Adrian Wyn Thomas & Anor v John Timothy Wade & Anor

Key words: Alteration and rectification – Schedule 4 Land Registration Act 2002 – “correction of a mistake” – previously determined boundary – adverse possession of previously unregistered land Key cases referred to: Powell v McFarlane (1977) 38 P & CR 452 J A Pye (Oxford) v Graham [2003] AC 419 Clapham v. Narga [2025] 2 WLR 413 NRAM Ltd v Evans [2017] EWCA Civ 1013 Antoine v. Barclays Bank [2018] EWCA Civ. 2846 Baxter v. Mannion [2011] 1 WLR 594 Paton v Todd [2012] EWHC 1248 (Ch.) Introduction: parties and titles

1. Numbers 116 and 114 The Street, in Brundall – a village some 8 miles east of Norwich – are owned by, respectively, the Applicants and Respondents. This case concerns, albeit somewhat indirectly, the boundary between the two.

2. Number 116 is a mixed residential and commercial freehold title. The Applicants do not live there. At ground floor level it has two shop units at ground floor level, let on 21 and 42 year leases, currently occupied by a pizza takeaway shop and a hair salon. Above those shops are three first floor flats, let on 99 year leases granted in 1988. The Applicants Mr. and Mrs. Thomas each own one of the flats, but sub-let them on assured shorthold tenancies. The third flat is still occupied by its original purchaser, a Mrs. Thompson. The Applicants purchased the freehold title to number 116 in March 1992, and were registered as its first proprietors. It had by then already been redeveloped, with the flats built and let on long leases.

3. Until 2005, the First Applicant Mr. Thomas himself conducted his business as an optometrist from one of the ground floor commercial units. When he stopped doing so, the Applicants then let that unit, Unit 1, initially to another optometrist, on a 21 year lease from 4 th April 2005. Its registered address on the title is “Unit 1, 116 The Street”. Unit 2 (currently a hair salon) was let on a 42 year lease from 22 nd December 2004, and its address is “116B The Street”.

4. Number 116 was redeveloped in 1988 by its then owner, a Mr. R. Pratt. On 18 th December 1987 he was granted planning permission by Broadland District Council for his application involving “change of use to 3 flats and construction of 2 shop units”. By a handwritten letter of 8 th February 1988, from (it can be inferred from the address, although his name has been redacted) Mr. Pratt’s agent or architect, two copies of an amended drawing were sent to Broadland District Council, which was said to have been:- “..revised to indicate the external staircase enclosed in a brick and tile structure. I would be grateful for your confirmation that this is acceptable as an amendment to the current Planning Permission. Could you also pass one copy to Building Control for their similar consideration.”

5. The change indicated by this amended drawing related, as the above letter suggested, to the staircase access to the first floor flats. In the first drawing accompanying the planning permission, this was shown as a simple external metal staircase running down the side of the building. The revised drawing (marked as version “D” of the original) now showed a staircase within an enclosed brick structure, with a tiled roof.

6. Any reply by the Council to the above letter does not survive, although it is clear from the date stamp on the amendment “D” plan that they received the letter and this plan on 10 th February 1988. What is clear, and not capable of dispute, is that the development then proceeded and was completed in accordance with this proposed amendment. The proposed substantial brick and tiled structure, enclosing the side staircase, was constructed. It has remained there ever since. I entered and inspected it on the site visit. It is entered by a door facing The Street, to which only the Applicants and the flat occupiers have keys. The staircase inside is carpeted and lit, and leads up to the flats in a corridor to the left. The structure has windows to the rear and side.

7. A Google Street View photograph from August 2016 shows the staircase structure at the side of number 216. It can also be seen from this photograph that at that time, a thick hedge separated number 116 from number 114, which is the bungalow set in substantial grounds to the right. A closer view of the entrance door to the staircase structure, also taken at a time when the hedge was in place, is also below. It can also be seen from that photograph that a low brick retaining wall was also built at the same time as the staircase. Google Street View, 2016, showing staircase structure and hedge Entrance to staircase, and retaining wall

8. The First Respondent Dr. Wade purchased number 114 in 1980, with his then (now ex-) wife Anita. It was then of unregistered title, and registration on sale was not then compulsory. First registration of title, to Dr. Wade alone, took place on 6 th August 2010, upon the transfer of the property to him following his divorce. It has since (with effect from 30 th July 2021) been registered in the joint names of Dr. Wade and his present wife Michelle Wade. Dr. Wade obtained permission for an extension to the property in 1986, and used it as a dental surgery between 1986 and 2016, while living elsewhere. He moved back to live in it from 2016.

