Kam Fung Jim v Debra Roberts [2026] UKFTT 296 (PC)

[2026] UKFTT 00296 (PC)

REF/2025/0016

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

Between

Ms KAM FUNG JIMApplicant

LAND Registration act 2002

IN the matter of a reference from hm land registry

DETERMINED BOUNDARY – line along adjoining curved driveways – modern development – departure from planning requirements – relevant features and dimensions – significance of utility for driving and parking – transfer first in time

Between

Ms DEBRA ROBERTSRespondent

Property Addresses:

Between

25 Heol Erw Y Rhos, Caerphilly (CF83 3QX), title number WA695195

23 Heol Erw Y Rhos, Caerphilly (CF83 3QX), title number WA717441

Before: Judge Anthony Verduyn

Sitting at: Cardiff Civil Justice Centre, 2 Park Street, Cardiff CF10 1ET

On: 13 th January 2026

Site view: 12 th January 2026

Representation: Mr Charles Auld of Counsel for Applicant and Mr Phillip Morris of Counsel for the Respondent.

DECISION

Date 2026-02-02

[1]The Applicant is the registered freehold proprietors of 25 Heol Erw Y Rhos, Caerphilly CF83 3QX (“No.25”, registered, title number WA69519529). The Respondent is the registered freehold proprietors of 23 Heol Erw Y Rhos, Caerphilly CF83 3QX (“No.23”, registered title number WA717441). No.25 and No.23 are each two-bedroom semi-detached houses, with their respective driveways and parking spaces separating them. The precise location of the boundary along the driveway is in issue between the parties.

[2]The relevant history is uncontroversial. On 26th March 1992 Eastlake (Bridgend) Ltd (“Eastlake”) obtained planning consent to develop what was known as Phase 7 Pontypandy Caerphilly. The development land was in Eastlake’s title, WA597322. The layout for the development was for a cul-de-sac with limited space for on-road parking, but off-road parking provided for each house using its own driveway: …

[3]On 25th November 1993 Eastlake sold No. 25 to Jarrod Stuart Manson and Nicola Teresa Stephanie Potts. This was the operative conveyance for the creation of the boundary in issue, as No.23 was then retained land of the seller. The transfer referred in its relevant part to:

“the land dwellinghouse and Property … shown edged red on the plan annexed hereto being part of the land comprised in the title above numbered and being plot 49 (Phase II) …”

The signed plan, which bears the legend “PLAN REFERRED TO: for identification purposes only do not scale”, is as follows: 4. Plot 48 on the plan is now No.23. The transfer does not record any rights of way over what was to become No.23. Title to No.25 was registered on 2nd December 1993, but the registered title plan showed dotted lines for the incomplete estate and bore the legend:

“The boundaries shown by dotted lines have been plotted from the transfer plan. The title plan may be updated from later survey information.”

No update has been carried out.

[4]On 27th May 1994 Eastlake sold No. 23 to the Respondent. For all practical purposes, the text of the later transfer was the same as the former for No.25 and the underlying plan appears very similar: 6. Title to No.23 was registered on 22nd June 1994 with a plan showing similar dotted lines to that for No.25’s title and carrying the same legend. The transfer does not disclose any rights of way over No.25.

[5]It was not disputed that these sales of houses were for immediate possession, and they were not sales “off plan” or under construction. The driveway was thus already in situ when No.25 was first sold and it curved to adjoin the highway. The Street View image dated February 2009 appearing in various places in the trial bundle and at various angles, (usefully at page 171) illustrates the arrangement. It should be noted that the properties originally each had grass to the frontage and abutting the kerbstones to the driveway. Part of the grass to No.25 in this image has been replaced by block paving, although the kerbstones appear original (something which was not disputed before me, and I find by comparison with other original driveways in the cul-de-sac). This paving appears to have been laid about 2000 (“No.25’s block paving”, see further below). It is unclear when additional slabbing and loose stones replaced what was a grassy area in front of the house at No.23 and adjoining the kerbstones to the driveway. For ease of reference, and rather crudely, No23’s edge of the driveway will be described as the “northern edge” and No.25’s edge the “southern edge”. The image will be termed the “2009 image” below:

[6]On 17th February 2015 the Applicant purchased No.25 from the original purchasers, Jarrod Stuart Manson and Nicola Teresa Stephanie Potts. She let No.25 out and she did not go into occupation herself.

