Andrew Haden Parrott & Anor v John Stephen Battye & Anor

To say that there was no love lost between these two sets of neighbours would be a great understatement. The Applicants are the registered proprietors of a property known as Mill Farm, having purchased it in 1998. The Respondents are the registered proprietors of a neighbouring property known as Old Mill Cottage, which they purchased in 1989. It appears that arguments about the location of a boundary between the properties began soon after that and, so far as I can tell, the parties have spent the last 35 years engaged in various property-related arguments, dragging in all and sundry, leading to multiple reports to the police and even letters to the Prime Minister. Fortunately for this Tribunal, the referred matter turns on a point of law and so it was not necessary to delve into the contentious background in any great detail. (Footnote: ¹)

The present dispute concerns a hedge planted by the Applicants along a boundary between the two properties in 2000. The Respondents complained about the height of this hedge to South Oxfordshire DC in 2016, and the authority issued a remedial notice requiring the hedge to be maintained at a height not exceeding 2.5m, which was subsequently varied on appeal to be a 2.8m. The remedial notice has been registered as a local land charge by the authority, in accordance with the legislation dealing with high hedges and remedial notices.

In 2022, the Respondents applied to HM Land Registry to have the remedial notice registered as a unilateral notice against the Applicants’ title. The Applicants then applied to cancel that unilateral notice. The dispute between the parties over that application has been referred to this Tribunal. Despite the decades’ long feud between the parties, the issue between the parties can be stated relatively shortly: is the remedial notice issued by the local authority an interest affecting the Applicants’ registered estate that the Respondents have the benefit of, such that the Respondents are entitled to have a unilateral notice recorded against the Applicants’ title?

Understood as such, the issue is a purely legal one and so while the Tribunal did briefly hear evidence at the final hearing, the focus was on the legal arguments deployed by Mr Dubin, for the Applicants, and Mr Brilliant, for the Respondents.

I apologise to the parties for not having been able to provide them with a decision sooner than this. In part this is because of pressures of other work. In part it is because, despite the relatively short nature of the issue, as identified above, this case raises some very interesting matters that have required careful consideration. I can assure the parties that I have had all of the points raised well in mind when considering my decision, but will only seek here to deal with what I consider to be the key points. (Footnote: ²)

As the issue before the Tribunal turns on a point of law, very little is needed by way of factual background.

The issue really ought to have been capable of being resolved against the backdrop of some agreed facts. The Tribunal was presented with six witness statements on behalf of the Applicants. At a fairly late stage, the Respondents sought an order debarring the Applicants from adducing the six statements into evidence or from calling oral evidence from the witnesses. The Respondents confirmed at the pre-trial review hearing that they would not be relying on some aspects of their Statement of Case. This meant that some disputed facts were no longer issues before the Tribunal. Other matters in some of the Applicants’ statements were simply irrelevant and the Applicants did not seek to rely on them. At that pre-trial review hearing I accordingly made an order striking out two witness statements in their entirety, and substantial parts of three statements.

The Tribunal heard oral evidence at the final hearing from Andrew Parrott, Emily van Evera, Sarah Massey, and Jonathan Harris. Mr Brilliant’s cross-examination was commendably economical and very little of their remaining evidence was challenged. Although the Respondents had not submitted any witness statements, their Statement of Case was endorsed with a signed statement of truth and so in accordance with the Tribunal’s earlier directions they could have given oral evidence. They elected however not to give any evidence.

It was not suggested that any of the witness evidence that the Tribunal heard from the four witnesses who did give evidence was anything other than honest and so I shall proceed on the basis that all four were truthful. While I am grateful to the witnesses, particularly Miss Massey and Mr Harris, for giving up their time to provide their evidence, I was left with the impression that there was nothing in the written or oral evidence that was particularly relevant. The factual background that I shall now set out is largely agreed or uncontroversial based on the documents. Any findings based on the evidence are made to the conventional civil standard of the balance of probabilities.

As already explained, the Applicants and the Respondents are the registered proprietors of Mill Farm and Old Mill Cottage respectively. The latter property has seemingly previously been referred to as 31 New College and Mill House). Mill Farm lies to the south of Old Mill Cottage and also includes land to the east of that property. The properties share two boundaries. The relevant boundary so far as this case is concerned is one to the north of Mill Farm, running in a roughly east to west line.

