David Robert Todd & Anor v Richard Marsh & Ors [2026] EWHC 1701 (Ch)

[2026] EWHC 1701 (Ch)Case No CH-2025-000180IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCHANCERY APPEALS (CHD)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 10/07/2026
Before
MR JUSTICE MICHAEL GREEN
Between
DAVID ROBERT TODDAppellantsCAROLINE LOUISE GLENYS HODGEAppellantRICHARD MARSHRespondentsREBECCA MARSHRespondentTAPSTONE LIMITEDRespondent
Mr Evan Price (instructed by Knights Solicitors) for AppellantsMr Philip Sissons (instructed by Gaby Hardwicke) for RespondentsHearing Hearing dates: 11 – 12 May 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 10 th July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This is an appeal from the Order of Her Honour Judge Parker (the “Judge”) dated 25 June 2025 made in the County Court at Hastings (but sitting at the County Court at Guildford). The Order was made following the handing down of the Judge’s judgment by email on 24 June 2025, which was then delivered orally on 25 June 2025 (the “judgment”). The Judge had heard the trial over 4 days between 19 and 22 May 2025, and that included a site inspection.[2]The Appellants, Mr David Todd and Ms Caroline Hodge, jointly own a property at Wyland Wood, Robertsbridge, East Sussex, with registered title number ESX272833 (“Wyland Wood”). The Respondents, Mr Richard Marsh, Mrs Rebecca Marsh and a company owned by them called Tapstone Limited, own two neighbouring plots of land: an approximately 6.5 acre plot of land lying to the west and south of Wyland Wood with registered title number ESX32714 owned by the First and Second Respondents (the “Marsh Land”); and a second area of land to the south east of Wyland Wood with registered title number ESX208478 owned by the Third Respondent (the “Tapstone Land”).[3]The case concerns the position of the boundary between Wyland Wood and the Marsh Land. The Appellants contended at the trial, and on appeal, that the boundary was marked by a dog and deer proof fence (the “DDPF”). The Judge held that the DDPF did not run along the boundary line in the registered title plans; nor did it run along the line in the historic conveyances. She held that the boundary line was along the line that both experts agreed was the line on the registered title plans and the historic conveyances.[4]At trial there was a further issue between the parties. The Appellants were claiming that the Tapstone Land was owned by them. The Judge found against them on that, and they were refused permission to appeal against that aspect of the judgment. Permission to appeal against the Judge’s Order in relation to the boundary line was granted by Cawson J on 22 October 2025.[5]The Respondents say that the fact that the ownership of the Tapstone Land is no longer in dispute is significant for the boundary appeal, and they have issued a Respondents’ Notice raising an issue in that respect.[6]The appeal was well argued by Mr Evan Price on behalf of the Appellants and by Mr Philip Sissons on behalf of the Respondents. For the reasons set out below, I will be dismissing this appeal. Background[7]The Appellants bought Wyland Wood from a Mr Stephen Baldwin and his wife Alison on 28 February 2018 (the “2018 Transfer”). It is a country house with a surrounding garden and a wooded area. At the time of the sale of Wyland Wood to the Appellants, Mr Baldwin also owned the Marsh Land and the Tapstone Land. Therefore, the sale of Wyland Wood created the disputed boundary and the case therefore depends on the proper interpretation of the 2018 Transfer. That is common ground.[8]At the time of the sale of Wyland Wood, the DDPF was in place. It ran parallel to the paper title boundary line between Wyland Wood and the Marsh Land but between 6.37m and 11.37m on the Marsh Land side of the paper title boundary.[9]In August 2019 there was damage to the DDPF by high winds. There was an exchange of emails between the First Appellant and Mr Baldwin about repairs to it. They agreed to share the costs of repairing the DDPF. There were references to “your side” and “my side” of the “boundary fence”. The Appellants rely on these emails to say that they reached a boundary agreement with Mr Baldwin, binding on the Respondents, that the DDPF is the boundary between the two properties. The Judge found that there was no such agreement and this forms the second main ground of appeal (Grounds 7 and 8).[10]On 24 May 2021, Mr Baldwin sold the Marsh Land to the First and Second Respondents and the Tapstone Land to the Third Respondent. If the boundary between Wyland Wood and the Marsh Land is along the DDPF, it would mean that the Tapstone Land is landlocked and could not be accessed from the Marsh Land. Mr Baldwin retained no right to pass through the DDPF via gates to the south of Wyland Wood to access the Tapstone Land. The Respondents rely on this to show that the boundary line could not be the DDPF because it would mean that Mr Baldwin left himself no means of accessing the Tapstone Land from his other retained land, the Marsh Land.[11]This was the issue that arose in 2021 shortly after the Respondents bought the Marsh Land and the Tapstone Land. The First Respondent sought to remove the DDPF, but the Appellants were granted an injunction to stop the removal of the DDPF until the issue of the boundary had been resolved.