[2023] UKUT 200 (LC)

By way of clearing the ground I can begin by dismissing three of Mr Maynard’s points.

First, there is no authority for the notion that a schedule to a conveyance is a document incorporated by reference and that the main clauses automatically prevail over it. Conveyances and leases commonly use schedules as a way of organising material; schedules are not documents incorporated by reference and they do not have any less importance than any other part of the document.

Second, the proposition that an earlier provision in a document is to be preferred to a later one is inconsistent with the modern authority that the court must construe the document as a whole (Wood v Capita, see paragraph 35 above).

Third, Mr Maynard relied heavily upon the proposition that the 1918 conveyance created, by the use of the words “more particularly delineated” a hierarchy of importance, and that where the highest element in the hierarchy – here the plan – was clear then there is no reason to resort to extrinsic evidence. Only if there is no “unified truth” in the conveyance and no hierarchy of precedence within it can one move outside the four corners of the conveyance and look at extrinsic evidence. That, again, is inconsistent with authority. The conveyance is to be construed as a whole, and where as here there is an internal inconsistency it is right to look at extrinsic evidence rather than to simply disregard the schedule and its measurements.

It is now time to look again at the 1918 conveyance and ask whether the words or the plan are unclear.

Taking the plan first, I agree with the judge that the plan was clear in this respect. I note what Mr Mills said about inaccuracies in the plan; it was not to a particularly large scale and there are areas where for example the red edging does not accurately follow the line of the road. But it was perfectly clear about the application land: it was not within the red edging.

Turning to the words, it is a curious feature of the case that whereas Mr Mills regards the wording of the conveyance as “incredibly precise”, Mr Maynard regards it as imprecise and unreliable, and as expressly stated to be so.

I agree that there are two occasions in the 1918 conveyance where the apparent precision of the schedule (with its long list of plot numbers, descriptions, and acreage specified to thousandths of an acre) is expressly qualified. First, the parcels clause (quoted above at paragraph 27) described the land as “comprising in the whole One hundred and sixty three acres one rood and eight perches or thereabouts”. Second, the column in the schedule to where the area of each plot is set out is headed “Approximate Acreage”. Such qualifications, Mr Maynard argued, render the dimensions uncertain and subordinate to any precise description such as the plan in this case.

I do not agree that those qualifications have that effect. First, the words “or thereabouts” in the parcels clause refer, in my judgment, to the whole acreage of 163 acres 1 rood and 8 perches. A perch is 0.00625 of an acre and it is easy to see that it must be difficult to be precise to the last perch when measuring a whole farm. The parties therefore added that careful qualification, but I do not take it as an express warning that an individual plot might be significantly misdescribed. Rather, those words account for the difference between 163a 1r 8p, which is equivalent to 163.300 acres, and 163.305 acres which is the total recorded at the foot of the column of acreages in the schedule.

Second, the words “Approximate Acreage” at the head of the column in the schedule have to be read in their context, which is a list of acreages going to three decimal places, and including some very small plots – plot 186 is only 0.113 acres. The application land measures approximately 0.15 acres, almost 40% of the area of plot 210. The heading “Approximate Acreage” might give warning that a measurement might be out by some thousandths, but not that it might be nearly 40% out – that is implausible in a context where the parties were obviously taking great care about numbers. I disagree with the view taken about that by the judge in the FTT, who thought that the words of qualification were sufficient to give warning of this level of discrepancy.

I agree with Mr Mills that the areas conveyed were precisely described in the schedule. Where the parties intended to convey part of an OS parcel they said so, and I take that (again in respectful disagreement with the FTT) to be a strong indication and that where they did not say so they meant the whole parcel.

Accordingly this is not a case where the verbal description was in any way unclear. It is therefore not on all fours with the situation in Eastwood v Ashton. This is a case where there is an inconsistency between clear words and a clear plan. Eastwood v Ashton was not about such a case and therefore cannot determine the outcome of such a case. Nor, as we have seen, was Network Rail Infrastructure about such a case; nevertheless, Mr Strauss QC did say in more general terms that where a plan more particularly delineates the land it “will normally take precedence over a verbal description, and over any physical features of the property, unless it is not clear enough to show where the boundary lies” and that seems to me to be a legitimate extension of what was said in Eastwood v Ashton. Strictly speaking that proposition was obiter because the words of the lease in Network Rail Infrastructure did not answer the question whether the infill was demised, but as a commonsense extension of Eastwood v Ashton it seems to me to be correct.

