Prashar & Anor v Tunbridge Wells Borough Council [2012] EWHC 1734 (Ch)

Neutral Citation Number:[2012]EWHC 1734 (Ch)Case No CH/2011/0503IN THE HIGH COURT OF JUSTICEHANCERY DIVISIONVenue Royal Courts of Justice, Rolls Building, London.Date 20/07/2012
Before
MR ALAN STEINFELD QC
Between
(1) SANDEEP PRASHARAppellants/Respondents(2) VASANTI RAJENDA PATELAppellantTUNBRIDGE WELLS BOROUGH COUNCILRespondent/Applicant
Mr Anthony Allston (instructed by Denniss Matthews Solicitors) for Appellants/RespondentsMr Wayne Beglan (instructed by Legal Service Tunbridge Wells Borough Council) for Respondent/ApplicantHearing Hearing date: 13 June 2012
JudgmentMr Alan Steinfeld QC :Introduction
[1]These proceedings arise pursuant to an application made to HM Land Registry on 14 January, 2010, for the alteration pursuant to paragraph 5 of Schedule 4 to the Land Registration Act of 2002 of a mistake in the file plan showing the boundary between two parcels of registered land in the centre of Tunbridge Wells. The applicant is Tunbridge Wells Borough Council (“the Applicant”). Its land is registered under Title Number K671430 and lies adjacent to and to the north of Goods Station Road. Since 1988 there has been built on this land a multi-story car park.[2]The respondents to the Application (“the Respondents”) are the registered proprietors under Title Number K732460 of the adjoining land which fronts onto Grosvenor Road. There has since the late 1930’s been built on this land a development consisting of shops and flats above known as Coronation Parade. At the rear of this development and separating it from the Applicant’s land is a service road (“the Service Road”) running roughly from North to South which it is common ground lies wholly within the Respondents’ title but over which the Applicant is entitled to a right of way.[3]Running for most of the length of the east side of the Service Road (i.e the side adjacent to the Applicant’s land) there is a sort of lay- by (“the Lay-by”) upon which vehicles habitually park. The boundary between the two properties shown on the file plan shows the Lay- by and, indeed, some of the pavement beyond it as being entirely within the Respondents’ title. The Applicant contended by its application that this was a mistake and should be corrected as its pre-registration documents of title show that the true boundary between the two properties is a line which results in the Lay- by (and the pavement beyond it) falling entirely within its ownership.[4]The application came to be heard by Mr Owen Rhys (“the Adjudicator”) as a deputy adjudicator to H.M. Land Registry on 6th and 7th July 2011. By his decision dated 10th August 2011 (“the Decision”) he upheld the application and ordered the alteration of the file plan in accordance with a plan with reference no. 232/3F/LR which had been prepared by the Applicant’s expert surveyor, a Mr Bingham. For reasons which will become apparent later in this judgment I shall refer to this plan as “Mr Bingham’s Front Fit Plan”.[5]What comes now before me in these proceedings is an appeal by the Respondents by permission of Mrs Justice Proudman against the Decision. The Respondents accept that the boundary as shown on the file plan is in certain respects wrong and needs to be corrected. However they contend that the true line of the boundary is as shown on a plan with reference no. S1134/2 prepared by their expert surveyor, Mr Jackson. This plan, which I shall refer to as “Mr Jackson’s Plan”, shows a boundary line which results in most, but not all, of the Lay-by falling within the Respondents’ title (and the remainder of the Lay-by and whole of the adjacent pavement as falling with the Applicant’s title). Mr Bingham had in fact prepared an alternative plan under reference no. 232/3R/LR which showed a similar line of the boundary to that shown on Mr Jackson’s Plan. Again for reasons which will become apparent I shall refer to this plan as “Mr Bingham’s Rear Fit Plan”.