[12]There are two main arguments on this appeal:(1) The Judge’s alleged erroneous application of the general boundaries rule created by s.60 of the Land Registration Act 2002 (“LRA 2002”); and(2) The Judge’s alleged failure to consider the evidence properly in relation to the boundary agreement. The judgment below[13]The Judge’s judgment first sets out the background then goes on to analyse the oral and written witness evidence, both factual and expert. Each side called an expert surveyor: Mr John Witherden for the Appellants; and Mr Julian Mann for the Respondents. In relation to the expert evidence the Judge noted that both were agreed that boundary line on the registered title plan in the 2018 Transfer corresponded with the title plan in a pre-registration conveyance in 1970 of Wyland Wood. In other words, the experts were agreed that the boundary line on all title plans was not on the line of the DDPF. The Judge also referred to the evidence of Mr Mann as to what a reasonable purchaser of Wyland Wood would have assumed in relation to the boundary and whether they would have instructed an expert surveyor to opine on the boundary line before purchase.[14]The Judge then analysed the factual evidence of the Appellants and the individual Respondents. Mr Baldwin also gave evidence for the Respondents.[15]The Judge, in her “Analysis” section between [73] to [82], set out the law that she would be applying and her conclusions on the issues before her. The Judge decided that the 2018 Transfer was unambiguous and consistent with earlier conveyances. Accordingly. there was no need to consider any other extrinsic evidence to determine the boundary line. At [73] to [77] the Judge said as follows (“WW” is Wyland Wood):
“73. Do the title plans prevail as to the boundary between WW and Marsh Land? a. LRA 2002 s.60 (1) and (2) states that the boundary of a registered estate as shown on a title plan is a general boundary and a general boundary does not determine the exact line of the boundary. It is therefore necessary to consider the pre- registration Conveyances. The boundaries between all 3 parcels of land follow the red line drawn by Mr Mann the Ds expert. These also follow the registered title plans which also match the boundaries on the historic Conveyances. Both experts agree that this line shows the “paper” boundaries. b. The approach as to how to interpret the Conveyance is an objective one. I was referred to Pennock v Hodgson [2010] EWCA Civ 873 - the court can in some cases have regard to the physical characteristics of the land (which in this case would include the fence and the tree line) - the court’s exercise includes consideration of the “objective facts reasonably available to the parties at the relevant date”
. The question is how clear are the terms of the Conveyance; and if they are not clear the court can admit extrinsic evidence. c. I was referred to the case of Acco Properties Limited v Severn [2011] EWHC 1362(Ch) which sets out some principles to consider in boundary disputes (a-j in counsel’s opening note)s. These included that OS plans are usually only a general guide to boundary features and should not be scaled up to delineate an exact boundary. The starting point is the wording of the Conveyance. If it is not clear then extrinsic evidence may be considered. d. The conveyance states that WW contains “2.702 acres of thereabouts”, and the land is described as “for the purposes of identification and not of limitation or enlargement...” The first schedule identifies field numbers and acreages. e. The 2018 Transfer refers to the title number and postal address of WW. There is no reference to the other 2 title numbers. Looking at the historic Conveyances:- f. The conveyance of WW to Mr and Mrs Beddard on 14.12.70 shows the land on a plan which is “2.702 acres or thereabouts”. The Schedule uses OS Survey Plot numbers to identify the land and shows the boundary as following the tree line. It is the same as the paper boundary line agreed by the experts. g. There is no evidence to suggest that the DDPF was in place at the time of the 1970 conveyance. 74. The Tapstone Land was purchased in 1995 by Mr and Mrs Beddard. A new plan was prepared as this sale involved conveyance of part of an earlier title. The boundaries match the registered title plans. 75. When WW was subject of first registration on 22.12.03 the title plan was prepared on the basis of the then current OS map. The boundary is shown as the edge of the treeline. 76. I am satisfied that there is no ambiguity in the title plan, and that considering the pre-registration conveyances, the boundaries have been drawn in the same place and consistently. 