The Applicants planted Thuja plicata in line with that boundary in 2000. Those plants grew to form a hedge.

In October 2016, the Respondents made a complaint to South Oxfordshire DC. That complaint raised a number of issues, but the material part was a complaint about the height of this particular hedge. The Respondents put their address on the complaint form as “Mill House”.

A delegated report was prepared which noted that various aspects of the complaint did not relate to the hedge, but that the complaint about the hedge was one that the authority should accept and not regard as vexatious. The delegated report noted that “it appears that the neighbourly relationship has totally broken down and no further discussions between parties are likely to give rise to an agreement about a suitable hedge height”. The report author recommended that a remedial notice should be issued requiring action comprising an initial reduction in the hedge height to a height not exceeding 2m (work to be undertaken outside of the bird nesting season of February to August), and ongoing maintenance to ensure that the hedge does not exceed 2.5m in height. It was recommended that this requirement should last until the hedge was removed or died.

A remedial notice was then issued by the local authority. The remedial notice is dated 14^th February 2017 and signed by the Head of Planning and Building Control. The remedial notice was not in quite the same terms as the recommendation. Remedial action was specified at para.3, as follows.

“Following the end of the period specified in paragraph 4 below, the Council requires the following steps to be taken in relation to the hedge:

(i)

reduce the hedge to a height not exceeding 2 metres above ground level, when measured from the land on which the hedge is growing; …”

The time for compliance identified in para.4 was explained this way:

“The action specified in paragraph 3 above must be complied with in full within six (6) months of the date specified in paragraph 5 of this Notice.”

The date specified in para.5 was 31^st March 2017. The remedial action was therefore different to the action recommended by the report because there was no specific exclusion for the bird nesting season, although the notice did include a section headed “Informative”, setting out that special care should be taken not to disturb protected wild animals, including birds, and the compliance period of six months from 31^st March 2017 would allow for the work to be carried out in September. (Footnote: ³)

The notice also identified preventative action at para.3, as follows.

“Following the end of the period specified in paragraph 4 below, the Council requires the following steps to be taken in relation to the hedge:

(i)

maintain the hedge at a height not exceeding 2.5 metres above ground level, when measured from the land on which the hedge is growing. The requirement to maintain the hedge at, or below, this height shall last until the hedge is removed or dies; …”

That remedial notice was registered as a local land charge on 16^th February 2017.

Both the Applicants and the Respondents appealed against that remedial notice. The appeal decision was made by an Inspector appointed by the Secretary of State for Communities and Local Government. The Inspector dismissed the Respondents’ appeal but allowed the Applicants’ appeal and varied the remedial notice. That varied notice was dated 27^th July 2017. At para.3.1, the initial action was specified as follows.

“I require the following steps to be taken in relation to the hedge before the end of the period specified in paragraph 4 below:

Reduce the hedge to a height not exceeding 2.3m above ground level, when measured from the land on which the hedge is growing …” (Footnote: ⁴)

By a combination of para.4 and para.5 of the varied notice, this work was to be completed within six months of 27^th July 2017.

The varied preventative action was specified in para.3.2, as follows.

“Following the end of the period specified in paragraph 4 below, I require the following steps to be taken in relation to the hedge:

Maintain the hedge at a height not exceeding 2.8m above ground level, when measured from the land on which the hedge is growing. The requirement to maintain the hedge at or below this height shall last until the hedge is removed or dies; …”

Both the original remedial notice and the varied remedial notice record that the hedge is “adversely affecting the reasonable enjoyment of the property at Mill House”, presumably because that was how the Respondents described the property when they made their complaint.

In January 2022, the Respondents applied to HM Land Registry to enter a unilateral notice against the title of Mill Farm. That notice was entered on the register in June 2022. The Applicants applied for the cancellation of the notice in March 2023. The Respondents objected and so the matter was referred to this Tribunal.

To the extent that it is relevant, I accept Mr Harris’s evidence that in the spring of 2022, he was approached by the Second Respondent who asked him if he did everything that the Applicants told him to do (or words to that effect). Although he was challenged on this in cross-examination, there was no evidence to the contrary and I am satisfied that Mr Harris was telling the truth.