[7]In or about Summer 2019 hard standing was laid to the front of No.23, square to the house, and replacing some of the paving slabs and loose stone in the 2009 image. It overlaid the northern edge. This is shown on a Google Earth image dated June 2021 (page 172 of the trial bundle):

[8]In circumstances that are irrelevant to the decision to be made by this Tribunal, the occupiers of No.23, which include the Respondent, fell out with the occupiers of No.25. On 11th November 2022, Mr Harding of No.23 instructed Mr Chris Lodge MCIOB of CLC Construction Consultants Ltd (“Mr Lodge”) to prepare plans to locate the boundary in the driveway serving the properties. In January 2023 a fence was erected (“the fence”). The fence was apparently intended to accord with the boundary line identified by Mr Lodge. In its completed form, the fence left insufficient space for a conventional car to pass from the highway to the parking area located to the north side of the house at No.25 without passing over land of 27 Heol Erw Y Rhos (“No.27”, a use for which the Applicant and her tenants currently have permission) and then passing over part of No.25’s block paving. The photograph at page 162 of the trial bundle, dated 18th September 2023, illustrates this fencing arrangement:

[9]The Applicant instructed Mr Rhys Jones MRICS of Ball & Co (“Mr Jones”) to prepare a plan for a determined boundary application, which application followed on 15th November 2023. Objection was taken by the Respondent and the matter referred to the Tribunal on 16th November 2024.

[10]After various directions, the experts’ rival contentions for the location of the boundary appears on an agreed joint plan dated May 2025 at page 227 of the trial bundle (the “agreed plan”, see also below). In the following extract the red line represents the Applicant’s case and the blue line represents the Respondent’s case:

[11]The line of the fence, marked “B – X – X – X – C” crosses the boundary on the Applicant’s case, but does not do so on the Respondent’s case.

[12]I attended a site view the day before the trial. The photograph in paragraph 8 above, from 2023, was fairly representative of the site. Equidistant between the houses there was a narrow channel or gutter, edged by kerbstones similarly to those at the southern edge of the driveway, with the fence located in the middle of the channel. It was uncontroversial that this part of the fence was directly upon the boundary and equally divided the space from each house to the centre line at 2.307 metres, as appears on the agreed plan. This channel represented the only old feature on the driveway at or very close to the boundary in issue. More generally, to the front of the house at No.25 and elsewhere within the cul-de-sac, kerbstones were visibly used to mark the edge of tarmac areas, to separate the highway from the properties and, in the case of No.23 and the conjoined No.21 Heol Erw Y Rhos (“No.21”), the separation of front gardens (in a line continuing the division of the houses). As already noted, the edging that use to separate the driveway of No.23 from its soft landscaped areas was lost in 2019 when hardstanding was installed. The location of the northern edge of the driveway could not be detected visually.

[13]At trial the lay witness evidence was read, but since this mostly related to the history of the falling out between neighbours, it took matters no further. I was able to confirm, however, through the Respondent’s counsel that, as was implied in her statement, she went into occupation of No.23 immediately at purchase. Hence, these were not off-plan sales or sales pending completion of building. The evidence of Mr Hywel Phillips-Jones, a former director of Eastlake, I disregard as no more than going to the apparent unilateral intention of one of the parties to the transfers of No.23 and No.25.

