Simon French & Anor v Ian Richard Hannah & Anor [2025] UKUT 190 (LC)

[2025] UKUT 190 (LC)

Case No LC-2024-175

IN THE UPPER TRIBUNAL (LANDS CHAMBER)

AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)

Ref: 2021/0564

Venue Royal Courts of Justice, Strand,

Between

SIMON FRENCHAppellant

CATHERINE FRENCHAppellant

IAN RICHARD HANNAHRespondent

SUSAN CAROL HANNAHRespondent

London, WC2A 2LL

23 June 2025

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

LAND REGISTRATION – BOUNDARY DISPUTES – application for a determined boundary under section 60 of the Land Registration Act 2002 – construction of the First-tier Tribunal’s findings of fact

Heatherwood West,

Sandy Lane,

Crawley Down,

Crawley, RH10 4HR

Upper Tribunal Judge Elizabeth Cooke

22 May 2025

Mr Tom Morris for appellants, instructed by 360 Law Services Limited

Ms Lina Mattsson for respondents, instructed by Shakespeare Martineau

The following cases were referred to in this decision:

Alan Wibberley Building Limited v Insley[1991] 1 WLR 894

Chadwick v Abbotswood Properties Ltd[2004] EWHC 1058 (Ch)

Derbyshire County Council v Fallon[2007] EWHC 1326 Ch

Farrow v Boag[2023] UKUT 167 (LC)

Pennock v Hodgson[2010] EWCA Civ 873

Date 2025-06-23

Introduction

[1]This is an appeal from a decision of the First-tier Tribunal on a reference from HM Land Registry of a dispute arising from an application for a determined boundary under section 60 of the Land Registration Act 2002. Both parties agreed that the FTT’s decision must be set aside and an amended decision substituted by the Tribunal, but they disagree as to the extent of the amendment required. Their disagreement is about an area referred to at the FTT hearing as “Area A”.

[2]The appellants were represented in the appeal by Mr Tom Morris, and the respondents by Ms Lina Mattsson, both of counsel, and I am grateful to both of them for their very clear and helpful explanations of their parties’ cases and of the material that was before the FTT.

[3]Heatherwood West and Heatherwood South are two halves of the same building, but they are separate dwellings and separate titles each with their own adjoining land. Heatherwood West is, disconcertingly, the northern half of the building while Heatherwood South is, reassuringly, the southern half. A drive leading from the building to the public highway belongs to the owners of Heatherwood West, the respondents Mr and Mr Hannah; the owners of Heatherwood South, the appellants Mr and Mrs French, have a right of way over it with and without vehicles, granted by the conveyance that separated the two titles on 20 May 1959. A dispute arose about the width of the drive, and therefore about the extent of the land owned by each party, and the Mr and Mrs Hannah applied to HM Land Registry for a determined boundary. Mr and Mrs French objected and the matter was referred to the First-tier Tribunal under section 73(7) of the Land Registration Act 2002.

[4]Below is a copy of the registered title plan for Heatherwood South, showing the layout of the two halves of the building and the position of the drive.

[5]Next is a copy of the registered title plan for Heatherwood West, on which the drive can be seen running south to the road. To the left (west) is Stables Cottages, whose land is of course not outlined on this plan but it extends south to Sandy Lane.

[6]Before 18 February 1959 all three properties (The Stables and the two Heatherwoods) were in single ownership, and known as Oaklands; on that date the owner of the whole, a Mrs Secretan, sold all but The Stables to Mrs Bessie Johns. Mrs Johns then sold Heatherwood South on 20 May 1959, retaining Heatherwood West and thus creating the boundary with which we are concerned which is the eastern edge of the drive used by all three properties to access the highway.

[7]The application to HM Land Registry, dated 23 April 2002, was accompanied by a plan which was slightly different from the one eventually used by the judge, because Mr and Mrs Hannah’s view of the boundary changed a little as a result of planning documents disclosed prior to the hearing. The plan below (“the DB plan”) is what the judge called the “working plan”, which was used at the hearing, appended to the decision (dated 27 November 2023), and incorporated in the order addressed to the registrar. The line from point A to point M is the boundary for which Mr and Mrs Hannah argue, and to which they say the judge’s reasoning leads. The shaded area to the left (west) of the line A to M is the area that is in dispute, and I refer to it as did the judge as “Area A”; it was not the only area in dispute in the FTT but it is now. Area A is not metalled; the rest of the drive is (I do not intend by that statement to pre-judge the question whether Area A is part of the drive, merely to explain how the two areas are surfaced). The distance from the western edge of the drive to point B is 20 feet. Between points E and G, where the drive runs over a bridge, it is physically impossible for it to be any more than 10 feet wide.

