ON APPEAL FROM THE CHANCERY DIVISION
Ms Susan Prevezer QC
(Sitting as Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE LEWISON
| DRAKE & ANR
|- and -
Mr Leslie Blohm QC & Mr Alex Troup (instructed by Coodes ) for the Respondent
Hearing date : 2 November 2011
Crown Copyright ©
Lord Justice Lewison:
"The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions."
"That required a consideration of the February conveyance in the context of the surrounding circumstances in which it was granted, and having regard also to any evidence properly admissible for the purposes of its interpretation. It is a statement of the obvious that the crucial provision in the conveyance was the parcels clause, since it was there that the parties identified the land being conveyed. It is, however, fundamental that the parcels clause in a conveyance should not be considered in isolation from the remainder of the document. It is a general, and basic, principle of the construction of documents that questions of interpretation should be answered by considering the document as a whole, since only then can the provision giving rise to the question be seen in its proper context. There can be no reason for this principle not to be equally applicable in relation to the interpretation of a conveyance for the purpose of identifying the limits of the land conveyed by it."
"Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction."
"the land forming part of Hustyn Mine Park Burlawn in the County of Cornwall as the same is for the purposes of identification only shown edged red on the plan annexed hereto and by admeasurement approximately 153.764 acres comprising
|1516 Part||75.990 est|
|1516 Part||0.7 est|
"3. IT IS HEREBY AGREED AND DECLARED by the parties as follows:
D. That the earth/wall boundary between points marked E and D and D and C1 on the said plan shall be deemed to be divided midway vertically.
4. The parties … HEREBY MUTUALLY COVENANT … not to allow their respective parts of the said boundary (referred to at 3 above) to fall into disrepair so as to affect the stability of the other side thereof.
5. The Purchasers HEREBY JOINTLY AND SEVERALLY COVENANT with the Vendor as follows:
(i) (Subject to the Vendor having previously carried out the works referred to in Clause 6 hereof) to maintain the boundary between points C and B, and B and F shown on the plan in good and substantial stockproof condition …
6. The Vendor HEREBY COVENANTS with the Purchasers as follows:
A. At all times hereafter to make good any damage caused to the boundary between points C and B and B and F shown on the plan by the Vendor's … animals farm machinery or vehicles
B. Within one month of the date hereof to put in stockproof condition (so that the lambs will not encroach beyond the fence and by renewing all broken posts) the fence between points marked B and F on the plan…"
"The formula "for the purpose of identification only" is one whose use is time-honoured. Its ordinary sense is that a plan so described is intended to do no more than identify the position and situation of the land: it is specifically not intended to identify its precise boundaries. The use of such a plan is therefore strictly only appropriate for a case in which the verbal description in the parcels identifies the limits of the land with adequate precision since it is a formula which indicates that the verbal description is intended to be decisive in that respect. Such a plan "cannot control the parcels in the body of any of the deeds" (Hopgood v Brown  1 WLR 213, at 228, per Jenkins LJ); 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" (Wibberley, supra, per Lord Hoffmann)."
"In particular, I agree with the Adjudicator that Clauses 3 to 6 of the Transfer point strongly in favour of the Fence being the boundary of the land transferred:
(i) In clause 3 (D) there is a reference to the "earth/wall boundary" between points marked E and D and C1 on the plan, which is to be divided midway vertically. This is clearly a reference to a Hedge, it being the only physical feature on the ground that could constitute an "earth/wall" boundary, and it is to be divided down the middle, with each party covenanting in Clause 4 to maintain their respective part. Accordingly, (as the Adjudicator found at Paragraph 14 of the Decision), where the partiers intended the boundary feature to be a hedge, they chose to describe it expressly where the exact position of the boundary was (ie, the mid-point of the hedge);
(ii) However, in Clause 5 (1), the reference to the boundary between points "C" and "B" and "B" and "F" is clearly to the Fence. The reference to "stock proof" in Clause 5 (1) picks up the reference to "stock proof" in Clause 6 (A) and to the reference to the Fence in Clause 6 (B). The obligation in Clause 5 (1) is contingent upon the obligation in Clause 6 (B) being performed. If Clause 5 (1) was referring to the Hedge as the boundary (and not the Fence), then Clause 6 (B) would be difficult to construe, because (as the Adjudicator commented at Paragraph 16 of the Decision) it would require the Vendor to put in "stock proof" condition a fence with was on transferred land. It is also unlikely that the parties would have agreed to an obligation to put and maintain a Cornish hedge in "stock proof" condition, as Cornish hedges are made of stones and this would be a very onerous obligation. Further, it is easier to conceive of an animal damaging a fence than the remains of a Cornish hedge. Accordingly, on any sensible reading of Clauses 5 and 6, the Fence is to be put into a stock proof condition by the Vendor and is then to be maintained by the Purchasers in a stock proof condition, it being the boundary between the Purchasers' land and the Vendors' retained land."
i) Clause 5 (i) of the transfer identifies work to be carried out on "the boundary" between points B and F. Clause 6 (B) tells the reader what that boundary is viz. "the fence" between points B and F.
ii) As a matter of simple cartography points B and F on the plan are clearly meant to indicate points on the boundary. If they were not meant to indicate points on the red line denoting the boundary, there would have been no way of knowing where they were. The wording of clause 6 equally clearly ties those points to the fence.
iii) The purpose of making the fence stockproof was, as clause 6 says, so that the lambs would not "encroach" beyond the fence. The use of the word "encroach" is itself strongly indicative that the fence was meant to be the boundary.
"In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which—
(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor."
"(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only.
(2) In such cases the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream."
"(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.
(2) A general boundary does not determine the exact line of the boundary."
"It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed, you may say that the matter has passed from any sensible use of the phrase "boundary dispute" and becomes something else. But applying the common sense test, if, as Mr. Plowman invited us to do, you put the question here: is the plaintiff saying in truth that the defendant got the wrong property by the land certificate? I would answer the question negatively. I think, for my part, that there is no doubt that the certificate purported to give him, and gives him, the right property. What, on the evidence, it has failed to do is to indicate its boundaries with sufficient correctness and precision."
Lord Justice Aikens:
Lord Neuberger, MR: