REF/2010/0939/0940
The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land
registry
BETWEEN
NORFOLK
NATURALISTS TRUST
APPLICANT
and
(1) EDWIN JULIAN
LUMLEY
(2) JOHN OLIVER
ELLISON
RESPONDENTS
Property Address: Land at Holme next the Sea, Norfolk
Title Numbers: NK391890 and NK391894
Before: Mr Rhys
Deputy Adjudicator to HM Land Registry
Sitting at: King’s Lynn Magistrates Court
On: Tuesday 26th
July 2011
Applicant representation: Mr Andrew
Davies of Counsel instructed by Cozens-Hardy LLP Solicitors
Respondent
representation: Mr Simon Breasley of Thyme Consultants Ltd
D E C I S I O N
KEYWORDS – Accretion
and diluvion – effect of change in Mean High Water Mark – principles of construction
of pre-registration deeds – purported grantor of land without a title
subsequently acquiring title to the same land – estoppel perfecting grantor’s
title – effect on subsequent purchaser
CASES CITED
First National Bank PLC v
Thompson [1996] Ch 231
Ali v Lane and another [2006] EWCA Civ 1532
Haycocks v Neville [2007] EWCA Civ 78
Pennock v Hodgson [2010] EWCA Civ 873:
THE
APPLICANT’S APPLICATION
- On 21st February 2008
the Applicant applied for first registration of a large parcel of land at
Holme-next-the-Sea, on the eastern shore of the Wash north of Hunstanton, Norfolk. The Applicant – as its name suggests – is a charitable trust established for the
purposes of preserving the natural environment, and it operates a nature
reserve along this stretch of coastline (and indeed in several other parts
of the county). It asserts a legal title to the land in question by
virtue of the Conveyance dated 18th March 1966 and made between
Minister of Land and Natural Resources (1) and the Applicant (2) (“the 1966
Conveyance”). The vendor under the 1966 Conveyance derived its title
through three other conveyances, namely; (a) a Conveyance dated 1st
April 1960 and made between Frederick Hiam Limited (1) and the Minister of
Agriculture Fisheries and Food (2) “(“the 1960 Conveyance”); (b) a
Conveyance dated 10th December 1953 and made between Bernard le
Strange and others (1) Messrs Wood and Stanton (2) and Frederick Hiam
Limited (3) (“the 1953 Conveyance”); and (c) a Conveyance dated 27th
September 1920 by which Charles Alfred le Strange conveyed the land to
Fred Hiam (“the 1920 Conveyance”). The application for first registration
related to a much larger piece of land than is in dispute in this
adjudication. The Applicant has become registered, under title number NK370960,
with the greater part of the land included in the original application. This
is land which is comprised within the Holme Dunes Nature Reserve, as to
which the Applicant’s website contains the following description: “Covering over 281 hectares, NWT Holme Dunes
consists of extensive sand and mud flats behind which sand dunes have
developed. Areas of saltmarsh, freshwater grazing marsh and reedbed have
developed in the shelter of the dunes. Within the dunes are wet areas,
known as “slacks”, thickets of sea buckthorn and a Corsican pine
woodland.” The registered title
primarily consists of these sand dunes and associated areas, lying between
the village of Holme-next-the-Sea to the west and Thornham to the east, and
bounded on the north by the Mean High Water Mark of Ordinary Tides (“Mean
High Water Mark”). The title includes a body of water known as Broad
Water, which lies behind the coastal dunes at their eastern extremity, and
forms a rough L-shape, with the foot of the L running south from the dunes
towards the River Hun near Thornham. The main shaft of the L runs more or
less east to west.
THE
RESPONDENTS’ OBJECTIONS
- In respect of three parcels of
land comprised in the original application, however, the Respondents
objected to the Applicant’s registration. The first-named Respondent, Mr
Lumley, is the registered proprietor of two unconnected parcels of land
known as “…land adjoining Broad Water, Holme-Next-The-Sea…” under
title number NK336604. The western parcel consists of a rectangular area
of land, to the north of Broad Water and the east of “The Firs”, a large
Edwardian house which is comprised within the Applicant’s Title and is
used as a visitor centre for the Holme Dune reserve. The eastern parcel
of land is situated to the north of Broad Water, at the point where it turns
south. I shall refer to these two parcels as “the Lumley land”. The root
of title to both these properties is formed by the Conveyance dated 8th
January 1936 and made between Hiam Estates Limited (the same company as
Frederick Hiam Limited by change of name) (1) and Ernest Hickling (2), to
which I shall refer as “the Hickling Conveyance”. Both parcels came into
Mr Lumley’s family by virtue of two subsequent conveyances, made between
Ernest Hickling (1) and Edwin Sinclair Clarke MC (2) and dated 25th
September 1937 (“the 1937 Conveyance”) and 26th September 1949
(“the 1949 Conveyance”) respectively.
