[2023] UKUT 200 (LC)

Central to Mr Maynard’s argument was the proposition that while the plan is stated to be one on which the land is more particularly delineated, the schedule of acreages is expressly stated to be approximate. The area of the whole farm in the parcels clause is described as “comprising in the whole One hundred and sixty three acres one rood and eight perches or thereabouts”, and there is a further statement of approximation in the heading of the third column in the schedule: “Approximate Acreage”. Indeed, the acreages in the schedule are said to amount to 163.305 in total, whereas 163 acres, 1 rood and 8 perches equals 163.300 acres. This, and the similar discrepancies in the acreage of the green land and the blue land, indicate that “the verbal descriptions by area are not more than approximate.”

Mr Maynard referred to Eastwood v Ashton, and quoted Lord Wrenbury’s words at 920:

“The words “more particularly” exclude, I conceive, that they have already been exhaustively described. These words seem to me to mean that the previous description may be insufficient for exact delimitation, and that the plan is to cover all deficiencies, if any”.

Mr Maynard argued that the FTT was bound by the decision in Network Rail Infrastructure Limited and that although the Upper Tribunal is not, it should follow it in any event as a matter of “judicial comity”. The plan is the dominant description. He accepted that none of the authorities is so absolute as to admit of no possible exception to the normal rule that a plan on which land is more particularly delineated is the dominant description, but in this case he said there is no intrinsic feature of the conveyance that takes it out of the norm. The phrase “more particularly delineated” creates an “objective hierarchy of importance” so that the plan prevails.

Mr Maynard also argued that the terms of the main clauses to the conveyance must take priority over a schedule, which he regarded as being a document incorporated by reference. He argued that the OS measurements in the schedule represent “conflicting extrinsic source material inadvertently engrafted into the contract” and should be rejected. As a matter of last resort, where two inconsistent provisions cannot be reconciled any other way, the earlier one prevails over the later, and so the plan prevails over the schedule: Forbes v Git [1922] 1 AC 256 (PC).

Mr Maynard argued that Wesleyvale is clearly distinguishable. The dimension of 35 feet was not qualified by “thereabouts” or “approximately”. And the judge’s solution, to combine the verbal description and the plan, is not available where the issue is a binary one as here, namely whether or not a particular piece of land was conveyed.

Mr Maynard also sought to argue that the judge was wrong to find that the Westcott conveyance was admissible, on the basis that it was evidence of subjective intentions. Strictly he was not able to make that argument since there was no cross-appeal of the judge’s finding on admissibility, nor any cross-appeal from the judge’s finding that the land Thomas Dunlop had contracted to purchase included the application land. Had there been any such cross-appeal it would inevitably have failed. Certainly contractual negotiations are inadmissible, but a conveyance is not a negotiation. It is a deed, from which the parties cannot resile; the parties to the deed could not have been heard to deny the statements of fact in it. The conveyance of Westcott was clearly admissible. It is hard evidence of what the parties did on that date and of the transactions they had already entered into. It can be used as an aid to construction of the conveyance of Lunsford Farm insofar as the Lunsford Farm conveyance when read as a whole is unclear.