England and Wales Land Registry Adjudicator

 

 

REF/2010/0939/0940

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

BETWEEN

NORFOLK NATURALISTS TRUST

APPLICANT

and

 

(1) EDWIN JULIAN LUMLEY

(2) JOHN OLIVER ELLISON

RESPONDENTS

 

Property Address: Land at Holme next the Sea, Norfolk

 

Title Numbers:  NK391890 and NK391894

 

Before:  Mr Rhys Deputy Adjudicator to HM Land Registry

 

Sitting at:  King’s Lynn Magistrates Court

 

On: Tuesday 26^th July 2011

 

Applicant representation:                 Mr Andrew Davies of Counsel instructed by Cozens-Hardy LLP Solicitors

Respondent representation:             Mr Simon Breasley of Thyme Consultants Ltd

 

 

D E C I S I O N

 

Ali v Lane and another [2006] EWCA Civ 1532

Haycocks v Neville [2007] EWCA Civ 78

Pennock v Hodgson [2010] EWCA Civ 873:

THE APPLICANT’S APPLICATION

1. On 21^st February 2008 the Applicant applied for first registration of a large parcel of land at Holme-next-the-Sea, on the eastern shore of the Wash north of Hunstanton, Norfolk.  The Applicant – as its name suggests – is a charitable trust established for the purposes of preserving the natural environment, and it operates a nature reserve along this stretch of coastline (and indeed in several other parts of the county).  It asserts a legal title to the land in question by virtue of the Conveyance dated 18^th March 1966 and made between Minister of Land and Natural Resources (1) and the Applicant (2) (“the 1966 Conveyance”).  The vendor under the 1966 Conveyance derived its title through three other conveyances, namely; (a) a Conveyance dated 1^st April 1960 and made between Frederick Hiam Limited (1) and the Minister of Agriculture Fisheries and Food (2) “(“the 1960 Conveyance”); (b) a Conveyance dated 10^th December 1953 and made between Bernard le Strange and others (1) Messrs Wood and Stanton (2) and Frederick Hiam Limited (3) (“the 1953 Conveyance”); and (c) a Conveyance dated 27^th September 1920 by which Charles Alfred le Strange conveyed the land to Fred Hiam (“the 1920 Conveyance”).  The application for first registration related to a much larger piece of land than is in dispute in this adjudication.  The Applicant has become registered, under title number NK370960, with the greater part of the land included in the original application.  This is land which is comprised within the Holme Dunes Nature Reserve, as to which the Applicant’s website contains the following description: “Covering over 281 hectares, NWT Holme Dunes consists of extensive sand and mud flats behind which sand dunes have developed.  Areas of saltmarsh, freshwater grazing marsh and reedbed have developed in the shelter of the dunes.  Within the dunes are wet areas, known as “slacks”, thickets of sea buckthorn and a Corsican pine woodland.”  The registered title primarily consists of these sand dunes and associated areas, lying between the village of Holme-next-the-Sea to the west and Thornham to the east, and bounded on the north by the Mean High Water Mark of Ordinary Tides (“Mean High Water Mark”).  The title includes a body of water known as Broad Water, which lies behind the coastal dunes at their eastern extremity, and forms a rough L-shape, with the foot of the L running south from the dunes towards the River Hun near Thornham.  The main shaft of the L runs more or less east to west.

 

 

THE RESPONDENTS’ OBJECTIONS

2.  In respect of three parcels of land comprised in the original application, however, the Respondents objected to the Applicant’s registration.  The first-named Respondent, Mr Lumley, is the registered proprietor of two unconnected parcels of land known as “…land adjoining Broad Water, Holme-Next-The-Sea…” under title number NK336604.  The western parcel consists of a rectangular area of land, to the north of Broad Water and the east of “The Firs”, a large Edwardian house which is comprised within the Applicant’s Title and is used as a visitor centre for the Holme Dune reserve.  The eastern parcel of land is situated to the north of Broad Water, at the point where it turns south.  I shall refer to these two parcels as “the Lumley land”.  The root of title to both these properties is formed by the Conveyance dated 8^th January 1936 and made between Hiam Estates Limited (the same company as Frederick Hiam Limited by change of name) (1) and Ernest Hickling (2), to which I shall refer as “the Hickling Conveyance”.  Both parcels came into Mr Lumley’s family by virtue of two subsequent conveyances, made between Ernest Hickling (1) and Edwin Sinclair Clarke MC (2) and dated 25^th September 1937 (“the 1937 Conveyance”) and 26^th September 1949 (“the 1949 Conveyance”) respectively.

 

3. The second Respondent, Mr Ellison, owns a long, thin rectangle of land lying immediately to the east of the southern reach of Broad Water, almost as far as its southernmost point close to the River Hun.  This land is registered under Title number NK383628 and will be referred to as “the Ellison land”.  He derives his title from a Conveyance dated 5^th September 1938 and made between Frederick Hiam Limited (1) and Anthony Welldon Ellison (2) (“the Ellison Conveyance”).

