Heritable property - Registration of title - Rectification of Register - Inaccuracy in Register - Boundary change on digitisation of map base - Proprietor - Possession of small part of river - Prejudice - Land Registration (Scotland) Act 1979, section 9 - Ordnance Survey Act 1841, section 12

Statutory interpretation - Words and phrases - 'Proprietor' - 'Possession' - 'Prejudice' - 'Prejudice a proprietor in possession' - Land Registration (Scotland) Act 1979, section 9(3)

Tesco Stores Ltd v The Keeper of the Registers of Scotland and Safeway Stores plc
5 May 2001
LTS/LR/1999/2 & 3

Subjects consisting of a disused mill site were correctly shown in the Register bounded, at the material point, by the east edge of a foot bridge and then the centre line of a river. When the map base was changed as a matter of internal administration by the Keeper's staff, the latter boundary was inadvertently changed to lie to the south of the true centre line. The Register was held electronically and the mistake was unnoticed. When Safeway subsequently acquired title to the subjects, the disposition in their favour referred only to the registered title by number. They were unaware of the mistake and assumed that their title extended only to the centre line. To allow the desired development of the subjects it was necessary to replace the foot bridge with a road bridge. Space was very restricted and the relevant boundary was a critical restraint. Safeway made plans for the development on the assumption that their boundary was the centre line. A competitor company, Tesco, had obtained an a non domino title to a small plot consisting mainly of the alveus of the river bounded on the west by the said edge of the foot bridge and on the north by the centre line. The title had been held in the Sasine Register. When Tesco applied for First Registration in the Land Register, it was registered with the boundary adjusted to match the registered position of the south boundary of the adjacent Safeway subjects. When Tesco first learned of this, this was not established.

In course of the detailed planning of the road bridge, Safeway realised that their registered title extended beyond the centre line. They then relied on this and submitted plans to the Roads Authority and Planning Authority which used the extra space and showed the new boundary line. When Tesco realised that Safeway were asserting title beyond the centre line, they arranged to have markers placed at the centre line asserting their ownership of land to that boundary. They then attempted to persuade the Keeper to rectify the two titles. In correspondence with the Keeper, Safeway asserted that they were in possession. The Keeper considered the competing assertions and decided that he was unable to rectify the Safeway title under the provisions of section 9 of the Land Registration (Scotland) Act 1979 because none of the powers which would enable him to do so where rectification would "prejudice a proprietor in possession" were applicable. He agreed to rectify the Tesco title to show the relevant boundary as the centre line but with an exclusion on indemnity and a cross reference to the Safeway title. Tesco appealed to the Lands Tribunal and also made an application to the Tribunal for rectification of the Register. It was agreed that nothing turned on the distinction. For Safeway it was contended that possession of the registered subjects as an interest in land was sufficient to bring them within the protection of section 9(3) even when it was admitted that they had had no physical possession of the disputed area. In any event, it was submitted that their actings in relation to the subjects as a whole and their public assertion of ownership of the disputed subjects was adequate possession within the meaning of the Act. Tesco contended that "possession" meant possession of the land in dispute and, in any event, that "prejudice" required consideration of the whole circumstances. As Safeway had not expected to acquire title to the south of the centre line they would not be prejudiced by having the boundary corrected. In any event it was argued that as the mistake had arisen as a result of mapping activities Tesco were protected by the provisions of section 12 of the Ordnance Survey Act 1841.

Held (1) the argument based on the 1841 Act was irrelevant because the change in title was attributable to the provisions of the 1979 Act and not to the exercise of powers under the 1841 Act; (2) that although Safeway had been registered as proprietors of the relevant land in error, they were entitled to be regarded as "proprietors" until the Register was rectified; (3) that the proper focus of the provision for rectification was the land itself and possession of the registered interest as a whole was not sufficient to establish possession of a particular area when it did not form part of a natural unit of possession with the rest of the subjects; (4) the extent of a particular registered interest was irrelevant to identification of a unit of possession; (5) there was no sufficient evidence to justify an inference of possession of the disputed land when there had, admittedly, been no direct physical possession of it; (6) rectification to show that Safeway no longer had title to land which had an established value to them, would have sufficed to establish "prejudice" within the meaning of the Act as there was no justification for looking at the wider circumstances and the provisions for indemnification did not come in to play at that stage.

List of cases referred to:

Brookfield Developments v The Keeper 1989 SLT (Lands Tr) 105
Dougbar Properties Ltd v The Keeper 1999 SC 513
Duke of Richmond v Earl of Seafield 8 MacP 530
Kaur v Singh 1999 SC 180
Kingsalton Limited v Thames Water Developments Ltd (Court of Appeal 19 January 2001)
Scottish Discount Co v Blin1985 SC 216
Shorts Trustee v The Keeper 1996 SC (HL) 14

See full decision:  LTS/LR/1999/2 & 3