Dr Adrian Eric Searle & Ors v Kenneth McDonald Wood [2026] UKFTT 1025 (PC)

[2026] UKFTT 01025 (PC)
Between
DR ADRIAN ERIC SEARLEApplicantMRS SUSAN ANNE SEARLEApplicantDR EMMA CHARLOTTE SEARLEApplicantKENNETH MCDONALD WOODRespondent
PROPERTY CHAMBER, LAND REGISTRATION
Property Address: 14 FORD, DARTMOUTH, TQ6 9DTTitle No: DN590727Hearing on 24 th June 2026Before: Judge MuirSitting at Plymouth Magistrates CourtDECISIONDate 2026-07-07

Introduction

[1]The Applicants own a flat known as 14 Ford in the pretty town of Dartmouth. Behind their flat there is an area of garden (“the Garden”) which is registered at H M Land Registry under title no. DN590727. The Garden is accessed via a bridge leading from the Searles’ flat over an unregistered passageway. A dispute has arisen as to the exact location of the boundaries of the Garden and this is the Applicants’ application for a determined boundary of the northern and eastern boundaries of the Garden.[2]Mr Wood, the Respondent, is the owner of 18 Ford which lies a few doors to the west of No. 14. Mr. Wood also owns title no. DN183310 which is a garden area which lies behind his house then extends east behind nos. 12- 17 Ford and beyond. Part of Mr. Wood’s garden runs behind the Garden. At this point it is very narrow and, in parts overgrown, which makes access from the western side of Mr. Wood’s garden to the eastern side near impossible.[3]Both parties are litigants in person. Dr Searle spoke on behalf of all the Applicants and Mr. Wood represented himself. Neither party provide witness statements of their own evidence or presented any expert evidence. The Applicants relied on two witness statements from Mrs Warnes, the previous owner of the Garden but Mrs. Warnes was not called to give oral evidence. The hearing was therefore conducted on a relatively informal basis and I am grateful to both parties for their assistance.[4]The Searles’ case is that the legal boundary of the Garden coincides with the wooden fence which was erected shortly before the Garden was first sold off, on 1st July 2009. Mr. Wood accepts that the fence was erected on or around 1st July 2009 and that it has not moved since. Accordingly, it is common ground that the wooden fence has been in the same location for 17 years. The Searles have not made any application for title by adverse possession although Dr. Searle indicated that they would do so if this application is unsuccessful.[5]The location of the fence is shown in red on the plan prepared for the purposes of this application by Prism Measured Surveys in December 2024 (“the DBA Plan”) and copied below. The southern fence is shown as sitting on top of the northern side of the retaining wall between the Garden and the unregistered passageway. - the DBA Plan.[6]Mr. Wood does not take issue with any of the measurements on the DBA Plan. However, his case is that these measurements are irrelevant because the boundary is not determined by the fences but by the plan attached to the transfer (“the Transfer Plan”) which created it which was a Transfer of Part made between Journeyman Carpentry Limited(1) and Jason James Warnes and Laura Claire Warnes(2) dated 1st July 2009 (“the Transfer”). The copy of the plan attached to that TP1 is illegible but both parties accepted that it would have been the same as the plan attached to a DS3 made on the same date and copied below. - The Transfer Plan.[7]Mr. Wood says that the rectangle shown on the Transfer Plan does not extend as far north or as far east as the fence. Using a scale caliper on the Transfer Plan, he produced the following comparison plan showing where the boundary lies on the ground (“Mr. Wood’s Plan”). - Mr. Wood’s Plan[8]The Searles’ surveyor did a similar comparison exercise albeit, he scaled up from the Land Registry title plan rather than the Transfer plan (“the Prism Comparison Plan”). The fence line is shown in blue on the north, west and eastern sides. However, for some reason which is not explained, Prism have used the southern edge of the retaining wall between the Garden and the unregistered passageway as the “line of fence” boundary on the Prism Comparison Plan rather than the timber fence line which they used on DBA Plan.[9]The scaled-up Land Registry Title Plan is shown in red with the southern boundary again aligned with the southern side of the wall rather than the fence. The boundary derived from the land registry plan lies 1.454 m to the south of the fence line in the west and 2.046 m to the south of the fence line in the east. The “blue” boundary is a rectangle whereas the physical plot marked by the fences and the retaining wall is considerably longer on its eastern side and its northern boundary is not a straight line because it “kinks” to follow the line of the “top of wall”.[10]Both the Transfer Plan and the land registry plans, show the Garden as lying behind 14, 13 and about half of 12 Ford (it may be that No. 12 and No 13 are now a single property but I shall refer to the property to the south-east of the Garden as No. 12 for ease of reference). The DBA plan shows the outline of the other properties in Ford in faint red and illustrates the Garden, as fenced, as extending behind almost the whole of No. 12. On the Prism Comparison Plan, the land registry plan boundary is also shown as extending as far as the eastern fence line. No expert evidence was called by either party, so this difference between the land registry plan and the comparison plan was not explained. - the Prism Comparison Plan.[11]Both the land registry plan for the Applicants’ Garden and the land registry plan for Mr. Wood’s title no. DN1833310 (copied below) show the distance between the northern boundary of the Garden and the northern boundary of Mr. Wood’s plot as being approximately the same as the distance between the southern boundary and the northern boundary of the Garden. By contrast the Transfer Plan shows the distance between the parties’ respective northern boundaries as being approximately half the distance between the southern and northern boundaries of the Garden.[12]The location of the northern boundary (scaled up from the Transfer Plan) on Mr. Wood’s Plan is to the north of the line shown on the Prism Comparison Plan (which was scaled up from the land registry title plan). However, it is clear that in both cases, the line does not coincide with the boundary fence. The issue in summary is, therefore, whether the legal boundary is determined by the fence or by the line on the Transfer Plan.

