REF/2014/0668

PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
VALERIE TOMLINSON

APPLICANT

and

PETER GLYNN BENNALLICK

RESPONDENT

Property Address: Donkeys Meadow, Rosenannon, Bodmin PL30 5JP
 
Title Number: CL285082

Before: Judge Michell

Sitting at: Bodmin Law Courts  

On: 28th September 2015 

Applicants Representation:  In person 
Respondent Representation: Mr Barry Havenhand, counsel, Direct Public Access 
___________________________________________________________________________

DECISION
___________________________________________________________________________

ALTERATION OF REGISTER-WHETHER MISTAKE ON REGISTER-CONSTRUCTION OF CONVEYANCE-WHETHER RESPONDENT IN POSSESSION-WHETHER REGISTER SHOULD BE ALTERED-WHETHER EXCEPTIONAL CIRCUMSTANCES JUSTIFYING NOT ALTERING THE REGISTER

Cases referred to
Alan Wibberley Building Limited v. Insley [1999] UKHL 15
J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419
Ali v. Lane [2006] EWCA Civ 1532
Strachey v Ramage [2008] All ER D 267
Baxter v Mannion [2010] 1 WLR 1965
Pennock v. Hodgson [2010] EWCA Civ 873
Paton v. Todd [2012] EWHC 1248 (Ch)
Gold Harp Properties Ltd. v. McLeod [2014] EWCA Civ 1084

1.	The Applicant, Mrs Tomlinson applied to HM Land Registry on 19th January 2014 to alter the register of title number CL285082 to remove from that title an area of land lying adjacent to and immediately to the south of her property, Vincent’s Cottage.  I shall refer to the area in question as “the Disputed Land”.   Mrs Tomlinson does not claim to be the owner of the Disputed Land but asserts that there is a mistake on the register in that the Disputed Land should not be included in title CL285082.  Mr Peter Bennallick is the registered proprietor of CL285082.  He objected to the application. He asserts that there is no mistake on the register but that if there is any mistake, the register should not be altered as he is in possession of the relevant area of land.   HM Land Registry referred the matter to the Tribunal for determination.

2.	I inspected the relevant land and the locale in the presence of the parties on the afternoon before the hearing.  The land in issue lies in the small village of Rosenannon.  A track runs north from the public highway through Rosenannon.  The track slopes up hill from the public highway.  The track is bordered on the west side by the garden and side flank wall of a house called “Sunnyside” and on the east side by the garden wall and side flank wall of a house called “Riverside Cottage”.  The land in question is the northern end of the track, where it is bounded (1) on the east by the flank wall of Riverside Cottage and a fence running north from the northwest corner of Riverside Cottage, (2) on the north by a barn now used as a garage and forming part of Mrs Tomlinson’s property , (3) on the west by the north east corner of Sunnyside and by an open area of land lying between the grounds of Vincent’s Cottage to the north and the garden fence of a house called Donkeys Meadow on the west and (4|) on the south by the grounds of Sunnyside.  In order to gain access to Vincent’s Cottage, it is necessary to pass over the track, including over the relevant area and from there over the open area adjoining the southern boundary of Vincent’s Cottage.  The whole of the track is surfaced with aggregate.  The open area is also surfaced with aggregate.  The southern part of the open area was being used at the time of my visit to park two cars.   Vincent’s Cottage and the land to the east and west of it are at a higher level than the track and slope up hill northwards.   

3.	The land now registered under title number CL285082 was first registered on 30th March 2001 as part of title CL169597.  The deed inducing first registration was a transfer not for value dated 31st March 2000 made between (1) Arthur John Bennallick and William George Vercoe Bennallick as transferors and (2) Arthur John Bennallick as transferee.  The Respondent, Peter Bennallick is the son of Arthur John Bennallick.  Arthur John Bennallick and Maria Bennallick transferred part of CL169597 to Peter Bennallick by a transfer dated 2nd November 2011 and on 8th November 2011 the land transferred was registered under title number CL285082.

