OPINION

John Higgs and Kirsten Higgs
The Keeper of the Registers of Scotland
Roger Harris and Laura Harris

1. This is an application under sec 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) which arises, principally, from a mistake made by surveyors acting for the sellers when Auchengool Farm, in the County of the Stewartry of Kirkcudbright, was broken up into four parts in the year 2000. That mistake has deprived the applicants of land which they were very clearly intended to own and it is with great regret that we have found ourselves unable to cure its effects in the decision which follows.

2. The farm was divided into four parts and three of these – Auchengool Farmhouse, Auchengool Cottages and Auchengool Farm (some fields) – were sold, while the remainder (“the retained subjects”) remained in the ownership of Arthur Joseph Corrie, Hazel Margaret Corrie and Alastair Joseph Corrie. Appendix 1 shows the split.

3. Auchengool Farmhouse was bought by John Colson Higgs and Mrs Kirsten Inge-Lise Higgs, the present applicants. The Keeper of the Land Register (“the Keeper”) has explained her position vis a vis the referral in a written submission (denying any inaccuracy in the Register) but has taken no further part in proceedings. Likewise the owners of Auchengool Cottages, Roger and Laura Harris, indicated their position in writing (opposing rectification so far as their boundary is concerned but being willing to negotiate) but, beyond Mr Harris and his father attending the inspection carried out on 7 February 2018, did not press their opposition to the point of appearing at the hearing of the application. Nothing was heard from the other proprietors potentially affected but the applicants have produced affidavits from them confirming their agreement with what the applicants propose. Accordingly, when we heard the application on 14 February there was no contradictor. Mr Higgs represented himself and his wife and did so to the same high standard as had characterised his meticulous preparation of their case beforehand. We should also record that, whereas the inspection was attended by Mr Craigie Marwick FRICS, as a surveyor member of the Tribunal, he being indisposed at the date of the hearing, his place was taken by Mr Andrew Oswald FRICS. However, Mr Marwick has had input into our deliberations, hence our order has been signed by him as well as Mr Oswald.

Legislation

Land Registration (Scotland) Act 1979

Rectification of the register

9. (1) Subject to subsection (3) below, 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) Subject to subsection (3)(b) below, 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.

(3) If rectification under subsection (1) above would prejudice a proprietor in possession -

(a) the Keeper may exercise his power to rectify only where-

(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;

(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;

(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or

(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;

(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies.

(4) In this section –

(a) “the court” means any court having jurisdiction in questions of heritable right or title;

(b) “overriding interest” does not include the interest of a lessee under a lease which is not a long lease.”

Land Registration (Scotland) Act 2012

11 The cadastral map

(4) The cadastral map may contain such other information as the Keeper considers appropriate.

(5) The cadastral map must be based upon the base map.

(6) The base map is –

(a) the Ordnance Map,

(b) another system of mapping, being a system which accords with such requirements as the Scottish Ministers may, by order, prescribe, or

(c) a combination of the Ordnance map and such other system.

(7) On the base map being updated, the Keeper must make any changes to the register which are necessary in consequence of the updating.

65 Meaning of “inaccuracy”

(1) A title sheet is inaccurate in so far as it –

(a) misstates what the position is in law or in fact,

(b) omits anything required, by or under an enactment, to be included in it, or

(c) includes anything the inclusion of which is not expressly or impliedly permitted by or under an enactment.

(2) The cadastral map is inaccurate in so far as it –

(a) wrongly depicts or shows what the position is in law or in fact,

(b) omits anything required, by or under an enactment, to be depicted or shown on it, or

(c) depicts or shows anything the depiction or showing of which is not expressly or impliedly permitted by or under an enactment.

(3) The cadastral map is not inaccurate in so far as it does not depict something correctly by reason only of an inexactness in the base map which is within the published accuracy tolerances relevant to the scale of map involved.

82 Referral to the Lands Tribunal for Scotland

(1) A person with an interest may refer a question relating to –

(a) the accuracy of the register, or

(b) what is needed to rectify an inaccuracy in the register,

to the Lands Tribunal for Scotland.

(2) The Lands Tribunal must, on determining the question, give notice to –

(a) the applicant,

(b) any other person appearing to them to have an interest, and

(c) the Keeper.

(3) This section is without prejudice to any other right of recourse, whether under an enactment or under a rule of law.

SCHEDULE 4

Transitional Provisions

Bijural inaccuracies

17. If there is in the register, immediately before the designated day, an inaccuracy which the Keeper has power to rectify under section 9 of the 1979 Act (rectification of the register) then, as from that day –

(a) any person whose rights in land would have been affected by such rectification has such rights (if any) in the land as that person would have if the power had been exercised, and

(b) the register is inaccurate in so far as it does not show those rights as so affected.”