The Application

[13]The Application refers to the Land Registry Plan and the Applicants state that the scale of 1:1250 on that plan is inadequate to show the boundaries accurately enough to avoid confusion. The Applicants rely on the general boundaries rule in support of their claim that the boundary is marked by the fences.[14]The general boundaries rule is contained in s. 60 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. . . “[15]There appeared to be some confusion on the part of the Applicants as to the effect of the general boundaries rule. The relevant boundaries were “created” by the first transfer whereby the Garden was sold-off from the larger plot of which it formed part. In this case, the boundaries were created by the Transfer. The title created by the Transfer was then registered at H M Land Registry and a registered title plan was drawn up by the Land Registry from the Transfer Plan. Section 60 (1) and the general boundaries rule are not concerned with the Transfer Plan but only with the registered title plan.[16]The Applicants have not disclosed the instructions which were given to Prism. However, it emerged during the hearing that Prism had not been provided with a copy of the Transfer or the Transfer Plan and had not been asked to opine on the location of the legal boundary. Instead, Prism had simply been asked to produce a plan showing the location of the physical boundary created by the fences.[17]As mentioned above, the Application does not include a claim that title has been acquired by adverse possession. Nor was it any part of the Applicants’ case that any boundary agreement existed or that the Transfer Plan ought to be rectified to match the fencing. The only issue for this Tribunal is, therefore, whether boundaries created by the Transfer Plan can be determined as those shown on the DBA Plan.