Relevant Law

[14]Both Counsel in closing referred to the familiar case of Pennock v Hodgson

[2010] EWCA Civ 873

, and particularly Mummery LJ’s summary of the law at [9]-[12]:

“9. Alan Wibberley [Alan Wibberley Building Limited v. Insley[1999] 1 WLR 894] supplies the solution. From it the following points can be distilled as pronouncements at the highest judicial level:— (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. “10. The long standing general principles of how to construe a conveyance underpin those points. In Eastwood v. Ashton [1915] AC 900 at 906 Earl Loreburn said in a dispute about title to a small strip of land:— “We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.” “11. Lord Parker said much the same thing in different words (see p. 913). He also said:— “There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence…”

(p. 909) “It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence…” (p. 912) “12. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence

[2003] EWCA Civ 1121

; [2004] 1 P. & C.R. 176 at 187; cf Beale v. Harvey

[2003] EWCA Civ 1883

; [2004] 2P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips

[2003] EWCA Civ 1877

at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. Neilson v. Poole (1969) 20 P. &C.R 909; Wigginton & Milner v. Winster Engineering Ltd

[1978] 1 WLR 1462

; Scarfe v. Adams

[1981] 1 All ER 843

; Woolls v. Powling

[1999] All ER (D) 125

; Chadwick v. Abbotswood Properties

[2004] All ER (D) 213

and Ali v. Lane

[2006] EWCA Civ 1532

were also cited on the construction points.” (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. “We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.” “There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence…” (p. 909) “It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence…” (p. 912)

[15]I directed the parties to the general appreciation of the law set out by Butler-Schloss LJ in Toplis v Green (1992) CA Unrep:

“In taking the objective approach, one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?”

This appears reflective of Pennock v Hodgson [2010] at [12], regarding “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”, as well as the above quotation from Lord Parker in Eastwood v. Ashton [1915].

[16]Counsel for the Applicant also referred to Neilson v. Poole (1969) 20 P. &C.R 909, and the familiar passage at 915:

“The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were…”

[17]I was also directed to the jurisdiction of this Tribunal in cases of this sort, drawing on the analysis in Ruoff & Roper on Registered Conveyancing at Para. 5.018.01:

“Where the FTT directs the registrar to give effect to the original application as to part of the boundary as if the objection had not been made, it can give a direction about the entry to be made with regards to that part of the boundary where the applicant’s plan was found not to be correct in where it showed the boundary to be.3 In other words, the determined boundary is in part as shown on the plan lodged with the application and in another part where the FTT has found it to be.”

Footnote 3 includes:

“Judge Bastin in Burdall v Tomlinson REF/2020/0510 at [19] expressed it this way: “The Tribunal can … direct the Registrar to complete the application but with a variation to reflect that Tribunal’s findings as [to] the location of the boundary line.”

Reliance is being placed on the Tribunal Procedure (First–tier Tribunal) (Property Chamber) Rules 2013 r.40(3)(a).” “The Tribunal can … direct the Registrar to complete the application but with a variation to reflect that Tribunal’s findings as [to] the location of the boundary line.”

The Expert Evidence

[18]Only the experts were called to give oral evidence. Their written reports and joint statements appear at Section D of the trial bundle, and I have considered them in detail.

[19]I was also provided with a printed version of the agreed plan at the site view. Whilst this was marked “do not scale from this drawing”, at the hearing it was confirmed that as a printed version, I could scale from it if required. The agreed plan originates from a survey that was commissioned by Ball & Co for the Applicant and prepared by Davies Surveys Ltd.

[20]The experts agreed matters set out at paragraph 2 in the New Joint Statement dated 4th August 2025 (“New Joint Statement”). This included acknowledgment of the general boundaries rule and OS accuracy tolerance of +/- 1.0m when considering HM Land Registry title plans. Further in this regard, it was noted that those plans were based on the transfer plans marked “for identification purposes only”. Only the curved section of the boundary located in the driveway was, and is, in dispute.

[21]Mr Jones confirmed in evidence the content of his expert report, revised 25th April 2025 (pages 157-178 of the trial bundle), the New Joint Statement and, particularly, his opinion at paragraph 3 of that statement.

[22]Mr Jones takes the legal boundary to be the centre line of the tarmacadam driveway, bounded by concrete edging kerbstones, “the majority of which remain in situ”. Although, he then qualifies this by noting the removal of those kerbstones to the northern edge where the hard standing was latterly installed at No.23.

