[2023] UKUT 200 (LC)

Mr Mills, for Mr Dunlop, took as his starting point the judge’s paragraph 95, which bears repeating because it was crucial to his reasoning:

“… no decision has been cited to me in which any court or tribunal has rejected a plan on which the land conveyed was stated to be “more particularly delineated” and where that plan clearly depicted what was and was not conveyed…”

That proposition appears to have persuaded the judge that he could not reject the plan in the present case. But, said Mr Mills, he was wrong about the decisions cited. In particular, Wesleyvale Limited v Harding Homes (East Anglia) Limited [2003] EWHC 2291 (Ch) was such a case, and the judge had been wrong to distinguish it on the basis that it was confined to the context of an uncertain right of way. The same legal principles apply to the interpretation of easements as to the interpretation of conveyances and contracts generally.

Mr Mills also referred to three cases from Hong Kong (to which the FTT was not referred) where a clear depiction on a plan that was said to more particularly delineate the land did not prevail over the verbal description. In Secretary of Justice v Wing Lung Wai Community [1999] 3 HKC 580, the schedule to the conveyance prevailed over the plan because it gave a “clear and unambiguous” measurement of the land and the rent reflected that measurement. The other two cases were Harvest Rise Development Limited v Ling Yau Yung [2002] HKCFI 467 and Lintock Company Limited v AG [1985] HKCFI 310 where again extrinsic evidence led the judge to prefer the verbal description of the land to what was clearly shown on the plan.

Mr Mills further argued that the deputy judge in Network Rail Infrastructure Limited v Freemont Limited [2013] EWHC 1733 (Ch) 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.

On the basis of those points Mr Mills argued that when interpreted as a whole in the light of the relevant circumstances the 1918 conveyance did convey the application land to Thomas Dunlop. He based his argument on the verbal description, which he characterised as “incredibly precise”; on the plan, which he regarded as unreliable; on the features on the ground, where there is no physical division between the two parts of plot 210 where it is sliced by the red line on the plan; and on the extrinsic evidence, in particular the 1917 sales particulars, the Westcott conveyance, the 1933 conveyance, and a conveyance of 12 June 1918.

Finally Mr Mills relied upon business common sense (see Wood v Capita, paragraph 36 above), because there was no reason for Lt Lucas-Shadwell or Mr Harvey to retain the application land and every reason why Thomas Dunlop would buy it.