“Where to draw the line”- the Court of Appeal on boundaries
22nd December 2012The Court of Appeal has recently endorsed a practical approach and guide to the judicial resolution of boundary disputes. Stephen Pritchett represented the successful appellants against Edward Bartley Jones QC and Sara O’Brien in an appeal from a decision of Recorder Nigel Clayton. The judgment endorses the modern approach to construction and adopts the objective test exemplified in cases such as ICS v West Bromwich and Mannai Investments in the conveyancing litigation context. The judgment also identifies that the test is one which requires the Court to analyse the transfer plan against the physical features on the ground at the time of the relevant conveyance or transfer. It is the process of gleaning what one can from a plan which may be unclear or indistinct and then looking on site at the features which existed to see which of two or more possible solutions makes the most objective common sense. However, the fact that there is present on site what at first sight might appear to be an obvious boundary feature , such as a wall or fence, does not mean that the physical features override the plan. The process is a unitary one of analysing the plan against the features giving the plan its due weight (where, as here, the plan was stated to define the land transferred) but one does not automatically ignore or cast aside an unclear plan in favour of physical features and even an unclear plan can be held to provide sufficient information to take precedence over what might otherwise appear to be an obvious boundary structure.
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