Gillon v Baxter & Anor [2003] EWCA Civ 1591

Case No B2/02/2700/(A)[2003] EWCA Civ 1591
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(HIS HONOUR JUDGE JOHN NELIGAN)
Venue Royal Courts of JusticeDate Friday, 10 October 2002
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE SCOTT BAKER
SIR MARTIN NOURSE
Between
ROBIN WALTER BROWNING GILLONAppellant-v-
Between
JOHN DAVID BAXTERRespondentLUCILLE BAXTERRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR HUGH SIMS (instructed by Messrs Rundle Walker, Exeter, EX2 4AN) appeared for AppellantMR MARK WONNACOTT (instructed by Messrs Bevan Ashford, Exeter, EX1 1AB) appeared for Respondents
J U D G M E N T

LORD JUSTICE WARD:

[1]I will ask Sir Martin Nourse to give the first judgment.

SIR MARTIN NOURSE

[2]: This is a boundary dispute between parties who, at the date of the trial, were the owners of two properties in the Roncombe Valley at Sidbury near Sidmouth in Devon. Since the trial the defendants, John David Baxter and his wife Lucille Baxter, victors in the court below, have sold their property to a third party who has come to an arrangement with the claimant, Robin Walter Browning Gillon, which has rendered the dispute academic in relation to all questions except costs. That, however, is no small matter. We have been told by counsel that the defendants' costs below, though not yet assessed, are put at about £71,000 including VAT; the claimant's own costs at about £35,000. Counsel are agreed that, in order to determine the liability for costs, the appeal must be fully considered on its merits.[3]Immediately prior to 30 September 1985, Roy William Hills and his wife Wendy Hills were the registered proprietors with title absolute of some agricultural land and buildings at Sidbury. By a transfer of that date ("the 1985 transfer") they sold off part of the land and the buildings to Rodney DavidDavis Harris and his wife Joyce Harris, the parcels being expressed as follows:
"The land shown and edged with red on the plan bound up within and known as Lower Knapp Farm Sidbury Devon being part of the land comprised in the Title above mentioned."
The plan was signed by both Mr Hills and Mr Harris. The 1985 transfer also expressly transferred rights to the running and passage of water, electricity and telephone service through the pipes in or under the land retained by Mr and Mrs Hill, and to enter upon the retained land for the purpose of repairing and renewing the pipes and cables. Further, it contained exceptions and reservations for the benefit of the retained land, including a full vehicular right of way over the lane giving access to the property transferred and the retained land and shown coloured green and brown on the plan. Finally, there was an agreement and declaration between the parties in the following terms:
"All boundaries dividing the property hereby transferred from the retained land shall be the property of the transferors and their successors in title and shall be repaired and maintained accordingly."
[4]By a transfer dated 21 April 1993, Mr and Mrs Harris sold and transferred the property comprised in the 1985 transfer, Lower Knapp Farm, to the defendants. In or about January 1994, Mr and Mrs Hills sold and transferred their retained land, known as Sidbrook Farm, to a Mr Daymond and a Mrs Nicholson, who, by a transfer dated 31 July 2000, sold and transferred it to the claimant. The scene was now set for the dispute between the parties with which this action is concerned.[5]The dispute would never have arisen if the 1985 transfer had contained an accurate description of the land intended to be transferred. Had it been drawn in accordance with good conveyancing practice, it would have described the land by reference to a total acreage "or thereabouts" made up of the individual acreages of ordnance survey enclosures or parts of them, specified in a schedule, if necessary with a residue which could not be assigned to any particular enclosure, and with reference to a plan "for the purposes of identification only". Had that made it necessary for part of the land to be surveyed and measured on the ground, so be it. Lower Knapp Farm was a valuable property. The purchase price paid by Mr and Mrs Harris was £158,000 (in 1985) and it was of prime importance that the boundary with Sidbrook Farm should be accurately established.[6]What happened was that the parcels merely referred to "the land shown and edged with red on the plan". I interpose to say that they also described the land as "being known as Lower Knapp Farm". It is possible to conceive of circumstances in which those words would have had some bearing on the question, but neither side has relied on them in either court. Thus, all we are left with, so far as the 1985 transfer is concerned, is the plan.