[6]At this hearing, as at the hearing before the Adjudicator, the Respondents were represented by Mr Allston of Counsel and the Applicant by Mr Beglan of Counsel. The issues raised by the appeal[7]The Respondents on this appeal take essentially two points: i) The Adjudicator was wrong to have held that the true line of the boundary was as shown on Mr Bingham’s Front Fit Plan but should instead have held that it was as shown on Mr Jackson’s Plan (“the boundary line issue”); alternatively ii) Even if the Adjudicator’s determination of the true line of the boundary was correct it was not open to him to alter the file plan to give effect to this determination as this amounted to “rectification” of the register which in the circumstances of this case is not permissible against the Respondents (“the rectification issue”). The rectification issue[8]I shall deal with the rectification issue first as it raises a discrete point. In my judgment, there is nothing in it. The Adjudicator dealt with this issue relatively briefly in paragraph 25 of the Decision. He there pointed out that the consequences of a mistake in the file plan will depend upon whether the alteration of the register is to be regarded as an alteration “tout court” (by which I think he means an alteration simpliciter) or as “rectification” as defined by Schedule 4 paragraph 1. The difference is that under that paragraph to constitute rectification the alteration is not just to correct a mistake but is also one that prejudicially affects the title of the registered proprietor. The Adjudicator went on to hold, following the approach of Christopher Nugee QC sitting as a deputy judge of the High Court, upholding on appeal the approach of the Deputy Adjudicator, in Derbyshire County Council v Fallon [2007] EWHC 1326, that the mere alteration of the register to show more precisely the line of a general boundary is not to be regarded as prejudicially affecting the title of the registered proprietor since the proprietor never in fact owned land beyond the line of the general boundary. Since the Decision this approach has been specifically endorsed by the Court of Appeal in Drake v Fripp [2011] EWCA Civ 1279 - see paragraph 22 of the judgment of Lewison L.J. with which the other two members of the Court agreed. In that case, as here, it was argued that the alteration did not fall within the general boundary rule, and amounted to a rectification, owing to the substantial acreage of the land involved. This argument was specifically rejected by Lewison L.J. in paragraph 20, where he stated that he did :
“...not accept that there is some limit to the quantity of land which might be encompassed in a boundary dispute. It must depend on all the circumstances and in particular the quantity of land abutting the boundary. A dispute over a strip of land a few centimetres wide but running the whole length of, say, a railway or canal would plainly be a boundary dispute even if the area involved was many hectares.”
[9]In my judgment, precisely the same consideration applies here. The area in dispute runs almost the entire length of the Applicant’s and the Respondents’ respective titles and for that reason is a significant area. It is, nevertheless, simply a dispute as to whether the line of the general boundary as shown on the file plan has been drawn in the correct place and, if not, where the line of the general boundary should more accurately be shown. As Lewison L.J. put it at paragraph 21 of his Judgment:
“Alteration of the register to reflect the true boundary more accurately does not ... prejudicially affect [the registered proprietor’s] title.”