The underlying conveyancing

4. Before narrating Mr Higgs’s submissions it is necessary to say something about the way the conveyancing of the break-up of the farm was structured. Auchengool Farm was, pre-division, held on a single Sasine title. The division triggered first registrations for the constituent parts, the applicants’ Land Certificate, title number KRK3018, being dated 7 February 2001. It was done as a scheme governed by a Deed of Declaration of Conditions which was incorporated into each of the split-off titles and, ultimately, into the Burdens Section of each of the Land Certificates in favour of the four sets of disponees. But the Deed of Conditions did not just contain burdens: it was also referred to in the various dispositions for a fuller description of the subjects being disponed. Thus in the disposition in favour of the applicants the subjects being conveyed are described as:

“(FIRST) ALL AND WHOLE that part of the farm and lands of Auchengool, lying in the parish of Rerrick and in the administrative area of Dumfries and Galloway Council (but for the purposes of registration of writs in the County of the Stewartry of Kirkcudbright) which subjects include the farmhouse of Auchengool and its steading and relative garden and other ground, extending in all to twenty three hectares and ninety one decimal or one hundredth parts of an hectare or thereby (23.91 hectares) (otherwise 59.09 acres or thereby) bounded on or towards the south by the public highway following the southmost edge of the verge, on the east by the eastmost edge of the west verge of the common farm track hereinafter referred to shaded orange on the Plan annexed and signed as relative hereto, between the Points C E thereon, and from Point E on said plan, generally in a northerly direction, then generally in a westerly direction and then generally in a southerly direction, bounded on or towards the east partly by subjects described in a Deed of Declaration of Conditions executed by us and intended to be presented for registration in the Division of the Land Register of Scotland applicable to the County of the Stewartry of Kirkcudbright of even date herewith as “Auchengool Cottages”, and partly by subjects described in said Deed of Declaration of Conditions as “Auchengool Farm” and “the retained subjects”, then bounded on or towards the north by “Auchengool Farm” and “the retained subjects” both as so defined, and then on or towards the west by the “retained subjects” as so defined, all as said subjects hereby disponed are delineated in black on the said plan annexed and signed as relative hereto, and the detailed boundaries whereof are more particularly specified in and provided for in terms of said Deed of Declaration of Conditions and (SECOND) the right in common along with the proprietors whomsoever of the said subjects Auchengool Cottages to the solum of the said farm track shown shaded orange between the Points C E on the said Plan annexed and signed as relative hereto; And the said whole subjects hereby disponed are so disponed together with the said farmhouse of Auchengool, the steading and all other buildings an erections thereon, the whole mines and minerals thereon and the whole trees and timber, standing, fallen or felled, and the whole general drains and water rights pertaining thereto and our whole respective rights, titles and interests, present and future therein and thereto;” [Italic added]

5. The Deed of Conditions contained the following descriptions:

“INTERPRETATION

(One) In this deed Auchengool House shall be taken to mean that part of the farm and lands of Auchengool as is delineated in red on the plans annexed and signed as relative hereto.

Boundaries

(One) The boundaries of Auchengool House shall comprise the eastmost line of the west verge of the said access road between points “C” to “D” on the said plans. The westmost boundary of Auchengool Farm shall comprise the centre line of a post and wire fence or other boundary feature running generally to the east of the said access road between the points “C” to “X”. From point “X” to point “E” the westmost boundary of Auchengool Cottages shall be the westmost edge of the eastern verge of said access road.

(Two) From point “E” to point “G” the eastmost boundary of Auchengool House shall be the centre line of a stockproof fence to be erected at the sole expense of the proprietors of Auchengool Cottages between points “E” to “G”, said fence lying generally to the east of the eastern verge of said access road in such a position that the width of the road and including verges is sufficient to accommodate the free passage of large agricultural and forestry vehicles and in any event no less than seven metres wide, and, after erection, responsibility for the maintenance of said fence shall be mutual and shared equally between the proprietors of Auchengool House and Auchengool Cottages. From points “G” to “H”, the boundaries shall be the centre line of an existing stone wall or dyke lying to the north of Auchengool Cottages and responsibility for maintenance of said dyke shall be shared equally between the proprietors of Auchengool House and Auchengool Cottages.

(Three) From point ”H” to point “L” the boundary between Auchengool House and the retained subjects shall be the centre line of such boundary feature, whether fence, hedge or wall, as exists at present and the responsibility for maintenance of such boundary feature shall be mutual and shared equally between the proprietors of Auchengool House and the retained subjects.

(Four) From point “L” to point “M” on said plans, the boundary between Auchengool House and Auchengool Farm shall be taken to be the centre line of such boundary feature, whether fence, hedge or wall as is presently situated between those points and responsibility for maintenance of such boundary feature shall be mutual and apportioned equally between the proprietors of Auchengool House and Auchengool Farm.