I also accept Mr Harris’s evidence that his practice of cutting the hedge back once a year, to around 2.5m high, was the practice of the previous gardener, because Mr Harris explained to the Tribunal that he could see the previous cut lines.

I turn now to consider the relevant law. There are two different pieces of primary legislation that are relevant. I will look first at the legislation dealing with unilateral notices, and then at the legislation covering high hedges and remedial notices.

There are two types of notice under Land Registration Act 2002: agreed and unilateral. This case is about the second type, but it is necessary to say a little about notices in general before turning to unilateral notices specifically.

The nature and effect of notices is set out in s.32.

“(1)

A notice is an entry in the register in respect of the burden of an interest affecting a registered estate or charge.

“(2)

The entry of a notice is to be made in relation to the registered estate or charge affected by the interest concerned.

“(3)

The fact that an interest is the subject of a notice does not necessarily mean that the interest is valid, but does mean that the priority of the interest, if valid, is protected for the purposes of sections 29 and 30.”

Section 33 identifies some interests which cannot be the subject of a notice. These are an interest under a trust of land or a settlement under Settled Land Act 1925, a leasehold estate which is granted for a term of less than three years and which is not required to be registered, an interest under a relevant social housing tenancy, a restrictive covenant made between a lessor and lessee so far as it relates to the demised premises, an interest which is capable of being registered under Part 1 of Commons Act 2006, and various interests and rights relating to coal or coal mines under Coal Industry Act 1994. The Applicants have not suggested that a remedial notice is caught by s.33.

Section 34 deals with applying for a notice. The key part for present purposes is sub.(1).

“A person who claims to be entitled to the benefit of an interest affecting a registered estate or charge may, if the interest is not excluded by section 33, apply to the registrar for the entry in the register of a notice in respect of the interest.”

Section 34(2)(b) then sets out that an application can be made for a unilateral notice (applications for agreed notices are made under s.34(2)(a)). Section 35 deals only with unilateral notices, as follows.

“(1)

If the registrar enters a notice in the register in pursuance of an application under section 34(2)(b) (‘a unilateral notice’), he must give notice of the entry to—

(a)

the proprietor of the registered estate or charge to which it relates, and

(b)

such other persons as rules may provide.

“(2)

A unilateral notice must—

(a)

indicate that it is such a notice, and

(b)

identify who is the beneficiary of the notice.

“(3)

The person shown in the register as the beneficiary of a unilateral notice, or such other person as rules may provide, may apply to the registrar for the removal of the notice from the register.”

Section 36 is headed “Cancellation of unilateral notices”.

“(1)

A person may apply to the registrar for the cancellation of a unilateral notice if he is—

(a)

the registered proprietor of the estate or charge to which the notice relates, or

(b)

a person entitled to be registered as the proprietor of that estate or charge.

“(2)

Where an application is made under subsection (1), the registrar must give the beneficiary of the notice notice of the application and of the effect of subsection (3).

“(3)

If the beneficiary of the notice does not exercise his right to object to the application before the end of such period as rules may provide, the registrar must cancel the notice.

“(4)

In this section—

‘beneficiary’, in relation to a unilateral notice, means the person shown in the register as the beneficiary of the notice, or such other person as rules may provide;

‘unilateral notice’ means a notice entered in the register in pursuance of an application under section 34(2)(b).”

The parties were broadly agreed that the question for the Tribunal was whether or not the Applicants, as beneficiaries of the unilateral notice, were entitled to a valid registrable notice. If they were then the application to cancel would have to fail. If not, the application would have to succeed. (Footnote: ⁵)

The relevant legislation concerning high hedges was introduced as Part 8 of the Anti-social Behaviour Act 2003.

Part 8 applies where a complaint is made by an owner or occupier of domestic property alleging that their reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person: see s.65(1). Complaints can be made to the relevant authority, being the local authority in whose area the land is situated: s.65(5) and s.68(1)(a). The land on which the high hedge is situated is referred to in Pt 8 as the “neighbouring land”.

Section 66 defines “high hedge”, as follows. (Footnote: ⁶)

“(1)

In this Part ‘high hedge’ means so much of a barrier to light or access as–

(a)

is formed wholly or predominantly by a line of two or more evergreens; and

(b)

rises to a height of more than two metres above ground level.

