This is an appeal by Mr and Mrs Robert Patterson under section 25 of the Land Registration (Scotland) Act 1979 ("the Act") seeking rectification of an entry in the Land Register for Scotland under Title Number LAN30749 being the registered title to their property at 7 East Milton Grove, Westwood, East Kilbride. The appellants allege that the boundaries of their property are erroneously delineated on the registered Title Plan. As the appeal developed it became clear that the appellants' concern focused on the northern boundary of their property, originally known as Plot 3. The provisions for dealing with rectification of the register are laid down in section 9 of the Act, the relevant parts of which are as follows:-
"9(1) … the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.
(2) … the powers of the court and of the Lands Tribunal for Scotland to deal with questions of heritable right or title shall include power to make orders for the purposes of subsection (1) above."
The appeal was intimated to Mr and Mrs Gordon Conn as owners of what is now 9 East Milton Grove, lying immediately to the north of the appellants' property and originally6 known as Plot 4, and to the Executrix of James Dykes, all as interested parties. Mr Dykes had owned the larger area of ground of which inter alia Plots 3 and 4 formed part, before that ground was developed. His Executrix lodged certain observations, which formed part of the Record, but did not appear at the hearing. The Executrix's observations almost entirely coincided with the Keeper's formal Answers. Mr Conn appeared at the hearing and gave evidence. The Tribunal also heard evidence from Mr Patterson and from Mr L Macfarlane, Chartered Surveyor, who had been instructed to examine the locus on behalf of the appellants, after they had fallen into dispute with both Mr and Mrs Conn and with the Keeper. The Keeper's witnesses were Mr G Ross, a Senior Executive Officer in the Plans Section of the Department of the Land Register, and Mr J Cogle, the Keeper's Assistant Director of Plans. Mr Cogle was in effect a policy witness - he had not been involved in making the decisions which had led to the registration which the appellants alleged to be erroneous. Mr Ross had however been asked to advise the Senior Legal Officer, Mr Fulton, who had made the ultimate decision on the controversy which arose in connection with the registration of Plot 3. Mr Fulton, who has retired, was not called as a witness.
Following upon the hearing the Tribunal carried out an inspection of the locus.
The gravamen of the appellants' complaint is that the Keeper in registering the appellants' title failed to take sufficient account of all the circumstances known to him: and in particular assumed in error that the boundaries of Plot 3 should be fixed by reference to the southmost boundary thereof and not, as allegedly determined by the granter of the deed inducing registration of Plot 3 (namely Mr Dykes), from the northmost boundary of Mr Dykes' estate.
At the hearing, Mr A R Dewar, Advocate, on behalf of the Keeper objected to certain of the evidence of Mr Patterson which, he submitted, was designed to show what the intention of Mr Dykes had been, on the grounds that such evidence was inadmissible, once Mr Dykes had granted a conveyance of Plot 3 to the appellants. The Tribunal however decided to hear all the evidence which Mr R W J Anderson, Advocate on behalf of the appellants wished to lead, under reservation as to its competency and relevancy.
Although the deed plan annexed to the Disposition by Mr Dykes in favour of the appellants was admitted by Mr Patterson to be the same as that attached to the missives which he and his wife had concluded with Mr Dykes in 1986, it was his evidence that that plan differed radically from the plan of Plot 3 which had originally been shown to him by Mr Dykes in the course of negotiations between them. In particular the original plan had shown the southern boundary of Plot 3 falling well short of the southern boundary of Mr Dykes' estate. It was only at a later stage that Mr Dykes had elected to include the additional ground lying between the originally intended southern boundary of Plot 3 and the southern boundary of his estate.
Mr Patterson had not been much interested in having this additional ground - which he described as worthless or even, looking to the obligation placed upon him to maintain it, of negative value. However he did not object to its being included in the ground conveyed to him. What he did object to was the subsequent behaviour of r Dykes - who, as it was put by the appellants' counsel, almost literally moved the goalposts and that on several different occasions. The Keeper's witnesses conceded that various plans attached not only to the Disposition in favour of the appellants but also to Dispositions of other of the plots into which Mr Dykes' estate had been sub-divided showed that some of the other original boundary lines had been altered. Some support for Mr Patterson's contention that Plot 3 as ultimately conveyed to him was greater in extent than had originally been proposed could be derived from the location (as opposed to deed) plans attached to the Dispositions in favour of Mr and Mrs Conn and in favour of Mr and Mrs Alexander Cowie (the purchasers of Plot 5, lying immediately to the north of Plot 4). These depicted Plot 3 as smaller than the plot eventually conveyed to the appellants and appeared to leave unconveyed an area of ground to the south thereof, between Plot 3 and what was shown on the Ordnance Map as the boundary of Numbers 49 and 51 Ontario Park. The original boundary markers which were in place when Mr Patterson had first inspected the site as offered for sale by Mr Dykes had been consistent with the smaller area of ground shown on these location plans. Mr Dykes had continued to alter the position of the northern boundary markers, even after missives had been concluded and even after the foundations of the appellants' house had been laid. The implication of Mr Patterson's evidence was that it suited Mr Dykes to change the boundaries in order to make Plot 4 a more attractive selling proposition. When the appellants objected to the later changes in the boundary markers made by him, Mr Dykes pointed out that the appellants would still be getting not less than the area of ground which Mr Dykes was obliged to convey to them.
It was moreover Mr Patterson's evidence that consistently, throughout his dealings with him, Mr Dykes had shown that he intended to measure all of the Plots 3, 4 and 5, from the northern boundary of Mr Dykes' estate. Mr Dykes had pegged out the boundaries from the north. To support this contention Mr Patterson again pointed to the location plans referred to above, which showed that at the time they were prepared it had not been intended to extend Plot 3 to the southern boundary of the ground owned by Mr Dykes. The choice of the northern boundary of Mr Dykes' estate as the point from which measurements should be taken was in any event, he claimed, rational in as much as even Mr Dykes was not sure where his southern boundary lay, whereas the northern boundary of Mr Dykes' estate had always been clear. It was stated in Mr Dykes' title to be the centre line of a hedge and of a post and wire fence. On inspection it was evident that it might be difficult to be precise about the line of the northern boundary because the fence and hawthorn hedge had become intertwined. Generally the fence is on the north side of the hedge. In contrast the southern boundary of Mr Dykes' ground was, according to Mr Patterson, far from difficult to locate. Mr Patterson himself had not been concerned to establish just where that boundary lay - that had been irrelevant so far as he was concerned. Mr Macfarlane also said that until a late stage (after he had had sight of the Disposition of the adjoining property at Ontario Park) he was in doubt whether the southern boundary of Mr Dykes' estate should be measured from the line of some derelict stobs: or from a partially built paling fence lying slightly further south. The ground between what Mr Patterson said was to have been his original southern boundary and the southern boundary of Mr Dykes' estate was said by him to consist of a belt of trees. On inspection these were found to be small, immature fir trees. Mr Dykes' original intention had been to make that southern portion of his estate available as common amenity ground to the proprietors of all of the eight serviced plots which he intended to sell and to which he proposed to reserve a right of access, depicted on the original location plans. When later Mr Dykes decided to include part of that additional ground in Plot 3 it was provided in the Disposition in favour of the appellants that they should be responsible for planting that ground with trees, to the satisfaction of the planning authority. The Disposition in favour of the appellants required them to leave that additional ground unbuilt upon: and to be solely responsible for maintaining the trees so planted.
