Gareth Frederick Beale and Elizabeth Beale v Vivien Lee Harvey

At Rolle Barton, Otterton, Devon there were in 1998 some disused farm buildings adjoining which was some agricultural land bounded by a mill stream. Those buildings are in two sections joined together though they do not run in a straight line. The smaller section, now called Phoenix Barn, runs north-south. It is quadrilateral in shape, one of its sides being longer than the other. It joins the larger section of the buildings at an angle. Its roof is at the same height as that of the larger section though Phoenix Barn is a slightly broader building and its walls, both front and back, extend beyond the walls of the larger building. Its roof also protruded both east and west beyond the end of the roof of the larger section. There is a parapet between the two roofs. The larger section runs north-north- east to south-south-west. If the line of the junction between the two buildings as shown by the line of the parapet is extended westward it runs at right angles to the western side of the larger section; similarly if extended eastward. The buildings have windows or doors on three floors.

In 1998 to 1999 a property developer, Countrywide Properties Ltd ("Countrywide"), converted those buildings into three residential units. They were called Plots 1 to 3. This was part of a larger development of a small estate. Plot 1 consisted of Phoenix Barn, with a comparatively small area to the front between the building and the estate road and a substantial area to the west intended to be the garden, extending beyond the north-western end of Phoenix Barn and going down to the mill stream. The area of the garden is 1,114.56 sq metres.

The larger section of the buildings was divided into two: Plot 2, now called The Shippen adjoining Phoenix Barn, and Plot 3, now called Bicton View adjoining The Shippen to the south. Plot 2 comprised the northern half of the larger section and a small area of land between the building and the estate road to the east and a larger area between the building and the mill stream to the west that was intended to be the garden for The Shippen; the garden area was intended to be 410.78 sq metres. Similarly Plot 3 had a small area at the front to the east and a larger area to the west as the garden for Bicton View. Architects in 1998 prepared a site plan for the whole development, showing how the site would look when the development was completed. The plan included in the usual way detailed directions as to what was to be done at various places on the site. Thus it showed where new buildings, fences and walls were to be placed. When the plots were marketed a draft transfer was available. It was intended that each plot to be transferred would be identified on a plan annexed to the transfer, and that plan was a reduced copy of the site plan with coloured lines to identify the boundaries of that plot. The site plan, and consequently the draft transfer plan for each plot, showed the boundary between Plots 1 and 2 as following the line of the junction between Phoenix Barn and The Shippen, that is to say at right angles to the eastern and western sides of The Shippen and so extending to the estate road at the front and down to the mill stream at the back. It also showed that the boundary between Plots 2 and 3 also ran at right angles to the side of the building and so was to be parallel to the boundary between Plots 1 and 2.

The land to the west of the buildings sloped from north to south. It was intended that a paved patio area or terrace would be built at the rear of each of the three plots. To support those features Countrywide intended to build a short stretch of retaining wall between Plots 1 and 2 and another between Plots 2 and 3. Accordingly on the site plan was written, in the area for each intended garden, "terrace with paved patio". In the area for the intended garden for Plot 2 was written "retaining walls rendered" with an arrow pointing to that part of the boundary line between Plots 1 and 2 which lay close to The Shippen building and another arrow pointing to the boundary line between Plots 2 and 3 just west of the building. It was also intended that a fence would separate Plots 1 and 2 and accordingly the site plan contained a notation, "post and rail fencing to match existing", written on the plan with an arrow pointing to the boundary line. What "existing" referred to is not explained.

The Claimant, Mrs Vivien Harvey, was the first to purchase any of Plots 1, 2 and 3. She visited the site on 10 November 1998 when the area of land to the west of the buildings had the appearance of a large undivided ploughed field. However she saw at the southern end of Phoenix Barn a low retaining wall which ran westward and which appeared to her to be of recent construction. She expressed interest in purchasing Plot 1, and by 19 November 1998 her solicitor was sent documentation relating to it. She saw the plan attached to the draft transfer, and that had all the features to which I have referred when describing the site plan.

Mrs Harvey exchanged contracts for the purchase of Plot 1 on 11 December 1998. The contract described the property which she was agreeing to buy as "Plot 1 on [Countrywide's] Estate known as Rolle Barton more particularly described in the Plot Transfer". The Plot Transfer was the form of transfer annexed to the contract.

In late January or early February 1999 Countrywide erected a post and wire fence adjacent to the retaining wall but starting on the south side of that wall. That fence ran westward down to the mill stream. A close boarded fence has since been put up for the first few metres closest to the building to give privacy as between Phoenix Barn and The Shippen. In February Mrs Harvey asked Countrywide's agent, Mr Perkins, if she could start landscaping her garden and making the fence stock-proof even before the purchase was completed. He agreed, and from mid-February for about two months she started laying out the border alongside the fence. Mr Perkins saw and expressed his approval of what she was doing. She planted nearly 50 plants and shrubs in that border.

Completion of the transfer to Mrs Harvey of Plot 1 took place on 1 May 1999. The Transfer was expressed to be of "the Property together with the Dwelling". The term "the Property" was defined as "Plot [then a blank] Otterton Barton shown edged red on the Plan marked 'Plot 1' being part of the Estate". The estate was shown edged green on the site plan. "The Plan" was the plan annexed thereto. It appears that the plan may not have been so annexed on 1 May 1999 as it was not signed by Mrs Harvey until later in May. It was the same as the plan she had already seen save for one alteration not material to this appeal. Her title was later registered at the Land Registry. The registered plan shows the boundary with Plot 2 not on the line where the fence had been placed but as on the site plan.

In May 1999 the Claimants, Mr Gareth Beale and his wife Elizabeth, became interested in purchasing Plot 2. Mr Beale says in his witness statement that when he viewed the property for about 10 minutes or so, the garden was entirely unformed and comprised bare earth. To the west of the property there was the fence which appeared to be the northern boundary of a garden, but they did not check the boundaries because they were identified on the plan shown to them. The Beales exchanged contracts on 17 June 1999. The contract was in similar form to that for Mrs Harvey. The Transfer of Plot 2 was completed on 24 June 1999. The property transferred to the Beales was "Plot 2 Rolle Barton shown edged red on the Plan being part of the Estate". The Plan was again a reduced copy of the site plan and showed the boundary between Plots 1 and 2 in the way I have already described and as parallel to the boundary between Plots 2 and 3.

The Beales became the registered proprietors of The Shippen and the Land Registry plan shows the boundaries between Plots 1 and 2 and 2 and 3 as parallel. Also in July 1999 Plot 3 was sold to Mr and Mrs Darryl Hackney. Mr Beale claims to have noticed that the fence between Plots 1 and 2 was in the wrong place after contracts were exchanged but before the transfer and that he told Countrywide and obtained a promise from it to put the fence in the correct position. At the trial no finding was made about that, but it is clear that by August 1999 Mr Beale had made his complaint known to Countrywide and to his neighbours. Countrywide sent its estate agent, Mr Williams, who had been handling the sales to the site. He made detailed measurements and produced a sketch plan. This showed that the boundaries on the ground between Plots 1 and 2 and Plots 2 and 3 were far from parallel and that the western end of the Beales' garden was 2.2 metres narrower than at the eastern end. Subsequently, for the purpose of the trial, a surveyor, Mr Marshall, has calculated the area in dispute as 49.95 sq metres. That, I should explain, is on the footing that the boundary line is the line marked by the southern edge of Phoenix Barn such as is, for example, visible...