[23]Nevertheless, using the 2009 image (paragraph 5 above) and the agreed dimensions for the paving slabs to the front of the house at No.23, he plots Point K at the end of the paving slabs to mark the start of the curve to the northern edge. He calculated the terminal point at the highway of this curve at Point J, 1.2m from the common boundary of No.23 with No.21 (based on brick paviours to the highway). He does not plot the curve between these points, as the line was obscured by the hard standing latterly installed.

[24]To the southern edge, Mr Jones identifies concrete kerbstones which he considers original to the building of the development (and there was no evidence adduced to gainsay this and much to support it by comparison with similar edging to other properties throughout the cul-de-sac, as already noted above). Whilst somewhat opaque in the New Joint Statement, it was clear in his evidence that Mr Jones has taken the undisputed distance to the midpoint of the tarmac between the houses (i.e. the middle of the gutter, at 2.307m) and applied this consistently from the arc of the kerbstones to the southern edge. He considers that this would give the midpoint of the driveway as originally laid out.

[25]The impact of the fence, as erected by or on behalf of the Respondent, has been to reduce the opening of the tarmac driveway serving No.25 to the highway to 1.150m, which is impractically small for access for a motorcar within the bounds of No.25. On Mr Jones’ assessment, the fence must significantly trespass, and the opening should be increased to 2.307m. Anything less requires a driver to pass over part of the driveway to No.27 and No.25’s block paving which bounds No.27 and which squares off the driveway to No.25 with hard surfacing.

[26]Mr Jones was closely question, including by reference to the transfer plan for No.23, which he accepted appeared to show a driveway width that was not uniform along its length and an apparently wider opening to the highway for No.23 than for No.25. This is replicated by his locating of Point J at 1.2m from the common boundary of No.23 and No.21. Point J was located by counting the brick paviours in the highway in the 2009 image, although the kerbstones to the northern edge were partly obscured by gravel (and the 2009 image was also agreed to be imperfect for being a composite of images used in its creation by Google). An equal opening to the highway would move his red line further north than he contends for and would be more generous to No.25 in the result. Mr Lodge, he states, had produced his result of the blue Line by a similar process of measurement from his assumed curve of the northern edge (terminating in three dashed lines in the highway of the agreed plan), but that curve did not reach to Point J as asserted by either expert (Mr Jones at 1.2m and Mr Lodge at 1.6m from the common boundary of No.23 and No.21). Point J would have to move to 2.4m from the common boundary of No.23 and No.21 for Mr Lodge’s analysis to be consistent with the blue line.

[27]For Mr Jones, the curve of the driveway in general was problematic. The kerbstones were not curved, so the arc could not be perfect, and the driveway edges were not perfectly parallel.

[28]Mr Jones was taxed on the transfer plans in another way. A line taken along the flank wall of No.23 would not be bisected by the boundary line as drawn on the plan to No.23 (the plan to No.25 was less complete), but the red line drawn by Mr Jones does cross this line, at its tip by the highway (and thus shows, on Mr Jones’ analysis, that the hardstanding installed by No.23 would trespass slightly at this point onto No.25). Mr Jones doubted the precise accuracy of the transfer plan, and pointed to the boundary between No.25 and No.27 also not quite matching that plan.

[29]A further point put to Mr Jones was that the curve to the northern edge on No.23 appears to start at the end of the adjoining paving slabs (Point K), as marked by Mr Lodge, but the red line starts slightly further towards the highway. Mr Jones stated that the curve starts at the end of the gable wall of No.25, as this accommodates the wider swing a car entering No.25, at the outside of the arc.

[30]In relation to this point, I inquired what the effect of the curve starting at Point K would be, and a plan was produced by the experts the next day, showing the boundary line otherwise on Mr Jones’ model moved south by 128mm and only just then touching the hardstanding. A magenta line was plotted on the agreed plan to reflect this and supplied to me electronically. Along with this plan was a version provided by Mr Lodge, with the same magenta line, but other markings in yellow to show the impact on the frontage of No.23.