So, stripped to the bare essentials, the law is that where a plan more particularly delineates the land conveyed and either the wording is unclear or the wording is clear but inconsistent with the plan the plan will generally, or normally, prevail. The judge’s summary of Network Rail Infrastructure at his paragraph 95 (see paragraph 60 above) omitted the crucial word “normally”.

I also agree with Mr Mills that Wesleyvale is not to be distinguished on the basis that it is about an easement; the same principles of construction apply. It is the only authority from England and Wales where there was a conflict between clear words and a clear plan; and the plan did not prevail. That does not in itself provide an answer, but it demonstrates that where there is such a conflict, as there is in the present appeal, the plan does not have to prevail.

Therefore in the present case, where the plan conflicts with clear words, I have to decide where there is anything to take the case outside general rule that the plan prevails.

Two general principles are of great assistance. The first is the principle that the court can look at extrinsic evidence where the conveyance does not tell the full story. In looking for something that takes this case out of the general rule I am not limited to the four corners of the conveyance, as Mr Maynard argued, because to accept that limitation would be to accept that the acreage in the schedule is to be disregarded, which is inconsistent with the proposition that the conveyance is to be construed as a whole.

And in the present case the extrinsic evidence is overwhelmingly in favour of the schedule to the conveyance.

I have already explained why the Westcott conveyance was admissible and relevant. The judge in the FTT thought it was too, but then discounted it on the basis that it “merged into the conveyance”. The principle of the merger of the contract into the conveyance is about the obligations in the contract, which are no longer relevant once the conveyance has been completed. That does not mean that the contract did not happen. In fact the Westcott conveyance gives us two valuable pieces of evidence; one is that Thomas Dunlop had contracted to purchase Lunsford Farm including the application land and was therefore its beneficial owner at the start of 6 June 2018 and entitled to call for a conveyance of it; the other is that none of the parties to that contract had changed their minds about it at the point on 6 June 1918 when the Westcott conveyance was executed. That evidence points overwhelmingly to the schedule prevailing.

So does the conveyance of 12 June 1918. Admittedly we do not have a copy of it, but the register of title in referring to the conveyance, setting out the parties, and recording the grant of a right of way leads inexorably to the conclusion that Thomas Dunlop joined in in order to grant that right. If on 6 June 1918 Lt Lucas-Shadwell and Mr Harvey and Thomas Dunlop did change their minds about the conveyance of the application land to Thomas Dunlop, they had forgotten that 6 days later. That is implausible.

The 1933 conveyance points to the same conclusion. I disagree with the judge about the construction of this conveyance; it was clearly an original grant of a right of way. A conferral of a right to share an easement would have referred to that easement and to its source, and there is no such reference. The only way in which Thomas Dunlop could have had such an easement, if he did not own the application land, would be by the operation of what is now section 62 of the Law of Property Act 1925, then section 6 of the Conveyancing Act 1881, by virtue of his use of the application land when he was tenant of Lunsford Farm. But again if that was the case one would expect the origin of that easement to have been recited in the conveyance. Thomas Dunlop granted an easement over the application land to Beatrice Maud Eves in 1933. Even if that is evidence only of Thomas Dunlop’s subjective understanding it shows that if he and the other parties to the 1918 conveyance did change their minds at some point on 6 June 1918, after the conveyance of Westcott and before the conveyance of Lunsford farm, he had forgotten all about it in 1933. Which is again implausible.

The second general principle is from Wood v Capita (paragraph 36 above): if in doubt, the court is to prefer the construction that makes business common sense. Given that Lt Lucas-Shadwell and Mr Harvey were not free to change their minds on 6 June 1918 and were contractually bound to convey the application land to Thomas Dunlop, it made no business sense for them not to do so.

I conclude that the 1918 conveyance of Lunsford Farm, properly construed as a whole with the benefit of extrinsic evidence, conveyed the application land to Thomas Dunlop.