- The second Respondent, Mr
Ellison, owns a long, thin rectangle of land lying immediately to the east
of the southern reach of Broad Water, almost as far as its southernmost
point close to the River Hun. This land is registered under Title number
NK383628 and will be referred to as “the Ellison land”. He derives his
title from a Conveyance dated 5th September 1938 and made
between Frederick Hiam Limited (1) and Anthony Welldon Ellison (2) (“the
Ellison Conveyance”).
- The basis of each Respondent’s
objection is the same. They both claim that part of the land included in
the Applicant’s original application is already included within their own
title, by virtue of the doctrine of accretion. They argue that the
original purchasers of the Lumley land and the Ellison land had then
acquired a title up to and including Mean High Water Mark. If that is
right, and since the Applicant’s title post-dates theirs, any accretion to
the coastal land (by virtue of the retreat of the Mean High Water Mark)
will belong to them as an accretion to the original title. This
proposition of law is uncontroversial, and is agreed between the parties. There
is no doubt, and no dispute, that there has been a very substantial
retreat in the Mean High Water Mark – and corresponding accretion to the
coastal properties – since the late 19th century. The retreat
has been reflected in successive editions of the Ordnance Survey maps for
the area, many of which have been put in evidence before me. I should add
that Mr Breasley, for the Respondent, pointed out that the process of
accretion was by no means consistent over the years, and indeed on
occasions the coastline was the subject of diluvion. There is, however,
no gainsaying the overall trend, namely accretion. The true issue between
the parties is this: when the Lumley land and the Ellison land were
conveyed to the Respondents’ predecessors in title, did the conveyances
include all the land as far as Mean High Water Mark, as the Respondents
contend, or did the conveyance only extend as far as a notional line to
the south of Mean High Water Mark (in respect of the Lumley land), or to
the west (in respect of the Ellison land) as contended for by the
Applicant. I should add that Mr Ellison also claims that there has been
accretion to the inland side of the Ellison Land, in that the part of
Broad Water that lies immediately to the west of the Ellison Land has become a reed-bed and has cease to be covered by water. Adopting the same principle
of accretion as applies to the sea, he argues that the reed-bed belongs to
him. In order to resolve these issues, my first, indeed principal, task
must be construe the various title documents.
MR LUMLEY’S ROOT
OF TITLE
- I shall begin with the root of
title to the Lumley land. This is formed by the Hickling Conveyance of
1936. Neither the original, nor a copy of this conveyance has been
produced to me, nor is available to the parties, but an original certified
Abstract of Title has been produced which reproduces the terms of the
Hickling Conveyance and contains a copy of its plan. The land is
described thus: “ALL THAT pce of frhd land situate in the Psh of Holme
in the Coy of Norfolk bounded on the North & East by the Foreshore of
the Wash and on the South & West by other property of the Coy
containing by admeasurement 5a. 3r. 14p. or thabts and wh for the ppse of
identification only and not limitation is delineated on the plan annexed
thrto and thron edged with the red…” After making allowances for the conveyancer’s
shorthand, the description reads as follows: “ALL THAT piece of
freehold land situate in the Parish of Holme in the County of Norfolk
bounded on the North and East by the Foreshore of the Wash and on the
South and West by other property of the Company containing by
admeasurement 5 acres 3 roods 14 poles or thereabouts and which for the
purpose of identification only and not limitation is delineated on the
plan annexed [t]hereto and [t]hereon edged with the red….” The
conveyance plan appears to be based on the 1890 edition of the Ordnance Survey County series, although it is not identical and is probably a freehand copy
or rough tracing of the same. No scale is marked. It identifies the land
as an area to the north of Broad Water, wider on the west than the east
and tapering to a point at the extreme east. The southern boundary of the
area edged in red lies a short distance to the north of the northern bank
of Broad Water – in other words, the southern boundary of the land is not
formed by Broad Water itself but lies slightly to the north. This is
consistent with the reference in the conveyance to “the roadway belongg
to the Coy separating Broadwater afsd from the ppty thrby sold for the
ppse of access and egress to the ppty thrby convd and also the right to
erect boathouses shelters & landing stages in the Broadwater and
attach them to the Bank belong to the Coy………..”. I should mention
that the area between Broad Water and the sea was intended to be laid out
as a high-class private housing and recreational estate with associated
boating and other leisure facilities on Broad Water. The word “FORESHORE”
is written on the plan immediately
to the north of the land edged red. Although Mr Davies, for the
Applicant, tried to persuade me that this word had some other meaning in
this context, I cannot agree with him. The word “Foreshore” has a
generally accepted meaning of the area lying between Mean High Water and
Mean Low Water and there is nothing in the context or the surrounding
circumstances of the Hickling Conveyance to cause me to depart from this
generally accepted definition.
PRINCIPLES TO
BE ADOPTED IN CONSTRUING THE CONVEYANCES
- In construing the Hickling
Conveyance, and, indeed, all the documents of title that have been
referred to me, the essential purpose is to ascertain from the words used
the true intentions of the parties to the conveyance. Mr Andrew Davies,
appearing for the Applicant, helpfully reminded me of judicial guidance on
the subject, citing in particular the following passages from the judgment
of Mummery L.J in the recent Court of Appeal decision in Pennock v
Hodgson [2010] EWCA Civ 873:
“7. The opinion of Lord Hoffmann in Alan
Wibberley Building Limited v. Insley [1999] 1 WLR 894 is now
regarded as the leading modern authority on the construction of the parcels in
a conveyance. The rest of the Appellate Committee agreed with it. It discusses
the status of an Ordnance Survey plan attached to a conveyance “for the
purposes of identification” and the inferences that may properly be drawn from
physical features of the land existing and known at the date of the conveyance.