History

[18]Until 1st July 2009, the whole of the garden area (shown edged red on the title plan for Title No. DN183310 copied below) which is to the north of the unregistered passageway, was owned by Journeyman Carpentry Ltd, a company run by a Mr. Thoroughgood. Both parties believed that the company had purchased the garden land with a view to developing it but, when it failed to obtain planning permission, Mr. Thoroughgood decided to sell bits of the land off.[19]The first parcel of land to be sold off was the Garden. The Applicants have disclosed part of the estate agents’ particulars which related to this sale. Those particulars refer to a “Recently converted 2 bedroom duplex Apartment” and show a photograph of the Garden. It is not known whether Mr. Thoroughgood or Journeyman Carpentry Limited owned 14 Ford as well as the Garden or whether either had perhaps done some sort of deal with the vendor whereby the Garden could be included in the sale.[20]The photograph on the estate agents’ particulars shows the Garden to have already been developed in much the same way as it appears today with ornamental walls, flower beds and paths. However, the fencing along the southern boundary is a fairly flimsy looking trellis fence on top of the retaining wall which forms the edge of the unregistered passageway between the Garden and Ford. No other fencing is apparent nor is there a shed. Dr Searle believed this photograph was taken in the Spring of 2009.[21]On 1st July 2009, Journeyman Carpentry Ltd transferred the Garden to Mr and Mrs. Warnes. At Paragraph 3 of the Transfer the Property being transferred is described as:
“Land at Ford, Dartmouth The property is identified on the attached plan and shown edged red”
The property is identified on the attached plan and shown edged red”[22]There is no further verbal description of the land. The plan is the Transfer Plan copied above. It contains no annotations other than “Scale 1:500” which is in dark ink and appears to have been added onto a pre-existing photocopy. As a TP1 is a standard form generally produced on A4 paper, it is reasonable to assume that the Transfer Plan was also A4 sized. In the absence of any written description of the land, the Transfer Plan is the only means of identifying the plot. Neither party provided any evidence as to what the Transfer Plan was based on, for example, no evidence of Ordnance Survey plans was produced. It was not suggested by either party that the Transfer Plan was not to a scale of 1:500. However, some of the proportions on the Transfer Plan do not appear to tally with the proportions on the Land Registry plan. For example, No. 10 Ford, which I believe is called Lily Cottage, is a completely different shape on the land registry plan when compared to the Transfer Plan.[23]The Searles obtained two witness statements from Mrs Warnes, one of the original purchasers of the Garden. Mrs Warnes was not called to give evidence so it is a matter for the Tribunal as to how much weight should be given to her witness evidence. Mrs Warnes says in her first statement that when she and her husband purchased the Garden, the fences and hedges that divided it from the land that was still in the ownership of Journeyman Carpentry under Title No. DN183310 had already been erected by David Thoroughgood or his representatives.[24]This does not correspond with the photograph of the Garden in the sales particulars which does not show any of the current fences. In her second witness statement, Mrs Warnes clarified that at the time of viewing the property in Spring 2009, the Garden was not fenced other than with a flimsy fence to the southern border as shown in the Estate Agent’s Particulars. She went on to state that the Garden had been fenced off by Mr. Thoroughgood or his contractors with substantial board fencing as part of the separation of the two plots. Mrs Warnes said: “We have no doubt that the fencing was erected to delineate the official boundary between DN590727 (No. 14 Garden) and the remaining land”.[25]Mrs. Warnes exhibits some photographs taken in the summer of 2009 showing the fencing in the locations it exists in now and a shed which has also been installed after the Estate Agent’s Particulars photograph. Mrs Warnes did not suggest that she asked Mr. Thoroughgood to fence the Garden or that there was any discussion about the boundaries. Mrs. Warnes does not comment on whether the fencing and shed were erected before or after exchange of contracts. However, Mr. Wood accepts that this fencing was probably erected by Mr. Thoroughgood and that it has not been moved since July 2009.[26]Mrs. Warnes claims, in her second witness statement, that Mr. Thoroughgood accessed his retained land “from his larger plot that he continued to own,and accessed via other routes…”. Neither party was able to identify any other route from which it would be possible to access the retained land to the east of the Garden.[27]On 15th January 2010, Journeymen Carpentry Ltd sold off a second garden plot, this time behind 15 Ford (“No. 15’s Garden”). The TP1 again states that the property is identified on the plan attached to the TP1 shown edged red. This plot is also rectangular. It is approximately the same size as the Garden but the rectangle is the other way up. The southern boundary of No. 15’s Garden runs in line with the southern boundary of the Garden along the northern side of the unregistered passage directly behind No. 15 and 16 Ford. The eastern boundary of No. 15’s Garden runs alongside the western boundary of the Garden but No. 15’s Garden stretches further north than the Garden. Its north-western corner sits slightly to the south of the communal path referred to below. The No.15 garden plot is registered under title no. DN597631.[28]On the ground, the northern boundary of No. 15’s Garden runs almost in line with the northern fence of the Garden whereas on the transfer plan for No. 15’s Garden and the land registry title plan, it is shown as being longer north to south than the Garden.[29]On 29 September 2017, Mr Thoroughgood sold the remainder of the garden land to Mr. Wood. The title plan copied above for Title No. DN13310 shows the two plots which had already been sold off.