4.	The root of title produced on first registration was a conveyance dated 31st December 1965 made between (1) William Henry Benny as vendor and (2) William Henry Bennallick, Arthur John Bennallick and William George Vercoe Bennallick as purchasers.  By that conveyance, the vendor as “Beneficial Owner” conveyed to the purchasers
“ALL THAT freehold farm and land known as Rosenannon Farm Saint Wenn in the County of Cornwall containing a total of 36.748 acres or thereabouts which said property is for the purpose of identification only delineated and edged red on the plan attached hereto and the individual acreages of the fields and enclosures comprised therein are more particularly specified in the First Schedule hereto”.
The First Schedule contained a list of Ordnance Survey parcel numbers with an acreage for each such parcel, such acreages being expressed to three decimal points.  The acreages given (save for the final entry in the schedule) are those appearing on the Ordnance Survey map published in 1907. The final entry in the First Schedule reads as follows
	“Parts 433			.75”
indicating that more than one part of OS 433 was included and that the area of those parts totalled .75 of an acre.

5.	The 1965 conveyance included the reservation of an easement in the following terms
“Except and Reserving unto the Vendor and his successors in title and all persons authorised by him and them the right to pass and re-pass on foot at all times over that part of the property hatched blue on the said plan for the purposes of passing to and from the dwellinghouse and land of the Vendor shown coloured green on the said plan”.  

6.	The original conveyance, including the plan, was produced in evidence.  The conveyance plan is drawn on a tracing made by hand of another map.  It appears to be common ground that the other map was an Ordnance Survey map 1907 edition.  As the tracing is drawn by hand it does not appear to be an entirely exact reproduction of the Ordnance Survey map.  Mr Bennallick pointed out two areas in which the plan was an inaccurate copy of the Ordnance Survey map, being areas by a stream.  Further, the outlines of buildings has been drawn in a somewhat casual manner so that walls which appear as straight lines on the Ordnance Survey map are drawn with some degree of curvature on the conveyance plan.  A red line is drawn on the reverse of the traced plan and also on the reverse, an area is coloured green and another area is hatched blue.  The area coloured green is Vincent’s Cottage and grounds but this does not appear to include the barn now used by Mrs Tomlinson as a garage.  The area hatched blue is approximately the eastern half of the open area to the south of Vincent’s Cottage.  It is shown running to the south to the north boundary of Sunnyside and appears to adjoin the track on its eastern side.  The blue hatched area does not appear to extend further east than a line projected from the northeast corner of Sunnyside and does not include land to the south of the barn/garage.  The red edging is drawn so as to include the blue hatched area and land on both the east and the west sides of the green hatched area.  The red edging around land to the east of the green area includes the barn/garage and the land comprising Sunny Corner but excludes the track, Riverside Cottage and the area behind Riverside Cottage shown on the conveyance plan as open to the track but now fenced off from the track by the fence running north from the northwest corner of Riverside Cottage.          

7.	It is common ground that the 1965 conveyance plan did not include within the red edging the land the subject of these proceedings, namely the northern half of the track.  It is Mr Bennallick’s case that there is an error on the conveyance plan in that the red edging should have extended to include the northern part of the track.  He also says that the area hatched blue on the plan is not the area over which a right of way was reserved by the conveyance but that the north of the track should have been shown hatched blue as the area over which a right of way was reserved.  Mr Bennallick says that the northern section of the track was included in the written description of the land conveyed, as appearing on the true construction of the parcels clause and the First Schedule and that since the plan is said to be for the purpose of identification only, the words of the conveyance prevail over the plan.  He says, therefore that there is no mistake on the register.

8.	The 1965 conveyance includes an acknowledgement of the right of the purchasers to the production of the documents specified in the Second Schedule.  Those documents are documents which would have been retained by the vendor because they showed the title of the vendor to the retained land.  The documents do not show the title of the vendor to all the land conveyed.  It would have been normal conveyancing practice for documents showing title to land conveyed but not showing title to the lands retained, to have been handed over to the purchasers on completion.

