[2025] UKUT 371 (LC)

Although the FTT framed the first issue for which it gave permission to appeal as an issue about the meaning of “the Estate”, as defined in the lease, it is important to notice that for the most part, the relevant obligations in the Ninth Schedule do not describe the Council’s repairing responsibilities by reference to the Estate. The structural parts and service installations covered by sub-paragraphs 1(i) to 1(iii) of the Ninth Schedule are only those of the Block (including installations “installed in the Block or serving the Block”, which obviously includes those outside the Block but which serve it). Similarly paragraphs 2 and 5 are concerned only with insurance and management of the Block. Paragraphs 1(iv), 3, and 4 extend beyond the Block, but only to the Reserved Property. Only paragraph 6 of the Ninth Schedule extends expressly to the whole of the Estate, but it is a residual or sweeping up provision covering “other works” to the Block or the Estate which should, in principle, be interpreted as not including works of the type already described in paragraphs 1 to 5.

The only parts of the Estate which are included in the definition of the Reserved Property in the Third Schedule are “all other parts of the Estate other than the Block and other Blocks on the Estate”; the only parts of the Estate covered by this description are parts which are not themselves Blocks, which I presume means areas such as estate roads, areas of public open space and the like. The second part of the definition of Reserved Property comprises “the main structural parts of the Block including …” and then lists a large number of items which are included within that description. Amongst these are sewers drains gutters pipes wires cables ducts and conduits not used solely for the purpose of the demised premises”. This indicates that the drafter regarded at least some sewers and drains as being part of the structure of the Blocks. That is significant because many of the Estate costs which Mr Williams disputes concern work done to drains.

In determining the extent of Mr Williams’ liability, it was therefore necessary for the FTT to pay close attention to the meaning of the Block and the Reserved Property, and to ask in relation to each disputed item of expenditure whether it covered an activity in the Ninth Schedule (such as repair, redecoration or management) in respect either of the Block or of the Reserved Property. Consideration of the extent of the Estate was only required if it was necessary to determine whether an item fell within paragraph 6 of the Ninth Schedule (i.e. “such other works in respect of the Block or the Estate as are in the reasonable opinion of the Lessor necessary for its proper maintenance and management including works of improvement”). In its decision, the FTT did not approach the disputed items in that way but instead proceeded on the assumption that if, as defined in the lease, the Estate included the whole of the Gascoyne Estate, all of the Estate Charge items which the Council had identified as having been included in the Management Charge would be properly payable by Mr Williams.

The FTT referred to the definition of the Estate in the First Schedule to the lease and emphasised the words “known as Gascoyne Estate”. It then noted that the only area outlined in colour on Plan A was The Points and that the other parts of the Gascoyne Estate shown on the plan were not outlined in colour. It continued:

“Whilst we have not found it an easy matter, we prefer the construction argued for by Mr Paget, namely that what is known as Gascoyne Estate should be given more weight than the Plan shown for the purpose of identification only.”

By preferring the reference to the area “known as Gascoyne Estate” over the plan stated to be “for the purpose of identification only” the FTT had in mind the well-known distinction between conveyancing documents where land is identified by a verbal description with a plan supplied simply to give a general indication of what the land comprises, and documents in which the plan defines the subject matter of the transaction with precision. Referring to a plan as being “for the purpose of identification only” indicates that if there is any inconsistency between the plan and the verbal description, the verbal description is to prevail.

Mr Paget referred to the following explanation of this distinction by Rimer LJ in Strachey v Ramage [2008] 2 P.& C.R. 8, at page 165:

“31.

The formula “for the purpose of identification only” is one whose use is time-honoured. Its ordinary sense is that a plan so described is intended to do no more than identify the position and situation of the land: it is specifically not intended to identify its precise boundaries. The use of such a plan is therefore strictly only appropriate for a case in which the verbal description in the parcels identifies the limits of the land with adequate precision since it is a formula which indicates that the verbal description is intended to be decisive in that respect. Such a plan “cannot control the parcels in the body of any of the deeds” (Hopgood v. Brown [1955] 1 WLR 213, at 228, per Jenkins LJ); it “cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification” (Wibberley, supra, per Lord Hoffmann).