 

4. The basis of each Respondent’s objection is the same.  They both claim that part of the land included in the Applicant’s original application is already included within their own title, by virtue of the doctrine of accretion.  They argue that the original purchasers of the Lumley land and the Ellison land had then acquired a title up to and including Mean High Water Mark.  If that is right, and since the Applicant’s title post-dates theirs, any accretion to the coastal land (by virtue of the retreat of the Mean High Water Mark) will belong to them as an accretion to the original title.  This proposition of law is uncontroversial, and is agreed between the parties. There is no doubt, and no dispute, that there has been a very substantial retreat in the Mean High Water Mark – and corresponding accretion to the coastal properties – since the late 19^th century.  The retreat has been reflected in successive editions of the Ordnance Survey maps for the area, many of which have been put in evidence before me.  I should add that Mr Breasley, for the Respondent, pointed out that the process of accretion was by no means consistent over the years, and indeed on occasions the coastline was the subject of diluvion.  There is, however, no gainsaying the overall trend, namely accretion.  The true issue between the parties is this: when the Lumley land and the Ellison land were conveyed to the Respondents’ predecessors in title, did the conveyances include all the land as far as Mean High Water Mark, as the Respondents contend, or did the conveyance only extend as far as a notional line to the south of Mean High Water Mark (in respect of the Lumley land), or to the west (in respect of the Ellison land) as contended for by the Applicant.  I should add that Mr Ellison also claims that there has been accretion to the inland side of the Ellison Land, in that the part of Broad Water that lies immediately to the west of the Ellison Land has become a reed-bed and has cease to be covered by water.  Adopting the same principle of accretion as applies to the sea, he argues that the reed-bed belongs to him.  In order to resolve these issues, my first, indeed principal, task must be construe the various title documents.

 

MR LUMLEY’S ROOT OF TITLE

5. I shall begin with the root of title to the Lumley land.  This is formed by the Hickling Conveyance of 1936.  Neither the original, nor a copy of this conveyance has been produced to me, nor is available to the parties, but an original certified Abstract of Title has been produced which reproduces the terms of the Hickling Conveyance and contains a copy of its plan.  The land is described thus: “ALL THAT pce of frhd land situate in the Psh of Holme in the Coy of Norfolk bounded on the North & East by the Foreshore of the Wash and on the South & West by other property of the Coy containing by admeasurement 5a. 3r. 14p. or thabts and wh for the ppse of identification only and not limitation is delineated on the plan annexed thrto and thron edged with the red…”  After making allowances for the conveyancer’s shorthand, the description reads as follows: “ALL THAT piece of freehold land situate in the Parish of Holme in the County of Norfolk bounded on the North and East by the Foreshore of the Wash and on the South and West by other property of the Company containing by admeasurement 5 acres 3 roods 14 poles or thereabouts and which for the purpose of identification only and not limitation is delineated on the plan annexed [t]hereto and [t]hereon edged with the red….”  The conveyance plan appears to be based on the 1890 edition of the Ordnance Survey County series, although it is not identical and is probably a freehand copy or rough tracing of the same.  No scale is marked.  It identifies the land as an area to the north of Broad Water, wider on the west than the east and tapering to a point at the extreme east.  The southern boundary of the area edged in red lies a short distance to the north of the northern bank of Broad Water – in other words, the southern boundary of the land is not formed by Broad Water itself but lies slightly to the north. This is consistent with the reference in the conveyance to “the roadway belongg to the Coy separating Broadwater afsd from the ppty thrby sold for the ppse of access and egress to the ppty thrby convd and also the right to erect boathouses shelters & landing stages in the Broadwater and attach them to the Bank belong to the Coy………..”.  I should mention that the area between Broad Water and the sea was intended to be laid out as a high-class private housing and recreational estate with associated boating and other leisure facilities on Broad Water.  The word “FORESHORE” is written on the plan immediately to the north of the land edged red.  Although Mr Davies, for the Applicant, tried to persuade me that this word had some other meaning in this context, I cannot agree with him.  The word “Foreshore” has a generally accepted meaning of the area lying between Mean High Water and Mean Low Water and there is nothing in the context or the surrounding circumstances of the Hickling Conveyance to cause me to depart from this generally accepted definition.

 

PRINCIPLES TO BE ADOPTED IN CONSTRUING THE CONVEYANCES

6. In construing the Hickling Conveyance, and, indeed, all the documents of title that have been referred to me, the essential purpose is to ascertain from the words used the true intentions of the parties to the conveyance.  Mr Andrew Davies, appearing for the Applicant, helpfully reminded me of judicial guidance on the subject, citing in particular the following passages from the judgment of Mummery L.J in the recent Court of Appeal decision in Pennock v Hodgson [2010] EWCA Civ 873:

“7.          The opinion of Lord Hoffmann in Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894 is now regarded as the leading modern authority on the construction of the parcels in a conveyance. The rest of the Appellate Committee agreed with it. It discusses the status of an Ordnance Survey plan attached to a conveyance “for the purposes of identification” and the inferences that may properly be drawn from physical features of the land existing and known at the date of the conveyance. They are all familiar themes in boundary disputes. 

