Drake & Anor v Fripp

Until 1996 Hustyn Park and Higher Tregawne Land, Wadebridge, Cornwall were in common ownership. On 1 April 1996 Mr Bolesworth, the owner of both, sold Higher Tregawne Land to Mr and Mrs Madden, but retained Hustyn Park. The first question raised by this appeal is: where was the boundary between the two? The rival contenders are on the one hand a Cornish hedge and the remains of a Cornish hedge; and on the other hand a post and wire fence. The two rival boundary features are 4 or 5 metres apart and the disputed area of land between the two amounts to about 1 ½ acres. The aggregate area conveyed by the transfer was stated to be just over 153 acres. The disputed land is thus about 1 per cent of the total. A Cornish hedge, I should perhaps explain, is a style of hedge found in Cornwall built of stone and earth. Typically it has two sides which are built by placing huge stone blocks into the earth and packing them in with sub-soil. Smaller interlocking rocks are used to build the hedge high until it reaches a level when random turns into neat rows of square stones called “edgers”. The top is often grassed.

Higher Tregawne Land is now owned by SLA Property Company Ltd (“SLA”) which is effectively a pension fund, and tenanted by Mr Drake. Hustyn Park is now owned by Mr Fripp. Both titles are now registered at HM Land Registry; although neither was before 1996. SLA’s land was registered in 1996; and Mr Fripp’s in 2001. SLA contends that the true boundary is the Cornish hedge. Mr Fripp says that the true boundary is the fence.

Mr Michael Michell, deputy adjudicator at HM Land Registry, decided in favour of Mr Fripp and the fence (REF/2008/0307). His decision was upheld on appeal by Ms Susan Prevezer QC, sitting as a deputy judge of the Chancery Division ([2010] EWHC 2238 (Ch)). This, therefore, is a second appeal. In Wilkinson v Farmer [2010] EWCA Civ 1148 Mummery LJ (with whom Aikens and Gross LJJ agreed) said (§ 25):

“The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions.”

The answer to the question where the true boundary lies depends on the interpretation of the transfer by which the land was transferred. A land transfer is a sub-species of written instrument; and the principles that apply to the interpretation of written instruments apply equally to land transfers. In Strachey v Ramage [2008] EWCA Civ 384 [2008] 2 P & CR 8 Rimer LJ said (§ 29):

“That required a consideration of the February conveyance in the context of the surrounding circumstances in which it was granted, and having regard also to any evidence properly admissible for the purposes of its interpretation. It is a statement of the obvious that the crucial provision in the conveyance was the parcels clause, since it was there that the parties identified the land being conveyed. It is, however, fundamental that the parcels clause in a conveyance should not be considered in isolation from the remainder of the document. It is a general, and basic, principle of the construction of documents that questions of interpretation should be answered by considering the document as a whole, since only then can the provision giving rise to the question be seen in its proper context. There can be no reason for this principle not to be equally applicable in relation to the interpretation of a conveyance for the purpose of identifying the limits of the land conveyed by it.”

In addition to the written instrument considered as a whole, the court must also take into account the physical features on the ground at the date of the transfer. As Mummery LJ recently explained in Pennock v Hodgson [2010] EWCA Civ 873 (§ 12):

“Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction.”

Both the adjudicator and the judge set out the relevant terms of the conveyance. They were as follows. First the parcels clause:

“the land forming part of Hustyn Mine Park Burlawn in the County of Cornwall as the same is for the purposes of identification only shown edged red on the plan annexed hereto and by admeasurement approximately 153.764 acres comprising

OS Number	Acreage
1516 Part	75.990 est
1516 Part	0.7 est
1794	0.160

…”

Clause 2 contained a covenant by the purchaser with the vendor to observe and perform “the covenant to maintain the boundary hedges, walls and fences in Clause 2 of the 1961 Conveyance”. Clause 3 to 6 went on to provide (so far as material):

“3.

IT IS HEREBY AGREED AND DECLARED by the parties as follows:

…

D. That the earth/wall boundary between points marked E and D and D and C1 on the said plan shall be deemed to be divided midway vertically.

4.

