicator seemed to think that an alteration of the registered title would not cause all that much of a problem for Mr Todd. Paragraph 35 of the decision seems to me to be a finding that Mr Todd could still gain access to Glebe Yard without owning the blue land, that he would be able to develop Glebe Yard using the blue land for access and that the only disadvantage for him would have been that he would have to buy title indemnity insurance. Further, the Deputy Adjudicator made no finding as to whether Mr Todd did or did not believe he was buying an indefeasible title nor as to whether it would be unfair to Mr Todd to alter his registered title. As regards Mr and Mrs Paton, the Deputy Adjudicator seemed to think that the effect on Mr and Mrs Paton of an alteration of Mr Todd’s registered title would not be significant as Mr Todd would still be able to develop Glebe Yard.

Because of the way in which the case was presented by the parties to the Deputy Adjudicator and because I am hearing an appeal where I have not been asked to admit further evidence on what I regard as important matters, I also have a very incomplete picture of the effect on the parties of an alteration or of a refusal to alter the registered title.

I am not persuaded that the Deputy Adjudicator had evidence which entitled him to make his assessment of the effect on the parties of an alteration of the registered title. The Deputy Adjudicator thought that Mr Todd could develop Glebe Yard using the blue land as an access, even if he did not own the blue land. If the blue land is removed from Mr Todd’s registered title, he has an apparently arguable case that he has a vehicular right of way acquired by prescription. However, that right of way may or may not suffice as a means of access to Glebe Yard when it is developed for housing. That point may arise in the County Court proceedings if Mr Todd’s registered title were altered and if he then amended his Counterclaim to assert a right of way by prescription. Accordingly, if it were to emerge that Mr Todd had a right of way restricted by reference to the former use of Glebe Yard, that might confer on Mr and Mrs Paton the considerable benefit, as they might see it, of preventing a development of Glebe Yard. If Mr Todd did not have a vehicular right of way over the blue land, which could be used to access the intended development, I simply cannot judge whether he would be able to obtain title indemnity insurance and whether purchasers of the residences in the intended development would buy on that basis. Further, it is not clear whether Mr Todd could and/or would simply take possession of the blue land and then rely on that possession to keep Mr and Mrs Paton off the blue land. On the question of taking possession, there is a point of detail as to whether Mr and Mrs Paton have already gone into possession of a part of the blue land in relation to the area between their garden wall and the fence which they have erected near to but not exactly on the same line as the wall.

As to the effect of a decision to alter or not to alter the register, the following matters were not raised before the Deputy Adjudicator, nor before me: (1) whether Mr Todd would be able to obtain an indemnity from the Land Registry under schedule 8 to the LRA 2002; (2) whether he or the Land Registry would have a claim against Mr Todd’s vendors or any professionals who might have been involved; and (3) whether those matters could affect the decision to be made under para. 6(3) of schedule 4 to the 2002 Act.

The Deputy Adjudicator also thought that it was the policy of the LRA 2002 to provide a register from which one could identify the owner of any parcel of land. In a general sense, that is true but it does not seem to me to justify registering as the proprietor someone who was not the unregistered owner of the land and who is not otherwise entitled to the land, just to produce the result that there is an identified registered proprietor. Further, I do not see that the fact the owner of the blue land is and is likely to remain unknown is a justification for registering as the owner someone who has not been the owner of the land.

If I were to uphold the decision of the Deputy Adjudicator to refuse to alter Mr Todd’s registered title, then there would be certainty as to the question of ownership of the blue land although there would still remain a dispute as to the exact boundaries between the blue land and Mr and Mrs Paton’s land. If I were to allow the appeal against the refusal to alter Mr Todd’s registered title, then there would be certainty as to the ownership of the blue land in the sense that it would have been determined that neither Mr Todd nor Mr and Mrs Paton own the blue land but that some unidentified third party does own it. There may or may not be a dispute as to the exact boundary of Mr and Mrs Paton’s land. That would only arise if Mr Todd were to go into possession of the blue land the boundary between his possessory title and Mr and Mrs Paton’s paper title needed to be resolved.

Having considered the reasoning of the Deputy Adjudicator and the various points which seem to me to arise, I do not agree with his reasoning. In particular, I am unable to accept that rectification of the register is contrary to the policy of the 2002 Act, in the way that he suggested. Further, I do not think that the Deputy Adjudicator had any evidence on which he could form a reliable assessment of the consequences for the parties of an alteration of the register. He was not given any real assistance by the parties on that point and he felt that he ought to do the best that he could. If I thought that the matters he pointed to were matters which could be the subject of judicial notice, then I would be reluctant to interfere with the decision of an experienced Deputy Adjudicator. However, in my judgment, his conclusions go well beyond anything that was permissible by way of judicial notice. If I had to speculate on the same topics, without the assistance of evidence from the parties, I would probably consider that there is a real prospect that the removal of the blue land from the registered title would be significantly harmful to Mr Todd’s interests and significantly beneficial to Mr and Mrs Paton. In other words, the removal of the blue land could significantly change the balance of advantage and disadvantage between the parties.

If matters stopped there, then I would consider that the result produced by para. 6(3) of schedule 4 to the 2002 Act would be as follows. Para. 6(3) imposes a duty on the registrar to rectify the register. That duty is displaced if there are exceptional circumstances which justify not rectifying the register. In the present case, the fact that Mr and Mrs Paton do not own the blue land is an exceptional circumstance. However, there was no material on which one could make a finding as to the effect of rectification of the register and therefore one could not conclude in Mr Todd’s favour that the exceptional circumstance, together any other relevant circumstance, justified a decision not to rectify the register. Further, the Deputy Adjudicator did not make any finding as to Mr Todd’s belief when he acquired the registered title which could be relied upon in Mr Todd’s favour.

However, when preparing a draft of this judgment, I was not satisfied that matters should stop there. I considered that if Mr Todd had bought his registered title in good faith, believing that he would thereby acquire good title to the blue land, which he wished to own in order to use it as the access to his proposed development, and if rectification of his title to remove the blue land would be adverse to his interests, then it might well be right to conclude that those circumstances, taken together with the fact that Mr and Mrs Paton do not own the blue land, would justify the decision not to rectify the register.

On the basis identified in the last paragraph, it would be a critical matter to assess, in particular, whether Mr Todd did or did not have the relevant belief when he bought his registered title. The Deputy Adjudicator made no finding on that critical point. It was not submitted to me that there is any rule of law, whether by applying the burden of proof or otherwise, which would allow me to assume in Mr Todd’s favour that he did have the relevant belief. The question as to Mr Todd’s state of mind was referred to in the various submissions which were made to the Deputy Adjudicator but he made no finding on that point, probably because he did not have any evidence, as distinct from submissions, on that matter.

I have looked at the way in which the matter developed before the Deputy Adjudicator in this respect. In their written submissions to the Deputy Adjudicator, Mr and Mrs Paton submitted that Mr Todd knew when he bought his registered title that he was buying a defective title. Mr Todd stated in his written submissions that he could give evidence “if required” to the contrary. He stated that if the matter proceeded to a hearing, he and his wife would give evidence to that effect. Mr Todd then stated that because Mr and Mrs Paton wished to dispense with a hearing in order to save costs, he would not object to the matter proceeding without a hearing.

The Deputy Adjudicator dealt with the matter without a hearing. He prepared a draft of his decision and invited submissions from the parties. The draft decision was in essentially the same terms as his final decision. It was therefore favourable to Mr Todd because it determined that the register should not be rectified. Mr and Mrs Paton made lengthy submissions in opposition to the findings in the draft decision. I have not been shown any comment made by Mr Todd on the draft decision but, of course, the draft decision was favourable to him.

If the Deputy Adjudicator had taken the approach which I have taken in this judgment, he would have indicated in his draft decision that the issue as to whether Mr Todd believed he was buying a registered title free from defects had become a critical point. If the draft decision had so indicated, then I would have expected Mr Todd to have reminded the Deputy Adjudicator of what he had said in his submissions to the effect that he could give evidence of his belief “if required” and that such evidence was plainly now required. In such a case, unless Mr and Mrs Paton would have accepted that Mr Todd had such belief, common fairness would require that the Deputy Adjudicator should give Mr Todd an opportunity to give the appropriate evidence and for Mr and Mrs Paton to be able to test that evidence if they wished.