9.	The first document listed in the Second Schedule is a conveyance dated 24th September 1920 made between Mary Tomn and Lilian Knowles as vendor and Harry Chapman and Emily Benny.  The conveyance was of 
“All Those closes enclosures and pieces or parcels of land situate at Rosenannon in the parish of Saint Wenn in the said County of Cornwall Together with the two cottages and outbuildings belonging to or held with the same closes of land containing together Twenty nine acres two roods and thirty seven poles or thereabouts and now in the occupation of Samuel Pedlar as tenant of the Vendors All which said hereditaments are more particularly described in the First Schedule hereto and by way of identification and not so as to affect in any way the description hereinbefore contained are shown on the map or plan annexed hereto and thereon coloured pink”.      
 The First Schedule contains a list of enclosure numbers under the heading “No. on Ordnance Map 1907 2nd Edition”, a description for each listed enclosure and an area for the enclosure, stated in acres to three decimal points (though the total area is given in the parcels clause in acres, roods and poles).  The First Schedule includes the following two entries
	“Pt. 433   Cottage, Garden Yard and Outbuildings   say     .500”
and
	“Pt. 433   Cottage and Garden                                             .075”.
The list of parcel numbers includes some but not all of the parcel numbers listed in the First Schedule to the 1965 Conveyance and also includes some parcel numbers which are not listed in the First Schedule to the 1965 Conveyance.  The plan to the 1920 conveyance shows coloured pink the area of Sunny Cottage, Donkey Meadow, the open area between Sunny Cottage and Vincent’s Cottage and part only of the area of Vincent’s Cottage.  It does not show coloured pink any part of the track or any land to the east of Vincent’s Cottage. It shows a solid line between the track and the open area between Vincent’s Cottage and Sunnyside.  

10.	The 1920 conveyance was to the purchasers as “tenants in common”.   The second document listed in the Second Schedule to the 1965 Conveyance is a conveyance dated 27th January 1932.  It is a conveyance by Harry Chapman to William Henry Benny of his equitable one half share in, and a conveyance by Harry Chapman and Emily Benny to William Henry Benny and Emily Benny of the legal title to,  
“All Those closes enclosures and pieces or parcels of land situate at Rosenannon in the Parish of Saint Wenn in the County of Cornwall Together with the two cottages and outbuildings belonging to or held with the said closes of land containing together twenty-nine acres two roods and thirty-seven poles or thereabouts and formerly in the occupation of a Samuel Pedlar and now in the occupation of the Trustees” [being Harry Chapman and Emily Benny] “All which said hereditaments are more particularly described in the First Schedule to the said Indenture of Conveyance of the Twenty-fourth day of September One thousand Nine hundred and Twenty and by way of identification and not so as to affect in any way the description hereinbefore contained are shown on the map or plan annexed thereto and thereon coloured pink”.            

11.	The 1932 conveyance included a declaration that the net proceeds of sale of the property conveyed were to be held on trust for William Henry Benny and Emily Benny as tenants in common in equal shares.  The documents listed in the Second Schedule to the 1965 conveyance include the grant of probate of the will of Emily Benny and an assent vesting the interest of Emily Benny in the property conveyed by the 1932 conveyance in William Henry Benny.

12.	Mr Bennallick produced a conveyance dated 29th September 1919 made between Frederick Holman and Emily Low as vendors and Harry Chapman as purchaser.  The land conveyed was described in the conveyance as
“All Those the Farm tenement and premises known as Rosenannon Farm situate in the parish of St Wenn aforesaid and containing about 22.563 acres and numbered on the Ordnance Plan (1907 Edition) 332, 373, 381, 385, 386, 391,393, 398 pt, 425, 477, 451 and 458 Together with the Dwellinghouse and outbuildings thereon all which said hereditaments are in the occupation of Mrs Benny as tenant thereof …”    	
There is no plan to the 1919 conveyance though the 1907 Ordnance Survey map is referred to in the parcels clause.  Parcels 427, 477 and 478 were listed in the First Schedule to the 1965 Conveyance. No conveyance of those parcels by Harry Chapman or someone claiming through him to William Henry Benny was in evidence or referred to in any other documents in evidence.  However, the 1919 conveyance is endorsed with a memorandum of the 1965 conveyance including a statement that William Henry Benny gave an acknowledgment and undertaking with regard to the 1919 conveyance.  It therefore appears that the 1919 conveyance was a document of title on which William Henry Benny relied on his conveyance to the Bennallicks in 1965.

13.	It is to be noted that no part of OS 433 was conveyed by the 1919 conveyance.  The documents of title pre-dating the 1965 Conveyance show only a conveyance to William Henry Benny of Parts of OS433 measuring in total .575 acres.  If a further part or parts was conveyed, the relevant conveyance was not in evidence.   

