REF/2014/535 and 536

 

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

LAND REGISTRATION DIVISION

 

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

1.      CHRISTOPHER FAGAN

2.      SIOBHAN CARAGHER

 

APPLICANTS IN REF/2014/535

RESPONDENTS IN REF/2014/536

 

and

 

1. ROGER HALL
2. CAROLINE VIVIAN HALL

 

APPLICANTS IN REF/2014/536

RESPONDENTS IN REF/2014/535

 

Property Address: The Coach House Cherington, Tetbury, GL8 8SN

Cherington Park, Cherington, Tetbury, GL8 8SN

Title No.: GR235980 and GR151068

 

Before: Judge Mark

Sitting at:  Bristol Magistrates Court

On: 15 and 16 April 2015

 

 

 

Mr Fagan  and Ms Caragher Representation: Stephanie Tozer, counsel, instructed by Mishcon de Reya

Mr and Mrs Hall Representation:  Ewan Paton, counsel, instructed by Sewell Mullings Logie

___________________________________________________________________________­

 

 

1. For the reasons given below, I will direct the Chief Land Registrar to cancel both the applications for determined boundaries but to note on the register that the parties have agreed the other boundaries on the ground subject to determination of the line of the eastern boundary and that the eastern boundary runs in a straight line from the point at the south east corner agreed between the parties to point shown on the experts’ joint plan as the point contended for by the Respondents as the north east corner of their boundary.  The northern boundary will run from that point to the agree north west corner of the northern boundary.  I will defer giving a direction to the Chief Land Registrar for 28 days to enable the parties to submit an agreed plan showing the boundaries as so agreed and determined which may be incorporated in my order.

 

2. In 2000 Cherington Park included, in extensive grounds, the main house, which was built in the 18^th century but which had been considerably modified since, and its Coach House, as well as other outbuildings.  It was owned by Brandywine Properties Limited (Brandywine), a company owned and controlled by a New York lawyer, Ed Gottesman.  The property was let to its previous owners and Mr. Gottesman did not live in the area.  He did, however, visit regularly, usually around once a month, in part to visit the grave of his daughter who was buried in the village graveyard.

 

3. On the morning of the hearing, Ms Tozer, counsel for Mr. Fagan and Ms Caragher, sought permission to adduce a witness statement from Mr.Gottesman.  No good reason was given why the statement could not have been obtained from Mr. Gottesman at a much earlier stage, as this dispute was several years old and although Mr. Gottesman lived in New York, he was plainly contactable by post, email or phone.  In addition, whatever the statement may have said, he was not available to give oral evidence and could not be cross-examined.  I therefore refused permission.

 

4. By a transfer dated 11 January 2001, Brandywine transferred the Coach House and some surrounding land to Roger and Caroline Hall (“the Halls”).  Although there were covenants in the transfer for the boundaries to be fenced, in part by Brandywine and in part by the Halls, neither party fenced the boundaries, and it would seem from the evidence of Mr. Hall that both had over the years a fairly relaxed and not always accurate view as to where they came.

 

5. In 2009, the Halls obtained planning permission to build, and built, a lean-to on the eastern side of the Coach House, and a detached studio in the grounds.  Whether the studio was built wholly on the land transferred to them, close to the eastern boundary, or only partly on that land and partly over the eastern boundary and on Brandywine’s retained land, is one of the issues that has led to these proceedings.  It is clear from the evidence of Mr. Hall, which I accept in this respect, and from correspondence from Mr. Gottesman, that Mr. Gottesman saw plans for the development which he approved.  It is not clear that he saw plans which showed the precise location of the studio, but I accept that he was continuing to visit Cherington Park regularly, still more or less on a monthly basis, that he saw from a very early stage where the studio was being erected and that he raised no concerns about it, or the hedge which the Halls planted a few feet to the east of it roughly on the line which the Halls now say was the boundary between the land transferred to them and that retained by Brandywine.