[31]Finally, it was put to Mr Jones that if the northern edge was as Mr Lodge contended, then the red line would make the driveway too narrow for a car on No.23’s side. He agreed that this would be the case, but referred to historic access without difficulty to both sides of the driveway. The implication was that Mr Lodge had not accurately plotted the curve to the northern edge, which was consistent with that line not extending to either Mr Jones’ or Mr Lodge’s Point J.

[32]I found Mr Jones a witness of assistance, able to make some concessions in his oral evidence, but adopting an approach rooted in practical assessment of the position on the ground at the time of purchase of No.25.

[33]Mr Lodge then gave evidence. He confirmed his undated report prepared following sight of the first report of Mr Jones (pages 179 to 181 of the trial bundle), his supplemental report dated 7th July 2015 (pages 203 to 209) and the joint statement insofar as it reflected agreed matters or his views. The first report involved overlays of Transfer Plans, HM Land Registry title plans and current Ordnance Survey plans, which takes matters no further given the disclaimer on the transfer plans, the margin of error in Ordnance Survey plans and the general boundary rule.

[34]The Supplemental Report essentially took issue with an earlier “Experts Memorandum of Agreement and Disagreement”, now discarded in these proceedings. The Supplemental Report details two propositions at paragraph 2 (after referring to the 2009 image at paragraph 5 above):

“It is not reasonable to assume that the width of the driveway would reduce as it travels towards its junction with the concrete edging at the rear side of the pavement”; and “Although no evidence exists, it is not unreasonable to consider the possibility that an error occurred in the setting out of the driveway widths, at the end of the construction phase of the development.”

He then comments upon the dimensions of the paving slabs, so as to establish the start of the curve at No.23, and edging kerbstones and brick paviours to establish the approximate end point of the curve at the highway.

[35]In the joint statement, Mr Lodge produces some commentary which at trial appeared uncontroversial: at the time the estate was laid out, the relevant highway authority (Mid-Glamorgan County Council) provided guidance stating that vehicle parking:

“Shall be off the highway inside the curtilage of the dwelling … every property on a new development to access an adopted highway from a private drive … parking spaces being 2.4 metres in width” (para 4.4 at page 222 of the trial bundle). In fact, the space between the gable walls of the houses was insufficient to provide for 2.4 metres, but only just over 2.3 metres. He posits that the documents disclose an intention for “driveways of approximate equal width serving each individual property” (para 4.6). He refers to the age of the properties and suggests that setting out of the dwellings would have been with timber pegs and hand tapes: “It is highly likely and most probable that creep in the setting out of adjacent dwellings on this side of the access highway did not reflect the site drawings.”

He resolves the location of the boundary by taking the width of the driveway to No.23 at a point about 1.4 metres in front of the house at No.23 and applying a uniform width of 2320.5mm to his assessment of the curve of the driveway at its historic northern edge (a dashed line not agreed by Mr Jones). This gives the blue line on the agreed plan.

[36]Mr Lodge was initially challenged on his expertise, but he detailed his training and membership of the Chartered Institute of Buildings. Indeed, he was a member of RICS for about two decades, before he allowed his membership to lapse, thus permitting him to seek market insurance rather than that directed by the institution. He explained he had dealt with a number of boundary disputes over his 40-year career. I am satisfied that he is an appropriate person to act as an expert in a case of this sort.

[37]Mr Lodge was then challenged on his initial production of overlays to produce a “general fit” for the boundary, prior to the fence being erected and to facilitate its location. He agreed that he did not seek to rely on this work once a more detailed survey plan (accurate to +/- 6mm) was to be used. He would not comment on whether the green line plotted on the agreed plan by Mr Jones accurately reflected his earlier work. He said that earlier work was simply his interpretation at the time based on the drawings he had and subject to their internal inaccuracies. He began again with the accurate survey plan used and agreed by both experts.

