I would like to start with some words with which Lady Justice Arden commenced her judgement in Zarb & Anr v Parry & Anr EWCA Civ 1306:
This appeal concerns a situation which too often arises. It is a dispute between neighbouring residential properties about the correct location of a boundary marked out when their predecessors in title were in possession of their respective properties. One of the neighbours will inevitably be wrong as to the paper title in the area in issue but that may not be the end of the matter because there may have been adverse possession entitling the other neighbour to registration as proprietor of that area. Parliament has provided a new streamlined procedure for boundary disputes in the comparatively recent Land Registration Act 2002 ("the 2002"). My concern is that this process can still be costly and time-consuming to all concerned. In the postscript at the end of this judgment I will suggest that those advising on conveyancing transactions should think carefully about their strategy in the situation where a purchaser of land becomes aware that there has been an unresolved dispute about a boundary in the past and take steps to deal with it in a way that may avoid the costs, delay and no doubt heartbreak that has occurred in this case. The purchaser can then decide whether he wishes to take the extra steps that might be appropriate before he buys the property.
An examination of the above paragraph is most instructive.
1. It is a boundary dispute and in this instance the boundary was set out by the previous occupants of each of the properties concerned. So here it appears that the current occupants are arguing about a feature which existed prior to their purchase.
2. One of the parties will ‘inevitably be wrong on paper title’. This in itself begs the question of what is paper title and how accurate, precise and unambiguous it is. As we shall see later words and plans may not always accord.
3. Adverse Possession is not a matter of surveying but of law and although the Land Registration Act 2002(LRA 2002) makes Adverse Possession streamlined; it only applies to Registered Land. The Limitation Act 1980 (LA 1980) applies to unregistered land. There are many hurdles to clear for Adverse Possession, the main one being occupation.
4. The final point of Lady Arden is what to do if there is an unresolved dispute. My point would be how do surveyors and conveyancers provide appropriate certainty in what is sold? The adage ‘nemo dat quod non habet’ or ‘you can’t flog what you ain’t got’ is a useful one to remember.
At the Court of Appeal in Horn v Phillips  EWCA Civ 1877 Lord Jacobs stated the following regarding the conveyance:
This document is intended to transfer title to land. It gives a precise measurement -- I pass over "or thereabouts", which everybody agreed did not make much difference. To my mind the clear intention is to indicate exactly where that line is supposed to be. So relevantly, this map is not ambiguous. True it is that other parts of the map may be not very satisfactory because the Ordinance(sic) Survey is not very satisfactory, but in its relevant respect one can see exactly where the beginning and the end of the line is, and if you go to the land you can see exactly where they are.
So, here is a case where a terminal of a measurement is unambiguous and still on the ground. The mapping in the area was poor and this, in part, led to the dispute.
As a summary so far it is evident that there are five components involved:
a) the land itself;
b) any rights in or over the land;
c) the conveyance or deed;
d) a plan describes the land; and
e) the people occupying or owning the land.
2. Appropriate definition of the land
A good definition of land is usually with the use of a topographical map. In The British Isles there are the Ordnance Surveys (OSGB, OSNI and OSI). The OS provide mapping at 1:1250 in urban areas, 1:2500 in rural areas and 1:10000 in mountain and moorland areas. The Land Registry in England and Wales (LR) use these large scale OS topographical maps as a basis for the LR Title Plans.
In the UK a surveyor may be instructed to prepare a deed plan at a large enough scale to bind with the transfer deed; in which case the words and picture (map!) will enable both LR to register the land unambiguously as to extent and subsequent proprietors will be in no doubt as to the physical holding and hopefully the extent of easements such as rights of way.
In France the Géometre-expert can provide a plan giving details of the boundary and also the textual description (process- verbal de bornage). However, when a boundary point (borne) is determined on the ground this process must be done in the presence of the two adjacent owners.
The advantage of the French system is that there is no need for the owners to try and interpret either a map alone or words alone whereas in England and Wales a Determined boundary plan is more prescriptive in accuracy and precision and requires only signature and not the presence on the ground of the parties.
3. Land or Legal Estate?
In England and Wales land is usually split into two parts, the physical land and the rights over that land. As Blackstone said (Gray, 1993) ‘land’ is ‘a very extensive signification’. The problem that is highlighted in this paper is the question of the significance of the shape, size and location of the land itself. What was appropriate or suitable to circumstance at one period of time is inappropriate for current or future times and purposes. As we shall see the ‘Fixed boundary’ of the Land Registration Act 1925 was introduced to give more certainty than the ‘General boundary’ provided. The ‘General boundary’ is defined in r278 of the Land Registration Rules 1925 (LRR 1925) as:
“ … the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge, fence or ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.”
