Case No: B2/2011/0169
Neutral Citation Number: [2011] EWCA Civ 1421
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
HHJ BRAY
8KG00838
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/11/2011
Before :

THE CHANCELLOR OF THE HIGH COURT
LORD JUSTICE HOOPER
and
LADY JUSTICE RAFFERTY
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Between :

	(1)	DAVID JAMES BROWN
(2)	VALERIE KAY BROWN	Claimants/ Respondents	
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	(1)	DANIEL RENE PRETOT
(2)	MELANIE PRETOT	Defendants/
Appellants	

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MR. D. HOLLAND QC (instructed by Messrs. Lamb & Holmes) for the Appellants.
MR. A. WILSON (instructed by Turner Coulston Solicitors) for the Respondents.

Hearing date: 26th October 2011
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Judgment
Lord Justice Hooper: 
1.	On 13 August 1999 Mr and Mrs Pretot, the appellants, completed on their purchase of 33 Moorhouse Way, Kettering, from Connolly Homes PLC (“Connolly”). Connolly had acquired development land for the purposes of building houses on it and selling those houses.  Number 33 had previously been described as Plot 55.   Number 33 consisted of a house, separate garage and garden, the house and garage being at the southern end of the property.  The garage had only been built after Mr and Mrs Pretot had agreed to buy the property on 23 July 1999.  Connolly had also built in the period between the contract and the transfer a 1.8 metre paling fence (“the fence”) apparently to mark the western boundary of Number 33. It is the appellants’ claim that the fence does in fact mark the western boundary of their property.  
2.	Annexed to the transfer to the appellants was a plan (“the plan”), which was described therein as being “for the purposes of identification only”. The plan showed an outline of the house and a separate garage. The plan also showed plot 56 which adjoined the western edge of the appellants’ property. 
3.	Plot 56, which became Number 31 Moorhouse Way, was, in October 19999, transferred by Connolly to Mr and Mrs Brown, the respondents to this appeal and the claimants in the court below. Annexed to the transfer to the Browns was the same plan as attached to the transfer to the appellants but with a line drawn around plot 56.
4.	I attach as Annex A to this judgment a sitemap with additional alignments which was annexed to the judgment HHJ Bray in the court below and to which I have added N and S to show north and south. I shall call this sitemap “Annex A”.  
5.	A dispute arose as to the location of the appellants’ western boundary. The respondents claimed in 2006 that the true boundary was not where the fence was located but along a line to the east of that fence. The land claimed by the respondents is triangular in shape and is some 12 feet wide at the north end (i.e. at the bottom of the gardens) reducing to a point where the fence meets the garage.  On Annex A points C, D and G mark the triangle. Point C marks the north end of the fence. Point D marks the north end of the boundary for which the respondents contend.  Point G marks a point on the north-west of the garage.  
6.	It was not in dispute that if the plan (that is the plan attached to the transfer to the appellants) accurately reflected the western boundary, then a small and triangular portion of the western part of the appellants’ garage formed part of the respondents’ property. However the respondents did not claim that they owned any part of the garage.
7.	It is accepted by the appellants that the plan, albeit with no measurements, was sufficiently precise to show the western boundary running from the south end of the property, point H on Annex A, to point D on Annex A.
8.	The plan also showed the garage but not in the position in which it was in fact constructed. 
9.	The appellants agreed in the transfer: “to maintain the fences on the boundaries marked with a “T” on the Plan”. The plan showed that the maintenance of the fence on the eastern and northern boundaries was the responsibility of the appellants and the maintenance of the fence on the western boundary was the responsibility of the owner of plot 56. 
10.	The garage was built (in the period after the contract and before the transfer to the appellants) not in accordance with the plan but, in the words of the judge, “skewed slightly anti-clockwise from the orientation on the plan”. The garage was then used to locate the fence which was built as an extension of the flank wall. Thus the fence as constructed ran north from the western edge of the garage to the end of the garden, from point G to point C on Annex A.  In the words of the judge, the fact that the garage was “skewed” also “meant that the boundary fence running from the western wall of the garage was also misaligned.” To put it another way, the garage was built so that its western edge ran approximately south to north whereas, if it had been built in accordance with the plan, the western edge would have run south to a little east of north. The constructed fence also ran approximately south to north (i.e. from point G to point C on Annex A) rather than south to a little east of north (i.e. from point G to point D on Annex A).