While Mr Patterson's first choice of plot had been Plot 3 he had briefly considered Plot 4 for which the price would be less, but had rejected it as being too small to accommodate the timber framed kit house which he wanted to build. He had given the deed plan to his architects who had used it to prepare the plans used in submitting an application for planning consent. The appellants were required by their planning permission to leave a gap of 7 metres from the north wall of their house to the northern boundary of their ground. At one time Mr Patterson appears to have been told by the planning authority that they were not satisfied that he had built his house in conformity with that planning condition: but Mr Patterson explained this by saying that the planning authority had measured from the marker posts which had by then been moved by Mr Dykes, and not from the original posts which had marked the correct northern boundary of Plot 3. He had replaced the boundary markers for the north boundary to their original position and thus 7 metres from the front of his house. By this time the foundations for his new house were done. He had begun to excavate a trench on the line of what he was convinced was his northern boundary, meaning to put in a retaining wall there. That trench was seen on inspection to include a concrete lining to provide the footings for a wall. That excavation work led to the appellants being interdicted by Mr and Mrs Conn who were apprehensive that it might effect the foundations of the house which they had by now erected on Plot 4. Mr Patterson commenced corresponding with the Keeper about the location of his northern boundary in 1987 or 1988, after the appellants had fallen in to dispute with Mr and Mrs Conn.
It was put to Mr Patterson that the positioning of his house was dictated by the slope of the ground, which falls off to the south. He appeared to agree that he had originally thought that his builders might be putting the house too far north. He also agreed that if his house had been built further to the south then he would have had more room to turn a car into his garage and would have found it easier to comply with the planning condition referred to above. There was some apprehension on Mr Patterson's part that if he could not establish that his house had, in the result, been built in the right place then he might face action of some kind from the planning authority; and he was also apprehensive that if the Keeper refused to confirm that his northern boundary was on the line which he had excavated then he would be in difficulty about obtaining vehicular access to his garage.
It was also put to Mr Patterson that the action of the Keeper in positioning the northern boundary of Plot 3 by reference to measurements taken from his southern boundary was at least as plausible a method of fixing the boundaries of Plot 3 as was the method for which he contended, namely by measuring from the north: but he continued to insist that this was not how Mr Dykes had intended to fix the boundaries and moreover that Mr Dykes had never intended any gap to appear between any of the three plots. Both he and Mr Macfarlane agreed however that whatever the Keeper did, on the basis of the three Dispositions the Keeper had received for registration, there would still be a gap somewhere: and that the problem was created not by the Keeper but by bad conveyancing. Mr Macfarlane produced a series of plans showing where that gap would occur, depending upon whether the measurements of Plots 3 and 4 were taken from the north or from the south. Plot 5 could readily be plotted from the northern boundary. Even if Plot 3 was plotted from the south that still left some doubt as to where Plot 4 should lie. While the Keeper's determination of the boundaries of Plot 3 might be justifiable if the Disposition in favour of the appellants were to be taken in isolation if it was plain that if the Keeper had to consider all three plots together he should have used the same starting point and should also have aimed to bring about a result whereby there would be no gap between any of the three plots. Mr Macfarlane's preferred solution, although he himself accepted that it would be a radical one, was the solution for which the appellants ultimately contended, namely to have the "floating strip" located to the southern extremity of the original Dykes' estate.
The evidence of Messrs Ross and Cogle was that the Keeper, faced with the problem of admittedly defective conveyances which showed clearly enough that Mr Dykes had failed to convey all the ground which he had owned, accepted that there was a "floating strip" of unconveyed ground, which the Keeper decided fell to be located between Plots 3 and 4. The dimensions of the "floating strip", as set out in a letter from the Keeper to the solicitors acting for the Executrix of Mr Dykes dated 3 May 1991, were said to measure 0.8 metres along its western boundary and 1.4 metres along its eastern boundary. The Keeper had been able to see from the information contained in the Disposition of Plot 3 that its southern, western and northern boundaries could all be plotted in relation to Mr Dykes' title. Similarly, Plot 5 had contained sufficient information to enable the Keeper to fix the boundaries of that plot accurately. Plot 4 on the other hand was a "floating rectangle". The Disposition of Plot 4 did not enable the Keeper to relate it to any existing feature on the Ordnance Map. That had made it difficult to decide just where the "floating Strip" of ground should be positioned. The determining factor in the Keeper's decision to place the "floating strip" between Plots 3 and 4 was the Keeper's knowledge of the dispute between the appellants on the one hand and Mr and Mrs Conn, as proprietors of Plot 4, on the other hand.