They are all familiar themes in boundary disputes.
8. Ought the judge to have ignored
evidence of the presence and position of the fence, when construing the parcels
clause and the attached plan? The judge should, according to the claimants,
have excluded the fact of the fence from the process of construction, because
there was no ambiguity in the presence and position of the stream shown as a
boundary feature on the attached plan.
9. Alan Wibberley supplies
the solution. From it the following points can be distilled as pronouncements
at the highest judicial level :-
(1) The
construction process starts with the conveyance which contains the parcels
clause describing the relevant land, in this case the conveyance to the
defendant being first in time.
(2) An attached
plan stated to be “for the purposes of identification” does not define precise
or exact boundaries. An attached plan based upon the Ordnance Survey, though
usually very accurate, will not fix precise private boundaries nor will it
always show every physical feature of the land.
(3) Precise boundaries
must be established by other evidence. That includes inferences from evidence
of relevant physical features of the land existing and known at the time of the
conveyance.
(4) In
principle, there is no reason for preferring a line drawn on a plan based on
the Ordnance Survey as evidence of the boundary to other relevant evidence that
may lead the court to reject the plan as evidence of the boundary
10. The long standing general
principles of how to construe a conveyance underpin those points. In Eastwood
v. Ashton [1915] AC 900 at 906 Earl Loreburn said in a dispute about title
to a small strip of land:-
“We must look at the
conveyance in the light of the circumstances which surrounded it in order to
ascertain what was therein expressed as the intention of the parties.”
I shall do my
best to apply these principles and guidelines when construing the material
documents of title in this case.
THE MEANING OF THE HICKLING
CONVEYANCE
- Leaving aside for the moment any
extraneous material or the background circumstances, the terms of the
Hickling Conveyance are clear. The northern and eastern boundaries are said
to abut the foreshore of the Wash, and the southern and eastern boundaries
to abut other property of the Vendor. The total area is said to be nearly
6 acres. The words of the parcels clause leave no room for doubt that the
parties’ intention is to delineate the northern and eastern boundary by
reference to the foreshore of the Wash – in other words, Mean High Water
Mark at this point. The conveyance plan, which is introduced by the words
“….for the purpose of identification only and not limitation…” – is
entirely consistent with that description, since the northern
boundary of the land shown edged red is indeed adjacent to the word “FORESHORE”.
If the only material available to me in the construction of this document
is the Hickling Conveyance itself, the intention of the parties was
undoubtedly to include all the land up to and including Mean High Water
Mark.
SURROUNDING
CIRCUMSTANCES AS AN AID TO CONTRUCTION
- However, the Applicant invites me
to have regard to certain matters which lie outside the four corners of
the conveyance, in particular the physical appearance of the subject land
at the time of the Hickling Conveyance, as apparent from the Ordnance
Survey mapping subsequent to 1890. This is, of course, entirely
legitimate, as the passage quoted above from Mummery LJ’s judgment makes
clear. He relies heavily on a report prepared by Mr William Boyd, a
former Warden of Holme Dunes who, as the Applicant’s West Norfolk Field
Officer, has overall responsibility for the nature reserve. Mr Boyd has
carried out a detailed exercise, in which he attempts to relate the
various conveyance plans to the changing physical appearance of the
coastline over a period of some 100 years. As he readily accepted, he is
not an expert surveyor or cartographer, and indeed no directions for
expert evidence had been given rendering such evidence admissible.
However, the exercise carried out by Mr Boyd does have some value, at
least to the extent that he has produced a sequence of relevant Ordnance
Survey maps, and certain photographs, and overlaid them with the title
plans. I have therefore had regard to his evidence, which, where
appropriate, I have taken into account as part of the background to the
construction of the title documents.
- As I have said, the Hickling
Conveyance plan was based on the 1890 Ordnance Survey map (Mr Boyd agreed
with this, although he had originally thought that the 1905 Map was the
basis for it). A comparison between this map, and the conveyance plan on
which it is based, makes it obvious that the red edging of the land
comprised in the conveyance more or less coincides, on the northern
boundary, with Mean High Water Mark as shown on the 1890 map. However, the
closest OS map in time to the Hickling Conveyance is that of 1939. By
this time, Mean High Water Mark was a considerable distance to the north
of the northern extent of the red edging shown on the Hickling Conveyance
plan, namely the High Water Mark shown on the 1890 map. This is shown in Mr
Boyd’s Map E, as explained in his evidence. The significance is this. The
stated area of the land comprised in the Hickling Conveyance was approaching
6 acres. On the basis that the northern boundary of the land was as shown
on the 1890 Ordnance Survey Map – Mean High Water Mark – the acreage is
more or less correct. Again, this can be derived from Mr Boyd’s report,
and the maps produced by him. However, if Mean High Water Mark is
considerably further north (as it will have been by 1936), and if that
represents the northern boundary of the land conveyed, the acreage would
be completely wrong. The area of the land would be substantially
greater. Based on this discrepancy, Mr Davies argues that the Hickling
Conveyance was not intended to convey land as far as the Mean High Water
Mark, but to a northern boundary that lay to the south of that line. Mr
Davies (even relying on Mr Boyd’s report) was unable to identify any definite
feature on the ground, present in 1936, that exactly coincided with the
suggested boundary and stated acreage. One difficulty in his way was that
the southern boundary was identified by reference to a roadway that was
never constructed, although a rough path does exist. There is inevitably
an element of uncertainty as to the exact line of the southern boundary.
