REF/2014/535
and 536
FIRST-TIER
TRIBUNAL
PROPERTY CHAMBER
LAND REGISTRATION
DIVISION
LAND REGISTRATION ACT 2002
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
1.
CHRISTOPHER FAGAN
2.
SIOBHAN CARAGHER
APPLICANTS IN
REF/2014/535
RESPONDENTS IN REF/2014/536
and
- ROGER HALL
- CAROLINE VIVIAN HALL
APPLICANTS IN
REF/2014/536
RESPONDENTS IN
REF/2014/535
Property Address:
The Coach House Cherington, Tetbury, GL8 8SN
Cherington Park,
Cherington, Tetbury, GL8 8SN
Title No.:
GR235980 and GR151068
Before: Judge Mark
Sitting at:
Bristol Magistrates Court
On: 15 and 16
April 2015
Mr Fagan and Ms Caragher
Representation: Stephanie Tozer, counsel, instructed by Mishcon de Reya
Mr and Mrs Hall
Representation: Ewan Paton, counsel, instructed by Sewell Mullings Logie
___________________________________________________________________________
DECISION
- For
the reasons given below, I will direct the Chief Land Registrar to cancel
both the applications for determined boundaries but to note on the
register that the parties have agreed the other boundaries on the ground
subject to determination of the line of the eastern boundary and that the
eastern boundary runs in a straight line from the point at the south east
corner agreed between the parties to point shown on the experts’ joint
plan as the point contended for by the Respondents as the north east
corner of their boundary. The northern boundary will run from that point
to the agree north west corner of the northern boundary. I will defer
giving a direction to the Chief Land Registrar for 28 days to enable the
parties to submit an agreed plan showing the boundaries as so agreed and
determined which may be incorporated in my order.
- In
2000 Cherington Park included, in extensive grounds, the main house, which
was built in the 18th century but which had been considerably
modified since, and its Coach House, as well as other outbuildings. It
was owned by Brandywine Properties Limited (Brandywine), a company owned
and controlled by a New York lawyer, Ed Gottesman. The property was let
to its previous owners and Mr. Gottesman did not live in the area. He
did, however, visit regularly, usually around once a month, in part to
visit the grave of his daughter who was buried in the village graveyard.
- On
the morning of the hearing, Ms Tozer, counsel for Mr. Fagan and Ms Caragher,
sought permission to adduce a witness statement from Mr.Gottesman. No
good reason was given why the statement could not have been obtained from
Mr. Gottesman at a much earlier stage, as this dispute was several years
old and although Mr. Gottesman lived in New York, he was plainly
contactable by post, email or phone. In addition, whatever the statement
may have said, he was not available to give oral evidence and could not be
cross-examined. I therefore refused permission.
- By
a transfer dated 11 January 2001, Brandywine transferred the Coach House
and some surrounding land to Roger and Caroline Hall (“the Halls”).
Although there were covenants in the transfer for the boundaries to be fenced,
in part by Brandywine and in part by the Halls, neither party fenced the
boundaries, and it would seem from the evidence of Mr. Hall that both had
over the years a fairly relaxed and not always accurate view as to where
they came.
- In
2009, the Halls obtained planning permission to build, and built, a
lean-to on the eastern side of the Coach House, and a detached studio in
the grounds. Whether the studio was built wholly on the land transferred
to them, close to the eastern boundary, or only partly on that land and
partly over the eastern boundary and on Brandywine’s retained land, is one
of the issues that has led to these proceedings. It is clear from the
evidence of Mr. Hall, which I accept in this respect, and from
correspondence from Mr. Gottesman, that Mr. Gottesman saw plans for the
development which he approved. It is not clear that he saw plans which
showed the precise location of the studio, but I accept that he was
continuing to visit Cherington Park regularly, still more or less on a monthly
basis, that he saw from a very early stage where the studio was being
erected and that he raised no concerns about it, or the hedge which the
Halls planted a few feet to the east of it roughly on the line which the
Halls now say was the boundary between the land transferred to them and
that retained by Brandywine.
- In
2010, Brandywine sold the remainder of Cherington Park to Mr Fagan and Ms
Caragher, and they were registered as proprietors on 16 November 2010.
Relations between them and the Halls do not seem to have been as good as
between the Halls and Mr. Gottesman, and they decided that they wanted the
boundaries clearly defined for the future. It would appear from Mr.