Mr Ross had been asked to look at the problem represented by the floating rectangle at some time in 1989 and had taken into account the correspondence which then existed with Mr Patterson. The appellants had already been told by the Keeper's staff that they were satisfied that the northern boundary of Plot 3 should be measured from the south boundary of Mr Dykes' title. None of the arguments previously advanced on the appellants' behalf convinced Mr Ross that what his colleagues had already told the appellants was incorrect: but at the request of Mr Fulton, the Legal Officer in charge of the matter, he had instructed a survey, the purpose of which was to check the Ordnance Map. The only matter of relevance established by that survey was that there were "scaffolding poles" embedded in the ground at exactly the right points to justify the Keeper's preliminary determination of the matter. However these, according to Mr Patterson, had been driven into the ground by Mr Dykes after he had concluded missives with the appellants. Mr Ross and Mr Fulton had taken into account all the circumstances, including the survey and the fact that, as Mr Ross pointed out, if it were accepted that the southern boundary of Plot 3 was the same as shown in Mr Dykes' title and the northern boundary was to be as claimed by Mr Patterson then the appellants would end up with a greater area of ground than that specified in the conveyance in their favour. The decision to resolve the matter as it had been in the Land Certificate subsequently issued was a decision taken by Mr Fulton but Mr Ross' opinion was that that decision had been perfectly reasonable in so far as it located the "floating strip" between Plots 3 and 4. It was put to Mr Ross that the Keeper had been entirely arbitrary in placing the "floating strip" between Plots 3 and 4 and that that could not reasonably have been contemplated by the seller. He declined to agree that he, in advising the Keeper, had been obliged to consider all three plans for Plots 3, 4 and 5 together - in plotting Plot 3 he had used the Disposition and deed plan for Plot 3 only. He rejected the suggestion that the "floating strip" might be located at the southern extremity of Plot 3 on the premise that the southern boundary of Plot 3 was in no doubt, either by reference to the Ordnance Map or by inspection of the site.
Mr Cogle in his evidence said that the sort of problem represented by the floating rectangle was not unusual. Developers tended to look at matters piecemeal and that made for problems such as this. His evidence too was that the Keeper had acted properly in locating the boundaries of all three plots and in particular Plot 4. He accepted that, taken in isolation, the Disposition of Plot 4 could not have been accepted for registration - there was no evidence in the deed itself by which the boundaries of Plot 4 could be plotted. That Disposition could therefore have been rejected: but the Keeper had decided that what was required was a conveyancing answer to the problem - in as much as Mr Dykes had failed to convey all the ground available to him and he (or his Executrix) was still in a position to convey the "floating strip" to whomsoever he (or she) wished. The Keeper did not have judicial powers as has the Land Registrar in England. The Keeper was aware of the dispute between Mr Patterson and Mr Conn but could not arbitrate in that dispute. Mr Cogle would have preferred to have seen a compromise between those parties, leading to a section 19 Agreement. Mr Cogle too dismissed the suggestion that the "floating strip" might be placed at the southern or northern extremities, because it was clear that Plots 5 and 3 had been correctly plotted and any gap must therefore occur somewhere between those plots. He accepted that the Keeper's decision whereby the "floating strip" was located to the north of the boundary of Plot 3 was a pragmatic one but the Keeper in all the circumstances, including in particular the existence of the dispute between the Pattersons and the Conns, had acted reasonably.
It was sometimes difficult from the evidence led to understand just what information the Keeper had at each stage. However, the Land Certificates produced for each of Plots 3, 4 and 5 showed that the dates of registration (and therefore the dates upon which applications to register were first ingiven to the Land Register) were respectively 7 May 1987, 28 July 1987 and 15 July 1987. Mr Ross was not instructed to consider the appellants' application for registration until approximately April 1989 and his evidence appeared to be that that was as a result of correspondence between Mr Patterson and the Keeper earlier in that year. The requisition which Mr Ross made for a survey was dated 20 April 1989. The Keepers' witnesses could give the Tribunal no information as to when the Land Certificates for each of Plots 3, 4 and 5 were issued but it was accepted that that must have been some time after the results of the survey were known and Mr Fulton's decision made and it was accepted by the Keeper that although the appellants' application was the first received the chronology was such that there would have been an opportunity to consider all three applications together.
For the Keeper it was submitted with regard to the relevancy and competency of evidence that it was well established in Scots Law that a Disposition superseded prior communings between the parties - see Lee v Alexander (1883) 10R (HL) 91 per Lord Watson at page 96: and Winston v Patrick 1980 SC 246 (per L J C Wheatley at page 240). If prior communings between parties were excluded then a fortiori so should communings with third parties. The Keeper had not been party to the communications between Messrs Patterson and Dykes or between Messrs Patterson and Conn. Likewise evidence as to what occurred between Mr Patterson and the planning authority and between Mr Patterson, his builder and his architect as to the position of the appellants' house was not part of the circumstances known to the Keeper. Accordingly, while the evidence on those matters might be helpful for background, it could not be admitted by the Tribunal in coming to its decision.
For the appellants it was submitted that while it would be clear that the Disposition superseded any prior communings in so far as the appellants might seek to allege that they had not been granted a title to a plot of dimensions corresponding to the missives plan, that was not their position - their quarrel was with the way in which the Keeper had fixed the position of the "floating strip" and so all the evidence led on behalf of the appellants was both relevant and competent.
In the Tribunal's opinion insofar as there was correspondence between the Keeper and Messrs Patterson and Conn it is clear that that must have been part of the "circumstances" known to the Keeper in arriving at his decision and might therefore be relevant evidence. However no such correspondence was produced to the Tribunal by the Keeper. Equally any such correspondence was not called for by counsel on behalf of the appellants. The Tribunal were somewhat surprised to find that the Keeper, in particular, thought it inappropriate to lodge that correspondence: and have considered whether it would be appropriate even now to call for it. On balance however the Tribunal have decided that if both parties consider that it was not appropriate to lodge any such correspondence then it is not for the Tribunal to insist on its production. In coming to that view we must suppose that the matter has been as fully ventilated on behalf of the appellants as their counsel thought fit and relevant. In any event it seems to us that Mr Dewar's submission to us was, in essence, correct: and therefore that the Keeper would have been entitled to have come to the decision that, in considering any such correspondence, he was bound to ignore any evidence of what Mr Dykes' intention might have been and to base his decision strictly on the conveyance. However, it was part of the Keeper's evidence that the way in which he decided to position the "floating strip" was influenced to some considerable extent by the knowledge of the dispute between the Pattersons and the Conns; and the Tribunal, while agreeing that it is incompetent to consider much of the evidence adduced on the appellants' behalf in so far as that evidence might be indicative of Mr Dykes' intention in the matter, have taken into account, as relevant, such evidence as the Keeper admitted he had of the dispute between the appellants and Mr and Mrs Conn. Expressly we are satisfied that in the particular circumstances of this case, the Keeper should, in registering the title to each of the three Plots 3, 4 and 5, have taken into consideration the Disposition for each of those three Plots together as he plainly had time to do before issuing any Land Certificate for any of those plots.
The only reported case on section 9 of the Act is Brookfield Developments Ltd v Keeper of the Registers of Scotland, 1989 SLT (Lands Tr) 105. The circumstances in Brookfield were different from those in the instant case but nevertheless the Tribunal in Brookfield said that "inaccuracy" fell to be construed widely: and the appellants submitted that the Tribunal's approach should be the same in this case. The questions which the appellants submitted the Tribunal had to consider were the standard of care to be expected from the Keeper and the way in which the Keeper had exercised such discretion as he has in a case such as this, involving the sub-division of a larger area into smaller plots.