14.	The 1907 Ordnance Survey map shows by tie-marks that parcel number 433 is made up of Donkey Meadow, Vincent’s Cottage, Sunny Corner, Riverside Cottage, Sunnyside, the open area between Vincent’s Cottage and Sunnyside and the whole of the track.  That the whole of the track is included in the parcel is shown by the presence of tie-marks.  Two tie-marks are drawn in part on the track.  One is on the lower part of the track and is drawn to extend from the front garden of Riverside Cottage onto the track.  The second is drawn partly over the house at Sunnyside and partly on the track.  The area of the whole parcel is given on the map as being 1.109 acres.  	 

15.	Mr Bennallick’s case is that the reference in the First Schedule to the 1965 Conveyance to “pts. 433” includes the area in issue in these proceedings because it is stated therein to be an area of 0.75 of an acre and if the disputed area is not included, the parts of OS 433 conveyed would amount to significantly less than 0.75 of an acre.  He says it would amount to 0.722 of an acre.  He produces an area of 0.75 acres by including in addition to the area shown edged red on the 1965 Conveyance plan (i) an area of 26 square metres described as an “access area” providing access from a track shown running along the northern boundary of Vincent’s Cottage, into Donkey’s Meadow (being an area now included in the title plan to Mr Bennallick’s title after an alteration of that plan by Land Registry on the application of Mr Bennallick); and (2) the disputed land.  The area excluding the disputed land but including the “access area” would according to Mr Bennallick’s measurements be 0.731 acres.  Mr Bennallick measured the area of the whole of OS 433 using Google Earth Pro and came to an area of 1.123 acres.  That is greater than the area of OS 433 shown on the 1907 Ordnance Survey map, where it is stated to be 1.109 acres.  Mr Bennallick says that if the part of the track that is not the disputed land is excluded from OS433, the total area of OS433 would be 1.109 acres.
 
16.	Expert evidence was given by a jointly instructed surveyor, Mr Middlewick.  Mr Middlewick produced a report in which he expressed the opinion that the Disputed Land was not included in the 1965 Conveyance, his opinion being based on his construction of the conveyance and not strictly on matters the proper subject of expert evidence by a surveyor.  However, Mr Middlewick did give expert evidence as to the method of measurement used by Mr Bennallick and was cross-examined on this by counsel for Mr Bennallick. Mr Middlewick made four points about Mr Bennallick’s measurements. 
(1) Firstly, he said it is not known how the area measurements on the 1907 map were arrived at; whether they were measurements taken from the face of the hedgerows or from the centre line of the hedges; or were taken to the lip of a ditch beside the hedge.  The answer to this question might be found in the instructions given by Ordnance Survey to the surveyors who conducted the surveys for the 1907 map but Mr Middlewick did not produce any evidence of what such instructions were.
(2)  Secondly, he said the longitude and latitude co-ordinates used by Google Earth for calculating area might not be accurate.
(3) Thirdly, he said that the area measurement given on Google Earth Pro (or at least the trial version) is a plan measurement based upon the horizontal plane and will not give an accurate surface area measurement if the land slopes.
(4) Fourthly, he said that the positioning of the measurement points on the Google Earth photographs may be imprecise because the photographs will show an aerial view of vegetation along a hedge line and not the exact line of the centre of the hedge
Mr Bennallick submitted as to these points as follows:
(1) the area measurement is taken to the centre line of the hedge (he produced no evidence to support this but in Alan Wibberley Building Limited v. Insley [1999] UKHL 15 Lord Hoffman said that if one field is divided from another by a natural feature such as a hedge, the line on the Ordnance Survey map will indicate the middle line of the hedge.  It would seem to follow that it is likely that the areas of the parcels where the edge of the parcel is a natural feature such as a hedge are calculated to the middle line of the hedge); 
(2) measurements of various parcels using the Google Earth Pro method produced the same areas as are shown on the 1907 Ordnance Survey map; and
(3) the edition of Google Earth Pro he used, allows for the measurement of areas to take account of contours.  Mr Bennallick had measured in this way various enclosures and says he has obtained resulting area measurements which were the same as the measurements on the 1907 Ordnance Survey map.