 

6. In 2010, Brandywine sold the remainder of Cherington Park to Mr Fagan and Ms Caragher, and they were registered as proprietors on 16 November 2010.  Relations between them and the Halls do not seem to have been as good as between the Halls and Mr. Gottesman, and they decided that they wanted the boundaries clearly defined for the future.  It would appear from Mr. Fagan’s witness statement (he did not attend for cross-examination and there was probably little that he could have added if he had attended) that he and Ms Caragher were told late in March 2011 by their architect that the studio appeared to have been built over the boundary.  Mr. Fagan wrote to the Halls about this by email of 1 April 2011.  In reply the Halls referred to their having already contacted Mr. Fagan about this, and stated that they had obviously been under a misapprehension since they purchased the property.  They also expressed surprise that Mr. Gottesman had made no mention of the boundary problem when the planning application was submitted.

 

7.  The parties then met in mid-April 2011, following which the Halls wrote to Mr. Fagan and Ms Caragher by email of 19 April that they hoped they understood that a mistake had been made.  They went on “The pegs indicated on our survey (which we showed you) when buying the property, and still in the ground back in 2001 were perceived to be the boundary markers.”

 

8. The concession that there had been a mistake was subsequently withdrawn by the Halls, and, in essence they now contend that the plan is inaccurate or at least ambiguous, that the boundaries had been defined by the pegs they referred to, that the position of the pegs is shown by a survey they commissioned in January 2001, and that using those pegs as the boundary markers, the studio is within their boundary and only on their land, as is other work they have subsequently carried out close to that boundary.

 

9. The continuing dispute between the parties as to the precise location of the boundary has led to both sides issuing determined boundary applications at the Land Registry to determine the entire length of the Coach House boundaries.  This requires a wholly unnecessary degree of precision so far as most of the boundary length is concerned and following the site view the parties were able to agree most of the line as being in accordance with fencing recently erected by Mr Fagan and Ms. Caragher.  The agreement was not because that line corresponded precisely with either side’s contentions in their determined boundary applications but because the area of dispute was so small in the areas in question as to make it pointless for either side to seek further precision.

 

10. What is left is a dispute as to the precise line of the eastern boundary, with a minor consequential effect on the northern boundary depending on where the north eastern corner is found to be.

 

11. The transfer, in form TP1, described the property transferred as “The Coach House and adjoining land, Cherington Park… The Property is defined on the attached plan and shown edged red.”  The transfer plan is reproduced on the next page of this decision.  It can be seen that the boundary, at its most southern point, goes around a large tree.  The eastern boundary then goes north from the tree to a point fairly close to, and to the east-north-east, of the closest part of the Coach House as it then was.  The plan is said to be to a scale of 1:1250, and the undisputed evidence is that this was a magnified copy of a 1:2500 OS plan.  It is also common ground that there are at least three potentially relevant errors on the OS plan:  the tree in the southern corner is misaligned, the part of the Coach House closest to the north eastern border is misaligned and the house, Cherington Park is misaligned.

 

12. The plan was prepared by architects, Branston & Company.  It is common ground that there are sufficient problems with this plan because of the misalignment of those features, the effect of the magnification of the original plan and the relative thickness of the boundary line to enable me to look at the surrounding circumstances, and the lie of the land at the time of the conveyance in order to construe the transfer and determine precisely what land was conveyed by it.  It is also permissible for me to look at the subsequent conduct of the parties to the transfer where that conduct is potentially probative and material (Ali v Lane [2007] 1 P&CR 26; Norman v Sparling [2014] EWCA Civ 1152).

 

13. The Coach House was advertised for sale by Lane Fox, and in their sales particulars it is stated that the final location of the boundaries was subject to agreement between the purchaser and the vendor.  Following the acceptance by Brandywine of the Halls’ offer subject to contract, a draft contract was issued by Charles Russell, solicitors for Brandywine, to Wilmot & Co., who were acting for the Halls.  By letter dated 4 October 2000, Wilmot wrote to Charles Russell:

 

“Around the northern and western sides, the Property is already pegged out; presumably the south-eastern corner of the Property is intended to be somewhere beyond the skirt of the large chestnut tree.  It would be helpful if that area could be pegged as well.”

 

14.  In reply, Charles Russell wrote to Wilmot by letter of 17 October 2000:

 

“As to the boundaries we now enclose a new plan prepared by Branston & Company and we have marked the various points of the boundary.  There were pegs at points B, C and D and our client has suggested that it insert large metal stakes to mark these.  The boundaries between A-B and D-F are in a straight line, so are, we think, clear.”