[10]Precisely the same applies, in my judgment, in this case. Indeed, it applies a fortiori since the Respondents accept that in certain respects the line of the general boundary shown on the file plan is incorrect and ought therefore to be corrected.[11]The Respondents submit that, even so, there are here “exceptional circumstances” which, pursuant to paragraph 6(3) of Schedule 4, “justify not making the alteration”. The Adjudicator rejected this submission on the ground that none of the factors relied upon by the Respondents constituted “exceptional circumstances” justifying not making the alteration. I see no reason to interfere with that finding. I would add, however, that I am not at all convinced that paragraph 6(3) is engaged at all, for the whole of paragraph 6 is expressed to apply to the exercise of the power to alter the register under paragraph 5 “so far as relating to rectification”. Accordingly, once the Adjudicator had, rightly in my judgment, held that this was not a case of rectification, it is difficult to see why paragraph 6(3) is engaged at all. But nothing, I think, turns on this as that paragraph, it seems to me, does little more than reflect the fact that even in the case of an alteration of the register to correct a mistake which does not constitute rectification there is a discretion under paragraph 5 whether to alter the register and in “exceptional circumstances” it may not be right in the exercise of that discretion for that to be done.[12]The Adjudicator went on to hold that, even if he was wrong about the case not being a case of rectification, he was still entitled and indeed bound to direct alteration of the register because(a) the Respondents were not in his judgment “in possession” of the disputed land and accordingly paragraph 6(2) was not engaged, and(b) even if he was wrong about that and that paragraph was engaged, it would be unjust for the alteration not to be made. In view of my finding that the Adjudicator was correct to hold that this was not a case of rectification, so that paragraph 6 as a whole is not engaged, I see no reason to consider further whether the Adjudicator was correct in these further findings. The boundary line issue[13]I turn then to fundamental issue, namely the boundary line issue.[14]Prior to 1937 the Applicant’s land and the Respondents’ land were in common ownership. The Applicant derives title to its land from two Conveyances made in that year by the then owner of both parcels of land. The first was dated 7th June, 1937, and conveyed to the Applicant’s statutory predecessor the southern (and larger) section of its land. The second was dated 19th June, 1937, and conveyed the northern section of its land to the Postmaster General. This land was conveyed to the Applicant’s statutory predecessor by a Conveyance dated 5th March, 1970. I shall call the first two of these conveyances together “the 1937 Conveyances”. The respective plans attached to the 1937 Conveyances (which I shall call together “the 1937 Conveyance Plans”) are identical.[15]It is common ground that the boundary separating the Applicant’s land from the Respondents’ land is to be derived from the description of the land conveyed in the 1937 Conveyances. The 1937 Conveyance Plans show the line of the boundary as the western wall of a building which then stood on the Applicant’s land and which, as it is shown coloured pink on those plans, I shall call “the Pink Building” . It is also clear and common ground that the boundary separating the two titles is the western flank of that wall. What has given rise, however, to the difficulty is that at some time between 1937 and 1988 the Pink Building was demolished and the present multi-storey car park was erected in its place. In seeking now to determine where the true line of the boundary lies it is, therefore, necessary to determine where would be the western flank of the wall of the Pink Building had it not been demolished.[16]For this purpose the Adjudicator heard in the course of the hearing the evidence under cross examination of Mr Bingham and Mr Jackson. He also heard the evidence of an employee of the Applicant deposing to the placing by the Applicant in the surface of the Service Road following the erection of the multi-storey car park of certain metal studs accompanied by the affixing on the wall of the car park of a number of metal plates each having inscribed on it a warning notice indicating that the land between the metal studs and the wall of the new multi-storey car park belonged to the Applicant. The Adjudicator also had the opportunity of visiting the site of the two properties.[17]The Adjudicator’s conclusions in relation to the evidence which he received are set out in detail in paragraphs 2 to 23 of the Decision. I will not lengthen this Judgment by setting out these conclusions, many of which are not in dispute, in detail.[18]In summary, so far as relevant for present purposes, the following matters emerged from the documents and the evidence and are not, so far as I can see, in dispute:(a) The 1937 Conveyance Plans are drawn in detail with distances and dimensions between different parts of the various features then on the ground spelt out clearly. In particular, they show at the southern entrance to the Service Road a distance of precisely 22 feet from the rear wall of Coronation Parade to the wall of the Pink Building, or a distance of precisely 16 feet if one measures from the kerb of the pavement alongside the rear wall of Coronation Parade.(b) The surveyors were agreed that there is in fact today a width of 22 feet between the rear wall of Coronation Parade and the kerb of the pavement alongside the building now on the Applicant’s land- see paragraph 17 of the Decision.