9. Dr. Wade agreed, and confirmed in oral evidence, that the thick hedge between the properties visible above was present when he first purchased number 114 in 1980. He was also of course the owner of number 114 when Mr. Pratt carried out the redevelopment and built the external staircase structure in 1988. Replacement of hedge with fence, 2016

10. The physical boundary between the two properties was changed in late 2016. For security reasons and ease of maintenance, Dr. Wade wished to remove the long established hedge and replace it with a fence. The Applicants (through Mr. Thomas) agreed to this.

11. This was accompanied, however, by some correspondence in which Dr. Wade began to make arguments and claims as to the boundary between the properties. In letters of 24 th and 28 th October 2016 to the Applicants’ then solicitors, he suggested - apparently based on his interpretation of the “deeds” – that what he referred to as the “stair well” had been “cut into the hedge line”; that this property may have been “erected on the land that the owner does not have Title to” which might cause “an insurance issue”; and that “the boundary between 114 and 116 belongs to me” (this was presumably a reference to the hedge as a boundary feature). He also aired his “suspicion” that the staircase did not have planning permission or building control approval. He concluded these somewhat ‘passive-aggressive’ letters with an offer – of a “Gentleman’s Agreement” whereby he would transfer title of a strip of land to the Applicants, in return for them paying for removal of the hedge and erection of the new fence.

12. The Applicants, through Mr. Thomas, did not accept this offer. Dr. Wade removed the hedge then built the fence anyway, at his own expense. It has remained there since, in the same position. The Respondents’ determined boundary application, 2017

13. The position of that fence is shown on a detailed surveyor’s plan which accompanied the next step the Respondents took. On 19 th April 2017, acting through solicitors, the Respondents applied on form DB for the determination of the exact boundary between the titles to numbers 114 and 116, under section 60 Land Registration Act 2002 .

14. The accompanying plan depicted the Respondents’ contended boundary as the straight red line from points A to E below. I attach this below in full, because for the reasons which follow, it lies at the heart of the current proceedings. Respondents’ 2017 determined boundary plan

15. It can be seen from this plan that the Respondents’ then asserted boundary:- i) lay to the west of the fence they had themselves recently erected; ii) ‘sliced through’ a section of the external staircase structure; and iii) was essentially a ‘dead’ straight line drawn from the western face of a pillar or column at the front of the properties (point A), going all the way north to the end of the fencing (point E).

16. Dr. Wade filed a witness statement to accompany this application. He set out what he knew of the conveyancing and title history of the properties. So far as there was any argument or explanation of why he said the boundary was along the line shown on the plan, he referred to the boundary on a 1931 conveyance of what became his property as showing a “straight line”. He referred to the “stairway” as having “encroached on to my property” and as “obstructing” the former passageway beside number 116. I note that he did not say for how long it had been there. He referred to the recent replacement of the hedge with the fence. He then concluded by claiming that the application plan “..shows the correct boundary as being a straight line running through points A to E along that boundary”.

17. HM Land Registry dated the application (by its receipt) 18 th May 2017, then served notice of it on both Applicants, by letters dated 18 th August 2017, at the address “116 The Street”. No response from either of them was received. Accordingly, the Land Registry simply gave effect to the application without more, making an entry on the Property Register of both titles as follows: “The exact line of the boundary of the land in this title between the points lettered A-B in blue on the title plan is determined under section 60 of the Land Registration Act 2002 as shown on the plan lodged with the application to determine the boundary dated 18 May 2017.”

18. So the current position is that there is a determined boundary between the two titles on the line shown in the application plan above. This means, as the Respondents and now the Applicants are very much aware, that a ‘slice’ of the external staircase structure, and the land in front it, currently lies within the Respondents’ title.