 

15. The relevant point for present purposes is point F, and the straight line boundary in dispute would run from D to F.  It was an unmarked copy of this plan which was subsequently used for the contract and the transfer.

 

16. There was then a delay in exchanging contracts, while the Halls’ planning application to renovate the Coach House was being considered.  Planning permission was granted on 20 November 2000, and contracts were exchanged on 14 December 2000.  At some point the Halls’ solicitor attended and took photographs of the pegs that had been placed in the ground to show where the boundary came, but, although the photographs were in evidence, they were of no use in determining with any degree of accuracy where the pegs were on the ground.

 

17. Soon after completion, in January 2001, the Halls commissioned D & H Surveys to produce a topographical survey of the area around the Coach House.  Somewhat curiously, Mr Hall was unable to remember the reason for this survey, but the survey, dated January 2001, recorded the position of three pegs in a straight line close to the Coach House on what the Halls now claim to be the line of the boundary between points D and F on the title plan. It is those pegs, as shown on that plan, on which the Halls rely as showing the boundary line which is still in dispute.  Strictly, it is now only the peg at what is contended to be point F that is relevant for this purpose.  The pegs are not shown in an exact straight line, although it was agreed that the boundary should be a straight line boundary, and point D is now agreed.

 

18. Following completion, in 2001-2002, the Halls renovated the Coach House, and they have lived there since.  Although there were fencing covenants in the transfer, imposing obligations on both sides, as I have already mentioned, the land remained unfenced.  The only indications of where the boundary was thought to be appear to have been that (1) there was a hedge and iron railings that ran across from the retained land to the land sold to the Halls, and in 2002 the Halls took down the hedge and railings where they ran across their land, and did so up to the point at which they believed the boundary came; (2) they mowed a path along what they understood the boundary to be; and (3) the studio was built and the hedge planted, with Mr. Gottesman at least watching in circumstances in which both parties would appear to have considered that they were built and planted within the boundary of the Halls’ property.  The path can be seen in Google photographs said to date from 2005 and 2006 which were in evidence before me, but I am unable to derive any real help from these photographs as to where the precise boundary came or was thought to come.

 

The expert evidence

19. Expert evidence as to the boundary line was given by Mr. Michael Timbrell for Mr. Fagan and Ms Caragher, and by Mr. Nigel Haddow for the Halls.  In essence, that evidence was distilled into a joint statement which they produced by reference to a digital survey plan produced by Mr. Timbrell.  They agreed that the transfer plan was purely a guide to the features on the ground and that there was a danger in using it to determine the correct boundary.  This was, they agreed, exemplified by the incorrect orientation of the Coach House and the relative position of the tree in the south east corner of the property.  However, they agreed that the red line showing on the annexed drawing “is a reasonable representation of one of a number of possible positions of the boundary line shown on the original Transfer plan.”  That line left the 2009 lean-to within the Coach House land but left the hedge and about a fifth of the studio on the Fagans’ side of the boundary.

 

20. An alternative plan produced by Mr. Haddow had been based on the pegs identified in the January 2001 survey.  His boundary was transposed onto the plan (it was agreed that it was accurately transposed) and it was agreed that the boundary represented by the pegs was “a very accurate reflection of the original boundary”.  That boundary very closely corresponded with that of Mr. Timbrell, except on the boundary that is still disputed.  On that boundary, starting from point D, Mr. Haddow’s line diverges from Mr. Timbrell’s line.  When it reaches the hedge it is well to the east of the hedge but gradually comes closer to it and at the north end of the hedge roughly passes through the middle of it.  It ends up at a point F to the east of Mr. Timbrell’s point F.

 

21. A copy of the relevant part of that plan is annexed to this decision.  The boundary contended for by Mr. Fagan and Ms Caragher is shown in red on the plan.  That contended for by the Halls is shown in green on the plan.  Point F as contended for by Mr. Fagan and Ms Caragher is in red and circled at the top right hand corner of the plan and point F as contended for by the Halls is just to the right of it and marked Peg 1 at the corner of the green boundary.  The red line boundary can be seen to go south close to the 2009 lean-to (shown by dotted lines on the plan) and then to go to the west of the hedge planted in 2009 and through the rectangular studio about an inch below the contested corner.  The green line leaves the hedge, or most of it, and the studio on the Halls’ side of the boundary.  The Coach House, as it was in 2000/1 is to the west of the dotted line lean-to.