(c) By each of the 1937 Conveyances, the Purchaser was granted a right of way over the Service Road. It appears that the Service Road was not yet constructed because in each Conveyance the Vendor covenanted to make it up. By the first of the 1937 Conveyances, the Vendor covenanted to construct on the land shown green on the attached plan “a service road consisting of a carriageway 16 feet in width with a pavement on the southwest side thereof 6 feet in width ...” These dimensions precisely reflect the dimensions shown on the attached plan and are the dimensions of the southern entrance to the Service Road as it now exists.(d) The fact that the 1937 Conveyances each contained this covenant showing that the Service Road had not apparently yet been made up suggests that at the date of these Conveyances Coronation Parade had not yet been completed. Had it been completed precisely as indicated on the 1937 Conveyance Plans, there would have been no real difficulty or dispute in determining where the Pink Building used to stand. It would be a matter of simply taking measurements from the rear wall of Coronation Parade to match the dimensions shown on the 1937 Conveyance Plans and plotting the wall of the Pink Building from that.(e) However, the difficulty in doing this lies in the fact that Coronation Parade was not developed precisely as indicated on the 1937 Conveyance Plans. In particular, both the surveyors agreed that at the southern end of the development the depth of Coronation Parade is approximately 0.9 metres, equivalent to just under 3 feet, greater than as indicated on these plans.[19]The Adjudicator heard, as I have said, the expert evidence of the surveyors, i.e., Mr Bingham and Mr Jackson, adduced on behalf of the Applicant and Respondents respectively. For the purpose of the exercise, Mr Bingham produced two plans. By the first of his plans, he plotted the present position of Coronation Parade by lining up the development as it has actually been completed against the front of the development on Grosvenor Road as shown on the 1937 Conveyance Plans. That is why I have referred above to this plan as “Mr Bingham’s Front Fit Plan”. As against this, Mr Bingham plots what he believes to have been the position of the Pink Building. It is unclear from his written report how exactly he did this and the Adjudicator in the Decision does not himself state how he claims to have done this, but this is something which might have come out in cross-examination. Nevertheless, on the basis of this plan, the boundary line between the two properties, consisting of the plotted wall of the Pink Building, coincides with the line of the metal studs which had been put into the ground by the Applicant on completion of the multi-storey car park. It also shows the boundary running parallel with the rear wall of Coronation Parade albeit that on the 1937 Conveyance Plans the wall of the Pink Building does not run precisely parallel with the wall of Coronation Parade but rather slants slightly going northwards towards Coronation Parade.[20]Mr Bingham also produced a second plan which plotted the position of Coronation Parade by fitting it to the rear wall of the development as shown on the 1937 Conveyance Plans. It is this plan which I have referred to above as “Mr Bingham’s Rear Fit Plan”. This shows the position of the wall of the Pink Building along a line which results in most, but not the whole, of the Lay-by falling on the Respondents’ side of the boundary.[21]Mr Bingham expressed the view that both his plans were consistent with the 1937 Conveyance Plans. However, he expressed “on balance” a preference for the first of his plans, i.e., his Front Fit Plan, over the second.[22]Mr Jackson produced only a single plan. What he did was to plot the position of the Pink Building from the rear of Coronation Parade on the basis of the dimensions, particularly the 16 feet and 22 feet dimensions, shown on the 1937 Conveyance Plans. The result of this exercise is to show the wall of the Pink Building and hence the boundary line in a position similar to that shown on Mr Bingham’s Rear Fit Plan.[23]The reasons why Mr Bingham preferred his Front Fit Plan to his Rear Fit Plan are summarised in paragraph 19 of the Decision. As the Adjudicator there states, Mr Bingham’s conclusion was particularly influenced by the following factors:
‘First, that in setting out the Coronation Parade building, he thought it far more probable that consideration was given to the Grosvenor Road frontage than to the Service Road. Secondly, this option provides greater consistency with the position of the shop frontages on Grosvenor Road, buildings that existed at the time of the 1937 Conveyances and still exist. This refers to the fact that the Barry Plan This was a plan drawn up by a Mr Barry assisting Mr Bingham showing the physical features as they exist on the ground today — see paragraph 14 of the Decision. included these frontages, mapped at first floor level in order to reduce the possibility that the frontages have been altered over the years. Mr Bingham identified nine separate physical features of the Barry Survey (including these frontages) and assessed both options against these known features. He concluded that, on balance, the front fit option produced a better match. Thirdly, this option means that Grosvenor Road has a consistent width. Finally, this produces a result whereby the western boundary of the Applicant’s Title aligns with “an identifiable physical boundary feature”, namely the metal studs laid in the surface of the Service Road.’
