John Anthony Larking & Anor v Martyn Eric Chamberlain & Anor [2025] UKFTT 132 (PC)

FIRST-TIER TRIBUNALPROPERTY CHAMBERLAND REGISTRATION[2025] UKFTT 00132 (PC)Case No REF 2023/0045B E T W E E N:
Between
JOHN ANTHONY LARKINGApplicantSALLY CAROLINE LARKINGApplicantMARTYN ERIC CHAMBERLAINRespondentJANE HELEN CHAMBERLAINRespondentTitle Numbers: (1) WSX417048, (2) WSX373739 and (3) WSX419347.Properties:
Between
Oak Tree Barn, Southbrook Road, West Ashling, Chichester (PO18 8DN)(2) Land Lying To The East Of Southbrook Road, West Ashling,Chichester
Between
Land lying to the South West of Tryways, Southbrook Road,West Ashling, Chichester (PO18 8DN)Before Judge Ewan Paton, sitting at Havant Justice Centre, Havant, on 7 th and 8 th August 2024 (site visit 6 th August 2024)Ms. Felicity Thomas (counsel, instructed by direct access) for ApplicantsThe Respondents represented themselves.DECISIONDate 2024-08-15

Ali v. Lane [2006] EWCA Civ 1532

[1]By an application on form DB originally made on 1st November 2021, but dated by HM Land Registry as 31st January 2022, the Applicants applied under section 60 Land Registration Act 2002 for determination of the exact boundary between the following titles:-i) WSX 417048 – the Applicants’ titleto an additional area of land lying to the south of their main titleWSX 387234 (which main titleis now known as Oak Tree Barn, the name of the house which the Applicants constructed on it after their 2020 purchase of these titles); andii) WSX 373739 – the Respondents’ title to a relatively large agricultural field to the south of the above title; and alsoiii) WSX 419347 – the Respondents’ title to a strip of land shown on the register index map as lying to the east/north-east of the Applicants’ title described in (i) above.[2]Those titles, as they are currently depicted on their respective title filed plans, are shown below in the extracts at Figures 1 to 3.Figure 1: Applicants’ titleFigure 2: Respondents’ main title to southFigure 3: Respondents’ additional title to eastLaw: the general boundaries rule[3]The filed plans of registered titles show “general boundaries” only. This rule is currently enshrined in section 60(1) and (2) of the Land Registration Act 2002:
“(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.”
[4]The 2002 Act retained the ‘general boundaries’ rule from previous versions of the Land Registration Act. HM Land Registry itself summarises the rule as follows, in its Practice Guide 40, supplement 3:
“Given the difficulties referred to above in establishing the position of the legal boundary, the great majority of registered titles show only the ’general boundaries’, under section 60(1) of the Land Registration Act 2002.We will complete a first registration without making detailed enquiries as to the precise location of the legal boundaries. Title plans (see practice guide 40: supplement 5 - title plan for a definition) will reflect what we conclude to be a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on Ordnance Survey mapping, taking into account any areas of land that the pre-registration deeds show to have been sold off and any existing adjoining registrations.Unlike the tolerances applied to Ordnance Survey mapping, there is no standard tolerance, measurement or ratio that can be attributed to the relationship between the position of the general boundary mapped on an HM Land Registry title plan and the position of the legal boundary. See practice guide 40: supplement 1 - the basis of HM Land Registry plans for more information.Case law makes clear that there is no limit to the quantity of land that can fall within the scope of the general boundaries rule: see, for example, Drake v Fripp [2011] EWCA Civ 1279.”
[5]The effect of the rule is further, and well, expressed in Ruoff & Roper, Registered Conveyancing, Vol.1 paragraph 5-009 and 5-010:
“In short, the general boundaries rule means that the title plan identifies the property within the registered title but does not identify the boundaries, which it only indicates. Hence all official copies of title plans are endorsed with the warning: “This title plan shows the general position of boundaries: it does not show the exact line of boundaries.”
So an area of land outside the red edging on the title plan might still be within the registered title, and equally an area of land within the red edging might be outside the registered title.…. it follows from the general boundaries rule that a disagreement as to the boundary of the registered title (a “boundary dispute”) cannot be determined by the title plan. Boundary disputes will generally be determined in the same way as the boundaries are worked out where the land is unregistered—in particular, by examining the conveyances and transfers, by the application of boundary presumptions, and by the existence of boundary agreements.”Determined boundary applications[6]If the proprietor of a registered title wishes to have the exact boundary between that and another title determined, s/he must follow the procedure set out in Land Registration Rules 2003, in rules 118 and following. The central provision is rule 118(2), which provides that “An application under paragraph (1) must be made in Form DB and be accompanied by—(a) a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and(b) evidence to establish the exact line of the boundary.”[7]The Upper Tribunal (Lands Chamber) recently, in Farrow v. Boag [2023] UKUT 167 (LC), recently summarised and re-stated the requirements for a determined boundary application (paragraphs 5 to 11, per Martin Rodger KC), noting amongst other matters the Land Registry’s recommended requirements as to the plans to be used for such applications, and adding that:-“It follows that the evidence necessary to establish the exact line of a boundary must be evidence from which the boundary can be identified with the precision required to enable such a plan to be prepared.”So a successful determined boundary applicant will therefore need two things, reflecting paragraphs (a) and (b) of rule 118(2): both a sufficiently detailed and scaled plan, and – importantly – evidence, and therefore a case, to establish why the exact boundary should be drawn on that plan along the specific line proposed.[8]The Upper Tribunal noted that there may be cases in which those requirements are not fulfilled, (as it found in that case) leaving the boundary between the registered titles as a general boundary only. Since the Land Registry would usually reject at the initial threshold stage any application with a wholly deficient and inadequate plan, the more common issue before this Tribunal upon the referral of an application is whether the Applicant has made out a case in law and on the evidence to establish that the exact boundary is in the specific position depicted on a compliant plan. This Tribunal can direct the cancellation of a determined boundary application simply on the ground that the Applicant has failed to do so.[9]It is also clear, however, from Witt v. Woodhead [2020] UKUT 319 (LC), following a line of cases up to Lowe v. William Davis Limited [2018] UKUT 206 (TCC), that in the course of deciding a determined boundary application, the Tribunal may go further and be able to make a finding on the “location of the boundary”, on the evidence and legal principles as presented before it. It is very common, where a party has objected to a DB application and become a Respondent in Tribunal proceedings, that their reason for objecting is an argument that the location of the boundary is a position other than that stated by the Applicant. Even in the absence of a separate and countervailing DB application by that party, the Tribunal might accept their argument (in whole or part) as a reason for rejecting the Applicant’s application. That was the outcome in Witt v. Woodhead, in which Upper Tribunal

Judge Cooke therefore concluded (at paragraph 69):

“69. That leaves the parties without a determined boundary. However, all my findings about the position of the boundary were made in order to decide what direction should be given to the registrar. They therefore create an issue estoppel between the parties, which means that they cannot be questioned in any future proceedings between the parties in which the position of the boundary is in question.”
