Peter Colin Cunningham & Anor v Michael Graham Colin Holehouse & Anor [2026] UKFTT 771 (PC)

[2026] UKFTT 00771 (PC)

REF/2025/0236

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

Between

PETER COLIN CUNNINGHAMApplicant

& JANE ANGELA CUNNINGHAMApplicant

MICHAEL GRAHAM COLIN HOLEHOUSERespondent

& KELLY ANN HOLEHOUSERespondent

Property Address: Land at the rear of Dobb Rhydding, Skipton Old Road,

Colne (BB8 7AE)

Title Numbers: LA867575

Before: Judge Laura D’Cruz

Sitting at: remote hearing by CVP

On: 26 th& 27 th March 2026

Representation: the parties appeared in person for in person

Key words: determined boundary – construction – measurement on the plan – physical features – subsequent conduct

Cases referred to:

Pennock v Hodgson[2010] EWCA Civ 873

Ali v Lane[2006] EWCA Civ 1532

Toplis v Green[1992] Lexis Citation 3154

DECISION

Date 2026-05-01

[1]The matter that has been referred to the Tribunal is the Applicants’ application to determine the exact line of a boundary.

[2]The boundary in question (“the Boundary”) comprises the southern and western boundaries of title number LA867575 (“the Strip”). The Strip, together with the surrounding titles, are shown on the MapSearch screenshot below; the two parts of the Boundary are indicated by the green arrows (this image is taken from the Respondents’ expert report). MapSearch snapshot

[3]The Strip is owned by the Respondents, as is LA877825, which is their property, Dobb Rhydding. The title immediately to the west, LAN209058, is owned by the Applicants, as are two parcels of land further west, including their property, Oakfield.

[4]The extent of the Strip as currently registered can be seen on the extract from the title plan below. The red boundary follows a mixture of solid and dashed black lines on the underlying OS map. There are solid black lines forming a narrow rectangle to the centre west of the Strip, and then adjoining dashed black lines forming a wider rectangle to the centre east: these represent a shed (“the Shed”) and a carport (“the Carport”) respectively. Title plan to the Strip

[5]The Applicants initially sought a determined boundary in accordance with their Determined Boundary plan from July 2024 (“the DB Plan”), the relevant part of which is shown below. The DB Plan shows the Boundary between points A, B & C, with B being the corner. DB Plan

[6]The DB Plan was produced by the Applicants’ expert, Paul Cross of Sterling Surveys Ltd, who later produced an expert’s report. The Respondents instructed their own expert, Kevin Hainsworth of Insepes Ltd, who also produced a report. The experts produced a joint statement (“the Joint Statement”), and both attended the final hearing to give oral evidence (albeit little turned on this, as the matter is largely a matter of law rather than expert evidence).

[7]As part of the Joint Statement, the experts agreed a joint plan (“the Joint Plan”), the relevant part of which is shown below. The dashed blue line represents Mr Cross’ revised opinion as to the location of the Boundary; the red line represents his original opinion as mapped on the DB Plan. I note for completeness that Mr Cross had in fact revised his opinion by the time he produced his report, but the Joint Plan is a convenient way of depicting the revision Joint Plan

[8]The Joint Plan does not meet the strict requirements for a determined boundary plan. However, it is accepted that I could direct the Applicants to produce a compliant determined boundary plan based upon the Joint Plan, were I to find that the Joint Plan accurately maps the Boundary.

[9]It will be noted that, on both the DB Plan and the Joint Plan, the Boundary is depicted as running through the Shed.

Principles

[10]The boundary of a registered estate as shown on the register is only a general boundary; it does not determine the exact line of the boundary (section 60 of the Land Registration Act 2002). However, a proprietor may apply for the exact line of the boundary to be determined pursuant to rule 118 of the Land Registration Rules 2003.

[11]The starting point is the deed which created the boundary, that is, the deed which divides the land either side of the boundary into two separate parcels, particularly the part of the deed which defines the land being conveyed.

[12]Construing a deed is an exercise in determining what the parties to it intended. It must be construed objectively, and in context. The following dicta of Mummery LJin Pennock v Hodgson

[2010] EWCA Civ 873

, paragraph 12, is useful: “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”.