[24]By paragraph 21 of the Decision, the Adjudicator accepted these as reasons for preferring Mr Bingham’s Front Fit Plan to his own Rear Fit Plan and, therefore, to Mr Jackson’s Plan. He was critical of Mr Jackson for not considering the “front fit option” and stated that it was his impression that Mr Jackson had selected “the approach that produces the result that best suits his client, without giving any serious thought to the alternative”.[25]A matter which appears considerably to have influenced the Adjudicator in coming to his decision was the presence of the metal studs with their accompanying notices, which were fixed to the car park wall probably in 1988 and some of which have remained on the wall ever since. The Adjudicator’s finding in this regard is set out in paragraph 22 of the Decision. As he there states, the metal plates, which contained the notices, made it clear in terms that ownership of the area of land between the wall of the multi-storey car park and the western edge of the Lay-by - delineated by metal studs - was claimed by the Applicant. He then went on to hold, on the basis of certain passages in the Judgment of the Court of Appeal in Ali v Lane [2006] EWCA Civ 1532, that the existence of the notices and the metal studs was admissible in evidence to determine the true line of the boundary between the Applicant’s and Respondents’ respective properties’ titles.[26]The question that, accordingly, arises for me to determine on this appeal is whether the Adjudicator was correct to have come to these findings or whether he should have held that the true line of the boundary was as shown on either Mr Jackson’s Plan or, which amounts to much the same thing, Mr Bingham’s Rear Fit Plan.[27]In approaching this task, I am very conscious that it is only rarely and with reluctance that an appellate court, which is what I am on this hearing, ought to interfere with the findings of an expert tribunal, which is what an adjudicator to HM Land Registry is. Lewison L.J. in paragraph 3 of his Judgment in Drake v Fripp cited as the correct approach the following from the judgment of Mummery L.J. in Wilkinson v Farmer [2010] EWCA Civ 1148:
“The Deputy Adjudicator was the fact finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions.”
[28]I accordingly approach this appeal on the basis that I ought to give a “measure of weighed deference” to the findings and conclusions of the Adjudicator in the Decision. Notwithstanding that “measure of weighed deference”, I am afraid that I find myself unable to agree with the conclusion which he reached. In my judgment, he ought to have held that the boundary separating the Applicant’s title from the Respondents’ title was the line shown on Mr Bingham’s Rear Fit Plan or, which is much the same, the line shown on Mr Jackson’s Plan. This conclusion does not, I should add, involve necessarily preferring the evidence of Mr Jackson to that of Mr Bingham. The Adjudicator heard their expert evidence under cross-examination. I am not provided with any transcript of that cross-examination and would not feel it open to me to reverse the Adjudicator’s finding that the evidence of Mr Bingham is to be preferred to that of Mr Jackson. But Mr Bingham himself conceded that his Rear Fit Plan was a possibility and it was only “on balance” that he expressed a preference for his Front Fit Plan. In my judgment, whatever preference there was for the quality of the evidence given by Mr Bingham as compared to Mr Jackson, Mr Bingham’s Front Fit Plan is impossible to “match”, if I might use Mr Bingham’s own expression, with the terms of the 1937 Conveyances. For, if one were to accept his Front Fit Plan as the correct approach, it entails, as Mr Bingham in his written report acknowledges, that at its southern end Coronation Parade was constructed 3 feet nearer to the Pink Building than as shown by the plan attached to the first 1937 Conveyance. But the surveyors are agreed that the width of the Service Road at its southern end is today the same 22 feet or 16 feet from the kerb of the pavement as was specified in the covenant contained in first 1937 Conveyance and shown on the 1937 Conveyance Plans.