 

The referred applications

22. Both sides have made determined boundary applications to the Land Registry which have been referred to the Tribunal.  Mr. Fagan and Ms Caragher sought a determined boundary along the red line, which is described by Mr. Timbrell and Mr. Haddow as “a reasonable representation of one of a number of possible positions of the boundary line shown on the original Transfer plan”.  At the hearing, however, Ms Tozer modified her clients’s position.  They now concede that the boundary should not go through the studio.  Instead it should follow Mr. Timbrell’s line, but deviating from it to go around the studio and the paving that had been laid when it was built, and then return to the original line.  The Halls’ application was to follow Mr. Haddow’s line.  Insofar as the boundary other than between points D and F was concerned, both parties were agreed as to part of the boundary line and as to most of the rest they abandoned their previous contentions in favour of an agreed line which followed the line of fencing recently erected by Mr. Fagan and Ms Caragher. That only left a small difference in respect of the northern boundary which depended on the precise position of point F.

 

Factual conclusions

23. It appears to me that the intention of the parties was that the boundary was to be a straight line which was marked by pegs on the ground and which was the boundary which Branston & Co were instructed to show on the plan they prepared.  Branston & Co. then used an ordnance survey plan which had inaccuracies noted by Mr. Timbrell and Mr.Haddow, and which could, for all Branston & Co. may have known, have been distorted in other respects as well.  As a method of showing the precise boundary it was almost certain to fail.

 

24. It also appears that the most likely reason for the plan appearing to show the disputed boundary in a different position from the line of the pegs in the D & H Survey in January 2001 is that whoever carried out the measurements for the plan would have plotted the position of the pegs in relation to the main nearby structure, the corner of the Coach House.  Because the corner of the Coach House was misaligned on the plan, the equivalent to point F was similarly misaligned.  This is supported by the fact that the angle of point F on the transfer plan to the north wall of the nearest part of the coach house is pretty much the same (I have not plotted it precisely) to the angle of Mr. Haddow’s point F on the joint experts’ plan and is 10 degrees or so less than the angle on that plan between the north wall and Mr. Timbrell’s point F taken from the transfer plan.  I note that according to Mr. Haddow’s uncontested oral evidence, which I accept, the degree of misorientation of the end of the Coach House on the transfer plan was 10 degrees.

 

25. I am satisfied that the pegs as marked by D & H Surveys were at the time of the survey in the positions shown on the plan that was then prepared.  Ms Tozer for the Fagans has sought to suggest that they, or one or more of them may have been moved either by one of the Halls or by some other person trespassing on the land (there being evidence of such trespasses).  However, nobody had any good reason to move any of the pegs.  For the Halls to have moved them so soon after the transfer could have led to immediate problems with Mr. Gottesman, and would not have improved their boundary in any significant way, as there is no evidence that the studio was under contemplation at the time and no evidence that even when it was contemplated it could not just as easily have been built a few feet further west.  I would add that it is really only the peg at point F that mattered given that the experts agree as to the position of point D by the tree at the other end of the disputed boundary.

 

26. On those grounds alone I would conclude that, on the balance of probabilities, point F was not correctly shown on the transfer plan because it was plotted by reference to the actual position of the Coach House and then transposed onto a plan which showed the Coach House in the wrong position.

 

27. My view as to the position of the pegged boundary is fortified by the subsequent conduct of the parties.  Both sides proceeded in 2009 on the basis that the studio and hedge were within the boundary of the Coach House.  In this respect, I am concerned with the position of each party as expressed by their actions.  The unexpressed private uncertainty of the Halls, if there was any at the time, as to whether the studio might overlap the boundary is of no evidential value.  What matters is that in putting forward the plans and building the studio as they did, the Halls were doing so on the basis that everything was on their side and in watching the building go up without any objection and while discussing details with the Halls, Mr. Gottesman was proceeding on the same basis.  They would, however, have been likely to have been proceeding by reference to their recollection of the pegged boundary on the ground rather than by reference to the plan, so that if the plan cannot be found to correspond with the pegged boundary, their approach could at best give rise to a proprietary estoppel leading to a boundary of the kind contended for by Ms Tozer.