On behalf of the appellants it was submitted that although the approach of the Keeper to the registration of Plot 3 might, at first blush, seem quite sensible, given that it was the southernmost of the three plots, in all the circumstances that was not so. The justification put forward by the Keeper for measuring from the south was that he could easily identify the southern boundary of Plot 3 as described in the Disposition by Mr Dykes in favour of the appellants by comparing that Disposition, and in particular the deed plan attached to it, with the conveyance to Mr Dykes and the deed plan (taken from the Ordnance Map) attached to it. However given that the Keeper had before him all three Dispositions (for Plots 3, 4 and 5) the Keeper should have applied some system of checks and balances. It must have been clear to the Keeper that by fixing the boundaries of Plot 3 from the south and the boundaries of Plot 5 from the north he would inevitably produce the very problem of which the appellants now complained. In comparing the three deed plans against Mr Dykes' title it should have been a matter of elementary arithmetic to establish (even without going on site) that the three Plots, measured along their western boundaries, did not add up in total to the measurement of the western boundary stated in Mr Dykes' title: and that there was consequently a danger that part of Mr Dykes' title would remain unconveyed.
Mr Cogle said that that sort of problem was one which arose often and that coincided with the evidence of Mr Macfarlane, who had come across it frequently in his own practice. Indeed it was part of Mr Cogle's job to liaise with the surveying profession in an effort to ensure that such problems might be avoided. Mr Cogle in his evidence had also very fairly said that while the "floating strip" was not the creation of the Keeper its location was.
If, as the appellants submitted was proper, the measurements of each plot had been taken consistently from the same starting point, namely the northern boundary of Mr Dykes' ground (which Mr Paterson and Mr Macfarlane said was an obvious boundary of long standing) then the proprietors of Plots 5 and 4 could have no complaint. That in fact was how the Keeper had chosen to plot and register the boundaries of both Plots 5 and 4.
In asking the Tribunal to rectify the Register the appellants recognised that there would still be a "floating strip" which, counsel submitted, should lie to the south of the appellants' plot. That might not be the perfect solution but it was the most equitable. However not only was that not the solution offered by the Keeper - he had (on the evidence of Mr Ross) dismissed that possible solution out of hand.
Mr Anderson accepted that the Keeper had been put in a position which he described as unenviable: and that that unenviable position was the result of poor conveyancing. However it was striking that both Mr Ross and Mr Cogle said so firmly that the "floating strip" must go between Plots 3 and 4: and should have dismissed any suggestion that it should go to the northern or southern extremity of the three plots. The only explanation put forward by the Keeper to justify his eventual solution was that the northern and southern boundaries of Mr Dykes' title were fixed. But if the Keeper had, as the Keeper claimed, a discretion then it was necessary that he should exercise that discretion in a reasonable manner, as indeed the Keeper claimed to have done: and it was then at least incumbent upon the Keeper to consider carefully the other possibilities available.
As it was, the approach of the Keeper had been one of too rigid an adherence to the principle that the northern and southern boundaries must be used to fix, respectively, the northern plot (Plot 5) and the southern plot (Plot 3) and thus to place the "floating strip" somewhere between Plots 5 and 3: when it must have been clear to the Keeper that that was never the intention of the granter of the three Dispositions. When asked to justify the Keeper's decision to place the "floating strip" precisely between Plots 3 and 4 Mr Cogle had conceded that that approach was not "scientific" but pragmatic. The result, Mr Anderson submitted, was to create a race between the Pattersons and the Conns to the Executrix of Mr Dykes to obtain a conveyance of the "floating strip" thus arrived at. That was unreasonable. The Keeper in making his decision had not solved the problem but had exacerbated it.
For the Keeper, counsel submitted that the appellants were not entitled to have the Register rectified until they could shown an inaccuracy in the Register. He accepted that in Brookfield the Tribunal had taken the correct view in saying that they must assume a broad approach in construing that word. However in Brookfield there had been a clear inaccuracy. In the instant case the Keeper had reached a decision to locate the "floating strip" in a particular place. That, he submitted, was not an "inaccuracy".
When the appellants applied to the Keeper to have Plot 3 registered, the Keeper had had to make a decision as to whether there was sufficient information contained in the application to enable him to identify the boundaries of Plot 3. The Keeper's duty in that regard is set out in section 4 of the Act which is in the following terms:-
"4(1) Subject to subsection (2) below, an application for registration shall be accepted by the Keeper if it is accompanied by such documents and other evidence as he may require.
(2) An application for registration shall not be accepted by the Keeper if -
(a) it relates to land which is not sufficiently described to enable him to identify it by reference to the Ordnance Map …".
Mr Cogle had given evidence as to how the Keeper went about deciding, in terms of section 4, whether or not to accept an application. His evidence and that of Mr Ross made it plain that the Keeper's discretion had been properly exercised and that there was sufficient information in the Disposition in favour of the appellants to allow Plot 3 to be identified by reference to the Ordnance Map.
That Disposition and the Dispositions of Plots 5 and 4 had both deed and location plans attached to them. The three location plans could be compared with the Disposition in favour of Mr Dykes and in particular with the deed plan attached to that Disposition, which had clearly been taken by tracing from the Ordnance Map. It was clear beyond peradvanture that the plot conveyed to the appellants was located (by reference to its southern and western boundaries) at the southwest corner of Mr Dykes' estate and accordingly the Keeper was fully justified in plotting the appellants' property from the south.
The same considerations arose in connection with the registration of Plot 5 - save that in that case the relevant fixed boundaries were the north and west boundaries of that plot. All that was needed for the registration of Plot 5 had again been available and the Keeper had again acted reasonably in plotting the boundaries of Plot 5 from the north.
That left the Keeper with the difficulty of the floating rectangle conveyed by the Disposition in favour of Mr and Mrs Conn, for Plot 4. Counsel submitted that whatever the Keeper did with the problem represented by that floating rectangle was bound to be less than wholly satisfactory: but that was because the conveyancing was imperfect. The fact that an unconveyed strip of ground would, whatever solution was applied, remain was not the fault of the Keeper.