77. Both experts agree that the line drawn by D’s expert Mr Mann accurately reflects both the 1970 Conveyance and the registered title plan.” a. LRA 2002 s.60 (1) and (2) states that the boundary of a registered estate as shown on a title plan is a general boundary and a general boundary does not determine the exact line of the boundary. It is therefore necessary to consider the pre- registration Conveyances. The boundaries between all 3 parcels of land follow the red line drawn by Mr Mann the Ds expert. These also follow the registered title plans which also match the boundaries on the historic Conveyances. Both experts agree that this line shows the “paper” boundaries. b. The approach as to how to interpret the Conveyance is an objective one. I was referred to Pennock v Hodgson [2010] EWCA Civ 873 - the court can in some cases have regard to the physical characteristics of the land (which in this case would include the fence and the tree line) - the court’s exercise includes consideration of the “objective facts reasonably available to the parties at the relevant date”. The question is how clear are the terms of the Conveyance; and if they are not clear the court can admit extrinsic evidence. c. I was referred to the case of Acco Properties Limited v Severn [2011] EWHC 1362(Ch) which sets out some principles to consider in boundary disputes (a-j in counsel’s opening note)s. These included that OS plans are usually only a general guide to boundary features and should not be scaled up to delineate an exact boundary. The starting point is the wording of the Conveyance. If it is not clear then extrinsic evidence may be considered. d. The conveyance states that WW contains “2.702 acres of thereabouts”, and the land is described as “for the purposes of identification and not of limitation or enlargement...” The first schedule identifies field numbers and acreages. e. The 2018 Transfer refers to the title number and postal address of WW. There is no reference to the other 2 title numbers. Looking at the historic Conveyances:- f. The conveyance of WW to Mr and Mrs Beddard on 14.12.70 shows the land on a plan which is “2.702 acres or thereabouts”. The Schedule uses OS Survey Plot numbers to identify the land and shows the boundary as following the tree line. It is the same as the paper boundary line agreed by the experts. g. There is no evidence to suggest that the DDPF was in place at the time of the 1970 conveyance.[16]The Appellants do not challenge the legal principles set out in this passage. However, the Judge did go on to consider the general boundaries rule and its application to this case. This does form the basis of the first few Grounds of Appeal. That is principally because the Judge said this at [78]: “78. Does the general boundaries rule apply? a. In my judgment, it does not, because the conveyance is clear. The documentary evidence that I have seen and the experts’ written and oral evidence does not lead me to conclude otherwise.” [There were no further subparagraphs to [78].] a. In my judgment, it does not, because the conveyance is clear. The documentary evidence that I have seen and the experts’ written and oral evidence does not lead me to conclude otherwise.” [There were no further subparagraphs to [78].][17]It is not in dispute that the general boundaries rule does apply in this case. In that sense the Judge was wrong to say that it did not. But the question is whether that was actually what she meant when taken in context, having accurately set out the rule in [73a]. In any event the Judge went on to consider the extrinsic evidence in [79], including what the DDPF would indicate to a layperson, conversations prior to purchase, the relevance of the acreage and the estate agent’s particulars. The Judge concluded in [80] that that extrinsic evidence was insufficient to displace the clear meaning of the 2018 Transfer.[18]The Judge’s conclusion on the boundary agreement is at [81]. After considering the email exchanges between the First Appellant and Mr Baldwin, and their oral evidence, the Judge held that there was no boundary agreement because the subject of the discussions was the repair of the DDPF not where the boundary lay. Furthermore, if it was a boundary agreement it would have resulted in the transfer of a significant portion of land to the Appellants, which was not trivial.

(A) The General Boundaries Rule (i) The Grounds of Appeal

[19]The Appellants broke down this broad Ground of Appeal into six Grounds. Mr Price sensibly dealt with them all together. In summary those six Grounds were as follows:(1) The Judge was wrong to say in [78.a.] that the general boundaries rule did not apply;(2) The Judge was therefore wrong to rely solely on the title plans and not any of the extrinsic evidence;(3) The Judge failed adequately to consider the expert evidence, in particular the Respondents’ expert’s oral evidence concerning what a reasonable purchaser would have thought about the boundary line;(4) The Judge failed adequately to consider the extrinsic evidence and placed too much reliance on the 1970 conveyance which was 48 years before the 2018 Transfer;(5) The Judge failed to consider and analyse properly or appropriately the extrinsic factual evidence;(6) The Judge failed to consider additional authorities cited to her; this latter Ground was not pursued at the hearing. (ii) The General Boundaries Rule[20]The so-called general boundaries rule is established by s.60 LRA 2002. All it means is that the boundary line as shown on the register – the general boundary - is not, in itself, the exact boundary. This is because the identification of the boundary from registered plans or a description in the conveyance is likely not to be precise enough. It only becomes the exact boundary line when it is determined as such.[21]Section 60 LRA 2002, which replaced r.278 of the Land Registration Rules 1925, provides as follows:
“60 Boundaries (1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) A general boundary does not determine the exact line of the boundary.”
