England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
His Honour Judge Wyn Williams QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st March 2006

Sir Martin Nourse :

1. This case raises a question as to the effect of a transfer of part of registered land in which the property transferred was expressed to be "defined on the attached plan and shown edged red". The question arises because the strip of land retained by the transferor was measured on the plan as having a width of 40 feet, whereas the actual scaled width between the red edging and the extremity of the transferor's land was 30 feet.
2. By a conveyance to him dated 7^th September 1999 the claimant, Emmanuel Cook, acquired the freehold interest in a property known as the Wheatsheaf Public House, Overpool Road, Ellesmere Port, South Wirral in Cheshire. He did not acquire the property with a view to running it as a public house; indeed it had not been used as such for some time previously. He acquired it with a view to developing or selling the site. Formerly he had traded as a bookmaker from a building in the grounds of the property to the north of the public house itself. But before the acquisition he had moved his betting shop to other premises nearby.
3. Following the conveyance to him the claimant's title to the property was registered at HM Land Registry, the land within his ownership being shown on the filed plan. By a transfer dated 20^th March 2000 he transferred to the defendant, JD Wetherspoon Plc, the major part of the property including the public house itself. It is that transfer which is the subject matter of the present dispute.
4. In his judgment delivered in the Chester County Court on 13^th July 2005 His Honour Judge Wyn Williams QC, having read the above-quoted description of the property transferred, referred to the plan in terms of which neither side has complained:

"Attached to the transfer was a plan which showed an area of land which is edged red. The plan is a copy of an ordnance survey sheet. To the north of the northern red line is a line on the plan which the parties accept marked the northern boundary of the land acquired by the claimant on 7^th September 1999. Between that line and the northern red line the word "retained" is written as is the figure 40 with the symbol for feet behind it. The 40 is written in such a way as to convey the impression that the distance between the northern boundary of the land transferred and the northern boundary of the land retained is 40 feet. The northern boundary of the land transferred is marked with the letters A and B at the north western and north eastern boundary points. The red line appears to be drawn over a dotted line on the plan. The plan is signed by the claimant and a representative of the defendant."

5. The scale of the plan is 1/1250. It was not, as might have been expected, a copy of the filed plan. It was a copy of an old ordnance survey plan dating to the 1970's. The judge pointed out that marked upon the plan was what appeared to be the position of a building adjoining the northern boundary of the land the subject of the transfer (on the south side) and more or less centrally positioned. That was misleading, because at the time of the transfer there was no building adjoining the northern boundary of the land transferred in the position shown on the plan. That building had been demolished and replaced by the building formerly occupied by the claimant as a betting shop, which was situated in the north east corner of the site.
6. The only other feature of the transfer which needs to be mentioned is that it contained a covenant by the defendant not to erect any fence or wall along the boundary line marked "A-B" on the plan in excess of 3 feet in height.
7. The judge introduced the problem that lay at the heart of the case as follows:

"As I have said there appears upon the plan the word Retained and the figure 40 giving the impression that the distance between the northern boundary of the land the subject of the Transfer and the northern boundary of the land retained by the claimant is 40 feet. However, if the scale of the plan is used the distance is approximately 30 feet".

The claimant has throughout contended for a distance of 40 feet and the defendant for one of 30 feet. The judge preferred the contention of the defendant. With the permission of this court the claimant now appeals.

8. The primary submission of Mr Driscoll QC, for the defendant, is that there is no ambiguity in the transfer which needs to be resolved by the court. He argues that the property transferred was the property shown edged red on the plan; and that the property edged red on the plan, if scaled off, leaves a retained strip of 30, not 40, feet. He says that if the parties had intended that the 40 foot dimension should be decisive, the body of the transfer would have referred to the property "defined on the attached plan with the measurement and as shown edged red." Effectively, Mr Driscoll submits that the 40 foot dimension can and ought to be ignored.
9. In my view Mr Driscoll's primary submission must be rejected. It is plain that, while there is no ambiguity in the body of the transfer, there is an ambiguity in the plan. There is a conflict between the marked dimension of 40 feet and the actual scaled width of 30 feet. This conflict must be resolved by reference to well established principles affecting the construction of documents conveying or transferring interests in land.
10. Although it is sometimes overlooked and has not been referred to in argument in this case, the locus classicus for a statement of the relevant principles is the judgment of this court (Russell and Orr LJJ and Sir John Pennycuick) delivered by Sir John Pennycuick in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468, 476-477. That was a case where it was necessary to construe a reservation of a right of way. Sir John Pennycuick said:

"We feel no doubt that the proper approach is that on which the court construes all documents; that is to say, one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances……

Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction."

11. That statement was directed to the construction of the words of the body of an instrument. But the principle is the same in regard to the construction of a plan made part of the instrument. Thus, in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, 896, Lord Hoffmann dealt with the case where the parcels in a conveyance refer to a plan which for one reason or another is not determinative of the extent of the property conveyed. He said:

"The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed."

