John Arthur Norman and Another v Roger Arnold Sparling
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Pitchford,Lord Justice Maurice Kay |
| Judgment Date | 25 June 2014 |
| Neutral Citation | [2014] EWCA Civ 1152 |
| Docket Number | Case No: B2/2013/1090/CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 2014 |
[2014] EWCA Civ 1152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
CHANCERY BUSINESS
(HHJ MILWYN JARMAN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Elias
Lord Justice Pitchford
Case No: B2/2013/1090/CCRTF
Michael Collard (instructed by Mary Evans & Co Carmarthen SA31 3AL) appeared on behalf of the Appellants
Philip Morris (instructed by JCP Solicitors, Swansea SA6 8QP) appeared on behalf of the Respondent
The appellant and his wife own and occupy Hebron Farm Cottage in Carmarthenshire. The respondents, Mr and Mrs Norman, are the owners of an adjoining property to the west of Hebron Farm known as Arnwood. Sadly there has been friction between the parties leading to expensive litigation out of all proportion to the interests at stake. We are concerned with a dispute about precisely where the boundary runs between the two properties. There is a hedge bank between the properties and the respondents say that the top of the bank delineates the boundaries. The appellants submit that the boundary runs along a line towards the bottom of the bank on the Arnwood side.
HHJ Milwyn Jarman QC, sitting at the Cardiff County Court, found in favour of the respondents and declared the boundary to be at the top of the bank. Mr Sparling, who appeals by leave of Patten LJ, submits that the learned judge erred in reaching that conclusion.
The History
The background to the dispute is as follows. The two properties, Hebron Farm and Arnwood, were at one time in the common ownership of David and Jean Birch, who farmed Hebron Farm. By a deed of gift, dated 18 July 1988, Mr and Mrs Birch gave a plot of land to Mr Birch's mother. That is the land upon which the property at Arnwood was subsequently built. The parcels' clause was set out in the first schedule as follows:
"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."
Some months after the transfer of the property to Mrs Birch, on 19 December 1989, she conveyed what subsequently became known as Arnwood to Mrs Norman and her daughter. The parcels clause in that conveyance reads as follows:
"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.
There were subsequent changes in ownership. We are told that some three or four years ago Mr Norman became a joint owner with Mrs Norman and her daughter ceased to have any interest in Arnwood.
In 2000 Mr Sparling purchased Hebron Farm from Mr Birch. Relationships between the Normans and Mr Birch had been cordial. Mr Norman gave evidence that at the time he purchased Arnwood Mr Birch had inserted poles at the top of the bank demonstrating where the boundary was to run. Mr Birch himself gave written evidence, which was before the court in the form of a letter, in which he confirmed that he had constructed the bank with the intention that it should mark the boundary, this being the top of the bank. Mr Norman thereafter planted bushes and other plants on his side of the bank without any objection from Mr Birch.
The judge made certain highly material findings of fact. First he found that there was no bank in existence prior to the deed of gift; and second, that it was, however, constructed very shortly thereafter and before Mrs Birch had conveyed the property to Mrs Norman and her daughter. The evidence was that the plot which had been gifted to his mother had been a dung heap and contained much rubbish. A contractor had been engaged to push the materials together to form the bank.
Mr Atkinson's Report
A report was prepared by an experienced chartered land surveyor, Mr Nigel Atkinson. He noted that the coloured markings by the Land Registry only indicated the boundary in a very general way. They did not provide any precision as to the exact line separating the two boundaries. Mr Atkinson sought to identify the boundary as best he could, but at paragraph 6.5 of the report he noted the difficulty of his task:
"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."
Mr Sparling has accepted that of the three possible boundary lines identified by Mr Atkinson he is prepared to accept the most favourable line to the Normans, that is the most eastern boundary line. He would recognise that as being the appropriate boundary. It still encompasses some of the bank on the Arnwood side.
The Principles of Construction
The principles are not in dispute and were identified by the judge. The basic principle was enunciated by Lord Hoffmann in the case of Alan Wibberley Building Ltd v. Insley [1999] 1 WLR 894 at 895H to 896B:
"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.
In Pennock v Hodgson [2010] EWCA (Civ) 873 Mummery LJ identified the following principles which he said could be discerned from the Wibberley decision:
"(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....
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