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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sparling v Norman & Anor (Rev 1) [2014] EWCA Civ 1152 (25 June 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1152.html Cite as: [2014] EWCA Civ 1152 |
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ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
CHANCERY BUSINESS
(HHJ MILWYN JARMAN QC)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PITCHFORD
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ROGER ARNOLD SPARLING | Appellant |
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-v- |
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JOHN ARTHUR NORMAN SYLVIA ARTHUR NORMAN |
Respondents |
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Philip Morris (instructed by JCP Solicitors, Swansea SA6 8QP) appeared on behalf of the Respondent
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Crown Copyright ©
The History
"All that piece or parcel or plot of land forming part of Hebron Farm in the County of Dyfed and forming part of OS number 323 on the Ordinance Survey map or plan for the parish and having a frontage of 110 feet or thereabouts between the points E to D and measurements of 102 feet or thereabouts between the points E to A and 85 feet or thereabouts between the points A to B and 42 feet or thereabouts between points C to D, all of which are shown for identification purposes only on the plan annexed to and edged red."
This description makes the precise boundary difficult to determine for reasons given by the judge at paragraph 7 of his decision:
"Despite warnings by the courts going back many years as to the undesirability of using small scale plans, the plan referred to in this case appears to be a photocopy of an Ordnance Survey plan which was surveyed in 1888. The scale was 208.33 feet to one inch. The plot therefore is less than an inch on the plan. It shows a shape which has A to B on the northern or rear boundary, B to C to D along the boundary in dispute which is the eastern boundary of Arnwood, points E to D along its frontage which adjoins the highway and E to A along the western boundary which is the boundary with Pleasant View. There were submissions as to whether the line B to C to D in fact shows a curve or two straight lines. It is not, in my judgment, possible to be very accurate about this because of the scale. It seems to me that the red edging does suggest something of a curve."
"All that piece or plot of land forming part of Hebron Farm, Hebron, in the County of Dyfed is the same as described in the documents set out in the second schedule hereto."
The effect of this was that she was seeking to convey precisely the same land as had been gifted to her.
Mr Atkinson's Report
"The 1989 Deed of Gift quotes dimensions for the Arnwood sides. Their accuracy is impossible to assess without knowing how they were measured. Uncertainty over the datum points means that in practice they do not define the boundaries with any great accuracy."
He then summarised how he had approached his task and concluded that there were three possible boundary lines, whilst accepting that in fact these were not exhaustive of all possibilities. He said this at paragraph 7.3:
"The plan at Appendix II shows these three alternative positions in blue, but others are possible. However, the clear conclusion that arises from my plan is that all the alternatives give the boundary B-C-D generally at the bottom of the bank on the Arnwood side. This is in accordance with Mr Young's conclusion in his report. However, in my opinion none of the lines defined by the dimensions are entirely satisfactory since they appear to enclose a bank forming part of the Arnwood Garden and in two cases the lines run through the entrance gate which would mean that one of the gateposts is encroaching."
The Principles of Construction
"The first resort in the event of a boundary dispute is to look at the deeds. Under the old system of unregistered CONVEYANCING, this means the chain of conveyances and other instruments, going back beyond the period of limitation, which demonstrates that the owner's title is in practical terms secure against adverse claims. These conveyances will each identify the subject matter in a clause known as the parcels which contains the description of the land. Sometimes it is no more than a reference to the land conveyed by an earlier conveyance, which will then have to be consulted. Older conveyances of farm property often describe the property as being the house and land in the occupation of the vendor or his tenant. The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed.
The same is true in the case of registered conveyancing..."
This is a case where the route of title lies in the terms of the gift from Mr Birch to his mother, rather than the conveyance from Mrs Birch to the Norman family.
"(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." (paragraph 9)
The relevant evidence does not, however, include the subjective beliefs about where the boundaries lie, as Mummery LJ made clear in paragraph 13 of his decision. The way in which he suggested the question of construction could be approached was set out in paragraph 12 in the following way:
"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. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121; [2004] 1 P. & C.R. 176 at 187;..."
The Judge's Conclusions
"I accept Mr Spackman's submission that the court should be slow to come to any other conclusion than that suggested by the measurements specifically referred to in the deed. On the other hand, as has been indicated, that deed refers to a plan which is very small scale, it is not certain where the datum points are and there is of course an important measurement missing from B to C. Whilst accepting I should be slow, therefore, to come to any other conclusion that that shown by the blue lines in Mr Atkinson's report, I am satisfied on all of the evidence and having regard to the background matters as they existed at the time of the conveyance, that what was intended to be conveyed was the plot -- and of course I must take the intention as that of Mrs Birch senior not of her son but what was intended to be conveyed was the side of the bank up to its top. The bank is a very steep one which is clear from the photographs. In my judgment, it is unlikely that the parties would intend that both sides of that bank should belong to Hebron Farm Cottage. It is more likely, in my judgment, that the bank facing the plot, the side of the bank facing the plot should belong to it and accordingly, in my judgment, the correct boundary is that shown as the red line on Mr Atkinson's plan."
The Grounds of Appeal
Subsequent Conduct of Probative Evidence
"...in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none." (page 915)
This was followed in Clarke v O'Keefe [1997] 18 P&CR 126. In that case the parties to a conveyance had together [to] state the boundary of which precise position was unclear. Peter Gibson LJ said this (p.133):
"I have to say that it would seem to me to be somewhat absurd, in a case where there is no verbal description of the land such as would serve to identify its boundary accurately and where the plan is imprecise in showing the boundary as following a vegetation line in 1977, and where both vendor and purchasers agree its exact position, if the court were then to shut its eyes to evidence of what they agreed was the true boundary."
"36. The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided. In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.
37. The qualification is crucial. When one speaks of "probative value" it is important to be clear what needs to be proved. In this case the issue concerns the line of a boundary which was fixed not later than 1947. Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related, to physical features which were in existence in 1947. Similarly, evidence of Mr Attridge Senior's understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value, even if admissible. Such evidence begs the questions whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, particularly having regard to the disused state of the disputed land during that period.
38. I would add that in principle reference to the intentions of the parties means the parties to the original conveyance. Thus in Watcham the user relied on by the Privy Council was that of the Watcham family, who were the beneficiaries of the original certificate. In none of the cases reviewed above was account taken of the conduct of subsequent owners. Megarry J might possibly have been willing to go further. ..."
Discussion