The Keeper had thus been put in the position of having to make a choice - either of rejecting the Disposition of Plot 4 as inadequate in terms of section 4; or of using his discretion to delineate Plot 4 in accordance with the other material which he held. If the application to register Plot 4 had come to the Keeper in isolation it would have been difficult or indeed impossible for the Keeper to accept it: and the application to register Plot 4 would have been rejected and returned to the applicants with a requisition to supply better particulars of the boundaries of that plot.
The evidence of Mr Cogle was that where possible the Keeper would strive to accept applications because if he did not do so as many as 20-25% of deeds submitted for registration would be rejected. The Keeper tried, in the public interest, to avoid that outcome.
In this case what it came down to was that Plot 4 required to be plotted in accordance with the information available to the Keeper and that at a time when it was clear that a dispute had arisen between the proprietors of Plots 3 and 4. In his submission what the Keeper had done was reasonable in the light of the information available to the Keeper, including the information which the Keeper had about the dispute between the Pattersons and the Conns.
The appellants sought to say that that was not a proper exercise by the Keeper of his discretion because the Keeper had rejected it of hand the idea that the "floating strip" might appear either on the northern or southern extremes. However that was not, on the evidence, the position of the Keeper - it was plain from what Mr Cogle had said (and perhaps less plain from what Mr Ross had said) that such a possibility had been considered: but ultimately rejected for the good reason that there was insufficient information available to enable Plots 5 and 3 to be located and extending respectively to the northern and southern boundaries of Mr Dykes' estate.
Accordingly the question was whether the "floating strip" should occur between Plots 3 and 4: or between Plots 5 and 4. But the only reasonable way to proceed was to position it between Plots 3 and 4 as it was the respective proprietors of those plots who had an interest in contending for that "floating strip" - only they had the possibility of benefiting from it. If the Keeper had ruled that the "floating strip" occurred between Plots 5 and 4 then that could not have benefited the appellants - they would then have been deprived of the opportunity of ever gaining that strip. As it was, because of the way in which the Keeper had exercised his discretion, the appellants did have a "live" interest in the matter - they could have come by a title to the "floating strip" either by negotiation with the Conns: or by getting a conveyance from Mr Dykes' Executrix.
As to Mr Anderson's submission that no problem would have arisen if all the measurements had been taken from the north, with the result that the "floating strip" would have been pushed to the southern extreme, Mr Dewar pointed out that while that might suit the appellants it could hardly be called equitable having regard to the interests of Mr and Mrs Conn.
In terms of section 5 of the Act the Keeper is obliged to complete registration by making up a Title Sheet for the interest in land in question. His precise duties in relation to the compilation of the Title Sheet (of which the Land Certificate is a duly authenticated copy) are set out in section 6(1) of the Act. The Keeper is thereby required to make up and maintain a Title Sheet by entering therein inter alia "a description of the land which shall consist of or include a description of it based on the Ordnance Map".
The Sasine Register depends upon written descriptions, sometimes supplemented by a plan. In land registration the converse is the case. The Title Plan is the principal means of identifying the subjects and, in the majority of cases, any written description is limited to a simple statement of the postal address. As is stated in the Registration of Title Practice Boo, "the Keeper, when preparing Title Plans, will not, in the majority of cases, include either boundary or area measurements. In some cases, however, he will do so, for example to expand a description where details of a particular boundary will not be clear from the Title Plan, or to tie down the location of particular subjects in relation to a fixed point on the Ordnance Map". The Practice Book also explains that "the Keeper will, after examination of the titles and other evidence produced, [our emphasis] and provided he is satisfied, prepare two identical plans, one to be used as a Title Plan, which is retained in the Department, and one to be used as a Certificate Plan, which is included in the Land Certificate issued to the applicant on conclusion of registration." He uses the largest available scale. Mr Cogle's evidence confirmed that practice.
The Act makes no mention of guarantee of boundaries. The terms of section 12 however in effect do guarantee that the Keeper will indemnity against loss suffered because he has rectified or refused to rectify the Register (section 12(1)(a) and (b)) or because there is "an error or omission in any land or charge certificate or in any information given by the Keeper in writing …" (section 12(1)(d)). As the Practice Book puts it, "the Keeper does not guarantee that a property boundary will remain forever inviolate. A proprietor requires to maintain possession …". Prescription can operate against a registered proprietor and the Register can be rectified against a proprietor who is not in possession (section 9(1) and (3)) - so that in the unlikely event of the Keeper having issued Land Certificates to two adjoining proprietors with an overlap which comes to light he cannot guarantee that each will remain the owner and the Register will require to be rectified. Whoever can then prove a loss attributable to the rectification will be entitled to indemnity. Here however there is no question of an overlap: on the contrary there remains, in everyone's estimation, an unconveyed strip of ground.
The Ordnance Map on which the Keeper depends may be lacking in up-to-date information regarding, for example, a newly developed housing estate. In the instant case, where registration is occurring for what is in effect virgin, undivided, land the Ordnance Map is of little or no help. The Keeper can, and did, ask for a survey. The object of such a survey is, according to the Practice Book, "to establish the true position as regards the physical boundary". In the very peculiar circumstances spoken to by Mr Patterson in his evidence, where boundary markers were being moved consistently, that survey cannot really be regarded as being of conclusive assistance. Here the problem does not relate to physical boundaries shown on the Ordnance Map but arises because the parties dispute the precise location of a boundary at the very time when one of them was, as it were, in the midst of erecting a physical boundary there.
In the submissions made to us there was not, as there was in Brookfield, any extensive discussion of the nature of the Keeper's duties. In Brookfield the Keeper characterised his duties as being "administrative" in nature. His duties are certainly different from those which are imposed on the Chief Land Registrar in England. Under section 13(b) of the Land Registration Act 1925 the English Registrar has jurisdiction to hear and determine objections subject to an appeal to the court. Under section 14 the English Registrar can order evidence on affidavit and under section 15 he can order productions. As Mr Cogle put it, the Chief Registrar in England has judicial functions, including power to require the attendance of witnesses and the production of documents, specific powers of compulsion which the Keeper did not have.
In Brookfield the Tribunal decided that those limitations on the powers of the Keeper did not allow the Keeper to say that he had no duty to investigate the particular matter at issue there (namely the enforceability of certain land obligations) and in the context of that particular issue it was said that if the Keeper's "sole role was simply to register whatever was presented to him the register would become worthless".