[22]The section continues to describe how rules may be made to determine the exact line of the boundary. It is accepted that there has been no such determination and that therefore the boundary between Wyland Wood and the Marsh Land shown on the registered title plan is a general boundary. That, it seems to me, is the extent of the general boundaries rule.[23]The case referred to by the Judge, Acco Properties Limited v Severn [2011] EWHC 1362 (Ch) a decision of HHJ Simon Barker QC sitting as a deputy High Court Judge, set out at [11] the principles that needed to be considered to determine a boundary dispute of registered land. He said that unless the property being transferred is said to be “more particularly described in the plan”, the registered title plan would only be of a general boundary. He went on to explain that the starting point must always be the relevant conveyance or transfer “aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.” HHJ Simon Barker QC then said that if the conveyance or transfer is not clear “recourse may be had to extrinsic evidence – such as topographical features on the land that existed, or may be supposed to have existed, when the dividing conveyance was executed.” That evidence may also include evidence of subsequent conduct where it is probative of what the parties intended.[24]Lord Hoffmann made clear in Alan Wibberley v Insley [1990] 1 WLR 894, a case dealing with the hedge and ditch rule, that the starting point when considering a boundary dispute is the deeds in unregistered land and the transfer in registered land when the boundary was formed. This approach is endorsed by Sara, on Boundaries and Easements, 7th Edition at [1-001].[25]The Judge also referred to Pennock v Hodgson [2010] EWCA Civ 873. Mummery LJ, with whom Longmore and Wilson LJJ agreed, explained how the relevant conveyance is to be construed in the context of determining the boundary line. In that case, the conveyance plan, which was based on an Ordnance Survey map, had depicted the boundary as a “black wiggly line” which appeared to follow the centre of a stream. The issue was whether the judge, David Richards J, as he then was, was right to have looked outside the conveyance to features on the land, in particular a fence on one side of the stream which the defendant was arguing was the boundary of the land conveyed to her.[26]After referring to the Alan Wibberley case, Mummery LJ made clear that the process of construing a conveyance, including the extent of the land conveyed, is similar to the interpretation of any other contract. At [12] he said as follows:
“12. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121;[2004] 1 P. & C.R. 176 at 187; cf Beale v. Harvey [2003] EWCA Civ 1883;[2004] 2P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips [2003] EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. Neilson v. Poole (1969) 20 P. &C.R 909; Wigginton & Milner v. Winster Engineering Ltd [1978] 1WLR 1462; Scarfe v. Adams [1981] 1 All ER 843; Woolls v. Powling [1999] All ER (D) 125; Chadwick v. Abbotswood Properties [2004] All ER (D) 213 and Ali v. Lane [2006] EWCA Civ 1532 were also cited on the construction points. 13. Before the judge and in this court it was agreed that the parties’ subjective beliefs about the position of the disputed boundary in this case and about who owned the bed of the stream were extrinsic evidence that was inadmissible in the construction of the relevant conveyance: Investors Compensation Scheme Ltd v. West Bromwich BS [1998] 1 WLR 896 at 913. The effect of the conveyance is not determined by evidence of what the parties to it believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean.”