Fagan’s witness statement (he did not attend for cross-examination and
there was probably little that he could have added if he had attended)
that he and Ms Caragher were told late in March 2011 by their architect
that the studio appeared to have been built over the boundary. Mr. Fagan
wrote to the Halls about this by email of 1 April 2011. In reply the
Halls referred to their having already contacted Mr. Fagan about this, and
stated that they had obviously been under a misapprehension since they
purchased the property. They also expressed surprise that Mr. Gottesman
had made no mention of the boundary problem when the planning application
was submitted.
- The
parties then met in mid-April 2011, following which the Halls wrote to Mr.
Fagan and Ms Caragher by email of 19 April that they hoped they understood
that a mistake had been made. They went on “The pegs indicated on our
survey (which we showed you) when buying the property, and still in the
ground back in 2001 were perceived to be the boundary markers.”
- The
concession that there had been a mistake was subsequently withdrawn by the
Halls, and, in essence they now contend that the plan is inaccurate or at
least ambiguous, that the boundaries had been defined by the pegs they
referred to, that the position of the pegs is shown by a survey they
commissioned in January 2001, and that using those pegs as the boundary
markers, the studio is within their boundary and only on their land, as is
other work they have subsequently carried out close to that boundary.
- The
continuing dispute between the parties as to the precise location of the
boundary has led to both sides issuing determined boundary applications at
the Land Registry to determine the entire length of the Coach House
boundaries. This requires a wholly unnecessary degree of precision so far
as most of the boundary length is concerned and following the site view
the parties were able to agree most of the line as being in accordance
with fencing recently erected by Mr Fagan and Ms. Caragher. The agreement
was not because that line corresponded precisely with either side’s
contentions in their determined boundary applications but because the area
of dispute was so small in the areas in question as to make it pointless
for either side to seek further precision.
- What
is left is a dispute as to the precise line of the eastern boundary, with
a minor consequential effect on the northern boundary depending on where
the north eastern corner is found to be.
- The
transfer, in form TP1, described the property transferred as “The Coach
House and adjoining land, Cherington Park… The Property is defined on the
attached plan and shown edged red.” The transfer plan is reproduced on
the next page of this decision. It can be seen that the boundary, at its
most southern point, goes around a large tree. The eastern boundary then
goes north from the tree to a point fairly close to, and to the
east-north-east, of the closest part of the Coach House as it then was.
The plan is said to be to a scale of 1:1250, and the undisputed evidence
is that this was a magnified copy of a 1:2500 OS plan. It is also common
ground that there are at least three potentially relevant errors on the OS
plan: the tree in the southern corner is misaligned, the part of the
Coach House closest to the north eastern border is misaligned and the
house, Cherington Park is misaligned.
- The
plan was prepared by architects, Branston & Company. It is common
ground that there are sufficient problems with this plan because of the
misalignment of those features, the effect of the magnification of the
original plan and the relative thickness of the boundary line to enable me
to look at the surrounding circumstances, and the lie of the land at the
time of the conveyance in order to construe the transfer and determine
precisely what land was conveyed by it. It is also permissible for me to
look at the subsequent conduct of the parties to the transfer where that
conduct is potentially probative and material (Ali v Lane [2007] 1
P&CR 26; Norman v Sparling [2014] EWCA Civ 1152).
- The
Coach House was advertised for sale by Lane Fox, and in their sales
particulars it is stated that the final location of the boundaries was
subject to agreement between the purchaser and the vendor. Following the
acceptance by Brandywine of the Halls’ offer subject to contract, a draft
contract was issued by Charles Russell, solicitors for Brandywine, to
Wilmot & Co., who were acting for the Halls. By letter dated 4
October 2000, Wilmot wrote to Charles Russell:
“Around
the northern and western sides, the Property is already pegged out; presumably
the south-eastern corner of the Property is intended to be somewhere beyond the
skirt of the large chestnut tree. It would be helpful if that area could be
pegged as well.”
- In
reply, Charles Russell wrote to Wilmot by letter of 17 October 2000:
“As
to the boundaries we now enclose a new plan prepared by Branston & Company
and we have marked the various points of the boundary. There were pegs at
points B, C and D and our client has suggested that it insert large metal
stakes to mark these. The boundaries between A-B and D-F are in a straight
line, so are, we think, clear.”
- The
relevant point for present purposes is point F, and the straight line
boundary in dispute would run from D to F. It was an unmarked copy of
this plan which was subsequently used for the contract and the transfer.