However in Brookfield the Tribunal also accepted that "it would be wrong to state the Keeper's duty to investigate in absolute terms. One essential difference between the Scottish and English systems of land registration is that the Scottish system does not involve any enquiry into possible opposing interests. These can, however, be clarified in due course on registration of the neighbouring interests either by a qualification of indemnity or, if necessary, by rectification of the original interest under section 9(3) - provided this does not prejudice the proprietor in possession. In England, in contrast, the general practice is to describe properties by reference to general boundaries (ie the exact line is undetermined). It is also possible, however, [in England] to seek registration with fixed boundaries, but in that case the Chief Land Registrar must notify adjoining proprietors and, if objections are taken to the proposed registration, exercise his judicial functions to adjudicate on any resulting dispute. There are, however, no such provisions in Scotland and the Keeper has no power to seek documents or information from neighbours."
Here, although the Keeper's witnesses did not put it this way, the Keeper appears again to have interpreted his duties as mainly passive: but he does claim to have taken into account all the circumstances known to him. The Keeper said that he did not simply consider the three Dispositions before him but had regard to all the other circumstances, including in particular the dispute between the Pattersons and the Conns. It is clear that although it is said in section 4(1) of the Act that the Keeper shall accept an application for registration, that is only "if it is accompanied by such documents and other evidence as he may require". In terms of Rule 12 of the Land Registration (Scotland) Rules 1980 (as amended), if the applicant fails to comply with such a request he does so at his peril for the Keeper may then either complete registration but exclude indemnity or simply reject the application. The Keeper interpreted that as giving him in this case a degree of discretion and it is clear to us that the Act and the Rules made under the Act do indeed provide the Keeper with the power to insist on production of other evidence besides that which can be found in the Dispositions themselves and thus to play a relatively active, as opposed to passive, role in deciding the whereabouts of boundaries.
In the Registration of Title Practice Book various situations in which the Keeper might find difficulty in registering boundaries are given as worked examples. The Practice Book comments that those examples "illustrate a simple boundary discrepancy of the kind that under present practice may never come to light at all. Under Registration of Title, however, material discrepancies of this kind will come to light sooner or later …" and stresses that "the Keeper will never himself trigger off a boundary dispute by contacting the adjoining proprietor. Material discrepancies can, of course, affect more than one boundary and, indeed, may have a cumulative effect on a number of properties. Where this situation arises, the Keeper's advice should most certainly be sought. It is, however, hoped that under Registration of Title these situations may be more easily dealt with, for, use of section 19 procedure apart, there are two other features of Registration of Title which may assist. In the first place, it is hoped that the facility of submitting for approval by the Keeper an estate layout plan will be used when appropriate and, if it is, this should greatly reduce the risk of cumulative errors. Secondly, it is said that a system of Registration of Title has curative powers and one can envisage situations where the Keeper himself may feel able to assist".
That reference to an estate layout plan is of no assistance here. The development promoted by Mr Dykes was of too small a size for that facility to apply. Nor do the particular circumstances of this case fall within any of the "worked examples" set out in the Practice Book. Also, as the foregoing extracts from the Practice Book indicate, the Keeper accepts as a guiding principle the importance of upholding boundaries "as possessed". Again that is not a factor in this case when no physical boundaries had been developed at the material time. As already noted, there is nothing in the Ordnance Map or on the ground which really helped the Keeper. In short, the particular circumstances of this case do not appear to fall within the class of cases for which the Keeper has got a ready made answer - or at least one which he has, via the Practice Book, made known to the conveyancing profession, although it seems to us that this very problem is probably one which the Keeper could expect to encounter on many occasions, with any newly developed property, until boundaries are put up and then fortified by possession.
Mr Cogle, whose evidence largely endorsed what is said in the Practice Book, explained that as a matter of policy what the Keeper would look for was a "conveyancing answer". What he meant by that seemed to be either that the parties, or one of them, should go to Mrs Dykes to obtain a supplementary conveyance or alternatively that they should come to a "compromise". What Mr Cogle meant by compromise is perhaps not what other people would mean by compromise. He said that by that he meant that he wanted both the contending parties to go to their solicitors and he would have advised the solicitors to try to avoid litigation. He agreed that a compromise usually meant that each party would have had to give up part of his position: and that was what usually happened, resulting in a section 19 Agreement. However no compromise has been forthcoming in this case.
As already noted, both parties invited us to approach this matter on the basis that the word "inaccuracy", as used in section 9 of the Act, falls to be interpreted broadly. In Brookfield the Tribunal said that the word should be construed "so as to include any incorrect or erroneous entry in or omission from the register." One may readily envisage a case in which the inaccuracy complained of takes the form of an entry in the register which does not, on the face of it, accurately reflect the information contained in the documents and other evidence presented to the Keeper. In such a case it is obvious that the task of the Tribunal will be to consider the terms of the documents and other evidence presented to the Keeper and to determine whether the register contains an accurate reflection of those terms.
An inaccuracy may also take the form of an omission from the register when the Keeper refuses to register land which is the subject of an application for registration on the ground that the land is not sufficiently described to enable him to identify it by reference to the Ordnance Map. In such a case the appellant will be likely to argue that the land was sufficiently described to enable the Keeper so to identify it. Conversely, the registration of a piece of land may be challenged on the ground that the land was not sufficiently described to enable the Keeper to identify it by reference to the Ordnance Map. In both of these latter examples the Keeper will have made the decision to register or not to register in the exercise of the discretion conferred on him by section 4(20(a) of the Act. Parliament has given him the task of deciding whether land is sufficiently described to enable him to identify it by reference to the Ordnance Map. In that situation, the ability of the Tribunal to interfere with the Keeper's exercise of his discretion in the performance of his administrative function is in our view limited by the principles established in the well known line of cases which followed and elaborated upon the dictum of Lord Green MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223.
The appellants' contention was that the Keeper had failed to exercise his discretion correctly in relation to the registration of Plots 3 and 4 and, in particular, in relation to their positioning in relation to one another. In our view that contention was misconceived in the present case for this reason. As we understood it, the appellants did not suggest that Plot 3 was not sufficiently described in the documents and other evidence presented to the Keeper, to enable him to identify it by reference to the Ordnance Map. On the appellants' argument, therefore this was a case of erroneous registration involving the first type of inaccuracy, to which we refer above, and the question of the exercise of the Keeper's discretion does not arise. On the other hand, the validity of the exercise of his discretion is very much in issue in relation to the registration of Plot 4. But we are asked to rectify Plot 3, not Plot 4.