[27]While the subjective beliefs of the parties to the conveyance are not to be taken into account in construing it, the factual background, including features on the ground at the relevant time, and what a reasonable person would have understood the conveyance to have meant in the light of that factual background are relevant to the process of determining the boundary. At [44], Mummery LJ upheld the trial judge’s conclusion that the line on the plan was insufficiently clear and that he was entitled “to look at the physical features of the land on the ground” and conclude that the boundary was along the fence, not in the middle of the stream.[28]In this case, the Judge decided that the 2018 Transfer, properly construed, was clear and that she did not need to look at any other extrinsic evidence. But even looking at the extrinsic evidence, including a site visit, the Judge remained of the view that the boundary was along the agreed line in the registered title plan and not along the DDPF. (iii) Grounds 1 and 2: The application of the General Boundaries Rule[29]There is no real dispute that the Judge was wrong to have said in [78a] of her judgment that the general boundaries rule does not apply in this case. She herself recognised this in her reasons for refusing permission to appeal where she explained what she meant by that. This was that she had concluded that the 2018 Transfer was clear after considering the underlying historic conveyances and so it was not necessary to rely solely on the registered title plan; nor was it necessary in the circumstances to consider any extrinsic evidence when construing those conveyances as they were clear and unambiguous, as agreed by both experts.[30]Therefore, it is my view that, despite what the Judge said, she was actually applying the general boundaries rule in the substance of her judgment. In accordance with the authorities, she construed the 2018 Transfer by reference to the historic conveyances which had identified the boundary consistently throughout. In any event, she did go on to consider the extrinsic evidence, so the point really goes nowhere.[31]Ground 2 suggests an over reliance on the title plans, including I assume the title plan in the 1970 conveyance. I do not believe that the Judge solely relied on the registered title plans, potentially contravening the general boundaries rule. I will consider the evidence that was relied upon, including the historic conveyances, under Grounds 4 and 5 below. (iv) Ground 3 – Failure adequately to consider the expert evidence[32]The Appellants refer to the following evidence extracted by them from the Respondents’ expert, Mr Mann, in cross examination that:(1) Almost no purchaser of a home like Wyland Wood would employ an expert boundary surveyor to measure out the boundary;(2) A purchaser would not be able to tell that the land that was inside the DDPF was larger than 2.7 acres; and(3) A purchaser would not be able to tell that the DDPF was not the boundary of Wyland Wood without an expert survey, as the DDPF followed the line of the paper title boundary.[33]As Mr Sissons submitted, this evidence was referred to by the Judge at [40] of her judgment, but she ultimately decided that, when taken together with the other extrinsic evidence, it was of insufficient weight to affect the unambiguous meaning of the 2018 Transfer.[34]Mr Price suggested that the Judge’s approach might lead to a change in conveyancing practice such that purchasers would have to obtain a boundary survey when it was in doubt. I however agree with Mr Sissons that this is unlikely to happen. It is always important for a purchaser and their solicitors to satisfy themselves that the physical features of the land being acquired correspond to the registered title. They can raise questions with the vendor, carry out inspections and, ultimately, if necessary, obtain a detailed survey. If they do not do this, then they proceed at their own risk.[35]Mr Sissons also submitted that the Judge properly accepted the agreed expert evidence that the boundary line on both the registered title plans and the 1970 conveyance followed the edge of an old tree line that existed in 1970 and that this line was not along the DDPF. The experts were agreed that this was the “paper title boundary”. I think that Mr Sissons is correct to say that the Judge would have had to reject both sides’ expert evidence if she were to conclude that the paper title boundary was not the actual boundary.[36]In the event, I do not think that the Judge failed adequately to consider the expert evidence. (v) Grounds 4 and 5: Failure to weigh the extrinsic evidence properly or adequately[37]I have referred above to the 1970 conveyance, but it is perhaps important at this stage to track back through the relevant conveyancing history.(1) The 1970 Conveyance was dated 14 December 1970 and was between Jean Willis as vendor, and Dominic and Susan Beddard as purchasers. This was only of Wyland Wood which was described as “containing 2.702 acres or thereabouts” and “for the purposes of identification and not of limitation or enlargement delineated on the plan annexed hereto and thereon edged blue”. As noted above, the experts agreed that this boundary line followed an old tree line that was identified on the plan and was in the same position as the registered title plan. The Judge saw that line on her site visit.(2) The Marsh Land was acquired by Mr and Mrs Beddard in 1978 and registered by them at HM Land Registry.(3) The Tapstone Land was then acquired by Mr and Mrs Beddard in 1995, it having been previously registered in 1993.(4) On 22 December 2003, Mr and Mrs Beddard registered Wyland Wood. The registered title plans of all three properties were consistent in showing the boundary along the old tree line and not the DDPF, which may or may not have been in existence by this time.(5) In or around June 2005, Mr and Mrs Beddard transferred all three registered titles (Wyland Wood, the Marsh Land and the Tapstone Land) to Mr and Mrs Metcalfe. All three registered titles were then acquired by Ms Katherine Lovering-Worcester in or about September 2010.(6) Mr Baldwin separately acquired the three titles in 2016 from Ms Lovering-Worcester. He acquired Wyland Wood on 12 February 2016; and the Marsh Land and the Tapstone Land on 31 May 2016. The DDPF was in place when he bought Wyland Wood and Mr Baldwin said that he assumed that that was the boundary between Wyland Wood and the Marsh Land, although not being a surveyor he did not know whether it was the actual boundary.