ON APPEAL FROM CARLISLE COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
SIR D KEENE
| DIXON & ANR
|- and -
|HODGSON & ORS
Mr Edward Bartley Jones QC & Ms Sara O'Brien (instructed by Cartmell Shepard) for the Respondents
Hearing date : 21st November 2011
Crown Copyright ©
Black LJ :
The Transfer of The Arches
i) The Arches' double garage
ii) a line drawn at a slight angle from the south east front corner of the garage towards the eastern boundary with "gravel drive" labelled to the north of the line
iii) red/black/blue colouring running east/west; I can see the word "Planter" under the blue colouring but it was not visible on all copies
iv) a double dashed line running east/west south of the colouring ("the south tramlines")
v) another east/west line ending in a curve at the easterly end.
At the west end of the boundary is a small piece of land, rectangular in shape which is plainly in the ownership of the Bungalow Site but extends back to somewhere around the rear south corner of The Arches' garage. This piece of land has been called "the peninsula". The line described at iv) above extends across it and when using the term "peninsula" in this judgment, I will treat that as representing the south edge of the feature. There is a similar double dashed line running parallel to the south tramlines further north, about half way up the peninsula ("the north tramlines"). The Green Farm gate is indicated by the word "gate" on the eastern boundary. At that point, the otherwise straight boundary line is indented which the appellants argued was intended to indicate an open gate, thus showing that the hinge is at the southern end. If that is right, it would indicate that the gate has its southern end at a point some way south of the south tramlines and roughly opposite the point where the half moon of the raised bed begins.
The Recorder's approach
"(1) My task is to determine, objectively, from the admissible evidence available, what the parties intended to transfer. I disregard evidence of their subjective intentions, including negotiations, which may only assist on the question of rectification.
(2) The earlier authorities suggest that if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer (Scarfe v Adams  1 All ER 843 per Griffiths LJ at p 851).
(3) The modern tendency is to use all admissible material in order to arrive at the correct answer (Strachey v Ramage  EWCA Civ 384 per Rimer LJ at para 33)."
"27. In my judgment, the weight of the evidence clearly suggests that the common boundary was intended to be along the line of a wall, and that this would lead to an entrance onto the Bungalow Site marked by two pillars, with the eastern most pillar adjacent to the north of the gateway to Green Farm. This can be seen on the Brierleys' architect's plan….which formed the basis on which the respective properties were marketed by Hayward Tod. See in particular the plan attached to the sales particulars for the Bungalow Site………On this basis, the strip of land immediately to the north of the wall and marked 'Planter' on the plans and which may have formed an embankment, would have been retained within the Bungalow Site.
28. However, significantly, one can see a clear discrepancy between the way in which those plans were marked up and the way in which the wall was actually constructed on the ground. The wall was actually constructed further south, along the southern most line of the land marked 'Planter', and with the wall and pillars extending, albeit by a kinked line, to a point immediately to the south of the gateway to Green Farm. This can be seen on site and in the photographs. It is also helpfully shown on the site plan and overlay….The result is that the area of land marked 'Planter' actually forms the embankment on The Arches side of the wall and which again can be seen on site and in the photographs.
29. Regrettably, the selling agents, architects and conveyancers seem to have been blissfully unaware of the discrepancy and so do the parties when they came to purchase the respective plots. In my judgment, the very fact that the parties were unaware of the discrepancy and had not for example spotted that the plans showed the wall extending to the pillars adjacent to the northern gatepost to Green Farm with the raised planting area on the Bungalow Site side of the wall, suggests to me that they had not attached much significance to the plans, and were guided by the physical feature which was then on the ground and demarcated an obvious boundary between the two properties, being the wall on the southern side of the embankment, connecting the two brick pillars which formed an obvious entrance to the Bungalow Site.
30. In my judgment therefore, as a matter of construction, the true boundary between the Bungalow Site owned by the Dixons and The Arches owned by the Hodgsons is along the northern face of the wall shown on the site survey plan ….and extending across the northern faces of the two brick pillars forming the entrance to the Bungalow Site, also shown on the plan."
"29. …I sought to construe, objectively, the Transfer dated 16th October 2003 having regard to all admissible evidence including the physical features on the ground at the time, and I specifically listed the matters that I had considered at paragraph 24(6). That task leads to the determination of what, objectively, was intended to be transferred. I acknowledge with hindsight that my reference in paragraph 24(1) of my judgment to "what the parties intended to transfer" was perhaps inappropriate, but the task I plainly set myself was to determine the correct boundary having regard to objective evidence.
30. Further, having assessed the evidence, I considered that the weight of the evidence clearly suggested that the common boundary was (objectively) intended to be along the line of the existing wall which was a significant and obvious boundary feature in existence at the time (paragraph 27), but I pointed out also that there was an obvious discrepancy between the position of the wall on the plans and position of the wall on the ground (paragraph 28). The significance of this point only emerged at trial when raised it and I felt constrained to point out that the parties themselves, as well as the selling agents, architects and conveyancers seemed to have been unaware of this at the time. I concluded that the position of the wall on the ground should prevail.
31……The plans identified the southernmost double tramlines being the intended position of the boundary wall (and connecting to intended gateposts), as the common boundary. However, as I have pointed out, the boundary wall was actually construed [presumably intended to read 'constructed'] further north towards the bungalow. Objectively construed, I considered the line of the boundary wall to be the intended boundary, and it seemed to me that the reasonable man, attending on site at the time of the transfer, with the plan in his hand, but having regard also to the position of the substantial boundary wall on the ground, would inevitably conclude that the line of the physical boundary would prevail. Indeed, I regard the result contended for by [the appellants], that the reasonable man, attending on site would regard the lower edge of the embankment as the boundary to be wholly unrealistic."