Construction of Documents – The Legal Principles
 17.	      The significance of reference to a plan “for the purpose of identification only” was
considered by the Court of Appeal in Strachey v Ramage [2008] All ER D 267 at paragraphs 31 to 34
“31.	The formula “for the purpose of identification only” is one whose use is time-honoured. Its ordinary sense is that a plan so described is intended to do no more than identify the position and situation of the land: it is specifically not intended to identify its precise boundaries.  The use of such a plan is therefore strictly only appropriate for a case in which the verbal description in the parcels identifies the limits of the land with adequate precision since it is a formula which indicates that the verbal description is intended to be decisive in that respect.  Such a plan “cannot control the parcels in the body of any of the deeds” (Hopgood v. Brown [1955] 1WLR 213 at 228 per Jenkins LJ); it “cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification” (Wibberley, per Lord Hoffmann).  
32.	The use of this formula - “for the purpose of identification only”- is to be contrasted with the case in which the parcels clause gives a verbal description of the land but also refers to the land as being “more particularly delineated” on the plan.  In such a case, in the event of any uncertainty between the words and the plan, the latter will ordinarily prevail over the words and will control the verbal description (see, for example, Wallington v. Townsend [1939] 2 All ER 225, at 235D to 236H).  Finally, I should not overlook the practice of many conveyancers – no doubt happily innocent of the relevant principles- who used to hedge their bets by introducing the plan by an incorporation of both formulae, a subject on which Megarry J commented famously in Neilson v. Poole (1969) 20 P&CR 909, at 916.  There is, however, no need to discuss that for present purposes.
33.	Having drawn the well-recognised difference of legal effect as between the two formulae commonly used in conveyances to introduce a plan, I would nevertheless supplement it with the self-evident cautionary truth that every case of course turns on its own facts.  In any case the task of identifying the parcels of land conveyed will require an interpretation of a particular conveyance against the background circumstances in which it was made; and the function of the court will be to use all admissible material in order to arrive at the correct answer.  This is well illustrated by, for example, the Wigginton case, to which I have already referred.  In that case the verbal description in the parcels clause was too imprecise to identify the boundaries of the land in dispute, and the only means of doing so was to have recourse to the accompanying plan, even though it was stated to be “for the purpose of identification only”.  This court declined to accept the proposition that the application of principle require it to reject recourse to the plan for such use.  Bridge LJ said at page 447:
“I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of any case where the boundary shown on the plan “for the purpose of identification only” is the sole means which the conveyancer affords to indicate where the boundary is intended to be drawn.  To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels.  The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words “for the purpose of identification only” should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained”.            

18.	In construing the parcels clause of a conveyance, the court is always bound to consider the terms of the document as a whole.  In Strachey v. Ramage at paragraph 29 Rimer LJ said
“It is a statement of the obvious that the crucial provision in the conveyance was the parcels clause, since it was there that the parties identified the land being conveyed. It is, however, fundamental that the parcels clause in a conveyance should not be considered in isolation from the remainder of the document. It is a general, and basic, principle of the construction of documents that questions of interpretation should be answered by considering the document as a whole, since only then can the provision giving rise to the question be seen in its proper context.  There can be no reason for this principle not to be equally applicable in relation to the interpretation of a conveyance for the purpose of identifying the limits of the land conveyed by it”. 

19.	In cases where there is some uncertainty as to the parcels, in construing the conveyance it is permissible to have regard to the surrounding physical and other circumstances.  In Pennock v. Hodgson [2010] EWCA Civ 873 Mummery LJ said
“12.	Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this is 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 takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction.    
13.	Before the judge and in this court it was agreed that the parties’ subjective beliefs about the position of the disputed boundary in this case and who owned the bed of the stream were extrinsic evidence that was inadmissible in the construction of the relevant conveyance – Investors Compensation Scheme Ltd. v. West Bromwich BS [1998] 1 WLR 896 at 913.  The effect of the conveyance is not determined by evidence of what the parties believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean”.