19. On the written and then oral evidence, the reason for the Applicants’ lack of response in 2017 was clear. When they purchased the title in 1992, the property address (“116 The Street”) was their address on the title for service of notices, since at that time Mr. Thomas was operating as an optometrist from the premises, and would do so until 2005. By 2017, they no longer occupied (residentially or for business) any part of the property.

20. So in August 2017, the Land Registry notices and correspondence would have been posted to the shop unit (Unit 1) then leased to another optometrist. I accept Mr. Thomas’s oral evidence that, as he found out some years later, this lessee was prone to simply throwing away any correspondence not addressed to him personally. So neither Mr. nor Mrs. Thomas ever received or saw the notice or any correspondence. They were wholly unaware of the Respondents’ determined boundary application, or its determination (effectively in default of a response) in the Respondents’ favour. I have seen no other correspondence which referred to it.

21. It was not until several years later that the Applicants learned what had happened. There was an exchange of correspondence between solicitors in 2020. The Applicants’ solicitors first wrote to Mr. Wade on 4 th September 2020, in which letter they i) referred to his apparent suggestion that the boundary “falls between our client’s stairwell” as a “nonsense” and ii) threatened court proceedings to require him to move the fence back to what the claimed was the original correct boundary line formed by the hedge.

22. A reply from the Respondents’ solicitors dated 10 th September 2020, marked “without prejudice save as to costs” but which was included in the bundle without any objection (and so over which the joint privilege attaching to without prejudice communications must be taken to have been waived), then made the Applicants and their solicitors aware of the 2017 determined boundary. An offer was then made an offer to sell the strip of land on which the stairwell was alleged to “encroach” for £20,000 plus costs. That offer was not accepted, and nothing further appears to have happened as a result of that correspondence. The Applicants’ applications

23. The Applicants later made two applications, both of which were referred to this Tribunal. As it transpired at the hearing, however, only one of these was eventually pursued.

24. First, the Applicants themselves applied on form DB for a determination of the exact boundary between the titles under section 60 LRA 2002 , initially on 1 st August 2022. The line for which they contended in that application was shown on a plan later drawn by one Plandescil Consulting Engineers in March 2023, between the points “B1” and “B5” (below). The Applicants’ essential case in this regard was that:- i) the boundary between the properties was the centreline of the hedge which had previously divided the properties. ii) the Respondents’ replacement 2016 fence had actually been built further west than this, and so encroached over the boundary. “B1” to “B5” was therefore said to be a plotting of the former hedge line. Applicants’ 2023 determined boundary plan

25. Second, the Applicants applied on form AP1 dated 10 th May 2023 to cancel the existing determined boundary entries on the titles, on the grounds that this was a “mistake” falling within Schedule 4 Land Registration Act 2002 amenable to alteration under those provisions. This was said to be a “mistake” not just on the basis that the Applicants’ contended boundary was the correct one, but also because “the current boundary goes through the external staircase belonging to 116 The Street. This clearly makes no practical sense. This staircase has been in existence since at least January 1988…”. Later in the statement supporting the application, Mr. Thomas said that he therefore believed he had a “strong claim for adverse possession concerning the area of land on which the external staircase is located”, since it “has been in existence for at least the last 32 years during which time it has been in continual use.”

26. Both of those applications were referred to this Tribunal by HM Land Registry, with their case summary, on 2 nd December 2024. The matter progressed via statements of case, disclosure and witness statements in relation to both applications. The Applicants filed brief witness statements of their own, whereas the Respondents simply relied on their statement of case.

27. It was not until the final hearing – or more precisely, in the skeleton argument of the Applicants’ counsel (Mr. Bain) filed on 4 th December 2025– that the Respondents and Tribunal were informed that:- “ As [the Applicants] have further applied for a determined boundary of their own. However, that part of their application is not pursued. ”

28. As orally indicated at the hearing, I treated that as a written notice of withdrawal of part of the Applicants’ case, confirmed “orally at a hearing”, under rule 22 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. The Tribunal consents to that withdrawal under rule 22(3), but subject to a condition which I shall explain below. The result is that the Applicants’ section 60 determined boundary application falls away and will be directed to be cancelled. The only remaining issue relating to it may be as to costs.