RESOLVING THE
AMBIGUITIES
- It will be seen, therefore, that
the Hickling Conveyance does give rise to a difficulty of construction,
essentially caused by the fact that the conveyance plan was based on an
outdated and obsolete Ordnance Survey Map. The features shown on the
conveyance plan no longer existed. There is, therefore, a conflict between
the verbal description, the acreage given and the physical appearance of the
land. Mr Davies submits that I should resolve the discrepancy by treating
the conveyance as limiting the area of land to a 6-acre site which would
not extend as far as Mean High Water Mark as it existed in 1936. I adopt
a different approach. The process of construction, as described by
Mummery LJ, necessarily involves a consideration of surrounding
circumstances (and particularly the physical circumstances) existing at
the date of the conveyance. Where there is a conflict between individual
elements of the description an overall judgment has to be made as to the
probable intention of the parties. In my judgment, and having regard to
all the admissible material before me (not all of which has been
specifically referred to in this Decision) I conclude that the intention underlying
the Hickling Conveyance was to convey all the land up to Mean High Water
Mark. The description of the northern and eastern boundary as “……the
Foreshore of the Wash….” is unequivocal, and the conveyance plan
reflects this. There is no land shown between the red edging and the
Foreshore. I accept that the acreage of the plot is inaccurately stated,
but this is the inevitable result of using an obsolete Ordnance Survey
map. I do not consider that this factor should prevail over the clear words
of the verbal description, which leaves no room for doubt. There is also
another cross-check on this construction. The land conveyed by the 1920
Conveyance to Frederick Hiam Ltd – which I discuss in detail below –
manifestly includes an area of land to the north of the 6-acre site, as
shown on Mr Boyd’s Map B overlay. Accordingly, if the Applicant’s
construction of the Hickling Conveyance is correct, the land conveyed to
the purchaser by Frederick Hiam Ltd would have been bounded on the north
and east “….by other property of the Coy…” and not by the Foreshore
of the Wash. There is no indication that the vendor intended to retain
any property between the northern boundary of the Hickling land and Mean
High Water Mark. In my judgment, this reinforces the construction that
the Hickling Conveyance was intended to convey land right up to Mean High
Water Mark. I entirely accept that there are respectable arguments for
reaching a different conclusion – which Mr Davies has skilfully addressed to
me – but in my judgment these are outweighed by the considerations I have
mentioned.
DID THE
VENDOR HAVE TITLE IN 1936?
- If that construction is correct,
Mr Lumley’s objection would be well-founded, always assuming that
Frederick Hiam Ltd had a title to the land as far as mean High Water Mark
as at the date of the Hickling Conveyance. However, the Applicant contends
that the vendor under the Hickling Conveyance did not itself have title to
all the land as far as Mean High Water Mark, and could not therefore have
conveyed it.
THE 1920
CONVEYANCE
- The vendor under the Hickling
Conveyance was Hiam Estates Limited, which derived its own title from the
1920 Conveyance. The parcels description reads as follows: “All and
singular the freehold land and hereditaments situate in the Parish of
Holme next the Sea or in the adjoining Parishes of Ringstead or Thornham
in the County of Norfolk more particularly described on the plan drawn on
these presents and thereon surrounded by a red verge line and also a perpetual
annual rentcharge of Three pouns issuing out of the lands coloured yellow
on the said plan all of which hereditaments are further described in the
Second Schedule hereto.” The plan annexed to the conveyance is drawn
to a scale of 6 inches to 1 mile, or 1:10560. This was the basic Ordnance
Survey scale from the late 18th Century onwards and was used
for the County Series of maps well into the 20th Century. It
may be noted that the initial survey for the County Series took place
between 1879 and 1886, with the first revision made between 1900 and 1906.