[8]The shaded triangles on the DB plan on either side of the drive near the highway, and the lines between them, do not represent any physical feature on the ground; their significance will be explained shortly. The outline of the triangles does not depict the boundary, on either the appellants’ or the respondents’ case.

[9]The judge stated that the line drawn from point A to point B was agreed (as we shall see shortly, that was not the case) and that only the lines from B to F and from K to M were in dispute. Having discussed the evidence and considered the law he expressed his conclusion as follows:

“There will be a direction to the Registrar to make an entry in the registers of title numbers WSX196833 and WSX26328 to show the boundary between points B to E on the application plan along a line which gives the driveway a width of 20 feet throughout. The boundary between points E to M should follow the line on the Applicants’ plan, a copy of which is attached to this decision.”

[10]The FTT’s consequent direction to the registrar read as follows, and referred to the DB plan:

“The registrar shall record in the register of title nos. WSX26328 and WSX196833 that the exact line of the boundary between those titles is determined under section 60 of Land Registration Act 2002 in accordance with the plan attached to this order save that the boundary between points B and F shall follow a line which gives the drive a width of 20 feet measured from the western edge of the metalled surface throughout its length between B and F.”

[11]Following an application for permission to appeal the judge corrected the order so as to refer to point E rather than point F, because it is impossible for the drive to be 20 feet wide over the bridge (see paragraph 7 above).

[12]But even so, there is a problem; no-one argued for the drive to be 20 feet wide all the way to point E. That would create a right angle at point E where the drive met the bridge and went from 20 feet wide to 10 feet. That is not what Mr and Mrs Hannah argued. Accordingly, the parties agree that the judge was wrong about the boundary between points B and E: it does not run 20’ from the western edge of the drive between those two points.

[13]Mr and Mrs Hannah say that, instead, it tapers from B (where it is 20’ wide) to E (where it meets the bridge) as depicted on the DB plan and so the drive includes Area A. But the Mr and Mrs French say that the drive follows the eastern edge of the metalled drive and excludes Area A.

[14]There is no appeal from the judge’s primary findings of fact. But the parties do not agree what those findings were. In particular, for Mr and Mrs French at paragraph 2 of his skeleton argument Mr Morris said “the FTT found as a fact that that access road had not been widened beyond its original width of ten feet”, and at his paragraph 21 he refers to “the FTT’s finding that the drive was not widened to 20 feet”. Yet Ms Mattsson for the respondents at paragraph 19 of her skeleton argument said “the Judge agreed with the Hannahs that the accessway is 20 feet across”. So one of the tasks of the Tribunal in this appeal is to decide what facts the judge found.

[15]As an aside, it will be clear from what I have just said that Mr and Mrs French do not agree the line on the DB plan from A to B, as the judge thought they did; I think that was a misunderstanding by the judge arising from the fact that Mr and Mrs Hannah, as applicants in the FTT, actually changed their plan and point A was originally in a different place.

[16]To summarise: the issue in the appeal is whether the boundary runs around the eastern or western edge of shaded area on the DB plan, known as Area A.

[17]In the paragraphs that follow I first set out the law, as to which there is no dispute, and then explain the conveyancing history of the properties. Next I look at the proceedings in the FTT and the evidence that was before it, in particular about a planning permission given in February 1959, prior to the creation of the boundary now in issue, and also about the physical layout of the land, which the judge saw but I have not seen. I then turn to the FTT’s decision and the grounds of appeal.

The legal background

[18]Boundaries depicted on title plans by HM Land Registry are general boundaries only; they do not show precisely where a boundary is. Section 60 of the Land Registration Act 2002 provides:

“(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. (3) Rules may make provision enabling or requiring the exact line of the boundary of a registered estate to be determined … (4) Rules under this section must provide for applications for determination to be made to the registrar.”