12. The primary submission of Mr Oughton, for the claimant, is that if a plan uses a dimension, then prima facie the dimension is to govern. He asks rhetorically: "Why else employ a dimension?" He says that a dimension is almost invariably more accurate than a line on a plan.
13. Mr Oughton's primary submission must also be rejected. It is impossible to hold, as a general proposition, that a dimension is almost invariably more accurate than a line on a plan. It may or may not be. Where you find a plan, however out of date and however small the scale, which can be scaled off to a reasonable degree of accuracy, you cannot ignore the conflict which that exercise may produce in relation to a dimension marked on the plan.
14. That there can be no such invariable rule is really a matter of common sense. But it is supported by a passage in the judgment of Bridge LJ in Jackson v Bishop (1984) 48P & CR 57, 62. That was a case, admittedly on very different facts, where it had been submitted that the trial judge erred in law in preferring figured dimensions of the boundaries on the plan to the dimensions of the boundaries as yielded by scaling off the plan. Having expressed a doubt that that was a decisive matter in the judge's decision, though it clearly played an important part in it, Bridge LJ said:

"It is true that the judge, in preferring the figured dimensions to the scale dimensions, purported to be following a dictum of Romer LJ in an unreported decision of this court, but for myself I doubt whether there is any rule of law one way or the other as to whether when a conflict is apparent between dimensions stated in figures on a conveyance plan and dimensions arrived at by scaling off the plan if the plan is drawn to scale, the one is to prevail over the other. It seems to me that the decision 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 conclusions seems to give the more sensible result."

15. The applicable principle established by these authorities is that, where there is a conflict between (1) dimensions in figures on a plan by which the property conveyed or transferred is described and (2) dimensions arrived at by scaling off the plan, the conflict is to be resolved by reference to such inferences as may be drawn from topographical features which existed when the conveyance or transfer was executed.
16. As to those features in the present case, the judge said, again in a passage of which neither side has made complaint:

"At its northern boundary the land was bounded by a wall. Immediately adjacent to the southern face of the wall there was a strip of land which was overgrown and unused. That strip had a width which was approaching 30 feet. There was next what is described as a concrete apron which had a width of a few feet and which was probably raised some inches above the unmade ground to its north. This concrete apron was certainly raised a few inches above the area which was immediately to its south and which was recognisably an area for car parking associated with the buildings upon the land. All these features are seen to a greater or lesser extent in [an exhibited photograph]. That photograph also shows part of the building used by the claimant as a betting office. It can be seen that it had been constructed to the south of the area described as the overgrown and unused land. That was common ground as was the fact that it was more or less adjoining the southern lip of the concrete apron on the eastern side. Its size was ascertainable and, in particular, its length and width."

17. On the basis of those features the judge concluded that a boundary based upon the red edging on the plan would coincide with features on the ground which could sensibly be regarded as boundary features. He added:

"The boundary line would be more or less coincidental with the northern edge of the concrete apron. The building used for the betting office would be upon the land transferred and therefore within the sole control of the defendant. The whole of the available land obviously used for parking would be transferred to the defendant."

18. We have seen the photograph referred to by the judge, which is agreed to depict the northern part of the property as it existed on the date of the transfer, 20^th March 2000. It does indeed show the northern boundary wall, the adjacent overgrown and unused strip, the concrete apron immediately to its south and the area which was recognisably an area for car parking. It also shows the northern end of the building formerly used by the claimant as a betting office; that it had been constructed to the south of the overgrown and unused strip; and that it was more or less adjoining the southern lip of the concrete apron at its eastern end.
19. Mr Driscoll relies on these features and also on the following passage in the report of the single joint expert:

"6. The physical and logical end of the Wheatsheaf site is defined by the northern edge of the concrete apron running around the car park which I believe is represented by the dashed line on the Ordnance Survey plan, albeit that this line is drawn in slightly the wrong position due to inaccuracies in the Ordnance Survey mapping system which they acknowledge."

As the judge observed (see para 4 above), the northern boundary of the land edged red on the plan is superimposed on the dashed line referred to by the expert. Mr Driscoll submits that this is a further significant indication that the boundary of the property transferred was intended to be aligned with the northern edge of the concrete apron.

20. Mr Oughton submits that the concrete apron, either on its own or with the other features relied on by the judge and Mr Driscoll, was not what he has described as a substantial or compelling boundary feature capable of prevailing over the clear and precise dimension of 40 feet. Implicit in that submission may be the notion that height is a necessary characteristic of such a feature. But whether that be right or wrong I cannot accept Mr Oughton's submission, especially when it is borne in mind that the northern edge of the concrete apron was adjacent to the southern edge of the overgrown and unused strip.
21. That is not an end of the matter. It is necessary to take account also of what Mr Driscoll has fairly described as the absurdity of attributing to the parties an intention that the boundary should run through a building at approximately 10 feet to the south of its northern end. What was to happen to the building after the transfer? If either party wanted to demolish the part of the building on his land, how was he to do so and could he do so if the demolition of his part threatened the structural stability of the other? Mr Driscoll also relies on the defendant's covenant (see para 6 above) not to erect any fence or wall between the points marked A and B in excess of 3 feet in height. He says, correctly, that that would permit the defendant to erect a fence or wall of a height of 3 feet or less. But again it is absurd to attribute to the parties an intention that such a wall or fence should run through the building.
22. In my view Mr Driscoll's submissions are to be preferred to Mr Oughton's.
23. It is important to point out that before the judge each side raised an alternative claim for rectification of the transfer. That meant that each side adduced a considerable amount of evidence which was either irrelevant to or inadmissible on the question of construction. Inevitably, however, the judge was led into relying on some of that evidence in considering the question of construction. In the result, some of his reasoning in relation to that question cannot be supported. It is unnecessary to go into detail. There was adequate relevant and admissible evidence, in particular of the topographical features which existed when the transfer was executed, on which his decision could be based. There can be no doubt that the judge's conclusion was correct and I would affirm it accordingly.
24. I would therefore dismiss this appeal.

Lord Justice Ward:

25. I agree.