- There
was then a delay in exchanging contracts, while the Halls’ planning
application to renovate the Coach House was being considered. Planning
permission was granted on 20 November 2000, and contracts were exchanged
on 14 December 2000. At some point the Halls’ solicitor attended and took
photographs of the pegs that had been placed in the ground to show where
the boundary came, but, although the photographs were in evidence, they
were of no use in determining with any degree of accuracy where the pegs
were on the ground.
- Soon
after completion, in January 2001, the Halls commissioned D & H
Surveys to produce a topographical survey of the area around the Coach
House. Somewhat curiously, Mr Hall was unable to remember the reason for
this survey, but the survey, dated January 2001, recorded the position of
three pegs in a straight line close to the Coach House on what the Halls
now claim to be the line of the boundary between points D and F on the
title plan. It is those pegs, as shown on that plan, on which the Halls
rely as showing the boundary line which is still in dispute. Strictly, it
is now only the peg at what is contended to be point F that is relevant
for this purpose. The pegs are not shown in an exact straight line, although
it was agreed that the boundary should be a straight line boundary, and
point D is now agreed.
- Following
completion, in 2001-2002, the Halls renovated the Coach House, and they
have lived there since. Although there were fencing covenants in the transfer,
imposing obligations on both sides, as I have already mentioned, the land
remained unfenced. The only indications of where the boundary was thought
to be appear to have been that (1) there was a hedge and iron railings
that ran across from the retained land to the land sold to the Halls, and
in 2002 the Halls took down the hedge and railings where they ran across
their land, and did so up to the point at which they believed the boundary
came; (2) they mowed a path along what they understood the boundary to be;
and (3) the studio was built and the hedge planted, with Mr. Gottesman at
least watching in circumstances in which both parties would appear to have
considered that they were built and planted within the boundary of the
Halls’ property. The path can be seen in Google photographs said to date
from 2005 and 2006 which were in evidence before me, but I am unable to
derive any real help from these photographs as to where the precise
boundary came or was thought to come.
The
expert evidence
- Expert
evidence as to the boundary line was given by Mr. Michael Timbrell for Mr.
Fagan and Ms Caragher, and by Mr. Nigel Haddow for the Halls. In essence,
that evidence was distilled into a joint statement which they produced by
reference to a digital survey plan produced by Mr. Timbrell. They agreed
that the transfer plan was purely a guide to the features on the ground
and that there was a danger in using it to determine the correct
boundary. This was, they agreed, exemplified by the incorrect orientation
of the Coach House and the relative position of the tree in the south east
corner of the property. However, they agreed that the red line showing on
the annexed drawing “is a reasonable representation of one of a number of
possible positions of the boundary line shown on the original Transfer
plan.” That line left the 2009 lean-to within the Coach House land but
left the hedge and about a fifth of the studio on the Fagans’ side of the
boundary.
- An
alternative plan produced by Mr. Haddow had been based on the pegs
identified in the January 2001 survey. His boundary was transposed onto
the plan (it was agreed that it was accurately transposed) and it was
agreed that the boundary represented by the pegs was “a very accurate
reflection of the original boundary”. That boundary very closely
corresponded with that of Mr. Timbrell, except on the boundary that is
still disputed. On that boundary, starting from point D, Mr. Haddow’s
line diverges from Mr. Timbrell’s line. When it reaches the hedge it is
well to the east of the hedge but gradually comes closer to it and at the
north end of the hedge roughly passes through the middle of it. It ends
up at a point F to the east of Mr. Timbrell’s point F.
- A
copy of the relevant part of that plan is annexed to this decision. The
boundary contended for by Mr. Fagan and Ms Caragher is shown in red on the
plan. That contended for by the Halls is shown in green on the plan.
Point F as contended for by Mr. Fagan and Ms Caragher is in red and
circled at the top right hand corner of the plan and point F as contended
for by the Halls is just to the right of it and marked Peg 1 at the corner
of the green boundary. The red line boundary can be seen to go south
close to the 2009 lean-to (shown by dotted lines on the plan) and then to
go to the west of the hedge planted in 2009 and through the rectangular
studio about an inch below the contested corner. The green line leaves
the hedge, or most of it, and the studio on the Halls’ side of the
boundary. The Coach House, as it was in 2000/1 is to the west of the
dotted line lean-to.