8.            Ought the judge to have ignored evidence of the presence and position of the fence, when construing the parcels clause and the attached plan? The judge should, according to the claimants, have excluded the fact of the fence from the process of construction, because there was no ambiguity in the presence and position of the stream shown as a boundary feature on the attached plan.       

9.            Alan Wibberley supplies the solution. From it the following points can be distilled as pronouncements at the highest judicial level :- 

(1)        The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.

(2)        An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.     

(3)        Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.

(4)        In principle, there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary

10.          The long standing general principles of how to construe a conveyance underpin those points. In Eastwood v. Ashton [1915] AC 900 at 906 Earl Loreburn said in a dispute about title to a small strip of land:-

“We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.” 

I shall do my best to apply these principles and guidelines when construing the material documents of title in this case.

 

THE MEANING OF THE HICKLING CONVEYANCE

7. Leaving aside for the moment any extraneous material or the background circumstances, the terms of the Hickling Conveyance are clear.   The northern and eastern boundaries are said to abut the foreshore of the Wash, and the southern and eastern boundaries to abut other property of the Vendor.  The total area is said to be nearly 6 acres.  The words of the parcels clause leave no room for doubt that the parties’ intention is to delineate the northern and eastern boundary by reference to the foreshore of the Wash – in other words, Mean High Water Mark at this point.  The conveyance plan, which is introduced by the words “….for the purpose of identification only and not limitation…” – is entirely consistent with that description, since the northern boundary of the land shown edged red is indeed adjacent to the word “FORESHORE”.  If the only material available to me in the construction of this document is the Hickling Conveyance itself, the intention of the parties was undoubtedly to include all the land up to and including Mean High Water Mark.

 

SURROUNDING CIRCUMSTANCES AS AN AID TO CONTRUCTION

8. However, the Applicant invites me to have regard to certain matters which lie outside the four corners of the conveyance, in particular the physical appearance of the subject land at the time of the Hickling Conveyance, as apparent from the Ordnance Survey mapping subsequent to 1890. This is, of course, entirely legitimate, as the passage quoted above from Mummery LJ’s judgment makes clear.  He relies heavily on a report prepared by Mr William Boyd, a former Warden of Holme Dunes who, as the Applicant’s West Norfolk Field Officer, has overall responsibility for the nature reserve.  Mr Boyd has carried out a detailed exercise, in which he attempts to relate the various conveyance plans to the changing physical appearance of the coastline over a period of some 100 years.  As he readily accepted, he is not an expert surveyor or cartographer, and indeed no directions for expert evidence had been given rendering such evidence admissible.  However, the exercise carried out by Mr Boyd does have some value, at least to the extent that he has produced a sequence of relevant Ordnance Survey maps, and certain photographs, and overlaid them with the title plans.  I have therefore had regard to his evidence, which, where appropriate, I have taken into account as part of the background to the construction of the title documents.

 

9. As I have said, the Hickling Conveyance plan was based on the 1890 Ordnance Survey map (Mr Boyd agreed with this, although he had originally thought that the 1905 Map was the basis for it).  A comparison between this map, and the conveyance plan on which it is based, makes it obvious that the red edging of the land comprised in the conveyance more or less coincides, on the northern boundary, with Mean High Water Mark as shown on the 1890 map. However, the closest OS map in time to the Hickling Conveyance is that of 1939.  By this time, Mean High Water Mark was a considerable distance to the north of the northern extent of the red edging shown on the Hickling Conveyance plan, namely the High Water Mark shown on the 1890 map.  This is shown in Mr Boyd’s Map E, as explained in his evidence.  The significance is this.  The stated area of the land comprised in the Hickling Conveyance was approaching 6 acres. On the basis that the northern boundary of the land was as shown on the 1890 Ordnance Survey Map – Mean High Water Mark – the acreage is more or less correct.  Again, this can be derived from Mr Boyd’s report, and the maps produced by him.  However, if Mean High Water Mark is considerably further north (as it will have been by 1936), and if that represents the northern boundary of the land conveyed, the acreage would be completely wrong.  The area of the land would be substantially greater.  Based on this discrepancy, Mr Davies argues that the Hickling Conveyance was not intended to convey land as far as the Mean High Water Mark, but to a northern boundary that lay to the south of that line.  Mr Davies (even relying on Mr Boyd’s report) was unable to identify any definite feature on the ground, present in 1936, that exactly coincided with the suggested boundary and stated acreage.  One difficulty in his way was that the southern boundary was identified by reference to a roadway that was never constructed, although a rough path does exist.  There is inevitably an element of uncertainty as to the exact line of the southern boundary.