[10]When a determined boundary application comes before this Tribunal, it is therefore necessary to consider carefully the Applicant’s specific case on the exact boundary contended for, and the Respondent’s case in opposition. As the extract from Ruoff and Roper above makes clear (as does the paragraph of the Land Registry Practice Guide 40 supplement 3 preceding the extract quoted above), this effectively has to be approached as a boundary dispute, and decided according to the relevant legal principles for establishing the boundary between two or more parcels of land previously in common ownership. If the application of those principles, on the evidence, accords with the exact line contended for by the Applicant, then the application will succeed. If it does not, then the application will be rejected, leaving the boundary as a general boundary only, but potentially also with a binding finding that the location of the boundary lies elsewhere.[11]After that legal introduction, it is now necessary to consider the area of land in dispute, and the origins of the relevant titles.Land and titles: history[12]Most if not all of the following title history is uncontentious and well-documented in both the current and historic title office copies and plans, and such conveyancing documents as were in evidence. Where it is necessary to make any finding on any matter which was contentious, I shall make that clear.[13]From about 1952 or possibly 1955 (I have not seen the relevant pre-registration deed), and at all times prior to 31st October 2002, the First Respondent’s father, Dennis Harold Chamberlain, owned all of the land now comprised in the present parties’ titles; title to which was then unregistered. This comprised mostly an arable field extending all the way up to, and abutting, three of the four boundaries of a house, “Greenland” (or “Greenlands House”), accessed from Southbrook Road to the north. Parts of the land close to Greenland also contained some agricultural buildings.[14]By 2002, the owners of Greenland were Nigel and Janet Ostler-Harris. During that year, they reached an agreement with Dennis Chamberlain to purchase from him a quantity of his land adjoining Greenland. Both parties instructed solicitors, and the sale proceeded to completion on 31st October 2002.[15]Although the Applicants initially appeared to raise doubts about this, I am entirely satisfied that the copy of a form TP1 which appeared as “Document C” attached to a letter from Mr. and Mrs. Ostler-Harris submitted to HM Land Registry on 1st September 2022, filed in support of the Respondents’ objection to the Applicants’ original application, is a true copy of the 31st October 2002 conveyance of land from Dennis Chamberlain to Mr. and Mrs. Ostler Harris.[16]The Applicants, who received a copy of that evidence in September 2022, appear not to have been provided with a colour copy of it by HM Land Registry. They were also suspicious of the fact that this copy TP1 was covered, in numerous places, with the signatures of the Respondents and Mr. and Mrs. Ostler-Harris (“for Greenlands 2 Limited”), when neither the Respondents nor that company could have been original signatories to it. The simple explanation for this, which I accept, is that the Respondents and Ostler-Harrises believed – I consider incorrectly, having probably misunderstood a communication from HM Land Registry – that it was necessary for every single exhibit in their evidence submitted with their objection to be signed by the persons submitting it. This is why every exhibit attached to the Ostler-Harris letter, not just the TP1, is festooned with these multiple signatures. It was not, as the Applicants appeared at least initially to suspect, some sort of attempt to pretend that these signatories were actually parties to the 2002 conveyance.[17]That conveyance (which although on a Land Registry form TP1, was a conveyance of then unregistered land), was executed as a deed by Dennis Chamberlain in the presence of a solicitor (Mr. Crawford) as witness. It was also signed by Mr. and Mrs. Ostler-Harris as transferees. It recorded that for a consideration of £60,000, land described as “Land adjoining Greenlands House [address]” was conveyed to Mr. and Mrs. Ostler-Harris on trust for themselves as beneficial tenants in common in equal shares. In box 4 of the form, the property was defined as follows:
“The Property is defined on the attached plan and shown edged red.”
[18]I am further satisfied that what was the second exhibited page of Mr. Ostler-Harris’s “Document C” attached to his letter is a colour copy of the plan which was attached to this 2002 conveyance. This plan is likewise signed by Mr. Dennis Chamberlain, although once again the Respondents and Mr. and Mrs. Ostler-Harris confused matters by signing it themselves when submitting it as evidence in 2022.It is attached below as Figure 4.Figure 4: 2002 conveyance plan[19]I am satisfied, from the oral evidence of Mr. Ostler-Harris, that this plan was drawn up by a surveyor, from the firm of Shaw Colegate whose name appears on it, to depict and define the land then agreed to be sold.[20]Mr. Ostler-Harris’s evidence was that prior to the execution of the conveyance, to reflect what he understood to be the intended boundary of the land to be conveyed, at least three posts were erected in the ground to form the line of an intended fence. I will return to that evidence in my findings below. Subject to that, it is agreed that the land was at the date of the conveyance not fenced or otherwise physically divided from the retained remainder of Dennis Chamberlain’s land.[21]At the date of that conveyance, it is clear – from the oral evidence and numerous photographs in the bundle – that a relatively large agricultural building known as the “Green Barn” stood on the land being conveyed. It is clearly the rectangular structure depicted on successive Ordnance Survey plans on which the various registered titles in the vicinity were based, and – as can be seen above – on the 2002 conveyance plan itself. It is also clearly visible on an aerial Google satellite photograph from 2001, reasonably close in time to the conveyance (extract at Figure 5 below).Figure 5: 2001 Google Earth photograph[22]It was also common ground, or at the very least not capable of serious dispute, that following the 2002 conveyance, a post and wire fence was erected, just to the south of the “Green Barn”. This can be seen in Figure 6 below, a photograph which accompanied a much later (probably 2019) application by Mr. Ostler-Harris for planning permission for a dwelling on the site, prior to demolition of the Green Barn. To the west of this post and wire fence, the fence line continued, but was replaced in about 2017 with wooden close boarded fencing which extends to a corner post close to the highway to the west, Ratham Lane. It was common ground that the location of this fencing has not changed since late 2002.Figure 6: 2019 photograph showing fence and Green Barn prior to its demolition[23]Following the 31st October 2002 conveyance, the land conveyed was then subject to compulsory first registration. It was registered under a new title number WSX 268099 with effect from 12th November 2002. An historic office copy filed plan of what is now that former title is below as Figure 7.Figure 7: filed plan of new registered title WSX 268099 following 2002 conveyance[24]As under the present 2002 Act, at the time of this registration under the Land Registration Act 1925 (and accompanying Land Registration Rules 1925 rule 278) this filed plan showed general boundaries only. There was no evidence before me that, in registering that new title, the Land Registry had any document or evidence other than the conveyance of 31st October 2002 and its accompanying plan.[25]Immediately upon comparing the above filed plan to that conveyance plan, however, it is apparent that as a matter of depiction – and for what it is worth – the filed plan depicts a considerable gap between the Green Barn and the red filed plan line, whereas on the conveyance plan (Figure 4 above) the red line was shown as abutting or even touching the southern corner of that feature.