“(2)

For the purposes of subsection (1) a line of evergreens is not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.

“(3)

In this section ‘evergreen’ means an evergreen tree or shrub or a semi-evergreen tree or shrub.”

Section 68 sets out how the relevant authority should deal with any complaint. By s.68(2), the authority may decide not to proceed with the complaint, but otherwise the authority is required by s.68(3) to decide, in effect, whether the complaint has been made out, and if so, what action (if any) should be taken in relation to the hedge in pursuance of a remedial notice.

Remedial notices are addressed by s.69. As the remedial notice issued by the local authority lies at the heart of this case, I shall set out s.69 in full.

“(1)

For the purposes of this Part a remedial notice is a notice–

(a)

issued by the relevant authority in respect of a complaint to which this Part applies; and

(b)

stating the matters mentioned in subsection (2).

“(2)

Those matters are–

(a)

that a complaint has been made to the authority under this Part about a high hedge specified in the notice which is situated on land so specified;

(b)

that the authority have decided that the height of that hedge is adversely affecting the complainant's reasonable enjoyment of the domestic property specified in the notice;

(c)

the initial action that must be taken in relation to that hedge before the end of the compliance period;

(d)

any preventative action that they consider must be taken in relation to that hedge at times following the end of that period while the hedge remains on the land; and

(e)

the consequences under sections 75 and 77 of a failure to comply with the notice.

“(3)

The action specified in a remedial notice is not to require or involve–

(a)

a reduction in the height of the hedge to less than two metres above ground level; or

(b)

the removal of the hedge.

“(4)

A remedial notice shall take effect on its operative date.

“(5)

‘The operative date’ of a remedial notice is such date (falling at least 28 days after that on which the notice is issued) as is specified in the notice as the date on which it is to take effect.

“(6)

‘The compliance period’ in the case of a remedial notice is such reasonable period as is specified in the notice for the purposes of subsection (2)(c) as the period within which the action so specified is to be taken; and that period shall begin with the operative date of the notice.

“(7)

Subsections (4) to (6) have effect in relation to a remedial notice subject to–

(a)

the exercise of any power of the relevant authority under section 70; and

(b)

the operation of sections 71 to 73 in relation to the notice.

“(8)

While a remedial notice has effect, the notice–

(a)

shall be a local land charge; and

(b)

shall be binding on every person who is for the time being an owner or occupier of the land specified in the notice as the land where the hedge in question is situated.

“(9)

In this Part–

‘initial action’ means remedial action or preventative action, or both;

‘remedial action’ means action to remedy the adverse effect of the height of the hedge on the complainant's reasonable enjoyment of the domestic property in respect of which the complaint was made; and

‘preventative action’ means action to prevent the recurrence of the adverse effect.”

Section 70 provides that the authority may withdraw a remedial notice or waive or relax any of the requirements in a remedial notice.

Section 71 provides for rights of appeal against decisions to issue a remedial notice, to withdraw a remedial notice, or to waive or relax the requirements in a remedial notice. An appeal can be made by either any complainant or any owner of occupier of the neighbouring land. (Footnote: ⁷) Appeals are dealt with by ss.72 and 73, High Hedges (Appeals) (Wales) Regulations 2004 (SI 2004/3240), and High Hedges (Appeals) (England) Regulations 2005 (SI 2005/711).

Section 74 provides for a right of entry onto the neighbour land to be exercised by the relevant authority (or the authority dealing with any appeal).

Section 75 creates an offence of failing to comply with a requirement imposed by a remedial notice to take action. This section sets out some statutory defences, including a defence of not being aware of the existence of the remedial notice, but only where the alleged offender can show that they were not sent a copy of the remedial notice and also are not assumed to have had knowledge of the remedial notice. Section 75(5) provides for assumed knowledge, as follows.

“(5)

A person shall be assumed to have had knowledge of a remedial notice at any time if at that time–

(a)

he was an owner of the neighbouring land; and

(b)

the notice was at that time registered as a local land charge.”

Section 77 confers power on the relevant authority to enter the neighbouring land and take action set out in the remedial notice where the owner or occupier has not complied with the remedial notice. Provision is made for the authority to recover the costs of doing that work.

I think that is all I need to take from the 2003 Act.

