England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st October 2003

Mr Justice Peter Smith:

INTRODUCTION

1. This Judgment is in respect of a preliminary issue ordered by Master Winegarten on 17^th March 2003, to determine the following:-

"Whether the common boundary between C's property, 45 Millharbour, London E14 and D's property, 41 Millharbour, London E14 is:-

(a) Along the line A-B marked on the plan attached to the Particulars of Claim (as C contends); or

(b) Along the line marked A-B marked on the plan B attached to the Amended Defence (as D contends); or

(c) In some other and if so, what position".

2. The discrepancy between the two is on average the Claimant claims an encroachment of 0.5 metres on to 45 Millharbour.
3. What has made this case particularly difficult is the total lack of accurate contemporary documentation in relation to the respective titles, despite the fact that the titles themselves were only created as relatively recently as the mid 1980's. As will be seen in this Judgment, there are all manner of problems about the various plans that have been proffered by the parties to this action in support of their case. I quote from Barnsley's "Conveyancing Law and Practice" (page 531):-

"It is common practice on a subdivision of land or on the development of a building estate to describe the land by the additional means of a plan annexed to the conveyance. Established property is often conveyed by reference to a plan on an earlier deed. Unfortunately the preparation of the plan is sometimes marked by a total disregard for accuracy. Plans not drawn to scale are hastily prepared or copied by a junior member of the office, using unsuitable drawing implements. The Royal Commission on Legal Services censured conveyancing plans because they were too small, or lacked measurements or failed to reveal the point from which they were taken, or wrongly depicted the size, shape and extent of the property".

4. These problems have bedevilled this case also.

TITLE

5. The Claimant is the registered freehold owner (Title No. EGL423378) of 45, Millharbour, London E14 9TR ("No. 45"). Pritchard House a commercial building stands on No. 45.
6. The Defendant is a building development company and is the registered freehold owner of 41 Millharbour (Title No. EGL364395) ("No 41") and owns the company PDX Properties Limited ("PDX"), which is the registered freehold owner of 43 Millharbour (Title No. EGL365040) ("No. 43").
7. No. 41 and No. 43 lie to the north of No. 45. The southern boundary of No. 41 and No. 43 Millharbour was agreed by the parties as being the northern boundary of No. 45 (a point I shall revert to in this Judgment).
8. The southern boundary of No. 45 abuts number 47 Millharbour ("No 47"). That boundary is marked by a wavy lap fence. That fence replaced an earlier post and wire fence, which followed the same line, having been constructed sometime in the late 1980's. On the other side of that fence (i.e. within No. 47) there was formerly a public footpath with street lighting and an identical type of fence on the other side. That footpath has now been diverted. The circumstances surrounding the creation of the footpath, and its diversion, are not known to the parties to this action.
9. The freehold titles of No.'s 41, 43 and 45 were all acquired by the respective purchasers by transfers dated 7^th October 1997, from London Docklands Development Corporation ("LDDC"). In the case of the transfer for No. 45 the Claimant was the purchaser. In the case of No. 41 the original purchaser of the freehold was Northern & Shell Plc Group Pension Scheme and Others. In the case of No. 43 the purchaser was PDX.
10. It is common ground that these three freehold transfers were transfers of reversions expectant on leases also created by LDDC with a view to the leases merging in the respective freehold leases. As will be seen, it is accepted, in effect, the freehold transfers purport to convey no greater extent, than that comprised in the existing leases of the three plots.
11. The three plots were created as part of a redevelopment scheme in the early part of the Dockland regeneration by LDDC, and I shall say something more about that in this Judgment.
12. In addition to being registered as proprietor of No. 41, the Defendant owns all the shares in PDX, which is the registered freehold owner of No. 43. For the purposes of the present dispute, this was treated as a dispute, which would effectively bind PDX as well.