The parties … HEREBY MUTUALLY COVENANT … not to allow their respective parts of the said boundary (referred to at 3 above) to fall into disrepair so as to affect the stability of the other side thereof.

5.

The Purchasers HEREBY JOINTLY AND SEVERALLY COVENANT with the Vendor as follows:

(i)

(Subject to the Vendor having previously carried out the works referred to in Clause 6 hereof) to maintain the boundary between points C and B, and B and F shown on the plan in good and substantial stockproof condition …

6.

The Vendor HEREBY COVENANTS with the Purchasers as follows:

A.

At all times hereafter to make good any damage caused to the boundary between points C and B and B and F shown on the plan by the Vendor’s … animals farm machinery or vehicles

B.

Within one month of the date hereof to put in stockproof condition (so that the lambs will not encroach beyond the fence and by renewing all broken posts) the fence between points marked B and F on the plan…”

The plan to which the transfer referred several times was a reduced copy of the OS Map. The parcel numbers had been taken from the 1907 edition of the OS map. OS parcel number 1516 is the parcel that we are most concerned with. Its area according to the 1907 OS map is 76.484 acres; but the sum of the two parts of that parcel given in the conveyance is 76.69 acres, although each of the two stated areas is said to be an estimate. The boundary with which we are concerned is that between points B and F referred to in the transfer and marked on the plan. That part of the boundary is at the north-western edge of OS parcel 1516. The adjudicator found (and the judge accepted) that on the 1907 OS map (from which the transfer plan was derived) the north-western boundary of parcel 1516 had been taken as being the Cornish hedge. The significance of this finding is that the fence is to the south-east of the Cornish hedge; and thus the whole of the disputed land lies to the south-east of the Cornish hedge. Accordingly Mr Falkowski argues that the acreage given on the OS map (76.484 acres) must include the disputed land. Since the transfer purported to transfer more than that acreage (but all by reference to OS parcel 1516) the conveyance must necessarily have conveyed at least the disputed land. On the face of it this is a powerful argument. However, on closer examination it has serious weaknesses. First, the transfer says that the total acreage transferred is “approximately” 153.764 acres. Second, no one has been able to explain why the transfer split parcel 1516 into two parts. Third, no one has been able to explain why the transfer did not simply transpose the acreage given on the 1907 OS map if the transfer was intended to transfer the whole of that parcel. Fourth, no one has been able to explain why the parties produced an acreage which exceeded the acreage given on the OS map. Fifth, the acreage stated for those two parcels in the transfer was said to be “est” (which everyone agrees is short for “estimated”). It is also noticeable that the second part of parcel 1516 is estimated to one decimal place, whereas all the other parcels have their areas given to three decimal places. Neither the adjudicator nor the judge regarded the argument based on the stated acreage as decisive; and I agree with them. It is, therefore, necessary to look further.

The next port of call is the plan itself. The first point to make is that the plan is stated to be “for the purposes of identification only”. The second point to make is that the plan is a reduced version of a 1:2500 map. The third point to make is that the plan is marked “NOT TO SCALE”. In Strachey v Ramage (§ 31) Rimer LJ said:

“The formula “for the purpose of identification only” is one whose use is time-honoured. Its ordinary sense is that a plan so described is intended to do no more than identify the position and situation of the land: it is specifically not intended to identify its precise boundaries. The use of such a plan is therefore strictly only appropriate for a case in which the verbal description in the parcels identifies the limits of the land with adequate precision since it is a formula which indicates that the verbal description is intended to be decisive in that respect. Such a plan “cannot control the parcels in the body of any of the deeds” (Hopgood v Brown [1955] 1 WLR 213, at 228, per Jenkins LJ); 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” (Wibberley, supra, per Lord Hoffmann).”

The plan in the present case suffers from all these problems; and for the same reasons that Rimer LJ gave I do not find that the plan carries the case any further.