(Five) Between points “M” and “N” on said plans, the boundary between Auchengool House and the retained subjects shall be the centre line of a stockproof fence now erected or intended to be erected between those points at the sole expense of the proprietors of the retained subjects. Once erected, the responsibility for maintenance, repair and renewal of the said fence ... shall be mutual between the proprietors of Auchengool House and the retained subjects.

(Six) From point “N” to point “O” and from point “O” to point “P”, the boundary between the retained subjects and Auchengool House shall be the centre line of such boundary feature, whether in the form of wall, hedge or fence as presently exists and responsibility for maintenance, repair and renewal of such boundary features shall be apportioned equally between the proprietors of Auchengool House and the retained subjects.”

6. Thus there were four elements to the description of the subjects: (i) the text of the dispositive clause of the disposition quoted above, (ii) the plan annexed, (iii) the text of the Deed of Conditions and (iv) the plans annexed to it. The plan attached to the disposition (“the disposition plan”) is reproduced in Appendix 2. The plans attached to the Deed of Conditions comprise a copy of the disposition plan and a plan, on which Appendix 1 hereof is based, showing the four units into which the farm was being divided. This latter plan does not really contain anything by way of useful boundary identification, and so can be left out of account in what follows.

7. Although the application was brought about principally by the error to which we have referred, the applicants aver that their boundaries are recorded inaccurately in the Land Register at the six locations shown on the plan, Appendix 3, attached, being (i) the public road verge, (ii) the common access road west verge, (iii) the steading road boundary, (iv) the northeast corner fence line, (v) the Buchts corridor fence line, and (vi) the Lime Field corner. In summary, it is their case that the Keeper was obliged to look at the whole description of the subjects, the Deed of Conditions as well as the disposition and disposition plan, and to plot the boundaries on the cadastral map accordingly. In giving the disposition plan primacy over the written descriptions, they say the Keeper fell into error with the result that the cadastral map, and therefore the Register, is inaccurate at these six locations.

8. The Keeper’s position can be summarised by two quotations from the material produced on her behalf. The first is from a letter from Mr Brian Lavelle of the Scottish Government’s Legal Directorate to the Tribunal dated 22 August 2017, in which Mr Lavelle says:

“The Applicants took title to Auchengool Farmhouse by way of an application for First Registration … dated 7 February 2001 which proceeded upon a Disposition … [in their favour] … dated 22 December 2000. The Applicants have produced the Disposition and its plan.

The Keeper accurately reflected the terms of the underlying deed in the Applicants’ title sheet at First Registration. The written description within the deed did not sufficiently describe the subjects being transferred to enable the legal extent of the Applicants’ title to be established without recourse to the plan attached to the disposition. The Keeper had recourse to the plan attached to the Disposition to establish the legal extent being disponed.

The Keeper has not made any error in plotting the title to the Applicants’ property. … The cadastral map, and accordingly the Register, is not inaccurate in either fact or law.”

9. That makes no reference to the Deed of Conditions but an email from Mr Alan Gilhooley of the Keeper’s staff to the applicants dated 23 February 2017, produced with Mr Lavelle’s letter, does:

“With regard to the plan annexed to the said Disposition being used rather than the written description … [n]either the Disposition in your favour nor the Deed of Conditions sufficiently describes the subjects, for the description of the subjects in the deeds to take precedence over the plans annexed thereto the description would have to contain stated measurements to establish extent on its own.”

10. So, in a nutshell, what the Keeper of the time did was prefer the disposition plan to the text of both the disposition and the Deed of Conditions. The applicants accept that there is nothing inconsistent between where the Keeper drew the boundaries on the cadastral map and the boundary as shown on the disposition plan. Their argument is that the disposition plan being itself fairly crude, unmeasured as it is and with the boundary shown by a thick line, he should not have preferred it to the text in the body of the two deeds and that if he found it impossible to plot the boundaries on the basis of the verbal descriptions (with their references, for example, to fences still to erected) he ought either to have made some sort of provisional entry in the Land Register or returned the application to the solicitors unregistered.

Submissions for the applicant

11. Mr Higgs took us through his case as presented in his application. He majored on the steading road, the matter of most importance to him and Mrs Higgs. What he had to say about the other averred inaccuracies is adequately recorded in our discussion of each inaccuracy below.

12. We began by confirming with him that he accepted that the boundary of the Auchengool House subjects as shown on the cadastral map was consistent with the boundary on the disposition plan. He did that and went on to explain how neither was consistent with the verbal description contained in the disposition or the Deed of Conditions and not consistent with where things were on the ground. He explained how the steading roadinaccuracy had come about because this road was not on the OS map which the Keeper had used as the base map, it having been built later in connection with the scheme for the break-up of the farm. Because it wasn’t on the OS map the surveyors acting for the sellers had drawn it in on the disposition plan and drawn the boundary to the east of it, as was clearly the intention in terms of both the text of the disposition and the Deed of Conditions. However they had put the road, and consequently the boundary, in the wrong place. The result was that when the Keeper’s staff came to plot the line of the boundary on a base map which didn’t show the road, the boundary was not where it was intended to be and where the verbal description in the deeds said it was to be. In short, it was, for most of its length, on the wrong side of the road: the west rather than the east, with the result that ownership of the road, for most of its length, was excluded whereas the clear intention had been that it should be owned by the owners of Auchengool Farmhouse. Instead it was now part of the registered title of Auchengool Cottages, which had never been the intention.