(7) So the three titles were in common ownership at various periods since 1970. When Mr Baldwin put Wyland Wood on the market in 2017, he also put the Marsh Land and the Tapstone Land on the market as well.[38]The 2018 Transfer therefore effected a re-division of the land owned by Mr Baldwin. But it followed the separate registered titles and was therefore of the same land as delineated in the 1970 conveyance and as registered in 2003.[39]Mr Price focussed on the following in this respect:(1) The fact that the DDPF had likely been in place for some time. It was certainly there before Mr Baldwin sold Wyland Wood to the Appellants. They said that they had heard that it had been put in place before the great storm in 1987 because it had been repaired then. Mr Sissons did not accept that and there is actually no real evidence as to when it was erected.(2) That the estate agent’s sales particulars had indicated that the grounds of the property were “completely dog proof”.(3) That Mr Baldwin had thought that the boundary was the DDPF. However, while that was what he had said in his witness statement the Judge recorded that in cross examination he had said that “I know a fence is not a boundary” and “he didn’t know if [the DDPF] was in the right place”. Mr Price seemed to be criticising the Judge for evaluating his evidence in this way but that is what he said.(4) That after the Appellants’ purchase of Wyland Wood, neither Mr Baldwin, nor the Respondents passed through the gates in the DDPF, or sought to access the Tapstone Land through the DDPF, those gates being kept locked. It is unclear why this factor is relevant.(5) The email exchange around the repairs to the DDPF in 2019 included reference to the “boundary fence”.(6) The expert evidence set out in [32] above.[40]The first point to make is that the Judge considered these factors and decided that they were insufficient to outweigh the evidence that the DDPF was not the boundary. That balancing exercise performed by the Judge, weighing the various relevant factors against each other in order to evaluate their respective significance to the issue of the location of the boundary line, is not one that an appeal court should lightly interfere with. The Judge not only heard the evidence, but also had a site visit, and so was in a far better position to assess the weight of that evidence. Mr Sissons appropriately cited Lewison LJ’s memorable warning against an appeal court “island hopping” as opposed to the trial judge having the “whole sea of the evidence” before her: see Fage UK Ltd v Chobani [2014] EWCA Civ 5 at [114].[41]An important finding of the Judge at [79a] of her judgment was that there was no clear evidence as to when the DDPF was put up and as the three pieces of land were in common ownership for most of the time up to the 2018 Transfer, there was no evidence as to whether it was ever intended to mark the boundary. From her site visit, the Judge noted that there were wire fragments embedded in a tree along the old tree line which might have indicated that there had been a fence along that line. She went on to state at [79a] that:
“the current fence [ie the DDPF] is in a convenient location for an owner of both sides, being on slightly flatter ground and away from the tree line, which would mean easier access to construct it.”
[42]The Judge recorded all the factors raised by Mr Price in [79b-g] of her judgment. She also found that the First Appellant had looked at the plans before their purchase and realised that there was a meeting point between the Marsh Land and the Tapstone Land, giving access from one to the other. For that to be so, the DDPF could not be the boundary line. The Judge also found that the Respondents appreciated this before they purchased the Marsh Land and the Tapstone Land and that the First Respondent had given credible evidence that he therefore understood that the DDPF had been placed there for convenience and that it did not mark the boundary – see [79i].[43]This brings in the point raised in the Respondents’ Notice. As the Tapstone Land was not included in the sale by Mr Baldwin to the Appellants, despite being offered to them, Mr Baldwin retained that land and the Marsh Land after the sale of Wyland Wood. If the boundary of Wyland Wood was along the DDPF, Mr Baldwin would have retained no means of accessing the Tapstone Land from the Marsh Land. In fact he would have no means of accessing the Tapstone Land at all, as it would be landlocked on all sides. Therefore, the Appellants are inviting the court to construe the 2018 Transfer as meaning that Mr Baldwin left himself with an inaccessible parcel of land. It would also necessarily follow that the Respondents, through the Third Respondent, agreed to buy a landlocked and inaccessible piece of land.[44]Mr Sissons submitted that, as the core principle for interpreting the 2018 Transfer is to ascertain what “against the relevant objective factual background [the parties] would reasonably have understood it to mean” (Pennock v Hodgson at [13]) no reasonable party could have understood that Mr Baldwin could have intended to convey land to the Appellants that would deprive him of access to land that he retained.[45]Mr Price suggested in answer to this point that Mr Baldwin could have made a mistake and he should have secured access at the time. But this was not put to Mr Baldwin at the trial, and in any event, this is put forward by the Respondents as part of the objective exercise in ascertaining the true meaning of the 2018 Transfer. In my judgment it is a powerful further factor in favour of the Judge’s interpretation of the 2018 Transfer.[46]In any event, even without this additional factor, I would have held that the Judge’s reasoning was sound and she came to the correct conclusion. She construed the 2018 Transfer in accordance with the recognised legal principles and in the context of the underlying historic conveyances and concluded that the boundary line was clear and consistent throughout and it was not along the DDPF. She did not therefore need to consider the further extrinsic evidence. But she did go on to do that and that did not displace her primary findings on the construction of the 2018 Transfer.[47]I therefore reject Grounds 1 to 5 of the appeal in relation to the general boundaries rule.