[26]Although there was little detailed evidence before me on this period, it appears that for approximately the next 12 years after their purchase of the land, Mr. and Mrs. Ostler-Harris used it as an adjunct to both their house and Mr. Ostler-Harris’s business. The fence erected in 2002 remained in place. By 2016, Mr. and Mrs. Ostler-Harris clearly had ambitions to develop this land for residential use, either themselves or by selling plots with planning permission to do so. They incorporated a company, Greenlands Two Limited, as a vehicle for this purpose.[27]They first (the exact date is not clear) transferred off part of their land in title WSX 268099, an approximate “L” shaped portion at its eastern end, to add to the garden and curtilage of Greenland. That portion was given a new title number WSX 399537. They then divided other parts of that title into a proposed “Site A” and “Site B” for potential development.[28]By a TP1 transfer of part dated 22nd December 2016, they transferred what was described as “Site B”, said to be “identified on the attached plan and shown edged blue”, to Greenlands Two Limited, for a stated consideration of £82,500. This transfer contained the grant and reservations of various rights, such as rights of way and restrictive covenants, appropriate for the future use of that land for a separate dwelling. It also contained a positive covenant:
“To maintain such boundaries as belong to the Property as are shown marked with a ‘T' within the boundary or boundaries of the Property.”
It is clear from the transfer, and its plan (attached at Figure 8 below) that the “T” marked feature, almost touching the southern corner of the Green Barn, was the existing fence.Figure 8: 2016 transfer plan, Site B[29]The title created by this transfer of part was given a new title number WSX 387234. Although not in evidence, and Mr. Ostler-Harris could not recall precisely when this was, it is clear that a substantially similar transfer of part must have been executed in relation to the area marked as “Site A” and edged in red. This too was given its own new title number, WSX 387232. The filed plan of the new ‘Site B’ title WSX 387234 depicted it as below, in Figure 9.Figure 9: filed plan of WSX 287234The Applicants’ purchase[30]The full planning history was not in evidence before me, but by 2019 both Sites A and B were being marketed for sale by private treaty by the estate agents Henry Adams, as sites with existing planning permissions for residential development. Site B was stated to have a planning permission which appears to have been granted as full permission in 2019. By that date, as can be seen from the agents’ particulars, the former Green Barn had been demolished and a cleared site was being offered for sale. The particulars contained the usual disclaimers as to measurements and precise extent, so nothing turns on them in that regard, but one of the photographs in the particulars does show (I am satisfied), both the discoloured earth where the Green Barn had until recently stood, and the existing fencing to the south.Figure 10: 2019 agents’ particulars photograph showing fence and cleared barn site, looking south[31]The Applicants viewed this site, and made an offer to purchase it, for £450,000, which was accepted. Both Mr. and Mrs. Larking were quite clear, in their oral evidence, that at the time of making this offer to purchase (subject to contract), in about late 2019, they understood that what they were purchasing was a plot up to the existing fence lines. The matter then proceeded via the instruction of solicitors, with the Applicants as purchasers and the company Greenlands Two Limited as vendor.What happened next in that process is what has led to the present dispute and application.[32]Mr. and Mrs. Larking gave evidence, which I accept, that on their instructions their solicitor carried out a Land Registry index map search of the immediate vicinity. They said that they were concerned to know of all the adjacent titles which might affect or be affected by their proposed development. Mrs. Larking said that they did not want to find out that 100 houses were being built on the field next door, although with respect to her, that would have been both unlikely and a planning (rather than a pure title) matter.[33]The index map search yielded the information from HM Land Registry that there appeared to be an additional title immediately adjacent to the title (WSX 387234) which they were purchasing from Greenlands Two Limited. This was the residue of title WSX 268099, registered in the joint names of Mr. and Mrs. Ostler-Harris.[34]Neither party, nor the Ostler-Harrises (who are not parties and so were not obliged or directed to do so), have provided full disclosure of the relevant conveyancing files and correspondence from 2020. I have therefore only seen a few individual emails in which the issue of there being an additional title and piece of land was raised. It appears to have been first raised in an email from the Applicants’ solicitors of 10th February 2020, which I have not seen. The Ostler-Harrises’ solicitors replied to this on 20th February 2020, saying:
“Finally, with regard to the land at the rear, our clients were not aware that this was still within their ownership as this should have been transferred and formed part of Sites A and B respectively. Our clients are therefore happy to transfer the part of the land to the rear of Site B to your client in conjunction with this transaction.”
[35]Pausing here in the narrative, I find that this was an entirely genuine and honest response on behalf of Mr. and Mrs. Ostler-Harris. I am entirely satisfied, by Mr. Ostler-Harris’s oral evidence and the contemporaneous documents, that he and his wife had no idea that there was any additional parcel of interstitial land still registered in their names. They thought that they had completely divided up, and were now disposing of, all the land which they purchased in 2002. I find that in 2016 they had transferred what they thought was the entirety of their remaining land as Sites A and B to their company, for the purposes of future development. They had not intended to retain some additional strip of land for other purposes.[36]It is necessary to make and set out this finding, because of the way in which the Applicants’ case was presented and put to Mr. Ostler-Harris. Both Mr. and Mrs. Larking, who clearly have very strong feelings over this matter and the dispute as a whole, were convinced that the retention of an additional parcel of land registered in their personal names was a deliberate ploy or tactic by Mr. and Mrs. Ostler-Harris, perhaps by way of a possible ‘ransom strip’ (although precisely how this would have worked as a ransom strip was not wholly clear to me). They each gave an affirmative answer to my question as to whether they really believed that Mr. and Mrs. Ostler-Harris had always had this intention, only then to be ‘rumbled’ following the index map search, then persuaded to transfer the additional land for £1 (see further below). I am entirely satisfied that this is not the case.[37]The Applicants’ solicitors must have obtained the office copy filed plan of the residual title to WSX 268099 (below as Figure 11), extracted on 3rd February 2020. That was still an existing title, in the names of Mr. and Mrs. Ostler-Harris. Figure 11: 2020 edition of filed plan of WSX 268099[38]This appeared to show a residual wedge-shaped strip, to the south of the numbered titles shown in green as having been transferred out of the title. At some point, the Applicants or their solicitors must then have drawn up a fresh plan based on this title plan, showing that ‘wedge’ shape coloured blue. For reasons which are not wholly clear to me, given that both parties had solicitors acting, they then appeared briefly in March 2020 to deal with each other directly, or via (on the Ostler-Harrises’ side) the estate agent, Victoria Turnbull, of Henry Adams, who had marketed Site B. She wrote to Mr. Ostler-Harris on 4th March 2020 asking:
“Just a quick question, does the existing boundary fence line include all the land including the strip to the rear shown blue on the attached plan? If not I guess we had better get the area boundary marked out?”