On the Ground

[30]The DBA Plan shows, in grey, a retaining wall to the north of the Garden which supports a communal path which is immediately to the north of Mr. Wood’s Title No. DN13310. The communal path is not accessible from Title No. DN13310. The communal path starts at ground level to the west of Mr. Wood’s house and lower garden, then goes eastwards uphill behind Nos. 17, 16, 15 and 14 Ford. There is a very considerable height difference between the Garden and the communal path. Immediately behind the point where No. 15’s Garden meets the Garden, there is a dog leg in the communal path which can be seen on the land registry title plans, on the Transfer Plan and on the ground.[31]Both the Transfer Plan and the land registry plans show the communal path as coming to an end approximately in line with the eastern boundary of the Garden. On the DBA Plan the retaining wall is shown as ending approximately a meter to the west of the eastern fence.[32]To the south of the communal path, there is another path along the northern boundary of Mr. Wood’s land which is shown on the DBA Plan behind No. 15’s Garden and the Garden. The path splits in two just below the dog leg in the communal path. The northern part runs parallel to the communal path and the southern part runs down to the Garden via steps. However, those steps are blocked by the wooden fence on the northern side of the Garden. The steps on Mr. Wood’s side lead nowhere and the steps on the Searles’ side lead nowhere. These steps pre-date the Transfer and would have provided access between the two levels of the original plot.[33]The southern part of Mr. Wood’s path is also blocked by a retaining wall which means that the southern path only runs behind the northern Garden fence for just over half its length. The Law 34, The starting point in determining the location of the boundary is to identify the conveyance by which the boundary was created. In this case, this is the Transfer. The Transfer must then be construed to determine the intention of the parties to the Transfer as to the location of the boundary. As the Transfer contains no verbal description of the boundary, save that the property is identified on the Transfer Plan and shown edged red, the Transfer Plan is taken as defining the land transferred.

The Law

[35]If the plan is sufficiently clear and unambiguous, the search for the location of the boundary ends with the plan. In Beale v Harvey [2003] EWCA Civ 1883, for example, the relevant transfer was of a numbered plot “shown edged red on the Plan being part of the Estate”. The plan was adequate to show that plot and an adjoining plot but the developers had built the fence in the wrong place prior to completion of the sale. As in this case, the question arose as to whether the boundary was determined by the plan or the fence. 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 erection of a fence in a different place. It was necessary to try to relate what the plan shows to the features on the ground. Gibson LJ said:
“28. The dominant description, that is to say the red edging on the plan, must be given its full weight . . .Those accustomed to deal with conveyancing problems know only too well how frequently instructions on a plan are incorrectly carried out and buildings or fences or walls are put up in the wrong place. The difficulties for workmen trying to carry out instructions on a site plan are the greater where, as here, a wall or fence is to be erected on a featureless agricultural field. It would be absurd to attribute to the parties the intention that what was erected, however erroneously, subsequently to the preparation of the plan, should define the boundary, when the immutable feature at all material times of the line of the sides of Phoenix Barn and The Shippen where they joined was shown on the plan as part of the straight boundary line from the estate road to the millstream.”
[36]If neither the words nor the plan can provide a definitive answer as to where the boundary lies, 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 that case, both parties believed that the relevant conveyancing documents gave them title to the bed of a narrow stream. Mummery LJ summarised the approach as follows:(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land. It will be the first conveyance 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. Mummery LJ said:
“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…”
[37]The parties’ actual intentions as to where the boundary should be are not relevant. The issue is what the objective reader of the plan would understand it to mean.[38]The property conveyed in Pennock was shown edged red on the plan attached to the conveyance and was “for the purpose of identification”. It seems to me that the words used in the Transfer -“The property is identified. . .” on the plan have much the same meaning as a plot being shown on a plan “for the purpose of identification”. It is therefore open to me to consider the actual and known physical condition of the relevant land at the date of the conveyance for the purposes of construing the plan. Th extrinsic evidence will include evidence as to the physical features on the ground at the date of the conveyance. Evidence of conduct of the parties and their successors after the date of the conveyance may be looked at subject to it being of probative value as to the intention of the original parties to the conveyance – Ali v. Lane [ 2006] EWCA Civ 1532. That conduct may be the conduct of one only of the parties to the conveyance – Sparling v Norman [2014] EWCA Civ 1152.[39]The Transfer Plan itself does not show any of the physical features of the Garden which were in place at the time of the Transfer. It does not show, for example, the steps at the back, the retaining wall between the Garden and the unregistered passageway at the front or any of the flowerbeds and paths. The Transfer Plan merely shows the Garden as a rectangle.[40]The Transfer Plan does show three rectangular boxes of more-or-less the same depth to the north of the northern boundary of the Garden. The northernmost box appears to represent the communal path. The rear boundary of the Garden on the Transfer Plan is shown to be much nearer to the communal path than it is shown on the registered title plan. On the ground, there is a path forming part of Mr. Wood’s title immediately to the south of the communal path but at a much lower level. The layout on the ground, as shown on the DBA Plan, does not match that shown on the Transfer Plan. Similarly, the bridge leading from 14 Ford to the Garden is shown on the Transfer Plan to sit in line with the western party wall which sits between 14 and 15 Ford whereas, on the ground, the bridge is further to the east.[41]These differences suggest that the Transfer Plan is merely illustrative and may not be exactly to scale.