[19]The relevant provision is made by the Land Registration Rules 2000. Applications for a determination tend to be made in order to resolve a quarrel; if a neighbour objects to the line proposed by the applicant and the registrar takes the view that the objection is not groundless then the matter must be referred to the First-tier Tribunal pursuant to section 73(7). It is well-established that if the location of the boundary is in dispute the FTT can decide where it lies, and will then make a direction to the registrar setting out what is to happen to the application. Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2014 provides:

“8(1) The Tribunal must send written notice to the registrar of any direction which requires the registrar to take action. (2) Where the Tribunal has made a decision, that decision may include a direction to the registrar to— (a) give effect to the original application in whole or in part as if the objection to that original application had not been made; or (b) cancel the original application in whole or in part. (3) A direction to the registrar under paragraph (2) must be in writing, must be sent or delivered to the registrar and may include— (a) a condition that a specified entry be made on the register of any title affected…” (a) give effect to the original application in whole or in part as if the objection to that original application had not been made; or (b) cancel the original application in whole or in part. (a) a condition that a specified entry be made on the register of any title affected…”

[20]If the location of the boundary is in dispute the FTT will examine the title and decide where it lies. The FTT may decide that the precise boundary proposed by the applicant is entirely correct and direct the registrar to respond to the application as if the objection had not been made. If the FTT decides that the boundary proposed is partly right and partly incorrect it may give the same direction, subject to the condition that the registrar record that part of the boundary follows a line different from that proposed by the applicant; and where the boundary proposed is found to be entirely wrong the FTT can direct the registrar to reject the application, with or without a direction that the registrar record the exact line of the boundary in the position determined by the FTT.

[21]There will be occasions where it is impossible to determine the boundary with the precision envisaged by section 60 of the 2002 Act; Farrow v Boag

[2023] UKUT 167 (LC)

was such a case, but they will be rare. On occasions where precise determination is impossible it may nevertheless be possible and useful for the FTT to find that the general boundary depicted on the register is incorrect and to decide where the general boundary should run, and a direction can be given to the registrar to record that decision (see Derbyshire County Council v Fallon

[2007] EWHC 1326

Ch, a decision about alteration of the register but of obvious relevance to disputes about a determined boundary). In the present case, however, the dispute is binary (which side of Area A does the boundary run?); the judge found, and I agree, that despite the imprecision of the plans in the deeds there is sufficient evidence to resolve the dispute, and the DB plan is sufficiently precise for that binary decision to be expressed as a line sufficiently exact for a determination under section 60.

[22]The resolution of a boundary dispute will usually turn on the construction either of pre-registration deeds or of a transfer of registered land; either way the focus will be on the deed that created the boundary. The authorities were summarised by Mummery LJ in Pennock v Hodgson

[2010] EWCA Civ 873

, who referred to Alan Wibberley Building Limited v Insley

[1991] 1 WLR 894

and to the problems that arise when the plan to a conveyance is said to be “for the purposes of identification only”, as in the present case. Mummery LJ said at paragraph 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.

[23]In Chadwick v Abbotswood Properties Ltd

[2004] EWHC 1058 (Ch)

Lewison J (as he then was) put it this way:

“43. Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground. … 44. The question is one to be answered objectively: what would the reasonable layman think he was buying?”

[24]The judge in the FTT referred to and sought to follow those authorities, but there is dispute as to whether his application of the principles was correct.

The conveyancing history and the present dispute

[25]Until February 1959 Mrs Kathleen Secretan owned the whole of the land now known as The Stables, Heatherwood West and Heatherwood South. On 18 February 1959 she conveyed as a single parcel the land now comprised in Heatherwood West and Heatherwood South to Mrs Bessie Johns. The land was described in the parcels clause as “formerly known as Oaklands”. The plan is imprecise and said to be for the purposes of identification only, but it indicates that the boundary of The Stables was the western edge of what appears to be the drive that is now in dispute. The Stables changed hands soon afterwards, and again on 15 May 1959 when it was conveyed to Mr Stuart King.

[26]This is the plan from the conveyance of 18 February 1959; the drive is inside the thick edging (red on the original), indicated by dotted lines.