[7]The plan was taken from the Land Registry plan for Mr and Mrs Hills' title of the standard agricultural scale of 1:2,500, but it was scaled down in photocopying to 1:3,650, a reduction of nearly 50 per cent. It was a very small scale plan and the red edging, so far as can be gathered from the copies we have seen, was applied with a thick pen. From the plan we can see that the formation of the land is not unlike that of the head and upper part of the body of a sitting terrier, the head and body stretching from north to south. To the east, in the approximate position where a collar would have been, are the buildings of Lower Knapp Farm. To their west, in a line going roughly from north to south, as it were under the chin of the terrier, is the disputed boundary with Sidbrook Farm. The upper part of the body consists of OS 6671 of an area of 7.56 acres, or a part of it; the buildings and their curtilage OS 6482 of an area of 1.131 acres; and the head, known as the Barn Field, OS 5888 of an area of 5.46 acres. It is also possible that the land between the buildings and the disputed boundary, wherever it may be, includes a part or parts of one or two other ordnance survey enclosures to the west.[8]In evidence at the trial was a very helpful report from the defendants' surveyor, Mr David J Powell FRICS, of Ringwood in Hampshire, to which five plans were attached. The fifth of these, which Mr Powell called the final analysis plan ("FAP") is a large scale plan (1:200) of the land to the west of the farm buildings showing all the features on the ground material to the dispute and the boundary lines which would be produced by the various contentions of the parties.[9]Running along the centre of the FAP from west to east is a stream coloured blue. Crossing it diagonally, at what is shown as a ford, is a grass track coloured green which leads from the farm buildings to a timber gate, marked 'B', giving access, and the only access, to the Barn Field. To the west of the timber gate, at about 8 metres distant, is the northern point of a fence which runs south across the stream to a point well beyond it on the southern side. For a short section at the northern end the fence consists of an old estate iron fence, or park railings, rusted through in two places. It appears that there may then be a gap down to the stream; certainly no posts are shown on the FAP, which indicates this section of the fence with a broken line. The major part of the fence from the stream southwards consists of canellised posts with wire along the top. The line of the fence from south to north is marked E to F on the FAP and coloured red. It is not, now at any rate, in dispute that the timber gate and the fence E to F were there at the date of the 1985 transfer.[10]The FAP also shows two lines running south to north, marked J1 to J2 and K1 to K2, being the two alternative extreme boundaries produced by scaling up the 1985 transfer plan and applying it to the FAP. The area in between, which is coloured yellow, was said by Mr Powell to be the width of a two-lane road, or 3 metres plus. The disparity is caused by the thick red edging as applied to the very small scale 1985 transfer plan. Mr Powell said that if that plan were to be deemed to be final, then the boundary must lie somewhere in the yellow area. The claimant would now be prepared to accept the more westerly of these two lines (J1 to J2) as the boundary. The defendants, on the other hand, contend for the line of the fence E to F, a line (and herein lies the rub) about 30 metres to the west of the yellow area and producing a disputed area of about 30 metres by 30 metres, or about 1/5th of an acre. It is that feature of the case which has removed it altogether from the sphere of the normal boundary dispute. It can readily be understood that each side considers the dispute to be one of more than normal importance.[11]Two further features of the land must be described. First, the ford across the stream is shown on the FAP to lie mainly within the yellow area. Second, and more important, the green track, in leading to the timber gate, runs well to the west and outside of the yellow area, the eastern boundary of the timber gate being, it seems, about 6 metres to the west of point J2.[12]The trial took place in the Exeter County Court before His Honour Judge John Neligan. He had before him witness statements from each side, including statements by Mr Hills and Mr Daymond for the claimant and by Mr and Mrs Harris, admitted under the Civil Evidence Act, for the defendants. On 17 and 18 June 2002 the judge heard oral evidence, including evidence from Mr Hills, Mr Daymond, Mr Powell and Mr Dennis Gedge, a civil engineering surveyor instructed by the claimant. On 17 June he visited the site. Counsel's closing submissions were heard on 12 August, when the judge reserved judgment, which he delivered on 3 October 2002.[13]By his order made that day the judge granted the defendants a declaration that the boundary between Sidbrook Farm and Lower Knapp Farm was shown by the line marked E to F on the FAP, a copy of which is attached to the order. He made an order for costs in favour of the defendants. At a later date he gave the claimant permission to appeal in part. We have before us the appeal for which permission was granted, together with an application for permission to appeal in respect of other matters decided by the judge. Since Mr Wonnacott, for the defendants, does not oppose the grant of that permission, I propose that we should grant it accordingly. That makes it unnecessary to go into further detail.[14]The appeal is limited to the first question decided by the judge, namely, where, according to the paper title, the boundary lies dividing Sidbrook Farm and Lower Knapp Farm. In deciding that issue, the judge said that he did not find the plan attached to the 1985 transfer definitive of where the boundary lay. He said he had reached that conclusion from the evidence about the reliability of the plan, in reference to which he made four points. I will read part of what he said about the first point and all his comments as to the second:
"First, the original transfer has not been found and the experts used a photocopy of the plan. It is accepted that photocopies do not reduce plans accurately because photocopiers tend to distort. Mr Powell said that a scale plan that has been reduced on a photocopier is not accurate enough from which to scale. Mr Powell is a chartered land surveyor. He said that the scale on the photocopy plan attached to the September 1985 transfer was 1:3650. This means that a millimetre on the plan is a line 3.65 metres wide on the ground. According to Mr Powell's evidence, the width of the line of ink on the plan is equivalent to the width of a two lane road on the ground. So, if the intention was that the line should show precise boundaries, the boundary is a very wide one. A scale of 1:3650 is not a usual scale..... Secondly, the evidence from the site visit from which it was clear to me that the only way in which farm vehicles could have gained and now can gain access to field no 5888 (Barn Field) is by the gate at point B on the final analysis plan. There is no other or possible way of getting into and out of that field. At paragraph 29 of his written submissions Mr Wonnacott has asked rhetorically: 'what would have been the point in conveying the top field [5888] and spit of land leading up to the wooden gate, but not the actual gateway itself?' It was clear from the site view that the only obvious boundary feature of any age was the fence running along E-F on the final analysis plan. This consisted of canellised poles with wire along the top, which Mr Gedge said could have been up to 60 years old. Mr Powell did not want to speculate how old it was. Beside the gateway the fence consisted of an old estate iron fence, which was rusted through in two places, which is obviously older than the poles and wire."
[15]The third and fourth points made by the judge related to evidence given in the witness statements of Mr Hills and Mr Harris respectively, each of which appears to have been inadmissible. I suspect that they were allowed in at the trial on a sauce for the goose and sauce for the gander basis. I propose to disregard that evidence. We have not seen any transcripts of the oral evidence, no doubt because the costs of obtaining them would add far more than they would be worth to the costs already incurred. It does, however, mean that we cannot accept the evidence of Mr Hills, Mr Daymond and Mr Harris given in their statements, even where admissible, on any controversial matter.[16]Having referred to the submissions of counsel, the judge stated his findings and conclusions on the first issue under five heads. The first was as follows:
"The plan bound into the September 1985 transfer is on too small a scale to show anything more than the general area of the boundary dividing the retained land from that transferred and certainly not to delineate the boundary."
The second and third, being again based on the inadmissible evidence of Mr Hills and Mr Harris, I disregard. The fourth was based on the declaration and agreement as to boundaries contained in the 1985 transfer. The judge thought that this showed that the parties intended that each and every boundary of the land transferred would be marked by some identifiable physical feature. For myself, I cannot attach that significance to a provision worded in such general terms.[17]I read the fifth of the judge's findings and conclusions and his ultimate conclusion in full:
"The Hills were selling field 5888 (Barn Field) to the Harris'. They would have had no reason to retain a small piece of the track which leads only to the gate into that field. It has not been suggested that the Hills wanted to keep 'a ransom strip'. Conversely I find that there was an obvious physical feature on the land, namely the old estate fence shown between the points 'E' and 'F' on the final analysis plan which marked the physical boundary between the land transferred to Mr & Mrs Harris (Lower Knapp Farm) and that retained by the Hills (Sidbrook Farm). The conclusion which I draw from these 5 findings is that at the time of construction of the September 1985 transfer (the paper title) the boundary line dividing the claimant's property at Sidbrook Farm from that of the defendants at Lower Knapp Farm runs along the line 'E' to 'F' on the final analysis plan."