Mr. Ostler-Harris replied (5th March 2020):
“Hi Vicki,The boundary is defined by a fence (as it always has been) and is correct.It is the land registry drawing that is wrong and they are being contacted about this – as I have repeatedly said.All people who have viewed the plots have seen correctly what is for sale.As I told you I explained this to Mr. Larkin on Monday morning when he called in, am surprised that he is now asking you to get this marked out – do ensure you are very careful in your dealings and what you say to him as I consider he is highly likely to go down the misrepresentation route if he is given the chance.”
[39]The previous day (4th March) Ms. Turnbull had already emailed Mr. Larking directly, in response to him sending a plan, saying:
“I have been able to catch up with Nigel [Ostler-Harris] on the matter. He informs me that you spoke on site on Monday.Nigel is clear, especially in light of how long he has owned the land that the existing boundary is correct. The verge on the other side of the hedge is where the farmer installed the same following receipt of a grant in order to do so. Therefore the boundary marking in Nigel’s opinion is correct. Land Registry however might complete a site visit and there might be a small land gain but we are unable to establish this until the exercise, if required, is completed.If you would like to speak to Nigel again I can arrange a site visit.In the meanwhile you may wish to speak to your legal team with regards to a conditional exchange dependant on the land registry drawing being satisfactory. This will provide you with some comfort the site is secured. I have chased Nigel’s solicitors with regards to the outstanding documents.”
She followed that up with an email to Mr. Ostler-Harris the next day, summarising what she had written, and saying that she had not heard back since.[40]In the absence of either party’s conveyancing file, or any further correspondence, the only certainty as to what followed from these exchanges is that on 31st March 2020, two transfers were executed to the Applicants:-i) what must have been a TR1 transfer of title WSX 387234, for a stated consideration of £450,000, from Greenlands Two Limited to the Applicants (I have not seen this but the date is referred to in the current title); andii) a TP1 transfer, from Mr. and Mrs. Ostler-Harris personally to the Applicants, for £1, of land forming part of title WSX 268099 shown hatched and coloured blue on the plan attached to it.An extract from that plan is below as Figure 12.Figure 12: 2020 transfer plan of additional landThe land transferred by that TP1 was then registered in the Applicants’ name, under a new title number WSX 417048.Events and dispute since the Applicants’ purchase: the disputed land[41]The Respondents are the successors in title to the First Respondent’s father Dennis Chamberlain, who died in 2013. In 2015 they were registered as first registered proprietors of his residual title to the field and agricultural land, out of which he had previously sold the land in 2002 to Mr. and Mrs. Ostler-Harris. That title was given the number WSX 373739.[42]The Respondents themselves live principally in south Wales. Their field is the subject of a farm business tenancy, to a farmer Mr. Heaver via his company Heaver Farms Limited or others in The Heaver Group. He provided a brief statement saying that he has farmed the field and others since the mid-1980s. A farm business tenancy dated 29th September 2012, made between Dennis Chamberlain and Heaver Farms Limited, was in evidence.[43]I made clear at the hearing that I would not go into the details of what appears to have been a particularly acrimonious and heated dispute, which seems to have arisen not long after the Applicants completed their purchase and began developing their plot, on which they now live in their completed dwelling. But in short, the Applicants believe that they purchased in 2020, and now own, a wedge-shaped strip of land which lies south of the fence line which has existed since 2002.[44]They believe, and claim, that this is what is constituted by the additional title, now numbered WSX 417048, which they purchased for £1 from the Ostler-Harrises. As will be set out from their determined boundary application below, the dimensions of this claimed strip south of the fence are 13.68m in width at its western end beside the highway, tapering at its eastern end to 6.61m, and 70.57m in length. The Applicants’ surveyor (Mr. Mallins) estimated its area as 0.11 acres.[45]The Respondents believe, and claim, that this area of land forms part of their field, up to the established fence. They say that this land was not conveyed by their father to Mr. Ostler-Harris in 2002, and so has remained within his title (now theirs) ever since then.[46]These rival and diametrically opposing claims to this area of land have given rise, over the last four years, to many of the frequent ingredients of boundary disputes, including mutual allegations of trespass, criminal damage, harassment and so on. The tenant farmer Mr. Heaver, although he provided a statement as to his farming of the land since the mid-1980s, appears to be caught in the middle somewhat and reluctant to be directly involved.The Applicants’ DB application[47]It was against the backdrop of this dispute that the Applicants made their application for determination of the exact boundary between their title WSX 417048 and the Respondents’ title WSX 373739, on 1st November 2021. This was accompanied by a plan drawn by Mr. M.E Mullins BSc MRICS of Sterling Surveys Ltd. This plan resulted from a “boundary survey” he had carried out for the Applicants on 5th October 2021, resulting in a report dated 18th October 2021.The plan accompanying the original application is below as Figure 13.Figure 13: DB application plan[48]Prior to the hearing of this matter, this plan was revised and updated somewhat. Although no permission for expert evidence had been granted, Mr. Mullins purported to produce a supplemental report, reflecting his observations on the 2012 Farm, Business Tenancy which he had now seen. The revised plan included some measurements, but now also a possible alternative boundary line based on area measurements derived from the 2012 tenancy. It is below as Figure 14. I therefore take this as the Applicants’ up to date contention as to the exact line of the boundary sought, their principal case being that it is at the points A-B-C, with a potential fallback case of A-H-C.Figure 14: revised application plan[49]Although, as stated, no permission had been granted for expert evidence at all, let alone oral expert evidence, Mr. Mullins was in attendance at the hearing. In her skeleton argument, the Applicants’ counsel Ms. Thomas referred to and relied upon his reports as “expert evidence” and was expecting to call him to give oral evidence and be cross-examined.