Brown v Ridley and Another [2024] UKUT 14(LC); [2024] PLSCS 19

March 25, 2024

by Tanita Cross

Introduction

In 1979, cinemagoers watched with surprise as James Bond was unexpectedly pushed from a plane without a parachute in the film Moonraker. Some 40 years later in October 2019, Mr Brown must have experienced similar surprise when he discovered that his neighbours, the Ridleys, were constructing a house called Moonrakers on part of his land.

Application for Registration

On 20 December 2019, the Ridleys sought to remedy the problem by applying to the Land Registry to be registered as proprietors of part of Mr Brown’s land on the basis of adverse possession. Mr Brown opposed the application, so it was referred to the First-tier Tribunal.

The Ridleys’ application was made under Schedule 6 of the Land Registration Act 2002 (“the 2002 Act”). The Ridleys relied on their adverse possession of the disputed land for more than ten years prior to the application and on an asserted reasonable belief in their ownership of the disputed land for the same period.

First-tier Tribunal Judge Bastin decided that the Ridleys had been in adverse possession since 2004 and that they had reasonably believed that they owned the land from that date. However, he also found that, contrary to the Ridleys’ case, they had ceased to hold that reasonable belief in February 2018.

This meant that the Judge had to resolve a difficult question of law: did the Ridleys have to show ten years of reasonable belief up to the date of their application to the Land Registry, or would any ten years of reasonable belief suffice?

Judge Bastin preferred the latter interpretation of the 2002 Act. He therefore determined the application in favour of the Ridleys. As a result, he directed the Chief Land Registrar to register the Ridleys as proprietors of the disputed land under Schedule 6 to the Land Registration Act 2002. With the permission of the Judge, Mr Brown appealed the decision.

Question for Appeal

Mr Brown’s appeal was heard in the Upper Tribunal (Lands Chamber) by the Chamber President, Mr Justice Edwin Johnson, on 5 December 2023. The focus of the appeal was the statutory construction of paragraph 5(4)(c) of Schedule 6. Paragraph 5 sets out the conditions that a person in adverse possession of registered land must meet in order to become the registered proprietor. The condition in sub-paragraph (c) requires that:

“for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him.”

The point of dispute between the parties was whether the period of ten years is (i) the period of ten years ending on the date of the application or, (ii) any period of ten years within the period of adverse possession. Judge Bastin had decided that the answer was (ii).

Appellant’s Arguments

Mr Brown argued that the FTT was wrong because:

  • the Court of Appeal decision in Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 EGLR 1 was binding authority, to the effect that the answer was (i);
  • even if Zarb v Parry was not binding, it was authority to which the FTT failed to give adequate weight; and
  • in any event, the correct interpretation was (i) as a matter of statutory construction.

The Ridleys sought to support Judge Bastin’s conclusion. They also sought to bring a ‘contingent’ cross appeal in the event that the appeal succeeded on the basis that the FTT erred in its factual finding that their reasonable belief had ceased in February 2018.

Appeal Allowed

In Zarb v Parry, the Court of Appeal treated the ten-year period as the ten years ending on the date of the application for registration, as contended for by the appellant. The question for the Upper Tribunal was whether this approach formed part of the ratio of Zarb and was therefore binding authority.

The ratio decidendi of a case is any rule of law expressly or impliedly treated by the court as a necessary step in reaching its decision. It does not appear that the identification of the ten-year period was argued in Zarb. However, the ratio can include a statutory construction that the court simply assumes to be correct: R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] 1 QB 955.

In Zarb, it was necessary for the Court of Appeal to decide that the ten years of reasonable belief had to persist until the date of application in order to find, as it did, that the defendants could satisfy the condition in paragraph 5(4)(c). This interpretation thus formed part of the ratio of the decision.

It followed that Zarb was binding authority on this question, unless it could be avoided in one of two limited ways. It was clear that Zarb was neither a decision reached per incuriam, nor did it fall into any of the categories set out in Young v Bristol Aeroplane Co Ltd [1944] KB 718.

Consequently, the Upper Tribunal concluded that Zarb was binding on this point and the FTT had made a material error of law by failing to follow it.

The appeal was therefore allowed on ground (1).

Cross Appeal Dismissed

Since the appeal was successful, the Ridleys’ contingent cross appeal arose for decision.

The Ridleys’ case was that there was no basis for the Judge Bastin’s finding that by February 2018, Mr Ridley had ceased to believe that they owned the disputed land. The Ridleys maintained that their reasonable belief ended in October 2019, and that they had acted promptly by making their application for registration in December 2019.

The Upper Tribunal however found nothing wrong with Judge Bastin’s approach to the evidential questions concerning reasonable belief. At paragraph 186 of his judgment, the Chamber President said:

“There was no gap in the Judge’s logic, or lack of consistency, or a failure to take account of some material factor […] Equally, it seems to me that there was ample evidence to support the conclusions reached by the Judge.”

As a result, the cross appeal was dismissed.

The Upper Tribunal’s Views on Construction

In the course of oral submissions, the Ridleys urged the Chamber President to set out his own views on the construction of paragraph 5(4)(c), even if he found that Zarb was binding precedent on this question.

At paragraphs 124 to 162 of his judgment, with some reluctance, Edwin Johnson J explained why he doubted the correctness of the Court of Appeal’s analysis in Zarb v Parry and preferred the “any ten years” interpretation.

An important reason for this view is a practical one. Inevitably, a person will only make an application for registration as owner of land which has been in their adverse possession after they realise that they do not already have the registered title to it. Yet, as soon as they are aware of the discrepancy, their reasonable belief in their ownership of the land has ceased. In these circumstances, it would be impractical, if not impossible, for anyone to meet the condition in paragraph 5(4)(c) – one would have to apply for registration on the precise day of making the discovery.

The appellant argued that the solution to this “absurdity” (as Edwin Johnson J labelled it) is that there is a period of grace between the coming to an end of the period of reasonable belief and the making of the application for registration. The Chamber President rejected this argument for the following reasons.

  • There is no reference to any period of grace in the wording of paragraph 5(4)(c).
  • The principle of de minimis non curat lex cannot apply. It means that the law does not concern itself with trifling matters, which underlies the rule that the law generally disregards fractions of a day. It cannot be invoked to mean that the period of ten years ending on the date of the relevant application can be interpreted as ending on date falling days, or weeks or months before the end of that period.
  • If it were assumed that there is a period of grace, the obvious question becomes how its length is to be determined. Applying a general test of promptness only increases the uncertainty around the meaning and operation of the provision.

A Moonrakers Sequel?

Since judgment, Edwin Johnson J has granted a ‘leapfrog’ certificate enabling the Ridleys to apply directly to the Supreme Court for permission to appeal. This is perhaps unsurprising given the conflicting views of the Court of Appeal and the Upper Tribunal. The next stage is for the Ridleys to seek permission to appeal from the Supreme Court.

You can read Edwin Johnson J’s judgment in full on the National Archives website. Brynmor Adams of Exchange Chambers represented Mr Brown at first instance and (with Stephanie Tozer KC) on appeal.

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