Notwithstanding this, a considerable part of Mr Dewar's submissions was taken up with explaining the way in which the Keeper had approached the registration of Plot 4. He impliedly accepted therefore, as we certainly think is correct, that in all the circumstances, including the circumstance that all three Dispositions were available for consideration by the Keeper at the one time, the registration of all three Plots, 3, 4 and 5, was essentially part of the same exercise. As already noted, we have no doubt that in the circumstances the Keeper should have considered all three Dispositions together before issuing a Land Certificate for any of these three plots.
The Tribunal accept that if Plot 3 had been registered in isolation then the information available in the Disposition of Plot 3 would have entitled the Keeper to register that Plot as he did. That would clearly be so if, for example, an application had been made to register Plot 3 long before any buyer was found for Plot 4. The same can be said of the registration of Plot 5. However we have some difficulty in understanding why the Keeper should have chosen to act as he did in relation to Plot 4 - the classic "floating rectangle". Whereas he said in relation to Plots 3 and 5 that he was entitled to, and in fact did, take the applications to register those plots in isolation, what he said in relation to Plot 4 was that it was possible (and desirable in the public interest) to register Plot 4 not in isolation but, essentially, by referring to the other evidence available to him.
There is no doubt that the safe course for the Keeper would have been to reject the application to register Plot 4 as containing insufficient information and to call for more information. Indeed anyone reading the Practice Book might be confused as to just what the Keeper's attitude is likely to be. In one part of the Practice Book, commenting upon section 4, it is somewhat bleakly said that the Keeper will simply reject an application for which there is not sufficient information. However there is a further passage in the Practice Book confirming what Mr Cogle said, namely, that while there are cases where the Keeper "may" reject applications because of insufficient information the Keeper tries not to reject them. Specifically the Practice Book says that "even where" there is a deed plan, it may be no more than a floating rectangle, quite unrelated to any identifiable features on the ground. In this case, additional information may be required to enable the Keeper to locate the subjects precisely by reference to a find point on the Ordnance Map".
The fact that the Keeper chose to register Plots 3, 4 and 5 as he did and that he did not feel obliged to reject the application to register Plot 4 without further information was explained by Messrs Ross and Cogle, in answer to a series of particularly leading questions by counsel, to be related principally to the ongoing dispute between the Pattersons and the Conns. It was said that if the Keeper acted otherwise then the appellants would have been deprived of the opportunity of ever gaining the "floating strip". We do not know how compellingly the appellants' case was put to the Keeper in the correspondence which was before the Keeper prior to registration: but it was certainly put to us very forcefully that what the appellants were contending for was that their boundary should not have been measured from the south but from the north: and that the "floating strip" should be positioned to the south of their ground. It was not therefore, in their mind, a matter of the appellants being required to contend for a "floating strip" between Plots 3 and 4 but a question of where, on a proper interpretation of the conveyances presented to the Keeper, the "floating strip" was located.
Both parties agreed that it was defective conveyancing which brought about the result that there would be an unconveyed strip. The Keeper took a very positive view as to where that "floating strip" should then be placed. The logic of his position appeared to depend upon taking the registration of all three plots individually: and in particular deciding that Plots 3 and 5 could, and should, be registered as they were - in isolation and simply from the information contained in the Dispositions of those two plots including the deed plans as compared with the Ordnance Map.
Mr Cogle described the Keeper's decision as "pragmatic" but not arbitrary. The appellants took another view: which, particularly if the evidence of Mr Patterson's prior negotiations with Mr Dykes were to be included, might be thought to lead to a more satisfactory and natural conclusion. However we have said that the Keeper was right to exclude that evidence.
Considering the information available in the Dispositions, without considering the other available evidence, what would be the position? In the ordinary case each of the Dispositions might be expected to say that the boundaries touch - for example, one would expect to find a verbal description saying that Plot 3 was bounded "on the north by Plot 4 …". However in the instant case the verbal descriptions in the three conveyances say nothing of the kind. They simply describe each plot as comprising "ALL and WHOLE that plot of ground in the Parish of East Kilbride and County of Lanark extending to … square metres or thereby shown and delineated with the boundaries coloured red and marked [Plot 3/4/5] on Plan A annexed". Plan A was in each case a block plan showing details of each plot. That description was supplemented by reference to Plan B which was a location plan. The purpose of referring to Plan B was principally to explain a servitude right of access to the plots of ground.
The Keeper, having looked at these three Dispositions, felt able to say positively that when it came to registering Plot 4, that it must be bounded immediately on the north by Plot 5. He apparently felt able to say equally positively that Plot 4 was not, on the other hand, immediately bounded on the south by Plot 3. The Keeper's witnesses were adamant throughout their evidence that it was correct for the Keeper to have linked Plot 4 in this way with Plot 5, measuring Plots 5 and 4 from the north, as opposed to linking Plot 4 with Plot 3, by measuring Plots 3 and 4 from the south.
That seems to us to ignore the evidence in the location plans, already noted, which does tend to show that all three plots were indeed intended to be directly contiguous. It does on the face of it fly in the teeth of that evidence that the Keeper should be so definite that there should be a gap between Plots 3 and 4. In short we think that the Keeper should have been able to establish, as the appellants submit, not from the wealth of circumstances put to us by Mr Patterson in evidence, but from the fact that the location plans are as they are, that the boundaries of all three plots were intended by Mr Dykes to be contiguous.
The Tribunal were also strongly attracted by Mr Macfarlane's argument that the Keeper should measure from one known point. While the Keeper's witnesses spoke to the need to relate information contained in the Dispositions to features shown on the Ordnance Map, in relation to individual plots, they did not appear to conceive that there was any requirement to achieve consistency by relating plot measurements to one single known feature or point in Mr Dykes' title. Mr Ross was quite adamant that it was appropriate to fix the boundaries of Plot 5 by measuring from the north: and the boundary of Plot 3 by measuring from the south.
It seems plain that such an approach carries with it a real risk of inconsistency. As already commented, the fact that land registration is a map based system will emphasise such inconsistencies in a way which Sasine registration has not done. That the Keeper's practice should not, in such cases, incorporate any commitment to a common starting point does in our opinion, with the benefit of retrospect, tend to the result that there will or can be the possibility of inconsistencies of the kind which the estate layout plan is designed to avoid. Why it should be thought irrelevant to demand such consistency simply because the "estate" to be developed is less than a certain fixed number of houses is hard to understand.
The Keeper's interpretation of the material presented to him led him to a certain decision, namely to place the "floating strip" between Plots 3 and 4. Such a decision was undoubtedly pragmatic and indeed, in the circumstances narrated above, a bold one. The question is whether it can be called entirely arbitrary or unreasonable: and whether it has resulted in an inaccuracy in the Register.