[29]As I see it, and Mr Beglan for the Applicant conceded this, it follows logically from Mr Bingham’s Front Fit Plan that, as Coronation Parade was on this hypothesis constructed in the 1930’s three feet closer to the Pink Building than as shown on the plan attached to the 1937 Conveyances, the Vendor constructed its development in a manner which rendered it in breach of its covenant to make up the Service Road to the dimensions expressly stated in the covenant in the first 1937 Conveyance and in both Conveyances shown on the 1937 Conveyance Plans. One might have thought that, if this had occurred, there would have been an immediate protest by the respective Purchasers under those Conveyances, since this would have been to narrow the roadway at the southern entrance to the Service Road by over 20%. One might also have thought that the Vendor would be wary of constructing its development in a manner which, because it was in breach of covenant, was susceptible to being held up by litigation by its purchasers seeking by injunction to compel performance of the covenant. The further logic of this approach, which Mr Beglan also conceded, is that for perhaps some 50 years the Service Road was narrowed in this way until the Pink Building was demolished and the multi-storey car park erected in its place, whereupon the Service Road was widened to its original agreed dimensions, but this time necessarily partly, to the extent of the additional 3 feet, on the Applicant’s own land. Not only was there no evidence before the Adjudicator to suggest that this somewhat bizarre course of events had occurred, but the Applicant itself concedes that the whole of the Service Road itself lies within the Respondents’ title. Yet acceptance of Mr Bingham’s Front Fit Plan would entail that part of the Service Road as it is now constructed, consisting of a strip of land three feet wide at the entrance way to the Service Road and going up the Service Road, is actually situate on the Applicant’s own land.[30]Surprisingly these are not matters dealt with at all by Mr Bingham in his report, although he does acknowledge in his table at paragraph 9 of his report that his Front Fit Plan provides what he terms a “poor” fit at the southern and western side of the Service Road with the 1937 Conveyance Plans. Even more surprisingly these matters are not dealt with at all by the Adjudicator in the Decision and so I am left in the dark as to how the Adjudicator felt able to reconcile Mr Bingham’s Front Fit Plan with the description of the land in the 1937 Conveyances and what is on the ground today.[31]In my judgment, and despite the Adjudicator being more impressed by the evidence of Mr Bingham than the evidence of Mr Jackson, it simply was not open to him to accept as consistent with the true construction of the 1937 Conveyances Mr Bingham’s Front Fit Plan. Indeed, as I see it, the give-away for this are the very nine separate physical features of the Barry Survey to which Mr Bingham makes reference in his Report. True enough, at the front end of Coronation Parade the front fit option provides a very good “match” as compared to the rear fit option. But that is, as I see it, the inevitable consequence of plotting on the basis of fitting the Coronation Parade development onto the Barry plan on the basis of aligning the front. When it comes, however, to the critical rear of Coronation Parade at the southern end, where the 3 feet discrepancy between the development as indicated on the 1937 Conveyance Plans and the development as it was actually carried out occurred, one sees, as I have already observed, that Mr Bingham concedes that his Front Fit Plan gives a “poor” match as opposed to his Rear Fit Plan, where the match is, necessarily, “very good”. As I see it, if the Front Fit Plan does not by a significant margin match the dimensions which are shown on the 1937 Conveyance Plans, it cannot be a plan that is consistent with the terms of those Conveyances - and should therefore have been rejected by the Adjudicator.[32]As I have said, I would be most reluctant to interfere with the findings of an adjudicator of HM Land Registry. But, as I have also said, there is nothing in the Decision to indicate that this was a point that the Adjudicator considered and the Decision itself gives no indication whatsoever, therefore, as to what is the answer to it. I can see none.[33]Mr Beglan complains that this was not a point which was taken by the Respondents before the Adjudicator. Mr Allston responds by referring me to the passages in Mr Jackson’s expert report in which he makes the point that his plan had been prepared by following the dimensions expressed in the 1937 Conveyances. But whether the point was taken quite as clearly as I have expressed it in this judgment, it was, it seems to me, an obvious point which the Adjudicator ought to have taken on board and dealt with in the Decision. Once Mr Bingham’s Front Fit Plan is rejected, one is left with only the one alternative option on Mr Bingham’s own evidence, namely his alternative Rear Fit Plan, which is the equivalent of Mr Jackson’s Plan. So once the Front Fit Plan is rejected, the surveyors were both agreed effectively that the line of the boundary indicated by the 1937 Conveyances was as shown on Mr Bingham’s Rear Fit Plan or Mr Jackson’s Plan.