[50]I pointed out that no order giving permission for expert evidence had been made. I also noted that Mr. Mullins’ purported expert reports – both the original and supplemental versions – were not compliant with rule 19 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. The initial report had in fact been produced at the time of the original application, and over a year before the matter was referred to this Tribunal.[51]On further examination of the case file, however, I noted that the Applicants – who had represented themselves throughout – had previously sought permission from the Tribunal for expert evidence, but that for whatever reason that application had not been determined and the matter had not been pursued.[52]I therefore decided, orally at the hearing, to give permission for such evidence, and for Mr. Mullins to give oral evidence, on condition that he undertook subsequently to re-file his reports in a form compliant with rule 19, having confirmed that he understood the duties of an expert to the Tribunal as set out in that rule. While not wholly satisfactory, I considered that it was in the interest of the overriding objective, of dealing with cases justly, that I considered such relevant evidence as Mr. Mullins could give. The Respondents had seen his reports and were not therefore surprised by their contents at the hearing.I record here that the Applicants did subsequently file compliant versions of Mr. Mullins’ reports.The Applicants’ case on the exact boundary? The application plan[53]As the earlier quoted extracts from Land Registration Rules 2003 rule 118 and Farrow v. Boag should make clear, it is not enough for an applicant simply to produce an LR PG 40-compliant plan, and rely on a surveyor then drawing a line on it and saying ‘that is the boundary’. An applicant for a determined boundary must put forward and establish some case as to why, as a matter of law and evidence, the exact boundary lies in that position.[54]Nor is it the function of surveyors, although many of them appear (in the experience of this Tribunal) to believe otherwise, to pronounce an “expert” opinion on where the legal boundary lies. That is the ultimate legal issue for the Tribunal or Court to resolve. The function of a surveyor in such disputes, and certainly in determined boundary applications, is principally to produce a sufficiently detailed and LR PG 40-compliant plan on which the Applicants’ legal case as to the exact boundary can then be depicted. It might even be observed that beyond producing a plan, and perhaps giving evidence as to scaling on the ground of measurements derived from conveyance plans, in cases involving such evidence, there is little need or role for “expert surveying evidence” in many boundary cases. An applicant needs a positive legal case on the location, and (in a DB application) exact position of the boundary, much more than they need expert evidence.[55]With these points in mind, I considered the reports and oral evidence of Mr. Mullins with care, but also some concern.[56]My first concern lay in the origins of the red lines he had drawn as A-B-C on what became the application plan. He was clear, in his first report, that in producing his own boundary survey he had drawn heavily on a “measured survey” carried out in June 2020 by the Meon Survey Partnership. He expressed himself satisfied with its measurements and location of present features, and used it to “form the basis” of his own survey, stating that his own plan “..shows the physical features as they existed on 1st October 2021. It is essentially the Meon Survey Partnership’s 2020 survey, which is itself a combination of measured survey and the latest Ordnance Survey (OS) digital mapping. Key points are labelled A to G to assist explanation and description.”[57]Those points included points A-B-C which would become the basis of the DB application. But how were these points actually arrived at, and placed on this plan to produce those lines? The Meon Survey Partnership’s own commentary on their 2020 survey was quite clear about what they had done.[58]They had simply taken the filed plans of registered titles, showing general boundaries only, and then overlaid them on their survey plan of the land at it was as present. They actually said so on pages 2 and 3 of their “methodology” report, after a detailed explanation of their technical production of the survey plan:“The next steps was to align the PDF Land Registry documents, which although digital and compatible with Autocad, had to be scaled many times to facilitate a fit with the survey base plan. This,as noted below, caused significant pixillation of the documents which left some line work open to interpretation. Once a best mean fit was achieved, and was independently checked by a colleague, the general boundaries depicted on the PDF files could be traced and added to the base survey plan.” [my emphasis].[59]What Mr. Mullins eventually produced, although he made some amendments and additions to it, was essentially the product of the same exercise of overlaying title filed plans on a survey plan. His purported exact boundary points were in the same location as those produced by Meon on their 2020 plan by the above method. The only title documents he looked at in producing his report were title filed plans, and in addition the 2016 transfer of “Site B” referred to above.[60]Most surprisingly, although he refers to its existence in passing at paragraph 7.4 of his report, he does not attempt any analysis of the 2002 conveyance. In oral evidence, Mr. Mullins confirmed that he had seen this conveyance after it was disclosed in the evidence supporting the objection in September 2022, but he had not considered it necessary to revisit his previous conclusions in the light of its contents.[61]As will be set out further below, if not already obvious, that is the key “originating” conveyance in this case, which created the legal boundary now in issue. Mr. Mullins instead devoted much of section 7 of his report to speculation about the change in vegetation shown by aerial photographs, noting the consistent position of the fence, but then doubting that it could mark the boundary, preferring instead the position derived from the “title plans” (paragraphs 7.11 and 7.12) and making an argument based on the 2016 conveyance of site B, some 14 years after the legal boundary was first created.[62]His ultimate conclusion and reasoning was summed up in his “Conclusions”:“8.1 The existing fence line between points D and F on the Boundary Survey Plan is not the eastern boundary of Title WSX4170488.2 The title plans and the transfer plans, from which they were derived, provide the best available indications of the position of the eastern boundary of Title WSX4170488.3 An overlay of the title plans for WSX417048 and WSX373739 results in the red line on the Boundary Survey Plan.8.4 The red line on the Boundary Survey Plan thus represents the true position of the boundary of Title WSX417048.” [my emphasis][63]With due respect to Mr. Mullins, and the surveyor from Meon Surveys who preceded him – as a method of determining even the location of a legal boundary, let alone an exact boundary for the purposes of section 60 LRA 2002, this is a wholly inadequate basis for determining an exact boundary.