David James Brown and Another (Claimants/ Respondents) v Daniel Rene Pretot and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,LADY JUSTICE RAFFERTY,THE CHANCELLOR OF THE HIGH COURT |
| Judgment Date | 30 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1421 |
| Docket Number | Case No: B2/2011/0169 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 2011 |
[2011] EWCA Civ 1421
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
HHJ BRAY
8KG00838
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor of the High Court
Lord Justice Hooper
and
Lady Justice Rafferty
Case No: B2/2011/0169
MR. D. HOLLAND QC (instructed by Messrs.Lamb & Holmes) for the Appellants.
MR. A. WILSON (instructed by Turner Coulston Solicitors) for the Respondents.
Hearing date: 26 th October 2011
Approved Judgment
On 13 August 1999 Mr and Mrs Pretot, the appellants, completed on their purchase of 33 Moorhouse Way, Kettering, from Connolly Homes PLC ("Connolly"). Connolly had acquired development land for the purposes of building houses on it and selling those houses. Number 33 had previously been described as Plot 55. Number 33 consisted of a house, separate garage and garden, the house and garage being at the southern end of the property. The garage had only been built after Mr and Mrs Pretot had agreed to buy the property on 23 July 1999. Connolly had also built in the period between the contract and the transfer a 1.8 metre paling fence ("the fence") apparently to mark the western boundary of Number 33. It is the appellants' claim that the fence does in fact mark the western boundary of their property.
Annexed to the transfer to the appellants was a plan ("the plan"), which was described therein as being "for the purposes of identification only". The plan showed an outline of the house and a separate garage. The plan also showed plot 56 which adjoined the western edge of the appellants' property.
Plot 56, which became Number 31 Moorhouse Way, was, in October 19999, transferred by Connolly to Mr and Mrs Brown, the respondents to this appeal and the claimants in the court below. Annexed to the transfer to the Browns was the same plan as attached to the transfer to the appellants but with a line drawn around plot 56.
I attach as Annex A to this judgment a sitemap with additional alignments which was annexed to the judgment HHJ Bray in the court below and to which I have added N and S to show north and south. I shall call this sitemap "Annex A".
A dispute arose as to the location of the appellants' western boundary. The respondents claimed in 2006 that the true boundary was not where the fence was located but along a line to the east of that fence. The land claimed by the respondents is triangular in shape and is some 12 feet wide at the north end (i.e. at the bottom of the gardens) reducing to a point where the fence meets the garage. On Annex A points C, D and G mark the triangle. Point C marks the north end of the fence. Point D marks the north end of the boundary for which the respondents contend. Point G marks a point on the north-west of the garage.
It was not in dispute that if the plan (that is the plan attached to the transfer to the appellants) accurately reflected the western boundary, then a small and triangular portion of the western part of the appellants' garage formed part of the respondents' property. However the respondents did not claim that they owned any part of the garage.
It is accepted by the appellants that the plan, albeit with no measurements, was sufficiently precise to show the western boundary running from the south end of the property, point H on Annex A, to point D on Annex A.
The plan also showed the garage but not in the position in which it was in fact constructed.
The appellants agreed in the transfer: "to maintain the fences on the boundaries marked with a "T" on the Plan". The plan showed that the maintenance of the fence on the eastern and northern boundaries was the responsibility of the appellants and the maintenance of the fence on the western boundary was the responsibility of the owner of plot 56.
The garage was built (in the period after the contract and before the transfer to the appellants) not in accordance with the plan but, in the words of the judge, "skewed slightly anti-clockwise from the orientation on the plan". The garage was then used to locate the fence which was built as an extension of the flank wall. Thus the fence as constructed ran north from the western edge of the garage to the end of the garden, from point G to point C on Annex A. In the words of the judge, the fact that the garage was "skewed" also "meant that the boundary fence running from the western wall of the garage was also misaligned." To put it another way, the garage was built so that its western edge ran approximately south to north whereas, if it had been built in accordance with the plan, the western edge would have run south to a little east of north. The constructed fence also ran approximately south to north (i.e. from point G to point C on Annex A) rather than south to a little east of north (i.e. from point G to point D on Annex A).