29. That left only the alteration application under Schedule 4 Land Registration Act 2002 . As Mr. Bain accepted, that ‘negative’ application, to cancel the current determined boundary entries (in favour of the Respondents) on the titles, would if successful mean that the boundary between the titles would revert to being a general boundary only.

30. The Land Registration Act 2002 retained the ‘general boundaries’ rule from previous versions of the Land Registration Act. The effect of the rule is well expressed in Ruoff & Roper, Registered Conveyancing , Vol.1 paragraph 5-009 and 5-010: “In short, the general boundaries rule means that the title plan identifies the property within the registered title but does not identify the boundaries, which it only indicates. Hence all official copies of title plans are endorsed with the warning: “This title plan shows the general position of boundaries: it does not show the exact line of boundaries.” So an area of land outside the red edging on the title plan might still be within the registered title, and equally an area of land within the red edging might be outside the registered title…..…. it follows from the general boundaries rule that a disagreement as to the boundary of the registered title (a “boundary dispute”) cannot be determined by the title plan. Boundary disputes will generally be determined in the same way as the boundaries are worked out where the land is unregistered—in particular, by examining the conveyances and transfers, by the application of boundary presumptions, and by the existence of boundary agreements.”

31. That means that these proceedings could no longer determine any different exact boundary between the parties. The findings which I make in the course of determining the Schedule 4 alteration application may nevertheless:- i) clarify, at least to some extent, the general location of the boundary; albeit not with the precision required of section 60 application; and ii) generate an “issue estoppel” between these parties for the purposes of any further applications or proceedings. The evidence and issues at the hearing

32. It was apparent to me, and reflected by the evidence of Mr. Thomas and Mr. Wade not occupying a great deal of time, that there were very few if any disputes of fact relevant to the issues which remained. The facts which I have recited above - as to the redevelopment of Number 116 in 1988 and construction of the external staircase; the existence of the hedge at all times until its replacement in 2016; and the procedural history of the various applications – were all essentially agreed or documented.

33. Dr. Wade, doing his best representing himself and his wife, had very few relevant questions for Mr. Thomas. While I allowed him to ask some questions on these topics, I made clear that it was now largely irrelevant (save perhaps later on the issue of costs) why the parties had failed to reach an agreement on matters. We were “here now”, and I had to decide the issues before me.

34. Mr. Bain had a few questions for Dr. Wade, although most of these were on the essentially agreed physical matters. There were a few questions as to the basis of his belief that there had once been a gate attached to the pillar at the front, but he accepted that his beliefs as to this were a matter of inference.

35. I also asked each witness a few questions to fill some gaps in my own understanding of the facts. One of these was to ask Dr. Wade, so far as he could remember, what the particular legal basis was for the red line drawn on his 2017 application plan. His evidence was that this was not e.g. an interpretation by the surveyor of measurements on a conveyance plan, or an attempted depiction of a physical feature known to have been in that location. It was based on Dr. Wade’s belief that the front pillar at “A”, and a post at “E”, were some form of boundary markers, and that the boundary was therefore a straight line between the two, wherever that might run. The surveyor had been instructed to draw such a line on this plan. Submissions and discussion

36. Mr. Bain, who appeared for the Applicants, put their case on alteration under Schedule 4 Land Registration Act 2002 as follows. He accepted that since the proposed alteration – removal of the present determined boundary entries from the titles – would prejudicially affect the Respondents’ title, it amounted to “rectification” under Schedule 4 paragraph 1.

37. Fundamentally, he submitted that the 2017 determined boundary was a “mistake”. It did not reflect, and could not have reflected, the true exact boundary between the properties at that date. This was because it sliced through the staircase structure, and so “determined” that part of it belonged to number 114. That was, of course, the basis for the Respondents’ 2020 “offer” summarised above, to sell such land to the Applicants for £20,000.

38. That was a mistake because the Respondents did not have title to any of the land on which the staircase stood, or the retaining wall shown in the photograph above and the foundations of those structures. This was because any unregistered title which they may ever have had to such land had long since been limitation-barred, through adverse possession, prior to Dr. Wade’s first registration as proprietor on 6 th August 2010.