[27]On 20 May 1959 Mrs Johns conveyed Heatherwood South to Mr Kenneth Dodge, thereby creating the boundary that is now in dispute. The plan below is the conveyance plan, with the boundary edged in bold. Beside it runs the drive, shaded green on the original, along which the purchaser was granted a right of way at all times and for all purposes in common with the vendor and with the owner of The Stables.

[28]The plan is, again, said to be for the purposes of identification only. While not quite identical with the plans to the February conveyance it is obvious that the same plan has been re-used; there is no difference in the shape of the drive (the shaded area on the plan above). The red edging of the land conveyed runs along the dotted line on the western side of the drive. I have not reproduced the plan to the conveyance of The Stables on 15 May 1959 but the same plan has been re-used there too and the drive is the same shape. In his skeleton argument for the Mr and Mrs French Mr Morris said:

“It is common ground that, properly construed, the [conveyance of 20 May 1959] set the line of the boundary along the eastern edge of the Access Road then in existence, with a corresponding right of way along the Access Road being granted in favour of Heatherwood South.”

It will be clear from what I have already explained that what is not common ground is where that eastern edge is: is it along the edge of the metalled drive throughout and therefore the western edge of Area A, or does it follow the eastern edge of Area A?

[29]A number of later conveyances are in evidence but none has any effect on the boundary created on 20 May 1959 between Heatherwood West and Heatherwood South. Those that have plans depict the drive as being the same shape as the plans used in the February and May conveyances. Title to the two properties later became registered, and the drive still looks the same shape on all the relevant Land Registry plans as it did in the plans to the 1959 conveyances. No plan depicts a bulge that looks like Area A.

[30]Evidence was given to the FTT that for some years Area A has been used as a passing place. In 2018 Mr and Mrs French deposited some topsoil on it (believing it to be their land); Mr and Mrs Hannah removed it. County Court proceedings were commenced, and have been stayed pending the outcome of the respondents’ application to HM Land Registry in April 2020 and the reference of the dispute to the FTT.

The proceedings in the FTT and the evidence

[31]The evidence of fact given for both parties in the FTT indicates that Area A is more or less on a level with the metalled drive and that there is a bank around its eastern edge. Evidence given for Mr and Mrs Hannah indicated that it had been used as a passing place for some years. Mr and Mrs French said that it was part of their land and had never formed part of the driveway. Both parties adduced expert evidence from surveyors. In their joint statement they agreed that Area A is about 15m long and 3m wide.

[32]By far the most significant evidence was the conditional planning permission granted on 10 February 1959, prior to the creation of the disputed boundary. The permission and associated documents were discovered by Mr and Mrs French in course of the proceedings, and both parties rely on it in different ways.

[33]A planning application was made by LH Johns Esq in January 1959 for the division of Oaklawn into three dwellings. The plan attached to the application makes it clear that the applicant proposed to provide a separate drive for The Stables, meeting Sandy Lane some way away from the shared drive which would continue to serve Heatherwood West and Heatherwood South.

[34]The planning permission granted on 10 February 1959 gave permission for the proposed development (just in time for the conveyance of 18 February 1959, whereby Mrs Secretan retained The Stables but disposed of the rest of the land). Conditions were imposed “in the interests of and for the safety of persons and vehicles using the premises and/or the adjoining road.” The conditions to the permission required that instead of a separate drive for The Stables there be a single drive, which was to be “reconstructed in accordance with the dimensions and constructional details shown on the drawing (overleaf) type F”. Here is the drawing, sometimes referred to as a “schematic” because it is simply a diagram, in standard form, intended to show the sort of layout required without matching the requirement to the actual plan:

[35]The wording on the schematic indicates that the existing drive was 10 feet wide, and that its width was to be doubled for a short way. It is impossible to be sure about the geometry of the plan and so it is impossible to tell for how far the drive was required to be 20 feet wide, but it had to be that width for something over 10 feet, perhaps 15 feet or more but apparently less than 20 feet. The diagram appears to envisage – but does not require – that an additional drive to The Stables then diverges westwards from the 20-feet-wide entrance; but as can be seen from all the plans copied above that has never happened and The Stables continues to share the drive used by Heatherwood South and Heatherwood West. The schematic refers to granite “setts” across the junction with the highway, and it is common ground that these are present today; they are lighter-coloured stones set into the drive where it meets Sandy Lane. The planning permission required a line of setts 35 feet long; the current line extends to 33 feet. Schematic F also appears to envisage that the drive would be widened to the west; but neither party has suggested that the western edge of the drive has moved.