13. The problem had only come to light many years later, in 2014, but attempts to cure it by corrective conveyancing had resulted only in a regrettable souring of relations with the Harrises who were, by then, the owners of Auchengool Cottages. In any event corrective conveyancing would have come up against the problem that the existing deeds were drafted on the basis that the “lost” land was already owned by Mr & Mrs Higgs.

14. The mistake had led to inconsistencies in the Land Certificates of the other properties. For example, when the retained subjects came to be divided in 2015 a right of access was granted to the eastern part in terms of Land Certificate KRK10619 along the steading road. By that time the steading road was on the base OS map and its position, together with the right of access over it, was correctly shown on that Land Certificate. However, consistently with what had been the intention in 2000, the verbal description in the Certificate referred to the steading road as being in the ownership of Auchengool House with that property’s boundary being described as being to the east of the road. The right of access enjoyed by, initially the whole retained subjects and then, from 2015, the east retained subjects, was reflected in the applicants’ Land Certificate but, if the boundary between their subjects and Auchengool Cottages was where the cadastral map put it the access burden should be in the Land Certificate for the Cottages. It was surprising that the solicitors acting in the sale/purchase of the east retained subjects had not noticed the inconsistency between the content of the title deeds and the cadastral map so far as the ownership of the road and the route of the access over it was concerned.

15. Mr Higgs then addressed the arguments advanced by Mr Lavelle in correspondence. It was not true to say that there was nothing in the deeds to tell the Keeper where the boundaries were to be and that the Keeper therefore had to rely on the plans. In Mr Higgs’s submission the description was in the deeds, either in the disposition or the Deed of Conditions.

16. The reference in sec 65(1) of the 2012 Act to the Register being inaccurate if it misstated what the position was “in fact” was a reference to a conflict between the Register and how things were on the ground including where the actual boundaries were and how the land had been occupied. If all the neighbours, other than the Harrises, were happy with how things were and for the Register to be rectified so as to reflect that state of affairs, what was the problem?

17. The Keeper had also put up the argument that title to the applicants’ property was conveyed by the disposition and not by the Deed of Conditions but the disposition referred to the Deed of Conditions, so the two could not be separated in that way. It was standard practice in the commercial contracts with which Mr Higgs was familiar to have one top copy of a contract which referred to and adopted various others, so why was that impermissible in conveyancing? His researches had disclosed nothing which said it was.

18. Another objection had been that the Register could only be corrected if it could have been corrected under the 1979 Act. This had to do with the existence of a proprietor in possession but the Harrises were not claiming to be proprietors in possession. They were certainly not in exclusive possession. This was not a barrier to rectification.

19. Mr & Mrs Harris had offered joint ownership as a compromise but that would cause all sorts of problems and the various title sheets would have to be corrected to reflect that position. It was infinitely preferable to correct the Register so as to bring it into line with what had always been the intention.

20. Although it is not a substantive point, we record that Mr Higgs criticised how the Deed of Conditions – a comprehensible and accessible document in its original form – had been condensed into a single, concentrated, undifferentiated and inaccessible paragraph in the Burden Section of the various Land Certificates.

21. Another matter not directly in point for the purposes of this application was the status of the common access road. The solicitors acting for the Corrie Estate believed it still to be in the estate’s ownership but his own view was that it was owned jointly by Mr & Mrs Higgs and Mr & Mrs Harris. The solicitor concerned would not, however, agree to meet with the Higgs and Harrises, so there was a “logistical blockage” there which we could help clear by pronouncing on the matter.

22. Mr Higgs commented specifically on the northeast corner boundary. In terms of the Deed of Conditions it followed a fence which was already in place in 2000. However, as with the steading road, the fence was not shown on the base OS map of the time so, instead, the boundary on the cadastral map followed a broken line which did appear on the OS map, with the result that it put the eastern end of the northeast boundary three metres south of where it should have been. The base map had subsequently been updated to show the actual fence and sec 11(7) of the 2012 Act obliged the Keeper to make “any changes to the Register which are necessary in consequence of the updating”. The Keeper was, therefore, obliged to correct this error. If that was so for this boundary, the same reasoning could be applied to the steading road: when it appeared on the OS map, the boundary of Auchengool House should be redrawn where it had always been intended to be.

