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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hatton & Anor v Connew & Anor [2013] EWCA Civ 1560 (10 December 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1560.html Cite as: [2013] EWCA Civ 1560

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
HHJ Moloney QC
OCM00922

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2013

Lord Justice Kitchin:

Introduction

1. This appeal arises out of a dispute over the ownership of three small pieces of land in the village of Stock in Essex. The claimants own and farm an estate of around 800 acres known as the Apps Estate which lies around the village.
2. The defendants are neighbours of the claimants and live in the Willows which lies beside that part of the Downham Road known as Leather Bottle Hill and to the east of one of the claimants' fields known as Hillyfield. The defendants purchased the freehold of this property from a Mr Roberts in 1976 and it has been their family home ever since. In 1990 the defendants purchased from the Apps Estate, then owned by the claimants' predecessors in title, the Lyster family, a further piece of land lying to the north-west of their property. This land, called the Additional Land, has been used by the defendants as an extension of their garden.
3. The dispute concerns the boundary between the Apps Estate, on the one side, and the Willows and the Additional Land, on the other side. The first piece of land in dispute, referred to as the Bank Strip, runs in a broadly north-south direction between the Willows and Hillyfield. As its name suggests, it comprises a bank which is about 1.8 metres high. The issue was, in substance, whether the boundary lies at or near the bottom of the bank, as the claimants contended, or at the top of the bank, as the defendants contended.
4. The second piece of land in dispute was referred to as the Triangle and it lies between what the claimants accept is the garden of the Willows and the Additional Land. It is of particular importance to the defendants because it has been occupied by them as part of their garden for a number of years and it provides them with convenient access to the Additional Land. The claimants contended the Triangle forms part of their estate. The defendants responded that it forms part of the land they purchased from Mr Roberts in 1976, just as does the Bank Strip.
5. The third and final piece of land in dispute, known as the Swathe, lies to the north-west of the Additional Land. The claimants contended it forms part of their estate. The defendants responded that it forms part of the Additional Land which was conveyed to them in 1990. This issue has at its heart whether the north-west corner of the Additional Land is designated by an apple tree marked on the conveyance plan and which, so the defendants contended, is still to be seen on the land, or whether it is designated by a measurement shown on the plan. The defendants also relied upon a case of proprietary estoppel, arguing that the claimants had allowed them to occupy the Swathe and to assume they owned it, and that the claimants were now taking unconscionable advantage of them by denying them the rights which they believed they had.
6. The action came on for trial before HH Judge Moloney QC on 28 May 2012 and lasted for three days. The claimants were represented by counsel, Mr Stephen Goodfellow, and the defendants appeared in person. Both sides had the assistance of an expert witness. Mr David Powell, a Chartered Land Surveyor, produced two reports for the claimants, and Mr Adrian Cowell, a Chartered Building Surveyor, produced two reports for the defendants. The experts disagreed as to where the boundary lay.
7. On the second day of the trial the judge had what he described as a very helpful site visit. Prior to the visit, the parties and their surveyors had marked out with ropes and pegs the boundaries they contended for. The judge inspected the three pieces of land in dispute and as he did so he allowed the experts to explain their respective positions to him. This, the judge said, was a course he took with the consent of the parties and one which permitted "a more convenient use of the time available than formal cross-examination in court on their very full reports".
8. The judge also had the benefit of other evidence including, in particular, various conveyances, conveyance plans, Land Registry plans and Ordnance Survey (OS) maps. Further, the judge heard oral evidence from the parties and from various witnesses of fact who gave evidence as to the actual use and occupation of the land over many years and such matters as the erection of fences and the digging of ditches. I should make clear, however, that, save to the extent I have indicated in relation to the Swathe, no case based on adverse possession or estoppel was advanced by the defendants. Following the hearing, the parties had an opportunity to file further written submissions.
9. The judge handed down his judgment on 14 September 2012 and he found in favour of the claimants on all the issues before him. The Bank Strip, the Triangle and the Swathe were, he held, all part of the Apps Estate and belonged to the claimants. Further, the case advanced in relation to the Swathe based on estoppel failed.
10. On this appeal against the judge's consequential order, brought with permission of Lewison LJ, the defendants have been represented by Mr James Fieldsend of counsel. The claimants have been represented by Mr Goodfellow, as they were before the judge. I would say at the outset that I am grateful to both counsel for their able submissions.
11. At the heart of this appeal is the judge's treatment of the expert evidence. Mr Fieldsend contends this amounted to a serious procedural irregularity such that the judgment is unjust. Each side criticised the methodology adopted by the other side's expert and in these circumstances it was, submits Mr Fieldsend, quite wrong for the judge to converse with the experts during the site visit as he did and then dispense with cross examination. Moreover, this evidence was central to the decision of the judge in relation to the Bank Strip and the Triangle. In these circumstances the whole judgment should be set aside, or at least that part of it which relates to these two pieces of land, and the case should be remitted for re-hearing before a different judge. Mr Fieldsend also submits the decision in relation to each of the pieces of land was, in any event, wrong.
12. These submissions raise important issues concerning the exercise by a judge of the discretion to control the giving of evidence, particularly where one party is represented by solicitors and counsel and the other party appears in person. But before addressing these issues and Mr Fieldsend's other attacks on the judgment I must set out a little more of the factual background, explain what happened at the trial and summarise the reasoning of the judge as it appears from his judgment.