The
referred applications
- Both
sides have made determined boundary applications to the Land Registry
which have been referred to the Tribunal. Mr. Fagan and Ms Caragher
sought a determined boundary along the red line, which is described by Mr.
Timbrell and Mr. Haddow as “a reasonable representation of one of a number
of possible positions of the boundary line shown on the original Transfer
plan”. At the hearing, however, Ms Tozer modified her clients’s
position. They now concede that the boundary should not go through the
studio. Instead it should follow Mr. Timbrell’s line, but deviating from
it to go around the studio and the paving that had been laid when it was
built, and then return to the original line. The Halls’ application was
to follow Mr. Haddow’s line. Insofar as the boundary other than between
points D and F was concerned, both parties were agreed as to part of the
boundary line and as to most of the rest they abandoned their previous contentions
in favour of an agreed line which followed the line of fencing recently
erected by Mr. Fagan and Ms Caragher. That only left a small difference in
respect of the northern boundary which depended on the precise position of
point F.
Factual
conclusions
- It
appears to me that the intention of the parties was that the boundary was
to be a straight line which was marked by pegs on the ground and which was
the boundary which Branston & Co were instructed to show on the plan
they prepared. Branston & Co. then used an ordnance survey plan which
had inaccuracies noted by Mr. Timbrell and Mr.Haddow, and which could, for
all Branston & Co. may have known, have been distorted in other
respects as well. As a method of showing the precise boundary it was
almost certain to fail.
- It
also appears that the most likely reason for the plan appearing to show
the disputed boundary in a different position from the line of the pegs in
the D & H Survey in January 2001 is that whoever carried out the
measurements for the plan would have plotted the position of the pegs in
relation to the main nearby structure, the corner of the Coach House.
Because the corner of the Coach House was misaligned on the plan, the
equivalent to point F was similarly misaligned. This is supported by the
fact that the angle of point F on the transfer plan to the north wall of
the nearest part of the coach house is pretty much the same (I have not
plotted it precisely) to the angle of Mr. Haddow’s point F on the joint
experts’ plan and is 10 degrees or so less than the angle on that plan
between the north wall and Mr. Timbrell’s point F taken from the transfer
plan. I note that according to Mr. Haddow’s uncontested oral evidence,
which I accept, the degree of misorientation of the end of the Coach House
on the transfer plan was 10 degrees.
- I
am satisfied that the pegs as marked by D & H Surveys were at the time
of the survey in the positions shown on the plan that was then prepared.
Ms Tozer for the Fagans has sought to suggest that they, or one or more of
them may have been moved either by one of the Halls or by some other
person trespassing on the land (there being evidence of such trespasses).
However, nobody had any good reason to move any of the pegs. For the
Halls to have moved them so soon after the transfer could have led to
immediate problems with Mr. Gottesman, and would not have improved their
boundary in any significant way, as there is no evidence that the studio
was under contemplation at the time and no evidence that even when it was
contemplated it could not just as easily have been built a few feet
further west. I would add that it is really only the peg at point F that
mattered given that the experts agree as to the position of point D by the
tree at the other end of the disputed boundary.
- On
those grounds alone I would conclude that, on the balance of
probabilities, point F was not correctly shown on the transfer plan
because it was plotted by reference to the actual position of the Coach
House and then transposed onto a plan which showed the Coach House in the
wrong position.
- My
view as to the position of the pegged boundary is fortified by the
subsequent conduct of the parties. Both sides proceeded in 2009 on the
basis that the studio and hedge were within the boundary of the Coach
House. In this respect, I am concerned with the position of each party as
expressed by their actions. The unexpressed private uncertainty of the
Halls, if there was any at the time, as to whether the studio might
overlap the boundary is of no evidential value. What matters is that in
putting forward the plans and building the studio as they did, the Halls
were doing so on the basis that everything was on their side and in
watching the building go up without any objection and while discussing details
with the Halls, Mr. Gottesman was proceeding on the same basis. They
would, however, have been likely to have been proceeding by reference to
their recollection of the pegged boundary on the ground rather than by
reference to the plan, so that if the plan cannot be found to correspond
with the pegged boundary, their approach could at best give rise to a
proprietary estoppel leading to a boundary of the kind contended for by Ms
Tozer.