In Brookfield, looking at section 25 of the Act, the Tribunal said that in effect the section gives the Tribunal "a declaratory function" in relation to registration of title - unlike the Tribunal's jurisdiction under the Conveyancing and Feudal Reform (Scotland) Act 1970, under which the Tribunal have had to say that they have no substantive declaratory jurisdiction regarding the enforceability of land obligations. However we have come to the view that in the exercise of that declaratory function it cannot be proper for the Tribunal to be put in the position of overseeing in detail every decision of the Keeper. While it must certainly have been the safe course for the Keeper to reject Plot 4, for the reason of insufficient information, we do not think that the action of the Keeper can be said to have been inconsistent with the principles and practice spoken to by Mr Cogle and confirmed by the Practice Book or that such principles are inherently flawed or unreasonable. Before we would be prepared to override the Keeper's decision and to substitute a different interpretation of the material which the Keeper considered, it would be necessary for us to be convinced that the Keeper's interpretation was entirely without foundation: or that his decision amounted to a wrongful exercise of his discretion or showed some evidence of partiality which had resulted in an inaccuracy.
There was produced a letter from the Keeper to Mrs Dykes' solicitors identifying the precise whereabouts of the "floating strip". In effect that appears to have given Mrs Dykes the Keeper's imprimatur for saying that the "floating strip" did in fact occur between Plots 3 and 4. It may be that to some extent therefore this influenced or encouraged Mrs Dykes to believe that she was entirely correct in saying that the defective conveyancing could, and could only, be rectified by conveying that particular piece of ground. She then granted a supplementary conveyance, by way of a Feu Disposition, in favour of Mr and Mrs Conn. We were told that that supplementary conveyance was being held in abeyance pending the outcome of the Tribunal's decision but the Keeper had already issued Land Certificates for each of Plots 3, 4 and 5, the result of which was that the floating strip had already been "positioned" by the Keeper where he said, in his letter to Mrs Dykes' solicitors, that it was.
It was put to us that the way in which the Keeper dealt with the matter was tantamount to giving r and Mrs Conn an unfair start in a race to Mrs Dykes to obtain a supplementary conveyance. However that is not entirely so. The letter of 3 May 1991, already referred to, was sent by the Keeper not to either of the contending parties, the appellants or Mr and Mrs Conn, but to Mrs Dykes' solicitors. It was equally open to either the appellants or to Mr and Mrs Conn to go to Mrs Dykes to get a supplementary conveyance - in effect to acquire the ground which everybody agreed had remained unconveyed. The fact that Mrs Dykes chose to favour Mr and Mrs Conn as she evidently did might or might not be evidence of what Mr Dykes' original intention was: but it is clear that in the end of the day Mrs Dykes did of her own free will impose the very result for which the Keeper and Mr and Mrs Conn contended.
We have asked ourselves the question - what would have been the position pre-Land Registration, in a Sasine Register situation? We have come to the view that the result would not have been very different. There is no doubt that the issues in this case came into sharp focus because of the fact that Land Registration is a map based system: but the very same problem would, on a comparison of the conveyances of Plots 3, 4 and 5, have emerged in a Sasine Register title. The appropriate method by which the appellants might then have resolved the question of their precise northern boundary would have been to approach either Mr and Mrs Connor Mr or Mrs Dykes. This, broadly, was what Mr Cogle said the Keeper had been attempting to achieve. To what extent the Keeper was explicit in directing the contending parties to that conclusion we are unable to say, not having seen all the details of the relevant correspondence. Whether or not the Keeper made his position known to the parties, the solution to what the appellants conceived to be their problem was one which was susceptible of a conveyancing answer: and has in the end of the day been solved by such an answer.
It is certain that if the Tribunal found Mr and Mrs Patterson's northern boundary to be where they said it was and if they were also allowed to have their south boundary marching with the Ontario Park boundary then the result would be that they would end up with a greater area of ground than that described in the Disposition granted by Mr Dykes in their favour. As their counsel pointed out that was not their position. The appellants contended that the floating strip falls to the southern end of Plot 3. The evidence of Mr Patterson was that the southern boundary was difficult to locate. It was equally the evidence of Mr Patterson that the northern boundary of Plot 5 was quite clear. In arriving at our decision we have taken into account the fact that this evidence was not confirmed by our site inspection. The northern boundary in our opinion is perhaps more difficult to locate precisely than the south boundary: but our site inspection gave us the impression that the south boundary is in no serious doubt. Mr Patterson in his evidence said that Mr Dykes was in doubt as to where that southern boundary lay. In fact the Disposition in favour of Mr Dykes described his south boundary (360 feet 6 inches in all) as measuring "partly along the centre line of a hedge and of a post and wire fence and partly extending along the line indicated" on the attached plan. That taken with the physical circumstances seen on the ground makes it evident to us that the southern boundary was indeed the line of the stobs, which could still clearly be seen, and the fence which presumably existed at one time separating the southern part of Plot 3 from the adjoining ground at Ontario Park. The appellants' position was that the Keeper should have settled upon the northern boundary of Mr Dykes' title as the starting point for the measurement of all three plots. We are by no means convinced that that is a correct assessment of the situation. It would not only have been equally plausible to select the southern boundary as the starting point for these measurements: but in our view more reasonable and rational to start from that point.
There was some hint in the proceedings that the appellants appreciated, when they were building their house, that they may have built it too far north. The evidence is consistent with a dawning realisation of that kind: and it was certainly then that Mr Patterson, emulating Mr Dykes, took it upon himself to re-position the boundary markers. It seems not improbable that that realisation matured once Mr and Mrs Conn had built their house in a position which would obstruct the easy access to the appellants' garage. Certainly the practical consequences are clear - as the site inspection revealed. There will be very little room for the appellants to manoeuvre a car into their garage. Mr and Mrs Conn do not have the same problem. Their garage is entered head on from the access roadway. One would have thought that with normal good neighbourliness the appellants' problem could have been resolved to the mutual satisfaction of the parties.
However it is no more possible for the Tribunal to impose a compromise than it was for the Keeper. Our only function is to decide whether there is any inaccuracy in the Register in respect of the entry relating to 7 East Milton Grove, Westwood, East Kilbride (Plot 3) and in all the circumstances we are unable to say that there is. Accordingly, we refuse the appeal. The Tribunal reserve all questions of expenses, certification of counsel and expert witness.