Unfortunately the costs of ‘fixing the boundary’ was such that very few boundaries were fixed and the introduction of ‘Determined Boundaries’ in s60 of the Land Registration Rules 2003 with the interpretation of Land Registry Practice Guide 40 are in danger of falling into the same trap; that of cost.
A good example that the map good, bad or indifferent had little or no bearing on the matter is in Horn v Phillips  EWCA Civ 1877 where the dimension had been given and was all that was sufficient and necessary to fix the other end of the line.
So it seems that maps which have errors or limited by the scale of survey are adequate provided more information is available to locate the boundary exactly. This is, I believe, the principle behind the general boundary rule. The determined boundary relies on both accurate and precise measurements and mapping.
4. Examples of ambiguous definitions of the land
Before looking at the details of any legislation for land tenure in any country it may be instructive to consider some recent legal cases in England and Wales where problems have arisen. It is the Ordnance Surveys’ (OS) maps which the UK Land Registries use as the basis for Land Title Plans. In England & Wales the Land Registry (LR) examine the plan, which hopefully is attached to the document which conveys the land parcel from one party to the other, and try to show the parcel’s extent on the OS map. There are often ambiguities and difficulties in this process and the cases below are examples of some of these problems.
The first case is that of Willsher v Scott & Ors  EWCA Civ 195 in which it was held that “The quality of the [transfer] plan is very poor, it is not to scale and the colours are indistinguishable from each other. It is based upon a less than perfect trace of an OS map (itself unreliable).” Laws LJ continued by saying that:
"In all [these] circumstances the Ordnance Survey maps offer, in my judgment, an uncertain guide as to the precise boundary line. It was submitted to Arden and Dyson LJJ that while (as I have said) the Ordnance Survey maps do not purport to fix private boundaries, yet if parties to a conveyance choose to use such a map to mark the boundary they will be held to what the map shows: Fisher v Winch  1 KB 666 in this court."
So now the proposition is that if parties to a contract decide that the transfer plan is the OS plan then what the OS plan shows is critical. However, it is well known – I hope - that OS do not show on their published paper plans the nature of the physical feature surveyed (except where an administrative boundary is linked to it with an annotation such as 0.9m Root of Hedge etc). I understand that metadata for the latest OS digital spatial information (Master Map) does have this information but unfortunately it is not available on the LR Title Plan, thus the nature of the boundary feature is, within a short space of time, unknowable from the map alone. Laws LJ then quoted Sir Wilfrid Greene MR:
Of course, the fact that the boundary is shown in a particular place on an ordnance (sic) map is in itself no evidence of what the true boundary is as between the parties, but where the party's title is derived from a document which refers to the ordnance map, it is necessary to look at the ordnance map and ascertain where the boundary shown on that map is truly positioned.
It is true that there was evidence in Winch, to which the Master of the Rolls refers (at 672), including testimony from a senior employee of the Ordnance Survey, that the relevant boundary in that case was the centre line of a hedge and fence. However to my mind it is of the first importance that the executive words of the 1986 conveyance in the present case describe the transferred land as "adjoining" the road. The deed plan has to be read conformably with this text. The highest Mr Douglas puts his case (skeleton argument paragraph 28(vi)) is that there was a "presumption that the boundary lay along the mid point of the said wall and/or hedge" (my emphasis).
So it seems that the construction of a transfer deed is a word and pictures job. In Sefton v Halliwell  EWCA Civ 473 the Appeal Judge, Lady Justice Hallett, said of the parcels clause of the transfer from the appellant to the respondent.
This clause may have identified the property conveyed with reference to the 1982 plan, but even the appellant was forced to concede that the 1982 plan was of poor quality. It was fuzzy and virtually illegible. It lacked precision. It was not to scale. In fact, to say it was not to scale is to understate the position. Any attempt by the expert at producing a scale produced huge variations. This is particularly important when attempts are made to fix the boundary by reference to the finger or tongue of the land.
The point is quite clear here; a poorly drawn map is of little use and is a time bomb waiting to engulf the unwitting purchaser in the haze and murk of such legal wrangling as could have been avoided.
The appellant adopted the expert's conclusion that "the Land Registry has used the end of the verge as the point to which to interpret the deed line and, due to the error in the position of the verge on the Ordnance Survey mapping, have drawn the red line closer to Woodfield House than as shown on the 1982 plan". That conclusion may or may not be a reasonable one, but it was not a conclusion for the expert to draw; it was a conclusion for the judge to draw if he thought appropriate.
So here it seems the expert was on thin ice because he gave an opinion on how the LR would have done something without knowing the facts, which even if he knew them may not have been sufficient reason for him to have said what he said. Lady Justice Hallett then continued:-
“In any event, in my view, the alleged error on the filed plan paled into insignificance when compared with the paucity of information and the deficiencies in the 1982 plan.”