THE DISPUTE

13. At the end of November 2001, the Defendants started work on No. 41 and No. 43 to build a block of flats with commercial premises on the ground floor and parking below. In order to do so, it demolished the existing building on No. 43 (the PDX building) the building formerly on No. 41 (Enterprise House) had been demolished at some earlier date (it does not appear in aerial photographs taken in August 2000).
14. At about the same time (i.e. end of November 2001) the Defendant erected a hoarding around No. 41 and No. 43. On 6^th August 2002, a Mr Newman, a surveyor retained by the Claimant carried out a routine inspection of No. 45 and as a result of that and subsequent visits, the Claimant became concerned that the hoarding and foundations of the building being erected by the Defendant had encroached on to No. 45.
15. The Defendant accepted that the hoarding was on the Claimant's land, but denied that the foundations were. It is the Defendant's case that the foundations had been built to the very edge of No. 41 and No. 43, but not beyond. The hoarding was subsequently moved and was placed mostly on top of the piles, although it is clear that some piling protruded beyond the hoarding as it now is and it is also by no means clear the full extent to which the piling protrudes beyond the hoarding, as a significant part of the area in front of the hoarding has been covered over and not made available to inspection. There is a dispute between the surveyors for the respective parties as to whether or not the line of the hoarding is at right angles to the line of the dock on the east side of the relevant plots of land, or whether the wavy lap fence to which I have made reference at the southern end of No. 45 is at right angles.
16. I shall say nothing at this stage about the significance of this litigation, where what appeared to be relatively small plots of land that are encroached on (inadvertently or otherwise) lead to substantial claims for damages. That only arises if the Claimant succeeds in his claim to establish the line of the boundary between plot No.'s 41 and 43 on the one hand and plot No. 45 on the other hand as being along the line A-B shown on the Particulars of Claim.

DETAILS OF CLAIMANTS TITLE

17. On 21^st November 1983 LDDC the then registered freehold owner of the entirety of the land in the area, including No.'s 41, 43, 45 and 47 entered into a Building Agreement ("The Building Agreement") with College Hill Securities Limited in relation to Plot 4 Site F ("Plot F4") which later became known as No. 45.
18. By the Building Agreement College Hill agreed to carry out works of development, namely to construct Pritchard House and surrounding hard and soft landscaping, and in return LDDC agreed by clause 6 to grant it a two hundred year lease of Plot F 4 in the terms of a form of lease attached to the building agreement, within twenty-eight days of practical completion of the Works.
19. On 26^th June 1984 College Hill, acting as vendor, with Geoffrey Osbourne Limited as builder, sold to Paul Sykes as purchaser, all College Hill's interest under the Building Agreement. On 22^nd October 1984 LDDC granted Paul Sykes Group Limited a two hundred year lease of Plot F 4, from 23^rd November 1983, i.e. the date of the commencement of the Building Agreement. That leasehold interest was registered at HM Land Registry under Title Number NGL502151.

