[2023] UKUT 200 (LC)

The issue in Wesleyvale was the position of a right of way. The conveyance stated that it was granted over a strip of land 35 feet wide. The plan on which it was said to be more particularly delineated showed a much narrower strip. On the ground, there were buildings which meant that for part of the route a 35-foot wide strip was physically impossible. Lewison J pointed out that there was “no interpretation of the conveyance that can give full effect to every part of it”. He was not willing to give effect to the plan alone, because that would have given “no effect at all to the only dimension mentioned in the conveyance”. Instead he said this:

“38.

I return to the words of the definition: “The Green Land means that strip of land 35 feet in width being part of the property and in approximately the position shown coloured green on the plan numbered one, attached hereto, as the same is more particularly delineated on the plan number two, annexed hereto, and thereon edged with green.”

39..  There is to my mind an ambiguity in this definition. It lies in the phrase ‘the same’. The more natural reading of that phrase is that the antecedent reference is the strip of land 35 feet in width. Read in that way, there is a conflict between the verbal description and the plan since the plan does not delineate a 35-feet strip. But I think that the phrase can be read as referring back to the phrase ‘the approximate position’ and to indicate the approximate position of the 35-feet strip is more particularly delineated on the plan. Read in that way, it seems to me that it supports Mr Fancourt's alternative construction. Thus, the approximate position of the 35-feet strip is shown on plan 2. In principle, where the exact route of a right of way is uncertain, it is for the servient owner, that is the defendants, to prescribe its exact position.

That was an ingenious solution which avoided a direct conflict between the plan and the words of the conveyance. But the fact remains that the plan, despite the words “more particularly delineated”, did not prevail over a clear verbal description; instead, the judge came up with a construction that worked practically without entirely rejecting either the plan or the verbal description.