20.	Regard may be had to evidence of subsequent conduct, provided that such evidence has probative value. The law is stated in the judgment of Carnwath LJ in Ali v. Lane [2006] EWCA Civ 1532 at paragraphs 36 to 38:
36.	The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided.  In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.
37.	The qualification is crucial.  When one speaks of “probative value” it is important to be clear what needs to be proved.  In this case the issue concerns the line of a boundary which was fixed not later than 1947.  Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related, to physical features which were in existence in 1947.  Similarly, evidence of Mr Attridge Senior’s understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value, even if admissible.  Such evidence begs the questions whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, particularly having regard to the disused state of the disputed land during this period.
38.	I would add that in principle reference to the intentions of the parties means the parties to the original conveyance.  Thus in Watcham the user relied on by the Privy Council was that of the Watcham family, who were beneficiaries of the original certificate.  In none of the cases reviewed above was account taken of the conduct of subsequent owners.  Megarry J. might possibly have been willing to go further.  Where the evidence of the intentions of the original parties is unclear, long and unchallenged usage may, as he said, be
“ … a good reason for tending to construe the (original) conveyance as having done what the parties appear to have treated it as having done…”.
I do not read that as necessarily confined to long usage by the original parties.  We need not decide whether that is a permissible extension of the Watcham principle.  It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary.  That is not this case.  The unilateral actions of the owner of one side (in this case Mr Attridge) could not be relied upon as binding the owner of the other.”

21.	The application made by Mrs Tomlinson is for rectification of the register under Schedule 4 to the Land Registration Act 2002.  The alteration she seeks would involve the correction of a mistake on the register and would prejudicially affect the title of the registered proprietor.  It is therefore “rectification” within the meaning of paragraph 1 of the schedule.  The registrar has power under paragraph 5 of Schedule 4 to alter the register for the purpose inter alia of correcting a mistake. Mrs Tomlinson says that the alteration is necessary in order to correct a mistake on the register.  As the application is for rectification of the register, the following provisions of paragraph 6 of the schedule would apply, namely
	(2) No alteration affecting the title of the proprietor of a registered estate in land may 	be made under paragraph 5 without the proprietor’s consent in relation to land in his 	possession unless –
  		(a) he has by fraud or lack of proper care caused or substantially contributed to 		the mistake, or
		(b) it would for any other reason be unjust for the alteration not to be made 
	(3) If on an application for alteration under paragraph 5 the registrar has power to 	make the alteration, the application must be approved, unless there are exceptional 	circumstances which justify not making the alteration.
  
22.	I find that there is a mistake on the register. As a matter of construction of the 1965 Conveyance, I find that the disputed land was not included in the land conveyed to Mr Bennallick’s predecessor in title.  It follows that at the date of registration, the disputed land should not have been included within the registered title.   I find that the disputed land was not included in the land conveyed by the 1965 Conveyance for the following reasons.
(1) The verbal description of the land conveyed is too imprecise to indicate whether the disputed land is or is not part of the land conveyed.  There is no evidence as to whether the disputed land was or was not at the time of the conveyance part of the land known as Rosenannon Farm.  Though a defined area is given in the schedule for the Parts of OS 433 that were conveyed, there is nothing in the parcels clause or in the Schedule to identify which are the parts being conveyed.  The expression of a total area for the parts being conveyed does not without more enable one to say where the parts are. 
(2)  It is permissible and indeed necessary to look at the plan to identify the boundaries of the land conveyed, even though it is stated to be “for the purpose of identification only”.  As Bridge LJ said in the Wigginton case, the ascertainment of boundaries is an integral part of the process of identifying the land conveyed and the plan is expressed to be “for the purpose of identification”.
(3)  The plan shows the boundary of the land conveyed quite clearly as a line drawn in a position which excludes the Disputed Land.
(4) The measuring exercise carried out by Mr Bennallick does not demonstrate clearly that there is a conflict between the parcels clause and the plan such that to look to the plan to identify the boundaries would be to allow the plan to control the parcels clause.  Mr Middlewick identified a number of problems with seeking to re-measure using Google Earth Pro.  As he is the expert, in the absence of other expert evidence, I should be guided by him.  Further, I do not consider that I should accept the evidence of measurements from Mr Bennallick as the taking of measurements is a matter for an expert.   However, even if Mr Bennallick is correct in stating that Google Earth Pro permits measurements to be taken taking into account variations in the horizontal plane or in other words, to take into account the contours of the land, the fact that the measurements cannot be relied on is shown by Mr Bennallick’s own measurements.  Though the area of OS 433 is given on the Ordnance Survey map as 1.109 acres, Mr Bennallick is only able to arrive at this area on his measurement using Google Earth Pro by excluding part of the track, namely that part not included in his registered title.  However, it is clear from the Ordnance Survey map that the part of the track he suggests should be excluded from OS 433 was included by the Ordnance Survey as part of OS 433.  There are tie marks clearly tying the whole of the track into OS 433. I would also note that there is no evidence that the registered area of track was at the time of the production of the Ordnance Survey map physically divided from the area of track not included in Mr Bennallick’s registered title.  The map shows a track without any physical features dividing it into different parts. There would therefore appear to be no reason for the Ordnance Survey to have included in OS 433 only part of the track and it was not suggested on behalf of Mr Bennallick what reason there was. The measurement shown on the map as 1.109 acres is plainly shown on the map as including the whole of the track.  That Mr Bennallick cannot arrive at a measurement of 1.109 acres for the whole of the OS 433 area using Google Earth Pro but produces a measurement of 1.123 acres is a clear indication that his operation of the Google Earth Pro system does not produce the same measurements as the methods used by the Ordnance Survey when compiling the map.  Further, it is then not surprising if his Google Pro Earth measurement of the parts of OS 433 shown on the 1965 Conveyance plan as within the boundaries of the land conveyed produces a different measurement from that stated in the Schedule to the Conveyance.  In my judgment, the measurement stated in the Schedule for the Parts of OS 433 conveyed, could only be helpful in ascertaining the boundaries if the system of measurement used to produce the figure of 0.75 acres set out in the schedule was known with precision and if there was a clear re-measurement using that system.  I do not have such evidence.              