11.	The judge held that the western boundary of the appellants’ property was as shown on the ground by the position of the garage and but not as shown on the ground by the position of the fence.  
12.	The judge made an order granting a declaration, drafted by counsel, that the boundary “runs between points G and D on the plan at page 182 of the trial bundle”, now Annex A, which “line is derived from the plan annexed to the transfer of No. 33” Moorhouse Way. This is not strictly accurate. If the line had been derived from the plan annexed to the transfer of No. 33, then part of the garage would have been in the neighbouring plot.  Probably because the respondents were not claiming that they owned part of the garage, the judge did not really grapple with the fact that, if the true boundary line were to be the line marked on the plan, then part of the garage would have been built outside the western boundary, would have been retained by Connolly and would have been transferred to the respondents when they bought the adjoining property in October. 
The Contract dated July 23 1999 between the appellants and Connolly
13.	We were referred to the following clauses:
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 
14.	We were referred to the following clauses: 
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
15.	HHJ Bray set out the facts as agreed or found by him. He quoted Lord Hoffmann in ICS Ltd v West Bromwich [1998] 1 WLR 896, at 912:
“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.” 
16.	The judge accepted that the court is entitled to have regard to extrinsic evidence where the parcels clause is not sufficiently clear and that extrinsic evidence can include a plan described as for identification purposes only and the features on the ground at the time of the conveyance. 
17.	Having looked at the contract, the transfer, the plan and the positioning of the garage and fence at the time of the transfer, he came to the conclusion that Spall v Owen (1982) 44 P&CR 37 (Peter Gibson J) was on all fours with the facts of this case. He said that the logic of the judgment in that case “must apply equally to the construction of the fence and to the garage.” Notwithstanding the reference in this passage to the garage, he did not include any part of the garage as being within the respondents’ property.
18.	The judge concluded that the plan “does sufficiently delineate the boundaries of the property”. He noted that the fence as constructed by the builders was some 2.4 metres away from the original boundary line (at its widest point) and that there is a material difference between the plan and what was constructed on the ground. Although he concluded that the plan sufficiently delineated the boundaries of the property, the plan which he annexed to the judgment showed (as I have said) the whole of the garage to be within the appellants’ property. As I also have said, if the judge had taken the true boundary line as being the line marked on the plan, then part of the garage would have been built outside the property lines, would have been retained by Connolly and would have been transferred to the respondents when they bought the adjoining property in October
The appellants’ submissions
19.	Mr Holland QC submits that having regard particularly to clause 3.2 of the contract, clause 1.1.9 and paragraph 15 of the Third Schedule of the transfer and the position of the garage and fence as they had been constructed at the date of transfer, the judge ought to have dismissed the respondents’ claim. I am not sure how relevant clause 3.2 of the contract is, given that we do not know why the garage was located in the position which it was.  Mr Wilson submits that there was no evidence that it was necessary or expedient to locate the garage in the position in which it was located.  It is likely to have been a mistake. In any event we are concerned with the construction of the transfer not the contract.
20.	Mr Holland submits that if the western boundary is that marked on the plan then the absurd consequence is that part of the garage was not transferred to the appellants but later transferred to the respondents. He also submits that the judge placed too much reliance on the plan which was expressly stated to be for the purposes of identification only and did not reflect what had in fact been built on the land by the date of the transfer. He also submits that that the judge was wrong to conclude that this case was on all fours with Spall v Owen.
The respondents’ submissions
21.	The respondent relies on the judgment of HHJ Bray and submits that the judge was right to find this case on all fours with Spall v Owen.  I return later in this judgment to other submissions made by Mr Wilson.  
