Best laid plans
Date: 26 February 2010
Authors: Carl Calvert
Issue: Vol 160, Issue 7406
Categories: Features, Profession, Expert Witness
Describing what land is bought and sold is often well understood at the very onset of subdivision of land but as one parcel is carved from another and buildings appear, sometimes close, sometimes touching, sometimes far away, the description of that land may fail to describe the legal estate in that land. To assist matters it has often been the practice of placing a deed plan with the deed as an indication or description of the land.
Construing a conveyance is a matter of law: Sara Colin in Boundaries and Easements, p 9, says there is sufficient authority for the parcels clause to be construed together with the conveyance plan and not each in isolation. In Wiggington & Milner v Winster Engineering 1978]1 WLR 1462, [1978] 3 All ER 43 Buckley LJ stated that the court must “…have a regard to the conveyance as a whole”.
Sometimes the plan is no better than a crumpled toffee paper while in other cases the plan is a creation of scientific endeavour made by some surveyor in the 18th century.
In English law, general boundaries are the rule, in both the Land Registration Act 2002 (LRA 2002) and its precursor LRA 1925. According to LRA 2002, s 60 the portrayal of a bounding feature on the HMLR Filed Plan is accordingly:
“(1) The boundary of a registered estate is 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.”
In other words the LR Title plan is indicative only of the exact line of the boundary. The legal boundary is a line of no thickness and so can be contained within or about any physical feature. This is problematic in that LR use Ordnance Survey (OS) maps which themselves have a limiting accuracy, surveyed as they are at a scale of 1:2500 in rural areas and 1:1250 scale in urban areas. This means that the Title Plan needs to be considered both geometrically and in the context of ground features extant at the time of survey.
Accuracy
However, the accuracy of any map is determined by the accuracy of physical definition of the ground itself as well as both survey and plotting. The accuracy also reflects the type of feature measured to; it is easier to determine the face or middle of a brick wall than to define the middle of the root line of a hundred year old hedge or edge of a bank. Another point to be made, besides that of precision, is that not all features are shown. If any feature is within 0.5m at 1:1250 or 1m at 1:2500 scale of another feature then the more prominent feature will be shown.
The point being made here is that the map is an interpretation of the ground by the surveyor according to certain rules. For OS surveyors it is the OS which sets the rules whilst Chartered surveyors use the guidance notes set out by the Royal Institution of Chartered Surveyors (RICS). Last year the RICS published Boundaries: Procedures for Boundary Identification Demarcation and Dispute Resolution in England & Wales (ISBN: 9781842194959) which gives assistance to those involved in defining or determining boundaries.
Legal boundaries
In OS mapping there was never any consideration of legal boundaries with the sole exception of the relationship of private boundaries with administrative boundaries and as few administrative boundaries abut domestic boundaries it is sufficient to say that the boundary features shown on the OS map are topographical features only.
The judgment in Kupfer & Kupfer v Dunne [2003] EWCA Civ. 1549 gives a succinct explanation of how the ground features and legal boundary are interrelated. Pill LJ states, at 14: “In Alan Wibberley Building Limited v Insley [1998] 1 WLR 893, Lord Hoffmann, having referred to Land Registry maps based upon the OS, added that “the precise boundary must, if the question arises, be established by topographical and other evidence”. Lord Hoffmann had specifically in mind natural features such as hedges, but the same principle in my view applies when considering the line of a boundary between residential premises on which features have been removed, modified and added over the many years the premises have been occupied.
In the millions of such situations which exist around the country, there will frequently have been changes such as those which occurred in this case, a wall replacing a fence and a fence replacing another, as a result of which small deviations in the boundary will occur once the limitation period has expired...It would depend on the evidence.”
This point brings out the matter of general boundaries and that the physical features marking the boundary change over time and which the legal boundary may follow depending on the facts of the matter.
In court I was told by a judge, and I paraphrase: “…Mr Calvert, I can use a scale to determine a distance on a plan, what I need you to do is to tell me what those lines represent.” And in a nutshell that is what a boundary expert should be able to do, in relationship to map or plan: to say what is most probably; the feature, the accuracy of its portrayal, the accuracy of its position and its relative accuracy to other detail. Although LR have provision for “determined boundaries” (LRA 2002, s 60) the land and boundary may be so configured that providing a determined boundary under LR Practice Guide 40 recommendations is impossible.
In practice getting an accurate and appropriate transfer plan allied to an OS plan showing the location of the parcel is far better and costs far less than having a dispute later. The matter is one of appropriate certainty.
Carl Calvert is a chartered land surveyor & visiting lecturer in law at Bournemouth University and L’ESGT, University of Le Mans University
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