39. Until that date, the title to number 114 had been unregistered. The staircase, retaining wall and their foundations had been built in 1988. Mr. Bain submitted that by then there had been over 22 years’ adverse possession constituted by those matters. The erection of a fixed and permanent brick and tile structure, accessible only from number 116, was perhaps the strongest possible evidence of factual possession which there could be. Under the Limitation Act 1980 ( sections 15 , 18 and Schedule 1), and the general law on adverse possession as explained by Slade J in Powell v McFarlane (1977) 38 P & CR 452 and the House of Lords in J A Pye (Oxford) v Graham [2003] AC 419 , what is required is factual possession, with an intention to possess, for the applicable limitation period of 12 years. An intention to possess does not require some specific ‘adverse’ state of mind, such as an intention to own, or to oust the true owner. All that is required is the fairly basic intention to carry out the acts constituting possession, as far as is possible. It may frequently be inferred simply from those acts themselves, unless there is some other explanation for them.

40. Those submissions on adverse possession are plainly correct. If the original legal boundary between the properties had been in some different location (as to which, for the reasons set out below, it is not necessary to make any finding), the building of these structures, their enclosure onto number 116 and the subsequent exclusive possession of them by the successive owners of that property would have changed it. I agree that there could not be a clearer case of factual possession with intention to possess. The planning status of the structure is utterly irrelevant to this conclusion, as is (to deal with one argument raised by the Respondents in their written documents) any lack of knowledge as to the location of the original boundary. In this, as in many other cases involving unregistered land, it is genuinely true that ‘possession is nine parts of the law’, and resolves any uncertainty as to title or boundary positions.

41. This being so, on first registration of the title to number 114 on 6 th August 2010, Dr. Wade did not acquire any title to any of the above parts of land. This conclusion can be arrived at via two routes:- i) first, the registered title he obtained showed a general boundary only; and the underlying title position was that the Applicants in fact already had title to that land by then. Alternatively:- ii) if it could be argued on some basis that any deeds of title gave Dr. Wade , on their proper interpretation, an apparent ‘paper’ title to these parts of land potentially sufficient to support a first registration of title including them, then by section 11(4)(b) and Schedule 1 paragraph 2 Land Registration Act 2002 , any such registration took effect subject to the Applicants’ prior interest, supported by their “actual occupation” of that land at that date (the relevant parts were part of the freehold, not demised to any tenant, owned and maintained by the Applicants). On balance, and in the light of the analysis of Nugee LJ in Clapham v. Narga [2025] 2 WLR 413 at paragraphs 50 to 63, I consider that (i) is the simpler and correct analysis – rather than acquiring title to that land subject to a prior “interest” of the Applicants, Dr. Wade simply never acquired title to that land in the first place, since any unregistered title he might previously have had had been defeated by the Limitation Act 1980 .

42. The next submission was therefore that the 2017 determined boundary simply could not be correct, on any view. It drove a boundary line through land and a structure to which any title of number 114 had long since been limitation-barred.

43. In addition to that, Mr. Bain submitted that the actual legal basis (if any) of the 2017 application and entry was wholly unclear. The statement accompanying the application and plan had not identified and produced the original “dividing conveyance” which first created the legal boundary between the two properties. It transpired, from a review at the hearing of the abstracts of title in the bundle, that this was probably a conveyance of 18 th January 1930 from a Mr. F.H Cooper to a Mr. R.A. Chandler, of what is now number 116 and was then named “Chandler’s Stores”. Mr. Cooper appears prior to that to have been the common owner of both that and what became number 114, which he later conveyed to a Messrs. E.E. and E.H. Gedge by a conveyance of 15 th August 1931. Mr. Cooper had acquired both of these lands as part of a “Lot 7” sold to him by vendors on 20 th July 1918.

44. While that original dividing conveyance was not in evidence, it is a reasonable inference that the 15 th August 1931 Cooper-Gedge conveyance (which was in evidence) used the same plan as Mr. Cooper would have used when selling off number 116/Chandler’s Stores the previous year. This plan, although expressed by that conveyance to be “for identification purposes only”, actually contained some measurements of the plot then conveyed. It also seems likely, from the reference to “boundary fences” to the west, that the lands were at that time divided by a fence.

45. The 2017 determined boundary application did not, however, rely upon a line that was generated by either:- i) any attempting scaling or projection of the measurements on the plan; or ii) historical or other evidence as to the location of the 1930 boundary fence. Nor was there any evidence in these proceedings of where any such fence might have been.