The law
22.	The most recent authoritative decision of this Court is Pennock v. Hodgson [2010] EWCA Civ 873 (Mummery, Longmore and Wilson LJJ). The plan attached to the conveyance “for the purpose of identification” showed a wiggly line which represented a stream. However the plan was insufficiently clear about the position of the boundary and in particular whether the boundary followed the stream. 
23.	The Court upheld the trial judge’s decision that he was entitled to look at the physical features in the area of the stream at the time of the conveyance which included a fence a few feet back from the stream (not marked on the plan) and choose the line of the fence as the line of the boundary.  
24.	In paragraph 9 of his judgment (with which the other members of the Court agreed) Mummery LJ distilled the following points from Alan Wibberley Building Ltd v. Insley [1999] 1 WLR 894 (HL):
“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.”  
25.	In paragraph 12 Mummery LJ said:
“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.”  
26.	I accept that in this appeal, unlike in Pennock v. Hodgson, the plan is sufficiently precise to show the western boundary in the position claimed by the respondents. Nonetheless, as Mummery LJ says, in principle there is no reason for preferring a line drawn on a plan as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary. As he also says, the surrounding circumstances include knowledge of the objective facts reasonably available to the parties at the relevant date.  In this appeal the relevant objective facts are the position of the garage and of the fence.
Spall v Owen
27.	I turn to Spall v Owen, upon which the judge so heavily relied. 
28.	The estate developers provided persons interested in buying a house on the estate with a site plan showing 18 houses to be erected on the site. Those houses were identified on the site plan by plot numbers. The case concerned three contiguous plots, nos. 1, 2 and 3. Number 1 was conveyed first to the plaintiffs.  Between the plots was a disputed strip, the dispute arising because of a discrepancy between the site plan and a fence which had been erected between the plots after the contract for the sale of plot 1 but before the conveyance. The parcels clause for the plot 1 conveyance read: 
“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.”
29.	The annexed plan had a red line round plot 1 following, on the north-west and south-west side, the line of the fence shown on the plan. When, before the conveyance of plot 1, the fence was erected on the south-west side it was not placed on the line shown on the site plan but, so the judge found, seven feet further to the south-west so that it took in the disputed strip. Peter Gibson J said in his conclusions:
“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)
30.	In this passage Peter Gibson J is (I believe) saying that the identity of plot no. 1, at the time of the contract, could only be ascertained by reference to the plan, no fence having been built at that time. That plan excluded the disputed strip. He then concludes that it would be remarkable 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. 
31.	This, in my view, distinguishes Spall v Owen from this case. In this case it would be very remarkable if the plan took precedence so that a portion of the appellant’s garage had not been conveyed to them, was retained by Connolly and now belonged to the respondents. Furthermore in this case the parcels clause described “the Garage” as the garage built within the Plot.  
32.	In any event I have some doubt whether the emphasis in Spall v Owen upon the terms of the contract is consistent with Pennock v. Hodgson.
33.	In my view Pennock v. Hodgson rightly requires the court in a dispute with the features of this case to interpret the conveyance having regard to the actual and known physical condition of the relevant land at the date of the transfer/conveyance, rather than have regard to the intention of the parties at the time of the contract.
34.	I have looked in some detail at Partridge v Lawrence [2003] EWCA Civ 1121; [2004] 1 P. & C.R.14, another similar boundary dispute in which Peter Gibson, by now LJ, gave the leading judgment. The facts of the case are complex. It concerned, amongst other things, the width of a right of way over a site, expressed in the deed to be of a width no greater and no less than the land shown cross-hatched on the plan. That cross-hatching showed that the right of way was wider at one end than the other. The plan was a reduced and thus distorted photocopy of drawing number 1642A. Because of the distortion, it was not possible to determine the scale of the plan and thus the width of the right of way. Another clause stated that the site is shown for identification purposes only on drawing number 1642A.  Peter Gibson LJ (with whose judgment the other members of the court agreed) said that in these circumstances one had to go outside the deed to look at the surrounding circumstances.  Looking at drawing number 1642A the width of the right of way was readily ascertainable at 5.5 metres throughout its length and that was to be preferred to the clause of the deed which stated that the right of way was of a width no greater and no less than the land shown cross-hatched on the plan.  