- I
note (although not of evidential value) that neither Applicant attended
the hearing and that there was no suggestion that it occurred to either of
them until well after completion of their purchase that any part of the
hedge, let alone the studio was within the land bought by them. Rather it
was clear that they had no thought that they were buying up to what they
now claim to be the legal boundary, and that they must when buying have
regarded the whole of the studio as being outside their purchase. It is
never an attractive proposition by a purchaser that their purchase, with
the benefit of a detailed scrutiny of title plans, included land which
they had never thought at the time of the purchase that they were buying,
and which could be seen by them at the time of that purchase to be
occupied by their new neighbours. I also note that they did not disclose
their conveyancing file, which would in the ordinary course of a purchase
have included standard enquiries as to the boundaries and the replies
given on behalf of Brandywine.
The
law
- Ms
Tozer submitted that as the transfer described the land transferred as
that defined on the plan and shown edged red, that was the land
transferred, and although one could look at the property as it was at the
time of the transfer to determine what land was edged red, if the line
drawn through the pegs was not a possible interpretation of the transfer
plan it could not be the boundary of the land transferred. She went on to
contend that it was not possible to produce an area of the shape of that
on the transfer plan with permitted allowances for margins of error, which
could include the area between Mr. Timbrell’s line and Mr.Haddow’s line
while also including all the land which was agreed to have been
transferred to the Halls and excluding all the land agreed to have been
retained by Brandywine Ltd.
- The
task of the tribunal is to construe the transfer as a whole. If, due to
some error or misunderstanding a transfer of part of a title does not
include land which was intended to be transferred, or was believed to have
been transferred, the land remains within the original title subject only
to any equitable interest or equity such as a claim for rectification or a
proprietary estoppel claim. Where, as here, the transfer defines the land
transferred as the land defined on the attached plan, and there are no
other indications in the transfer itself to put that definition in doubt,
what needs to be determined is the area of the land shown on the plan.
Insofar as that cannot clearly be determined from the plan itself, whether
because of inaccuracies in the plan or because the area in dispute is too
small for the precise position of boundaries to be clear from it, the area
included must be determined in the light of the surrounding circumstances
at the time of the transfer and this includes looking at the features
present on the ground at that time. Nevertheless, the transfer plan is
the required starting point when ascertaining the position of the
boundary. As it was put by Black LJ in Dixon v Hodgson [2012] 1
P&CR 15 at paragraph 50:
It is important to note that the plan is not merely
for identification; it defines the property transferred. Being the dominant
description, it has to be accorded full weight in the same way as the plan was
in Beale v Harvey. Finding that the plan did not enable him to determine
the precise position of the boundary, and that the low wall had been put in a
different place from that intended, the Recorder appears largely to have
abandoned the plan. I am not persuaded that that was the proper approach. Even
if the plan cannot give the whole answer, it must surely be right to look at it
to see what information it does reveal about the boundary, notably its fixed
points, its relationship to other features marked on the plan, and its
direction of travel. Whilst it perhaps seems a little odd to look upon it as
part of the surrounding circumstances when it was intended to be definitive, if
it has failed in that primary aim I would see it as a very significant part of
the objective facts available to the parties at the relevant date.
- In
her judgment, with which the other members of the court agreed, Black LJ
had reviewed earlier decisions of the Court of Appeal in Beale v Harvey
[2004] P&CR 18 and Partridge v Lawrence [2003] EWCA Civ 1121,
and also the judgment of Lewison J in Chadwick v Abbotswood Properties
Ltd [2004] EWHC 1058. Beale v Harvey was concerned with a case
where the plan had been prepared for the contract and then between
contract and completion, which was by reference to the same plan, the
developer selling the property had put up a fence in a position which
could not be reconciled with the contract plan. The Court of Appeal had
held that the contractual boundary could not be determined by the position
where the developer had subsequently erected the fence. I note that that
was a case where the fence was clearly in the wrong position and where it
had not been in place when the boundary line was agreed. I also note that
the court declined to follow Watcham v AG of East African Protectorates
[1919] AC 900, and refused to attribute any evidential value to the
subsequent conduct of the parties after the contract had been entered
into. It may be that in that case the subsequent conduct had no
evidential or probative value, but the general principle that, insofar as
such conduct has probative value, it may be relied on, has since been
established in Ali v Lane and Norman v Sparling. In the
present case, the events in 2009 appear to me to have some probative value
of where the original parties recalled the pegged boundary to have been.