The arguments for both sides were set out on written and oral submissions of very high quality. The Tribunal was greatly assisted by Mr Dubin and Mr Brilliant in their clear and focused skeleton arguments and oral arguments during the hearing. I shall attempt to summarise what I saw as their main arguments, but regret that I will probably not manage to do justice to the skill and clarity of their advocacy.

The Applicants advanced two grounds in support of their application for the cancellation of the unilateral notice. (Footnote: ⁸)

Ground 1 was that the remedial notice does not amount to an interest belonging to the Respondents that is capable of registration.

The Applicants had two different arguments in support of Ground 1.

First, that s.34, 2002 Act, allows a person claimed to be entitled to the benefit of an “interest” affecting a registered estate or charge. An “interest” could only affect a registered estate if it was a registrable one or an overriding one, i.e. a legal or equitable interest. The relevant interests were defined by Law of Property Act 1925, s.1, and Sch.1 of the 2002 Act.

A remedial notice under the 2003 Act did not fall within either set of definitions and so was not an “interest” capable of protection by a unilateral notice. The Applicants submitted that an interest had to be something that could be disposed of or transmitted and that the key point was that an interest was a direct proprietary right in someone else’s property and a direct product of a bi-partite relationship.

Secondly, and returning to s.34, the applicant for a unilateral notice needs to be claiming to entitled to the “benefit” of the interest. The local authority had issued the remedial notice and had enforcement powers in relation to it. If there were to be a breach by the Applicants of the remedial notice, the Respondents themselves would have no powers to do anything directly against the Applicants or their property. All that they could do would be to complain to the local authority about the alleged breach and see what, if any, action the authority decided to take. Subject to some minor exceptions, all powers under Pt 8 of the 2003 Act were reserved to the relevant local authority.

The Applicants acknowledged for the purposes of this argument that the Respondents’ reasonable enjoyment of their property was protected by the remedial notice, but said that the “benefit” of the remedial notice belonged to the local authority because “benefit” in this context meant the power to enforce or otherwise to take action in respect of the remedial notice. As it was put in oral submissions, the Applicants may receive a benefit of the unilateral notice, but they do not get the benefit.

The Respondents point to s.132(3)(b), 2002 Act, which provides references in that Act to an interest affecting an estate or charge are to “an adverse right affecting the title to the estate or charge”. They submit that the remedial notice is a form of statutory restrictive covenant, because it restricts the way in which the Applicants can deal with part of their land and it runs with the land. As such, the Respondents contend it should be treated for the purposes of the s.132(3)(b) definition no differently than a contractual restrictive covenant, and therefore falls within the scope of s.34.

The Respondents contend that it does not matter that the remedial notice is issued by the local authority. They say that the notice benefits their property and they are therefore entitled to the benefit of the remedial notice. It is the reasonable enjoyment of Old Mill Cottage which is adversely affected by the height of the hedge, rather than the local authority’s headquarters in Abingdon, around twelve miles from the properties.

The Respondents also submit that the 2002 Act is generally very liberal regarding locus or standing.

Ground 2 was that, as a matter of law, the remedial notice ought not to be registered as a unilateral notice but only as a local land charge.

The Applicants submitted that the 2003 Act already directs how a remedial notice should be registered, and that is as a local land charge. It was not necessary to register the remedial notice under the 2002 Act as well.

The Applicants also relied on Law of Property Act 1925, s.198(1).

“(1)

The registration of any instrument or matter in any register kept under the Land Charges Act 1972 or the local land charges register, shall be deemed to constitute actual notice of such instrument or matter, and of the fact of such registration, to all persons and for all purposes connected with the land affected, as from the date of registration or other prescribed date and so long as the registration continues in force.”

They say that the effect of this provision is that further registration by way of unilateral notice is not required or necessary because registration as a local land charge is deemed to constitute actual notice so far as relevant.

The Respondents submit on this point that there is no reason in principle why a remedial notice cannot be the subject of a unilateral notice. There is nothing in the 2002 Act that expressly excludes a remedial notice. This can be contrasted with an interest which is capable of being registered under Commons Act 2006, Pt 1, as Parliament has specifically excluded such an interest from protection by way of unilateral notice (and, for that matter, under Commons Registration Act 1965: see both versions of s.33(d), 2002 Act, which appear to be in force for different purposes). There was also commentary suggesting that a local land charge could not be the subject of a notice prior to the 2002 Act, but that the current legislative scheme did not carry this exclusion over.