"44……As the plan is insufficiently clear about the position of the boundary, this was a case in which the judge was entitled to take the plan in hand and look at the physical features of the land on the ground as at the date of the 1993 Conveyance…."
"(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land….
(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 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."
"12. Looking at the 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 rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence  EWCA Civ 1121;  1 P. & C.R. 176 at 187; cf Beale v. Harvey  EWCA Civ 1883; 2 P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips  EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. Neilson v. Poole (1969) 20 P. &C.R 909; Wigginton & Milner v. Winster Engineering Ltd  1WLR 1462; Scarfe v. Adams  1 All ER 843; Woolls v. Powling  All ER (D) 125; Chadwick v. Abbotswood Properties  All ER (D) 213 and Ali v. Lane  EWCA Civ 1532 were also cited on the construction points.
13. Before the judge and in this court it was agreed that the parties' subjective beliefs about the position of the disputed boundary in this case and about who owned the bed of the stream were extrinsic evidence that was inadmissible in the construction of the relevant conveyance: Investors Compensation Scheme Ltd v. West Bromwich BS  1 WLR 896 at 913. The effect of the conveyance is not determined by evidence of what the parties to it believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean."
"4. The answer to the question where the true boundary lies depends on the interpretation of the transfer by which the land was transferred. A land transfer is a sub-species of written instrument; and the principles that apply to the interpretation of written instruments apply equally to land transfers. In Strachey v Ramage  EWCA Civ 384  2 P & CR 8 Rimer LJ said (§ 29):
"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."
5. In addition to the written instrument considered as a whole, the court must also take into account the physical features on the ground at the date of the transfer."
He then went on to quote the passage from paragraph 12 of Mummery LJ's judgment in Pennock which I have reproduced above.
"25. One then has to try to relate what the plan shows to the features on the ground. Although Mr Ball did not accept that it would be apparent on the ground that the retaining wall and fence did not accord with the plan, it is to my mind quite plain, as demonstrated by the photographs in evidence, that the line of the retaining wall and fence did not accord with the straight line shown on the plan….."
26. It is that discrepancy that gives rise to the problem. There are two possible arguments as to what was intended."
Those were, of course, that the boundary was intended to follow the line on the plan or that the retaining wall/fence which had been placed by the developer with the intention of marking the boundary did in fact mark the true boundary and the plan was inaccurate. Amongst the arguments advanced by the defendant's counsel in favour of the wall/fence was the argument that the line of the wall and fence would be apparent to any reasonable purchaser who came to the site who would automatically assume that that was the boundary.
"The fact that the retaining wall and the fence, although intended to be on the boundary line as the directions on the plan show, were built on a different line cannot be determinative of the true boundary. The erection of the retaining wall and fence on that different line seems to me to have been plainly an error, because it was inconsistent with what is shown as the straight red line on the plan. Further it would flout common sense to hold that, wherever [the developer] happened to build a retaining wall and fence, that must be the boundary regardless of the features of the plan to which I have drawn attention, even though at the time the plan was drawn the retaining wall and fence had not been erected and so the line of the red edging west of the buildings was not following existing features on the ground. Those accustomed to deal with conveyancing problems know only too well how frequently instructions on a plan are incorrectly carried out and building or fences or walls are put up in the wrong place. The difficulties for workmen trying to carry out instructions on a site plan are greater where, as here, a wall or fence is to be erected on a featureless agricultural field. It would be absurd to attribute to the parties the intention that what was erected, however erroneously, subsequently to the preparation of the plan, should define the boundary, when the immutable feature at all material times of the line of the sides of Phoenix Barn and The Shippen where they joined was shown on the plan as part of the straight boundary line from the estate road to the millstream."
"43. The principles applicable to the interpretation of a transfer of real property are not open to serious doubt. A transfer, like any other contractual document, must be interpreted in the light of the background facts reasonably available to the parties. Although it has been said that extrinsic evidence is not admissible to contradict the words of a transfer where the language of the transfer is clear, this may need reconsideration in the light of the modern approach to the interpretation of contracts: Partridge v Lawrence  EWCA Civ 1121,  1 P & CR 176 per Peter Gibson LJ. But in any event, the transfer in the present case is far from clear. 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.
"28. There is little or no dispute between the parties as to the approach to the construction of the 1995 deed as a contractual document. As Sir John Pennycuick, giving the judgment of himself, Russell and Orr L.JJ. in St Edmundsbury and Ipswich Diosecan Board of Finance v Clark (No.2)  1 WLR 468 at 476, said:
'…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.'"
However, Partridge v Lawrence is also of interest for one aspect of the facts. The plan annexed to the deed had no recognisable scale so it was not possible to determine the width of the right of way solely from it. It was, in fact, a reduced, distorted copy of an architect's scale plan and 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.
The arguments: The appellants
The arguments: the respondents
i) The boundary starts in the east in the vicinity of the Green Farm gate and, specifically, at the place where the north/south line on the plan is indented for a relatively short distance.
ii) It runs east/west across the site in roughly a straight line from that point.
iii) At the western end, it meets the peninsula at a point roughly half way down it.
Sir D Keene: