A3/2004/1270 
Neutral Citation Number: [2004] EWCA Civ 1725
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM LEICESTER COUNTY COURT
(HHJ BRAY)
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 29 November 2004
 
B E F O R E:

LORD JUSTICE CHADWICK 
 
LORD JUSTICE LATHAM 

- - - - - - -
 
DOUGLAS WILLIAM TURNER
PEARL ELIZABETH TURNER 
PAUL JOHN TURNER 
MARK FRANCIS TURNER 
Claimants/Appellants
-v-
 
DAVID ALAN WAKEFIELD
MRS SALLY WAKEFIELD 
Defendants/Respondents 
 -----------
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 -----------
MR G HARBOTTLE (instructed by Messes Peter W Marsh & Co., Melton Mowbray, Leics) appeared on behalf of the Appellants 
MR S DIN (instructed by Messrs David Irving, Melton Mowbray, Leics) appeared on behalf of the Respondents
 -----------
J U D G M E N 

1.	LORD JUSTICE CHADWICK:  This is an appeal from an order made on 28th May 2004 by His Honour Judge Bray in the Leicester County Court, in proceedings brought by Mr Douglas Turner and others against Mr David Wakefield and his wife, Mrs Sally Wakefield.  The proceedings are between neighbours in the village of Ab Kettleby in Leicestershire.  
2.	The A606 trunk road runs north west from Melton Mowbray towards Nottingham.  Some three-and-a-half miles out of Melton Mowbray the road passes through the village of Ab Kettleby.  In the centre of the village, just south of the Sugarloaf Public House, there is a T-junction.  At that point the trunk road lies on the north-south access; and it is joined from the west by the main street of the village.  That street, no doubt for good historical reasons, is designated Main Road -- a designation which may now perhaps over-emphasise its importance in relation to the A606 trunk road.  On the eastern side of the T-junction, immediately opposite the point at which Main Road joins the trunk road, there is a complex of buildings which, as appears from the 1967 Ordnance Survey Plan, have been there for at least the past 40 years; and, as appears from photographs, probably for longer than that.  
3.	Those buildings, formerly used as a farm house and dairy, are now known as numbers 1,3, 5 and 9 Melton Road.  There is no property known as No 7 Melton Road.  No 1 Melton Road is the most northerly; No 3 is immediately to the south of No 1; and No 5 is immediately to the south and east of No 3.  No 9 is to the east of No 5 and abuts part of No 3.  
4.	To the rear of numbers 1 and 3 there is a yard.  Access to that yard from the trunk road - known there as Melton Road - is gained through a covered entrance or archway immediately to the north of No 1.  The yard lies to the north and east of No 3 and, in part, to the north of No 9.  At the eastern end of the yard there is a substantial two-storey brick outbuilding, formerly used as a barn.  From north to south, that building now comprises a carport, a garage and a stable.  The stable, which is the subject of the dispute now before this court, lies in the south east corner of the yard and is immediately to the north east of No 9 Melton Road.  Behind and to the east of the brick barn there is a building used as a workshop.  The whole complex is conveniently shown on an illustrative plan, prepared by Her Majesty's Land Registry in June 2003, which has been included at page 76 in the appellant's revised appeal bundle.  This judgment should be read with that plan.
5.	The first and second named claimants, Mr Douglas Turner and his wife, Mrs Pearl Turner, occupy No 9 Melton Road as their home.  They have two sons, the third and fourth claimants, Mr Paul Turner and Mr Mark Turner.  Mr Paul Turner occupies No 5 Milton Road.  The four claimants, together, are registered at Her Majesty's Land Registry as proprietors of No 5 and No 9 Melton Road.  No 3 Melton Road is occupied by the defendants to these proceedings, Mr and Mrs Wakefield.  Mr Wakefield is the registered proprietor of No 3.
6.	Until 21st December 1988, or thereabouts, the whole complex, including the yard and outbuildings, was owned by Mrs Margaret Turner.  She had acquired that property in part by inheritance from her father Mr James Stevens - who had died in 1950 - and in part by purchase in 1952.  Mrs Margaret Turner, who died in February 2000, was the mother of Mr Douglas Turner and of a daughter, his sister Elizabeth, who had married and became Mrs Elizabeth O'Shaughnessy.  