Discussion and Conclusions

[42]As at the date of the Transfer, the Garden was already fenced with substantial wooden fences. Those fences were erected by the vendor after the Garden was put on the market. Where, as here, the plan is for identification purposes, the key question is what the would-be purchasers on the date of the Transfer with the Transfer Plan in hand would believe they were buying?[43]Mrs. Warnes says, in her witness statement, that she believed that the fence marked the boundary. Mrs. Warnes’ evidence is subjective whereas the issue for this Tribunal is what the objective observer would understand the position to be. At the time of the Transfer, there were no other obvious boundary features on the ground. The line contended for by Mr. Wood, would run diagonally across an ornamental flower bed surrounded by a low brick wall then transect the path which runs along the outside of that flower bed and towards the shed. These features were in place as at the date of the Transfer and are still there today. It seems unlikely that the parties intended this arbitrary line to be the boundary.[44]In my judgment, the objective purchasers would assume that they were buying the fenced area. Although, the Searles did not plead that a boundary agreement was reached between the Warnes and Mr Thoroughgood that the fence would mark the boundary, it is difficult to see what other purpose erecting the fence in this particular location would have had. Similarly, given that there seems to be no dispute that the Warnes and then the Searles had exclusive possession of the Garden up to the fences, it seems to me that Mr. Wood would have had an uphill struggle defeating any adverse possession claim had I declined to determine the boundary. I do not need to decide these issues because, I am satisfied that the parties to the Transfer intended the boundary to be marked by the fence.[45]In reaching my conclusion, I have considered the fact that the Transfer Plan shows the Garden as a rectangle with straight lines on each side whereas the DBA plan shows the eastern boundary as being longer than the western boundary. I have also taken into account the fact that the Transfer Plan shows the northern boundary as being a straight line whereas the DBA Plan shows the fence line kinking to run along the retaining wall. The deviation is approximately 38 cm. which is probably less than the width of the pen marks on the Transfer Plan when scaled up. It seems to me, that these anomalies can be explained by the relative simplicity of the Transfer Plan drawing and the fact that the Transfer Plan does not accurately represent the layout on the ground as at the date of the Transfer. The purpose of the Transfer Plan was to identify the location of the Garden rather than to delineate it. Anyone then looking at the Garden would have understood it to extend to the boundary fences.[46]I shall therefore direct the Registrar to allow the application insofar as it relates to the boundary running along points D-E-F-G-H-I-J.[47]The usual rule is that the unsuccessful party should pay the successful party’s costs of this application from the date the matter was transferred to this Tribunal – 27th March 2025. As neither party was represented, it may be that there are no costs. However, any party who wishes to make an application for costs should file and serve by email(a) written submissions on the principle of who should pay costs and upon what basis and(b) provide a schedule of the costs claimed in or substantially in the form of Court Form N260 on the Tribunal and on the other party by 5 pm on 28th July 2026.[48]If such costs application is served, then the recipient should file and serve by 5 pm on 18th August 2026 their submissions in response.[49]The party applying for costs may then file and serve a brief response by no later than 5 pm on 8th September 2026.[50]The Tribunal will then give its decision on who should pay costs and make any further directions in relation to the determination of those costs. Judge Nicola Muir Dated this 7th July 2026 BY ORDER OF THE TRIBUNAL