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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bennett & Anor v Lewis & Anor [2001] EWCA Civ 1983 (6 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1983.html Cite as: [2001] EWCA Civ 1983

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Thursday, 6th December 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application for permission to appeal made by Mr and Mrs John Lewis, the defendants in the action, for whom Mr David Hodge QC appears. They seek permission to appeal against an order dated 30 July 2001 made by His Honour Judge Boggis QC, sitting in the Chancery Division (Birmingham District Registry). By his order His Honour Judge Boggis QC ordered, among other things, that the registered title of Mr and Mrs Douglas Bennett, the claimants in the action, to an area of land at Gorse Farm, Clent, Worcestershire, be rectified by including within it a strip of land approximately 7 feet wide adjacent to the southern boundary of the land as shown on the file plan and that the registered title of the applicants to the land adjoining that boundary be rectified by excluding that strip.
2. The factual background to the application may be summarised as follows. In 1983 Gorse Farm was owned by Mr R G Horton. In October 1983 Mr Horton sold the greater part of the farm and the buildings comprised within it to a company called Yorkville Investments Ltd. Excepted from that contract however was a building known as Unit 3. Since Unit 3 was situated more or less in the middle of the farm buildings a right of access to it was reserved to the vendor, Mr Horton, on the sale to Yorkville. In July 1985 Yorkville transferred part of the land it purchased in 1983, such part being known as Unit 4, to Mr and Mrs Bennett. Unit 4 is adjacent to Unit 3. There was, as the judge found, some confusion surrounding the plan to be annexed to this transfer. The plan originally annexed to it showed, as the judge found, the southern boundary of Unit 4 lying some 7 feet to the south of a low brick wall, the line of which lay east to west. This finding of the judge is sought to be challenged on appeal, and I will return to it later in this judgment.
3. The judge found that the respective solicitors, Mr Butler for Mr and Mrs Bennett and Mr Greet for Yorkville, had agreed that the southern boundary of Unit 4 should lie 7 feet to the south of the low brick wall.
4. In the event the Land Registry rejected the first plan, referred to in the course of the trial as the first transfer plan. The respective solicitors duly procured a second plan to be annexed to the transfer and submitted it to the Land Registry. This second plan showed the southern boundary of Unit 4 as lying along the line of the low brick wall. The judge found that in putting forward this second plan as correctly representing the extent of the land agreed to be transferred to Mr and Mrs Bennett, both solicitors were careless. As the judge put it, "they both made mistakes".
5. The Land Registry accepted the second plan, and the title to Unit 4 was duly registered accompanied by a plan showing the southern boundary of the land comprised in the title as lying along the line of the low brick wall.
6. In 1989 or 1990, following their acquisition of Unit 4, Mr and Mrs Bennett laid an edging of bricks around the three sides of the 7-foot wide strip immediately to the south of the low brick wall and they turfed it, cultivated part of it and built a mock well upon it to cover an existing drain.
7. In October 1987 or thereabouts Unit 3 was sold by Mr Horton's estate to the applicants.
8. In 1994 the applicants acquired the land lying immediately to the south of Unit 4, according to the boundaries of Unit 4 as shown on the registered titles. Thus, the applicants were duly registered as proprietors of land which included the 7-foot disputed strip.
9. In 1995 the applicants entered on the strip, tore up some of the plants which had been planted by Mr and Mrs Bennett and demolished the mock well. It appears that they also placed a car on the strip and left it there for some considerable time. They did this on the footing that the strip was their property, being included in their registered title.
10. In 1996 Mr and Mrs Bennett started the present action claiming rectification of their title to include the 7-foot strip, on the footing that at all material times they were in actual occupation of that strip with the consequence that they had an overriding interest within the meaning of Section 70 (1) (g) of the Land Registration Act 1925. They claimed rectification of their title so as to accord with the agreement the judge found to have been made between the respective solicitors on the occasion of the 1985 transfer from Yorkville.
11. In the action issue was also raised as to the existence and extent of the right of way to Unit 3, to which I referred earlier. The judge resolved that issue in favour of Mr and Mrs Bennett, but the applicants do not seek permission to appeal on that issue.
12. Mr Hodge (for the applicants) does not challenge the judge's finding that on the occasion of the 1985 transfer the respective solicitors agreed that the southern boundary of Unit 4 should be extended by some 7 feet. Nor does he challenge the judge's conclusion that the plan originally attached to the transfer was in the form of the plan described in the course of the trial as the first transfer plan. However Mr Hodge does seek to challenge the judge's interpretation of the first transfer plan as showing the southern boundary of Unit 4 as lying some 7 feet to the south of the low brick wall. He submits that there was no sufficient evidence to support the conclusion that that was the true interpretation of the first transfer plan. He points out that - as indeed the judge recognised in judgment - the first transfer plan was not a scaled plan and if one takes the true position of the buildings and, as he has invited me to do in the course of this application, overlays a scaled plan over the first transfer plan one finds that if the building comprising Units 2 and 3 is placed in its true position then the boundary is indeed shown in a different place and not as including the 7-foot strip. That is Mr Hodge's first point in relation to the location of the boundary. He submits that the judge misinterpreted the first transfer plan and that that misinterpretation effectively undermined the entirety of his conclusions on the boundary issue.
13. Further or alternatively, Mr Hodge submits that the judge was wrong to order a rectification of the respective titles. He points out that it was common ground at the trial that the disputed strip of land was within the applicant's registered title. Accordingly, the judge was right to approach the issue on the basis that if Mr and Mrs Bennett were to succeed in establishing title to the disputed strip, it was for them to establish a case for rectification as against the applicants. Mr Hodge submits that the judge's reasoning on this issue is flawed. In particular, he challenges the judge's conclusion that at the material time in 1994, on the occasion of the transfer of the land to the south of Unit 4 to the applicants, Mr and Mrs Bennett were in actual occupation of the strip so as to give rise to an overriding interest. On the basis that no such overriding interest can be established, Mr Hodge submits that the judge ought to have had regard in exercising his discretion under Section 82 of the Land Registration Act 1925 to order rectification of the register to the considerations and principles explained by the Court of Appeal in Kingsalton Ltd and Another v Thames Water Development Ltd and Others [2001] EWCA Civ 20. He submits that had the judge applied those principles and taken into account the relevant considerations, then he must have come to the conclusion that Mr and Mrs Bennett had not made out a good case for rectification of their titles.
14. As to the first point taken by Mr Hodge in relation to the location of the boundary, I can see no basis on which the judge's interpretation of the first transfer plan can be successfully challenged on appeal. The judge appreciated that the plan was not a scaled plan. On page 11 of the transcript of his judgment, in the middle of the page, the judge said:

"The first transfer plan is not accurately to scale, but in my judgment it is clear in showing that Unit 4 does not stop at the low brick wall, but extends into the amenity land."

15. On the face of the first transfer plan that is an entirely legitimate conclusion to which to come. In particular, it seems to me that that conclusion is not in any way affected by the lack of accuracy in the plotting of the neighbouring buildings. The plan clearly shows the boundary as cutting through the black line representing the low brick wall on the plan. Accordingly, I can see no real prospect of an appeal on that point succeeding.
16. I take the same view in relation to the points which Mr Hodge has made on rectification. The judge concluded that the activities of Mr and Mrs Bennett on the disputed strip amounted to actual occupation. He said at the top of page 12 of his judgment:

"Actual occupation is to be given its ordinary meaning. In the present case, the Bennetts edged the land, turfed it, cultivated it and built the mock well on it. In my judgment they were in actual occupation of it."

17. I can see no basis on which that conclusion could be successfully challenged in the Court of Appeal.
18. Mr Hodge suggested that the fact the applicants had seen fit to leave an unroadworthy vehicle on this strip for a considerable period, coupled with the fact that Mr and Mrs Bennett had not sought to remove it, as somehow depriving Mr and Mrs Bennett of what might otherwise have been actual occupation of the land. In my judgment, there is no substance in that submission.
19. Accordingly, I take the view that the judge was plainly right to conclude on the facts as he found them that there was here an overriding interest; and it seems to follow, more or less as night follows day, that given that fact the registers required to be rectified. It is also material in my judgment to bear in mind the judge's finding that, as he put it at the top of page 12 of the judgment:

"they [that is Mr and Mrs Lewis] knew full well that the Bennetts claimed the strip as their own."

20. Accordingly, despite Mr Hodge's helpful submissions, I can see no real prospect of the proposed appeal succeeding, and I refuse permission.
21. MR HODGE: Could I correct one matter. Your Lordship indicated I had not sought to challenge the findings that the solicitors had agreed the southern boundary extended 7 feet to the south of the wall. My submission on that is that we fully accept paragraph nine of the skeleton argument but the solicitors agreed the southern boundary should take .....
22. LORD JUSTICE JONATHAN PARKER: Just a minute.
23. MR HODGE: It is paragraph 9a. The judge found that the two solicitors agreed the southern boundary should take seven feet from the intended amenity land which was to be foreshortened. We do not seek to challenge that.
24. LORD JUSTICE JONATHAN PARKER: I was not intending to refer to it.
25. MR HODGE: At paragraph 10 we went on to the fact the judge went on to find the transfer plan was clear in showing Unit 4 did not stop at the wall. At paragraph 12 we made the point the correspondence supported the judge's finding that it was agreed the southern boundary should be extended by seven feet but it did not go so far as to support the view the boundary should extend 7 feet beyond the wall.
26. LORD JUSTICE JONATHAN PARKER: If I can do it easily I will make an alteration.
27. MR HODGE: I do not think it affects your Lordship's decision.
28. LORD JUSTICE JONATHAN PARKER: No.
Order: Application refused