 

28. I note (although not of evidential value) that neither Applicant attended the hearing and that there was no suggestion that it occurred to either of them until well after completion of their purchase that any part of the hedge, let alone the studio was within the land bought by them.  Rather it was clear that they had no thought that they were buying up to what they now claim to be the legal boundary, and that they must when buying have regarded the whole of the studio as being outside their purchase.  It is never an attractive proposition by a purchaser that their purchase, with the benefit of a detailed scrutiny of title plans, included land which they had never thought at the time of the purchase that they were buying, and which could be seen by them at the time of that purchase to be occupied by their new neighbours.  I also note that they did not disclose their conveyancing file, which would in the ordinary course of a purchase have included standard enquiries as to the boundaries and the replies given on behalf of Brandywine.

 

The law

29. Ms Tozer submitted that as the transfer described the land transferred as that defined on the plan and shown edged red, that was the land transferred, and although one could look at the property as it was at the time of the transfer to determine what land was edged red, if the line drawn through the pegs was not a possible interpretation of the transfer plan it could not be the boundary of the land transferred.  She went on to contend that it was not possible to produce an area of the shape of that on the transfer plan with permitted allowances for margins of error, which could include the area between Mr. Timbrell’s line and Mr.Haddow’s line while also including all the land which was agreed to have been transferred to the Halls and excluding all the land agreed to have been retained by Brandywine Ltd.

 

30. The task of the tribunal is to construe the transfer as a whole.  If, due to some error or misunderstanding a transfer of part of a title does not include land which was intended to be transferred, or was believed to have been transferred, the land remains within the original title subject only to any equitable interest or equity such as a claim for rectification or a proprietary estoppel claim.  Where, as here, the transfer defines the land transferred as the land defined on the attached plan, and there are no other indications in the transfer itself to put that definition in doubt, what needs to be determined is the area of the land shown on the plan.  Insofar as that cannot clearly be determined from the plan itself, whether because of inaccuracies in the plan or because the area in dispute is too small for the precise position of boundaries to be clear from it, the area included must be determined in the light of the surrounding circumstances at the time of the transfer and this includes looking at the features present on the ground at that time.  Nevertheless, the transfer plan is the required starting point when ascertaining the position of the boundary.  As it was put by Black LJ in Dixon v Hodgson [2012] 1 P&CR 15 at paragraph 50:

 

It is important to note that the plan is not merely for identification; it defines the property transferred. Being the dominant description, it has to be accorded full weight in the same way as the plan was in Beale v Harvey. Finding that the plan did not enable him to determine the precise position of the boundary, and that the low wall had been put in a different place from that intended, the Recorder appears largely to have abandoned the plan. I am not persuaded that that was the proper approach. Even if the plan cannot give the whole answer, it must surely be right to look at it to see what information it does reveal about the boundary, notably its fixed points, its relationship to other features marked on the plan, and its direction of travel. Whilst it perhaps seems a little odd to look upon it as part of the surrounding circumstances when it was intended to be definitive, if it has failed in that primary aim I would see it as a very significant part of the objective facts available to the parties at the relevant date.

 

31. In her judgment, with which the other members of the court agreed, Black LJ had reviewed earlier decisions of the Court of Appeal in Beale v Harvey [2004] P&CR 18 and Partridge v Lawrence [2003] EWCA Civ 1121, and also the judgment of Lewison J in Chadwick v Abbotswood Properties Ltd [2004] EWHC 1058.  Beale v Harvey was concerned with a case where the plan had been prepared for the contract and then between contract and completion, which was by reference to the same plan, the developer selling the property had put up a fence in a position which could not be reconciled with the contract plan.  The Court of Appeal had held that the contractual boundary could not be determined by the position where the developer had subsequently erected the fence.  I note that that was a case where the fence was clearly in the wrong position and where it had not been in place when the boundary line was agreed.  I also note that the court declined to follow Watcham v AG of East African Protectorates [1919] AC 900, and refused to attribute any evidential value to the subsequent conduct of the parties after the contract had been entered into.  It may be that in that case the subsequent conduct had no evidential or probative value, but the general principle that, insofar as such conduct has probative value, it may be relied on, has since been established in Ali v Lane and Norman v Sparling.  In the present case, the events in 2009 appear to me to have some probative value of where the original parties recalled the pegged boundary to have been.