The background

13. The Apps Estate is registered under title number EX544823. The claimants purchased the estate from the Lyster family in 1995. Neither side relied upon the conveyance by which the claimants acquired the estate, however the judge did have the benefit of a deed plan of the estate dated 13 July 1939 which is broadly consistent with the Land Registry plan. This shows the eastern boundary of Hillyfield extending for most of its length in a constant northerly direction until it bears slightly to the west as it meets Leather Bottle Hill to the north of the Willows.
14. The Apps Estate and the Willows have been in separate ownership for a very long time. As Mr Fieldsend observed, the conveyance, if ever there was one, by which one or other of the pieces of land was conveyed away from common ownership is not available. The Willows is unregistered land and the judge had before him conveyances dated 1922, 1927 and 1976, the last of these being the conveyance of the property to the defendants. These conveyances each embody a plan which shows the north-westerly tip of the garden of the Willows extending in a point formed by, on one side, the boundary with Apps Estate which, as I have said, here extends in a north westerly direction as it meets Leather Bottle Hill and, on the other side, Leather Bottle Hill itself.
15. To the south of the Willows lie three other properties, namely the Old Ale House, Glen Cottage and Blythwood. The OS maps of the area up to 1970 show the general boundary between Hillyfield and the land on which these properties stand extending in a continuous line. This line broadly coincides with the bank on the western side of the Willows and is consistent with the deed plans for the Willows and the estate. A more recent OS map dated 2002 and the Land Registry plans for two of those neighbouring properties now suggest some movement of the general boundary between these properties and the estate. This is a matter to which the judge attached some importance, as I shall explain, and it appears to reflect the erection by the owners of these properties of a fence along the top of the bank.
16. In 1990 the first defendant entered into negotiations with the Lyster family to purchase from them a further small piece of land about a quarter an acre in size. This, the first defendant thought, would give the defendants a convenient place to locate their beehives and also give them an opportunity to extend their driveway and sort out various drainage issues. The negotiations culminated in the purchase by the first defendant of the Additional Land which is now registered in his name under title number EX427356. Attached to both the contract for sale and the conveyance is a plan marked "for identification purposes only" but which is drawn to scale and shows the shape and dimensions of this piece of land and also denotes that it extends, at its western tip, to an apple tree.

The experts, the trial, the site view and the judgment

The experts

17. The experts have acted commendably throughout in attempting to identify and narrow the issues. At the outset they each produced a report. They then made contact with each other by email and produced a statement identifying those issues upon which they were agreed and explaining their reasons for disagreement on the others. This statement was amended and supplemented by a further short joint statement following a joint site visit on 15 September 2011. Each of them then produced a further short report. A review of all of these reports and statements reveals that the experts arrived at their different conclusions by adopting somewhat different methodologies. On 10 November 2011 the action came before Deputy District Judge Callaghan on a directions hearing and he gave the parties permission to call their experts to give oral evidence at trial.

The trial and site view

18. On the morning of the first day of the trial the judge indicated that he thought a site visit would be helpful. The parties agreed and Mr Goodfellow suggested to the judge that the experts should be present so that they could indicate where on the ground they believed the boundary to be. It is clear that at this time the judge considered that oral evidence from the experts would be required.
19. At the end of the first day the judge returned to the issue of the site visit and he was evidently conscious that it should be just that, and not an opportunity for the parties to develop their cases, as shown by the following exchange (transcript, page 148):

"His Honour Judge Moloney QC: …. Basically I just want to walk along in silence, yes? I don't want people –

Mr Connew: badgering you.

His Honour Judge Moloney QC: Bending my ear because the evidence is what's given here with the tape recorder on. You follow me? But I might engage in some very carefully controlled discussions with surveyors in the presence of counsel to keep a note. You follow me? But what I don't want to have is, what I can't have is to have long conversations because we don't have the recording equipment and so on."

20. The judge revisited the issue of the site visit on the morning of the second day, by which time he had a better understanding of the issues in the case. He still felt it would be helpful for the experts to show him the boundary line for which they each contended and that in the light of this he would be better able to determine whether and to what extent it might be necessary for them to give oral evidence. As he said (transcript, page 152):

"His Honour Judge Moloney QC: Yes. Good. Well, …. we'll see where we stand at the end of the site visit and if there is an important matter on which actually asking questions of the experts is necessary …. as opposed to my just interpreting their reports, well then we'll deal with that tomorrow. OK? …. well, each side can consider whether it needs to ask any questions of the other side's expert. …. "

21. One of the matters which plainly concerned the judge was that he should finish the hearing in the three days that had been allocated for it, if at all possible. The proceedings then continued for the rest of that morning and the claimants closed their case, subject to the possibility of the experts giving oral evidence after the site view. Indeed, the judge said this as Mr Connew began to address him (transcript, page 178):

"His Honour Judge Moloney QC: … Good. And obviously you may wish to rely on the oral evidence of your surveyor, depending on how we do after today."

22. The site visit then took place. The defendants say the judge received a short explanation from the experts about their evidence and there was some limited questioning. The experts were then released and not required to attend court on the third day. What was said by the experts at the site visit was neither tape-recorded nor recorded in any other way, despite the observations made by the judge on the first day to which I have referred.
23. On the third and final day the proceedings continued and concluded with oral submissions, though as I have said, the parties were also invited to file final submissions in writing, if they so wished. In the course of his oral submissions on behalf of the claimants, Mr Goodfellow did rely on his expert evidence. In particular, this exchange took place in relation to the Bank Strip (transcript, page 313):

"Mr Goodfellow: …. So, Your Honour, in trying to determine where boundary of the, in respect of the bank is, it's important to look quite carefully at the expert evidence on this.

His Honour Judge Moloney QC: Well I would be grateful for that because the surveyors haven't, you know I met them and heard some questions from them but it would assist me for you to take me through any parts of your surveyor's, what you rely particularly rely on, and any part of theirs that you particularly challenge."

24. That is what Mr Goodfellow then proceeded to do and, as he did so, he referred to something Mr Powell had said during the site visit (transcript, pages 323-324):

"Mr Goodfellow: … So, by again referencing that, he's able to show his datum point, if I can call it that, where he's measuring the 87 feet from, is as accurate as it possibly can be.

His Honour Judge Moloney QC: You seem to be saying some things that aren't in his report.

Mr Goodfellow: Your Honour, he, he did explain yesterday how he was doing his, his measurements.

His Honour Judge Moloney QC: He did, yes, I'm just, I'm just checking that the, he wasn't merely reiterating what is in his report, he was amplifying it when he said those things.

Mr Goodfellow: Your Honour, I mean, I'm happy, perhaps if, he'd confirm it in questioning too. Your Honour, if, if Your Honour wished him to.

His Honour Judge Moloney QC: No, OK, I was just."

25. So, despite Mr Goodfellow's suggestion to the judge, Mr Powell did not give evidence and did not confirm on oath the additional explanation upon which the claimants relied. The circumstances in which this explanation was given and the failure by the judge to give to the parties an opportunity to challenge the expert evidence by cross-examination in court, under oath and at a recorded hearing, form the basis for Mr Fieldsend's submission that the treatment of the expert evidence was procedurally irregular, as I shall explain.

The judgment

26. The judge began his judgment by setting out the background and the relevant principles and then turned to consider each of the three pieces of land in issue, starting with the Bank Strip. He referred to the deed plans for the Apps Estate and the Willows, the OS maps and the Land Registry plans and noted that all of these show that the boundary of Hillyfield with the Willows and its neighbouring properties runs north in a continuous line until it bears a little to the west, forming a sharp point where it meets Leather Bottle Hill.
27. The judge next recorded that the overall tenor of the witness evidence before him was that the boundary had long been treated as running along the top of the bank. He observed that the estate had never farmed the bank and that in about 1988 the house owners had dug a ditch along the top of it to prevent water running off the field and into their gardens.
28. That brought the judge to the expert evidence. He explained that the experts had each sought to determine the position of the boundary using the measurements in the deed plans of the Willows, but that this methodology required a knowledge of the points from which the measurements were taken, and the angles at which they ran. Here Mr Cowell faced the difficulty that his assessment depended upon assumptions as to the position and width of the road and verge, and these appeared to have changed over the years. Mr Powell, on the other hand, had relied on fixed points such as the corners of buildings, and he had used modern surveying methods.
29. The judge then turned to the site visit and explained that the bank formed a substantial natural feature of considerable age separating the farmland from the four houses. The slope was steep and would have been difficult to farm. He also observed that all four houses had found different ways of blending the bank into their gardens so that the boundary appeared to run along its top. But, unlike the Willows, the other three houses had now erected fences along the top of the bank and just inside of the ditch.
30. This latter point was of some significance in light of the Land Registry plans of those three neighbouring properties. As the judge explained, the plan for Blythwood, made in 1988, showed its boundary coincident with the old OS line, just like that of its neighbours. However, the more recent plans for the Old Ale House and Glen Cottage, made in 1997 and 2011 respectively, showed both the old OS line and, some distance to the west of it, a new line. In the case of the Old Ale House, the plan also carried this explanation of the old line which was marked as extending between two points A and B: "The boundary between the two points lettered A and B hereon is the site of the former boundary shown on the 1970 edition Ordnance Survey Map". The judge then recorded Mr Powell's opinion that the new line to the west of the old OS line represented the fences erected by each of the three houses to the south of the Willows, and this meant that the old OS line, with which the Willows boundary coincided, ran along the bottom of the bank.
31. Having regard to all these matters, the judge concluded that the boundary line ran generally along the bottom of the Bank Strip, as the claimants contended. The judge recognised that the parties' neighbours and farm workers had behaved as if the boundary ran along the top of the bank but considered this was not sufficient to outweigh the survey and mapping evidence. Further, where the evidence of Mr Powell and Mr Cowell differed, the judge preferred that given by Mr Powell.
32. The dispute about the Triangle is, the judge observed, a continuation of the dispute about the Bank Strip. One side borders the southern boundary of the Additional Land; another is formed by the boundary line contended for by the claimants; and the third is formed by the boundary line contended for by the defendants.
33. The judge found that at the time the first defendant bought the Additional Land, the defendants believed that they owned the Triangle. Further, Mr Brotherton of Strutt and Parker, the agent acting for the claimants' predecessors, the Lyster family, in connection with the sale, believed they owned it too. Hence both the plan attached to the sales particulars of the Additional Land and the conveyance plan identify the retained land as having a boundary in the position contended for by the defendants.
34. The judge considered that the defendants' state of mind was not determinative, however. The issue depended not what the claimants thought they retained when they conveyed the Additional Land but rather on what had actually been conveyed to the defendants. As to this he reasoned as follows. It was plain, and accepted, that the Triangle did not form part of the Additional Land and was not conveyed with it. Further, at this point the boundary between the Willows and the Apps Estate was absolutely clear. It was shown on the deed plans of the Willows and the estate as extending in one continuous line until it made a point with the road in the manner I have described. It was therefore not possible to say the Triangle had ever been conveyed to the defendants, either when they purchased the Willows or at any subsequent time. Accordingly the defendants had no basis for contending that the Triangle belonged to them and the claim in relation to it failed.
35. The judge then dealt with the Swathe. The Additional Land is depicted in the conveyance plan as having four sides; the first running alongside the road is shown as being 47 metres long; the second bordering the Triangle and orthogonal to the road is shown as being 12 metres long; the third, opposite the second and also orthogonal to the road, is shown as being 44 metres long; and the fourth, opposite the first, has a slight curve and connects the ends of the second and third sides furthest from the road.
36. The dispute in relation to the Swathe arose because the conveyance plan also shows an apple tree at the end of the 44 metre side of the plot. The defendants contended that this apple tree is still to be seen on the ground and marks the true western extent of their purchase. However, it is located not 44 metres but rather some 64 metres from the road, so creating the swathe in issue.
37. The judge rejected this claim too. He accepted that Mr Brotherton walked and measured the land with Mr Connew and agreed with him the boundaries of the plot he wished to buy, but he thought it unlikely that Mr Brotherton misread his notes when he drew up the plan and that Mr Connew failed to notice the mistake. The plan was, the judge held, accurately dimensioned. The judge also rejected the case based on proprietary estoppel, finding that the claimants had made no representation as to the Swathe, that the defendants had not relied on anything the claimants had done, and that the defendants had not acted in any way to their detriment such as to render it inequitable for the claimants to resume occupation.

The appeal

38. The defendants rely on various grounds of appeal which fall into two groups. First, they say that the judge's treatment of the expert evidence was procedurally irregular and this rendered his whole decision unjust (ground 1); alternatively this rendered his decision in relation to the Bank Strip and the Triangle unjust (ground 2). Second, they argue that the judge's decision in relation to the Bank Strip, the Triangle and the Swathe was wrong in any event (grounds 3, 4 and 5 respectively).
39. Mr Fieldsend has developed the first and second grounds of appeal as follows. It was apparent from an early stage that not only did the experts not agree as to the location of the boundary but they also did not agree as to how its location should be determined. The trial then began and the judge suggested he would be assisted by a site visit with the experts in attendance, and this was a course to which the parties agreed. However, the defendants gained the impression from the comments made by the judge that the site visit would not be an occasion at which evidence would be given and further that if, after the visit, they wished to question Mr Powell, then they would have an opportunity to do so. The site visit then took place and during the course of it the judge asked the experts some questions but, as I have explained, neither the questions nor the answers were recorded. The experts were then released.
40. As a result, says Mr Fieldsend, the defendants were denied the opportunity of cross examining Mr Powell. Moreover, the judge did not at any time during the recorded proceedings raise with the parties the possibility of there being no formal cross examination of the experts; explain to the parties that in the absence of cross examination they would not have an opportunity fully to test the expert evidence; or afford to the parties an opportunity to make representations about the course he proposed to adopt. This amounted to a serious procedural irregularity.
41. Mr Fieldsend also submits that in their closing submissions the claimants advanced a case based upon the methodology adopted by Mr Powell and challenged the methodology adopted by Mr Cowell. Further, in that connection the claimants relied upon the explanation given to the judge by Mr Powell during the site visit. All in all, Mr Fieldsend continues, the procedure adopted by the judge has deprived the defendants of a fair trial, amounts to a breach of natural justice and renders the decision unjust.
42. Mr Goodfellow responds that it became clear at the site visit that the judge was minded to dispense with the cross examination of the experts and the defendants agreed to the judge taking this course. Further, at no point during the third day did the defendants ask to cross examine Mr Powell. It is only now that the judge has found against them that they have raised an objection.
43. Assessment of these submissions must, I think, begin with a consideration of the power of a judge to control the giving of evidence. Part 32 of the CPR confers upon the court a wide discretion to control evidence, including that given by experts. CPR rule 32.1 provides that the court may give directions as to the issues upon which it requires evidence, the nature of the evidence it requires to decide those issues and the way in which that evidence is to be placed before the court. Moreover, the court may exclude evidence that would otherwise be admissible and may limit cross examination. This provision is supplemented in relation to expert evidence by Part 35. Specifically CPR rule 35.1 provides that expert evidence is to be restricted to that which is reasonably required to resolve the proceedings and rule 35.4 says that no party may call an expert or put in evidence an expert's report without the court's permission.
44. In exercising its discretion to control the admission of expert evidence the court must, however, have regard to the overriding objective and it must also respect the right of the parties to a fair trial. With these requirements in mind, I would make the following general observations which have a bearing on the present case.
45. First, once an expert witness is called to give evidence, his report will generally stand as his evidence-in-chief. He may supplement or amplify his evidence if the court gives permission. All of this will generally happen in open court and any supplementary evidence the expert gives will be recorded. If, however, the judge decides to undertake a site visit, he may be told something of which no formal court recording can be made. Accordingly, he must be careful that such a site visit does not result in one or other party being disadvantaged. If, for example, he wishes to ask an attending expert instructed by one party a question then he should generally do so in the presence of the other party and having taken steps to ensure that an accurate note is made of the question and any answer to it. He should also ensure that each party is given a fair opportunity to deal with anything arising from the visit which is material to the issues to be decided.
46. Second, the oral hearing is still an important feature of our procedure and while it is true to say the judge has a wide discretion to limit cross examination of an expert by, for example, imposing time limits or restricting the issues to which the cross examination may be directed, it is another thing altogether to dispense with cross examination completely and so prevent each party from cross examining the other's expert witness at all.
47. Third, if in any case a court is considering dispensing with cross examination of the expert witnesses, it is therefore desirable that the court explains this to the parties in open court and invites them to agree or gives them an opportunity to make submissions. Moreover, and particularly if one of the parties does not have the benefit of legal representation, it may be necessary to explain to the parties in clear terms the consequences of taking this course and that the court will have to evaluate the opinions of the experts and their reasoning without the benefit of further questioning.
48. It is well established that this court will not interfere with a judge's decision to limit cross examination unless that decision is outside the acceptable range of decisions at which a judge can legitimately arrive. I also recognise that the judge adopted the procedure he did with the aim of making the best use of the time available and finishing the hearing within the three days allowed for it. I have no doubt too that following the site visit the judge felt that cross examination of the experts would not assist him to decide the issues before him. Nevertheless I have come to the conclusion that there were two serious procedural irregularities in the proceedings.
49. First, the judge dispensed with formal cross examination of the experts during the course of the site visit and without saying to the parties in open court that this is what he was minded to do. Further, he did not explain to the parties that this would mean he would have to evaluate the expert evidence without further questioning, and he did not give the parties an opportunity to make submissions about the course he was about to adopt. I am conscious that the defendants are said to have consented to the expert evidence being dealt with in this way. However, they dispute this; and the matter having been dealt with informally and without any record, this court is unable to ascertain precisely what happened and what was said. Moreover, it seems to me most unlikely that the defendants, appearing as they were in person, ever fully appreciated the importance of the expert evidence and that this would mean the judge would have to assess for himself the different methodologies the experts had adopted and decide which was the more appropriate.
50. Second, the judge had discussions with the experts at the site view without any note being made of the questions he asked them or the answers they gave. The unsatisfactory nature of this procedure became apparent on the third day when Mr Goodfellow sought to rely upon something Mr Powell had said. Moreover, this evidence went to a critical issue, namely the starting point, or datum point as Mr Goodfellow called it, from which Mr Powell was working. Now it is entirely true to say that Mr Goodfellow indicated he would be happy to call Mr Powell as a witness and ask him to confirm the substance of what he had told the judge, but this was not something the judge required and we have no record of it. In the result, the crucial evidence is not contained in Mr Powell's report, a transcript, an agreed note or even in the judgment and it is impossible for this court to evaluate it.
51. That is not, however, the end of the matter because this court will only allow an appeal on the grounds of a serious procedural irregularity where the decision of the court was unjust within the meaning of CPR rule 52.11(3)(b), and as this court explained in MJ Hayes and others v Transco plc [2003] EWCA Civ 1261, whether a decision is unjust or not will depend upon all the circumstances of the case. So I must now turn to consider the judge's conclusions in relation to each of the three disputed pieces of land, and the impact of the irregularities upon them.
52. I begin with the Bank Strip. In the case of this piece of land there can be no doubt that the claimants relied upon the evidence of Mr Powell, including the substance of what he told the judge at the site visit. Indeed, without that additional piece of information it is not possible to determine how Mr Powell arrived at the location of the boundary for which he contended. Moreover, the judge plainly attached weight to Mr Powell's evidence in arriving at his conclusion. What therefore is to be done? Must we allow the appeal and remit the issue for rehearing before a different judge with all the cost and delay that will necessarily involve? Or is it permissible for this court to consider the issue for itself? In light of the unsatisfactory way in which this evidence was given I believe that this aspect of the case must be remitted unless this court is satisfied that the conclusion reached by the judge was in any event right. And in considering that question it seems to me the opinions and reasoning of Mr Powell based upon his measurements must be put to one side.
53. So I turn to consider the ownership of the Bank Strip on this basis. The principles to be applied are not in dispute. As I have said, this is not a case in which the land was once in common ownership and then one piece of land was conveyed away. Accordingly, the court must consider all the available evidence including any relevant conveyances, topographical features and evidence of use. So far as Land Registry plans are concerned, and absent a note to the contrary, these indicate general boundaries only. Moreover, they are based on OS maps which, though usually very accurate, do not fix private boundaries. As Lord Hoffmann explained in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 (at page 897 B-C):