The red verge line drawn around the various parcels is thick and probably
painted onto the plan with a brush. By my reckoning, and having regard to
the scale of the map, the line has a thickness of between 35 and 40 metres
on the ground. Given that the property is stated to be “more
particularly described” by the plan, this is clearly unsatisfactory. However,
it is clear that the red verge line does not coincide with the “High Water
Mark Ordinary Tides” as depicted on the plan along much of its length. It
does touch the “High Water Mark Ordinary Tides” in at least two places,
close to the north-eastern corner of Broad Water, in the vicinity of the area
comprised within the Hickling Conveyance. However, the red verge line
diverges from Mean High Water Mark as the coastline runs westward. The
area to the north of Broad Water is identified on the plan by the Ordnance
Survey close numbers, namely 212a, 214, 215 (Broad Water itself), 216 and
216a. In the Second Schedule to the conveyance, this group is described
as being “In hand” with a total area of 44.497 acres. Mr Breasley,
for the Respondents, points out that these are not described as “part”
fields, in contrast to close numbers 211 and 212, which are identified
both on the plan and in the Second Schedule as part fields only. 211 and
212 are the fields which adjoin the “High Water Mark Ordinary Tides” to
the north-west of Broad Water. A better and fuller copy of the 1905
Ordnance Survey map was provided by the Applicant after the hearing. This
shows that there is also a parcel “214a”to the north of 214, which seems
to occupy the area of the dunes as far north as Mean High Water Mark.
- The 1920 Conveyance plan appears
to be based on the 1907 revision of the County Series map, which has the
same scale, although it is not identical. In particular, the 1907
revision does not show any parcel numbers, although these are shown on the
1:2500 version dated 1905. It seems probable that the two maps have been
combined – perhaps in the form of an annex to an estate terrier – using
the parcels information from the 1905 map and the topographical details of
the 1907 revision. The parcels information is not wholly accurate,
however. For example, whereas the spit of land to the north-east of Broad
Water appears to be included within parcel 214 on the conveyance plan, it
is identified as parcel 213a on the 1905 map. That parcel number simply
does not appear on the conveyance plan. There is no reference to 214a (nor
is there in the schedule of parcels) which is the parcel shown on the 1905
map (in the version supplied to me after the hearing) as comprising the
area immediately adjoining Mean High Water Mark. The location of other
parcels is not accurately shown. However, both the 1905 and the 1907
editions of the Ordnance Survey map demonstrate that Mean High Water Mark had
retreated northwards since the 1890 first edition of the County map. It
is the Applicant’s case that the red verge line shown on the 1920 conveyance
plan is drawn deliberately so as not to coincide with Mean High Water Mark,
leading to the conclusion that the parties intended to exclude from the
conveyance the strip of land including and immediately inland from Mean
High Water Mark. In his submissions on the further version of the 1905
Ordnance Survey plan produced after the hearing, Mr Davies argues that
this equates to parcel 214a. Mr Breasley, for the reasons set out in his
additional submissions, rejects this argument.
EFFECT OF
SUBSEQUENT CONDUCT – THE 1953 CONVEYANCE
- Mr Davies also prays in aid the
fact that, in a subsequent conveyance between the same parties – the 1953
Conveyance – land up to and including Mean High Water Mark was conveyed to
the same purchaser. Mr Davies submits that, in construing the 1920
Conveyance, evidence of subsequent conduct may be admissible. He refers
me to Ali v Lane and another [2006] EWCA Civ 1532 and Haycocks v
Neville [2007] EWCA Civ 78 for that proposition, which I entirely
accept. Some examples of the types of subsequent conduct that may be
admissible are given at paragraphs 36 to 38 of Carnwath L.J’s leading
judgment in Ali v Lane. He also makes it clear that the evidence
must be of “probative” value – mere unilateral conduct being unlikely to
satisfy this requirement. I agree with Mr Davies that the contents of the
1953 Conveyance, made between the same parties as the 1920 Conveyance – or
rather by the same purchaser and a successor in title to the vendor – is
potentially admissible as an aid to construing the 1920 Conveyance, in the
sense that it might provide an indication as to what land was included
within it.
- The first recital to the 1953
Conveyance records that the property thereby conveyed was by a Vesting
Assent dated 19th February 1934 vested in the vendor Bernard Le
Strange as tenant for life under the terms of a strict
settlement. The settlement seems to have been created in 1926 and the
original tenant for life was Charles Alfred Le Strange, the vendor under
the 1920 Conveyance. The property comprised in the sale, at a
consideration of £470, was described as follows: “ALL THOSE lands and
premises situate in the Parish of Holme-next-the-Sea in the County of Norfolk more particularly delineated on the plan hereto annexed and thereon in
part coloured Blue and in part surrounded by a Red verge line….”. The
plan is at a scale of 1:2500 and is evidently based on the Ordnance Survey
map. The area edged red lies between the embankment to the north of Broad
Water and the “High Water Mark of Medium Tides”, and also between
the area coloured Blue and the High Water Mark of Medium Tides. The area
coloured Blue includes land to the north and west of Broad Water, and
consists of parcel number Part 211.
- A comparison between the 1920
Conveyance plan and the 1953 Conveyance plan reveals that part of the land
comprised in the 1920 Conveyance was also purportedly conveyed by the 1953
Conveyance. The land in question lies to the north of Broad Water, and
also includes part of parcel 211. It is not an entirely straightforward task
to compare the two plans, due to the difference in scale, the fact that
Mean High Water Mark has retreated substantially between the dates of the
two plans and the relative lack of detail on the 1920 plan, but it can be
stated with certainty that there is some substantial degree of overlap
between the two, and this is accepted by the Applicant (see for example
page 4 and Map K of Mr Boyd’s report).