[38]Mr Lodge then explained his taking of dimensions from the (now lost) kerbstones to No.23, and evident in the 2009 image. He accepted that some of these were obscured by gravel in that image, so subject to reasonable interpretation on his part. He also accepted that Point K had been relocated from 2.7 metres from the face of the house at No.23 in his Supplemental Report to 3.6 metres in the New Joint Statement. He described his first figure as a guestimate. Likewise, when taxed on Point J at the end of the northern edge where it meets the highway (now at 1.6 metres from the boundary with No.21 on his assessment, and 1.2 metres on that of Mr Jones), he accepted that his former calculation at 2.4 metres (marked by 3 dashes on the agreed plan) would have been in the tarmac of the driveway and not at its edge. At which point, he said he was not a surveyor and that is why the point was amended. In any event, he did not consider the difference between him and Mr Jones of 400mm for the location of Point J a significant matter. He refused to be drawn on locating Point J based on an undulation in the brick paviours to the highway, but his counting of features differed from that of Mr Jones.

[39]Mr Lodge was unconcerned that on his analysis the opening of the driveway to the highway in No.25’s title was 1.15 metres (a figure he only agreed when taken to the survey plan): his job was to interpret the extent of the original driveway to No.23. He thought a parking space at about 2.3 metres width was usable for each house, even if inaccessible to No.25 on its own land.

[40]I found Mr Lodge to be the less satisfactory of the expert witnesses. He was inclined to be unnecessarily argumentative at times: for example, being unwilling to accept kerbstones as original (“I have no idea. You tell me.”) when he accepted that his practice had produced the lay out plans for the whole development. Further, the change of approach he adopted between his original use of overlays and the adoption of the agreed plan, though obviously rightly conceded, did not inspire confidence; neither did his admission that Mr Jones was correct on the size of paving slabs. He also had no real explanation for why his arc to the northern edge (producing his blue line) terminated well short of his Point J. I would add to this, his choice of width for the driveway of No.23 at 2320mm when the half space between the houses was 2307mm, remains puzzling.

Analysis

[41]Although I have set out the expert evidence fairly extensively, I remind myself that the role of the Tribunal is to construe the transfer of No.25, and construction is a matter of law and not expert opinion. The experts have, however, produced useful detail of the impact of various possible analyses, and for that I am grateful to them both.

[42]As already noted, it was the transfer of No.25 that was the operative conveyance for the creation of the legal boundary in issue. That is because it was only at that time that there was a division of a single parcel of land. The transfer is insufficiently detailed to be able to use it alone to decide upon the precise location of the legal boundary: it is ambiguous. It lacks dimensions or a plan that can be scaled. Indeed, the plan is expressly for identification purposes only. Furthermore, as Mr Lodge made clear, it is representative of the layout for planning purposes and is not a survey plan as built. Mr Lodge would know, as his business was responsible for the plans used at the planning stage. He also appropriately commented that, for example, the lack of a full 4.8 metres between the houses at No.25 and No.23 demonstrates the imperfection of the laying out of this part of the development.

[43]The transfer of No.25 provides some evidence for the boundary, albeit primarily by implication:(1) Whilst it does contain provision for rights of way benefitting No.25 (First Schedule paragraph 1(c)) or burdening No.25 (Second Schedule paragraph 7), there is no “area coloured green” showing land so subject (as the standard form transfer anticipates there may not be). This implies that there are no such rights of way to facilitate access for parking on No.25’s own land.

(2) The driveway appears curved. The arc of the curve of the boundary is unmarked on the plan, as a black line ends adjacent to the front aspect of No.23’s house. This contrasts with the plan to the transfer of No.23, which does have a dividing line.