[64]Although he refers in passing to the general boundaries principle in his reports, I do not consider that Mr. Mullins fully understood it, or its implications in a determined boundary application. The filed plan of a registered title, since it shows only general boundaries, is not a guarantee of title to any specific extent of land shown as being within it. Such a title plan cannot therefore be deployed to resolve a boundary dispute, which must be resolved on consideration of the underlying conveyancing documents, properly construed.[65]That was true under the Land Registration Act and Rules of 1925 (and see e.g. Lee v. Barry [1957] Ch. 251, per Lord Evershed MR at p261-2) and remains the position now. In Drake v. Fripp [2011] EWCA 1279, referred to by HM Land Registry in the extract from PG 40, supplement 3 quoted above, it was common ground that the existing title filed plan showed the ultimately unsuccessful party as the proprietor of a strip of some 1.5 acres (the difference between a fence and a Cornish hedge being the relevant boundary). On the true construction of the underlying conveyance, the fence was the boundary. Further, alteration of the filed plan to show a more accurate general boundary, consequent upon that finding, was not “rectification” because on the correct analysis, the registered proprietor had never owned that 1.5 acres in the first place, even though his filed plan appeared to show, and led him to believe, that he did.[66]In the specific context of section 60 LRA 2002 and a determined boundary application under LRR 2003 r. 118 and following, by definition the depicted location of a general boundary shown on a filed plan cannot therefore be used to determine the exact location of a boundary. Yet that is in effect what Mr. Mullins and his predecessor, and the Applicants by adopting the resulting line as the basis of their application, have done.[67]For that reason alone, I consider that this determined boundary application cannot succeed. The line contended for was not based on any reasoned analysis derived from the creation of the legal boundary in 2002, but is essentially an overlay of filed plans on an up to date land survey. That is not good enough, in this or in any such application.The location of the boundary[68]Since i) this issue formed a major part of the case ii) both parties made submissions on it, and the Applicants (through counsel) expressly invited me to decide it in determining the application and iii) in case of any appeal on the above, narrower ground for rejection of the application; I consider it necessary in dealing with this matter to decide the underlying issue of the location of the disputed boundary.[69]Prior to 31st October 2002, Dennis Chamberlain owned all of the land currently subject to this dispute, as parts of a single unregistered title. The transfer of that date divided those lands for the first time, and generated first registration of Mr. and Mrs. Ostler-Harris’s new title WSX 288099.[70]Both of the Applicants’ titles – WSX 387234 and WSX 417048 – were carved out as parts of that original title WSX 288099. The Applicants cannot therefore have acquired within those titles any greater extent of land than was originally conveyed to Mr. and Mrs. Ostler-Harris in 2002.[71]The conveyance of 31st October 2002 is therefore the critical “originating” or “dividing” conveyance, construction of which determines i) what land was then conveyed to Mr. and Mrs. Ostler-Harris, and ii) what land was retained by Dennis Chamberlain.Legal principles[72]The correct approach to construing a conveyance has been set out many times by the courts, and this Tribunal, in a number of cases. One starts with the words or “parcels clause” used to described what is being transferred. There may be some cases where those words are so clear and specific that they are sufficient to identify the land either without recourse to an attached plan, or so as to override and prevail over any different depiction on such a plan, whether because of the detail of the description, acreage measurements or some other description: see e.g. Dunlop v. Romanoff [2023] UKUT 0200 (LC).[73]In other cases, the words will refer (and defer) to the plan as the “dominant description”, so that one then looks to the plan to see if the boundary can be ascertained clearly. This would be the approach where the words refer to the land being conveyed as being e.g. “shown” or “more particularly delineated” or “defined” on the plan.[74]If the plan referred to is then sufficiently clear and unambiguous to provide an answer, it may be that the search ends there, so that no extrinsic evidence- including even the presence of physical features – is even admissible to contradict that answer. In Beale v. Harvey [2004] 2 P&CR 18 (CA), it was held that the boundary had been sufficiently and clearly depicted by a “single straight line” at right angles to adjacent buildings, which was not displaced as the boundary by the subsequent erection of a fence in a different position.[75]Where neither the words nor the plan can provide a definitive answer, it is then necessary to construe the conveyance in the light of available extrinsic evidence of the circumstances on the ground at the time: see Pennock v Hodgson [2010] EWCA Civ. 873, in which Mummery LJ summarised the approach as follows:
“(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.(2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.(3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.”
In a well-known and much-cited passage, he added“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…”[76]This exercise is an objective one of construction of the relevant document: what would the reasonable person, ‘plan in hand’, have thought they were buying? Evidence of the subjective intentions or beliefs of the parties to it is therefore irrelevant and indeed inadmissible: see e.g. Cameron v Boggiano [2012] EWCA Civ. 157, per Rimer LJ at paragraph 114:ii) [where the plan is not sufficiently clear] “….the court can, and in my view must, have regard to all admissible evidence with a view to elucidating the true sense of the transfer. Such evidence will not of course include the parties' prior negotiations or their expressed subjective intentions as to the land to be transferred [see also per Mummery LJ at paragraph 52:
“I agree that evidence of the subjective intentions of the parties, of the pre-contract negotiations between the parties and of the existence of other plans, such as Plan B and Plan C, are not available for the construction of the title documents.”]… It will, however, include a consideration of the topography of the relevant land at the time of the transfer. Recourse can be had to such evidence not for the purpose of contradicting Plan A but for the purpose of elucidating the true sense of its uncertain elements, in particular the line of the northern boundary. The court's interpretation is ultimately guided by the answer that the reasonable man, armed with the relevant material, would give to the relevant question.”