TRUE
CONSTRUCTION OF THE 1920 CONVEYANCE
- Having regard to the terms of the
1920 Conveyance, in the light of the contents of the 1953 Conveyance, how
should I construe the earlier conveyance and, in particular, did it
purport to convey all the land up to Mean High Water Mark? I do not find
it at all easy to resolve this issue. On balance, however, I have
concluded that the 1920 Conveyance was not intended to convey all the land
up to and including Mean High Water Mark. In reaching this conclusion, I
have taken into account the fact that parcel 214 is shown as comprising
16.199 acres. When one relates this to the 1905 Ordnance Survey map, it
can be seen that the northern boundary of the parcel includes the area
shown as sand dune, but does not extend as far as Mean High Water Mark. The
area lying immediately behind Mean High Water Mark is parcel 214a (see the
1905 Ordnance Survey map), which is not referred to in the plan or in the
parcels set out in the Second Schedule. It is true that the red verge line
clearly extends beyond the northern edge of parcel 214, and well into parcel
214a as shown on the 1905 Ordnance Survey map. This is demonstrated by
Map A attached to the report of Mr William Boyd, relied on by the
Applicant. Map A shows that the red verge line marked on the 1920
Conveyance plan does not match any feature on the ground, nor does it
coincide with the Ordnance Survey parcel boundaries. It might be thought
improbable that the parties would have intended to create an entirely
unmarked and unascertainable northern boundary of the conveyed land, and
that they would have intended the boundary to match the most obvious
northern demarcation feature, namely Mean High Water Mark itself (although
this would not necessarily have been visible, it was at least
ascertainable). On balance, however, the omission of parcel 214a from
the Second Schedule, coupled with the (albeit very crude) depiction of the
red verge line on the plan as lying to the south of Mean High Water Mark,
persuades me that for whatever reason the land immediately adjacent to
Mean High Water Mark was not conveyed by the 1920 Conveyance.
- Having said that, however, it is
evident that the parties were confused with regard to what exactly had
been conveyed by the 1920 Conveyance, as may be seen from subsequent
conveyancing transactions. First, as I have already held, Hiam Estates
Limited purported to convey land up to Mean High Water Mark by virtue of
the Hickling Conveyance and recited, in that conveyance, that it owned the
land in fee simple in possession. Secondly, the same purchaser – now
known as Frederick Hiam Limited – purported to convey land up to High
Water Mark by virtue of the Conveyance dated 10th March 1939
made between it and Winifred Wright, which relates to “the Firs”
(mentioned above). The conveyance was of “all such rights of whatever
nature as are now vested in the Vendors to and over the sandhills
adjoining the property which sandhills are coloured green on the said plan
…… Excepting and Reserving unto the Vendors….the owners for the
time being of the lands between Broadwater and the Sea on the eastern side
of the property hereby conveyed a right of way over and across the road or
track…indicated on the plan…”. The area identified as “the sandhills”
on the plan occupies the entire area between “The Firs” and its grounds
and Mean High Water Mark. The description of the Vendor as “the owners
for the time being of the lands between Broadwater and the Sea on the
eastern side of the property…” is self-explanatory. Although by this
time there must have been some doubt as to the basis of the Vendor’s title
– hence the use of the formula “all such rights of whatever nature as
are now vested in the Vendors…” – the Vendor obviously regarded itself
as able to make some title to the land. Thirdly, the 1953 Conveyance
itself demonstrates confusion as to what land was conveyed by the 1920
Conveyance, since, as previously explained, the later conveyance
demonstrably conveys land which had already been conveyed in 1920. Given
the uncertainty about the extent of the land conveyed in 1920 – hardly
surprising, perhaps, in view of the difficulties posed by the 1920
Conveyance – the parties must have decided to resolve the issue by
entering into a new conveyance. It is true that a consideration of £470
was paid, but the later conveyance was also intended to and did convey
additional land over and above that which was included in the 1920
Conveyance, particularly to the north-west of the site.
ESTOPPEL BY
RECITAL – THE PRINCIPLE
- If the land behind Mean High
Water Mark (in effect parcel 214a) was excluded from the 1920 Conveyance,
clearly it could not have been included in the Hickling Conveyance – nemo
dat quod non habet. However, exceptionally, it is argued in this case
that the purported but ineffective conveyance of the land in 1936 was
“perfected” by the 1953 Conveyance. This argument is founded on the Court
of Appeal decision in First National Bank PLC v Thompson [1996] Ch
231 which Mr Davies, conscious of his duty to the tribunal since the
Respondent did not have legal representation (Mr Breasley is not a lawyer),
very fairly drew to my attention, for which I am grateful. The facts of
the case were as follows. On 10th July 1991 the defendant and
a Mrs McMahon executed a legal charge over a registered title in order to
secure their indebtedness to a bank, the claimant. At that date neither of
them was the registered proprietor, nor were they entitled to be so
registered. The charge contained no recital or other representation as to
their title. On 12th September 1991 the property was
transferred to the defendant and he was registered as proprietor on 9th
December 1991. Some time later, the claimant applied to register its
charge against the defendant’s title, but the defendant objected, on the
basis that when the charge was executed, he was not the registered
proprietor, and the charge did not have any effect. The judge agreed and
dismissed the claimant’s application for summary judgment. The Court of
Appeal disagreed with the judge, and held that the claimant bank was
entitled to be registered as proprietor of the legal charge.