[13]Where the deed is unclear, it is permissible to have regard to evidence of subsequent conduct provided it is of probative value in (essentially, relevant to) determining what the parties intended [Ali v Lane

[2006] EWCA Civ 1532

[14]The question really boils down to this: “what would the reasonable layman think he was in fact buying?” (as per Butler-Sloss LJ, in Toplis v Green [1992] Lexis Citation 3154. Conveyancing history

Identifying the dividing transfer

[15]The Strip and much of the land in the surrounding area previously formed part of land owned by Edith Butler. Ms Butler died in 1971, but various transfers have been executed by her executors and trustees. I will refer to the various people acting on behalf of her estate as the Butler Estate.

[16]The Applicants’ position is that the transfer which created the Boundary is the conveyance of the Strip from the Butler Estate to Mr Cronshaw on 10th September 1987 (“the Conveyance”), as rectified by a Deed of Rectification dated 25th July 2000 (“the Deed”).

[17]Whilst the Respondents appear to accept that the Conveyance is the starting point, their submissions also include an argument that the land to the west of the Strip – LAN209058 – did not form part of the Butler Estate. This would mean that the Boundary had been created at some earlier time, rather than by the Conveyance.

[18]The background to this is as follows. It is not in dispute that the land between Dobb Rhydding/the Strip and Oakfield (LAN209058 & LAN207214) was effectively an area of wasteland. There is evidence that the proprietors of Dobb Rhydding/the Strip (both the Respondents and their predecessors) used an area adjacent to the Strip, part of LAN209058, for e.g. parking. It seems that both the Applicants and the Respondents were interested in purchasing this land. The Respondents say they were told by the Butler Estate’s solicitors that did not believe the Butler Estate owned LAN209058, and so were surprised when the Applicants then went on to purchase both LAN209058 & LAN207214 in 2018.

[19]HM Land Registry documents show that the Applicants purchased LAN209058 & LAN207214 for £15,000 on 22nd June 2018, at which time only the latter was registered (as part of the larger title LAN102065, first registered in 2010; LAN209058 was registered in 2018). The Respondents rely on correspondence in which the Butler Estate appears to use the title plan to LAN102065 as defining the extent of its land. However, it is notable that, in one such letter, the solicitors describe this land as being adjacent to the Respondents’ property – they evidently did not think there was any land in third party ownership in between.

[20]The registration position might potentially explain why there was some ambiguity as to whether the Butler Estate owned LAN209058: it was not part of its registered title, but it does not necessarily follow that it was not the paper title owner.

[21]HM Land Registry was evidently satisfied that the Applicants were entitled to first registration of LAN209058 based on a transfer that included both LAN209058 & LAN207214. The Respondents do not put forward a positive case as to who did own LAN209058, or when the Boundary was created. There is no obvious reason why this small strip would not have been owned by the Butler Estate when all of the surrounding land was.

[22]For all these reasons, I am satisfied that the transfer which created the Boundary is the Conveyance, as rectified by the Deed.

The Conveyance

[23]To understand the Conveyance as rectified by the Deed, it is necessary to go back a little further.

[24]In 1972, the Butler Estate sold the property known as Higher Standroyd to the McFarlanes. At that time, the parcel, and the buildings on it, were not as extensive as shown on the MapSearch screenshot (Higher Standroyd is title number LA845357).

[25]Then, in 1980, the Butler Estate sold some further land to the McFarlanes. This was a strip of land containing “one hundred and twenty eightsquare yards or thereabouts” to the west of Higher Standroyd as it then was. Part of the plan to the 1980 conveyance is reproduced below. 1980 conveyance plan

[26]The Strip was conveyed to Mr Cronshaw in 1987 by the Conveyance. Mr Cronshaw already lived at Dobb Rhydding at that time (it appears from the register that he purchased it in 1956).

[27]The Conveyance conveys “ALL THAT plot of land at Higher Standroyd Skipton Old Road Colne aforesaid for the purpose of identification only shown edged red on the plan annexed here to”. It also includes a covenant “to fence off the property hereby conveyed along the boundaries marked A B and C on the said plan with good and sufficient post and four-rail fences…”.

