Van Zyl and another v Walker-Smith

Land – Boundary dispute – Attached plan – Parties owning maisonettes in part of building – Gardens to rear of building containing hedge – Dispute arising concerning boundary between gardens – County court finding in favour of respondent – Appellants appealing – Whether judge wrongly disregarding lease plan marked “for the purpose of identification only” – Whether judge erring when considering evidence as to location of boundary – Appeal dismissed The respondent and the appellants were respectively the leaseholders of 34 and 36 Albany Crescent, Claygate, Surrey, which were maisonettes comprising the right half of a larger building. No 34 was on the ground floor and No 36 on the first floor. The gardens to the rear of the building contained a hedge which the appellants removed in 2019. No 34 was first demised by a lease in November 1988 which predated the lease for No 36, made in March 1989. The No 34 lease thus created the boundary but since both leases were consistent, nothing turned on that. The premises included in that lease were described as a self-contained flat on the ground floor comprising the property and garden shown “for the purpose of identification only” edged red on the plan attached to the lease. In October 2020, the respondent sought a declaration that he was the leasehold owner of the land edged in red on the lease plan of No 34, and that the southwest boundary lay along the line of the hedge between the properties as it existed prior to the appellants’ actions in 2019. The judge made an order in favour of the respondent. The appellants appealed contending that the judge erred in law by holding that the lease plan marked “for the purpose of identification only” should be disregarded; and erred when considering the evidence before him in locating the boundary. Held: The appeal was dismissed. (1) When a court was required to decide what property passed under a particular conveyance, it had to have regard to the conveyance as a whole, including any plan which formed part of it. It was from the conveyance as a whole that the intention had to be ascertained. There was no reason why, because it was described as being “for identification only”, the plan should not be looked at to assist in understanding the description of the parcels of land. So long as it did not come into conflict with anything which was explicit in the description of the parcels, the fact that it was said to be “for the purposes of identification only” did not exclude it from consideration in solving problems which were left undecided by what was explicit in the description of any parcel. Thus, a plan “for identification only” was admissible as an aid to construction of (here) the No 34 lease, but it was not, of itself, the document being construed: Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1463 applied. (2) A plan described as “for the purpose of identification only” was intended to do no more than identify the position and situation of the land: it was specifically not intended to identify its precise boundaries. The use of such a plan was therefore strictly only appropriate for a case in which the verbal description in the parcels identified the limits of the land with adequate precision, since it was a formula which indicated that the verbal description was intended to be decisive in that respect. The use of the formula “for the purposes of identification only” was to be contrasted with cases in which the parcels clause gave a verbal description of the land but also referred to the land as being “more particularly delineated” on the plan. In such a case, in the event of any uncertainty as between the words and the plan, the latter would ordinarily prevail over the words and will control the verbal description: Strachey v Ramage [2008] EWCA Civ 384; [2008] PLSCS 113; [2008] 2 P & CR 8 considered. In this case, therefore, the judge was construing not the No 34 plan, but the No 34 lease, of which the plan was a part. That was exactly what the judge did. He did not hold that the plan should be disregarded. To the contrary, he took it into account. He correctly approached the question of construction before him as of the lease (reading it as a whole). He did not commit the error of seeking to construe the plan as if it “more particularly delineated” the boundary. (3) The judge was entitled to look to the physical features of the land, specifically the hedge and there was no reason in law why he could not prefer the evidence of the hedge to the evidence of the plan or vice versa, assuming that those pieces of evidence pointed in different directions. The No 34 lease, the plan and the hedge (amongst other things) were all material that the judge was entitled to take into account: Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 considered. The first resort in the event of a boundary dispute was to look at the deeds. However, if it became necessary to establish the exact boundary, the deeds would almost invariably have to be supplemented by such inferences as might be drawn from topographical features which existed, or might be supposed to have existed, when the conveyances were executed: Alan Wibberley Building Ltd v Insley [1999] 2 EGLR 89 considered. (4) In the present case, the plan was not to scale. It was also exceedingly small and hard to read. The demarcations and edgings were, particularly given the size of the plan, disproportionately thick. The judge found that one had to bear in mind that, as far as the lease plan was concerned, it was transparently obvious that the plan or plans were only for the purposes of identification. Plans that were for the purposes of identification only should not be given primacy in terms of consideration as a strand of evidence where they were obviously limited in their purpose and intended effect from the very outset. That was an apt description of the evidential significance of the No 34 plan. The judge had a solid basis for finding that the hedge constituted the boundary between the gardens. The evidence of the plan and the topographical evidence were, when properly considered, actually consistent and (on the whole) mutually reinforcing. The judge was not faced with a choice between two inconsistent lines of evidence. He construed the evidence before him as a whole and reached the correct conclusion. Lina Mattsson and Michael Tetstall (instructed by Meadows & Co) appeared for the appellants; Jonathan Wills (instructed by Direct Access) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Van Zyl and another v Walker-Smith