 

RESOLVING THE AMBIGUITIES

10. It will be seen, therefore, that the Hickling Conveyance does give rise to a difficulty of construction, essentially caused by the fact that the conveyance plan was based on an outdated and obsolete Ordnance Survey Map.  The features shown on the conveyance plan no longer existed. There is, therefore, a conflict between the verbal description, the acreage given and the physical appearance of the land.  Mr Davies submits that I should resolve the discrepancy by treating the conveyance as limiting the area of land to a 6-acre site which would not extend as far as Mean High Water Mark as it existed in 1936.  I adopt a different approach.  The process of construction, as described by Mummery LJ, necessarily involves a consideration of surrounding circumstances (and particularly the physical circumstances) existing at the date of the conveyance.  Where there is a conflict between individual elements of the description an overall judgment has to be made as to the probable intention of the parties.  In my judgment, and having regard to all the admissible material before me (not all of which has been specifically referred to in this Decision) I conclude that the intention underlying the Hickling Conveyance was to convey all the land up to Mean High Water Mark.  The description of the northern and eastern boundary as “……the Foreshore of the Wash….” is unequivocal, and the conveyance plan reflects this.  There is no land shown between the red edging and the Foreshore.  I accept that the acreage of the plot is inaccurately stated, but this is the inevitable result of using an obsolete Ordnance Survey map.  I do not consider that this factor should prevail over the clear words of the verbal description, which leaves no room for doubt.  There is also another cross-check on this construction. The land conveyed by the 1920 Conveyance to Frederick Hiam Ltd – which I discuss in detail below – manifestly includes an area of land to the north of the 6-acre site, as shown on Mr Boyd’s Map B overlay.  Accordingly, if the Applicant’s construction of the Hickling Conveyance is correct, the land conveyed to the purchaser by Frederick Hiam Ltd would have been bounded on the north and east “….by other property of the Coy…” and not by the Foreshore of the Wash.  There is no indication that the vendor intended to retain any property between the northern boundary of the Hickling land and Mean High Water Mark.  In my judgment, this reinforces the construction that the Hickling Conveyance was intended to convey land right up to Mean High Water Mark.  I entirely accept that there are respectable arguments for reaching a different conclusion – which Mr Davies has skilfully addressed to me – but in my judgment these are outweighed by the considerations I have mentioned.

 

DID THE VENDOR HAVE TITLE IN 1936?

11. If that construction is correct, Mr Lumley’s objection would be well-founded, always assuming that Frederick Hiam Ltd had a title to the land as far as mean High Water Mark as at the date of the Hickling Conveyance.  However, the Applicant contends that the vendor under the Hickling Conveyance did not itself have title to all the land as far as Mean High Water Mark, and could not therefore have conveyed it. 

 

THE 1920 CONVEYANCE

12. The vendor under the Hickling Conveyance was Hiam Estates Limited, which derived its own title from the 1920 Conveyance.  The parcels description reads as follows: “All and singular the freehold land and hereditaments situate in the Parish of Holme next the Sea or in the adjoining Parishes of Ringstead or Thornham in the County of Norfolk more particularly described on the plan drawn on these presents and thereon surrounded by a red verge line and also a perpetual annual rentcharge of Three pouns issuing out of the lands coloured yellow on the said plan all of which hereditaments are further described in the Second Schedule hereto.”  The plan annexed to the conveyance is drawn to a scale of 6 inches to 1 mile, or 1:10560.  This was the basic Ordnance Survey scale from the late 18^th Century onwards and was used for the County Series of maps well into the 20^th Century.   It may be noted that the initial survey for the County Series took place between 1879 and 1886, with the first revision made between 1900 and 1906[1].  The red verge line drawn around the various parcels is thick and probably painted onto the plan with a brush.  By my reckoning, and having regard to the scale of the map, the line has a thickness of between 35 and 40 metres on the ground.  Given that the property is stated to be “more particularly described” by the plan, this is clearly unsatisfactory.  However, it is clear that the red verge line does not coincide with the “High Water Mark Ordinary Tides” as depicted on the plan along much of its length.  It does touch the “High Water Mark Ordinary Tides” in at least two places, close to the north-eastern corner of Broad Water, in the vicinity of the area comprised within the Hickling Conveyance.  However, the red verge line diverges from Mean High Water Mark as the coastline runs westward.  The area to the north of Broad Water is identified on the plan by the Ordnance Survey close numbers, namely 212a, 214, 215 (Broad Water itself), 216 and 216a.  In the Second Schedule to the conveyance, this group is described as being “In hand” with a total area of 44.497 acres.  Mr Breasley, for the Respondents, points out that these are not described as “part” fields, in contrast to close numbers 211 and 212, which are identified both on the plan and in the Second Schedule as part fields only.  211 and 212 are the fields which adjoin the “High Water Mark Ordinary Tides” to the north-west of Broad Water.  A better and fuller copy of the 1905 Ordnance Survey map was provided by the Applicant after the hearing.  This shows that there is also a parcel “214a”to the north of 214, which seems to occupy the area of the dunes as far north as Mean High Water Mark.

 

13. The 1920 Conveyance plan appears to be based on the 1907 revision of the County Series map, which has the same scale, although it is not identical.  In particular, the 1907 revision does not show any parcel numbers, although these are shown on the 1:2500 version dated 1905.  It seems probable that the two maps have been combined – perhaps in the form of an annex to an estate terrier – using the parcels information from the 1905 map and the topographical details of the 1907 revision.  The parcels information is not wholly accurate, however.  For example, whereas the spit of land to the north-east of Broad Water appears to be included within parcel 214 on the conveyance plan, it is identified as parcel 213a on the 1905 map.  That parcel number simply does not appear on the conveyance plan.  There is no reference to 214a (nor is there in the schedule of parcels) which is the parcel shown on the 1905 map (in the version supplied to me after the hearing) as comprising the area immediately adjoining Mean High Water Mark. The location of other parcels is not accurately shown. However, both the 1905 and the 1907 editions of the Ordnance Survey map demonstrate that Mean High Water Mark had retreated northwards since the 1890 first edition of the County map.  It is the Applicant’s case that the red verge line shown on the 1920 conveyance plan is drawn deliberately so as not to coincide with Mean High Water Mark, leading to the conclusion that the parties intended to exclude from the conveyance the strip of land including and immediately inland from Mean High Water Mark.  In his submissions on the further version of the 1905 Ordnance Survey plan produced after the hearing, Mr Davies argues that this equates to parcel 214a.  Mr Breasley, for the reasons set out in his additional submissions, rejects this argument.

 

EFFECT OF SUBSEQUENT CONDUCT – THE 1953 CONVEYANCE

14. Mr Davies also prays in aid the fact that, in a subsequent conveyance between the same parties – the 1953 Conveyance – land up to and including Mean High Water Mark was conveyed to the same purchaser.  Mr Davies submits that, in construing the 1920 Conveyance, evidence of subsequent conduct may be admissible.  He refers me to Ali v Lane and another [2006] EWCA Civ 1532 and Haycocks v Neville [2007] EWCA Civ 78 for that proposition, which I entirely accept.  Some examples of the types of subsequent conduct that may be admissible are given at paragraphs 36 to 38 of Carnwath L.J’s leading judgment in Ali v Lane. He also makes it clear that the evidence must be of “probative” value – mere unilateral conduct being unlikely to satisfy this requirement.  I agree with Mr Davies that the contents of the 1953 Conveyance, made between the same parties as the 1920 Conveyance – or rather by the same purchaser and a successor in title to the vendor – is potentially admissible as an aid to construing the 1920 Conveyance, in the sense that it might provide an indication as to what land was included within it. 

 

15. The first recital to the 1953 Conveyance records that the property thereby conveyed was by a Vesting Assent dated 19^th February 1934 vested in the vendor Bernard Le Strange as tenant for life under the terms of a                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           strict settlement.  The settlement seems to have been created in 1926 and the original tenant for life was Charles Alfred Le Strange, the vendor under the 1920 Conveyance.  The property comprised in the sale, at a consideration of £470, was described as follows: “ALL THOSE lands and premises situate in the Parish of Holme-next-the-Sea in the County of Norfolk more particularly delineated on the plan hereto annexed and thereon in part coloured Blue and in part surrounded by a Red verge line….”.  The plan is at a scale of 1:2500 and is evidently based on the Ordnance Survey map.  The area edged red lies between the embankment to the north of Broad Water and the “High Water Mark of Medium Tides”, and also between the area coloured Blue and the High Water Mark of Medium Tides.  The area coloured Blue includes land to the north and west of Broad Water, and consists of parcel number Part 211. 

 

16. A comparison between the 1920 Conveyance plan and the 1953 Conveyance plan reveals that part of the land comprised in the 1920 Conveyance was also purportedly conveyed by the 1953 Conveyance.  The land in question lies to the north of Broad Water, and also includes part of parcel 211.  It is not an entirely straightforward task to compare the two plans, due to the difference in scale, the fact that Mean High Water Mark has retreated substantially between the dates of the two plans and the relative lack of detail on the 1920 plan, but it can be stated with certainty that there is some substantial degree of overlap between the two, and this is accepted by the Applicant (see for example page 4 and Map K of Mr Boyd’s report).