[36]As to the constructional details referred to on the previous page, at the bottom of the page on which schematic F was set out was a diagram showing a cross-section of a road, made up of 2 inches of tarmacadam on top, 6 inches of hardcore beneath and then 3 inches of clinker, and depicting one of the granite setts in cross-section showing how it was to be inserted.

[37]The DB plan, copied at paragraph 6 above, contains lines and triangles where the drive meets the road which have been superimposed by Mr and Mrs Hannah on the DB plan and are intended to show how Area A represents a widening of the drive in conformity with the schematic. Mr and Mrs French do not agree. In my judgment the superimposition of the block plan is simply a conjecture and I give it very little weight. But it is not in dispute that the width of the metalled drive together with the width of Area A is about 20 feet at point B.

[38]On 13 April 1959 (before the conveyance that created the boundary) Mr and Mrs Johns’ solicitor wrote to the local planning authority confirming that the main residence had now been divided and asking the authority to inspect it and to confirm that the work had been done in accordance with the council’s requirements. On 20 April 1959 the authority’s reply confirmed that the division of the building was in accordance with building regulations and also said:

“It is also confirmed that the development is in accordance with the planning permission given by this council.”

[39]Mr and Mrs Hannah’s case in the FTT was that the drive had been widened in accordance with the planning condition and that the process of widening the drive created Area A on a level with the metalled drive. They thought that the bank on its eastern edge, on which they said there are mature shrubs and trees, was created when the area was levelled. Mr and Mrs French’s case was that the bank was of recent origin, that the drive had not been widened and remained 10 feet wide throughout. No-one knows when the drive was metalled but Mr and Mrs French say that the drive is what is now metalled, that Area A has never been part of the drive, and therefore the boundary runs along the eastern edge of the metalling.

The FTT’s decision

[40]I said above that the neither party has appealed the judge’s findings of fact but that the parties do not agree what he found. I am going to set out the relevant paragraphs of the FTT’s decision interspersed with my findings as to what the judge decided.

[41]The judge correctly noted that the conveyance that created the boundary was that of the 20 May 1959, and that the plan to that conveyance was for the purpose of identification only. At paragraph 20 of his decision the judge explained that therefore the conveyance plans could not be relied on to show the precise dimensions of the road and then said:

“20. … [Mr and Mrs French’s expert witness’s] plan closely followed the line of the drive but was predicated on it having a width of 10 feet only. As will appear hereafter this is, in my judgement, an error. Area A 21. As to the surrounding circumstances, the Respondents in their statement of case produced a copy of the application for planning permission to Cuckfield Rural District Council made by CJ Austin, Surveyor, on behalf of LH Johns on the 7th January 1959. They also produced a copy of the decision to grant permission and associated correspondence between the Council and the solicitor acting for LH Johns. The copies are in places faint but they are just legible. The authenticity of these documents was not challenged in evidence and I am prepared to accept them. … 23. Planning permission was granted on the 10th February 1958[that is a typographical error: it was 1959] subject to conditions. … 24. The conditions indicate by reference to the block plan accompanying the application where the access to the newly divided property should be. The application envisaged an entirely separate entrance to the stables with its own connection to Sandy Lane. This was not permitted. The existing access was to be the single entrance to all three properties, but it was to be modified in accordance with drawing type F. A copy of this drawing is in evidence, and it requires a drive 20 feet wide at its junction with Sandy Way. It also requires some granite setts to mark the boundary of the drive with the public highway. Those setts are there today and I viewed them at the site visit. 25. There is, finally, a letter dated 20th April 1959 to Morrison Hewitt Harris, Solicitors, from the Clerk of Cuckfield RDC confirming inspection of the property and that the development was in accordance with the planning permission given by the Council. Unfortunately, the signature on the letter is no longer legible. 26. It was faintly argued because drawing F recited an access width of 10 feet for the existing drive, and a like width for the drive to Stable Cottage, and because no separate access to Stable Cottage was ever constructed, then the drive must have remained 10 feet wide throughout. In my judgement this argument has to be rejected. The tenor of the permission was that if the development was to proceed, there had to be a safe means of ingress and egress to and from the properties. This would be achieved by having a drive permitting the flow of traffic in either direction at the same time.”