[77]While the subjective intentions of the parties to the original conveyance are in themselves inadmissible as an aid to construction, there is some authority that the subsequent conduct of parties and their successors may be admissible extrinsic evidence if it tends to suggest acceptance of a particular boundary. In Ali v. Lane [2006] EWCA Civ 1532, Carnwath LJ said thati) if the conveyance is inconclusive, the court or tribunal must in such circumstances “make use of all the help it can get, from extrinsic evidence” ([27]: this is actually a quotation from Robert Walker LJ in Hillman v. Rogers, 1987, unreported); ii) this may include the conduct of subsequent parties “if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary … [but the] unilateral actions of the owner of one side … could not be relied on as binding on the owner of the other.” [38].Application of principles to facts of this case[78]I consider that application of those principles to the facts of this case yields a reasonably clear answer, for several reasons.[79]First, the conveyance in this case stated that the land conveyed was “defined on the attached plan and shown edged red”. There were no other words of description or measurement. The conveyance therefore deferred to the plan as the “dominant description”.[80]When one then looks at that plan, what one sees is a straight line which skirts or touches the southern corner of a then existing physical feature, known to be the “Green Barn” which stood in that location until about 2019, before it kinks to the north-east at the boundary of the ‘panhandle’ shape. I reproduce below a cropped and magnified extract from figure 4 (the conveyance plan):-[81]I consider that this comes close to cases such as Beale v. Harvey, referred to above, in which the plan was the defining description, and its straight line depiction of a boundary relative to an existing building was sufficiently clear to locate the boundary.[82]Because, however, of potential uncertainty arising from the thickness of the red line used, or the angle of the line as it passes or touches that building, I consider it necessary or at least wise to have recourse to extrinsic evidence of the position on the ground at the time, and then to ask the question – what would the reasonable purchaser, plan in hand, have thought s/he was purchasing?[83]I am entitled in this regard to consider the evidence of Mr. Ostler-Harris, not as to what he subjectively believed, but what was actually done prior to the transfer; and so what the physical position on the ground was by the time of that transfer.[84]His oral evidence was that, to reflect the boundary as he understood it was agreed, three posts were inserted in the ground between the land being conveyed and the land retained. He was not clear about precisely who placed them in the ground (whether him or a contractor), but he was clear that they were inserted at points on the line which then became (after the transfer) the fence line. He was equally clear that the post and wire fence, which was erected immediately after the purchase, incorporated the line of those posts. That fence line has remained in the same position ever since.[85]Despite vigorous challenges being made to the honesty and integrity of Mr. Ostler-Harris, and the suggestion being made that he was “conspiring” with the Respondents to deprive the Applicants of land, I found him an honest – if at times somewhat testy and impatient – witness on this and other matters. He clearly resented the allegations being made against him, and at times sought to argue with counsel or anticipate her questions, but his evidence on what he did at this time was clear. He (or other on his instructions) inserted the posts prior to the transfer, and indeed prior to the final drawing of the transfer plan. He said that the plan was then drawn up on the basis of the positions of the posts, although they are not identified on that plan. He said that Dennis Chamberlain “saw no problem” with this, but disregarding that as evidence of subjective belief or intention, I find that the posts thus inserted were in any event not moved prior to the transfer.[86]That being so, as a matter of the physical features on the date of the conveyance, I consider that a reasonable person with ‘plan in hand’ on that date would plainly have understood that s/he was purchasing up to the line denoted by those posts, but no further. That view would have been fortified by looking at the ‘plan in hand’ and seeing that this line passed very close to the southern corner of the Green Barn. The position of the fence posts later erected on that line, relative to the Green Barn, has been illustrated above in Figures 6 and 10.[87]The Applicants, in their Statement of Case and closing submissions, sought to develop an argument that the reasonable person in 2002 would have concluded that the intended boundary was the “vegetation change” visible in the 2001 Google Earth photograph (Figure 5 above, leading west to a “150 year old oak tree” which lies on Council land adjacent to the highway Ratham Lane. This was not the basis of their original determined boundary application, which resulted from the process described above, in which Mr. Mullins did not even consider the 2002 conveyance and its plan. This submission was therefore something of a subsequent rationalisation of the line already produced by overlaying the title filed plans.[88]I do not however consider that the reasonable person would have concluded that they were, in addition to the land with the farm buildings on it, also buying such a strip of land. The more likely view of such a strip was that it formed the uncultivated margin or verge of the ploughed field, and would be retained along with the rest of the field to facilitate access to and use of that field. The contrary view contended for by the Applicants would have entitled the Ostler-Harrises to erect a new fence up to the very edge of the ploughed extent, leaving literally no room for manoeuvre at that end of the field.[89]Nor do I consider that the reasonable person would have looked to the west, identified an oak tree beside the highway on third party land, and considered it to be an intended boundary feature between the conveyed and retained land of Mr. Chamberlain. The reasonable person, as stated, would have looked at the ‘plan in hand’ and considered that the intended boundary ran very close to or even touched the southern corner of the Green Barn; not that, contrary to that depiction, it ran some 30-40 feet to the south of that building, to a tree not marked on the plan, so as to add such a substantial strip to the land being conveyed.[90]My finding that the posts were erected prior to the conveyance, however, is the strongest indication of what a reasonable person on the date of the conveyance would have considered s/he was purchasing. I consider that this is fortified, in case there were in any doubt, by the subsequent conduct and actions of the relevant parties on the ground for the next 18 years.[91]As has been stated, it is not in dispute that shortly after the conveyance, a post and wire fence was erected in the location in which it has stood ever since; subject only to the replacement of the western section of it with close boarded fencing in 2017. Mr. Ostler-Harris, the Respondents and all of their other witnesses confirmed this in evidence. Mr. Dennis Chamberlain died in 2013, but there is no evidence that he ever had any dispute with the Ostler-Harrises over the position of the fence or ownership of this land. The same is true of the Respondents since their succession to ownership of the field in 2015.[92]Some effort was made in cross-examination to put to Mr. Ostler-Harris that he had in some way behaved as if he owned the strip of land south of the fence, despite the presence of that fence. It was put to him that there had been a gate in the fence, through which he had passed and repassed on to the strip. He explained this, in my view entirely straightforwardly, as a simple matter of access, and occasional passing and repassing, with the permission of Dennis Chamberlain. He used to visit and assist the ageing Mr. Chamberlain at Tryways Farm house just to the north, and this was a convenient route to take. These (or any use of this route for visits to his alpacas, kept for a time on land further north) were acts of permissive use or access, not assumed ownership.[93]The Applicants, supported in this respect by the supplementary report of Mr. Mullins, sought to make something of the fact that in the farm business tenancy granted by Dennis Chamberlain to Heaver Farms Limited in 2012 – so some 10 years after the relevant transfer – the demised parcels were defined by reference to acreage, with what remained of the original OS 1267 described as containing 7.23 acres, with the land on the other side of the boundary (conveyed away in 2002) described as containing 1.40 acres, an area measurement which Mr. Mullins said matched his own measurements of the totality of the land now in those parcels as claimed by the Applicants (shown yellow on a further plan he produced).