"The Land Registry uses maps based upon the Ordnance Survey which are, of course, usually very accurate. For example, if one field is divided from another by a natural feature such as a hedge, the line on the Ordnance Survey map will indicate the middle of the hedge. But the effect of the general boundaries rule is that the owner of a field shown on the filed plan by reference to the Ordnance Survey map does not necessarily own it up to the middle of the hedge. The precise boundary must, if the question arises, be established by topographical and other evidence."

Similarly, as Lord Hope observed in the same case (at page 901 H), the purpose of the survey is topographical, not taxative.

54. The deed plans for the Willows and the Apps Estate do, as I have said, show the boundary between the Willows and Hillyfield extending north in a generally constant direction until it bears away to the west before meeting Leather Bottle Hill. But if the dimensions on the deed plans for the Willows are ignored, as I think they must be without expert evidence to interpret them, the plans themselves provide little assistance in determining whether the boundary lies at the top or bottom of the bank or even somewhere in between.
55. As for the evidence of use, this broadly supported the defendants. The judge had the benefit of hearing oral evidence given by the first defendant and his son, Christopher Connew, and read statements by the second defendant, farm workers and neighbours of the defendants, all of which were admitted by consent without cross examination. The judge considered that the tenor of this evidence was that the bank had never been farmed and that the boundary had long been treated as running along the line contended for by the defendants.
56. That leaves the Land Registry plans of the neighbouring properties. I have set out the details of these plans at [30] above and they do appear to show the boundary of these properties with the Apps Estate as having moved to the west. They are consistent in that respect with the OS map produced in 2002. Mr Powell thought the new line represented the fences erected by the owners of each of these properties and that is, I think, a reasonable inference. It follows that the line shown on the older OS maps must lie to the east of the new line and therefore at the bottom the bank or perhaps half way down its slope. But I am less confident it can be concluded that the true boundary between the Willows and the Apps Estate therefore runs along the bottom of the bank. This, it seems to me, involves the further inference that line shown on the older OS maps and Land Registry plans does represent the true boundary between these properties and that it may or may not do.
57. For my part, and particularly having regard to the evidence of how the bank has been treated for many years, I consider the revision to the OS map and the most recent Land Registry plans of the neighbouring properties to be too insubstantial a basis to decide this issue in favour of the claimants. Indeed I note that the judge himself relied on this material merely as corroboration for Mr Powell's other evidence. Accordingly I would allow the appeal in relation to this issue and remit it for re-hearing.
58. I turn next to the Triangle. Mr Fieldsend submits that the judge fell into error in failing to attach sufficient importance to the identification of the retained land in the 1990 conveyance of the Additional Land. In this regard Mr Fieldsend points out that the conveyance not only transferred the Additional land but also contained covenants given by Mr Connew for the benefit of the retained land, and it was therefore necessary to identify its extent with accuracy. Moreover, Mr Fieldsend continues, the Triangle was at this stage occupied by the defendants which was also consistent with their claim to ownership.
59. It seems to me that the defendants face a formidable difficulty in relation to the Triangle in identifying any conveyance which was effective to transfer it to them. The 1990 conveyance did indeed identify the land retained by the estate, but the only land it purported to convey to the defendants was the Additional Land, and it was accepted that this did not include the Triangle. The conveyance by Mr Roberts to the defendants of the Willows is not very promising either. The boundary of the property seems tolerably clear from the deed plans and extends into the point formed as the eastern boundary of Hillyfield meets Leather Bottle Hill. As such it is hard to see how it can encompass the Triangle.