- The basis of the decision was
estoppel. The ratio was as follows: “…the grantor of an interest in land was estopped from
disputing the validity or effectiveness of his own deed even where he had
not given any express representation of title; that the grantor’s
subsequent acquisition of the legal title fed the estoppel and gave the
grantee an estate in interest..”. As appears from the judgment of
Millett L.J at 239B-H, a distinction had to be drawn between cases where
the original grant contained an express recital or other clear
representation of the grantor’s title, and cases where there was no such
recital or representation. The distinction derives from the existence of
two different types of estoppel, namely estoppel by representation and
estoppel by deed. The significance, in this context, is that an estoppel
by representation – where the original grant contains a recital of title –
will bind even a purchaser for value without notice from the original
grantor. Where there is no such recital or representation – as in the First
National Bank case itself – this is treated as an estoppel by deed
which will not bind equity’s darling, the purchaser for value without
notice.
APPLICATION
OF THE DOCTRINE
- The doctrine may be applied to
the instant case in this way. The Applicant argues that the vendor under
the Hickling Conveyance – Hiam Estates Limited – did not have title to all
the land leading up to Mean High Water Mark, on the true construction of
the 1920 Conveyance. However, it is common ground that it did acquire
that title under and by virtue of the 1953 Conveyance. If, as I have
held, Hiam Estates Limited purported to convey the same land to Mr
Hickling in 1936, its subsequent acquisition of the land will have “fed
the estoppel” and conferred title on Mr Hickling. The only question is
whether the estoppel binds a subsequent purchaser from Hiam Estates
Limited of the land up to Mean High Water Mark - that is to say, a
purchaser without notice of the earlier transaction. In the instant case,
Frederick Hiam Limited (the same company as Hiam Estates Limited) purported
to sell the same land to MAFF by virtue of the 1960 Conveyance, through
which the Applicant derives title. Did MAFF take free of the estoppel
which arose in favour of Mr Hickling and his successors in title? That
will depend on whether the Hickling Conveyance contained an express
representation that the vendor had title of all land as afar as Mean High
Water Mark. The Hickling Conveyance does indeed contain the usual unqualified
recital of a vendor’s title to the land conveyed “seised in fee simple
in possession”. This is an express representation of title, and
creates an estoppel by representation. Accordingly, the effect of the
1953 Conveyance was to “feed the estoppel” created by the recital to the
Hickling Conveyance. If, therefore, Hiam Estates Limited did not have
title to the land up the Mean High Water Mark in 1936, it clearly acquired
it subsequently, and at the date of the 1953 Conveyance that title became
vested in Mr Hickling’s successors in title by operation of law. When Frederick
Hiam Limited purported to convey all the land up to Mean High Water Mark
to MAFF in 1960, the conveyance did not and could not include any land
already conveyed by virtue of the Hickling Conveyance. The result is,
therefore, that Applicant has no title to the land subject to Mr Lumley’s
objection. I should also add that although I raised with the parties the
issue of covenants for title under section 76 of the Law of Property
Act 1925, and invited (and received) further submissions on the point,
I am satisfied that this issue is of no relevance on the facts of this
case. I apologise for having introduced this red herring.
MR ELLISON’S ROOT
OF TITLE
- The second objection to the
Applicant’s registration is made by Mr Ellison, in respect of the land to
the west and east of his registered title NK391894. The land to the west originally
formed part of Broad Water but has since become a reed-bed or similar, and
is claimed under the doctrine of accretion which, it is accepted on all
sides, applies equally to inland waters as much as to the sea coast. The
land claimed by him to the east of his title forms a large rectangular
section of the dunes leading up to Thornham. Again, this claim is made on
the basis of accretion. His title derives from the 1938 Conveyance, in
which the parcels are described as follows: “ALL THAT plot of land
situate in the Parish of Holme-next-the-Sea in the County of Norfolk
containing three roods or thereabouts and forming part of the Vendors said
Holme Beach Estate and for the purpose of identification only shown on the
plan annexed hereto and thereon edged red.” The plan does not have a
stated scale, and is an estate plan showing the plots within, presumably,
the proposed Holme Beach Estate. Part of Broad Water is shown, coloured
blue, but not the most easterly section of it. The area coloured red – not
edged in red as stated – forms a narrow strip of land at the most
southerly and easterly section of the Estate. The plan bears some
resemblance to the plan annexed to the Hickling Conveyance, which was made
by the same vendor some two years prior. The words “Foreshore” and “Thornham Harbour” are marked on the plan, close to the northern and eastern boundary line
of the Estate. The plan seems to be based on the 1905 Ordnance Survey
map, drawn to the same scale, but with the addition of the individual
plots of the estate. Although the word “Foreshore” is adjacent to the
northern boundary of the plots, there is another feature shown further
north and west which appears to be Mean High Water Mark, since the words
“THE WASH” are written on the plan to the north.