23. In relation to the boundaries along fences still to be erected, if parties were happy to express things in that way, it was unreasonable to allow a third party (the Keeper) to determine that the boundary was somewhere else. Instead the Keeper should have either made a note as to the provisional nature of the line of the boundary shown on the cadastral map, as she was entitled to do in terms of sec 11(4) of the Act, or refused the application for registration and returned everything to the presenting solicitor.

24. Asked by the Tribunal as to why matters had not been checked in detail when the Land Certificate had been received from the Keeper, Mr Higgs said he had never seen it until years later. It was clear that the major mistake here – the exclusion of the steading road – had been the fault of the surveyors acting for the sellers, who had drawn the road in the wrong place and that error had not been spotted by his solicitors but, when it came to trying to put things right, surveyors and solicitors, with the exception of a Ms Baird, who was still assisting them, had “evaporated without sight” and they had been left to resolve matters on their own at considerable human (hundreds of hours of time) and financial cost.

Tribunal’s consideration

25. Since these are inaccuracies which are said to have been on the Register immediately before the designated day (8 December 2014, the date on which the 2012 became fully operational, replacing the 1979 Act), the transitional provisions of Schedule 4, quoted above, apply. Thus rectification of any existing inaccuracy can only be carried out if the Keeper had power to rectify it under sec 9 of the 1979 Act. What usually prevents rectification in this situation is the existence of a “proprietor in possession” but nobody has taken that point in this case. The only parties with a possible interest in taking it are Mr & Mrs Harris, since all of the other affected proprietors are happy with what the applicants propose. Mr & Mrs Harris are not happy but they have not taken the point, nor do we think they could because if rectification took place, although they would lose ownership, they would not really be prejudiced because they would, in terms of their title, still have a right to use the steading road for forestry and agricultural purposes, one of the absurdities thrown up by the present situation being that they have both proprietorship, in terms of cadastral map, and a (restricted but adequate) right of access, in terms of the burdens section of their land certificate. Accordingly we are satisfied that, if these are inaccuracies, the Keeper had power to rectify them under sec 9 of the 1979 Act immediately before the designated day.

26. Next we make some fairly basic observations as to the role of the Land Register and what is necessary to constitute an inaccuracy in the Register.

27. The Land Register was set up as a public register of ”interests in land” in Scotland by the 1979 Act, sec 1(1). The 2012 Act uses a slightly different formulation: it talks about a public register of “rights” in land. One of these interests or rights is ownership and sec 50 of the 2012 Act provides, in effect and subject to limited exceptions with which this case is not concerned, that land ownership is transferred, and can only be transferred, by registration in the Register of a valid disposition. The disposition itself is the instrument of conveyance but an unregistered disposition does not transfer ownership; sec 50(3).

28. So, for present purposes, the Land Register is a register of land ownership. Unlike the Sasine system, which it replaces, it is map-based in order to provide clarity as to the extent of ownership. It is not a register of land occupation nor of intended ownership. It gives effect to changes of ownership agreed between parties as evidenced by the deeds presented to the Keeper for the purpose of registration. The role of the Keeper is to reflect accurately what the deeds presented to her show and do. Where there is conflict, or uncertainty, such that she is unable to plot boundaries on the cadastral map, she will reject the application and return the papers to the presenting solicitor. Where, however, there is no obvious need to do any such thing, she will complete matters by the issue of a Land Certificate showing the boundaries as plotted on the cadastral map. Provided she has faithfully followed what the documents presented to her appear to show, she is not in error and neither the cadastral map nor the Register is inaccurate, even if it later turns out that the result is not what was intended. In that situation the fault is not hers but that of the surveyors or solicitors who who have failed, by virtue of inadequate or insufficiently precise surveying or conveyancing, to give effect to their clients’ agreements.

29. Applying these observations to the present case, what was the Keeper, in 2001, to have made of the deeds presented to him? In terms of sec 4(2) of the 1979 Act the question which he had to address was whether the land was “sufficiently described to enable him to identify it by reference to the Ordnance Map”. If so, all else being equal, he was to register it: if not, he was to refuse the application.

30. He was presented with two deeds, the disposition and the Deed of Conditions. For present purposes we assume that he could have regard to both for the purposes of identifying the subjects. The deeds, both incorporating the same map, contain no words as to what is to have primacy, the verbal description in the text or the plan. Thus the plan is neither said to be “taxative” nor merely “illustrative only”. His starting point would have been the verbal descriptions. These, with their repeated references to fences to be erected or “the centre line of such boundary feature, whether fence, hedge or wall, as exists at present” on their own were obviously hopelessly inadequate as boundary descriptions and it is clear that the presenting solicitors were relying on the plan to show the Keeper where these features were (if they already existed) or were to be (if not). If the plan, crude though it was, was sufficient to enable the Keeper to identify the subjects by reference to the Ordnance Map, nothing more was required. Although, as we shall see, certain features which existed on the ground were not at that time shown on the Ordnance Map, that did not mean that the Keeper could not identify the subjects on the map: he could and he did and the result is admitted to be consistent with the disposition plan. Accordingly we reject Mr Higgs’s argument that the Keeper was not entitled to rely on the plan and ought, instead, to have refused registration.