60. Against this, however, I also have in mind that the judge said that the dispute in relation to the Triangle was a continuation of the dispute in relation to the Bank Strip. It is not entirely clear to me what the judge meant by this but it seems that he formed the view that one side of the Triangle ran on in a southerly direction and then along the top of the Bank Strip, forming the boundary contended for by the defendants, and that another side of the Triangle ran on in a southerly direction and then along the bottom of the Bank Strip, forming the boundary contended for by the claimants. If this is right, as I think it is, then it follows that the issues in relation to these two pieces of land are closely related. If the defendants are right in relation to the Bank Strip then this may be a strong indication that they are also right in relation to the Triangle. Of course, the converse is also true. At this point it is not possible to say more. So in my judgment the appeal must also be allowed in relation to this issue, and it too must be remitted for re-hearing.
61. That leaves the Swathe. The issues arising in relation this piece of land are self-contained and not affected by those arising in relation to the Bank Strip and the Triangle. Mr Fieldsend argues that the judge failed to recognise there was a conflict on the face of the conveyance plan. It shows an apple tree and it was Mr Connew's evidence that there was only one such tree in the area at the time of the 1990 conveyance. Further, the experts agreed that the apple tree was 64 metres from the road, and hence it was quite reasonable to suppose that the entry on the plan of 44 metres was the result of a simple error. Moreover, the judge failed to consider why the apple tree was shown on the plan at all. Had the judge asked himself this question he would have appreciated that its natural answer is that "it is there to mark a fixed point", namely the edge of the land being transferred.
62. Attractively though these submissions were advanced, I am unable to accept them. The judge had the case advanced by the defendants well in mind. As I have said, he found that Mr Brotherton walked and measured the land with Mr Connew and that the two of them agreed the boundaries of the particular plot that Mr Connew wished to buy. He also recorded the defendants' argument that Mr Brotherton must have measured the true distance of 64 metres to the apple tree, but misread his notes when he drew up the plan.
63. Nevertheless the judge rejected that case essentially for the following reasons. First, he considered that notwithstanding there was no apple tree now at the 44 metre point, there may well have been in 1989 because the area was used for fruit growing. Second, it was clear that the land which the defendants wished to buy had an area of about 0.25 acres. The conveyance plan is drawn to scale and, as drawn, does indeed represent a piece of land of about that size. Further, the shape of the piece of land as depicted corresponds to the measurements shown on the plan.
64. The judge also had in mind that the defendants were mainly concerned with extending their existing garden along the road frontage, with a view to improving access and drainage. They had no reason to wish to push back into the field beyond 44 metres, and while the Lyster family were prepared to sell them a small plot of rather boggy roadside land of little agricultural value, it was unlikely they would be prepared to sell more land than the defendants needed.
65. In light of the foregoing I am satisfied the judge had a proper basis for coming to the conclusion he did. Particularly striking to my mind is the fact that the plan does indeed represent an area of land of about the size that Mr Connew wished to buy and that the depicted shape is correctly drawn in accordance with the dimensions shown. Had it truly been agreed that the boundary extended to the apple tree, the piece of land would have had a markedly different shape. In these circumstances I think the judge was entitled to describe the defendants' contention as a surprising one and to reject it. Indeed I agree with him that the only reasonable interpretation of the conveyance as a whole is that it was intended to convey a piece of land of the dimensions and shape shown in the plan.
66. Mr Fieldsend has developed before us one further point. He says that if, contrary to the defendants' primary case, the plan falls to be construed by reference to the dimension of 44 metres then the defendants are entitled to rectification based upon common mistake because the extent of the boundary was agreed by Mr Connew and Mr Brotherton when they walked the land.
67. The claim for rectification, though pleaded, was not developed before the judge and so he did not address it. In my judgment it must, however, fail in the light of the matters to which I have referred. It is simply not possible to conclude on the limited materials before us that the parties had the common intention that the boundary of the piece of land to be conveyed extended to the apple tree.

Conclusion

68. It follows that I would allow the appeal in relation to the Bank Strip and the Triangle and remit the claim in relation to these two pieces of land for re-hearing before a different judge. I would dismiss the appeal in relation to the Swathe.

Lord Justice Christopher Clarke:

69. I agree.

Lord Justice Rimer:

70. I also agree.