23.	Mr Bennallick submitted that the blue colouring on the plan to the 1965 Conveyance  showing the area over which Mrs Tomlinson’s predecessor in title was granted a right of way is in the wrong place because (i) there was a wall dividing the blue area in part from the track and (ii) part of the blue area beside the wall and beside the northern boundary of Sunnyside did not provide any access between Vincent’s Cottage and the track or the road and so was not needed for the right of way.  If this is right, it might suggest the blue colouring was inaccurately applied but that does not mean (as Mr Bennallick suggested) that the blue colouring should have been of the track.  It could have been of just a smaller part of what is now coloured blue.  This argument does not assist.

24.	I should add that the evidence of Mrs Tomlinson entering into deed of easement with Mr Bennallick is not of probative value in construing the 1965 conveyance.  Mrs Tomlinson is not an original party to the 1965 conveyance.  Mrs Tomlinson sought to make an earlier application to alter the register in 2007 but this application was withdrawn because it was at that time considered that to make an application for alteration of the register it was necessary for the applicant to have an interest in the land the subject of the application.  The law was subsequently clarified in Mann v. Dingley [2012] PLSCS 106 and Mrs Tomlinson made the current application.  Until the register is altered, Mr Bennallick remains the registered proprietor of the area.  As the registered proprietor of the disputed land, he was the person who was entitled at the date of the deed of easement to possession and the person who could grant an easement.

25.	Although it had previously been argued in other cases that the registrar had no power to alter the register where the mistake had been made on first registration against a registered proprietor who had subsequently taken a transfer of the registered title, it is now established that the registrar has power to alter the register in those circumstances.  The subsequent registration of the transferee as proprietor is either a mistake or can be seen as a consequence of the initial mistake.  In Gold Harp Properties Ltd. v. McLeod [2014] EWCA Civ 1084 at paragraph 95 Underhill LJ said “it is established by the decisions to which I have referred that the power to [correct mistakes on the register]  so extends to correcting the consequences of such mistakes”.  

26.	Having found that there is a mistake on the register, the next question for me to decide is whether Mr Bennallick was in possession of the Disputed Land at the date of the application.   I find that Mr Bennallick was not at that date in possession of the Disputed Land.  The reference in para. 6(2) of Schedule 4 to the land being "in his possession" imports the definition of "proprietor in possession" in LRA 2002 section 131 which refers to land being "physically in his possession".  Henderson J applied the definition in section 131 in this context in Baxter v Mannion [2010] 1 WLR 1965. The requirement that there be physical possession of the land is to be interpreted in accordance with the general law as to the meaning of possession: see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and Ruoff & Roper on Registered Conveyancing at para. 46.013. Mr Bennallick’s action did not have a sufficient degree of exclusive control to amount to possession of the Disputed Land.  His actions on the land did not demonstrate such control.  His evidence was that he sprayed weeds on the track annually and put aggregate or gravel on the track when needed.  The putting down of aggregate did not amount to the whole scale resurfacing of the track but was limited to filling in some pot holes.  He also drove over the track to get access to Donkeys Meadow.  I do not consider that these things separately or taken together amount to physical possession of the track.  Although he had erected a gate across the track, which would have given him sufficient control, this had been torn down some considerable time before the present application was made.  Accordingly, this is not a case of rectification to which paragraph 5 of Schedule 4 applies. 