(B) The Boundary Agreement (i) The Grounds of Appeal

[48]Grounds 7 and 8 of the Appeal, in respect of which permission to appeal was granted, concern the Judge’s finding that there was no binding boundary agreement between the Appellants and Mr Baldwin in 2019. Ground 7 merely sets out a summary of the Judge’s findings on the boundary agreement in [81] of her judgment. Ground 8 is the actual Ground of Appeal and it says as follows:
“The Judge erred in failing to consider as evidence that by agreeing to carry out works ‘on his side’ of the ‘boundary fence’ and agreeing to share the cost of repairing the ‘boundary fence’, Mr Baldwin was accepting that the DDPF was in fact the boundary between Wyland Wood and the Marsh Land. This combined with Mr Baldwin’s evidence that he considered the DDPF to be the boundary and the fact that Mr Baldwin never sought to enter the land between the fence and what the Judge concluded was the true boundary was evidence that the Judge ought to have considered when deciding whether Mr Baldwin and the Claimants had reached an agreement as to the location of the boundary.”
[49]This seems to me to be purely an attack on the Judge’s factual finding that the Appellants and Mr Baldwin did not actually reach an enforceable boundary agreement. The Appellants are again suggesting that insufficient weight was applied to those factual matters, not that they were not taken into account at all. Indeed they are expressly referred to in [81a] of the judgment. (ii) The law as to boundary agreements[50]Mr Price appeared to criticise the Judge for not analysing the law in relation to boundary agreements. But as I have said, the challenge to the Judge’s findings is not on the law but on the facts. Furthermore, there is no real dispute on the law.[51]It is in the interests of justice that informal, oral agreements between neighbours, even “over the garden fence”, as to the boundary between their properties should be binding and enforceable. In the memorable words of Megarry J in the seminal case on this subject, Neilson v Poole (1969) 20 P&CR 909, a boundary agreement is an “act of peace, quieting strife and averting litigation and so is to be favoured in the law.”[52]The problem with boundary agreements is the tension with s.2 Law of Property (Miscellaneous Provisions) Act 1989 (“s.2”) requiring transfers of land to be made in writing. Megarry J had divided boundary agreements into two types:(i) one is an agreement to move a boundary so as to constitute effectively a transfer of land from one neighbour to another;(ii) whereas the other is to settle the line of an uncertain boundary which may arguably involve the transfer of a trivial amount of land. This was explained by Arden LJ, as she then was, in Joyce v Rigolli [2004] EWCA Civ 79, such that s.2 would not be applicable to the second type of agreement, called a “demarcating” agreement, but only so long as it was a “trivial transfer of land”. The first type of agreement would be subject to s.2 and would have to be in writing.[53]This was further recently discussed by Asplin LJ in Alder v White [2026] Ch 65 in [53] to [60]. Her Ladyship made clear that such a boundary agreement defines the land owned by a vendor, and a purchaser therefore cannot acquire title to more land than was owned by the vendor. As such, the boundary agreement is binding on successors in title irrespective of their knowledge because it defines the parcel of land transferred to those successors in title. But that is also why it is important that a binding boundary agreement of the type two variety must only relate to a relatively trivial piece of land that was in dispute. (iii) The criticisms of the Judge’s judgment on the boundary agreement[54]It is true to say that there is rather compressed reasoning in the judgment in relation to the Judge’s conclusion as to the Appellants’ failure to prove that there was a binding boundary agreement. At [81]

the Judge stated as follows:

“Was there a boundary agreement between Cs and SB when the DDPF was repaired in August 2019? a. The Cs contacted SB following the fence being damaged. Cs email refers to the fence as the “boundary fence”, and there is reference to “your side”
. SB agreed to contribute 50% of the cost of this. In his written evidence SB stated that he “had no reason to appreciate that the fence line may not be the true boundary and therefore could not and did not raise this as an issue”. He was in possession of chains and a lock to the gates on the fence. In oral evidence he said that there were no other chains. “I went in a day before and took the chains off and put them back the weekend after work was completed.” He denied in oral evidence that the emails demonstrated that he was agreeing with the Cs that the fence was the boundary “not really, it was a fence being repaired. It was a neighbourly thing to do to fix a fence.” He seemed straightforward and honest in this evidence. None of the exchanges reference the Tapstone Land, apart from the initial email from the Cs in which they enquire whether SB still owns the field and additional land to the north and west of WW. b. I am not satisfied that these exchanges and the repairing of the fence demonstrate an offer and acceptance of where the boundary lay. The position of the boundary was not the subject of these discussions – the repair of a fence was. c. I am not satisfied that there was a boundary agreement between the Cs and SB which would have effectively transferred what I consider in percentage terms to be a significant portion of land to the C which was not trivial.”