A Moveable Boundary?

Legal Case Reports

Land Registry boundaries are not definitive.

Loose v Lynn Shellfish [2014] EWCA Civ 846

Summary

Many believe that a Land Registry boundary is definitive; it is not. A recent case has flagged this in respect of properties fronting onto tidal waters (where the boundaries ebb and flow with the tide), but before we look at that case it is worth noting the basic position on general boundaries.

The general position on boundaries at Land Registry and with Ordnance Survey

The plans filed at Land Registry are not normally definitive. Different levels of accuracy apply dependent on the scale of the map and the original survey method used to create it. Even the most detailed surveys with the most modern and highly accurate survey instruments take place within certain defined tolerances and large-scale Ordnance Survey mapping is no exception. As a general guide, the width of a line on a 1:1250 Ordnance Survey map roughly represents 0.3 metres on the ground. The width of a line on a 1/2500 Ordnance Survey map roughly represents 0.6 metres on the ground.
Given the difficulties in establishing the position of the legal boundary, the great majority of registered titles show only the ‘general boundaries’ [under s.60(1), LRA 2002]. So, the Land Registry would not have made detailed enquiries as to the precise location of the legal boundaries. Title plans will reflect what the Land Registry concluded to be a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on Ordnance Survey mapping.
Unlike the tolerances applied to Ordnance Survey mapping, there is no standard tolerance, measurement or ratio that can be attributed to the relationship between the position of the general boundary mapped on a Land Registry title plan and the position of the legal boundary.
Case law makes clear that there is no limit to the quantity of land that can fall within the scope of the general boundaries rule [Drake v Fripp [2011] EWCA Civ 1279].

Tidal boundaries

These are even more “flexible” as noted in Loose v Lynn Shellfish [2014] EWCA Civ 846. This case has very specific facts which will not be of general interest but the Court’s decision reconfirmed the legal position:
• A non-tidal river boundary changes with the passage of time (and water) so the title to the land has to do the same – this is called the “doctrine of accretion and diluvion”.
• The Court held that this doctrine regulates the boundary between the land adjoining the foreshore and the foreshore itself. The boundary between the two moves in accordance with movements of the high water mark brought about by natural forces.
• The boundary would extend to the lowest astronomical tidal water mark (whatever the nature of the tide, not the median) but not to the lowest possible tide, which would only occur under an extreme combination of events/circumstances.
Looking at the Land Registry practice notes the following guidance should be noted:
• In the absence of contrary evidence, the boundary of land adjoining the sea lies at the top of the foreshore (the land lying between the high and low water-marks of a mean average tide between spring and neap tides).
• In the absence of evidence to the contrary foreshore is owned by the Crown. This assumption also applies to land bordering on tidal rivers and sea inlets. The boundary may move gradually, as the line of the high water mark moves naturally over the years.

Non tidal boundaries

As noted above, the boundary between registered titles abutting a natural non-tidal river or stream changes if the course of the stream changes naturally over a period of time. The fact that a title plan may show the boundary in a particular position does not affect the loss and gain of land resulting from the operation of “accretion and diluvion”.
Where properties are separated by a natural non-tidal river or a stream, the presumption is that the boundary follows the centre line of the water (“ad medium filum aquae”) so that each owner has half of the bed.

Can one pin down a boundary line?

Yes – by way of a boundary agreement or the registration of a determined boundary; both these processes will involve the adjacent owner and the Land Registry – not for this article, but the process is set out in the Land Registry Practice Guide 40.

1 Save where there is a violent change, say a flood, where the doctrine would not be applied