46. I consider that these are fair observations, but had they stood alone, it would have been more difficult to characterise the resulting entries as a clear “mistake” within Schedule 4. The key factor, however, was the physical position on the ground, and the clear potential barring of title by long possession. I have already noted that the application was conspicuously silent on the length of time for which a large brick structure had “encroached” over the boundary claimed.

47. The definition of “mistake” in the 8th edition of Megarry & Wade’s The Law of Real Property was quoted with approval by Kitchin LJ (with whom David Richards and Henderson LJJ agreed) in NRAM Ltd v Evans [2017] EWCA Civ 1013 . The 10th edition of the same work summarises the position as follows: “whenever the registrar would have done something different had he or she known the true facts at the time at which the relevant entry in the register was made or deleted.” (paragraph 6-133).

48. The inquiry is not, however, into the particular Registrar’s subjective state of knowledge at the date of making the entry: the test is an objective one (see e.g. Antoine v. Barclays Bank [2018] EWCA Civ. 2846 ). Ruoff & Roper (in Registered Conveyancing , paragraph 46-009) suggest that :- “ a modified description of the meaning of “mistake” might be to suggest that there will be a mistake whenever the circumstances are such that, on the facts and law appertaining at the time: (i) an entry is made in the register that should not have been made; (ii) an entry is made in the register that should not have been made in the form in which it was made; (iii) an entry is not made in the register which should have been made; or (iv) an entry is deleted which should not have been deleted.”

49. This can include both factual and legal “mistakes”. If, on the true facts and correct law at the time of the application, an entry “should not have been made”, then it was, with hindsight, a “mistake”. A common example is that of someone who acquires a registered title to formerly unregistered land, unopposed, based on alleged adverse possession, only for it to be found later that they were not in such (or sufficient) possession at all. In some cases this might be because this Tribunal or a Court later makes a finding to that effect, on the matter being properly litigated and argued, but in others (see e.g. Baxter v. Mannion [2011] 1 WLR 594 ) it may be found that the evidence in the statutory declaration which supported the first registration was false.

50. Although Mr. Bain cited Baxter v. Mannion at both first instance and on appeal, I consider that the present case was in the first rather than second of those two categories of “mistake”. Although it might be said that there was a slight lack of frankness in Dr. Wade and those representing him not mentioning the fact that their determined boundary line ran through a large brick structure built in 1988, I do not consider it was a dishonest or bad faith application. But mistaken it was, so that the consequent making of the entry by the Land Registry when the application was unopposed (not following any administrative or judicial determination) was then a clear “mistake”. Objectively speaking, on the facts and law appertaining at that time, a determined boundary should not have been drawn through the middle of physical features which had been in place, and exclusively possessed by the other owner, since 1988. On any reasonable view, title to any land thus demarcated by such a line had been barred by limitation for a long time, and also prior to the first registration of number 114. The first requirement of Schedule 4, the existence of a “mistake” on the register, is therefore satisfied. Discretion to grant alteration by way of rectification : Schedule 4 paragraph 6 LRA 2002

51. Paragraph 6 of Schedule 4 provides as follows:- “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.”

52. Working through those provisions, the next question to consider is how much, if any, of the affected land was in the “possession” of the registered proprietor at the date of the application. If any of the land is in his/their possession, then paragraph 6(2) applies, and the applicant must establish that one or both of conditions (a) or (b) are met.

53. If the subject land is not in the registered proprietor’s possession, and a “mistake” potentially warranting alteration has been established, one then goes straight to paragraph 6(3): the application “must be approved”, unless “exceptional circumstances” exist.

54. In this case, the position is relatively straightforward.

55. On my clear findings above, so far as the application relates to land on which the external staircase and all parts of it (including foundations) stand, and also the low retaining wall:- i) those parts are not, and have never been (since at least 1988) in the possession of the Respondents. ii) they are, and have been, instead in the possession of the Applicants and their predecessors. iii) since the determined boundary entries currently incorporate such land as part of number 114, the alteration (by way of rectification) to remove any such land from the Respondents’ title “must be approved” under paragraph 6(3), unless there are “exceptional circumstances” which would justify a refusal to do so.