7.	By deeds of gift dated respectively 21st December 1988 and 16th January 1989, Mrs Margaret Turner conveyed parts of her property to her son Douglas and to her daughter Elizabeth.  More particularly, by the first of those conveyances - dated 21st December 1988 - she conveyed to Mr Douglas Turner the property described in the schedule to that conveyance as "All that freehold cottage situate and known as No 9 Melton Road, Ab Kettleby, in the county of Leicestershire"; and by the second conveyance - dated 16th January 1989 - she conveyed to Mrs O'Shaughnessy the property described in the schedule to that conveyance as "All those two freehold cottages situate and known as numbers 1 and 3 Melton Road, Ab Kettleby, in county of Leicestershire." In each of those conveyances the property conveyed was said to be "The property which is, for the purposes of identification only, shown edged red on the plan annexed hereto." The conveyancing plans annexed to the first and second conveyances are the same; save, of course, as to the property shown edged red on each.  
8.	Some five years later Mrs Margaret Turner conveyed the rest of her property at Melton Road, Ab Kettleby, to Mr Douglas Turner.  The land conveyed by that third conveyance - a deed of gift dated 21st October 1993 - was described as "All that freehold property situate at Melton Road, Ab Kettleby, in the county of Leicestershire which is for the purpose of identification shown edged red on the plan annexed hereto." The conveyancing plan annexed to the third conveyance was the same plan as that annexed to the first and the second conveyances; but save, again, as to the property edged red.  It is clear that the property conveyed to Mr Douglas Turner by the third conveyance included No 5 Melton Road.  
9.	The disputes which have arisen between the Turners and the Wakefields have their origin in the failure of the conveyancing plan annexed to the first, second and third conveyances accurately to show the outbuildings as they were in 1988 and thereafter.  It is reasonably clear that the conveyancing plan annexed to those conveyances was based on the 1967 Ordnance Survey Plan, but with some amendment.  It will be necessary to return to the discrepancies between the conveyancing plan and the position as it was on the ground later in this judgment.  But, first, I should explain the subsequent devolution and registration of the titles.
10.	In or about 1989, shortly after numbers 1 and 3 Melton Road had been conveyed to her by the second conveyance, Mrs O'Shaughnessy conveyed the cottage at No 1 to her son Mr Nicholas O'Shaughnessy.  We were told that he still lives in that property.  He is not involved in these proceedings.  
11.	In March 2001, Mr Douglas Turner conveyed the property which had been conveyed to him by the first conveyance (No 9 Melton Road) into the names of himself, his wife and their two sons -- that is to say into the names of the four claimants.  He did the same with the property which had been conveyed to him by the third conveyance (No 5 Melton Road).  Those properties were registered at Her Majesty's Land Registry, on first registration, on 17th April 2001. They are held respectively under titles LT332245 and LT332243.  
12.	On 21st August 2002, Mrs O'Shaughnessy transferred the property which had been conveyed to her by the second conveyance - other than the cottage at No 1 Melton Road which she had already conveyed to her son in 1989 - to the first defendant Mr Wakefield.  That property was registered at the Land Registry on first registration under title LT346485.  The position as it appears from the land registry title plans - which, themselves, must have derived from the conveyancing plan annexed to the first, second and third conveyances - is helpfully shown in coloured shading on the version of the illustrative land registry plan prepared in June 2003, which has been included in the appellant's revised appeal bundle at page 53.  That plan also should be read with this judgment.
13.	In summary the position shown on that illustrative plan is as follows:
(a)  The property and land conveyed by the first conveyance and registered under title LT332245 is shown coloured yellow.  The yellow land contains most but not all of the dwelling-house, No 9 Melton Road, and some part of the stable, and the corner where the stable adjoins the workshop.  It also includes part of the yard and a small part of the dwelling house No 3 Melton Road.  
(b) The property and land conveyed by the second conveyance and registered under title LT346485 - that is to say so much of the land conveyed by the second conveyance as was not conveyed on to Mr Nicholas O'Shaughnessy in 1989 - is shown coloured blue.  The blue land includes some but not all of dwelling-house No 3 Melton Road, some part of the yard, most of the carport, garage and workshop, and part of the stable.  (c) The property and land conveyed by the third conveyance and registered under title LT332243 is shown coloured pink.  The pink land includes the whole of the dwelling house at No 5 Milton Road, most of the yard, including the covered access from Melton Road itself, and a small strip along the western edge of the brick barn building - where that building abuts the yard.  
