ON APPEAL FROM NORTHAMPTON COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LADY JUSTICE RAFFERTY
| DAVID JAMES BROWN
VALERIE KAY BROWN
|- and -
|DANIEL RENE PRETOT
MR. A. WILSON (instructed by Turner Coulston Solicitors) for the Respondents.
Hearing date: 26th October 2011
Crown Copyright ©
Lord Justice Hooper:
The Contract dated July 23 1999 between the appellants and Connolly
1.2 The Plot is more particularly described in the form of the draft transfer annexed hereto.
3. The Developer shall have the right if reasonably necessary or expedient:
3.2 To vary the construction of the House or the exact siting thereof the line of the boundaries or the route of the service media serving the Plot so far as may be necessary as a result of the use of any substituted materials or so far as is found to be necessary or expedient in the course of carrying out the construction of the Estate.
8. The Transfer of the Plot to the Purchaser shall be in the form of the Transfer annexed hereto to which no alterations or additions will be permitted.
The transfer dated 13 August 1999 between the appellants and Connolly
1.1.4 "The Plan" means the plan which is for the purposes of identification only annexed hereto.
1.1.7 "The Plot" means ALL THAT piece or parcel of land comprised in the title above mentioned and shown on the Plan annexed hereto and thereon edged red being Plot 55 of the Estate together with premises erected thereon on some part thereof and known or intended to be known as 33 Moorhouse Way, Kettering.
1.1.8 "The House" means the residential dwelling house erected on part of the Plot.
1.1.9 "The Garage" means the garage ... built within the Plot.
1.1.10 "The Garden" means the garden land forming part of the Plot.
3. Transferees Restrictive Covenant
….the Transferee hereby covenants with the Transferor to observe and perform the restrictions and stipulations contained in the Third Schedule hereto.
THE THIRD SCHEDULE
Restrictions and Stipulations
1. Not within three years of the date of this Deed to alter the external plan or elevation of the House or Garage as now erected upon the Plot not to erect any other building upon the Plot without first submitting to the Transferor plans….
15. To maintain the fences on the boundaries marked with a "T" on the Plan.
The judge's decision
"Interpretation is the ascertainment of the meaning which the document would convey to the reasonable person having all the background knowledge which would have been reasonably available to the parties in the situation in which they were at the time of the contracts."
The appellants' submissions
The respondents' submissions
"1. The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.
2. An attached plan stated to be "for the purposes of identification" does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.
3. Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.
4. In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary."
"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."
Spall v Owen
"All that piece or parcel of freehold land situate and forming part of the Vendor's Hattons Road estate … together with the dwelling-house and garage erected thereon or on some part thereof and known as plot no. 1 Hattons Road Estate, Long Stanton, aforesaid and intended to be known as number [blank] Long Stanton aforesaid … all which property is for the purpose of identification only delineated on the plan … annexed hereto and therein edged red."
"As I have said, the word "plot" is suggestive of a plan, and, consistently with the remarks of Buckley L.J. in Wigginton & Milner Ltd. v. Winster Engineering Ltd., I think that the court can look at the plan for the purpose of obtaining assistance on what was intended to be conveyed. That plan is of course a copy of the site plan which has formed the basis of all the negotiations between [the estate developer] and the plaintiffs.
There is nothing on the ground that gives plot no. 1 its identity. Only the plan did that. ... [T]his plan was a detailed large scale (1:500) plan on which a seven-foot difference in the width of these very small plots would be readily visible and a major alteration to the plot.
The fact that seems to me to be the most telling surrounding circumstance in the present case relates to the description of the plot in the contract. The description in the contract of the parcels is to be found in the draft conveyance which contained the identical language and plan to what are found in the conveyance as executed.
The parties could not at the date of contract have intended by the phrase "known as plot no. 1" anything other than the plot as delineated on the plan annexed to the draft conveyance. There was (on my finding as to the fence) at that time no physical boundary on the ground to indicate where plot no. 1 ended and plots nos. 2 and 3 began.
The identity of plot no. 1 could only be ascertained by reference to the plan. On the plan plot no. 1 excluded the disputed strip. It would be remarkable indeed if without any further agreement between the parties the erection of a fence several weeks after the contract and shortly before the conveyance, were to have the effect that what was conveyed to the plaintiffs differed from what they contracted to buy although the parcels clause in the contract and the conveyance both of which they had signed at the same time, was identical. It seems to me therefore that what was known as plot no. 1 is unlikely to have been changed by the late erection of the fence. The fact that there was a fence, although a relevant surrounding circumstance, should not be the predominant factor.
It is plain when one looks to the plan on the conveyance for assistance that the land to be conveyed did not include the disputed strip. In the result, in my judgment, on the true construction of the conveyance to the plaintiffs and in the light of the surrounding circumstances the land which was conveyed by the conveyance to the plaintiffs did not include the disputed strip." (Emphasis added)
Discussion and conclusion
... there was clear authority in this court which underlined why the judge should have recognised the fence as marking the boundary. In Webb v. Nightingale, 8 March 1957, unreported, the conveyance plan was similarly "for the purpose of identification only" but the conveyance had been preceded by the staking out of an agreed boundary which was there for all to see. There was an apparent discrepancy between the conveyance plan and the line of the staked out fence. Denning, Romer and Parker L.JJ had no difficulty in concluding that the evidence on the ground superseded any different impression that might be derived from the conveyance plan and that it was that evidence that identified the true boundary. That approach was followed and applied by Foster J in Willson and Another v. Greene and Another, Moss Third Party  1 WLR 635, which contains useful citations from Webb. In my view it is an approach that is also endorsed by Lord Hoffmann in the passage from his speech in Wibberley ... . For reasons I do not understand, the most relevant topographical feature, namely the newly erected fence, is one the judge chose to ignore.
"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."
LADY JUSTICE RAFFERTY
THE CHANCELLOR OF THE HIGH COURT
I also agree.