In those circumstances, when preparing a draft of this judgment, my provisional view was that it would be procedurally unfair, and therefore wrong, for me to allow the appeal on the basis that there was no evidence before the Deputy Adjudicator as to Mr Todd’s belief when he bought the registered title with the result that his registered title would then be rectified. Instead, the appropriate course would be for the matter to be remitted to the Deputy Adjudicator for him to determine the position in relation to Mr Todd’s belief and in the light of that determination, and in the light of this present judgment, for him to decide how to apply para. 6(3) of schedule 4 to the 2002 Act in this case.

The possibility of a remission to the Deputy Adjudicator was not raised at the hearing before me. I considered that fairness to the parties required me to give them the opportunity to made submissions to me as to whether or not I should give effect to the provisional view in the immediately preceding paragraph. Accordingly, I released to the parties a draft of my judgment and invited them to make submissions on the question of possible remission. To help the parties, I indicated that the submissions might usefully address: (1) do I have power to remit to the Deputy Adjudicator? (2) should I exercise that power? (3) on what matters should the case be remitted – should it be confined to the question of Mr Todd’s belief or should it include the question of the effect on the parties of a decision to alter or not to alter the register? (4) do I have power to receive further evidence myself and make my own decision without remission to the Deputy Adjudicator? (5) should I exercise any such power?

I duly received written submissions from both parties. As a result of those submissions, I conclude that I do have power to allow the appeal against the Deputy Adjudicator’s decision as to whether the circumstances of this case justify a refusal to rectify Mr Todd’s title and to remit that question to the Deputy Adjudicator for him to decide afresh, in the light of this judgment and any further material which is placed before him by the parties (which I will consider in more detail below). That power is conferred by CPR 52.10 (2)(a), (b) and (c).

Mr and Mrs Paton submitted that I should not remit the matter but that I should allow their appeal and order rectification of Mr Todd’s registered title. I am not persuaded to do that. I consider that it would be procedurally unfair to decide the matter against Mr Todd without giving him the opportunity to establish the points to which I have referred to above.

Although it is open to me simply to remit the question of Mr Todd’s belief when he acquired Glebe Yard, I consider it would be fairer to both parties if I also remitted the question as to the effect on the parties of a decision to alter or not to alter the register. Both parties would then have the ability to put before the Deputy Adjudicator what they say would be the effect on them of the decision whether or not to rectify Mr Todd’s registered title. As I have explained, the evidence (or rather the complete lack of evidence) which was previously before the Deputy Adjudicator is of no real help in deciding that matter.

Mr Todd invited me not to remit the matter to the Deputy Adjudicator but to reserve the matter to myself, to give directions as to the procedural steps to be taken and then conduct a hearing, following which I should decide the question of whether the circumstances of this case justify not rectifying Mr Todd’s title. I have, nonetheless, concluded that it would be more appropriate for the outstanding matter to be dealt with by the Deputy Adjudicator rather than by me. Further, the directions which are appropriate should be considered by the Deputy Adjudicator rather than by me. It seems likely that one or other party will apply for disclosure of documents. Both parties are likely to submit witness statements. There will then be a hearing involving oral evidence. I am sitting as an appeal court. It seems to me that giving directions for disclosure and witness statements, followed by a trial of the outstanding issue, is more appropriate for the first instance decision maker rather than for an appeal court.

The matter should be remitted to the same Deputy Adjudicator who made the original decision. No one has suggested otherwise. He is familiar with the issues and he has inspected the relevant land. Although I am allowing an appeal from him, this does not cause me to remit the matter to another adjudicator. The Deputy Adjudicator was placed in a difficult position when he was asked to deal with the matter without a hearing and he did his best to decide an issue where neither party had offered him any real assistance on the critical matters.

I will allow the appeal and remit the matter to the Deputy Adjudicator in the way described above. As it is not yet known what his ultimate decision will be, I will also allow the appeal against his earlier order for costs and remit that matter also to him. He can reconsider the question of the costs before him when he makes his final decision in relation to this dispute.

As to the costs of the appeal, the parties are to make written submissions to me on that matter. Those submissions are to be made within 14 days from the handing down of this judgment. I will then proceed to determine any issue which there may be as to the costs of the appeal.