31. Against the background of that reasoning, we turn to the individual alleged inaccuracies.

(i) The steading road inaccuracy

32. It is as well to cut to the chase and deal first with the most serious of the alleged inaccuracies: the one with the most serious practical consequences and the one without which, probably, no complaint would ever have been made about the other five.

33. The public road from Kirkcudbright to Dundrennan runs along the southern boundary of the subjects. To get from it to Auchengool House you have to turn north onto, first, a length of farm track (unadopted by the local authority but suitable for vehicles), described in our papers as “the common access road” (since both Auchengool House and Auchengool Cottages are said, in their respective titles, to have rights in common to its solum and it gives access to these subjects and to the retained subjects), and then branch off to the left along what is called “the steading road”, which takes you to the former farmhouse and steading.

34. It is this steading road which is most contentious. The body of the disposition does not mention it, merely referring to the boundary as being with Auchengool Cottages. The disposition plan shows it and shows the boundary to lie east, or northeast, of it, so as to include the road within the title to Auchengool House. The Deed of Conditions makes clear (para (Two) of the Boundaries description above) that this road was to be included in the Auchengool House title albeit the precise line of the boundary with Auchengool Cottages was to follow the centre line of a fence still to be erected. The boundary shown on the cadastral map is to the west of the steading road at its southern end, crossing to the east of it nearer the steading, with the effect of excluding most of it from the ownership of the applicants.

35. There is no doubt that this is not what was intended when the scheme for the breaking up of the farm was drawn up, as the Deed of Conditions makes clear. How it came about has been narrated as part of Mr Higgs’s submissions above. Mr Higgs argued that once the OS map was updated to show the steading road it was incumbent on the Keeper to correct the Register in terms of sec 11(7) of the 2012 Act, which provides that “[o]n the base map being updated, the Keeper must make any changes to the register which are necessary in consequence of the updating”. The 1979 Act contained no such provision and we have not been able to establish when the base map was revised to show the steading road. The Scottish Law Commission’s Report on Land Registration (SLC Report 222) described the need for the new provision in the following terms:

“5.10 The relationship of base map to Cadastral Map can be pictured in terms of the latter being a semi-transparent sheet lying on top of the base map. The base map provides the geographical data and the Cadastral Map provides the title data. Either can evolve while the other is, for the moment, unchanged. The Ordnance Map is not static. It is constantly being revised. The revisions may reflect changes on the surface of the earth – new buildings, new hedges or walls, and so on – or they may reflect better recording of what was already there. In the latter case the draft Bill provides that the Keeper may amend the register to realign a boundary depicted in the Cadastral Map. Such realignment does not enlarge or lessen the title boundaries.”

36. Professors Gretton and Reid in their book on Land Registration (at para 5.5, page 77) give, as an example of where the new provision may apply, the situation where a physical feature which is also a title boundary comes to be more accurately represented on the base map. If the provision does not operate to enlarge title boundaries and if its application is restricted to the better recording of what is already there, this provision appears to be of no assistance to the applicants, given the view we have taken of the extent of their “title boundaries” and given that this is not a situation where a later revision has recorded more precisely what was already there but one of a new feature appearing on the base map for the first time. In any event the boundary is not the road itself but a fence which was to have been erected (and was erected) at some distance from it.

37. For the foregoing reasons we regretfully hold that the Register is not inaccurate in its representation of this boundary.

(ii) The northeast fence line

38. What Mr Higgs understands to have happened here is that the OS map of the time contained an error and showed a fence-line where, in fact, there was no fence. The Keeper is understood to have plotted the cadastral map boundary along that line on the OS map. Mr Higgs accepts that the boundary so plotted is not inconsistent with the disposition plan because of that plan’s small scale but demonstrates from his own mapping (the map which is part of production 4.1 shows the detail of this) that it is disconform to the fence which actually exists, and has since 2000 existed, to the extent of being three metres south of the actual fence line at its eastern end. He has produced an affidavit from Mr John Fisher, with whom he shares this boundary, confirming that the fence which is the de facto boundary has been in position since before he purchased the land parcel known as Auchengool Farm and that he considers it the true boundary between himself and Mr and Mrs Higgs.