14.	As I have said the position shown on the illustrative plan prepared in June 2003 is consistent with the position shown on the land registry titles first registered in 2001 and 2002.  The anomalies which I have just described arise from the discrepancies between the land registry plans - based as they were on the conveyancing plan - and the buildings as they actually were and are on the ground.  
15.	These proceedings were commenced by the issue of a claim form in the Melton Mowbray County Court in or about February 2003.  Later that year the proceedings were transferred to the Leicester County Court.  On 3rd July 2003 His Honour Judge Mayor QC gave directions for the service of amended particulars of claim.  Those particulars are dated 17th July 2003.  They contain, if I may say so, a very helpful summary of the devolution of the receptive titles; and serve to identify what matters were then in dispute between the parties.  It is convenient to refer to paragraph 31 of those particulars:
"The claimants' claim concerns the following parts of the complex, as shown for the purposes of identification only on Plan 2 annexed hereto:  
 (a) The Yard, which is coloured yellow on Plan 2. 
 (b) The Inside Toilet, which is coloured green and hatched red on Plan 2. 
 (c) The Store, which is coloured purple on Plan 2.  
 (d) Part of the stable.  The stable is coloured orange on Plan 2.  The Claimants make no claim in respect of that part of the first floor of the stable which was partitioned off by or for Mrs Margaret Turner for use as a toilet and utility area; references in the remainder of these particulars for claim to 'the stable' are to the remainder of the stable (including the whole of the ground floor thereof).  
 (e) The Outside Toilet, which is coloured red on Plan 2."  
In that context Plan 2 is the land registry illustrative plan at page 76 in the appellant's revised appeal bundle to which I have already referred.  
16.	The action came for trial before His Honour Judge Bray in November 2003.  It was adjourned after three days of hearing, no doubt for lack of time.  It continued for a further day in January 2004.  The judge sent his written judgment to the parties in draft at the beginning of February.  His order is dated 28th May 2004.  
17.	By his order of 28th May 2004, the judge ordered rectification of the three land registry titles pursuant to section 82(1)(a) of the Land Registration Act 1925 so that the whole of the yard was included in title LT332243 - that is to say the title under which the claimants hold No 5 Melton Road which was conveyed to Mr Douglas Turner by the third conveyance in 1993.  The judge declared that the defendants Mr and Mrs Wakefield were the owners of the stable.  Subject to that, he dismissed the claims.  He ordered that the claimants pay to the defendants 80% of their assessed costs.  
18.	The claimants lodged an appellant's notice, limited to an appeal from so much of the judge's order as held that they were not the owners of the stable and were not entitled to an easement of storage in the stable; and to the consequences of those findings so far as reflected in the order for costs.  The grounds of appeal in the appellant's notice are divided into Part A (title to the stable) and Part B, relating to an easement of storage in the stable.  The papers came before me on an application for permission to appeal on 30th July 2004.  I gave permission to appeal but limited to the issues raised in Part A of the grounds of appeal.  
19.	So it is that the appeal has come before this court limited to the question of title to the stable.  The appeal has been argued before us - correctly in my view - on the basis that that question turns on the effect of the first and second conveyances, when construed in the light of the circumstances as they were on the ground at the end of 1988.  I put it in that way because it has been common ground that the first and second conveyances have to be construed together as comprising two parts of a single transaction by which Mrs Margaret Turner transferred parts of her property at Melton Road, Ab Kettleby, to her son and to her daughter.  It was originally intended that the two conveyances should be executed by Mrs Margaret Turner at the same time.  The reason for the second conveyance being some weeks later in date than the first conveyance was said to be that Mrs Margaret Turner had intended conveying the property comprised in that conveyance jointly to her daughter and her son-in-law; but that there had been a change of mind so that the second conveyance had to be re-drawn so to transfer the property to her daughter alone.  
20.	It is, I think, convenient first to describe with a little more particularity the outbuildings as they were at the end of 1988.  The court has been helped by photographs showing the position both now and as it was in 1988.  