[28]However, the plan used was incorrect – it was based on Higher Standroyd as it was previously, and did not reflect the additional land that had been sold in 1980. Part of the plan to the Conveyance is reproduced below. Plan to the Conveyance

[29]This mistake was later discovered, leading to the Deed. This states, “It was intended that in the Conveyance the vendors should convey to the deceased by reference to the Original Plan a strip of land having a width of 15 feet immediately to the west of and contiguous with the land containing 128 yards of thereabouts…The Vendors and the Purchasers hereby declare that the Conveyance shall at all times be construed as if the plan referred to in it were the Correct Plan and not the Original Plan but in all other respects the Vendors and the Purchasers confirm the Conveyance”. Plan to the Deed

[30]The upshot of this is that the plan to the Deed that is treated as – and as always having been – the plan to the Conveyance. As it is, the material parts of the two plans are the same: the plan to the Deed has marked points A, B & C, and has the words “Distance B – C – 15feet”; the plan to the Conveyance also has corresponding points A, B & C, and indicates a distance of 15 feet between B & C. The difference is that the area edged red has shifted west.

The parties’ cases

[31]The Applicants’ case is straightforward. They say that the Conveyance conveyed a strip to the west of Higher Standroyd 15 feet wide, and that the 15 feet runs from an old fence line which they say marks the boundary of Higher Standroyd. This is what Mr Cross has mapped on the Joint Plan.

[32]The Respondents make several points in response. First, “15ft” should not be taken as an absolute. Second, in construing the Conveyance, the Tribunal should have regard to the physical features on the ground at the time, which they say included the Shed and the Carport (this is denied by the Applicants). Finally, even if 15 feet is absolute, they say it is not possible to determine from where the 15 feet should be measured. The Respondents do not put forward an alternative position for the Boundary: if they were to succeed, the Applicants’ application would be cancelled, and the title plan would remain as is.

The lie of the land

[33]It is convenient to deal with the factual evidence of the lie of the land, in order to provide context to the Conveyance, before considering its proper meaning.

[34]The key date for the purposes of construing the Conveyance is 10th September 1987. There is some evidence as to the lie of the land preceding this date, to which I will return later, but it is first helpful to have regard to two aerial photographs which illustrate the lie of the land in the years following the Conveyance.

[35]The following image is taken from an aerial photograph from March 1989. Higher Standroyd is to the right. The Shed and Carport are present on the Strip, as are a fence to the west of the Shed (“the Fence”), and a fence and gate to the south of the Shed and Carport. There is also a fence between the Strip and Higher Standroyd. 1989 photograph

[36]The following image is taken from an aerial photograph from 1994. Again, Higher Standroyd is to the right. The Shed, Carport, Fence, and fence and gate are all there. It can also be seen that the Fence extends up to the northern end of the Strip, where there is also a fence running east-west. The northern half of the Strip is at this point in time being used as an allotment. It looks as though there is still a fence between the Strip and Higher Standroyd, albeit not extending quite as far south as previously. 1994 photograph

[37]I note for completeness that I heard evidence about the lie of the land in later years from Helen Clegg (the owner occupier of Higher Standroyd since 1999; she provided the aerial photographs) and Marcus Sunderland (the Respondents’ predecessor in title). I also heard evidence from the parties and considered photographs of the land in recent years, that is, since the dispute has arisen. None of this evidence is helpful to me in construing the Conveyance and determining the Boundary and so I do not rehearse it.

[38]It is worth highlighting, however, that the Applicants have in recent years erected fencing in the vicinity of the Boundary, and that, even on their own case, some of it encroaches onto the Respondents’ property. Thus, whatever the Tribunal’s decision, there will be consequential matters to address. Moreover, the parties appear to also be in dispute about the hedge to the north of the Boundary, in the vicinity of the western boundary of Dobb Rhydding. The parties are encouraged to deal with these issues in a neighbourly, co-operative and pragmatic manner – it would be better to try and agree matters such as the location of the boundary, ownership of the boundary feature, and maintenance obligations, rather than becoming embroiled in further litigation.

