[2023] UKUT 200 (LC)

In Network Rail Infrastructure Limited Mr Nicholas Strauss QC, sitting as a deputy judge of the High Court, had to decide the physical extent of leasehold property. The lease referred to a plan “delineating” the demised premises, and it was not suggested that the omission of the words “more particularly” was significant. The lease was of a parade of shops on a platform built over a railway, and the issue was whether the demised premises included an area beneath the pavement between the front of the shops and road, referred to as the “infill”. It was argued that it did because a previous lease of the same premises had included the infill. Mr Strauss QC went through the authorities, starting from Eastwood v Ashton and noting at paragraph 31 that:

“The House of Lords held unanimously that the plan prevailed, and that the strip of land was included in the conveyance. However, what is significant for present purposes is that the House of Lords did not so hold on the basis that a plan introduced by the words “more particularly described in” must automatically prevail, but on the basis that none of the other descriptions... was clear.” (my emphasis)

At paragraph 41 the deputy judge said:

“The result of these authorities appears to me to be that, where the wording of the contract or transfer indicates that the plan is not merely for the purposes of identification, but is intended to define the property, 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. If it is not, the court must decide where the boundary lines by reference to all the available material including not only the plan, but also any relevant verbal description and physical features of the property.” (Again my emphasis).

Mr Strauss QC decided that the infill was not included; it was not shown on the plan, the exclusion of the infill was not obviously unrealistic or impractical, and that although it might have been a mistake it was not so clearly a mistake that he could apply a corrective interpretation so as to amend or discount the plan.

Network Rail Infrastructure was not a case where the lease plan was in conflict with the words of the lease. The difficulty was that the words were imprecise, and that the previous lease (to the same lessee) had clearly included the infill. But the plan was clear. So the circumstances were very similar to those in Eastwood v Ashton, where only the plan gave clarity.

Mr Maynard for the respondent pointed out that the FTT was bound by the decision in Network Rail Infrastructure Limited, whilst this Tribunal is not. Mr Mills for the appellant argued that Mr Straus QC was wrong to suggest that the verbal description will only prevail over the plan if that plan “is not clear enough to show where the boundary lies” (quoting from the deputy judge’s paragraph 41, quoted above). But that quotation does not properly set out what he said. He said that the plan will normally prevail unless it is insufficiently clear. He did not say that the plan will always prevail unless it is insufficiently clear. And he specifically pointed out (at his paragraph 31, quoted above) that the House of Lords in Eastwood v Ashton did not say that a plan introduced by the words “more particularly described in” will automatically prevail even in a case where the words of the conveyance are unclear.

The proposition that a plan on which land is more particularly delineated “will normally take precedence over a verbal description … unless it is not clear enough to show where the boundary lies” does go further than the House of Lords went in Eastwood v Ashton, insofar as it relates to a situation where the wording of the conveyance is clear. But that seems to me to be a legitimate extension of what the House of Lords said, provided the word “normally” is not forgotten.