In addition, the Respondents seek to draw an analogy with a planning obligation under Town and County Planning Act 1990, s.106. Section 106(11) provides for such an obligation to be a local land charge. The Respondents say that, despite this, there is evidence that HM Land Registry will enter the burden of a s.106 planning obligation agreement as a unilateral notice.

The Respondents seek support by way of further analogy with an access order under Access to Neighbouring Land Act 1992, s.4. Section 5 of that Act provides that an access order can be registered as a land charge, but rule 80 of Land Registration Rules 2003 (SI 2003/1417) specifies that any application for a notice in respect of an access order can only be for an agreed notice.

I will deal with each ground in turn, but in my judgment, the Applicants are correct about part of Ground 1, and that is sufficient to lead to the unilateral notice being cancelled.

The first aspect of Ground 1 is whether a remedial notice issued under the 2003 Act can be an interest for the purposes of a notice under the 2002 Act. This is a novel and difficult point. As will be seen, I agree with the Applicants on the second aspect of Ground 1, which is determinative of this case, and so it is not necessary for me to reach a conclusive view on this first issue, beyond saying that on the arguments and the material presented to me, I do not presently agree with the Applicants that the remedial notice cannot be an “interest” as referred to in s.34, 2002 Act. As Mr Brilliant submitted for the Respondents, the 2002 Act includes a definition of “interest” that is rather more expansive than that contended for by the Applicants.

That definition in s.132 means that “interest” for the purposes of s.32, 2002 Act, is not necessarily limited to or the same as an interest under the 1925 Act. In the absence of any authority that either party was able to produce, I think it is reasonably arguable that the effect of the remedial notice in this case can be understood as an adverse right affecting the title to the Applicants’ registered estate.

I agree with the Respondents that the effect of the remedial notice issued by the local authority is to restrict the Applicants’ use of their land, because the hedge (which they accept is part of the land within the registered title) cannot be allowed to grow to more than 2.8m in height. In my view, the Respondents’ analogy with a restrictive covenant is an apposite one.

The Respondents pointed to the commentary in Ruoff & Roper: Registered Conveyancing. Paragraph 42.004 is headed “The type of interest that may be protected by the entry of a Notice: definition by exclusion”, reflecting the lack of any comprehensive, all-inclusive definition in the Act. The Respondents relied on the following part of the text within that paragraph.

“Certain third party rights or interests can only be protected by a notice if the application is made for an agreed notice. This group is a mixed bag of rights and interests, not truly proprietary in character — at least in a classical sense — but clearly requiring protection for the right holder.”

While that is commenting on situations where a unilateral notice cannot be obtained, the point here is that this “mixed bag of rights and interests”, which are “not truly proprietary in character”, are all capable of protection by way of notice (albeit only an agreed notice). To the extent that the Applicants’ argument is that the remedial notice in the instant case does not create an interest of a proprietary nature, this “mixed bag” category demonstrates that this does not present an insuperable obstacle to recognition as an interest sufficient to be the subject of a notice (and thus a unilateral notice). I am therefore inclined to agree with the Applicants on this part of Ground 1, for essentially the reasons put forward by Mr Brilliant.

Where I agree with the Applicants though is that I do not think that it can be said that the Respondents have the “benefit” of that interest. In respect of this part of Ground 1, I accept Mr Dubin’s submissions for the following reasons.

I accept that there is a sense in which the Respondents derive a benefit, because the purpose of the remedial notice is to reduce or remove the adverse effect on their reasonable enjoyment of their property. For present purposes, I am prepared to proceed on the basis that it does not matter that both the original and varied remedial notice referred to “Mill House” rather than “Old Mill Cottage”, because the Applicants accept that Mill House was a previous name for the Respondents’ property and it is tolerably clear from the complaint, the delegated report, and the Inspector’s appeal decision, that all involved knew which two properties were being discussed.