[34]As already observed, the Adjudicator also relied for his finding upon the metal studs that had been placed in the surface of the Service Road shortly after the multi-storey car park had been erected and the warning notices on the metal plates which indicated that the Applicant claimed the ownership of the land between the wall of its multistorey car park and the line of the metal studs. If I am right that the Front Fit Plan was not open to be accepted by the Adjudicator as being inconsistent with the terms of the 1937 Conveyances, there was, as I have pointed out, essentially no dispute as to where the true line of the boundary as shown by those Conveyances lay. The Adjudicator found as a fact (see paragraph 13 of the Decision) that the metal studs had been imbedded in the surface of the Service Road at or around the time that the car park was built in order to mark the boundary. However, as he conceded in paragraph 23 of the Decision, this was merely a unilateral act on the part of the Applicant setting out on the ground where it thought at that time the boundary lay. The Adjudicator relied upon the observations of the Court of Appeal in Ali v Lane to support his conclusion that it was permissible to have regard to these boundary markers for the purpose of construing the 1937 Conveyance. But in paragraph 36 of his judgment in that case, which the Adjudicator quotes at paragraph 22 of the Decision, Carnwath L.J. stated that:
“In the context of a conveyance of land, where the information contained in theconveyance 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.”
(emphasis added)[35]Thus, as is clear from that passage, the evidence of subsequent conduct will only be admissible where the “information” contained in the conveyance is “unclear or ambiguous”. Here the information contained in the 1937 Conveyances is not unclear or ambiguous - the boundary was clearly and unambiguously shown to be the western flank of the wall of the Pink Building. The difficulty is seeking to determine where that wall would now be on the ground had the Pink Building not been demolished. Once the Front Fit Plan has been rejected for the reasons which I have given, the surveyors were agreed that the position of that wall - and hence the boundary - is the line shown on either Mr Bingham’s Rear Fit Plan or Mr Jackson’s Plan. So to rely on the line shown by the metal studs, which were not put into the ground until some 50 years after the 1937 Conveyances, as evidence of the boundary is to admit evidence to contradict the terms of the 1937 Conveyances. There is no authority to support this being allowed.[36]Furthermore, I am not at all convinced that it was open to the Adjudicator, on the evidence which was before him, to find that there had been “a mutual recognition that the true legal boundary between the car park and the Service Road is represented by the line of metal studs marking the edge of the Lay-by”. True enough, the notices on the metal plates, which the Adjudicator found were fixed onto the wall of the car park and which stated that the land between the building and the line of the metal studs was private property and that members of the public were only allowed to walk across it or park vehicles on it by consent of the Applicant, constituted a clear notice that the Applicant claimed that this land belonged to it. But I am not convinced that the failure of whoever for the time being owned the Respondents’ land from 1988 until the last few years to object to those notices necessarily entails a “recognition” by the registered proprietors for the time being of Coronation Parade that the true legal boundary was represented by the line of metal studs. It was only in recent years when there was a concern as to vehicles illicitly parking in the Lay-by and when the Respondents resorted to clamping those vehicles that the issue as to where exactly the boundary between the two registered titles lay and who in consequence owned the Lay-by became a live issue. To suggest that, merely by having failed to object to the notices, the registered proprietors of the Respondents’ land were acquiescing in the Applicant’s claim to ownership so that they, in effect, lost their title to the Lay-by, or at least that part of it which both Mr Bingham’s Rear Fit Plan and Mr Jackson’s Plan show lies within the Respondents’ title, would entail the equivalent of their having lost that land by adverse possession without the Applicant having made out any case to have been in adverse possession of that land. In my judgment, Ali v Lane is not authority for the proposition that these sorts of acts well subsequent to the relevant conveyance can be relied upon for this purpose.