So if the parcels clause and the plan do not provide a clear answer, where do you go next? The answer must be that you look at the rest of the instrument. That is what both the adjudicator and the judge did; and in my judgment they were right to do so. Once you look at the rest of the instrument the answer becomes clear. The adjudicator marshalled his conclusions on this point in paragraphs 14 to 16 of his decision; and the judge did the same in paragraph 21 of her judgment. Since I agree with both of them and the reasons are peculiar to this particular instrument, there is little point in setting out the reasons in my own words all over again. The judge said (§ 21):

“In particular, I agree with the Adjudicator that Clauses 3 to 6 of the Transfer point strongly in favour of the Fence being the boundary of the land transferred:

(i)

In clause 3 (D) there is a reference to the “earth/wall boundary” between points marked E and D and C1 on the plan, which is to be divided midway vertically. This is clearly a reference to a Hedge, it being the only physical feature on the ground that could constitute an “earth/wall” boundary, and it is to be divided down the middle, with each party covenanting in Clause 4 to maintain their respective part. Accordingly, (as the Adjudicator found at Paragraph 14 of the Decision), where the partiers intended the boundary feature to be a hedge, they chose to describe it expressly where the exact position of the boundary was (ie, the mid-point of the hedge);

(ii)

However, in Clause 5 (1), the reference to the boundary between points “C” and “B” and “B” and “F” is clearly to the Fence. The reference to “stock proof” in Clause 5 (1) picks up the reference to “stock proof” in Clause 6 (A) and to the reference to the Fence in Clause 6 (B). The obligation in Clause 5 (1) is contingent upon the obligation in Clause 6 (B) being performed. If Clause 5 (1) was referring to the Hedge as the boundary (and not the Fence), then Clause 6 (B) would be difficult to construe, because (as the Adjudicator commented at Paragraph 16 of the Decision) it would require the Vendor to put in “stock proof” condition a fence with was on transferred land. It is also unlikely that the parties would have agreed to an obligation to put and maintain a Cornish hedge in “stock proof” condition, as Cornish hedges are made of stones and this would be a very onerous obligation. Further, it is easier to conceive of an animal damaging a fence than the remains of a Cornish hedge. Accordingly, on any sensible reading of Clauses 5 and 6, the Fence is to be put into a stock proof condition by the Vendor and is then to be maintained by the Purchasers in a stock proof condition, it being the boundary between the Purchasers’ land and the Vendors’ retained land.”

By far the strongest point is the vendor’s obligation in clause 6 to put the fence between points B and F in stockproof condition. What was the point of that obligation if the fence was not the boundary? In addition to the points made by the adjudicator and the judge, I would only add three:

Finally both the adjudicator and the judge checked their provisional conclusions against the position on the ground. Again this was the correct approach. Both of them decided that the provisional conclusion that they had reached made better sense of the position on the ground. In my judgment they were right to do so. Accordingly I would dismiss the appeal against the judge’s interpretation of the transfer. I agree with her and the adjudicator that the boundary is the fence, and not the Cornish hedge. The disputed land was not therefore included in the transfer to SLA’s predecessors in title. It was retained by Mr Bolesworth and subsequently transferred to Mr Fripp.

That leads on to the second point in the appeal. It is common ground that the title plan at HM Land Registry (formerly called the “filed plan”) shows SLA rather than Mr Fripp as the registered proprietor of the disputed land. However, as a matter of interpretation of the transfer plan the disputed strip should belong to Mr Fripp. Can the title plan be altered to as to give effect to the proper interpretation of the transfer?

The power to alter the register is contained in Schedule 4 to the Land Registration Act 2002. A sub-species of alteration is what the schedule calls “rectification”. This is defined by paragraph 1 of the schedule as follows:

“In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which—

(a)

involves the correction of a mistake, and

(b)

prejudicially affects the title of a registered proprietor.”

If the alteration of the register falls within the definition of “rectification” then there are restrictions on the power to alter the register: see Schedule 4 para 3 (2) and para 6 (2). If it does not then these restrictions do not apply. Alteration of the boundary shown on the title plan would undoubtedly correct a mistake; but would it prejudicially affect SLA’s title? In my judgment the answer to that question depends upon whether SLA acquired title to the disputed land as a consequence of the way in which the filed plan (now the title plan) was drawn.

Mr Falkowski’s point on this part of the appeal is that SLA has lost 1 ½ acres of land without compensation; and that an alteration in the title plan of that magnitude must prejudicially affect SLA’s title. He postulates the alteration of a title plan so as to delineate the boundary of a 150 acre residential development site in an urban area. He submits that the general boundaries rule is not concerned with appreciable discrepancies in the representations of the positions of boundaries on a title plan.