In that sense, the remedial notice does have a benefit for the Respondents. But, in my judgment, the “benefit” referred to in the 2002 Act must mean some kind of benefit in a property law sense. As Mr Dubin suggests, this means the power to take enforcement action in relation to any breach of the remedial notice. Importantly, it is the local authority that has the power to compel compliance, not the Respondents. All that they can do is petition the authority to take action.

Here, the Respondents’ reliance on the similarity with a contractual restrictive covenant demonstrates the flaw in this part of the argument. A restrictive covenant may have the effect of conferring a benefit of sorts on all kinds of neighbouring landowners or other people in the surrounding area who gain collateral protection based on the covenantee’s position. But it is only the covenantee, or person with the legal benefit of the covenant, who can enforce. (Footnote: ⁹) A neighbour who derives some incidental or collateral value from the existence and enforcement of the restrictive covenant can do no more than ask that covenantee to take any enforcement action. (Footnote: ¹⁰) It was not suggested by the Respondents that someone other than the covenantee (or their successor-in-title etc) could apply for the entry of a notice in respect of a restrictive covenant where they did not have the legal benefit of that covenant, even if they had some practical benefit from it.

I do not consider that the otherwise “liberal” approach of the 2002 Act to locus or standing assists the Respondents here. To my mind, the more important issue is what is meant by “benefit” in s.34 and it is my view that this requires some power of enforcement or compulsion because otherwise the apparent benefit is almost illusory because of its precariousness and cannot be insisted on by the person claiming to have that benefit.

While therefore accepting that a remedial notice can, in principle, be an “interest” under s.34, the Respondents do not have the “benefit” of the varied remedial notice in this case and are not entitled to have a unilateral notice entered.

That is enough to determine this application in the Applicants’ favour, but as I heard full argument on Ground 2, I shall also address that below.

I agree with the Applicants that registration of a remedial notice as a unilateral notice under the 2002 Act is not necessary. The key enforcement provision in the 2003 Act is s.75, which creates the criminal offence of failing to comply with a remedial notice. Section 75 expressly provides that an owner of the neighbouring land is assumed to have knowledge of a remedial notice if it has been registered as a local land charge, and so cannot avail themselves of the statutory defence of not being aware of the remedial notice.

Furthermore, s.198, 1925 Act provides for registration as a local land charge to be deemed to constitute actual notice of the remedial notice to all persons and for all purposes connected with the land affected.

There is therefore really very little to be gained from entering a unilateral notice as well. Mr Brilliant submitted that a unilateral notice would put on notice a purchaser who fails to undertake a search of the Land Charges Register, but I cannot see how this can conceivably be any concern of the Respondents. It would, I tentatively suggest, be most unusual for a purchaser to go ahead without conducting such a search, but even if they did the answer is already found in the legislation, because they would be deemed to have notice of the remedial notice under s.198, 1925 Act, and assumed to have knowledge of it under s.75, 2003 Act. It is not at all clear why the Respondents should be entitled to enter a unilateral notice simply to draw the remedial notice to the attention of a hypothetical careless purchaser.

Where I part company with the Applicants though is I am not persuaded that this precludes the possibility of the remedial notice also being the subject of a unilateral notice. This would not be necessary, but that does not seem to me to mean that no notice could be entered. (Footnote: ¹¹) There may even be little utility in having a unilateral notice entered, but it was not suggested that this is the applicable test.

The question raised by Ground 2 is whether there is something as a matter of law that prevents or precludes the entry of a unilateral notice. There is no express prohibition in the 2003 Act of alternative or additional registration. The 2002 Act itself does not mention remedial notices. (Footnote: ¹²) They do not fall within the list of prohibited interests in s.33, although that list is not exhaustive.

In oral submissions, Mr Dubin suggested that there did not need to be anything that positively excluded remedial notices from protection, contending that if the Tribunal was satisfied that the entry of the unilateral notice serves no purpose then this would be enough for s.36, 2002 Act. I do not accept that submission, which was not supported by any authority shown to me and conflicts with the broad agreement between the parties that what is necessary is for the beneficiary of the unilateral notice to “prove it or lose it”. (Footnote: ¹³)

The parties referred to an intriguing passage in Rouff & Roper. As part of ch.42 (Notices), there is a section beginning at para.42.013, under the heading “Particular interests that may be the subject of a notice”. Paragraph 42.019 has the subheading “Restrictive covenant”, which includes the following text.