TERMS OF BUILDING AGREEMENT

20. In the definitions reference is made to two plans, namely "Plan A" and "Plan B" respectively. The experts did not see full copies of these plans when they met in June 2003. They only saw an extract which they called "the LDDC plan". "The Site" is defined as being the land situated on the west side of Millwall Inner Dock in Tower Hamlets "the boundaries whereof are shown for the purpose of delineation as well as identification on Plan A and thereon edged red and blue respectively".
21. Plan A is dated 6^th October 1982 and given the drawing number TH/E/zon/116A and is on a scale of 1:1250. I examined the original at the trial. The Plan shows a number of proposed sites running from west to east, starting with F9 running through to F1. Figures are marked between the various plots, starting with F8 down to F2 on their eastern boundaries abut the dock. Significantly, no figures are given in respect of plots F9 and F1. The figures plotted on the Plan are done to three decimal points along the eastern boundary. The Site however, on its southern boundary (at least as regards the area edged red) has a hand written figure of 65.68 metres. There are three diagonal lines crossing the area edged green. They are 15 metres wide (a pre-printed figure to three decimal points). These represent the Greenwich Meridian and the object being that the line of the Greenwich Meridian was not to be built upon originally. No.'s 41 and 43 are also shown on the Plan, being Plots F5 and F6 respectively. Plot 4 is given a width of 47 metres along the dockside and Plot F5 is given a figure of 54 metres (both to three decimal points). Elsewhere on the map, generally the hand written figures only go to two decimal points, although there is one in the roadway to the west (92.600 metres) which goes to three decimal points.
22. There is a revision marked A to the Plan dated 25^th October 1982, stating "building free zone dimension". In the absence of any other explanation (and I have had no explanation at all as regards any of the Plans from the makers or those who lead to their creation) I conclude that that revision took into account the marking for the Greenwich Meridian. There is a further note which is hand written on "all dimensions are approximate". This handwritten note was not reproduced on the LDDC plan extract, which the experts had before them in June 2003. There is a debate between the parties as to the effect of this note. That debate is two fold. First, the Claimants says that limitation actually has no impact, because there is no corresponding limitation on the subsequent lease plan (although the same plan is used). Second, the Claimant say at best it is meant to be attributed to the handwritten figures. The Defendant however, says that the printed figures were probably generated by an early CAD system and that they were not measured, but merely were printed off when the drawing was created in the drawing office. Thus when the other figures were added by express measurement, somebody took care to mark the figures as approximate.
23. Item 5 of the agreed statement of the expert witnesses has them agreeing that the extract they called "the LDDC Plan" shows rectangular plots of land dimensioned on the eastern side to three decimal points, with No. 45 being shown as 47.000 metres wide. Item 6 of the agreed statement correspondingly agrees No.'s 41 and 43 as showing as having a width of 54.000 metres.
24. Significantly, item 8 of the agreed statement says that the dimensions on the LDDC Plan extract are written on the eastern dockside and that the Plots were intended to be rectangular and it is safe to assume that dimensions can also be applied to the road frontages. Nevertheless, they both agree that the north to south width of No. 45 measured across the western face of Pritchard House is 46.52 metres and they both agree that three random places taken by Mr Powell (the Defendant's expert) show that No. 45 on the existing site is narrower on the dockside (dimensions 46.10) than on the western road side (dimension 46.68). Also by item 12 they agree the average width is 46.5 metres, and the width according to the LDDC plan is shown as 47.000 metres. They both agree that the southern and northern features i.e. the lap larch fence and the current hoarding are not parallel and that the maximum difference from the average is 0.4 metres. They were not agreed (and did not address) which of those fences was not at right angles to the dock wall.
25. For reasons which I will set out later in this Judgment, I prefer the analysis of the Site of Mr Maile (the Claimant's Expert) to that of Mr Powell (the Defendant's Expert) and where they are unable to agree I prefer the opinion of Mr Maile to that of Mr Powell.
26. Reverting to the Building Agreement, Plan B is to a scale of 1:2500 and is also dated 5^th October 1982. This is given revision number 115A and has a note dated 26^th October 1982, A F5 and F6 boundary altered 26^th October 1982. It is not clear what the alteration is. It may be that it related to a difference between the earlier Plan edition 115, which has not been produced, or it reflects the alterations that are made on Plan A in respect of the Greenwich Meridian. I do not know whether either of those is the explanation or there is some other explanation. I am satisfied however, that if it had been intended to alter the boundary of F5 and F6 as regards No. 45, the revision would have been in different wording. I do not think this revision had any impact on the matters before me. The scale to Plan B is so large that I do not think it is of any assistance I determining the present dispute. In passing I should note that both experts agree (item 1) that OS and LR maps are not precise enough to define private property boundaries. All the plans in this case save one have to bear that health warning because they are all derived either from the OS or the LR to large scales bearing in mind the modest dispute as between these parties.
27. The subsequent lease dated 22^nd October 1984, of which I have only seen a copy, incorporates an extraction from Plan A, but without the notes. In the absence of any other explanation, I accept the Claimant's contention that the parties to the Lease had by that time after the building had been completed (Pritchard House) determined that the dimensions on that Plan were intended to be accurate. I reject Mr Cherryman QC's suggestion that the Claimant had notice of the Building Agreement and its restricted dimensions. The Building Agreement was not a document of title and merely because it came into the possession of the Claimant does not affect the clear unqualified dimensions set on the plan to the Lease.
28. In case I am wrong, I would be of the opinion that the annotation on Plan A to the Building Agreement of approximation was only intended to apply to the handwritten annotations applied to that Plan and therefore did not alter the fact that it was intended that No. 45 was intended to be 47 metres wide and that it was intended to be a rectangle with that dimension on the eastern and western sides respectively. Even if the dimensions are approximate it does not mean that the 47.000 metres is not the correct figure.
29. The freehold on No. 45, as I have said was transferred on 7^th October 1997 and the property transfer is described as being the land shown as red on plan 1 attached thereto. It is a transfer of part out of LDDC's title number NGL412126. On first registration it became registered with title number EGL423378. The plan annexed to the transfer shows a roughly rectangular plan, but is of no help at all in dealing with the present dispute. It appears, and the key word is appears, to run along or immediately abutting a tower feature on Enterprise House, which is built in Plot 41. It also appears to run a short distance south of the building on No. 43, the PBX building. It appears on the western side, not to be a true rectangle. On the southern side, it appears to go through a planter (the same happens on the north eastern side as well). I do not see any conclusions can be drawn from this Plan. Nor, can any clear conclusions be drawn from the subsequent Land Registry Plan save, that it records the southern boundary of plot 45 as running along side the fence, which abuts the public footpath. The boundary there (save where it covers the open areas, and the planter) is shown by a continuous line. Land Registry practice denotes that that boundary is then shown by virtue of that continuous line as being a feature, namely the fence. The northern boundary on the file plan produced by the Defendants dated 24^th March 2003 shows a dotted line, but this is not surprising because the building (Enterprise House) had by then been demolished.
30. The Transfer of the freehold has a declaration of merger in clause 9 and is plainly intended to be a conveyance of the reversion expectant on the Lease. I do not accept that it intended to convey any greater or lesser area than that comprised in the Lease. It also seems to me (and the experts agreed this) that the plots were intended to be rectangular and in succession. This is particularly significant because the Defendant's case, as it developed requires there to be a gap between plots 41 and 43 on the one hand and 45 on the other hand, which it is contended is owned by the statutory successor to the LDDC. It of course has been wound up and its residual functions were transferred to the London Borough of Tower Hamlets. This is an unlikely scenario and I reject it.
31. An examination of No. 45's leasehold registered title, shows a continuous line as regards to the southern boundary where the wavy lap fence is. On the northern boundary, it appears to be all dotted except where it abuts the tower. In so far as anything can be concluded from this plan, I conclude that the line there is solid where it abuts the tower and that the boundary is intended to be the face of the tower. Whether that meant that there were footings (no evidence of any footings has been adduced) or whether it meant that any such footings trespassed on No. 45 is neither here nor there. In this context I do not derive much assistance from some other plans that were in evidence. Thus the piling plan dated 6^th November 2001 reference 8627/GA/20 attempted to set out the pilings that had been on the site of No. 41. In addition, it purported to show piling that was in place on the former Enterprise House. It also in outline purports to show what can be assumed to be the PDX building and the floor plan perhaps of the former Enterprise House. The tower is shown, and there is a line of proposed piles on the southern boundary of No. 41/43, which run adjacent to the tower. The centre of this line corresponds with the Claimant's contended for boundary. It runs approximately one metre south of the PDX building and reflects a gravel path on the boundary, which is a key feature to which I shall make reference. Significantly, on the eastern boundary, when all the measurements are added up, the total is 53.8 metres to this line (as opposed to the line further south, which the Defendant contends for). The maker of the plan was not in evidence and I can derive no firm conclusion from it, as it was devised for the purpose of showing the piling. How the diagrammatic floor plans of the PDX building and the former Enterprise building came to be on it I do not know. It does not purport to show boundaries.
32. Equally, the Randall Plan (which is used as Plan A attached to the Amended Defence) has been accepted by the parties as being accurate, save in respect of the southern boundary No.'s 41/43. The competing lines of the southern boundary as between the Claimant and the Defendant can be discerned from that Plan, but apart from that it does not provide me with any assistance in determining which is the true boundary line.
33. Similarly when the freeholds to No. 41/43 were acquired, not surprisingly the file plan there mirrored the file plan to No. 45 with the line possibly abutting the tower to Enterprise House.
34. Finally, another plan which Mr Cherryman QC sought to rely upon was dated December 1997, apparently prepared by a firm Chantrey Davies. This is to a scale 1:500. Mr Cherryman QC submitted that a true consideration of the plan showed a dotted line south of the tower. Try as I might looking at it, I was unable to be convinced that there were dotting there. Even if there were, I do not find this scale of plan (prepared apparently for some purpose in relation to No. 41) of any assistance. I was not provided with the original and it appears to have suffered from "photocopier twitch" (contrast the version produced by Mr Maile, as RJM 5 to his report), with that of Mr Powell when attached to his further report dated 29^th September 2003. The plan is not of sufficiently large scale and the markings are not sufficiently clear for any conclusion to be drawn as is contended for by Mr Cherryman QC.

THE DEFENDANT'S TITLE

35. The Defendant has not produced any of the antecedent leasehold titles although it did produce office copies of the former merged leasehold title in respect of No. 43 ("EGL232348"). Equally, no Building Agreement (which must have existed) for either of those plots was produced. All of the title documents produced by the Defendant (save one to which I shall make reference below) are Land Registry Plans. These are general boundaries in accordance with LRR 278. Both experts ackowledge that these are not precise enough to be used for boundary demarcation, and this reflects the Court of Appeal decision in Lee –v- Barrie [1957] Ch 251. Although Ruoff & Roper paragraph 4-17 to 4-21 suggests that there are some uses that can be attributed to these plans (as supported apparently by Peter Gibson J in Hambrook –v- Fox [unreported] 08.02.93 CA) I do not accept that they are of any use for the present dispute before me.

PLAN 4.70 OCTOBER 1985

36. This plan is the most significant plan in the case. It was produced by the Defendant, but it could not explain its provenance. Mr. Cherryman QC told me that it was loose in the papers. He accepted that it was a plan which was originally included in the lease of No.43. That lease according to the office copies of No. 43's leasehold title (EGL232348) was apparently dated 4^th November 1988. It has not been produced. However, the term granted was 200 years from 25^th January 1985. That suggests (absent any other explanation) that there was some unexplained delay in the completion of the relevant Lease. I assume that the procedure followed that applied to No. 45 so that the term of years granted by the subsequent lease was backdated to the Building Agreement. The date is within a matter of weeks of Plan 4.70.
37. In addition Mr Cherryman QC accepted that the plan was in any event included in a subsequent under lease dated 13^th October 1995, when PDX let the entirety of the site of No. 43 for a term of 10 years from 29^th September 1994. The head lease is referred to in clause 1.16, being the one dated 4^th November 1988 and the premises are identified on the plan annexed thereto for the purposes of identification only.
38. Reverting to plan 4.70 there are a number of very significant features about this plan. First it is the only plan produced before me where the parties to it have attempted to define part of the disputed boundary. It is quite clear that the boundary has been precisely measured on the southern side of No.43 and part of the northern side of No.45. One can see that from the precise measurements noted at the corners of the PDX building, the reference to a nail in a wooden board and its notation as site boundary. The note on it stated "boundary dimensions are as measured on site". The subject is described as "demised area site F6 PDS Services". The scale of the main plan is a good scale 1:200. The gap between the PDX building and the southern boundary of No. 43 is showing as being one metre. Revision C dated 17^th July 1987 is described as "South Boundary Revised". This is the disputed boundary line. The Plan has been signed, on behalf of LDDC and PDX. The plan clearly came into being after No. 45 was demised to Mr Hunt's predecessor, but before the lease of No. 43 came into existence.

EFFECT OF PLAN 4.70

39. To my mind this plan destroys the Defendant's case. If this plan is applied to the features on the northern boundary of No. 45, it clearly follows the southern line of the gravel path. The gravel path is a significant feature. Its purpose is to provide an access to a fire escape, which formerly existed on that side of the PDX building. Beyond that are some steps, also just under one metre wide. Mr Powell acknowledged in response to a question put by me, that if the plan was correct his evidence was fatally flawed. The reason for that is that he puts the boundary further south of the boundary line shown on this plan, in part of the landscaped area of No. 45's car park. This he arrived at from the reasoning set out in his report. He said he arrived at that result independently of the same conclusion of one of the Defendant's witnesses, Mr Scott-Robinson. He was the current head of design of the Defendant. Having purchased No. 43 his remit was to establish the legal boundary by reference to the Land Registry title plans to No.'s 41 and 43 and the sites to the north and south (i.e. No.'s 39 and 45). His evidence however, to my mind was unsatisfactory because he used the northern boundary of No. 41 as the datum line and then used the Land Registry Plans to measure and plot on the site the southern boundary. This was not a sufficiently accurate process.
40. Both he and Mr Powell's evidence require the boundary to pass south of the gravel path through the landscaping feature. This seems to me to be unlikely in the extreme, especially when measured against the plan 4.70.
41. There is an equally unlikely knock on effect to the south of No. 45. The Defendant's evidence requires the boundary of No. 45 to be translated south and to project with it beyond the fence into the footpath. I accept that there is no direct evidence, which shows that the fence on the southern boundary of No. 45 has been laid out in accordance with the various plans. However, I did have indirect evidence. The fence has remained in the continuous position for nearly twenty years. Its line has not been challenged. It follows a natural division along side what was a public footpath and it is unlikely that when the footpath was laid out and the fence erected that the parties would have not followed the boundary between plots 45 and 47. I conclude, absent any other evidence to the contrary (and there is none) that the fence at the south of No. 45 was erected along the boundary between No.'s 45 and 47. This then all dovetails to Mr Mailes evidence and the measurements along the east side of plots 45 and 41 at 47 and 54 metres respectively. It corresponds with the boundary line as shown on plan 4.70. However, it is not necessary for my decision for the boundary between 45 and 47 to be along the line of the fence. Plan 4.70 is a free standing matter.
42. Mr Cherryman QC submitted that the Claimant could not rely on the plan as it was not a party to the plan (nor were its predecessors in title) and it had no impact as regards No. 41. I reject both submissions. First, although it is true that the purpose of the plan did not involve the owner of No. 45 it is the best piece of contemporary evidence, which shows where the southern boundary of No. 43 was intended to be. The Defendant's case required there to be a strip between No. 43 and No. 45 which LDDC left out when it agreed that plan, when it granted the subsequent lease to PDX and conveyed the freehold. That does not make sense and it does not accord with the agreed statement of the experts, the site was originally laid out on the basis that there would be parallel plots in succession along the western side of the harbour. There is no question of estoppel therefore, but it is the only evidence I have whereby the parties intended by a document to fix the boundary.
43. As regards the second objection, the experts have agreed the boundaries are intended to be straight lines. Therefore when that line is projected along the southern boundary of No. 41 that accords with the Claimant's contention and equally destroys the Defendant's contention in respect of that part of the boundary between 45 and 41.

WITNESSES

44. I had non expert evidence from both sides but none of it was contemporary and none of it was of any assistance. Mr Newman who appeared for the Claimant "remembered" that when he visited the site in the early 1980's he saw some marking pegs, which accorded with the Claimants case. I reject that evidence for two reasons. First, he apparently did not photograph these pegs, although on his evidence they were the only indications of the true boundary between 45 an the neighbouring properties, which I find surprising, given the fact that his remit was to advise his client as to the boundaries. Second, it was not in his witness statement. That too was surprising, given its importance. I do not know where this recollection came from, but it certainly was not a recollection as to what he saw in 1984 when he first visited the site.

PHOTOGRAPHS

45. I was shown a large number of photographs taken at different times. None of these was of any use in determining the disputed boundary. They provided corroboration as to the line of the fence at the southern part of No. 45 having been in position since at least the mid 1980's. They provide no assistance on the northern boundary of No. 45. The photographs at the time of the dispute show in my view that the footings partly project to the south of the line of the hoarding. I am satisfied on the evidence before me that the hoarding does not follow the boundary between the Claimant's and the Defendant's land.
46. As I have said above, the major and key factor in my determination is plan 4.70. That plan supports Mr Mailes' evidence. Mr Powell was unable to deal with the plan and acknowledged in cross examination that he had no other explanation as to what the boundary would be if that plan was not correct.
47. Accordingly, I determine the preliminary question by answering the questions posed by determining that the boundary between the Claimant's property 45 and the Defendant's property 41 Millharbour is along the line A-B marked on the plan attached to the Particulars of Claim.