 

TRUE CONSTRUCTION OF THE 1920 CONVEYANCE

17. Having regard to the terms of the 1920 Conveyance, in the light of the contents of the 1953 Conveyance, how should I construe the earlier conveyance and, in particular, did it purport to convey all the land up to Mean High Water Mark?  I do not find it at all easy to resolve this issue.  On balance, however, I have concluded that the 1920 Conveyance was not intended to convey all the land up to and including Mean High Water Mark. In reaching this conclusion, I have taken into account the fact that parcel 214 is shown as comprising 16.199 acres.  When one relates this to the 1905 Ordnance Survey map, it can be seen that the northern boundary of the parcel includes the area shown as sand dune, but does not extend as far as Mean High Water Mark.  The area lying immediately behind Mean High Water Mark is parcel 214a (see the 1905 Ordnance Survey map), which is not referred to in the plan or in the parcels set out in the Second Schedule. It is true that the red verge line clearly extends beyond the northern edge of parcel 214, and well into parcel 214a as shown on the 1905 Ordnance  Survey map.  This is demonstrated by Map A attached to the report of Mr William Boyd, relied on by the Applicant.  Map A shows that the red verge line marked on the 1920 Conveyance plan does not match any feature on the ground, nor does it coincide with the Ordnance Survey parcel boundaries.  It might be thought improbable that the parties would have intended to create an entirely unmarked and unascertainable northern boundary of the conveyed land, and that they would have intended the boundary to match the most obvious northern demarcation feature, namely Mean High Water Mark itself (although this would not necessarily have been visible, it was at least ascertainable).   On balance, however, the omission of parcel 214a from the Second Schedule, coupled with the (albeit very crude) depiction of the red verge line on the plan as lying to the south of Mean High Water Mark, persuades me that for whatever reason the land immediately adjacent to Mean High Water Mark was not conveyed by the 1920 Conveyance.

 

18. Having said that, however, it is evident that the parties were confused with regard to what exactly had been conveyed by the 1920 Conveyance, as may be seen from subsequent conveyancing transactions.  First, as I have already held, Hiam Estates Limited purported to convey land up to Mean High Water Mark by virtue of the Hickling Conveyance and recited, in that conveyance, that it owned the land in fee simple in possession.  Secondly, the same purchaser – now known as Frederick Hiam Limited – purported to convey land up to High Water Mark by virtue of the Conveyance dated 10^th March 1939 made between it and Winifred Wright, which relates to “the Firs” (mentioned above).  The conveyance was of “all such rights of whatever nature as are now vested in the Vendors to and over the sandhills adjoining the property which sandhills are coloured green on the said plan ……            Excepting and Reserving unto the Vendors….the owners for the time being of the lands between Broadwater and the Sea on the eastern side of the property hereby conveyed a right of way over and across the road or track…indicated on the plan…”.  The area identified as “the sandhills” on the plan occupies the entire area between “The Firs” and its grounds and Mean High Water Mark.  The description of the Vendor as “the owners for the time being of the lands between Broadwater and the Sea on the eastern side of the property…” is self-explanatory.  Although by this time there must have been some doubt as to the basis of the Vendor’s title – hence the use of the formula “all such rights of whatever nature as are now vested in the Vendors…” – the Vendor obviously regarded itself as able to make some title to the land.  Thirdly, the 1953 Conveyance itself demonstrates confusion as to what land was conveyed by the 1920 Conveyance, since, as previously explained, the later conveyance demonstrably conveys land which had already been conveyed in 1920.  Given the uncertainty about the extent of the land conveyed in 1920 – hardly surprising, perhaps, in view of the difficulties posed by the 1920 Conveyance – the parties must have decided to resolve the issue by entering into a new conveyance.  It is true that a consideration of £470 was paid, but the later conveyance was also intended to and did convey additional land over and above that which was included in the 1920 Conveyance, particularly to the north-west of the site.

 

ESTOPPEL BY RECITAL – THE PRINCIPLE

19. If the land behind Mean High Water Mark (in effect parcel 214a) was excluded from the 1920 Conveyance, clearly it could not have been included in the Hickling Conveyance – nemo dat quod non habet.  However, exceptionally, it is argued in this case that the purported but ineffective conveyance of the land in 1936 was “perfected” by the 1953 Conveyance.  This argument is founded on the Court of Appeal decision in First National Bank PLC v Thompson [1996] Ch 231 which Mr Davies, conscious of his duty to the tribunal since the Respondent did not have legal representation (Mr Breasley is not a lawyer), very fairly drew to my attention, for which I am grateful.  The facts of the case were as follows.  On 10^th July 1991 the defendant and a Mrs McMahon executed a legal charge over a registered title in order to secure their indebtedness to a bank, the claimant. At that date neither of them was the registered proprietor, nor were they entitled to be so registered.  The charge contained no recital or other representation as to their title.  On 12^th September 1991 the property was transferred to the defendant and he was registered as proprietor on 9^th December 1991.  Some time later, the claimant applied to register its charge against the defendant’s title, but the defendant objected, on the basis that when the charge was executed, he was not the registered proprietor, and the charge did not have any effect. The judge agreed and dismissed the claimant’s application for summary judgment.  The Court of Appeal disagreed with the judge, and held that the claimant bank was entitled to be registered as proprietor of the legal charge. 