The Shed and Carport – evidence

[39]It is clear from the photographs that the Shed and Carport were present in 1989, but the key question is, were they present on 10th September 1987? The Respondents aver that they were, relying on the evidence of a Kathryn Heyworth, who says they were erected in 1978.

[40]Ms Heyworth is a neighbour who has lived very close to these properties since 1966, firstly at High Bank, and then at High Bank Barn, both located on Bents, a road to the east of Higher Standroyd. Her written evidence explains that High Bank Barn (her present home) was previously just a barn, where her father would keep his car, and where he permitted Mr Cronshaw, of Dobb Rhydding, to park as well. In 1978, work began to convert the barn into a residence. She says that, prior to this work, her father and her now ex-husband helped Mr Cronshaw to build a carport as an alternative place for his car. She says that the Shed and Carport are the same as the ones built in 1978.

[41]Before turning to her oral evidence, it is helpful to outline two pieces of evidence that go against the Shed and Carport being built in 1978.

[42]Firstly, the Applicants rely on written evidence from the McFarlanes. This suggests that the Shed and Carport were not erected until Mr Cronshaw purchased the Strip in 1987. The written evidence comprises a witness statement from 2018 and an ST4 from 2019 that were produced in relation to an easement application. It was only very late in these proceedings that any reference was made to them, but they were admitted.

[43]The focus of the statements is Mr Cronshaw’s use of the track to access the Strip. Insofar as is relevant for these proceedings, the former states, “We recall he purchased the strip of land in 1987, and erected a car port on the land shortly afterwards”, and the latter “Thomas Cronshaw was already resident at [Dobb Rhydding] when we moved in to Higher Standroyd. In 1987, Mr Cronshaw purchased a strip of land located to the rear of [Dobb Rhydding] on which he erected a carport shortly afterwards… Prior to him purchasing [the Strip] we recall that he was already parking his car at the rear of [Dobb Rhydding] because it was very difficult to park at the front…To the best of our recollection, he decided to purchase [the Strip] so that he could construct a carport and therefore keep his car covered”.

[44]Secondly, the Applicants rely on a survey plan dated 20th July 1982 (“the 1982 Plan”) as showing that the Shed and Carport were not present in 1982. The plan is a, titled “Mrs E Butler’s Estate. Proposed building plot, Skipton Old Road, Laneshaw Bridge, Colne”. It shows a fence next to Higher Standroyd, but no Shed, Carport, or other fence around the Strip. 1982 Plan

[45]I note the following for completeness. The dashed line in the general area of the Carport states, “plinth of former barn”. It is not in dispute that there used to be a barn here – the outline of the roof is still visible in the gable end of part of the building on Higher Standroyd – and that the plinth is still in place. There is a definite difference in height at the western side of the Strip, suggesting that that is where plinth the might end, but the Applicants aver that it extends onto their property, and the Respondents accept this might be the case (the First Respondent mentioned he had heard that it was a shippen, or cowshed).

[46]The Respondents make several points about the 1982 Plan. Firstly, they note that, whilst the plan is dated July 1982, this might not be the date the land was surveyed. Secondly, they suggest the Shed and Carport may have been deliberately left off as this might have been favourable for planning purposes. Finally, they note that the Carport is not shown on some of the experts’ plans (although the Shed is).

[47]In the Joint Statement, the experts state that it is “reasonable to infer” that the Shed and Carport were installed after the land was surveyed. In his oral evidence, Mr Hainsworth acknowledged that there was the possibility, albeit very small, that the Shed and Carport were there, but were not surveyed.

[48]Ms Heyworth was cross-examined by the Applicants. She said she had no idea when Mr Cronshaw purchased the Strip. She said he vacated the barn in late spring/early summer 1978, and that she remembers the Shed and Carport being done already, or, if not, very shortly afterwards.

[49]The McFarlanes’ evidence was put to her, and she was asked if they might be right. She said that what she remembered was that it was done almost immediately. She explained that she moved into the renovated barn on her wedding day in 1982, when she was 21, and that she was 17 when the roof was taken off.