21.	The buildings comprised the long two-storey building built in brick which fronted onto the eastern side of the yard, originally built and used as a barn.  As I have said, from north to south the barn building comprises on the ground floor a carport or archway leading through the building to land on the far or eastern side; a garage which double doors used with No 3 Melton Road; and a stable.  By 1988 the first floor of the barn building had been formed, in part at least, into a games or recreation room.  At the southern end of that room - as has already appeared from paragraph 31 of the particulars of claim which I have read - there had been constructed a toilet and utility area.  The southern end of that first floor room, with its adjacent toilet and utility area was formed by a plasterboard and studding partition.  That was some feet to the north of the southern wall of the barn building; so that there is (and was) a part of the first floor at the southern end which is not comprised in that games room and utility area.  The eastern wall of the barn was rendered.  Against it, and to the east, there was the single storey lean-to building used as a workshop.  It is clear from the 1967 Ordnance Survey Plan that that single storey building had not been erected - or if it had been erected it had fallen down - as at the date of that survey.  But there is no doubt that it was there at the end of 1988.  The southern wall of the workshop was set some way back - that is some way to the north - of the southern wall of the two storey barn.  So, at the south east corner of the barn, the eastern wall of the barn and the southern wall of the workshop formed the shape of a letter L.  At some date after 1988 the southern wall of the workshop was demolished and moved back a few feet to the north and the outside toilet, now in the corner of the L, was built.  But nothing turns on that.  
22.	The southern wall of the brick barn was some 5.1 metres in length.  Abutting that wall to the south there was a garden shed.  The garden shed extended along the southern wall of the brick barn, from the south west corner, for about one-half of the length of that wall -some 2.5 metres.  The eastern side of the garden shed forms the shape of the letter L with the eastern half of the southern wall of the brick barn.  
23.	The stable is within and at the southern end of the barn.  It extends the full width of the barn.  Its southern wall is the southern wall of the barn.  Its northern wall - which is an internal wall - is some 3.9 metres north of the southern wall of the barn.  There is a door from the stable which gives access to and from the yard.  As I have said, above the stable there is, in part, the utility room annexed to the games room, formed or constructed for Mrs Margaret Turner during 1988; and in part, and at the southern end, what must, I think, be a hayloft to which access is gained by a ladder and trap door from the stable.  
24.	The 1967 Ordnance Survey Plan shows the brick barn and the garden shed to the south of it.  It shows also, at the south east corner of the barn, a nib or protuberance which the evidence shows was an earlier outside toilet.  It is common ground that that outside toilet had been demolished by the end of 1988; but photographs of the southern wall of the brick barn show clearly the position in which it was and, as I have said, it is shown there on the 1967 Ordnance Survey Plan.  The 1967 Ordnance Survey Plan does not show the workshop which is now to the east of the brick barn building; although it does show part of the north and east walls of that workshop.  Between the garden shed and No 9 Melton Road - to the west of the garden shed - there is shown on the Ordnance Survey Plan a building formerly used as a blacksmith's forge and latterly as the garage of No 9.  Immediately to the north of the barn there is a long building within the curtilage of the Sugarloaf Public House, lying approximately east to west.  
25.	The conveyancing plans are based on that 1967 Ordnance Survey Plan; but with these modifications.  First the conveyancing plans do show the whole of the single storey workshop alongside and as part of the two storey barn.  Second, they show that workshop and barn complex as extending right up to the northern boundary of Mrs Turner's land - as they now do - where they abut the long building belonging to the Sugarloaf Public House to which I have just referred..  
26.	It is clear from the conveyancing plans annexed to the first and second conveyances, when read together, that Mr Douglas Turner was intended to have the garden shed and what had been the site of the outside toilet on the southern wall of the barn.  It is also clear that Mrs O'Shaughnessy was intended to have the northern portion of the barn - comprising the car port and garage - and the whole of the workshop.  On each of those plans there is shown as the boundary a line which extends the southern wall of the workshop across the barn.  The effect of those plans is that the boundary, as shown, runs through the stable.  Part of the stable lies to the north of the land shown edged red on the plan to the first conveyance; and part of the stable lies to the south of land shown edged red on the plan to the second conveyance.   
27.	Although the conveyancing plans are not carefully drawn, there is no doubt that it was the intention of whoever prepared those plans that part of the barn was to pass under the first conveyance and the remainder of the barn was to pass under the second conveyance.  As I have said, the line separating those two parts is an extension of the southern wall of the workshop -- that is to say, it is a line which passes some way north of the southern wall of the brick barn building.  On any view of the conveyancing plans, some part of the stable passed under the first conveyance.  