[18]The leading modern authority on the construction of parcels in instruments of title to land is the decision of this court (Russell and Orr LJJ and Sir John Pennycuick) in St Edmundsbury and Ipswich Diocesan Board of Finance and Anor v Clark (No 2) [1975] 1 WLR 468. In that case a former rectory adjoining the church and churchyard had been conveyed to the defendant:
"Subject.. to a right of way over the land coloured red on the said plan to and from" the church. The land coloured red was a strip of land whose condition in 1945 was poor and over which vehicles could only be used with difficulty. The plaintiffs' nevertheless claimed that the parties to the 1945 conveyance intended that the right should extend to vehicles, whereas the defendant contended that it was a right to pass on foot only. Both Mr Justice Megarry and this court rejected the plaintiffs' claim. In delivering the judgment of the court, Sir John Pennycuick referred to the argument of counsel for the plaintiffs at page 477: "
Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction. Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction. That is emphatically not the position here, where the reservation is in the loosest terms, ie simply 'right of way'. Indeed, those words call aloud for an examination of the surrounding circumstances and, with all respect, Mr Vinelott's contention, even if well founded, seems to us to lead nowhere in the present case."[19]Although made in a case concerned with the reservation of a right of way, that is, an entirely general statement of the law applicable to the construction of instruments of title to land. Thus, if, as here, there is a conveyance or transfer which describes the land conveyed or transferred by reference to a plan of very small scale, the effect of the plan must be judged in the light of the surrounding circumstances or, as Mr Justice Megarry called them, "the physical circumstances of the land". In this connection it is instructive to consider his findings as to the state of the land in 1945 as recorded by this court at page 480.[20]The correctness of this principle was taken for granted, without citation of authority, by Lord Hoffmann in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894. At page 896 he said:
"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." (Emphasis added)
[21]It would be difficult to think of any statement of principle which could more completely cover the facts of this case. Although neither St Edmundsbury v Clark nor Alan Wibberley Building Ltd v Insley were cited to the judge, he did exactly what those authorities required him to do. He made a visit to the site and observed the topographical features which existed there both in 2002 and in 1985. Being of the opinion that the 1985 transfer plan was on too small a scale to delineate the boundary, he attached decisive importance to the timber gate and the inability of the owners of Lower Knapp Farm to get to it without passing along a section, which, although short, is in the context substantial, of the green track which would not have passed to Mr and Mrs Harris if the plan were simply scaled up and then applied to the land.[22]In my judgment it would have been entirely unrealistic for the judge to draw the boundary at any point to the east of the western end of the timber gate. The parties to the 1985 transfer must have intended that that gate and the material part of the green track should pass to Mr and Mrs Harris. That point having been arrived at, it may be more arguable whether the boundary should have been drawn as far west as the fence E to F. But that was a decision for the judge on the evidence as a whole, including the topographical features observed by him on the site visit. It is impossible for this court to interfere with his findings. I should add that it is in my view clear that the judge could and would have arrived at the same conclusion even if he had not relied partly on inadmissible evidence and the declaration and agreement as to boundaries.[23]Before the judge, Mr Wonnacott relied on another decision of this court, Scarfe v Adams [1981] 1 All ER 8043. In this court his enthusiasm for it has been some what muted. I will therefore content myself by saying that it appears to me that the observations of all three members of the court, though they seem primarily to have been concerned with extrinsic evidence of matters other than the physical state of the premises, support the defendants' case rather than the claimant's: see in particular the observations of Cumming-Bruce LJ at page 849C-H.[24]While the deplorable consequences of what I described in argument as the sloppy conveyancing that took place in September 1985 are greatly to be regretted, I am in no doubt that the judge's decision must be affirmed and the appeal dismissed accordingly.

LORD JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE WARD: I also agree.

Order

Permission to appeal granted. Appeal dismissed with costs to be subject to detailed assessment. £10,000 plus interest paid into court to be released to the defendants.