Neutral Citation Number: [2013] EWCA Civ 1497

Case No: B2/2012/3164
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
HIS HONOUR JUDGE HAMILTON
0RG02937
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 20th November 2013
Before :

LORD JUSTICE MOORE-BICK	
LORD JUSTICE PATTEN
and
LADY JUSTICE RAFFERTY
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Between :

	(1) RICHARD LANFEAR &
(2) MARY LANFEAR	Claimants/
Respondents
	
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	MARGARET CHANDLER	Defendant/
Appellant 	

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(Transcript of the Handed Down Judgment of
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Roger Smithers (instructed by Blandy & Blandy) for the Appellant
Caley Wright (instructed by Pitmans LLP) for the Respondents
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Judgment
Lord Justice Patten : 
1.	This is an appeal by Mrs Margaret Chandler from the order of HH Judge Hamilton QC dated 13th November 2012 which was made after a trial of a boundary dispute between Mrs Chandler and her neighbours, Mr and Mrs Lanfear.  The judge made a declaration as to the location of the true and proper boundary between the property of Mr and Mrs Lanfear at 3 Barton Road, Tilehurst (“no. 3”) and Mrs Chandler’s property at 5 Barton Road (“no. 5”).  Critically, for the purposes of this appeal, the judge decided that the line of the boundary lay some 5 inches from the wall of the side extension to no. 3.  This has the consequence that a car port erected by Mrs Chandler in front of her garage with supports resting on the disputed strip amounted to a trespass on the Lanfears’ property and the judge has ordered its removal.  Mrs Chandler appeals against his decision on this part of the boundary.
2.	She also raises an issue about his order in respect of the next section of the boundary where it runs along the length of her garage.  At the trial the difference between the parties was whether the line of the boundary lay adjacent to or 12” from the garage wall which abuts the garden of no. 3.  The judge indicated in his judgment that he accepted the view of the single joint expert that it lay 3.25” (80mm) from the wall but his order declares that the boundary follows the line of the wall itself, a position which Mrs Chandler contends is inconsistent with his judgment and is unsupported by any of the evidence. 
3.	To assist the readers of this judgment in understanding the layout of the site and the areas in dispute I have incorporated at the end of the judgment a copy of the agreed plan which forms part of the judge’s order.  To this, I have added various letters to identify the sections of the boundary which remain in dispute on this appeal.  Line A-B (which is not in dispute) denotes the outer edge of a line of 50 mm wide pre-cast concrete edging stones which abut what was originally the concrete driveway of no. 5.  This has since been tarmacked but the edging stones remain visible.  The adjacent front drives of both properties are level at the entrance to Barton Road but the drive of no. 5 rises gradually so that at point B on the plan there is a small difference in height between the two. 
4.	The boundary then turns right through 90 degrees between points B and C on the plan which mark what is now the front right hand corner of a brick built extension to no. 3 that was erected on what was originally open ground at the side of the house.  It then makes a second 90 degree turn to the left to follow a line between points C and D up to the front left hand wall of the garage at no. 5.  There are concrete edging stones along the drive of no. 5 between points C and D which the joint expert said were original and of the same type as between points A and B.  Between the outer edge of those stones and the wall of the brick extension to no. 3 is a thin (165 mm) strip of earth which is the first area in dispute.  Mr and Mrs Lanfear claimed that the outer edge of the concrete stones continued to form the boundary between the two properties between points C and D and the judge accepted this.  In doing so, he differed from the opinion of the joint expert, which was that the developer had left enough space between no. 3 and the boundary for a garage to be constructed hence the off-set of the boundary line between points B-C; but that the gap between what is now the extension to no. 3 and the outer edge of the concrete edging stones between points C and D provided room for a fence which was to belong to no. 5. 
5.	The evidence at the trial (including some early sales particulars of no. 5) was that no. 3, when first sold by the developers (George Wimpey & Co Ltd), had a section of white ranch-style fencing (about 4-5 feet high) running from the right hand corner of the house at no. 3 (point G on the plan) to point C.  A similar but much lower fence then continued from point C to point D along the strip of land now in dispute.  The issue for the judge was whether the land occupied by that return fence was part of no. 3 or part of no. 5. 
6.	Mr and Mrs Lanfear were the original purchasers of no. 3 which they acquired under a transfer dated 8th October 1971.  All the houses in Barton Road were constructed between 1970 and 1971 as part of a development by George Wimpey & Co Ltd.  The first two pairs of houses (which included no. 3 and no. 5) were show houses for the estate.  The original transfers identified the land conveyed by reference to a site plan on which all the boundaries are shown as straight lines.  The plan also contains “T” marks on the boundary lines to the rear of each property with the “T” mark on the no. 5 side of the boundary in dispute. 
7.	The terms of the original transfers are also important.  By clause 5 of each transfer the transferee covenanted with George Wimpey & Co Ltd that he would:
“(b) at all times hereafter maintain and keep in good repair the fence on the side or sides of the land hereby transferred marked “T” within the boundary on the said plan.”
8.	The judge found that the concrete edging stones I described earlier were an original feature of the drive to no. 5 but that there was no driveway to no. 3 and that the area to the side of no. 3 behind the white boarded fence between points G and C on the plan was an open area of grass bounded to the north and west by the white fence and to the east by the side wall of no. 3.  The white fence (both between points G and C and between points C and D) was erected by the developers with the posts on the no. 3 side of the fence.  Mrs Lanfear also gave evidence (which the judge accepted) that until Mrs Chandler and her late husband purchased no. 5 in 1988 the Lanfears and their neighbours had always treated the two sets of concrete edging stones as marking the boundary between their two properties. 
9.	As I explained earlier in this judgment, the joint expert, Mr John Morris FRICS, produced a report in which he expressed the opinion that the boundary between points C and D ran on the eastern side of the disputed strip because the fence which occupied it was intended to belong to the owners of no. 5.  The boundary then continued, he said, after a slight kink at point E, along a line 80mm from the eastern wall of the garage to no. 5.  The judge (in paragraph 39 of his judgment) said that he had no difficulty in accepting Mr Morris’ proposed boundary line between points E and F but that he rejected the evidence of Mrs Chandler’s witnesses that the boundary was marked by a fence some 9 to 12 inches away from the garage wall.  The declaration, however, in his order states that the true boundary between points E and F follows the wall of the garage. 
10.	The judge held that the boundary between points C and D lay along the eastern side of the concrete edging stones.  He rejected the contrary opinion of Mr Morris.  Although the expert accepted in evidence that the boundary was not a straight line as shown on the transfer plan and that changes in the position of the houses and their boundaries often occurred during the course of construction of a housing estate without being recorded on the transfer plan, he maintained a position on the boundary between points C and D which meant that the developer must have intended to convey to the purchasers of no. 5 the site of a fence even though it was not erected with the posts facing no. 5 which appears to have been a unique feature of no. 3.  The judge considered that this was unlikely to have been the developer’s intention and that any inferences to be drawn from the use of the “T” marks on the transfer plan were effectively countered by the position on the ground.
11.	The parties’ title to the disputed strip depends upon what was transferred to them or their predecessors in title in 1971.  It therefore turns on the true construction of the 1971 transfers which it is common ground were in materially identical terms and which used a plan whose scale and accuracy does not enable the dispute to be resolved by a process of measurement.  Mr Smithers’ principal argument in support of Mrs Chandler’s appeal is that the judge was wrong to regard the terms of the transfer as inconclusive on the issue of the boundary.  He accepts, as he must, that a lack of clarity in the conveyance plan or description can be resolved by reference to extrinsic evidence such as topographical features.  In such circumstances, the question is what would the reasonable layman think he was buying?: see Topliss v Green [1992] EGCS 20.  Reference to extrinsic evidence is therefore part of the process of construing the transfer or conveyance; not an alternative to it.  For this reason, one is not entitled to disregard the words of the conveyance or the effect of the plan and to look at the features of the site in isolation.  Moreover, the clearer its terms the stronger may be the case for giving the terms of the transfer primacy over inferences to be drawn from the position at the time on the ground.  Where the balance is struck depends on the relevant facts of each case.  Some of these issues were addressed by Mummery LJ in Pennock & Anor v Hodgson [2010] EWCA Civ 873 at [12] where he said:
“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] 1WLR 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.”
12.	Mr Smithers emphasised that the transfer plan in this case is not marked as for identification purposes only and is re-inforced by the use of the “T” marks which relate to the covenant in clause 5(b).  The obligation to repair is, he submits, inconsistent with ownership of the white boarded fence having vested in the claimants and the transfer is sufficiently clear in its terms to enable the reasonable layman to understand what its effect was intended to be.  Moreover, had he inspected the site, he would have seen that the concrete driveway to no. 5 was let in between points C and D so as to accommodate a fence.  There is nothing in this which contradicts the clear direction in the transfer that the fence at all points along the boundary was the responsibility of the owner of no. 5.
13.	Further support for this argument is said to be found in the decision of this court in Seeckts v Derwent & Anor [2004] EWCA Civ 393 where the conveyance plan marked a boundary by a line which included “T” marks as well as some measurements marked in feet and inches from various points on the boundary to a building known as the Clock House.  On the basis that the “T” marks indicated which of the adjoining parcels of land owned the boundary feature there was an inconsistency between the two means of identification.  Carnwath LJ decided that the “T” marks should prevail over the measurements:
“In my view, it is not possible to disregard the ordinary understanding of the T-marks. The natural implication is that they were intended to represent existing boundary features, and that those features were to belong to Clock House. This implication is consistent with the Judge's finding, for which there was evidence, that there was a "hedge" along the disputed boundary.”
14.	In the subsequent case of Avon Estates Ltd v Evans & Anor [2013] EWHC 1635 (Ch) HH Judge Cooke (sitting as a judge of the Chancery Division) expressed the view that the presence of “T” marks on a plan is not necessarily conclusive of the ownership of the relevant boundary feature:
“In my judgment, there is no single meaning or default meaning established by the evidence or authority that can be attached to T marks where a meaning cannot be ascertained by reference to the body of the conveyance or other admissible material. It may well be that the parties to the 1955 conveyance subjectively intended some meaning to be attached, but if they did, given the range of possibilities as to what it might be and the absence of any evidence to enable the court to identify what their intention might have been, that intention has not been carried into effect.”
15.	A similar approach is recommended in the recent version of Land Registry Practice Guide 40 to plans and boundaries which states at [9] that:
“The register will only show information concerning the ownership and/or maintenance of boundary features when this information is specifically referred to in the deeds lodged for registration. The most common marking on deed plans that relates to boundaries are ‘T’ marks. An entry referring to a ‘T’ mark is normally a statement concerning the ownership of a boundary structure or the liability to maintain and repair it.
If the ‘T’ marks are expressly referred to in the deeds lodged for registration then we will reproduce them on the title plan and refer to them in the register. As an alternative, the boundaries affected by ‘T’ marks may only be described verbally in the register, for example “The ‘T’ mark referred to [in paragraph/clause…] affects the [north western] boundary of the land in this title”. 
‘T’ marks on deed plans which are not referred to in the text of a deed have no special force or meaning in law and unless an applicant specifically requests that the ‘T’ marks be shown on the title plan, we will normally ignore them.”
16.	Mr Smithers criticised the decision in Avon Estates as a watering down of the ratio in Seeckts that “T” marks raised a presumption of law that the siting of the “T” mark indicated ownership of the boundary feature.  But I doubt whether Carnwath LJ intended to go that far.  He recognised that there is a common and well-established practice of using “T” marks to identify the ownership of the wall or fence marking the boundary.  That is undoubtedly a relevant factor to keep in mind when construing a conveyance by reference to a plan which incorporates “T” marks.  But whether it is determinative of the boundary depends upon balancing it against the other relevant terms of the conveyance and the features of the plan coupled, when appropriate, with evidence of the position on the ground.  The task of the court is to decide by reference to all these elements how the conveyance or transfer should be construed.  All are relevant but none is necessarily conclusive.  To say that the use of “T” marks raises a presumption of law (even a rebuttable one) that the boundary feature belongs to the adjoining landowner indicated by the use of the marks seems to me to be wrong in principle and in effect to pre-empt the process of construction on which the court is engaged.
17.	The present case differs from both Seeckts and Avon Estates because the “T” marks are used on the transfer plan to identify the subject matter of the express repairing covenant contained in clause 5(b) of the 1971 transfers.  The real force of Mr Smithers’ argument is that this covenant is inconsistent with ownership of the relevant fences being other than that of the covenantor.  
18.	Although I recognise the force of Mr Smithers’ argument on this point, I think that the judge was right to reject it.  It is common ground that the plan is an inaccurate representation of the position on the ground as built.  It assumes a straight line boundary with a single fence along all or most of the boundary line.  In fact, as the judge found, no. 3 was not constructed in that way.  It had no front drive (unlike no. 5); the boundary was stepped back between points B and C regardless of which property one regards the return fence as belonging to; it involved a further re-adjustment of the line between points D and E; and it had a different type of fence (post and wire) from point E to point F and beyond that between point C and point D.  Perhaps most significantly, the white boarded fence between points C and D was erected with the posts facing no. 3, conventionally an indication that the owners of no. 3 were intended to be the owners of the fence and to have responsibility for maintaining it: see Hawkes v Howe [2002] EWCA Civ 1210.  Consistently with this, the concrete edging stones which were used to mark the boundary between the front drive of no. 5 and the adjoining front garden of no. 3 were also used along the line of the boundary between points C and D.
19.	These differences between the position on site and the reference in clause 5(b) of the transfer to “the fence” on the eastern side of no. 3 do, in my view, create an ambiguity in relation to the terms of the transfer which requires to be resolved by reference to the position on the ground as it would have appeared to the reasonable layman at the date of the first purchase in 1971.  He would, I think, have regarded it as significant that the vendors had decided to mark the front boundary using concrete edging stones and had erected the white boundary fence on the no. 3 side of the continuation of those stones between points C and D.  He would also have taken into account the fact that the posts faced towards no. 3 and that if the return fence along the now disputed part of the boundary was intended to be part of no. 5 and therefore within the repairing obligations of the owners of no. 5, it would also mean that they would be responsible for the last few inches of the much larger white boarded fence at the front of no. 3 between points B and C.  This could (at least in theory) result in their choosing to paint that section of the fence a different colour from the remainder of the front fence.  The reasonable layman would, I think, be much more likely to conclude that both sections of the white fence leading up to the point where the owners of no. 3 had or were expected to construct a garage were intended to belong to no. 3 for whose benefit they were erected and to be maintained together by the owners of no. 3.  Clause 5(b) of the transfer would therefore have been construed as referring only to any fence beyond point E. 
20.	That takes me to the issue about the boundary line between points E and F.  Mr Smithers says that paragraph 1(f) of the judge’s order which declares that the boundary “follows the wall of the garage” is at odds with the findings in his judgment and, in particular, with paragraph 39 where he says:
“Nor do I have any difficulty in accepting Mr Morris’ proposed boundary line at the rear, along the eastern elevation of the defendant’s garage and continuing in a straight line to the rear fence.  I reject the evidence of the defendant’s witnesses that the boundary line was marked by a fence, some 9 to 12 inches off the eastern wall of the garage. ”
21.	He says that the judge overlooked the fact that the joint expert (who also rejected the appellant’s case that the fence was between 9 and 12 inches from the garage wall) considered that, on the basis of the photographic evidence he had at the time of his report, the fence and boundary line was parallel to but 80 mm from the garage wall.
22.	Mr Wright, on behalf of Mr and Mrs Lanfear, submitted that this ignores the fact that between writing his report and the trial the expert was presented with additional photographic evidence which indicated that the original fence had been positioned flush against the garage wall.  In particular, there is a photograph of the claimants’ daughter in the garden with one of the original fence posts in the background.  He says that the expert all but accepted in cross-examination that the fence was erected tight against the wall and that the judge simply made an error of memory in basing his declaration upon the original report.
23.	It is necessary, I think, to distinguish the issue I am concerned with from a separate issue also raised with the expert following his report which concerned the line of the boundary at point D.  The expert maintained that there was a straight line boundary from point C to point F.  It was put to him in correspondence that there was photographic evidence of the remains of a boundary post at or near point D which indicated that the boundary was not a continuous straight line but stepped out again between points D and E.  The expert conceded in a written answer (before trial) that this might indicate that his view of the boundary line at this point was incorrect but, as the judge recorded in paragraph 37 of his judgment, he continued to maintain his original view. 
24.	The dispute about the boundary line between points E and F is a different point which the expert addressed separately in a response dated 28th February 2011.  He seems to have accepted that the fence would have been erected directly against the garage wall but his 80mm measurement seems to be related to the width of the fence which, at this point, would have been in the ownership of no. 5.  I am not persuaded that an allowance of 80mm was wrong or that the judge did not intend to adopt 7.05 of the report in paragraph 39 of his judgment.
25.	I would therefore allow the appeal on this point and vary paragraph 1(f) of the order to incorporate the measurement.  I add this that the order was settled in draft by counsel and presented to the judge for approval.  The apparent discrepancy between paragraph 39 and the terms of the order which Mr Smithers was aware of at the time should have been raised with the judge when he was asked to approve the order.  He was not functus at the time and could easily have resolved the dispute there and then.  This is not a matter which should have been postponed to an appeal. 
26.	I would therefore vary paragraph 1(f) of the judge’s order as indicated but otherwise dismiss the appeal. 
Lady Justice Rafferty :
27.	I agree.
Lord Justice Moore-Bick :
28.	I also agree.