Area A

[42]I interject there to say that so far the judge has found two important facts. He has found, first, that the granite setts required by the 1959 planning permission are in position today. I take that to be what he meant in paragraph 24, particularly from his reference to the setts as “those setts”. Second he has found (at paragraphs 20 and 26) that the proposition “that the drive … remained 10 feet wide throughout … has to be rejected”. At minimum therefore something has happened to the drive; it has not “remained” as it was. And it appears that the judge took the view that it was made wider to permit safe access to and from the properties for traffic in both directions at the same time.

[43]It does not follow from the reasoning so far that the drive is 20 feet wide all the way to the houses, which was impossible because of the bridge, nor that it was 20 feet wide all the way to the bridge, because the planning permission did not require that. To comply with the planning permission all that had to be done was to make the drive 20 feet wide for some distance from Sandy Lane, that distance being between 10 and 20 feet, nearer 20 than 10.

The judge continued:

“27. Drawing F also gives the surface specification for the new drive. The top two inches are binding gravel or tarmacadam, below that is 6 inches of hardcore and below that 8 inches of clinker. In her closing argument Counsel for the Respondents questioned whether the drive had been laid out as envisaged by drawing F. She said that the suggestion by the Applicants that the drive had been widened in 1959 was hypothetical. By contrast, Ms Mattson submitted that it was highly unlikely that Drawing F was ignored. She said that the drive had been excavated in 1959 in order to widen it and create a bank where it abutted HS. In evidence, Mr Mann accepted that the texture of the surface of Area A was compacted earth with gravel but without tarmacadam. By contrast, the surface of the drive contained tarmacadam. On the balance of probabilities, I find that the driveway was not excavated in 1959. Ms Mattson submitted that with passage of time, no significance could be attached to the difference between the surface of the driveway and the surface of Area A. This strikes me as implausible. The difference is too marked. There is no evidence of clinker or hardcore at Area A which would have been the purpose of the excavation. The letter of 8th April 1959 from the Council is evidence to the contrary, but the author of the letter is unascertained and has not been cross-examined. It is of very limited weight.”

[45]The first thing that we can see from that paragraph is that the judge has now referred to three requirements of the planning permission. The first was the granite setts (paragraph 24); the second was the widening (paragraph 26); paragraph 27 then says that the planning permission “also” required a particular surfacing.

[46]The judge then accepted Mr and Mrs Hannah’s expert’s evidence that the surface of Area A was compacted earth and gravel without tarmacadam, whereas the drive was tarmacked. The judge then said “I find that the driveway was not excavated in 1959.” He has moved from a proposition about Area A (it was not tarmacked) to a proposition about the drive (it was not excavated). He reinforced that proposition with a further assertion about Area A: there was no evidence of clinker or hardcore at Area A.

[47]I have to conclude from those words that the judge regarded Area A as part of the drive.

[48]I note that the judge did not make any finding about when the drive was tarmacked. There was no evidence about that. What I think he was saying was that the drive was widened in 1959; that Area A was created in order to effect that widening; but that the drive was not excavated as required by the planning permission. That might appear to contradict the letter of 20 April 1959, but the judge gave “limited weight” to the letter. I would add that the letter is not specific, and it may be that the planning authority’s surveyor was content with the road widening (on the east side of the drive not the west as schematic F envisaged) and was not concerned, or overlooked, the fact that the excavation required by the planning conditions had not been carried out.

The judge continued:

“28. Nevertheless, the true test to be applied is what the reasonable layman thought they were buying in May 1959. In my judgement, the western boundary of HS created by the May 1959 Conveyance was intended to be a line following the eastern edge of the drive serving (at its southern end) all three properties. The reasonable layman looking at that Conveyance and with the knowledge of the planning permission of the 10th February 1959, and the dimensions on drawing F, would have concluded that they were to own everything up to the edge of the drive. That drive was, or was intended to be, 20 feet wide at least as far as the entrance to Stable Cottage. In my judgement, a correct reading of the permission is that it envisaged a metalled carriageway of 20 feet as necessary to cope with the increased volume of traffic once the development was completed.”