[50]The Applicants also put to her the 1982 Plan, and that “the experts say it was not there then”. On the one hand, she said she did not remember all those years of not having a carport, but then also said she “would have to agree then”. In respect of the latter comment, it appeared to me that Ms Heyworth was taking the plan and the reference to experts as incontrovertible, a foregone conclusion, albeit one she was surprised by. When I explained that I had to consider the evidence on both sides and decide which evidence to prefer, she confirmed her recollection was that the Shed and Carport were erected in 1978.

Discussion

[51]As already explained, the starting point is the Conveyance. For completeness, I note the following. In the Joint Statement, the experts agree that “a question that might be address by the Tribunal is “Where would a reasonable person armed with a copy of the Deed 25 July 2000 when visiting the property on that date have considered the location of the boundary to be”. Insofar as this suggests that the relevant date is 25th July 2000, it is misconceived. The Strip was conveyed in 1987, not in 2000. The correct question is, “Where would a reasonable person armed with a copy of the Conveyance together with the plan to the Deed when visiting the property on 10th September 1987 have considered the location of the boundary to be”. 15 feet

[52]In terms of defining the land being conveyed, deeds generally include a written description (often referred to as the parcels clause) and/or a plan. If a plan is included, the parcels clause will often state either that the property conveyed is “more particularly described” or “delineated” or “defined” on the plan, or that the plan is “for the purpose of identification only”. In the former instance, the plan will prevail over the written description; in the latter, the written description will prevail over the plan.

[53]The parcels clause of the Conveyance bears repeating. It conveys, “ALL THAT plot of land at Higher Standroyd Skipton Old Road Colne aforesaid for the purpose of identification only shown edged red on the plan annexed here to”.

[54]This wording is a little odd. The plan is described as “for identification purposes only”, which would suggest that it defers to the written description, but the written description states only “plot of land at Higher Standroyd”. This is not a question of one part of the Conveyance prevailing over the other: there is no inconsistency. Indeed, the plan is integral to identifying where the plot is.

[55]The plan states “Distance B – C – 15feet”. The Applicants argue that this means the Strip is exactly 15 feet wide.

[56]However, the plan is described as “for identification purposes only”. This suggests that the plan is not intended to be exact. This is entirely consistent with the quality of the plan itself – it is a very basic sketch, with only one measurement given, and no way of determining where it is to be taken from. Nothing about the plan suggests that an exact measurement was taken, nor is there any evidence to suggest that it was.

[57]In their closing submissions, the Applicants mentioned the consistency between the plan to the Conveyance and the plan to the Deed, their point being, I think, that this adds weight to the importance of the measurement. However, this overlooks the fact that one plan replaces the other, and that the Deed rectifies the location of the parcel rather than anything else.

[58]In my judgment, the measurement is indicative only. I am not satisfied that the Conveyance should be construed as conveying a parcel exactly 15 feet wide. There is therefore no need for me to consider the evidence about where an exact measurement of 15 feet starts from.

[59]The Applicants’ case is premised on “15 feet” being an exact measurement. Without that, they cannot demonstrate with the required degree of specificity where the Boundary is. My finding that “15 feet” is indicative only is of itself sufficient to dispose of the application. However, there still remains the question of how the Conveyance should be construed.

Shed and Carport

[60]If the Shed and Carport were present at the time of the Conveyance, a reasonable person with the plan in hand would, in my judgment, understand the Boundary to be such that the Shed and Carport were within the Strip; certainly not that the Boundary would run through the middle of the Shed. I do not consider that the reference to 15 feet on the plan would override the position on the ground at the time.

[61]The only oral evidence I heard in respect of the erection of the Shed and Carport was from Ms Heyworth. I found her to be an honest and credible witness: she had a reason for remembering the dates as well as she did (her wedding day), and, whilst she initially appeared a little unsure of her evidence in the face of the 1982 Plan, she ultimately maintained her position.