[55]In the emails that form the basis for the alleged boundary agreement, the First Appellant referred to “the boundary fence” and that some of the fence posts were “on our land some on yours”. He asked Mr Baldwin if he would be prepared to share the cost of repairing the DDPF that had been damaged by recent storms. Mr Baldwin did not correct those statements or comment on them. But he did agree to share the cost, and he did refer to “our side of the fence”. He also agreed to unlock the gates in the DDPF. The First Appellant referred to them as the “two gates between our properties”.[56]Mr Sissons submitted that relations between Mr Baldwin and the Appellants at the time of the sale of Wyland Wood had become fraught. The issue over the repairs to the DDPF had arisen just over a year later, and it may have been that Mr Baldwin did not want to provoke a dispute by challenging the comments made over the boundary. I do not think I can rely on this as evidence of Mr Baldwin’s attitude at the time, as it does not appear to have been a finding made by the Judge.[57]But the Judge did accept Mr Baldwin’s evidence on this that he was only dealing in a neighbourly way with the repairs to the DDPF and was not concentrated on the boundary between the two properties. While it is possible that a failure to correct a party’s mistaken statement could be interpreted as an acceptance of it, it was open to the Judge to find that Mr Baldwin’s failure to engage in the First Appellant’s passing references to the boundary did not mean that he had agreed in a contractually binding way to the position of the boundary. There was not any dispute at the time that required resolving and Mr Baldwin was never asked to confirm that the DDPF was the boundary.[58]The Judge’s conclusion that in the circumstances there was no boundary agreement is rational and there is no real basis for overturning this finding of fact. The core point is that Mr Baldwin did not consciously address his mind to the boundary and so could not be said to have come to any sort of agreement as to its location. Nor can such an agreement be inferred from the simple agreement to share the costs of the repairs or the fact that the DDPF gates were kept locked, when balanced against the factors that the Judge held went against there being a boundary agreement.[59]The existence of a binding boundary agreement is further undermined by the Respondents’ Notice point that an agreement that the DDPF marked the boundary would have deprived Mr Baldwin of access to the Tapstone Land. Even if this was a mistake by Mr Baldwin, as Mr Price suggested, it shows that he was not thinking about this at the time of the email exchange on the repairs, and so could not have been ad idem with the Appellants on the boundary.[60]Even if there was a boundary agreement, the Judge held that this was not a trivial piece of land being transferred and therefore that it would be in the type one agreement requiring compliance with s.2 and it could not take effect as an informal boundary agreement binding on successors in title, such as the Respondents. This was on the basis as set out in [81c] of the judgment that “in percentage terms” this was “a significant portion of land … which was not trivial”.[61]Both parties agree that “triviality” has to be considered in context, based on the surrounding circumstances and the significance of the land in question. The judge referred to the percentage terms, having found that the disputed strip – the land between the DDPF and the paper title boundary – to be about half an acre and Wyland Wood being about 2.7 acres. Therefore, the increase in land if the disputed strip is added would be about 18.5%, which the Judge considered significant. As the Judge said in [79k], if both the Tapstone Land and the disputed strip were added to Wyland Wood, it would increase by 46%. That analysis assumes that the disputed strip added about 18% to Wyland Wood.[62]Mr Price argued that, as a reasonable purchaser would not have been able to work out the acreage of Wyland Wood or the disputed strip, the Judge should have taken that into account in assessing the triviality or otherwise of the disputed strip. He said that it is a rough area of ground with trees and shrubs on it, as though that too might be relevant as to its significance.[63]In my judgment, the Judge was entitled to come to the conclusion that this was not a trivial piece of land. The Judge inspected the site and took into account the relative sizes of the respective pieces of land. This is a matter on which due deference should be shown by an appeal court to the trial judge.[64]In any event, the appeal fails as to the existence of a boundary agreement, and that is independent of the Judge’s findings as to triviality. In the circumstances, I reject Grounds 7 and 8 of the appeal. Conclusion[65]I dismiss all Grounds of Appeal before me and uphold the Order of the Judge that the boundary between Wyland Wood and the Marsh Land is not the DDPF but rather it is the paper title boundary as shown on the registered title plan.[66]I would hope that any consequential matters can be agreed between the parties. But if not, I will deal with any applications on the papers.