[50]The parties agree that the judge went wrong in these paragraphs; Mr and Mrs Hannah did not seek a boundary 20 feet away from the western edge of the drive all the way to the entrance to Stables Cottage – nor to point F as the judge said in his order, nor to point E as the judge said in paragraph 40 of his decision. Instead, they say the boundary followed the line on their DB plan. I shall turn later to what Mr and Mrs French say about paragraph 28 of the FTT’s decision.

[51]At paragraph 29 the judge commented on what he described as the “antics” of the parties in relation to the topsoil in 2018 (paragraph 30 above) and said that they were of little assistance to him. At paragraph 30 he said that he now had to look at whether the line of the boundary created in May 1959 has moved since. That indicates that he took the view that everything he had said so far was about the boundary created in 1959. He stated in paragraph 30 that there had been no subsequent boundary agreement. He then discussed adverse possession:

“30. … I must briefly mention adverse possession. 31. Given the finding that the drive was not constructed with a metalled width of 20 feet means that the garden of HS extended beyond the boundary created by the 1959 Conveyance. The only evidence on this point is from the Second Respondent who stated that when she and her husband bought HS in December 2015 the drive (which she refers to as the public pathway) was single track bordered by the garden of HS. To the contrary was the evidence of Betty Chapman who worked intermittently for the Applicants as a gardener since 2007. She confirmed that the surface of Area A was from time to time covered with moss and algae. Leaves also gathered there which it was her duty to clear away. Mrs Chapman was challenged in cross-examination, but not in any way which advanced the case that there had been adverse possession by the Respondents. Maria Bernard who has lived at The Stables since November 2007 gave evidence about the use of Area A as a passing place, but no case of adverse possession by the Respondents was put to her. In my judgement, simply allowing shrubs and other vegetation to grow beyond the legal boundary of HS is not a sufficient degree of custody and control to engage the rules about adverse possession.”

[52]The alternative argument by Mr and Mrs French that Area A was theirs by adverse possession therefore failed; allowing shrubs and vegetation to grow beyond the boundary did not amount to adverse possession. There is no appeal from the judge’s finding on adverse possession.

[53]The first sentence of paragraph 31 confirms the finding in paragraph 27: the drive was not metalled to a width of 20 feet. I take the view that that does not alter the finding in paragraph 26 that the drive was nevertheless widened. And the judge’s comments in this paragraph confirm that he regarded Area A as being within the legal boundary to Heatherwood West; Mr and Mrs French’s argument that they were in possession of Area A was rejected, and that can only mean that the judge took the view that it had not been conveyed as part of Heatherwood South in 1959. As we saw above, he actually took that view about a more extensive area, because he thought that a strip 20 feet wide up to point E was in the ownership of Heatherwood West, and we have seen that that did not follow either from the legal test for deciding where a boundary is or from the facts that he had found in paragraphs 24 to 27.

The appeal

[54]Permission to appeal was granted to Mr and Mrs French by this Tribunal on the ground that it was arguable that the FTT “could not properly have concluded on the evidence before it that the drive was twenty feet wide between points B and E.”

[55]It is agreed by Mr and Mrs Hannah that that is correct; instead of being 20 feet wide all the way, the drive tapered from B to E as shown on the DB plan. Accordingly in any event the judge’s decision has to be set aside, and both parties are anxious for the Tribunal to substitute its own decision rather than remitting the matter to the FTT. But Mr and Mrs French go further; they argue that the edge of the drive, and the boundary between the two properties ran along the edge of the metalled area drive from A to E, so that Area A has always belonged to Heatherwood South. They say that that follows from the fact that the judge found that the drive had not been widened.

[56]In paragraph 2 of his skeleton argument Mr Morris said that “The central problem is that the FTT found as a fact that that access road has not been widened beyond its original width of ten feet. It is on that basis that Upper Tribunal Judge Cooke gave permission to appeal.” As can be seen from paragraph [54] above that was not the basis on which permission to appeal was given. And as can be seen from the extracts from the FTT’s judgment above, the judge did not find that the drive had not been widened. On the contrary at paragraph 26 he expressly rejected the proposition that it had not been widened.