28.	But it is important to remember that the property conveyed by the first conveyance is described as "the freehold cottage situate and known as No 9 Melton Road".  The conveyancing plan is for the purposes of identification only.  The property conveyed by the second of the conveyances is described as "all those two freehold cottages situate and known as numbers 1 and 3 Melton Road".  Again, the conveyancing plan is for the purposes of identification only.  But the whole of the property - comprising both the property inherited by Mrs Margaret Turner from her father and the property acquired by her in 1952 by purchase - had been occupied by her and her family for the best part of 35 years or more before she came to convey parts of her property off to her children.  
29.	It is not difficult to identify the freehold cottage known as No 9 Melton Road and the two freehold cottages known as numbers 1 and 3 Melton Road without the aid of the conveyancing plans. But there is nothing in the description of the land conveyed - or in the evidence of surrounding circumstances - to indicate whether that description of the cottages was intended to carry any part - and if so what part - of the other land owned by Mrs Turner; in particular the barn and the workshop.  
30.	To ascertain whether the conveyances were intended to carry more than the cottages, it is necessary to look at the conveyancing plans. As I have said, it is clear that the first conveyance was intended to convey some part of the southern end of the brick barn building.  There is no other way in which the plans both to that conveyance and to the second conveyance - which must be read with it - can be interpreted.  That is because of the position in which the red land is delineated in both cases.
31.	Given the language used in both conveyances, the land conveyed is not to be identified by measurement from the conveyancing plans.  It is to be identified from what is on the ground, with the aid of the conveyancing plans.  This task is to find a natural boundary which can correspond with the boundary shown on the conveyances.  
32.	In the present case there are two natural boundaries, one on the ground floor - being the north wall of the stable - and one on the first floor - being the southern wall of the utility room formed by the stud partition.  It would be possible to take the view that Mrs Turner had intended to convey so much of the first floor as lay to the south of the stud partition and so much of the stable as lay below that.  But that would be to attribute to her an intention to convey to her son the southern half of the stable and to her daughter the northern half of the stable.  That is an intention which would be bizarre in the circumstances and for which neither party contends.  
33.	The judge thought that the stable passed under the second conveyance. At paragraph 21 of his judgment he said this: 
"In my judgment the plan clearly shows that the stable was clearly excluded from the conveyance for Mr Turner. Anyone looking objectively at the plan would say that the rectangle represents the whole of the Barn including the stable. The area to the south of the rectangle represents additional ancillary buildings. This area is L-shaped as the plan to the 2nd Deed of Gift shows more clearly. The shape and proportions are completely wrong for the stable whose depth is the same as the garage next to it. This interpretation of the plan accords with common sense. The Barn was originally a single building, part of a farm which was known as No 3 Melton Road.  It was Elizabeth to whom No 3 was conveyed in the 2nd Deed of Gift." 
But the judge forgot, when he referred to the Barn in that paragraph, that the rectangle shown on the conveyancing plan represented not just the brick barn; it included the workshop. Once it is appreciated that the rectangle shown on the conveyancing plan includes the workshop - and that the southern wall of the workshop was (and lay at the time) to the north of the southern wall of the barn, the judge's reasoning cannot be supported.  
34.	In my view the only sensible construction that can be put on those - the first and second conveyances - seem in the light of the surrounding circumstances and, in particular, the buildings as they then were - is that Mrs Turner intended to convey to her son the stable on the ground floor of the brick barn and so much of the first floor as lay above it and was to the south of the stud and plasterboard partition wall.  The effect, therefore, is that the northern boundary of the land conveyed by the first conveyance differs between the ground floor and the first floor.  It creates an overhang, or flying freehold, on the first floor.  But that accords with what has in fact been the position on the ground ever since 1988; in that the first floor has been used as a unit distinct from the stable on the ground floor.
35.	For those reasons, I would allow this appeal and make a declaration accordingly.  I would declare that the stable on the ground floor and so much of the first floor as lies to the south of the partition wall was conveyed to Mr Douglas Turner in 1988 and so should now form part of the property held with title LT332245.
36.	LORD JUSTICE LATHAM:  I agree. 
ORDER: Appeal allowed with costs, subject to detailed assessment; order for costs below to be set aside; payment out of £20,000 paid into court by the appellants with no other order as to costs below; leave to appeal to House of Lords refused.