32.

The use of this formula – “for the purpose of identification only” -- is to be contrasted with the case in which the parcels clause gives a verbal description of the land but also refers to the land as being “more particularly delineated” on the plan. In such a case, in the event of any uncertainty as between the words and the plan, the latter will ordinarily prevail over the words and will control the verbal description (see, for example, Wallington v. Townsend [1939] 2 All ER 225, at 235D to 236H). […].

33.

Having drawn the well-recognised difference of legal effect as between the two formulae commonly used in conveyances to introduce a plan, I would nevertheless supplement it with the self-evident cautionary truth that every case of course turns on its own facts. In any case the task of identifying the parcels of land conveyed will require an interpretation of the particular conveyance against the background circumstances in which it was made; and the function of the court will be to use all admissible material in order to arrive at the correct answer.”

In his helpful submissions in support of the appeal Mr Williams referred to a familiar passage on the interpretation of contracts in the speech of Lord Neuberger, in Arnold v Britton & Ors [2015] UKSC 36, at [15]:

“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to "what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean", to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions.”

Mr Williams particularly emphasised the overall purpose of the service charge clause in his lease, which he suggested was to enable the Council to collect contributions to the cost of repairs to the Block. He also stressed the importance of disregarding evidence of a party’s subjective intention. It was not open to the Council to assert, as it did in evidence given by a solicitor who had not been employed by the Council at the relevant time, that the inclusion of Plan A in the lease was “an error” and that the Council’s intention had been that it should be entitled to collect contributions to the costs of running the whole of the Gascoyne Estate.

The FTT treated the case as one involving an inconsistency between the verbal description of the Estate and the area depicted on the plan and decided that the description of the Estate as the area “known as Gascoyne Estate” should be taken to describe the whole of a much larger area than was shown on the plan. I find that approach difficult to reconcile with the conventional approach to construction of formal documents, which requires that the document be read and understood as a whole. The Estate is defined in the First Schedule as the area of land “shown for the purpose of identification only outlined in green on the attached plan marked “A” comprising land garden(s) flats garages parking spaces stores and premises known as Gascoyne Estate in the London Borough of Hackney”. The description of “the Estate” as comprising land, gardens, flats etc does not assist in determining its extent, since both The Points alone and the wider Gascoyne Estate contain all of those features. The two pieces of information in the First Schedule which assist in identifying what the parties meant are that “the Estate” is shown edged in green on the plan, and that it is known as the Gascoyne Estate.

The fact that the plan is said to be “for the purpose of identification only” does not mean that it can be ignored. It is part of the material which expresses the parties’ agreement, and it may be the only part which identifies clearly what they intended their agreement to mean. In Wigginton & Milner Ltd. v. Winster Engineering Ltd. [1978] 1 W.L.R. 1462, Buckley LJ made that clear, as follows:

“When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being “for identification only,” it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be “for the purposes of identification only” does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel.”

In Johnson v Shaw [2003] EWCA Civ 894, at [35], Peter Gibson LJ stated the general rule but again identified its limits:

“If the delineation on the plan of the property to be conveyed is expressed to be for the purpose of identification only, the verbal description will prevail, though if that description is insufficient or leaves any uncertainty, the plan can be looked at for whatever assistance it can provide […].”

Plan A is a scale plan on which a specific area has been marked. It is of significance that other areas which are part of the wider Gascoyne Estate appear on the plan but have not been marked. It must be assumed that the area outlined on the plan was identified by the Council, since the lease is its standard form and the plan is marked “prepared for the London Borough of Hackney”. It was put forward in that form by the Council and agreed by Mr and Mrs Williams.

This case is not one in which the parties have carefully identified property to be conveyed or let by a verbal description from which the extent of the property can be ascertained. They had the means of identifying the whole of the Gascoyne Estate with that degree of precision, by defining it by reference to the registered title, or by a single plan such as the one exhibited to the Council’s evidence, but they chose not to do so and instead defined it in part by name and in part, for the purpose of identification only, by reference to Plan A. But the verbal description does no more than name the estate and is only of assistance to someone who already knows in detail what the area “known as Gascoyne Estate” comprises. There is nothing in the lease itself, other than Plan A, to identify Gascoyne Estate. There is therefore nothing in the lease itself which causes there to be any conflict between the verbal description of the land concerned (the “parcels”, as Buckley LJ referred to them in Wigginton & Milner) and the plan, and no reason to disregard the plan in identifying what the parties meant.