 

32. In Chadwick v Abbotswood Properties Ltd, Lewison J stated the law as follows in a passage at paragraphs 43-44 of his judgment cited with approval by Black LJ:

 

Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground. As Bridge LJ put it in Jackson v Bishop (1979) 48 P & CR 57: "It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result."

 

44. The question is one to be answered objectively: what would the reasonable layman think he was buying? Since the question must be answered objectively, it follows that evidence of the parties' subjective intentions, beliefs and assumptions are irrelevant; as are their negotiations.

 

33. Black LJ also drew attention to the fact that in Partridge v Lawrence the plan annexed to the deed which was being construed had no recognisable scale but was a reduced, distorted copy of an architect’s scale plan.  In those circumstances it was permissible to have regard to the architect’s plan as one of the surrounding circumstances of the transaction in ascertaining the width of the right of way in dispute in that case.

 

34. In relation to the facts of the case before her, Black LJ stated at paragraph 43 that the Recorder whose decision was under appeal had asked the very question that Lewison J had posed in Chadwick v Abbotsbury as to what the reasonable layman would think he was buying.  In examining the way in which he approached this question, she concluded that the plan and the actuality did not match up in a number of ways (para.54), which she went on to examine.  She concluded, at paragraph 65, that the Recorder had set himself the correct test but had then made the mistake of abandoning the plan completely and looking at the physical features on the ground as at the date of the transfer without the plan in his hand.

 

35. The final decision of the Court of Appeal cited to me was Cameron v Boggiano [2012] EWCA Civ 157.  The issue was whether the common boundary between two properties ran in a straight line.  The relevant transfer was on land coloured pink and blue on a transfer plan.  The plan was said to have been produced by magnifying and scaling up from a small scale original filed plan based on an OS map that did not show relevant features on the ground or purport to show precise boundaries.

 

36. After reviewing the authorities, including those to which I have referred above, Mummery LJ continued at paragraphs 63-67:

         

            63. Where the lack of sufficient clarity is in a plan marked "for identification only" it is, in my view, easier to justify regard to the topography to assist in construing the contract/transfer plan than in a case like this where the plan was not so designated and has been prepared as a defining document. Even so, if that document is insufficiently clear to the reasonable layman with the plan in his hand to determine the position of the boundary of No 7 Choumert Mews, the court is entitled to seek assistance on the construction of the plan and title documents by taking account of the topographical features at the relevant date.

      

            64. In this case the point at which I would, with great respect, differ from the trial judge is in her conclusion that the position of the boundary shown on Plan A is sufficiently clear and unambiguous as to make inadmissible evidence of the actual topographical features in Choumert Mews at the date of the 2001 contract and transfer.

             

            65. I agree that Plan A was part of the transaction agreed between Blueperch and the claimant and that, as such, it cannot be altered by the court. The issue for the court on construction is to identify what was agreed by the parties about the boundaries of the transaction land. In that exercise the transaction plan must, as experts sometimes say, be contextualised. It was not entered into and is not to be construed in a vacuum. In more mundane terms this means that the reasonable layman would go to the property with the plan in his hand to see what he is buying. The reasonable layman is not a qualified surveyor or a lawyer. If the plan is not, on its own, sufficiently clear to the reasonable layman to fix the boundaries of the property in question, topographical features may be used to clarify and construe it. As the judge said at paragraph 114 about the proper approach to interpreting plans in this situation:

      “…the correct approach is to take the plan to the land and see what, on the face of it, the plan appears to show is intended to be the relevant boundary feature position. Only if, when you do this, you find that you are indeed in difficulties about what the plan is intended to represent can the plan be regarded as ambiguous."

            66. In this case the plan on its own is, in my view, an insufficiently clear guide to the position of such features as the boundaries. The small scale of the plan, the lack of measurements and area size on it or in the other title documents, the thickness of the black lines drawn on it, the rather poorly, even slapdash, pink and blue colouring on a plan based on an OS map that does not fix precise boundaries and its deficiencies as an accurate plan of the area at the time of the transaction make it difficult, in my view, to say that the position of the boundary on the plan is clear and unambiguous. There is no clear or reliable way by which the reasonable layman can know from the plan alone (a) whether the lines marked on it follow actual physical features, such as the back wall of No 60, or the drain, or (b) whether they are merely imaginary lines drawn on paper.