“Where a restrictive covenants affects a registered estate, it must be protected by the entry of an agreed or a unilateral notice in the register of the burdened title. There is an important exception, however, in that a notice may not entered in the case of a restrictive covenant made between a lessor and a lessee so far as it relates to the demised premises. Prior to October 13, 2003 this exception had extended quite unnecessarily also to other land belonging to the lessor and the lessee apart from the demised premises. There was an exception as well in respect of local land charges but this was not carried forward by the Land Registration Act 2002.” (emphasis added)

This suggests that prior to implementation of the 2002 Act, there was specific provision preventing a notice from being interest in respect of a local land charge, but that this was no longer the case. The parties had not been able to find any legislative material that set this out as clearly as it was suggested in this passage, nor had their researches yielded anything in the pre-legislative materials for the 2002 Act that shed any light on this. (Footnote: ¹⁴) I have removed the footnotes for ease of reading, but there was a footnote (n.101), at the end of this passage. That reference read “See Land Charges Act 1972, s.2(5) (amended by the Local Land Charges Act 1975, s.17(1)(b)).” Section 2(5) of the 1972 Act provides that a “Class D land charge is any of the following (not being a local land charge), namely … a restrictive covenant …”. It is not entirely clear to me how this explains the particular point.

It may have been that the answer was actually to be found in a different footnote (n.100), which referred to s.49 of Land Registration Act 1925, where provision was made for the registration of a notice in relation to a land charge until the land charge itself was registered. The parties did not refer to this, now repealed, section and I have not had any detailed submissions on how it is that the specific exception for land charges was contained in the previous legislative scheme.

Without further research or argument, I do not think that this passage necessarily assists the Respondents. The 2002 Act is very different to Land Registration Act 1925 in many respects and it may have been that Parliament considered that an express exclusion was no longer needed because of other changes that had been made, or may even have concluded that any earlier express exclusion was superfluous. It is not really possible for this Tribunal to reach a view in this case as the parties were not in a position to demonstrate the accuracy of the statement in Ruoff & Roper by reference to the previous legislation.

I did not consider that the Respondents’ argument by analogy with planning obligations under s.106, 1990 Act, was of any assistance on this point. First, the evidence in support of the argument was extremely weak, consisting only of screenshots of some Practical Law questions and answers in which an answer is given by someone who was apparently an Assistant Land Registrar. This answer was from 2013 and does nothing to show that there is any such practice currently in operation. Nor is there anything to verify the source of this information. Notably, there was no evidence of any titles demonstrating that this practice existed and showing planning obligations being the subject of a unilateral notice. Nor was I shown any Practice Guide issued by HM Land Registry to support this supposed practice. Secondly, even if HM Land Registry did have such a practice, the real question would be whether that was correct (something that I did not hear any real argument on and so cannot express a view). Thirdly, although more a point for Ground 1, there was no suggestion in this material that a unilateral notice would be entered in respect of a planning obligation on an application made by anyone other than the local planning authority.

To my mind, there is nothing in the reference to access orders under the 1992 Act. Although the 1992 Act does refer to the possibility of protection as a land charge, it also expressly contemplates an access order being the subject of a notice: see s.5(4)(b). The requirement in rule 80 of the 2003 Rules for any application for a notice to be for an agreed notice must be seen in that context. It does not shed any light on how a remedial notice under the 2003 Act should be dealt with.

While I was not persuaded by the Respondents’ various efforts to demonstrate some analogous interests that were capable of dual registration, I think that this is to look at the issue from the wrong perspective. Returning to the issue as I have identified it, the question I need to consider is whether there is anything preventing the entry of a unilateral notice in respect of a remedial notice by the appropriate person. Framed in that way, it is my view that the Applicants have not shown that there is any bar as a matter of principle to a notice being entered. That does not actually assist the Respondents in this case, because of my conclusion under Ground 1 that they do not have the benefit of any adverse right affecting the Applicants’ registered estate arising out of the remedial notice.

For the reasons given above, the Chief Land Registrar will be directed to give effect to the Applicants’ application.

The Applicants have been successful in these proceedings. My preliminary view is that they should be entitled to their costs. The order that accompanies this decision will allow both parties to make written submissions on costs in light of that provisional view accordingly.