39. We entirely accept that the cadastral map boundary at this point is not where the parties to the 2000 conveyance intended it to be nor where the de facto boundary is. Mr Higgs says that makes it inaccurate because it “wrongly depicts or shows what the position is … in fact” in terms of sec 65(2)(a) of the 2012 Act and one can readily see what he means by that: there is a disconformity between the boundary on the cadastral map and where the fence which was intended to be – and is – the boundary actually is. But that is making the wrong comparison. The correct comparison is between what was in fact conveyed to Mr and Mrs Higgs and what the cadastral map shows. For the reasons already explained the Keeper was entitled to rely on the disposition plan as showing the boundaries and it would only be if there was an inconsistency between those plans and the cadastral map that the latter could be said to wrongly depict or show what the position is in fact. Absent such inconsistency there is no error of depiction and no inaccuracy. The problem can, however, be sorted by corrective conveyancing since Mr Fisher seems amenable.

(iii) The Buchts corridor fence line

40. The Buchts corridor is at the northwest corner of the subjects. The boundary in that area was to be “the centre line of a stockproof fence now erected or intended to be erected” between points ‘M’ and ’N’ on the plans attached to the Deed of Conditions. The line of that fence was agreed between the sellers and Mr & Mrs Higgs before missives were concluded and production 5.1 shows, by the blue line, where that line was. However the fence was not erected until mid-2001, after the applicants’ title had been registered. Regrettably the disposition plan did not show the agreed line; for whatever reason the surveyors who prepared it adopted a different boundary. Production 5.1 shows the discrepancy. But there is no discrepancy between the line chosen by the surveyors for the disposition plan and the line drawn by the Keeper on the cadastral map and, accordingly, no inaccuracy in the map. Again, however, the problem, if it is thought sufficiently important, can be cured by corrective conveyancing since the proprietor on the other side appears amenable.

(iv) The Lime Field Corner

41. This is at the southwestern corner of the subjects and here again what Mr & Mrs Higgs want to do is formalise the line of an existing fence as the boundary on the cadastral map. Here the boundary, per the Deed of Conditions, was to be “the centre line of such boundary feature, whether in the form of wall, hedge or fence as presently exists”. However, no wall, hedge, fence or other boundary feature did exist in 2000. It was not until 2011 that a fence was erected along an agreed boundary line, the line being at variance with the disposition plan as shown on plan 5, part of production 6.1, and, hence, with the cadastral map. So the discrepancy here arose only because parties, years after the relevant conveyancing had taken place, agreed on a different boundary. Plainly that does not render the cadastral map inaccurate. Here again, however, corrective conveyancing is possible since the other proprietor supports the formalisation of the boundary along the fence.

(v) The public road verge

42. The southern boundary of the property should be, per the description in the disposition, “the public highway following the southmost edge of the verge”. At inspection Mr Higgs frankly volunteered that, were this the only discrepancy between the cadastral map and the description in the disposition, he would not have bothered with it and one can see why when one looks at very narrow slivers of land involved, most clearly shown, perhaps, on a map prepared by Mr Higgs for our assistance at inspection, which we have numbered production 8. Here there was a conflict between the disposition plan and the wording of the Deed of Conditions inasmuch as, on close inspection, the former does not reflect the latter; the northern edge of the carriageway and the line shown on the disposition plan do not abut. The effect seems generally to be to exclude the verge rather than include it. The omission is an inconsequential one since the verge of this public road will, as part of the road itself (see the definition of “road” in sec 151 of the Roads (Scotland) Act 1984), have been adopted by the roads authority which means that there is little if anything the actual owner can do with it.

43. Notwithstanding this discrepancy, we are not prepared to hold that the Land Register is inaccurate in its depiction of this boundary. That is because, for the reasons already given, the Keeper was entitled to plot the boundary on the cadastral map on the basis of the disposition plan. Once that is conceded we do not think he was obliged to consider each boundary in turn, to see if the verbal description was more specific than what was shown on the plan. That would be to place on the Keeper the duty of improving on what the parties had done for themselves. Had there been a significant discrepancy, of course, the Keeper would no doubt have brought it to the presenting solicitor’s attention but this one was of no consequence and we do not think the Register is inaccurate because the Keeper plotted the boundary along a line chosen by the parties to the transaction themselves.

(vi) The common access road

44. This is the road that leads from the foresaid public road to Auchengool Cottages, from which the foresaid steading road branches off to the left to take you to the Auchengool Farm Steading and, ultimately, the Farmhouse. The inaccuracy here is the same as in the immediately preceding case. In terms of the disposition the boundary should be “the eastmost edge of the west verge of the common farm track … shaded orange on the Plan annexed and signed as relative hereto, between the Points C E thereon”. Unlike the steading access road, this road was shown on the disposition map and the base OS map. The boundary drawn on the disposition plan and plotted onto the cadastral map excludes the verge for the most part. Again, however, the Keeper was entitled to rely on the disposition plan and his resultant plotting of the boundary on the cadastral map, being consistent with that plan, does not produce an inaccuracy.