             

            67. The recourse of the reasonable layman to the topography of Choumert Mews for enlightenment does not mean ditching the title documents of No 7. It is not a case of substituting the physical features on the ground for the boundaries shown on the plan. It is a matter of sticking with the plan in the hand and, because it is insufficiently clear on the matter of boundaries, to use the topography at the crucial date to inform and to make sense of where the boundaries of what is being transacted.

 

37. In agreeing with that judgment, Rimer LJ stated at paragraph 114:

 

Plan A was not, however, a carefully drawn one. Mummery LJ has, in [66], summarised its manifest deficiencies. Given such deficiencies and the apparent absurdity of a construction that attributes to the parties an intention to mark the relevant boundary as on a line with No 60's southern flank wall, the court can, and in my view must, have regard to all admissible evidence with a view to elucidating the true sense of the transfer. Such evidence will not of course include the parties' prior negotiations or their expressed subjective intentions as to the land to be transferred. It will, however, include a consideration of the topography of the relevant land at the time of the transfer. Recourse can be had to such evidence not for the purpose of contradicting Plan A but for the purpose of elucidating the true sense of its uncertain elements, in particular the line of the northern boundary. The court's interpretation is ultimately guided by the answer that the reasonable man, armed with the relevant material, would give to the relevant question.

 

Conclusions

38. Determination of the land transferred involves determining what land was depicted as included in the transfer plan, which, being unclear, has to be construed by reference to the relevant surrounding circumstances.  These include the topographical features at the time and these include the pegged boundary.  I can have regard to the pegging both as one of the features at the time and because I am satisfied that the plan was prepared by reference to those pegs.  In the latter respect, the position is the same as in Partridge v Lawrence, where regard was had to the scale plan from which the relevant plan was taken.  The pegged boundary here is equivalent to the scaled plan there.  The transfer plan here is distorted, not perhaps quite as much as it may have been, given the deficiencies often present in OS maps, but still significantly so, particularly in relation to the misalignment of the end of the Coach House.  Scale measurements on the copies of the plan in evidence are not possible because each one is a different size and there is no evidence as to the correct size at which the 1:1250 scale is said to apply. 

 

39. The plan needs to be contextualised, as Mummery LJ, put it.  The parties, lacking the qualifications of surveyors or lawyers, going to the property with the plan in hand and using topography to make it clear what was being transferred, would have had no difficulty in identifying the boundaries as those pegged on the ground.  They would have been well aware of the small scale of the plan and would not have appreciated the misalignment of the end of the Coach House.

 

40. I reject the contention of Ms Tozer that the plan has to be construed as set out in paragraph 28 above.  Laymen going to the property, plan in hand, applying the test approved by Lewison J and the Court of Appeal, have neither the equipment nor the expertise to carry out the sort of analysis that those contentions would involve.  I also note that it only takes one reference point to be in the wrong position on the plan for the shape of the resulting outline on the transfer plan to be distorted well beyond the limits that she contends for.

 

41. I am also satisfied that a significant reason for the misalignment of point F is the misalignment of the end of the Coach House.  I have already noted in this context that the angle produced by drawing a line on the plan from the north east corner of the Coach House as depicted between the line so drawn and the north wall of that part of the Coach House is very similar to that shown on the scale plan produced by the experts using the correct alignment of the Coach House and the position of the relevant peg as shown on that plan.  The angle produced using a line drawn from the same corner of the Coach House to the position contended for Ms Tozer is significantly different.  When Branston & Co. prepared the transfer plan, I consider that on the balance of probabilities they would have mapped the position of point F by reference to its alignment in relation to that corner of the Coach House, which was also the closest possible reference point.  Indeed there is nothing else on the transfer plan which they could sensibly have used when preparing it.  The difference in angles is about 10 degrees and this would seem to correspond with the degree of error produced by the misorientation of the Coach House.

 

42. It follows that although both applications for a determined boundary must fail, the eastern boundary is as contended for by the Halls, subject only to any minor change that may be required if the agreed point D is not in exactly the same position as that shown on the agreed plan. 

 

 

 

By Order of the tribunal

 

 

dated the 4^th day of june 2015