The judge held that the western boundary of the appellants' property was as shown on the ground by the position of the garage and but not as shown on the ground by the position of the fence.
The judge made an order granting a declaration, drafted by counsel, that the boundary "runs between points G and D on the plan at page 182 of the trial bundle", now Annex A, which "line is derived from the plan annexed to the transfer of No. 33" Moorhouse Way. This is not strictly accurate. If the line had been derived from the plan annexed to the transfer of No. 33, then part of the garage would have been in the neighbouring plot. Probably because the respondents were not claiming that they owned part of the garage, the judge did not really grapple with the fact that, if the true boundary line were to be the line marked on the plan, then part of the garage would have been built outside the western boundary, would have been retained by Connolly and would have been transferred to the respondents when they bought the adjoining property in October.
The Contract dated July 23 1999 between the appellants and Connolly
We were referred to the following clauses:
1.2 The Plot is more particularly described in the form of the draft transfer annexed hereto.
…..
3. The Developer shall have the right if reasonably necessary or expedient:
…..
3.2 To vary the construction of the House or the exact siting thereof the line of the boundaries or the route of the service media serving the Plot so far as may be necessary as a result of the use of any substituted materials or so far as is found to be necessary or expedient in the course of carrying out the construction of the Estate.
….
8. The Transfer of the Plot to the Purchaser shall be in the form of the Transfer annexed hereto to which no alterations or additions will be permitted.
The transfer dated 13 August 1999 between the appellants and Connolly
We were referred to the following clauses:
1.1.4 "The Plan" means the plan which is for the purposes of identification only annexed hereto.
1.1.7 "The Plot" means ALL THAT piece or parcel of land comprised in the title above mentioned and shown on the Plan annexed hereto and thereon edged red being Plot 55 of the Estate together with premises erected thereon on some part thereof and known or intended to be known as 33 Moorhouse Way, Kettering.
1.1.8 "The House" means the residential dwelling house erected on part of the Plot.
1.1.9 "The Garage" means the garage … built within the Plot.
1.1.10 "The Garden" means the garden land forming part of the Plot.
3. Transferees Restrictive Covenant
….the Transferee hereby covenants with the Transferor to observe and perform the restrictions and stipulations contained in the Third Schedule hereto.
THE THIRD SCHEDULE
Restrictions and Stipulations
1. Not within three years of the date of this Deed to alter the external plan or elevation of the House or Garage as now erected upon the Plot not to erect any other building upon the Plot without first submitting to the Transferor plans….
15. To maintain the fences on the boundaries marked with a "T" on the Plan.
The judge's decision
HHJ Bray set out the facts as agreed or found by him. He quoted Lord Hoffmann in ICS Ltd v West Bromwich [1998] 1 WLR 896, at 912:
"Interpretation is the ascertainment of the meaning which the document would convey to the reasonable person having all the background knowledge which would have been reasonably available to the parties in the situation in which they were at the time of the contracts."
The judge accepted that the court is entitled to have regard to extrinsic evidence where the parcels clause is not sufficiently clear and that extrinsic evidence can include a plan described as for identification purposes only and the features on the ground at the time of the conveyance.
Having looked at the contract, the transfer, the plan and the positioning of the garage and fence at the time of the transfer, he came to the conclusion that Spall v Owen (1982) 44 P&CR 37 (Peter Gibson J) was on all fours with the facts of this case. He said that the logic of the judgment in that case "must apply equally to the construction of the fence and to the garage." Notwithstanding the reference in this passage to the garage, he did not include any part of the garage as being within the respondents' property.
The judge concluded that the plan "does sufficiently delineate the boundaries of the property". He noted that the fence as constructed by the builders was some 2.4 metres away from the original boundary line (at its widest point) and that there is a material difference between the plan and what was constructed on the ground. Although he concluded that the plan sufficiently delineated the boundaries of the property, the plan which he annexed to the judgment showed (as I have said) the whole of...
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