- In
Chadwick v Abbotswood Properties Ltd, Lewison J stated the law as
follows in a passage at paragraphs 43-44 of his judgment cited with
approval by Black LJ:
Where the definition of the parcels in a conveyance or
transfer is not clear, then the court must have recourse to extrinsic evidence,
and in particular to the physical features on the ground. As Bridge LJ put it
in Jackson v Bishop (1979) 48 P & CR 57: "It seems to me that
the question is one which must depend on the application of the plan to the
physical features on the ground, to see which out of two possible constructions
seems to give the more sensible result."
44. The question is one to be answered objectively:
what would the reasonable layman think he was buying? Since the question must
be answered objectively, it follows that evidence of the parties' subjective
intentions, beliefs and assumptions are irrelevant; as are their negotiations.
- Black
LJ also drew attention to the fact that in Partridge v Lawrence the
plan annexed to the deed which was being construed had no recognisable
scale but was a reduced, distorted copy of an architect’s scale plan. In
those circumstances it was permissible to have regard to the architect’s
plan as one of the surrounding circumstances of the transaction in
ascertaining the width of the right of way in dispute in that case.
- In
relation to the facts of the case before her, Black LJ stated at paragraph
43 that the Recorder whose decision was under appeal had asked the very
question that Lewison J had posed in Chadwick v Abbotsbury as to
what the reasonable layman would think he was buying. In examining the
way in which he approached this question, she concluded that the plan and
the actuality did not match up in a number of ways (para.54), which she
went on to examine. She concluded, at paragraph 65, that the Recorder had
set himself the correct test but had then made the mistake of abandoning
the plan completely and looking at the physical features on the ground as
at the date of the transfer without the plan in his hand.
- The
final decision of the Court of Appeal cited to me was Cameron v
Boggiano [2012] EWCA Civ 157. The issue was whether the common
boundary between two properties ran in a straight line. The relevant
transfer was on land coloured pink and blue on a transfer plan. The plan
was said to have been produced by magnifying and scaling up from a small
scale original filed plan based on an OS map that did not show relevant
features on the ground or purport to show precise boundaries.
- After
reviewing the authorities, including those to which I have referred above,
Mummery LJ continued at paragraphs 63-67:
63. Where the lack of
sufficient clarity is in a plan marked "for identification only" it
is, in my view, easier to justify regard to the topography to assist in construing
the contract/transfer plan than in a case like this where the plan was not so
designated and has been prepared as a defining document. Even so, if that
document is insufficiently clear to the reasonable layman with the plan in his
hand to determine the position of the boundary of No 7 Choumert Mews, the court
is entitled to seek assistance on the construction of the plan and title
documents by taking account of the topographical features at the relevant date.
64. In this case the
point at which I would, with great respect, differ from the trial judge is in
her conclusion that the position of the boundary shown on Plan A is
sufficiently clear and unambiguous as to make inadmissible evidence of the
actual topographical features in Choumert Mews at the date of the 2001 contract
and transfer.
65. I agree that Plan A
was part of the transaction agreed between Blueperch and the claimant and that,
as such, it cannot be altered by the court. The issue for the court on
construction is to identify what was agreed by the parties about the boundaries
of the transaction land. In that exercise the transaction plan must, as experts
sometimes say, be contextualised. It was not entered into and is not to be
construed in a vacuum. In more mundane terms this means that the reasonable
layman would go to the property with the plan in his hand to see what he is
buying. The reasonable layman is not a qualified surveyor or a lawyer. If the
plan is not, on its own, sufficiently clear to the reasonable layman to fix the
boundaries of the property in question, topographical features may be used to
clarify and construe it. As the judge said at paragraph 114 about the proper
approach to interpreting plans in this situation:
“…the correct approach
is to take the plan to the land and see what, on the face of it, the plan
appears to show is intended to be the relevant boundary feature position. Only
if, when you do this, you find that you are indeed in difficulties about what
the plan is intended to represent can the plan be regarded as ambiguous."
66. In this case the
plan on its own is, in my view, an insufficiently clear guide to the position
of such features as the boundaries. The small scale of the plan, the lack of
measurements and area size on it or in the other title documents, the thickness
of the black lines drawn on it, the rather poorly, even slapdash, pink and blue
colouring on a plan based on an OS map that does not fix precise boundaries and
its deficiencies as an accurate plan of the area at the time of the transaction
make it difficult, in my view, to say that the position of the boundary on the
plan is clear and unambiguous. There is no clear or reliable way by which the
reasonable layman can know from the plan alone (a) whether the lines marked on
it follow actual physical features, such as the back wall of No 60, or the
drain, or (b) whether they are merely imaginary lines drawn on paper.
