England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th May 2004

Mr Justice Lewison:

1. In Alan Wibberley Building Ltd v. Insley [1999] 1 WLR 894 Lord Hoffmann said (at 895):

"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army."

2. This is another such dispute.
3. Professor and Mrs Chadwick live at Park House, St Giles Close, Winchester. Park House is a new house, built in 1996. It was built by Abbotswood Properties Ltd, which is a company run and owned by Mr and Mrs Hauser. Mr Hauser is a builder, although trained as an architect, and Mrs Hauser is an architect. They live at Greenwood House, St Giles Close, Winchester; next door to the Chadwicks. Greenwood House is also a new house, also built in 1996 as part of the same development scheme as Park House. Greenwood House is at a lower level than Park House. It is approached by a curving drive, which curls round the plot on which Park House is built. Because of the difference in levels between Park House and Greenwood House, there is a steep bank between the south eastern edge of the drive leading to Greenwood House and the flat area of the garden belonging to Park House. The difference in levels is of the order of four metres. On the top of the bank there is a close boarded fence. At the bottom of the bank there is a dwarf retaining wall. The question I have to decide is: who owns the bank?
4. The story begins in 1995. At that time the Chadwicks lived at 12 St Giles Close, which is next door to Park House. They owned land adjoining 12 St Giles Close which had development potential. That land fell away from the back garden at 12 St Giles Close; and the rear of the back garden was marked by a post and rail fence. In July 1992 they obtained planning permission to develop part of the land by building three detached and two semi detached houses. That plan shows five plots. It also shows the post and rail fence at the rear of 12 St Giles Close. The western boundary of plot 1, as shown on that plan, projects to the north of the post and rail fence. This northward extension was called "the dog-leg" in evidence. It is probable that the intention of the draftsman of the plan was that plot 1 should include the bank, although the positioning of a hedge shown halfway along the western boundary of plot 1 is a slight indication to the contrary.
5. However, by early 1994 the Chadwicks had agreed in principle to sell the development land to Abbotswood Properties Ltd (then called Hauser Greenwood Ltd, the name by which I shall call it from now on). The development land amounted to about 1.2 acres. Hauser Greenwood had put in their own planning application, and the agreement in principle was subject to the grant of planning permission in the revised form. The revised planning permission was granted on 9 May 1995. The plan by reference to which the planning permission was granted also showed five plots. It was the Chadwicks' intention to live in a new house to be built on plot 1 (which subsequently became Park House) and the Hausers' intention to live in a new house to be built on plot 5 (which subsequently became Greenwood House). The plan showed the curving drive leading to plot 5. That plan is much less clear in the area of the boundary between plot 1 and 12 St Giles Close. It is possible to read it as including the dog-leg; and it is possible to read it as excluding the dog-leg. The reason is that the draftsman of that plan has shown a number of trees at the junction line, so that the boundary line has to be extrapolated.
6. On 23 August 1985 the Chadwicks entered into a contract with Hauser Greenwood for the sale of the development site. The development site was referred to in the contract as "the Property" and was described as:

"the land at St Giles Close Winchester and shown edged red on Plan No 1"

7. Plan 1 appears to have been based on the Ordnance Map scale 1:1250. By clause 3 of the contract Hauser Greenwood agreed to build a new five bedroom house on "Plot 1" by 31 July 1996. "Plot 1" was defined as:

"the land edged blue on the Plan 2"

8. Plan 2 was a larger scale plan than Plan 1, although it is not possible to tell, simply from looking at it, what its base map was. It showed a roughly trapezoidal area of land. The north western boundary of the land edged blue forms a slight concave curve, and there are T marks along it pointing inwards into Plot 1. Inside the boundary shown on that plan there is a hatched area. The hatched area represents the bank. At the corner of the plot, where the north western boundary meets the western boundary is a point marked "B", and just to the south of point "B" is another point marked "A". Point "A" is placed where the then existing fence at the rear of 12 St Giles Close stood. Thus from the plan it appears that the intended boundary of plot 1 extended to the north of the fence at the rear of 12 St Giles Close. This plan, therefore, showed the dog-leg. The plan was annotated as follows:

"1. Boundary positions A, B, C to D may be varied subject to planning but not so as to vary the flat areas of Plot 1

2. Area shown hatched to be landscaped by purchaser."

9. Despite Mrs Hauser's suggestion to the contrary, I consider that the phrase "subject to planning" would have been understood to refer to the requirements of the town and country planning process, rather than to the discretion of the architect to plan the development as she thought fit. Clause 3 also gave the Chadwicks the option of repurchasing Plot 1 once the new house had been completed. If the option were exercised, Plot 1 was to be transferred by a transfer set out in the Second Schedule to the agreement. The plan attached to the draft transfer follows the form of Plan 2, except that the colour in which Plot 1 was edged was red rather than blue, and the remainder of the development site was shown edged blue. But the essential features of the plan, including the T marks, the dog-leg and the annotations, were the same.
10. On 11 September 1995 Hauser Greenwood's solicitors wrote to the Chadwicks' solicitors proposing changes in the arrangements for transfer. Their letter was accompanied by a plan. That plan showed the remainder of the development site split into two plots (Plot A and Plot B). Plot A eventually became the site of Greenwood House. What was proposed was that Plot A should be transferred direct to the Hausers, while Plot B should be transferred to Hauser Greenwood, as originally envisaged. The plan also showed a curving area, hatched vertically on the plan, which was to be included in Plot A. This area follows the delineation of the driveway to Plot A. In response to a query from the Chadwicks' solicitors, Hauser Greenwood's solicitors said on 14 September that the diagonal hatching "relates to some land which is to be landscaped by our client and is not relevant to the boundaries of the plot." The diagonal hatching appears to include the bank. However, the Chadwicks did not accede to the request to split the transfers in that way, for fear of adverse tax consequences.
11. So when the contract was completed on 20 September 1995, there was only one transfer in favour of Hauser Greenwood; and it related to the whole development site. However, on the same day Hauser Greenwood transferred Plot A and the hatched area to the Hausers personally. That transfer has, unfortunately, not survived. Mr and Mrs Hauser personally paid £50,000 to Hauser Greenwood for the transfer to them.
12. The two parcels were separately registered at the Land Registry. The parcel transferred to Hauser Greenwood was registered on 10 November 1995 under Title No. HP 508640. The parcel transferred to the Hausers was registered on 25 April 1996 under Title No. HP 516031. It consisted of what would become Greenwood House, together with a strip of land in the rough shape of a serpentine U, which was the intended site of the access way.
13. On 27 October 1995 Hauser Greenwood were granted an amended planning permission. The approved amendment related to the position of the access drive. The amended permission was subject to conditions. Condition 2 required the approval by the local planning authority of a landscaping plan. That plan had to show not only the trees to be planted on the site but also:

"the alignment, height and materials of all walls fences and other means of enclosure".

14. Construction began in the spring of 1996. The construction of the driveway leading to Greenwood House necessitated a lot of excavation and earth moving. However, by the end of May 1996 it had become apparent that the position of the driveway as actually laid out was further to the east than the contract plan had envisaged. This had the effect of reducing the site of Park House, and, in particular, reducing the amount of flat land at the top of the bank. The Chadwicks, through their solicitors, complained to Hauser Greenwood. As a result, a meeting was arranged for Tuesday 4 June 1996.
15. By this time Hauser Greenwood were infilling some of the bank which had been cut away to form the forecourt of Greenwood House. This was done with the aid of geotextile rolls. These are tough woven plastic sheets used to reinforce earthworks. They are embedded into the earth to provide a structure. These rolls would have been visible at the base of the bank. The purpose of the infilling was to provide the Chadwicks with more flat land at the top of the bank. The original bank which had been at the rear of 12 St Giles Close had not, however, been moved, although it had been partly "sculpted". Part of the original post and rail fence had, by June 1996, been replaced with a close boarded fence in more or less the same position, although that part of it immediately behind 12 St Giles Close was not replaced until August.
16. The Chadwicks and the Hausers met on site. What happened at the meeting is in dispute. The Hausers say that Professor Chadwick made it clear that he did not wish to own the bank. However, he wanted more flat land and wanted the western boundary to be moved closer to Greenwood House in order to give the Chadwicks more flat land at the top of the bank. The Hausers agreed. Mrs Hauser agreed that it was her suggestion to site a fence on the top of the bank, mainly to give privacy to both houses. Mr Hauser said that he came away from the meeting under the impression that wherever the fence ended up would be the boundary. The evidence of Mr and Mrs Hauser was criticised because they could not remember the precise words Professor Chadwick used. Given that the meeting took place nearly eight years before the trial, this is not surprising. The thrust of the evidence was contained in Mrs Hauser's letter to the Chadwicks of 15 August 1997 (which the Chadwicks did not in terms deny at the time).
17. Professor Chadwick agreed that the suggestion for siting the fence at the top of the bank came from Mrs Hauser during the course of the meeting. However, he said that the question of boundaries was not discussed at all.
18. On 7 June 1996 the Chadwicks wrote to the Hausers. The letter read (in part):

"It was nice to see you on Tuesday evening and it was good to hear your plans for the boundary fencing at the back and also the hedging at the front to replace the Thuya Plicatas that were removed: the latter would be much appreciated. It was also good to hear that some flat land can be generated to the side of the kitchen between the existing garage and the new house. We have measured the parallel line and it will fit between the two small side windows.

At the time you phoned on Wednesday morning we were drafting a letter to you, having spent some time examining the relevant maps and drawings. I think your proposal, in that telephone conversation, to raise the height of the retaining wall between our two houses and erect a fence on the top of that is a good proposal and would certainly increase the privacy of both houses while giving us a back garden without a slope. If, as I suggested, the retaining wall were carried further up the roadway then I believe some level land could be reinstated under the large horse-chestnut tree and give reasonable access to the far landscaped part of the garden. It would also provide a break in the slope beneath the horse-chestnut tree which, at the moment, looks so dangerous and difficult to maintain, as well as providing the possibility of access via a gateway to the far landscaped area through the fence up to St Giles Close.

We contacted Jim Harrison at Ensor Byfield and asked him to communicate with Hadfield Butt and Bowyer to let them know that, subject to further discussion with you, we would be willing to accept your proposal in principle. Jim Harrison has subsequently asked if you could now produce a new plan showing the revised boundary because this will be needed when the property is passed back to us."

19. Professor Chadwick said that he understood that Mrs Hauser's proposal was to raise a vertical retaining wall, to fill in the gap between the raised vertical and then to place a fence on the top of the raised wall. However, Mrs Hauser pointed out that in June 1996 there was no retaining wall (in the sense of a brick or other vertical structure); there was only the bank reinforced by the geotextile rolls. That would not have provided an adequate foundation for the construction of a solid wall. I find it difficult to believe that Mrs Hauser can have offered to build a vertical wall some 4 metres high, and then to fill in everything behind it. It would have been technically difficult and extremely expensive. I think, as she said in the course of her evidence, that Professor Chadwick must have misunderstood what she proposed. It is, I think, also significant that Professor Chadwick referred to the fence as "boundary fencing"; and envisaged that there would be a plan showing "revised boundaries".
20. Of the two conflicting versions of events, I prefer that of the Hausers.
21. During the summer Hauser Greenwood carried out more works to the bank. The bank was built up, this time using concrete blocks as reinforcement; and the area of flat land at the top of the bank was increased.
22. During July 1996 the parties' solicitors worked on the draft transfer. Hauser Greenwood's solicitors sent a draft transfer for approval. The plan attached to it was based on the Land Registry filed plan. However, the Chadwicks' solicitor spotted that that plan differed from Plan 2 on the original contract, in that the northern end of the plot was narrower on the Land Registry plan than on the contract plan. On 18 July 1996 he asked Hauser Greenwood's solicitors to explain the discrepancy. The reply came on 22 July:

"We are instructed that the boundaries shown on the Land Registry plan accurately reflect the boundaries on the ground. We refer you to the handwritten note on the Contract plan which states that boundaries A-B, C-D may be varied subject to planning. The final boundary reflects the planning consent granted."

23. On the following day, 23 July, the Chadwicks solicitors wrote to Hauser Greenwood's solicitors. In their first letter they said that they were going to meet their clients to inspect the plan. In their second letter they asked for confirmation that variations in the boundaries had not in any way varied the flat areas of plot 1. The inspection took place on 24 July. This prompted the Chadwicks' solicitors to write to Hauser Greenwood's solicitors to point out that the level area beneath the chestnut tree had been diminished by the building operations. They said that the plan supplied did not accord with the contract; and that the Chadwicks would be entitled to attach the original contract plan to the transfer. That would have the consequence that the transfer to the Chadwicks would include part of the newly constructed roadway. On 25 July Hauser Greenwood's solicitors replied. They said:

"… our Clients had a meeting with your Clients on site and explained the whole matter of the "flat land" to them and at the end of the meeting our Clients were under the impression that your Clients were perfectly satisfied that they would be receiving the same area of "flat land" that they had previously expected to receive albeit in a slightly different position. Clearly there can be no question of the boundary of Plot 1 extending over any part of the access road."

24. The Chadwicks' solicitors replied, saying that the Chadwicks were not satisfied with the area of flat land. They said that a large area needed to be rebuilt which might involve the extension of the retaining wall. They suggested a meeting on site to agree this. On 26 July the Chadwicks solicitors said that they were going to attach the original contract plan to the transfer, and said that either the Chadwicks would have to have returned to them the full extent of the flat area that existed before completion, or there would have to be an agreement between the parties dealing with the matter. On 29 July the Chadwicks' solicitors wrote again. Among the points they made was the following:

"The fence being constructed within the boundaries of the property is not in accordance with the plan. You will need to agree the true position of the fence at our site meeting. Further it would appear that the supporting posts for the fence (or some of the fences) may be on the wrong side of the fences."

25. On the same day Hauser Greenwood's solicitors served notice to complete. This prompted the response that the Chadwicks were entitled to insist on the original contract plan and that the Hausers themselves would have to join in the transfer. On 31 July Hauser Greenwood's solicitors replied:

"The Transfer has been executed by our clients using the plan sent to you previously by reference to the Land Registry plan. The Contract provided that boundaries A, B, C –D could be varied for planning reasons. The reasons were a combination of the area and position of the landscaped areas (as opposed to garden land) required by the planners, and the gradient of the driveway leading to Plots 2-5."

26. They said that the issue of flat land was a separate issue and that Hauser Greenwood had provided as much flat land as possible. The Chadwicks' solicitors did not agree. They said in their letter of 1 August that "the extension of the retaining wall at the foot of the slope would make it possible for a larger proportion of this flat land to be replaced." At this stage there was impasse. A site meeting was arranged for 6 August, and it took place on that day. At the meeting it was agreed that Hauser Greenwood would erect a fence on the top of the bank, as far as the horse chestnut tree (which was about half way along the plot). The fence would then turn back on itself at right angles. Various gradients for the garden were also agreed. Both Mr and Mrs Hauser said that at the meeting Professor Chadwick threw a stone down from the top of the bank to indicate where the boundary would be. Professor Chadwick said that he could not remember doing so. It may be an unusual way of settling a boundary, especially between a builder, an architect and an academic engineer, but it is the sort of detail that, if it happened, would stick in the mind. I accept the evidence of Mr and Mrs Hauser on this point.
27. On 6 August the Chadwicks' solicitors sent a fax summarising the agreed terms. There was then a further meeting, attended by the parties' solicitors, on the following day. Hauser Greenwood's solicitors wrote on 8 August. They suggested further terms. They continued:

"Your clients have been shown the landscape plan, showing plantings, which is a condition of the planning consent. Your clients have spoken of treating part of the land which they are to acquire, and which is included within the landscape plan, as "garden". We are instructed to point out that the areas must in fact be retained as landscaped areas in order not to be in breach of planning.

Further, it was agreed at the meeting that in so far as the fence CEF was being erected at your clients request but contrary to planning, your clients would indemnify ours in respect of the consequences."

28. The Chadwicks' solicitors noted this in their letter of 8 August, and asked for a copy of the detailed landscaped plan to be supplied to the Chadwicks. They agreed to give the required indemnity. Their letter concluded:

"Finally, as the fence is to be moved inside the full extent of the property it may be sensible for your client to actually own the land outside the fence including the retaining wall. Do you agree?"

29. The landscaping plan, which had been approved by the local planning authority, showed a 2 metre close boarded fence. It ran along the top of the bank, starting behind 12 St Giles Close and continuing at the rear of Park House, but still at the top of the bank. This is clear not only from the position of the line denoting the fence, but also from the immediately adjacent notation "bank planting". Professor Chadwick agreed that he had seen the landscaping plan, but he could not remember when.
30. On 9 August 1996 the parties entered into an agreement described as a "supplemental agreement". By clause 2 of this agreement Hauser Greenwood agreed to "carry out the fence relocation and the ground levelling works shown in the attached drawing." The agreement was exchanged on 12 August and completion of the transfer was authorised. The plan attached to the supplemental agreement, which had been produced after the meeting, showed the fence in position at the top of the bank.
31. The transfer, which was completed on 12 August 1996, contained the following relevant definitions:

"the Plan"	The plan annexed hereto
"the Property"	The land shown edged in red on the Plan and known as Plot 1 St Giles Close Winchester
"the Retained Land"	The land being the balance of Title Number HP 508540 shown edged blue on the Plan and the land comprised in Title Number HP 516031 shown edged green on the Plan
"the Transferees"	PROFESSOR GEOFFREY ALLAN CHADWICK AND SYLVIA JOYCE CHADWICK both of 12 St Giles Close Winchester
"the Transferor"	HAUSER GREENWOOD LIMITED whose registered office is at 38 Edgar Road Winchester

32. The plan annexed to the transfer (and which was signed by the Chadwicks and the Hausers) was the Land Registry plan, and not the original contract plan or the plan that the original contract had annexed to the draft transfer. It was in the same form as the plan attached to the second draft transfer, subsequently prepared by Hauser Greenwood's solicitors; although it had been coloured up by the addition of blue, green and red lines.
33. The Hausers were not parties to the transfer in their personal capacity.
34. By clause 2 of the transfer Hauser Greenwood transferred "the Property" to the Chadwicks with full title guarantee. Clause 3 said that the property was transferred together with rights set out in the First Schedule. The contents of the First Schedule do not matter, but it is worthy of note that the transfer requested the Chief Land Registrar to register them in the charges register of Title No. HP 516031. That title was not Hauser Greenwood's title to the development site, but the Hausers' own title to Greenwood House and the driveway.
35. On 14 August (two days after the transfer had been completed), the Chadwicks' solicitors sent Hauser Greenwood's solicitors a copy of the transfer with the plan signed by the Chadwicks. The letter continued:

"Our clients have asked us to clarify, for the avoidance of doubt, precisely where the boundary line of the property will be taken to run in relation to the banks and slopes.

We have therefore taken a further copy of the plan from the supplemental agreement dated 9 August 1996 and drawn on it a red line which we think represents the actual boundaries and would be grateful if you would confirm that this is indeed the case."

36. The plan enclosed with that letter showed a red line following the line of the fence at the top of the bank. Hauser Greenwood's solicitors replied:

"We are not certain why you have sent us a further copy of the plan and the Supplemental Agreement on the question of the position of the boundaries since, so far as we are concerned, the boundaries are those edged red on the Transfer Plan."

37. The Chadwicks' solicitors explained:

"As far as the plan is concerned as the boundary would appear in physical terms to be at the top of the bank it would seem sensible to have this as the actual boundary of the property for Land Registry purposes with our client obtaining the bank. Do you not agree?"

38. By the end of November 1996 Hauser Greenwood had completed the works required by the Supplemental Agreement, apart from a few minor items.
39. In August 1997 the Chadwicks decided that they wanted the fair side of the fence to face their garden. They therefore began to "turn" the fence; that is to say to remove the close boarded panels from the side of the supporting structure of the fence nearer to the bank, and to replace them on the side of the supporting structure further from the bank. This brought a protest from Mrs Hauser who asked them not to "take down the fence between us" and asserted that ownership of the fence was with Greenwood House not Park House. Mrs Chadwick replied on 14 August. She said:

"Our understanding is that the fence is entirely on our land. At the time of its erection I asked for the close boarding side to be put on our side as it was within our land and we would have to look directly on to it all the time from our lower storey windows. Your argument then was that we owned the fence and must therefore, by convention, have the concrete spurs and rails of the fence on our side and that "nails pointed towards the owner"."

40. Mrs Hauser replied on the following day. She said:

"As I was trying to explain this morning our understanding was that the boundary was a continuation of the fence behind your old house. The plan shows this to be the case.

If you recall Geoffrey said he would prefer not to own the bank and we said we would be happy to own it and maintain it. Perhaps that is where the confusion arises."

41. Battle lines now began to form. The Chadwicks maintained that the boundary ran along the bottom of the bank; while the Hausers maintained that it ran along the top. The Chadwicks decided to ask the Land Registry for a view. The Land Registry said in September 1997 that the filed plan had been mapped correctly in accordance with the transfer plan, and excluded the bank from the Chadwick's registered title. Further correspondence with the Land Registry in the autumn of 2002 produced much the same response.
42. Miss Kathryn Purkis, who appears for the Chadwicks, puts their case as follows. First, she says that the transfer, interpreted in the light of the admissible evidence and the "general boundaries" rule, would have led a reasonable layman to suppose that the bank was transferred to the Chadwicks. Second, she says that there was no boundary agreement between the parties to displace the effect of her first contention.
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 [2004] 1 P. & C.R. 14 per Peter Gibson L.J. 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 L.J. put it in Jackson v. Bishop (1979) 48 P. & C.R. 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.
45. The definition of the parcels transferred by the transfer is:

"The land shown edged in red on the Plan and known as Plot 1 St Giles Close Winchester"

46. The reference to the plan is not qualified by some phrase such as "for identification only". This would suggest that the plan was intended to control the description. On the other hand, as Miss Purkis points out, the definition also consists of a second limb, namely the land "known as" Plot 1. In Freeguard v. Rogers [1999] 1 WLR 375 Peter Gibson L.J. said (at 381):

"In my judgment, when a property, the subject matter of a conveyancing document, is described as "the property known as . . ." it is permissible, indeed inevitable, that recourse will be had to extrinsic evidence to identify the property so known. In Spall v. Owen (1981) 44 P. & C.R. 36, in which there was a description of a property as "the property known as plot No. 1," I said, at p. 43, that such a description cried aloud for evidence of the surrounding circumstances."

47. Miss Purkis said, and I accept, that the material I could look at to decide what property was "known as" Plot 1 included the original contract plan, and the various plans submitted to the local planning authority. However, the weight that I can attach to these different documents is a different question. It was envisaged by the original contract plan that the boundaries of the land "known as" Plot 1 might change for planning reasons. It seems to me, therefore, that more weight should be attributed to the planning documents than to the original contract plan.
48. In addition it is clear, and it was known to both parties, that the transfer could not give effect to the contract plan unless Mr and Mrs Hauser joined into the transfer in their personal capacities; because, as was known to both parties, part of the land within Plot 1 as shown on the contract plan formed part of the Hausers' registered title. The contract itself contained the plan that was to be attached to the transfer once the option was exercised; and that plan was not used. The substitution of the Land Registry plan must therefore be taken to have been a deliberate substitution. I do not therefore consider that the Chadwicks are entitled to rely on the contract plan as indicating the land that was intended to be transferred by the transfer. It had been overtaken by events.
49. In my judgment, the Land Registry plan shows the rear boundary of 12 St Giles Close in the position of the old post and rail fence. By the date of the transfer that had been replaced by the close boarded fence. The Land Registry plan shows, by a solid black line, the continuation of the boundary at the rear of Park House as a projection of the rear boundary of 12 St Giles Close. The "dog-leg" has disappeared. In other words, the Land Registry plan shows the boundary at the top of the bank.
50. Professor Chadwick suggested that the colouring up of the plan showed a "dog leg" where the green edging adjoined the red edging. But I am satisfied that this was not intended to have any contractual effect. It was simply a consequence of trying to add colours to an uncoloured plan. In addition, it is the red line (which shows no dog-leg) rather than the green line which is the legally significant line.
51. Mr Philip Glen, who appears for the Hausers and Hauser Greenwood, submits that, as a mapping exercise, all those who have examined the transfer plan agree that it shows the boundary at the top of the bank. These include the Chadwicks themselves, the Hausers, the Land Registry and Mr Maynard (who was asked to overlay plans using computer software to obtain the best "lock"). Any minor discrepancies are explicable because of the limitations of small-scale mapping. I accept this submission.
52. I also take into account what was shown on the landscaping plan approved for the purpose of the planning permission. I do so for a number of reasons. First, there is evidence that the landscaping plan was shown to the Chadwicks: see Hauser Greenwood's solicitors' letter of 8 August. Second, the Chadwicks knew that part of the fence which Hauser Greenwood agreed to erect at the top of the bank was not compliant with planning: see the same letter. I infer that they knew that the rest of the fence was compliant with planning. Third, the landscape drawing, being a drawing approved for the purposes of a planning permission, is a public document. Fourth, the contract said that the boundaries might be adjusted for planning reasons. Landscaping requirements were one of the reasons given by Hauser Greenwood's solicitors for the change in the boundaries: see their letter of 31 July. Fifth, the parties should not readily be assumed to have intended to be in breach of planning requirements: Scott v. Martin [1987] 1 W.L.R. 841 at 849. Sixth, it was common ground that reference to the landscaping drawing was permissible to answer the question what was meant by the property "known as" Plot 1. The landscaping drawing clearly shows the fence at the top of the bank.
53. Next, the transfer defines the "Retained Land" as including "the land comprised in Title Number HP 516031 shown edged green on the Plan". That was the land comprised in the Hausers' registered title. So nothing comprised in that registered title was to be transferred to the Chadwicks. Subject to the general boundaries rule, what was comprised within the Hausers' registered title included the bank. So the bank was not intended to be conveyed.
54. Next, on the same day that the transfer was executed, the parties entered into an agreement which obliged Hauser Greenwood to erect a close boarded fence on the top of the bank. The agreement also provided for the various levels to which the land was to be graded. Beyond the fence (that is to say on the Greenwood House side of the fence) the land would fall sharply away to a near vertical. Since the fence was to be close boarded, it would have been impossible, in any practical sense, for the Chadwicks to have had access to the bank, for as long as the fence remained in place. Professor Chadwick suggested that the fence was only intended to be temporary, but I do not consider that that is a realistic suggestion. As Mr Glen suggested to him in cross-examination: what was the point of a lengthy negotiation over the precise position of the fence if it was not intended to be a permanent feature? And one might add to that: what was the point of Hauser Greenwood asking for an indemnity in relation to possible problems with the planners if, at the first sign of trouble, the fence would be taken down? The obvious purpose of erecting a close boarded fence is to demarcate a boundary. In addition the common purpose in erecting the fence was to give privacy to both houses; and privacy for the Hausers would obviously be compromised if the Chadwicks were free to go onto the bank. I draw the conclusion that the fence was intended to demarcate the boundary. In view of the common purpose of giving privacy to both houses, I think that it is probable that the fence is a party structure.
55. Miss Purkis relied on the fact that the title to Park House included rights of way over the access road. I do not consider that this is of any great significance for two reasons. First, the reason why the rights attached to Park House was that they attached to the whole of the land retained by Hauser Greenwood after it sub-sold land to Mr and Mrs Hauser. They were not rights deliberately created in favour of Park House when Park House was retransferred to the Chadwicks. Second, the rights of way over the access road did not extend over the forecourt of Greenwood House, so that the rights of way stopped short of the main area of the bank.
56. Leaving aside the general boundaries rule for the moment, I have no doubt that the reasonable layman would not have thought that he was acquiring a steep and apparently useless bank. If I am permitted to take into account the pre-transfer correspondence (which I doubt) I am only reinforced in that view. The Chadwicks' solicitors' letter of 8 August 1996 was an open invitation to exclude the bank from the transfer. It was suggested that this letter was written without the Chadwicks' authority. Even if this is so the lack of authority was not something known to Hauser Greenwood or its solicitors.
57. The general boundaries rule was formerly to be found in r. 278 of the Land Registration Rules 1925 and is now to be found in s. 60 of the Land Registration Act 2002. Miss Purkis relied on the decision of the Court of Appeal in Lee v. Barrey [1957] Ch. 251 as demonstrating that title plan boundaries are only indicative and that the general boundaries rule allowed revisions to be made to the filed plan at any time. However, it is necessary to appreciate the facts of that case. What had happened was that the contract plan and the transfer plan had shown a plot of land with irregular boundaries. The extent of the irregularity had been marked out on site by pegs. But when the Land Registry registered the transfer the filed plan showed a plot with regular boundaries. The result was a larger plot. The registered proprietor argued that because of the effect of the Land Registration Act 1925 he had become the owner of the larger plot. Lord Evershed M.R. said at 260:

"In those circumstances, as we are concerned with a general filed map or plan, the sole question for us is whether, notwithstanding the transfer and the facts I have mentioned, the effect of the statutory provisions, sections 19 and 69 in particular, is that as matters stand what the defendant has, and is entitled to say he has, is a piece of land identified by reference to the map on his certificate; and the argument is that, if you look at that map, it is as plain as possible that there is no question of an angled division; the piece of land of which the defendant is certified as proprietor is regular in shape." (Emphasis added)

58. The answer he gave to that question was this (at 261-2):

"You are, therefore, told that this document does no more than indicate the boundaries, and - what I think is far more significant - that what they are intending to do is to show what you would find on the transfer plan. When all that is added together, I am for my part left in no doubt that this plan cannot be set up to overturn the plain effect of what otherwise would have resulted from the bargain made between the defendant and his vendor as had been recorded in his contract and in his instrument of transfer." (Emphasis added)

59. In other words the general boundaries rule is confined to the effect of the filed plan only. It does not allow the registrar or the court to alter the effect of a transfer plan, which represents the contractual bargain between the parties. In my judgment the general boundaries rule is only of significance in the present case in relation to the land that had already been transferred to the Hausers personally. As I have said, the transfer does not survive. However, Mrs Hauser said that the transfer plan had been based on a map like the 1:1250 Ordnance Map. Although this is secondary evidence, it is admissible where the primary document has been lost. I accept this evidence; and I infer that the Land Registry correctly plotted what was shown on that transfer plan. Indeed, the Land Registry said that it had, and there is no evidence to gainsay that. In some cases, where the parties to a transfer use the Ordnance Map as the basis for their contract, they may be taken to have used the map in the same way as the Land Registry; that is to say that where the boundary line is shown as running down the line of a hedge, or other physical feature, common law presumptions (such as the hedge and ditch presumption) may have their part to play. This was the decision in Alan Wibbersley Building Ltd v. Insley [1999] 1 WLR 894 itself. This sort of consideration is, in my judgment, of far less weight where the boundary does not follow a physical feature, but is merely an imaginary line on the ground. In Alan Wibbersley Building Ltd v. Insley Lord Hoffmann explained (at 896):

"The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. 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. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed." (Emphasis added)

60. This is consistent with the general approach to the interpretation of contracts, under which events subsequent to the making of the contract cannot alter its true interpretation. I do not consider, therefore, that the general boundaries rule can justify the court in tailoring the extent of the parcels to subsequent alterations to the physical layout so as to produce a more sensible result.
61. In addition, even where the general boundaries rule applies, if the parties have used the Ordnance Map as their contractual plan, the court may still gain great help from the plan as indicating the true boundaries intended to be transferred. The general boundaries rule does not mean that the plan may be ignored: Hambrook v. Fox 8 February 1993 (unreported); Cutlan v. Atwell 30 November 1994 (unreported), both decisions of the Court of Appeal in which the leading judgment was given by Peter Gibson L.J.
62. Thus in my judgment the general boundaries rule does not alter the conclusion to which I have come as a question of construction of the transfer.
63. At one stage the Chadwicks were claiming rectification of the transfer and the register. This claim was not pursued, and I say no more about it.
64. Mr Glen submits that if the Hausers fail on construction, there was, nevertheless, a boundary agreement between the parties as a result of the meetings in June and August 1996. Strictly speaking this question does not arise, so I can express my conclusions shortly. It is common ground that a boundary agreement need not satisfy the formal requirements of s. 2 of the Law of Property (Miscellaneous Provisions) Act 1989. An oral agreement will suffice: Joyce v. Rigolli [2004] EWCACiv 79.
65. In short, I have accepted the Hausers' evidence about what happened at the two meetings. Professor Chadwick said that he did not want to own the bank. The fencing was to be the "boundary fencing"; and its purpose was to give privacy to both houses. At the conclusion of the June meeting professor Chadwick was expecting a plan showing the "revised boundaries". At the August meeting Professor Chadwick threw a stone down the bank to indicate where he wanted the boundary to be, and the position of a fence was agreed. The fence was subsequently erected in the agreed position. In my judgment this amounts to a boundary agreement. It is confirmed by the supplemental agreement, which must have been intended to resolve all outstanding issues between the parties. Without clear agreement on the boundaries, the transfer could not sensibly proceed to completion.
66. In relation to the bank there remains only the question of estoppel. Again, in view of my conclusion on the question of construction I can state my conclusions shortly.
67. Mr Glen relies on the broad formulation of the principle in Taylor Fashions Ltd v. Liverpool Victoria Trustees Co Ltd [1982] QB 133. Oliver J said (at 151):

"Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."

68. He concluded (at 155):

"The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared, and, in approaching that, I must consider the cases of the two plaintiffs separately because it may be that quite different considerations apply to each."

69. The relevant facts are as follows. In short, it was agreed at the meeting in June that Hauser Greenwood/the Hausers would increase the amount of flat land at the top of the bank and would erect a fence on the top of the bank. The Hausers were led to believe by the Chadwicks that the fence would be the boundary fence; or there was a common and communicated assumption to that effect. The bank was regraded and enlarged; and the amount of flat land at the top of the bank was increased. The bank was again regraded as a result of the August meeting and the supplemental agreement; which followed Professor Chadwick's indication of where he wanted the boundary to be. The precise location of the fence was identified, and a fence was erected in the agreed position. In my judgment it would now be unconscionable for the Chadwicks to assert a claim to ownership of the bank.
70. An estoppel in circumstances like this is unusual. In the first place Hauser Greenwood/ Mr and Mrs Hauser were carrying out work on their own land. Second, the work was not carried out with the expectation of acquiring an interest over the Chadwicks' land since, at the relevant time, the Chadwicks had no relevant land. However, an estoppel can arise where, instead of expecting to acquire aright over someone else's land, the person who acts to his detriment (A) expects that other person (B) to release a right over A's land: Megarry & Wade Real Property 6^th ed para 13-011. In the light of the broad brush approach advocated by Oliver J, I am satisfied that I should not be deterred by the difficulties of fitting the factual circumstances into the orthodox legal framework. In the light of my findings of fact, I am satisfied that the Hausers make out the estoppel for which they contend.
71. The last question relates to the boundary of the northern section of Park House. It concerns an area to the north of the chestnut tree which, because of its shape, has been referred to as "the tongue". In effect it is the inner part of the roughly U-shaped land on which the access road has been built. A comparison between the transfer plan and the survey of what is on the ground shows that there is a strip of land between the edge of the carriageway and the western side of the land comprised in the transfer plan. So far as the register is concerned, this strip is included in the title that was originally sub-sold to Mr and Mrs Hauser. The Chadwicks seek a declaration that the strip belongs to them. Although the strip was originally part of Mr and Mrs Hauser's title, it has since been transferred to a company called Rectory Pump Ltd, whose shareholders are the owners of Plots 2 to 5. Rectory Pump advances no positive case, but has indicated that it will abide by any decision the court makes. Very little evidence or argument was directed to the tongue, but Miss Purkis invites me to declare where the boundary is. Mr Glen made no submissions on this question as it no longer concerned his clients.
72. Miss Purkis submits that it was not the intention of the parties to create a "ransom strip" between the land in the title of Park House and the access way. She submits that it must have been the intention of the parties that Park House should abut the access way without any intervening land. Thus the transfer to Mr and Mrs Hauser in September 1995 (which included the land now vested in Rectory Pump Ltd) should be interpreted as transferring only the site of the road itself, and not any adjoining verge. Had the road been in existence at the date of the transfer to Mr and Mrs Hauser, this submission would have had considerable force. But it was not. At the date of the transfer the road had not been built. The precise route of the road was uncertain and would depend on engineering works yet to be carried out. The boundary depicted by the transfer plan was not, therefore, related to an existing physical feature; but was simply an imaginary line. A comparison between the profile of the strip of land comprised in the transfer and the measured survey of the road as built shows that the road as built did not follow the precise limits of the transfer plan, and was not even the same shape. What land was comprised in the transfer must, in my judgment, be judged by reference to the physical features of the land at the date of the transfer, and not by reference to physical features that came into being subsequently. Thus in my judgment the general boundaries rule (which relates to existing physical features) cannot, for the reasons I have given, have any significant part to play
73. While, therefore, I consider that it would be eminently sensible for Rectory Pump Ltd to transfer to the Chadwicks the strip of land between the retaining wall adjoining the carriageway and the western boundary of the land comprised in the Chadwicks' registered title, I do not consider that that strip belongs to the Chadwicks by virtue of the transfer itself.
74. There is a similar strip between the eastern boundary of the land comprised in the Chadwicks' registered title and the roadway. Here, I think, the position is different. The supplemental agreement of August 1996 required Hauser Greenwood to provide a level area of up to one metre on a strip of land coloured yellow on the plan attached to that agreement. The yellow strip immediately adjoined the eastern branch of the roadway. There can have been no point in Hauser Greenwood undertaking that work unless the resulting strip was to belong to the Chadwicks. At the date of that agreement the access road remained part of the Hausers' registered title. I have already found that the combination of the June meeting, the August meeting and the supplemental agreement amounted to a boundary agreement. I am therefore prepared to declare that the strip of land coloured yellow on the plan attached to the supplemental agreement passed under the transfer, and that the outer edge of the yellow strip forms the north eastern boundary of Park House.
75. Apart from that the claim fails. I will hear counsel on what order I should make to give effect to my judgment, if that cannot be agreed.