[44]I do not consider that anything precise can be gained from the shape of the driveway other than it was curved. This is because it was unmarked on the transfer of No.25 and, for that matter, only crudely drawn on the plan to the transfer of No.23. Whilst the Respondent is correct to note that a straight line from the gable of No.23 crosses the red line on the agreed plan, but that would appear not to be the case on the plan to the transfer of No.23, that plan for No.23 would appear to have a pinch point midway between house and highway, which no-one contends for: it is not to be relied upon for such precision. The plan to the transfer of No.23 was no part of the operative conveyance, in any event. Such careful examination of the transfer plans may be appropriate, but given the warning on each plan as to identification purposes, such fine examination on this sort of plan in this case is not determinative.

[45]To aid construction of an ambiguous transfer the Tribunal is entitled (indeed in such a case as this, obliged) to consider extrinsic evidence. This is a contextual construction, plan in hand and regarding features at the time of the transfer of No.25; not necessarily limited to those on the actual boundary, but limited to those relevant to it. Likewise, including more general background to the transfer following the contract of sale and purchase, where it is relevant to the boundary.

[46]In this case, part of the context (and no doubt an important part to any purchaser) is parking. The evidence of Mr Lodge was that, when built out, this estate required a two-bedroom property to have two car parking spaces. Given the location of tarmac and grass area discernible in the early aerial photographs in the bundle, and largely present in the cul-de-sac even now, it is apparent that one parking space was to the side of the house and the other in the driveway leading to it. Photographs at page 61 of the trial bundle shows cars parked in these locations, at No.25 and No.23 respectively. Indeed, there was no use for a driveway of the width provided save for parking cars: the driveway was wider than would be required for other uses and the driveway ended adjacent to the rear of the houses, where rear gardens started.

[47]I find that any reasonable purchaser of No.25 would look at the driveway and consider that a purchase would include a width of driveway equal to the parking space between the houses. I do not consider that such a purchaser would expect more than that, because that would be sufficient. Indeed, as Mr Jones has demonstrated, a wider opening to the highway for No.25 may significantly impinge on the land between the house at No.23 and the highway, when taking a line from No.23’s gable end.

[48]The idea that the seller would frustrate the planning requirements assiduously protected by the transfer of No.25 (Third Schedule “restrictive and other covenants” at paragraph 4 “Not to do or suffer to be done any act or thing on or about the property which shall be in breach of the terms and conditions of the Planning Permission in accordance with which the dwellinghouse and any garage on the Property is constructed.”) by denying practicable parking on No.25 is unsustainable.

[49]The arrangement for vehicular access and parking was obvious at purchase in 1993 and required the transfer of sufficient width of driveway to the purchasers of No.25 to achieve that end.

[50]The developer having erected the houses slightly too close together is nothing to the point: No.25 was sold first and, were it required, it would be the developer and its successors in title at No.23 who would suffer the consequences. In fact, adverse consequences were not required because the deficiency was modest. The reasonable purchaser looking at the space between the houses, and seeing the channel, would conclude that this space was being divided equally and identifying entitlement. Such space was then, and can now be, sufficient.

[51]I am reinforced in this conclusion, not only by Mr Jones adopting this approach, but also Mr Lodge. The difference between them is that Mr Jones has taken his arc from features that were present at the time of the transfer of No.25 and remain present now i.e. the southern edge. Mr Lodge has had to estimate the location of the northern edge and then repeats the process adopted by Mr Jones to locate the fence on No.23’s land. The problems of Mr Lodge’s approach are numerous: the northern edge is not apparent on the ground to be plotted and photographic evidence is insufficiently precise to make up the defect; even then, Mr Lodge has to reckon Point K from photographs (counting paving slabs) and likewise Point J; the arc Mr Lodge draws never reaches Point J (whether as calculated by Mr Jones or Mr Lodge), which fundamentally undermines Mr Lodge’s assessment; and, it assumes that the driveway was a uniform width, when there is no evidence that this is the case, and either of the rival Points J strongly suggests the driveway widened at the highway. Indeed, it would be no surprise for the driveway to so widen, as No.23 has a much broader frontage to it than No.25 (the latter constrained by the driveway to No.27).