[94]Such an argument might have had more force if such acreage measurements had been used in the critical 2002 conveyance itself (see Dunlop v. Romanoff, supra; although cf. Drake v. Fripp, above), but they were not. The fact that the owner who conveyed the land away inserted such measurements 10 years later, in a tenancy granted to a third party, at a time when the fence had been in place for almost the whole of that 10 years, is no or at best negligibly weak evidence of “subsequent conduct” treating the boundary as being in the location now contended for by the Applicants. In fact, if the test for construing a conveyance (which includes a lease of land) were applied to this tenancy, it is hard to resist the conclusion that the reasonable lessee, plan in hand, would have assumed that what they were leasing was a field going up to a by then established fence; rather than engaging in a surveying or measuring exercise to determine where 7.23 acres began and ended.[95]In every other respect, and so far as subsequent conduct is relevant and admissible as extrinsic evidence, I consider that the evidence is all one way. The Respondents, who visited the First Respondent’s father frequently prior to his death, the Ostler-Harrises and all other witnesses largely speak with one voice. The fence has been there since 2002, and all parties have always assumed that and acted as it was the boundary. That was Mr. Ostler-Harris’s own belief and view, as contemporaneously recorded in the emails set out above, right up to the point of sale to the Applicants in 2020.Consequences of the above construction of the 2002 conveyance[96]I consider that what has actually happened in this case and generated the dispute, once one considers the evidence and the various plans set out above, is unfortunate but now relatively easy to see.[97]I consider that Mr. Ostler-Harris was essentially correct in what appears to have been his initial reaction in 2020 to the “additional land” issue raised by the Applicants – namely, that this arose from a mapping discrepancy in the filed plan of title WSX 268099 at the Land Registry.[98]That filed plan showed general boundaries only, so whatever it appeared to depict, it could not merely by dint of such depiction confer title to additional land where none existed. As I have found, the land actually conveyed by the 2002 conveyance was bounded by a straight line running close to the southern corner of the Green Barn, a line very shortly afterwards delineated by the fencing. As stated, there is no evidence that the Land Registry based their first registration of title on anything other than that conveyance. Yet as already illustrated above, what they then depicted on the filed plan appeared to differ significantly from the conveyance plan. They depicted a considerable gap between the Green Barn and the red line on the filed plan, whereas on the conveyance plan there was no such gap. It was this discrepancy which then generated an apparent southern ‘wedge’ of land within that registered title.[99]I consider it entirely clear that in 2016, when the Ostler-Harrises transferred part of their title to Greenlands Two Limited by the TP1 of 22nd December 2016, in anticipation of the development of that and the other plot, they considered that they were transferring the entirety of their title in that location, bounded by the fence as the boundary feature of the whole. The plan attached to that TP1, like the 2002 transfer before it, showed the boundary of the land conveyed virtually touching the southern corner of the green barn. The difference by then was that the fence was now in place, and was marked as an existing boundary feature with T-marks associated with a repairing covenant.[100]For the reasons set out above, it follows that they did in fact convey all the land they owned in that location, since they did not in fact own any land to the south of the fence.[101]I wholly accept Mr. Ostler-Harris’s evidence that it did not therefore cross his mind, after this transfer of part, to inspect the various Land Registry titles and filed plans resulting from the various transfers. He quite reasonably assumed that he and his wife had completed all the transfers of part required. As I have found above, and as he reported to the Applicants via his solicitors in 2020, it came as news to him and his wife to discover that they had apparently retained some other strip of land not previously transferred out of the whole.[102]What is unfortunate, and the probable cause of the present dispute, are what I find were the contrasting subjective beliefs of i) the Applicants and ii) Mr. Ostler-Smith as to exactly what the Ostlers-Smith were transferring to the Applicants by the second transfer showing the blue ‘wedge’ forming part of WSX 268099.[103]I can quite believe that the Applicants – who had made their offer of £450,000 for the plot on the understanding that they were only buying up to the fence – now thought that they were acquiring, for £1, an additional wedge of land beyond that fence. They considered, and still do, that this might be useful for them as additional space or amenity land. They looked at the way in which it was depicted on the filed plan, and assumed that this must form a substantial area lying entirely south of the fence.[104]Although neither party has disclosed their conveyancing file, and Mr. Ostler-Smith referred to apparent communications with his solicitors which were not in evidence, I can likewise believe and accept his evidence that he still – subjectively – believed that the fence was the boundary, and that he did not own any land south of that fence to be conveyed to the Applicants. I have not seen any communication in which the additional land to be conveyed is identified expressly in terms as land lying to the south of the fence. I find that, as he suggested in oral evidence, he probably went ahead with the additional conveyance of land with some misgivings as to the uncertainty over exactly what was being conveyed.[105]Be this as it may, those parties’ subjective beliefs as to what was being conveyed are essentially irrelevant. The Ostler-Smiths could only convey such title to any residual land in WSX 268099 as they actually had, and so that is all that they in fact did convey – whatever they or the Applicants believed. The filed plan of the residual title, like the original version, showed only general boundaries. It was not therefore an exact depiction of a specific parcel of land. The Applicants received only that residual title with general boundaries, such as it was and whatever it was. They therefore took the risk that the exact boundaries of that title on the ground were not as they appeared from this depiction.[106]On my analysis above, the residual ‘wedge’ of land now in title WSX 417048 may in fact effectively be a ‘phantom’ title, to the extent that it appears to contain land which was not in fact part of the original conveyance in 2002. The same would be true of two adjacent titles, WSX 419347 and WSX 419346, which appear as strips to the south of the adjacent properties now owned by different owners, and in respect of which the Respondents reached agreement to purchase with those owners in 2020 for £1 in each case. The fact of those titles’ existence, and the agreement reached by the Respondents in that regard, does not detract from the above analysis, and is in fact consistent with it. The Respondents’ oral evidence was that they considered that these transfers were essentially a correction of the original Land Registry mis-mapping, to give them back land which was already theirs.[107]Although title WSX 417048 may in substance be wholly ‘phantom’, at present it still exists, and as a matter of depiction (subject to the general boundaries rule) appears to show a very thin wedge of land lying between the fence (which is shown as a solid feature marked black) and the northern extent of the red edging (see Figure 1 above). On my finding that the fence line denotes the boundary of the land originally conveyed in 2002, that would leave this small area as the residual content of title WSX 417048.[108]My view is that this would still be an incorrect depiction. As found above, the 2016 transfer of part which created title WSX 387234 transferred everything north of the fence, which would have left nothing within the then residual title WSX 268099.[109]Since, however, i) that would now be a matter of the exact boundary between the titles WSX 387234 and WSX 417048, both owned by the Applicants ii) no application has yet been made to alter or close the latter title and iii) the only application before me is the determined boundary application as made, it is sufficient for present purposes simply to direct cancellation of that application.[110]It is a matter for the parties whether they wish to make any subsequent applications to HM Land Registry on the basis of the findings I have made – whether for alteration of titles to show more accurate general boundaries, or for outright closure of any titles. I consider that my findings on the location of the boundary as set out above form part of the reasons for rejection of the Applicants’ application, and so resolve that issue as between these parties, creating an ‘issue estoppel’ between them as in Witt v. Woodhead (above). If either party wishes to argue otherwise in another application or forum, that would be a matter for them on independent advice. I would urge both parties, however, to put their past differences and dispute behind them and seek to co-exist peacefully.Conclusion[111]I will therefore direct the Chief Land Registrar to cancel the Applicants’ application. Any representations as to liability for the costs of these proceedings, including potentially ‘litigant in person’ costs at the rate of £19 per hour, should be made by the date stated in the order. Judge Ewan Paton Dated this 15th day of August 2024 By Order of The Tribunal

Cited in 1 later judgment