 

20. The basis of the decision was estoppel.  The ratio was as follows: “…the grantor of an interest in land was estopped from disputing the validity or effectiveness of his own deed even where he had not given any express representation of title; that the grantor’s subsequent acquisition of the legal title fed the estoppel and gave the grantee an estate in interest..”.  As appears from the judgment of Millett L.J at 239B-H, a distinction had to be drawn between cases where the original grant contained an express recital or other clear representation of the grantor’s title, and cases where there was no such recital or representation.  The distinction derives from the existence of two different types of estoppel, namely estoppel by representation and estoppel by deed. The significance, in this context, is that an estoppel by representation – where the original grant contains a recital of title – will bind even a purchaser for value without notice from the original grantor.  Where there is no such recital or representation – as in the First National Bank case itself – this is treated as an estoppel by deed which will not bind equity’s darling, the purchaser for value without notice.

 

APPLICATION OF THE DOCTRINE

21. The doctrine may be applied to the instant case in this way.  The Applicant argues that the vendor under the Hickling Conveyance – Hiam Estates Limited – did not have title to all the land leading up to Mean High Water Mark, on the true construction of the 1920 Conveyance.  However, it is common ground that it did acquire that title under and by virtue of the 1953 Conveyance.  If, as I have held, Hiam Estates Limited purported to convey the same land to Mr Hickling in 1936, its subsequent acquisition of the land will have “fed the estoppel” and conferred title on Mr Hickling.  The only question is whether the estoppel binds a subsequent purchaser from Hiam Estates Limited of the land up to Mean High Water Mark -  that is to say, a purchaser without notice of the earlier transaction.  In the instant case, Frederick Hiam Limited (the same company as Hiam Estates Limited) purported to sell the same land to MAFF by virtue of the 1960 Conveyance, through which the Applicant derives title.  Did MAFF take free of the estoppel which arose in favour of Mr Hickling and his successors in title?  That will depend on whether the Hickling Conveyance contained an express representation that the vendor had title of all land as afar as Mean High Water Mark.  The Hickling Conveyance does indeed contain the usual unqualified recital of a vendor’s title to the land conveyed “seised in fee simple in possession”.  This is an express representation of title, and creates an estoppel by representation.  Accordingly, the effect of the 1953 Conveyance was to “feed the estoppel” created by the recital to the Hickling Conveyance.  If, therefore, Hiam Estates Limited did not have title to the land up the Mean High Water Mark in 1936, it clearly acquired it subsequently, and at the date of the 1953 Conveyance that title became vested in Mr Hickling’s successors in title by operation of law.  When Frederick Hiam Limited purported to convey all the land up to Mean High Water Mark to MAFF in 1960, the conveyance did not and could not include any land already conveyed by virtue of the Hickling Conveyance.  The result is, therefore, that Applicant has no title to the land subject to Mr Lumley’s objection.  I should also add that although I raised with the parties the issue of covenants for title under section 76 of the Law of Property Act 1925, and invited (and received) further submissions on the point, I am satisfied that this issue is of no relevance on the facts of this case. I apologise for having introduced this red herring.

 

MR ELLISON’S ROOT OF TITLE

22. The second objection to the Applicant’s registration is made by Mr Ellison, in respect of the land to the west and east of his registered title NK391894.  The land to the west originally formed part of Broad Water but has since become a reed-bed or similar, and is claimed under the doctrine of accretion which, it is accepted on all sides, applies equally to inland waters as much as to the sea coast.  The land claimed by him to the east of his title forms a large rectangular section of the dunes leading up to Thornham. Again, this claim is made on the basis of accretion.  His title derives from the 1938 Conveyance, in which the parcels are described as follows: “ALL THAT plot of land situate in the Parish of Holme-next-the-Sea in the County of Norfolk containing three roods or thereabouts and forming part of the Vendors said Holme Beach Estate and for the purpose of identification only shown on the plan annexed hereto and thereon edged red.”  The plan does not have a stated scale, and is an estate plan showing the plots within, presumably, the proposed Holme Beach Estate.  Part of Broad Water is shown, coloured blue, but not the most easterly section of it.  The area coloured red – not edged in red as stated – forms a narrow strip of land at the most southerly and easterly section of the Estate.  The plan bears some resemblance to the plan annexed to the Hickling Conveyance, which was made by the same vendor some two years prior.  The words “Foreshore” and “Thornham Harbour” are marked on the plan, close to the northern and eastern boundary line of the Estate.  The plan seems to be based on the 1905 Ordnance Survey map, drawn to the same scale, but with the addition of the individual plots of the estate.  Although the word “Foreshore” is adjacent to the northern boundary of the plots, there is another feature shown further north and west which appears to be Mean High Water Mark, since the words “THE WASH” are written on the plan to the north.