At the time when SLA was registered as proprietor of its own land the legislation in force was the Land Registration Act 1925, and the Land Registration Rules made under it. Rule 278 provided:

“(1)

Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only.

(2)

In such cases the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.”

Rule 278 is not included in the current Land Registration Rules, but section 60 of the 2002 Act provides:

“(1)

The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

(2)

A general boundary does not determine the exact line of the boundary.”

In substance this is the same as the former rule; but even if that is incorrect, it is not suggested that the revocation of the 1925 rules could have enlarged SLA’s title. Rule 278 (2) said in terms that one of the matters left undetermined was how far a boundary ran beyond a hedge, wall or fence. Accordingly in my judgment the registration of SLA as proprietor by reference to a filed plan on which the boundary line followed the Cornish hedge left the position of the precise boundary undetermined. Once the position of the precise boundary had been (retrospectively) determined by the adjudicator and the judge, it could be seen that SLA never had title to the disputed strip. Mr Falkowski’s proposition that SLA has “lost” 1 ½ acres of land is thus either question begging or wrong. Nor do I accept that there is some limit to the quantity of land that might be encompassed in a boundary dispute. It must depend on all the circumstances and in particular the quantity of land abutting the boundary. A dispute over a strip of land a few centimetres wide but running the whole length of, say, a railway or a canal would plainly be a boundary dispute even if the area involved was many hectares. In Lee v Barrey [1957] Ch 251 an alteration in the filed plan to move the boundary by 10 feet fell within the scope of the general boundaries rule, even though the whole frontage of the plot in question was only 42 feet. On the other hand an alteration in the proprietorship of a small strip of land registered under a separate title may well fall outside the scope of the general boundaries rule. In truth whether a change is “appreciable” must depend on all the circumstances; and I can see no objection to the ratio between the quantity of land at issue and the quantity of land remaining being a relevant consideration. Mr Falkowski suggested that the approach might be different if the contest is between two physical features, as opposed to a contest between a physical feature on the one hand and an imaginary line on the other. I do not accept that there is any difference in principle. If parties were to dispute whether the boundary was a hedge as opposed to a ditch; or whether the boundary did or did not include a road, the dispute would still be a boundary dispute. In Lee v Barrey Lord Evershed MR put it thus (p. 261):

“It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed, you may say that the matter has passed from any sensible use of the phrase “boundary dispute” and becomes something else. But applying the common sense test, if, as Mr. Plowman invited us to do, you put the question here: is the plaintiff saying in truth that the defendant got the wrong property by the land certificate? I would answer the question negatively. I think, for my part, that there is no doubt that the certificate purported to give him, and gives him, the right property. What, on the evidence, it has failed to do is to indicate its boundaries with sufficient correctness and precision.”

If (as Mr Falkowski accepted) this is a question of fact and degree then even if I had any real doubt about the correctness of the adjudicator’s decision (which I do not) it would be right for this court to accord it the weighed deference to which Mummery LJ referred. Accordingly alteration of the register to reflect the true boundary more accurately does not, in my judgment, prejudicially affect SLA’s title.

The same point can be put in a slightly different way. The boundary currently shown on the title plan is a general boundary. If the title plan is altered so as to show the boundary running along the line of the fence it will still be a general boundary. In Derbyshire County Council v. Fallon the deputy adjudicator Mr Michael Mark described this as producing “another general boundary in a more accurate position than the current general boundary”. His observation was quoted with approval by Mr Christopher Nugee QC on appeal to the Chancery Division [2007] EWHC 1326 (Ch) § 26(iv); and expressly approved by this court in Strachey v Ramage (§ 47).

It follows therefore that there was no restriction on the adjudicator’s power to direct the Land Registrar to alter the title plan. He was right to make that direction and the judge was right to uphold his decision. This means that it is unnecessary to decide the third point in the appeal, namely whether SLA was (or was to be treated as) a proprietor in possession of the disputed strip.

I would dismiss this appeal.

I agree.

I also agree.