- In order to succeed in his
objection, Mr Ellison must establish that his predecessor in title
acquired land up as far as the shore of Broad Water on the west, and as
far as Mean High Water Mark on the east. If that was so, any accretion to
the land since that time will pass with the Ellison land which lies
between the two. Again, of course, this also depends upon the vendor under
the 1938 Conveyance having a title to this land. It clearly had to title
to Broad Water, but probably did not have title to the land as far as High
Water Mark to the east. However, for the reasons explained in relation to
the Lumley land, even if the vendor did not have title in 1938 it subsequently
acquired it. In construing the Ellison conveyance, the Applicant invited
me to have regard to the actual appearance of the land, insofar as it
could be ascertained from the 1939 Ordnance Survey Map, which was more or
less contemporaneous with the 1938 Conveyance, and from an aerial
photograph taken in 1946. These show Mean High Water Mark at a
considerable distance to the north and east of the land coloured red on
the conveyance plan. By contrast, the extent of Broad Water is little
changed from the 1905 Ordnance Survey.
THE TRUE CONSTRUCTION OF THE
ELLISON CONVEYANCE
- In my judgment, the Ellison
Conveyance should be read and construed as follows. First, the operative
description is the “plot of land…..forming part of the …Holme Beach Estate…”. The boundaries of the land are not otherwise described, and the
conveyance plan is introduced for the purpose of identification only.
The acreage is given as three roods. The plan itself shows, I think, that
the western boundary of the plot is intended to be formed by the shore of Broad Water itself. By comparing the outline of the western boundary on the
conveyance plan with the actual shape of Broad Water as shown on the 1939
Ordnance Survey Map, it can be seen that the boundary coincides with the
eastern shore of the lake. Although Mr Boyd has carried out a
sophisticated comparison exercise, between the Ellison conveyance plan and
the aerial photographs and other maps, I do not think that this can really
be of assistance. The plan on the conveyance is for identification
purposes only and is drawn to a small scale. Furthermore, the obvious
physical boundary feature to the west was the shoreline itself, which was
more or less in the same position in 1938 as it would have been when the
plots were drawn up. It may be noted that the roadway to be constructed
by the Hiam company along the edge of Broad Water did not extend this
far. Having regard to the verbal description, together with the
conveyance plan, and the then current Ordnance Survey Map, I am firmly of
the view that the western boundary of the Ellison land was formed by the
shoreline of Broad Water. It follows, therefore, that any accretion on
the inland side will have attached to the Ellison title, and the Applicant
is not entitled to it.
- However, in my judgment the
eastern boundary of the plot did not extend as far as Mean High Water
Mark. I appreciate that I am coming to a different conclusion from that
which I reached in relation to the Lumley land. The principal difference
between the two – and it is a very significant difference – is that there
is nothing in the verbal description of the Ellison Conveyance to suggest
that Mean High Water Mark or the Foreshore of the Wash was intended to
form the boundary. I can find nothing in the plan, the stated acreage or in
the context of the Ellison Conveyance to suggest that this was the
intention. In order to find that Mean High Water Mark was the intended
boundary, I would have to ignore both the shape and position of the land
coloured red on the plan, and reject the acreage altogether. I cannot see
that this approach could be justified: unlike in the case of the Hickling
Conveyance, which refers in terms to the Foreshore as the boundary.
Accordingly, I hold that the eastern boundary of the Ellison land did not,
and was not intended to, extend as far as Mean High Water Mark, and the
coastal accretion to the east of Mr Ellison’s title does not attach to
that title, but forms part of the Applicant’s land as conveyed by the 1953
Conveyance to its predecessor in title.
FORM OF ORDER
- I shall therefore direct the
Chief Land Registrar to cancel the Applicant’s application made on 21st
February 2008 so far as it relates to the Lumley land (i.e the land the
subject of Mr Lumley’s objection and edged in red on the Illustrative Plan)
and insofar as it relates to the land claimed by accretion to Mr Ellison’s
title on the inland side – i.e the land tinted blue on the Illustrative
Plan relating to Mr Ellison’s objection. My inclination would be to order
the Applicant to pay Mr Lumley’s costs on the standard basis, and to make
no order as between the Applicant and Mr Ellison on the basis that it was
a score draw between them. I shall give the parties an opportunity of
making submissions on costs if they so wish, in writing, such submissions
to be lodged and served within 7 days of the date on which this Decision
and Order is received. I would also like to record my gratitude to Mr
Davies of Counsel, to Mr Breasley, and to Mr Boyd, for their invaluable
assistance in helping me resolve this difficult dispute.
Dated this 23rd day of September 2011
By Order of The Adjudicator to HM Land
Registry