[57]Mr Morris’ argument focused on paragraph 27 of the decision. He argued that the judge was in error about the legal test; the “reasonable layman” (Chadwick v Abbotswood Properties Ltd, see paragraph [23] above) does not have the planning permission in his hand. That may or may not be right; but if he did have the planning permission in his hand he would know that the drive was required to be widened, but not all the way to point E – which I think was the judge’s error here. However, the judge found as a fact at paragraph 26 that the drive was widened, and he referred in paragraph 27 to Area A as part of the drive; so the reasonable layman – whether or not he had the plan in his hand – would have seen that Area A had been incorporated into the drive and would have inferred that he now owned the land up to the eastern edge of Area A.

[58]What is not known is whether the rest of the drive, other than Area A, was metalled at that time. The judge at paragraph 27 said that “the drive was not excavated”. Perhaps what is now metalled was metalled by 20 May 1959, in which case it could make sense to say that “the drive” (meaning the drive as a whole) was not excavated because the main part of it was metalled but Area A was not metalled. But there was no evidence before the judge to enable him to conclude that and I do not think that is what he meant. He may have meant that Area A and the rest of the drive shared a common unmetalled surface in 1959, which was not excavated, on the basis that Area A was unlikely to have been treated differently from the rest of the drive despite the marked difference between the two today (to which he referred in paragraph 27).

[59]One further possibility is that when the judge wrote “I find that the driveway was not excavated in 1959” he meant to say “I find that Area A was not excavated in 1959”.

[60]That would be an unfortunate error since the issue between the parties was whether or not Area A formed part of the drive in 1959. But it is possible. After all, the granite setts were put in so some digging was done; it is perfectly possible that the rest of the “reconstruction” was carried out as specified in the planning permission but not for the full 20 foot width, leaving Area A as an unsurfaced passing place. If that is what happened it does not change my conclusion. At this point in his decision the judge had already found that the drive had been widened, and that it had been widened in order to facilitate access to and from Sandy Lane. So the widening must have taken place at the mouth of the drive. The distance from point B to the western edge of the drive is about twenty feet. So the widening, that the judge found had been done. was at or near the junction with the road, and that widening was Area A. And that is consistent with what the judge said at his paragraph 31, where he considered whether the owners of Heatherwood South had been in adverse possession of Area A, because the judge did not regard Area A as having been conveyed on 20 May 1959 as part of Heatherwood South.

[61]Accordingly my conclusion on Mr and Mrs French’s appeal is that I agree that the judge fell into error in his paragraph 28; the “reasonable layman” with the plan in his hand on 20 May 1959, whether or not he had the planning permission in the other hand, would not have concluded that a 20 foot strip from B to E remained in the ownership of Heatherwood West. But we know from the judge’s finding at paragraph 26 that the drive was widened. Area A had therefore been incorporated into the drive at that date and that would have been visible to the purchaser. With or without the planning permission in his hand, the reasonable layman would have found that the drive, which he did not own, included Area A.

[62]A different argument made for Mr and Mrs French relied upon the various conveyancing plans, none of which depicts a bulge for Area A. The judge’s finding that the drive was widened was made despite the absence of a bulge on any of the conveyance plans in 1959 or later and a corresponding absence on the Land Registry plans. However, none of the plans is on a particularly large scale and none purports to be precise; all the conveyance plans were for the purposes of identification only, and the Land Registry plans show general boundaries only. The judge found that the drive was widened as a result of the planning permission; and yet the depiction of the drive remains the same as it was in the February conveyance before it was widened. Therefore I take the view that the lack of a bulge on the conveyance plans does not indicate that Area A never became part of the drive. It did, but the conveyancers (none of whom need have seen the land) did not depict that on their plans.

[63]I conclude that Mr and Mrs French’s appeal fails.

Conclusion

[64]The judge’s decision is set aside insofar as it relates to the boundary between points B and E. I substitute the Tribunal’s decision that the boundary follows the line on the DB plan from point A to point E, and I shall direct the registrar to record that line on the register. Upper Tribunal Judge Elizabeth Cooke 23 June 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.