[52]When one adds that it is No.25 that was sold first, it is entirely appropriate for it to have a driveway equal to its parking space. There was space to accommodate this and nothing more arises by implication from the features on the ground. The straight driveways to adjacent houses are uniform in width. There is nothing to suggest that the purchaser of No.25 was entitled to the luxury of a wider opening to the driveway and such an opening could significantly impinge on the land between the house at No.23 and the highway, when taking a line from No.23’s gable end.

[53]The fence as currently located, where it meets the highway, strongly underlines the absurdity of the construction contended for by Mr Lodge. I find it impossible to accept that the original seller and purchasers could have intended to sell and buy essentially inaccessible parking spaces. Indeed, such an absurdity, when there was sufficient space for access to each properties’ parking space, would have required a clear indication in the transfer to No.25. There is no such indication.

[54]The more difficult question is whether the line of the boundary is the red line or the magenta line. The red line gives an opening 128mm wider than the magenta line at the edge of the highway. It does so because the arc starts at the corner of the house at No.25, giving an even width throughout i.e. following the southern edge. By contrast the magenta line has its arc starting at the end of the flag stones in the front garden of No.23 i.e. following Mr Lodge’s hypothecated northern edge (rejected above). The merit of the magenta line is that it barely crosses on to the recent hardstanding laid to the front on No.23 i.e. it does not impinge more than minimally on the land between the house at No.23 and the highway, when taking a line from No.23’s gable end.

[55]The magenta line was plotted at my request and was not advanced by either expert at trial. I have concluded that it is not the boundary line:(1) Once one accepts that the arc is most clearly indicated by the southern edge, a feature on the land transferred first, then this should be applied rigorously. The southern edge starts at the corner of the house at No.25. There is no concrete edging down the side of the house and the plan clearly shows that it springs from the front of the house and, therefore, the curve starts immediately at that corner (albeit shallow and to some extent rough, as the edges are short straight pieces).

(2) As the northern edge begins to curve later, to employ it to create some sort of datum to assist with the curve means (as Mr Jones pointed out in evidence) that there would be a constriction to No.25’s driveway at or about the front of No.25’s house, which would not be appropriate given that the route should be the same as the parking space in width, and the second car parking space will be likely to extend into the curve of the driveway.

(3) As the arc is more expansive to the southern edge than to the northern edge, it must of necessity be longer and can, therefore, start as Mr Jones’ posits.

(4) It assumes a degree of precision in locating Point K that may not be justified in any event. It does not appear that the paving slabs were all original, as they were more extensive to No.23’s frontage than was necessary to access the door. Photographic evidence cannot disclose how tight these were laid to the curve and, where the curve starts, it would be shallow. It is therefore not apparent that Point K can be located with accuracy and utility for these purposes.

(5) Whilst the red line does impinge on the hardstanding, this is very modest. When the area was tarmac it would have been to all practical purposes immaterial and may not have been appreciated visibly. It only has any significance because of the fairly recently installed hardstanding. In context it was immaterial to No.23, but the necessary result of a consistent access for No.25.

[56]For these reasons, I find that the legal boundary is the red line and it can and should be registered as such. The boundary can be defined by the contextual construction of the transfer to No.25. When the question of a precise boundary location arises, fuzzy edges are undesirable. Though sometimes a boundary cannot be determined to the necessary degree of precision for registration, this is not one of those cases. The Applicant has proved her case in this regard.

[57]In this tribunal the costs of the successful party (i.e. the Applicant in this case) is usually awarded costs against the unsuccessful party (i.e. the Respondent in this case) from the date the matter was referred to the Tribunal (i.e. 16th November 2024). If sought, the Applicant shall provide a schedule of her costs (preferably using Civil Procedure Form N260, available from the Internet) by 5pm on 16th February 2026. The Respondent may then provide any comments on liability to pay costs or the amount of the costs claimed by 5pm on 9th March 2026. The Applicant may reply to those submissions by 5pm on 23rd March 2026. Thereafter the Tribunal will make a decision on liability and amount of costs on paper. Dated this 2nd February 2026 Judge Anthony Verduyn By order of the judge of the Property Chamber of the First-Tier Tribunal