Mr Paget relied on recital (2) at the start of the lease, which records that “the Lessor is registered at H.M. Land Registry as the proprietor of the Estate under Title Number NGL322654”. But the recital uses the expression defined in the First Schedule and is not intended as a definition in its own right. The statement it contains is true whether “the Estate” means only The Points or means the whole of the Gascoyne Estate; in either case the Estate is comprised in the specified title number, although in the former case it is only part of the land in the title. I was shown the registered title referred to in the lease. It does not refer to the Gascoyne Estate at all. Instead, it lists the many buildings and streets which comprise the property included in the title and identifies them by a number of separate plans.

The parties to the lease would no doubt have appreciated that the area “known as Gascoyne Estate in the London Borough of Hackney” was a larger area than The Points. The Council must be taken to have known the full extent of the area of which it was the owner, and Mr and Mrs Williams had lived on the estate for a number of years before exercising their right to acquire the lease, so they would also have known that the Gascoyne Estate extended beyond The Points. Whether they would have appreciated its full extent is another matter. It is a very large area containing buildings constructed at different times and to no consistent design, so it lacks a visual identity. It is criss-crossed by a number of major roads and is not within a common boundary. The are shown on the plan of the estate relied on by the Council, which is dated 1992, includes buildings and blocks which are not shown on the Land Registry title plans. There is no obvious reason why one of the Council’s tenants on one part of the Gascoyne Estate would know how far its boundaries extended at any particular time or which properties formed part of it.

As to what Plan A identifies, the land, gardens, flats, garages etc which are shown on it outlined in green are restricted to The Points and their curtilage, which is surrounded on all sides by public roads. Other areas which are part of what is known as the Gascoyne Estate appear on Plan A but have not been coloured. As a result, the plan clearly identifies The Points alone.

The purpose of the plan was to identify the Estate to the cost of whose maintenance Mr and Mrs Williams were to contribute. That purpose did not require a precise delineation of the boundaries of the relevant area, and the scale of the plan used in the lease would not allow for a high degree of precision. The purpose of the plan was to identify the general extent of the area which the parties had in mind. By drawing their green line around the boundaries of The Points, and by excluding the other parts of Gascoyne Estate also depicted on the plan (consciously, it must be assumed) the parties identified the area they intended the contribution obligation to relate to as the area limited to The Points, and as not including the wider Gascoyne Estate.

There is nothing in the definition of the Reserved Property which casts light on the parties’ intentions about the extent of the payment obligation assumed by Mr and Mrs Williams. The main focus of those obligations is the Block. The Reserved Property specifically excludes the Block and any other blocks on the Estate, and the definition works equally well whether the Estate is the larger or the smaller area. The two payment obligations which refer to the Reserved Property, paragraphs 3 and 4 of the Ninth Schedule, are quite limited. They cover lighting and cleaning of common areas of the Reserved Property (paragraph 3), and exterior and interior decoration of common parts (paragraph 4). It is at least as likely that the parties would have intended the leaseholders to contribute only to the lighting and decoration of areas in proximity to the demised premises, which they would pass over or see every day, than that they would have intended them also to pay for the lighting and cleaning of areas at some considerable distance which they might never have reason to visit. The only obligation which refers specifically to the Estate, paragraph 6 of the Ninth Schedule, is expressed in very general terms covering “all such other works in respect of the Block or the Estate” as the Lessor might consider necessary. It would be surprising if that obligation covered a wider geographical area than the specific obligations agreed in relation to the Reserved Property. The definition of the Reserved Property does not assist in understanding the extent of the Estate.

I therefore disagree with the FTT’s conclusion that the Estate includes the whole of the Gascoyne Estate, as it is known to the Council. In my judgment the Estate is limited to the area shown outlined in green on Plan A attached to the lease. That area comprises The Points and their immediate curtilage.