67. The recourse of the
reasonable layman to the topography of Choumert Mews for enlightenment does not
mean ditching the title documents of No 7. It is not a case of substituting the
physical features on the ground for the boundaries shown on the plan. It is a
matter of sticking with the plan in the hand and, because it is insufficiently clear
on the matter of boundaries, to use the topography at the crucial date to
inform and to make sense of where the boundaries of what is being transacted.
- In
agreeing with that judgment, Rimer LJ stated at paragraph 114:
Plan A was
not, however, a carefully drawn one. Mummery LJ has, in [66], summarised its
manifest deficiencies. Given such deficiencies and the apparent absurdity of a
construction that attributes to the parties an intention to mark the relevant
boundary as on a line with No 60's southern flank wall, the court can, and in
my view must, have regard to all admissible evidence with a view to elucidating
the true sense of the transfer. Such evidence will not of course include the
parties' prior negotiations or their expressed subjective intentions as to the
land to be transferred. It will, however, include a consideration of the
topography of the relevant land at the time of the transfer. Recourse can be
had to such evidence not for the purpose of contradicting Plan A but for the purpose
of elucidating the true sense of its uncertain elements, in particular the line
of the northern boundary. The court's interpretation is ultimately guided by
the answer that the reasonable man, armed with the relevant material, would
give to the relevant question.
Conclusions
- Determination
of the land transferred involves determining what land was depicted as
included in the transfer plan, which, being unclear, has to be construed
by reference to the relevant surrounding circumstances. These include the
topographical features at the time and these include the pegged boundary.
I can have regard to the pegging both as one of the features at the time
and because I am satisfied that the plan was prepared by reference to
those pegs. In the latter respect, the position is the same as in Partridge
v Lawrence, where regard was had to the scale plan from which the
relevant plan was taken. The pegged boundary here is equivalent to the
scaled plan there. The transfer plan here is distorted, not perhaps quite
as much as it may have been, given the deficiencies often present in OS
maps, but still significantly so, particularly in relation to the
misalignment of the end of the Coach House. Scale measurements on the
copies of the plan in evidence are not possible because each one is a
different size and there is no evidence as to the correct size at which
the 1:1250 scale is said to apply.
- The
plan needs to be contextualised, as Mummery LJ, put it. The parties,
lacking the qualifications of surveyors or lawyers, going to the property
with the plan in hand and using topography to make it clear what was being
transferred, would have had no difficulty in identifying the boundaries as
those pegged on the ground. They would have been well aware of the small
scale of the plan and would not have appreciated the misalignment of the
end of the Coach House.
- I
reject the contention of Ms Tozer that the plan has to be construed as set
out in paragraph 28 above. Laymen going to the property, plan in hand,
applying the test approved by Lewison J and the Court of Appeal, have
neither the equipment nor the expertise to carry out the sort of analysis
that those contentions would involve. I also note that it only takes one
reference point to be in the wrong position on the plan for the shape of
the resulting outline on the transfer plan to be distorted well beyond the
limits that she contends for.
- I
am also satisfied that a significant reason for the misalignment of point
F is the misalignment of the end of the Coach House. I have already noted
in this context that the angle produced by drawing a line on the plan from
the north east corner of the Coach House as depicted between the line so
drawn and the north wall of that part of the Coach House is very similar
to that shown on the scale plan produced by the experts using the correct
alignment of the Coach House and the position of the relevant peg as shown
on that plan. The angle produced using a line drawn from the same corner
of the Coach House to the position contended for Ms Tozer is significantly
different. When Branston & Co. prepared the transfer plan, I consider
that on the balance of probabilities they would have mapped the position
of point F by reference to its alignment in relation to that corner of the
Coach House, which was also the closest possible reference point. Indeed
there is nothing else on the transfer plan which they could sensibly have
used when preparing it. The difference in angles is about 10 degrees and
this would seem to correspond with the degree of error produced by the misorientation
of the Coach House.
- It
follows that although both applications for a determined boundary must
fail, the eastern boundary is as contended for by the Halls, subject only
to any minor change that may be required if the agreed point D is not in
exactly the same position as that shown on the agreed plan.
By Order of the tribunal
dated the 4th day of june 2015