Decision

45. Our decision is, therefore, that the cadastral map and, therefore, the Land Register is not inaccurate in any of the respects complained of. As we have said, it is a conclusion we have reached with some regret because it does not let us cure what is patently a mistake (in relation to the steading road). The mistake was, however, on the part of the surveyors who drafted the disposition plan and put the road in the wrong place. It would not have been obvious to the applicants’ solicitors that it was in the wrong place. However, the conveyancers involved, on both side of this transaction, are not without fault either. Having chosen to describe the boundaries in terms which were so vague and uncertain that the Keeper was bound to be driven to rely on the disposition plan to see where they were, they should have insisted on a much more precise and detailed depiction of the boundary on that plan.

46. The steading road error could, of course, still be cured by corrective conveyancing, but that requires the cooperation of Mr & Mrs Harris. We understand that such an attempt was made but with the result already described. In their correspondence with the Tribunal about this case they have expressed a willingness to negotiate but their starting point, as set out in a letter dated 22 August 2017, was:

“On our purchase of the lands/property of Auchengool Cottage we relied upon a map from the Keeper to ascertain the boundaries before completion took place. Having studied the map which was used during the sales of Auchengool in 2000, we deem that the Keeper registered our property in accordance with this map which was presumably agreed upon by all parties during the split of Auchengool Farm. Hence we do not believe there to be any inaccuracy regarding our property.

In the interest of good will and neighbourliness we are prepared to discuss with the Higgs the possibility of joint ownership from points E to H.”

47. Willingness to negotiate was reiterated when they wrote to the Tribunal on 10 October 2017, saying:

“As stated in our previous letter, we are prepared to explore the possibility of a resolution which would be mutually beneficial to both parties and not merely Mr & Mrs Higgs expecting us to simply meet with their demands. This would need to be in the form of joint ownership from points E to H.”

48. What they say in these letters about the way the Keeper has registered their property is, of course, correct. But it is not the full story and a reading of their land certificate would have made it as plain as a pikestaff that the steading road was to belong to the proprietors of Auchengool House. The following quotation is taken from burden entry 2 of the Harrises land certificate (title number KRK9923), being the Deed of Conditions:

“(Two) The proprietors of Auchengool House shall acquire exclusive ownership of the said access road from points “E” to “H” but there are reserved … (b) to the proprietors of Auchengool Cottages all necessary rights of access, both vehicular and pedestrian, by way of said access road between those points for access to those parts of Auchengool Cottages lying adjacent to said access roadway, but the rights of access hereby reserved to the proprietors from time to time of Auchengool Cottages and the retained subjects shall be restricted to access for agricultural and forestry purposes only”.”

49. The present case is not one of Mr & Mrs Higgs making “demands”, or, at all events, demands which are in any way unreasonable. Instead it is an attempt by them to gain ownership of what was always intended to be theirs but of which they were deprived through a surveying error. There is nothing unreasonable or high-handed about that: it is what anyone would do. Joint ownership would create more problems without solving any; technical conveyancing problems and the sort of problems which are likely to arise between antagonistic joint owners. It is not, therefore, an attractive proposition from anyone’s point of view.

50. Of course, we do not know all that has passed between Mr & Mrs Higgs and Mr & Mrs Harris, nor the manner in which the proposal for corrective conveyancing was handled. There was a suggestion in Mr Higgs’s submission that it could have been done better. But we are unaware of any lack of good faith on the applicants’ part or any reason for distrust on the part of Mr & Mrs Harris. We would therefore invite them to reconsider their position.

51. Should they decline to do so an alternative remedy for the applicants may lie in sec 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 which provides for judicial rectification of defectively expressed documents, including documents registered in the Land Register. It is intended for situations in which a deed fails to give effect to what the parties to it intended. It seems apt for a situation such as this, provided a plan attached to a disposition is accepted as being a “document”, but is subject to the proviso that where the property has been sold on to a third party acting in good faith rectification cannot take place; sec 8(3A) of the Act. This is a remedy outwith our jurisdiction, being available only in the Court of Session and Sheriff Court (sec 8(9)), so we say no more about it other than that the applicants should seek advice as to its applicability.

52. Finally, Mr Higgs invited us to express a view on the ownership of the common access road. On this too, he will find our conclusion disappointing. He considers that it is in the common ownership of himself and his wife and Mr & Mrs Harris. However, what the disposition confers on him is only “the right in common along with the proprietors whomsoever of the said subjects Auchengool Cottages to the solum of the said farm track”. Ownership of the road, to any extent, is not conveyed and both the verbal description of the boundary in the body of the disposition and its whereabouts on the disposition plan and the cadastral map exclude it. It is likewise excluded from the Auchengool Cottages land certificate. Accordingly, whatever the nature and extent of the interest in the solum which was intended to be conveyed is, it is short of ownership and it seems to us the solicitors acting for the sellers of the farm are correct in believing it still belongs to their clients.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 29 March 2018

Neil M Tainsh – Clerk to the Tribunal