[37]I should add that the adoption of Mr Bingham’s Rear Fit Plan or Mr Jackson’s Plan also results in a line of the boundary that runs at a slight diagonal to the rear wall of Coronation Parade instead of running parallel with it. That is precisely what is indicated on the 1937 Conveyance Plans and provides a further reason for adopting one or other of those plans in preference to Mr Bingham’s Front Fit Plan. Conclusion[38]Accordingly, and with, if I might say so, a degree of hesitation borne of the “measure of weighed deference” which I am bound to give to it, I have come to the conclusion that the Decision simply cannot stand. In my judgment, there was no basis upon which the Adjudicator could have accepted Mr Bingham’s Front Fit Plan as being consistent with the true construction of the 1937 Conveyances. Whatever the merits or demerits of the quality of the expert evidence before him, in my judgment, the Adjudicator ought to have rejected that plan as inconsistent with the 1937 Conveyances and accordingly adopted, as the only alternative left, Mr Bingham’s Rear Fit Plan or Mr Jackson’s Plan. I therefore allow this appeal and order that there be substituted for the Adjudicator’s order an order that the Chief Land Registrar shall give effect to the Applicant’s application by altering the file plan of the relevant titles to reflect the more accurate general boundary which is identified by Mr Jackson’s Plan. Neither counsel pointed out to me any significant difference between Mr Jackson’s Plan and Mr Bingham’s Rear Fit Plan and, given that the Adjudicator had heard the evidence of the two surveyors and had expressed a preference for the evidence of Mr Bingham, I did consider at one point whether the right order to make was to adopt for the purposes of the file plan Mr Bingham’s Rear Fit Plan. In the end, however, I have decided that the preferable plan to adopt for this purpose would be Mr Jackson’s Plan. I do so for two reasons. First, it seems to me that the rejection by the Adjudicator of Mr Jackson’s evidence as being less impressive than that of Mr Bingham was not in any way a criticism of the accuracy or standard of the plan which he had produced. Rather, the criticism was because Mr Jackson had not, in his view, considered other alternatives, which in the view of the Adjudicator he ought to have done. It is, of course, questionable in the light of this judgment to what extent that criticism is well founded. Secondly, Mr Jackson’s Plan is, in my view, a much clearer plan than Mr Bingham’s Rear Fit Plan and is, therefore, one which it seems to me is calculated to avoid further dispute in the future and would be for that reason more suitable to use as the file plan.[39]I should add that one of the matters which was submitted to me by Mr Beglan was that the result of a determination to the effect which I have made is that the Lay-by will now consist of land partly in the ownership of the Respondents and partly in the ownership of the Applicant, which is liable to make it difficult for the driver of a vehicle when parking it on the Lay-by to know on whose land he is parking. I accept that there will be this difficulty, the solution to which is, perhaps, for the Respondents and the Applicant to reach agreement between them to regulate who is to be entitled to park on the Lay-by. However, as I see it, this difficulty has nothing whatever to do with the true construction of the description of the land conveyed contained in the 1937 Conveyances. At the date of those conveyances there was no contemplation of there being any Lay-by at all. The fact that, since I suspect the erection of the multistorey car park, a Lay-by for the parking of cars has been formed at the side of the Service Road cannot, in my judgment, be a factor which falls to be taken into account in determining what in 1937by the terms of the 1937 Conveyances was intended to be the line of the boundary.