56. I do not consider that there are any such “exceptional circumstances”, as that expression was explained in Paton v Todd [2012] EWHC 1248 (Ch.) , per Morgan J. at paragraphs 63 to 72. The land has been in the continuous and exclusive use and possession of the Applicants, their tenants and licensees. The Respondents had not even set foot in the staircase structure, or looked inside it, until the site visit prior to the hearing.

57. The only arguments which might be made against the Applicants are ones of process and time, not substance. It is true that the Applicants should have kept their address for notices on the register up to date, or made satisfactory arrangements for their collection of correspondence sent to “116 The Street”. It was, however, unfortunate and unforeseeable that their business tenant apparently threw such correspondence in the bin. Had the Applicants received the notice of the application, they would almost certainly have contested it, given their correspondence and dealings with the Respondents over the new fence just months previously.

58. The Applicants had no particular reason to inspect the registered title in the next three years, and I am satisfied that they did not learn of what had happened until the inter-solicitor correspondence in 2020. At most it might be said that they were then guilty of a slight delay in then pursuing their alteration application (in 2022), but no prejudice to the Respondents resulted from that. The physical position and possession on the ground remained unchanged.

59. This being so, I am satisfied that the alteration application must succeed, in that the current determined boundary entries must be cancelled. Disposal, final outcome and consequences of Applicants’ withdrawal of their determined boundary application

60. The cancellation of the current determined boundary entries on the titles will leave those registered titles with general boundaries only, as they were prior to 2017.

61. My findings in these proceedings, however, are clearly to the effect that the Applicants have title to so much land as is currently possessed as part of the staircase structure and its foundations, and the low retaining wall. They acquired that title by adverse possession by 2000 at the latest.

62. I consider that such a finding amounts to an issue estoppel between these parties and their successors in title, so could not be relitigated in any other proceedings or forum. If it were, the question of whether this was an issue estoppel would however be a matter for that other court or tribunal.

63. I have not determined any other issues of entitlement to land, or the boundary between the properties, which otherwise remains a general one only. The position on the ground elsewhere is however that the Respondents erected the fence in late 2016, and have been in possession of the land to the east of that fence since then. They can take their own independent advice as to the significance of this, now and in the future.

64. As to any small area of land between the fence and the staircase, its ownership remains undetermined for now. I express the hope that the parties can live sensibly with this, and both make such use of it as they need (for maintenance or otherwise) without preventing the other from doing so.

65. The Applicants’ abandoned determined boundary application was going to be to the effect that the fence was in the wrong place, and that the true exact boundary was the former hedge centreline, which they claimed lay slightly further east than the fence.

66. Having brought that application, and pursued it all the way until an unexplained withdrawal of it at the final hearing, I consider that it is appropriate to attach a condition to the Tribunal’s consent to the withdrawal under rule 22(4), by analogy with rule 40(3). Under that latter rule, paragraph (b), the Tribunal may make it a condition of giving effect or cancelling an application that a direction is made to the Registrar: “…to reject any future application of a specified kind by a named party to the proceedings— (i) unconditionally; or (ii) unless that party satisfies specified conditions.”

67. In a withdrawn determined boundary application case such as this, I consider it appropriate to impose a direction that the Registrar reject any future determined boundary application by the Applicants unless (a) the other party agrees it; or (b) the Tribunal consents to the disputed application being referred to it, upon the Applicants making an application for such consent supported by evidence.

68. It is necessary to do this, in my judgement, to prevent the Applicants or any other parties playing ‘fast and loose’ with the procedure and jurisdiction by making (then withdrawing) potentially limitless applications. Costs

69. Any applications for and representations on liability for the costs of these proceedings should be made by the date stated in the order. If made, these will be referable to the costs of both the alteration and determined boundary applications.

70. If any costs order is then made, directions will be given for the assessment of any costs ordered to be paid.

71. I am grateful to counsel and Dr. Wade for their courteous and economical presentation of the case, which enabled it to be heard in a single day. I also express the hope that the parties can co-operate and co-exist as neighbouring owners more effectively in the future. Judge Ewan Paton Dated this 19 th December 2025 By Order of The Tribunal