So, what is the conclusion? Firstly; that the conveyancers did not understand the need for an accurate, precise and contemporaneous plan to attach to the transfer deed: secondly that the OS plan, regardless of any positional inaccuracies due to limitation of scale or otherwise, did not convey sufficient information to LR to determine what the feature surveyed was. The solution would be to produce the Title Plan with such information available from metadata to determine what was surveyed, when it was surveyed and to what accuracy.
5. Boundaries under the Land Registration Act 2002 (LRA 2992)
In English law, boundaries are dealt with in section 60 of the Land Registration Act 2002 (LRA 2002)
(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 and may, in particular, make provision about-
(a) the circumstances in which the exact line of a boundary may or must be determined,
(b) how the exact line of a boundary may be determined,
(c) procedure in relation to applications for determination, and
(d) the recording of the fact of determination in the register or the index maintained under section 68.
(4) Rules under this section must provide for applications for determination to be made to the registrar.
Note that the accuracy and precision of ‘determined boundary’ is undefined and it is in the Land Registration Rules 2003 (LRA 2003) PART 10 to add more detail. In fact the only matter which relates to the survey specification is in section 118.
s118. (1) A proprietor of a registered estate may apply to the registrar for the exact line of the boundary of that registered estate to be determined. (2) An application under paragraph (1) must be made in Form DB and be accompanied by -
(a) ;a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and
(b) evidence to establish the exact line of the boundary.
It is LR themselves who specify the survey specifications in Practice Guide 40, which at section 3.3.2 states that the plan must, amongst other things:
- show sufficient surrounding physical features to allow the position of the boundary to be drawn on the Ordnance Survey map. If the plan does not allow the boundary to be identified on the Ordnance Survey map the application will be rejected
- be drawn accurately to a stated recognised scale. We advise that this is no smaller than 1/200
- measurements shown on the plan need to be both precise and accurate to 10mm and should be taken from at least two defined points on surrounding permanent features. In this context ‘permanent features’ are taken to be physical features, which it is reasonable to assume will remain in position for at least 10 years, taking into account the nature and construction or character. The measurements must be taken horizontally, that is not along a slope.
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 RICS themselves publish Client Specification Guidelines for surveys of 1/500 and larger and there is no definitive accuracy given for detail.
6. What if the boundary shown on the LR Title Plan is ‘subject to survey’
The case in question is Derbyshire County Council (DCC) v Fallon & Fallon  EWCH 1326 (Ch) which is an appeal to the High Court from the Adjudicator to Her Majesty’s Land Registry (the Adjudicator).
The facts were these; DCC owned unregistered land next to the Fallons and the Title Plan for the Fallons showed the boundary between DCC’s land and the Fallons’ land in the ‘wrong place’ so as to include land owned by DCC.
The issues were:
1) where was the boundary between the two plots?
2) was there an Adverse Possession issue?
3) if DCC won on both these issues then was the dispute a boundary dispute or a property dispute, in other words was it a General Boundaries issue? There were other issues but these are not discussed here. At the hearing before the Adjudicator, it was held that DCC had won on the three issues numbered 1 to 3 above save for ‘a comparatively minor point on the Paper Title Issue’ but the Adjudicator declined to amend the register. DCC appealed against the fact that the Adjudicator refused to amend the Title Plan.
Stepping back from the legal issues for a moment, the case seems to be that there are physical features on the ground which were mapped by OS and as such used by LR in their Title Plan. The boundary in this case is shown on the Title Plan as a dotted line with the rubric that such lines have been plotted from the deed plans and the title plan may be updated from later survey information so the question of map and ground disagreeing is not an issue. It is the claim that the map does not show the legal boundary which is DCC’s problem. On the face of it this does not seem a problem as the General Boundaries Rule which is quoted from ss60(2) of the Land Registration Act 2002 as
(2) A general boundary does not determine the exact line of the boundary.
The High Court held, following Lee v Barrey  Ch 251, that the dotted line on the original Title Plan created when the Fallons bought the land could not be relied upon to indicate the precise extent of their land, ‘That could therefore only be determined by looking at where the boundary lay by reference to the pre-registration documents ‘(at paragraph 17).
This satisfies subsection 2 of section 60 of LRA 2002 quoted above in that the general boundary does not determine the exact line of the boundary.
However, all is not as it seems for the Adjudicator held that the boundary shown on the Title Plan was in the wrong place and was therefore a mistake which could be corrected and the High Court upheld this. The High Court then asked itself a series of questions; if the alteration was made would it affect the Fallons’ title? Would it affect land in the possession of the Fallons? Would it be just to make the alteration? And were there exceptional circumstances which justified not making the alteration (emphasis added)? The Adjudicator had ruled that altering the Title Plan would not affect the paper tile but would produce “another general boundary in a more accurate position than the current general boundary” (at paragraph 68).
There are two points which I take from this. The first is rather obvious in that a general boundary is a general boundary unless it is a determined boundary (subsection 3 of section 60 LRA 2002 above). The second point is that there has to be evidence to judge that there is a more accurate general boundary than was shown on the Title Plan. In this case the evidence was in the form of a survey by DCC prior to the sale of land to the Fallons by a third party; the same third party which sold the land to DCC. In other words there was an accurate survey available and it had been retained. A crucial matter for if that evidence had not been available then there was nothing to gainsay the dotted line on the Title Plan as being in the wrong position and there was nothing in the register for the Fallons other than a planning application plan which the Adjudicator held was not as likely to be correct as the pegging out by DCC following their survey. In my opinion there is often a presumption by clients that a planning application plan shows the correct legal boundary, unfortunately this is not always the case and this itself often leads to boundary disputes.
The crunch comes at paragraph 37 of the High Court’s judgement when in answer to the question, ‘What then would be the purpose of altering the register?’
The Fallons were in possession of a strip of land belonging to DCC and altering the register would not be ‘more accurate’ except in the limited sense that it would accord with the paper title but not accord with what was now on the ground and according to the Adjudicator ‘ would not lead to greater clarity but only confusion’. This was because a garage had been built on the disputed strip and so any topographical survey would be at odds with a more accurate plotting of the Paper Title on the filed plan.
The exceptional circumstances which the Adjudicator found and which were upheld by the High Court were that ‘altering the register would only redraw the general boundary in a place which more accurately reflected the paper title but might not more accurately reflect the de facto right to the land.’
Paper Title depends on the pre-registration deed plan and not the Title Plan and that a more accurate general boundary may not add anything to the matter if it does not accord with what is on the ground and reflect the parties’ rights which exist at that time on the ground. Or, put another way, just making a more accurate map or plan may not lead to more precise determination of rights in the land.
7. Common Law – Legislation and Case Law
Paper Title depends on the pre-registration deed plan and not the Title Plan and that a more accurate general boundary may not add anything to the matter if it does not accord with what is on the ground and reflect the parties’ rights which exist at that time on the ground (Calvert 2010). Or, put another way, just making a more accurate map or plan.
8. And now?
The LRA 2002, LRR 2003 and also the continuing dialogue between OS and LR is leading to more consistency in the interpretation of mapping as well as a greater requirement for conveyancers to get the ‘picture people’ – the Chartered land surveyors involved. In some of the cases I have dealt with the best description of the deed plan was a ‘toffee paper’; crumpled, hard to read, bits missing and food particles attached in places. In short changes are afoot which I expect will alter the perception of deed plans by lawyers.
But of course, land use changes and physical boundaries change, a hedge is replaced by a fence or a large house is demolished and three or four new houses are built within those grounds – and land is sold ‘off plan’ (see Chadwick & Ors v Abbotswood Properties & Ors EWHC 1058 (Ch) for a glimpse of how bad things can be).
It is quite clear that the words of Lord Hoffman in Alan Wibberly Building Ltd v Insley  1 WLR 894:
‘Boundary Disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are presented with the zeal of Fortinbras’s army.’
References & Bibliography
Booth MBE, J R (1982) Public Boundaries and Ordnance Survey 1840-1980
Calvert, C (2010) Best laid plans, New Law Journal, 26 February 2010, p315
Calvert , C (2011)
Calvert, Clergeot, Chauvin, (2011) Mapping Needs for Land Title – are they being met?, COBRA, Université Dauphine-Paris.
Elvin QC, D & Karas, J( 2002), Unlawful Interference with Land, Butterworths, London
Harley, J B (1975) Ordnance Survey Maps a descriptive manual, Ordnance Survey, Southampton
Gaunt QC, J & Morgan QC, P (1997) Gale on Easements, Sweet & Maxwell, London
Gray, K (1993) Elements of Land Law, Butterworths, London
Jourdan, S (2003) Adverse Possession, Butterworths, London
Land Registry Practice Guide 40
Land Registry Practice Guide 41.
Limitation Act 1980
Land Registration Act 2002
Land Registration Rules 2003
Oliver, R (1993) Ordnance Survey Maps a concise guide for historians, Charles Close Society, London
Sara, C (2002), Boundaries and Easements, Sweet & Maxwell, London
RICS, (2009) Boundaries a Practice Guide, RICS, London
Carl Calvert MSc(Oxon) MA PgDLaw FRICS CITP MBCS FRIN
20 North Road, Kings Worthy, WINCHESTER, Hampshire, SO23 7NZ
Tel 01962 262 2105 Mobile 07786 438 213
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