35.	The deed, albeit that it appeared on its face to establish the width of the right of way by reference to the attached plan, fell to be interpreted in the light of surrounding circumstances.  No reference was made in the judgment to Spall v Owen.
Discussion and conclusion
36.	The court’s task is to construe the terms of the transfer as a whole as at the date of the conveyance and resolve any contradictions. The parcels clause except in so far as it placed the garage within the plot was not sufficient to identify the boundaries. The parcels clause referred to the plan but the plan is stated to be for the purposes of identification only. Such a plan may be taken into account particularly when the parcels clause is inadequate to define the boundaries with precision: see Strachey v Ramage [2008] EWCA Civ 384, per Rimer LJ at paragraphs 31 and following.  I stress that this is not a case where the parcels clause refers to the plan as more particularly delineating the boundaries: see Strachey v Ramage at paragraph 40 in which another judgment of Peter Gibson LJ is considered.
37.	In Strachey v Ramage the parcels clause was insufficient to identify the relevant boundary. The trial judge had used a plan stated to be for identification purposes only as determinative of the boundary. Rimer LJ (with whose judgment the other members of the court agreed) stated that he was wrong to do so for two reasons. The first reason was that the judge had failed to construe the parcels clause by reference to other clauses of the conveyance. Secondly the judge should have recognised a fence as marking the boundary.  Rimer LJ said:
... 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 [1970] 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.
38.	The plan with which we are concerned in this appeal, in so far as it shows the garage, is in conflict with clause 1.1.9 of the transfer which describes “The Garage” as meaning the garage built within the Plot. The boundaries marked on the plan would have placed part of the garage outside the plot and on the neighbouring plot retained by Connolly.
39.	It follows that the whole of the garage is within the plot transferred to the appellants and to that extent the plan does not show the correct western boundary. 
40.	The judge, by the terms of the declaration he gave, must have accepted that, to this extent, the plan did not show the correct western boundary. However he went on to declare that the true western boundary ran from the north-west corner of the garage to the end of the garden, G to D on Annex A.  But that also did not reflect what was shown on the plan. As I have said the point he selected at the north end (D) reflected the plan but not the point at the north-west corner of the garage (G).
41.	For two reasons the judge was, in my view, wrong. 
42.	First, the plan read with paragraph 15 of the Third Schedule shows that the maintenance of the fence on the western boundary is the responsibility of the owner of Plot 56 (later the respondents).  That, in my view, can only sensibly mean the fence erected by the time of the transfer. If on the day of the transfer the question had been asked “Whose responsibility is it to maintain the 1.8 metre paling fence which has been built by Connolly between plots 56 and 55?”, the answer would surely have been the owner for the time being of plot 56 (at that time Connolly). If the respondents are right in their submissions, the answer would have to be that the already constructed fence would have to be torn down and a new fence built along a line to the west of that fence, the maintenance of which, having been built, would be the responsibility of the owner for the time being of plot 56. 
43.	Secondly the judge’s conclusion is not in accordance with the principle enunciated by Mummery LJ:
“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.”
44.	In this case the relevant surrounding circumstance is the location of the garage and fence. 
45.	Mr Wilson’s primary submission is that the plan which was attached to the contract and to the draft transfer presumably reflects Connolly’s original intentions and should take priority over the terms of the transfer and the physical characteristics on the ground. But if we are construing the terms of the transfer in the light of those terms and the objective circumstances existing at the time of the conveyance, then the plan attached to the contract and to the transfer “for identification purposes only” will not necessarily take precedence.  Such a plan does not necessarily show the true boundary. 
46.	Given the position of the garage and of the fence on the western boundary, it seems to me that the boundary shown on the plan attached to the transfer “for identification purposes only” must give way on the facts of this case in favour of the actual position of the garage and of the fence taking into account the parcels clause and the Third Schedule.  
47.	I would allow the appeal and conclude that the respondents’ claim against the appellants failed.   
LADY JUSTICE RAFFERTY		
I agree.
THE CHANCELLOR OF THE HIGH COURT
I also agree.