 

23. In order to succeed in his objection, Mr Ellison must establish that his predecessor in title acquired land up as far as the shore of Broad Water on the west, and as far as Mean High Water Mark on the east.  If that was so, any accretion to the land since that time will pass with the Ellison land which lies between the two.  Again, of course, this also depends upon the vendor under the 1938 Conveyance having a title to this land. It clearly had to title to Broad Water, but probably did not have title to the land as far as High Water Mark to the east.  However, for the reasons explained in relation to the Lumley land, even if the vendor did not have title in 1938 it subsequently acquired it.  In construing the Ellison conveyance, the Applicant invited me to have regard to the actual appearance of the land, insofar as it could be ascertained from the 1939 Ordnance Survey Map, which was more or less contemporaneous with the 1938 Conveyance, and from an aerial photograph taken in 1946.  These show Mean High Water Mark at a considerable distance to the north and east of the land coloured red on the conveyance plan.  By contrast, the extent of Broad Water is little changed from the 1905 Ordnance Survey.

 

THE TRUE CONSTRUCTION OF THE ELLISON CONVEYANCE

24. In my judgment, the Ellison Conveyance should be read and construed as follows.  First, the operative description is the “plot of land…..forming part of the …Holme Beach Estate…”.  The boundaries of the land are not otherwise described, and the conveyance plan is introduced for the purpose of identification only.   The acreage is given as three roods.  The plan itself shows, I think, that the western boundary of the plot is intended to be formed by the shore of Broad Water itself.  By comparing the outline of the western boundary on the conveyance plan with the actual shape of Broad Water as shown on the 1939 Ordnance Survey Map, it can be seen that the boundary coincides with the eastern shore of the lake.   Although Mr Boyd has carried out a sophisticated comparison exercise, between the Ellison conveyance plan and the aerial photographs and other maps, I do not think that this can really be of assistance.  The plan on the conveyance is for identification purposes only and is drawn to a small scale.  Furthermore, the obvious physical boundary feature to the west was the shoreline itself, which was more or less in the same position in 1938 as it would have been when the plots were drawn up.  It may be noted that the roadway to be constructed by the Hiam company along the edge of Broad Water did not extend this far.  Having regard to the verbal description, together with the conveyance plan, and the then current Ordnance Survey Map, I am firmly of the view that the western boundary of the Ellison land was formed by the shoreline of Broad Water.  It follows, therefore, that any accretion on the inland side will have attached to the Ellison title, and the Applicant is not entitled to it. 

 

25. However, in my judgment the eastern boundary of the plot did not extend as far as Mean High Water Mark.  I appreciate that I am coming to a different conclusion from that which I reached in relation to the Lumley land.  The principal difference between the two – and it is a very significant difference – is that there is nothing in the verbal description of the Ellison Conveyance to suggest that Mean High Water Mark or the Foreshore of the Wash was intended to form the boundary.  I can find nothing in the plan, the stated acreage or in the context of the Ellison Conveyance to suggest that this was the intention.  In order to find that Mean High Water Mark was the intended boundary, I would have to ignore both the shape and position of the land coloured red on the plan, and reject the acreage altogether.  I cannot see that this approach could be justified: unlike in the case of the Hickling Conveyance, which refers in terms to the Foreshore as the boundary.  Accordingly, I hold that the eastern boundary of the Ellison land did not, and was not intended to, extend as far as Mean High Water Mark, and the coastal accretion to the east of Mr Ellison’s title does not attach to that title, but forms part of the Applicant’s land as conveyed by the 1953 Conveyance to its predecessor in title.

 

 

FORM OF ORDER

26. I shall therefore direct the Chief Land Registrar to cancel the Applicant’s application made on 21^st February 2008 so far as it relates to the Lumley land (i.e the land the subject of Mr Lumley’s objection and edged in red on the Illustrative Plan) and insofar as it relates to the land claimed by accretion to Mr Ellison’s title on the inland side – i.e the land tinted blue on the Illustrative Plan relating to Mr Ellison’s objection.  My inclination would be to order the Applicant to pay Mr Lumley’s costs on the standard basis, and to make no order as between the Applicant and Mr Ellison on the basis that it was a score draw between them.  I shall give the parties an opportunity of making submissions on costs if they so wish, in writing, such submissions to be lodged and served within 7 days of the date on which this Decision and Order is received.  I would also like to record my gratitude to Mr Davies of Counsel, to Mr Breasley, and to Mr Boyd, for their invaluable assistance in helping me resolve this difficult dispute.

 

Dated this 23^rd day of September 2011

 

 

 

 

By Order of The Adjudicator to HM Land Registry