[62]Against that, there is the written evidence of the McFarlanes. I appreciate that this only became prominent in these proceedings very late, but the upshot is that they were not asked to provide a witness statement for the purposes of these proceedings or to attend to give oral evidence. Moreover, their written evidence was focused on the easement application, not the question of the Boundary, and it is not clear how much they applied their mind to the particular matters of the Shed and the Carport. The Respondents suggested that the McFarlanes may have got the date 1987 from the fact this was when Mr Cronshaw purchased the Strip, and assumed this is when they were erected, rather than it being their own clear memory. That the McFarlanes did not attend means the Respondents did not have the opportunity to test their evidence on this particular point.

[63]There is also the 1982 Plan. At first blush, this suggests that the Shed and the Carport were not present in 1982, meaning that Ms Heyworth’s evidence (the only evidence that they were present at the time of the Conveyance) is not reliable. However, again, the Applicants suffer from a lack of evidence. All they have is the plan, with no evidence of its purpose or any other context. There may be something in the Respondents’ point that it was convenient to leave off what was a relatively insubstantial structure for planning purposes, and Mr Hainsworth accepted there was a possibility, albeit very small, that the Shed and the Carport were not surveyed.

[64]Having considered all of the evidence, I do not consider that either the McFarlanes’ written evidence or the 1982 Plan cast sufficient doubt on Ms Heyworth’s evidence. I find on the balance of probabilities that the Shed and the Carport were present at the time of the Conveyance.

[65]With the Shed and the Carport in situ at the time of the Conveyance, I do not accept that the Conveyance should be construed as averred by the Applicants.

The Fence

[66]There is also the Fence, visible on both aerial photographs, as described above.

[67]I did not hear any evidence about when the Fence was constructed. I remind myself, however, that the Conveyance included a fencing covenant. The natural inference is that the Fence was not there at the time of the Conveyance, but was erected at some point between the Conveyance and March 1989, in compliance with the covenant.

[68]It is not in dispute that the Fence remained in place until 2002, when Mr Sunderland removed it and replaced it with hedging (there may be some issue as to exactly where the hedging is compared to the Fence, but the point is that the Fence itself was there until 2002). The Fence was, therefore, a longstanding physical feature, from at least March 1989 until 2002.

[69]The Respondents argue that this is evidence of subsequent conduct that I should take into consideration when construing the Conveyance and/or evidence of a boundary agreement.

[70]In my judgment, the erection of the Fence is probative in (relevant to) determining what the parties intended. It was erected soon after the Conveyance and in compliance with the fencing covenant. The fact the Fence was erected where it was is evidence of an intention that the Boundary would be along the Fence – if the parties to the Conveyance did not intend the Boundary to be where the Fence is, some action would surely have been taken.

[71]In my judgment, the proper construction of the Conveyance is that the Boundary follows the Fence. This is the case whether or not the Shed and the Carport were in existence at the time of the Conveyance. Alternatively, even if this was not the parties’ original intention, they should be taken to have later agreed that the Fence represented the Boundary.

[72]I do not, in the circumstances, go on to consider the Respondents’ references to adverse possession and unconscionability.

Conclusion

[73]For all of these reasons, I direct the Chief Land Registrar to cancel the Applicants’ original application dated 17th November 2023 to determine the exact line of a boundary.

[74]The title plan to the Strip will remain as it is, as a general boundary only. The parties are encouraged to deal with any matters arising by agreement if possible.

[75]I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that the Applicants pay the Respondents’ costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case. My preliminary view is therefore that the Applicants should pay the Respondents’ costs of the proceedings, to be summarily assessed if not agreed.

[76]A party may claim costs even if they are unrepresented. Litigant in person costs are allowed at the rate of £19 per hour for work done before 1st October 2025 and £24 per hour for work done on or after 1st October 2025, unless the litigant can prove financial loss, and they may also claim disbursements. Costs are potentially recoverable from the date of the reference to the Tribunal, which in this case took place on 18th May 2025.

[77]Any application for costs shall be made by 5pm on 29th May 2026 and shall include a breakdown of the costs that are being sought, together with supporting evidence, such as invoices and receipts. Further directions will then be given as appropriate. Dated this Friday 1st May 2026 Laura D’Cruz By Order of The Tribunal