27.	As there is a mistake on the register and the conditions of paragraph 6(2) are not met, the application for rectification must be approved unless there are exceptional circumstances which justify not making the alteration. In Paton v. Todd [2012] EWHC 1248 (Ch), Morgan J. said this about “exceptional circumstances”,
	“"Exceptional" is an ordinary, familiar English adjective. It describes a circumstance 	which is such as to form an exception, which is out of the ordinary course, or unusual 	or special, or uncommon; to be exceptional a circumstance need not be unique or 	unprecedented, or very rare but it cannot be one that is regularly, or routinely, or 	normally encountered: see R v Kelly [2000] 1 QB 198 at 208 C-D (a decision from a 	very different context but nonetheless helpful as to the ordinary meaning of "	exceptional circumstances"). Further, the search is not for exceptional circumstances 	in the abstract but those which have a bearing on the ultimate question whether such 	circumstances justify not rectifying the register.”
The fact that Mrs Tomlinson does not herself claim title to the Disputed Land but yet is seeking to divest Mr Bennallick of title to it is capable of being an exceptional circumstance – see Paton v. Todd at para 76.

28.	The question then is whether the fact that Mrs Tomlinson is not herself someone with a claim to be registered as proprietor of the Disputed Land, taken with all other relevant circumstances, does or does not justify a refusal to alter Mr Bennallick’s title.  The other relevant circumstances appear to me to be as follows.
(1) No-one with a good claim to be the owner of the Disputed Land has been identified.  Mrs Tomlinson told me that she had carried out some investigations and had at one time thought that it was the Prideaux Estate.  That had subsequently proved not to be the case.  
(2) The owner of the part of the track not included within Mr Bennallick’s title is not known.
(3) Both Mr Bennallick and Mrs Tomlinson need to cross over the Disputed Land in order to access their property.  
(4) They both also need to pass over the remainder of the track.
(5) It was plainly intended by the 1965 Conveyance that Mrs Tomlinson should have access to the track in order to get in and out of her property and for that reason was given a right of way over retained land.  
(6) If the register is not rectified, Mrs Tomlinson will either be dependant on the agreement of Mr Bennallick to cross the Disputed Land as she needs to do or have to establish the existence of a prescriptive right of way.  If Mr Bennallick does not agree that Mrs Tomlinson has a prescriptive right of way, she will be put to expense in trying to establish the existence of such a right of way.               
(7) If the register is rectified, both Mrs Tomlinson and Mr Bennallick will be able to pass over the whole of the track, at least until someone comes forward to establish a good title to the track and opposes their use of it. 
Having considered all the circumstances, I consider that the fact that Mrs Tomlinson is not a person with a claim to title to the track is not an exceptional circumstance which justifies not altering the register.
 
Conclusion
29.	As there is a mistake on the register, Mr Bennallick was not at the date of the application in possession of the Disputed Land and there are no exceptional circumstances justifying not altering the register, I shall direct the Chief Land Registrar to give effect to the application of Mrs Tomlinson to alter the register so as to remove the Disputed Land from Mr Bennallick’s title, as if the objection of Mr Tomlinson had not been made.

Costs
30.	Mrs Tomlinson has succeeded in these proceedings and has incurred the costs of the proceedings because Mr Bennallick objected to her application without any grounds good in law.  In the circumstances, my preliminary view is that it is just that Mr Bennallick pay Mrs Tomlinson’s costs to be assessed, on the standard basis.  Any party who wishes to submit that I should make some different order as to costs should serve written submissions on the Tribunal and on the other party by 5pm on 25th November 2015.  

Dated this 11th November 2015

BY ORDER OF THE TRIBUNAL