[2025] UKUT 190 (LC)

Until February 1959 Mrs Kathleen Secretan owned the whole of the land now known as The Stables, Heatherwood West and Heatherwood South. On 18 February 1959 she conveyed as a single parcel the land now comprised in Heatherwood West and Heatherwood South to Mrs Bessie Johns. The land was described in the parcels clause as “formerly known as Oaklands”. The plan is imprecise and said to be for the purposes of identification only, but it indicates that the boundary of The Stables was the western edge of what appears to be the drive that is now in dispute. The Stables changed hands soon afterwards, and again on 15 May 1959 when it was conveyed to Mr Stuart King.

This is the plan from the conveyance of 18 February 1959; the drive is inside the thick edging (red on the original), indicated by dotted lines.

On 20 May 1959 Mrs Johns conveyed Heatherwood South to Mr Kenneth Dodge, thereby creating the boundary that is now in dispute. The plan below is the conveyance plan, with the boundary edged in bold. Beside it runs the drive, shaded green on the original, along which the purchaser was granted a right of way at all times and for all purposes in common with the vendor and with the owner of The Stables.

The plan is, again, said to be for the purposes of identification only. While not quite identical with the plans to the February conveyance it is obvious that the same plan has been re-used; there is no difference in the shape of the drive (the shaded area on the plan above). The red edging of the land conveyed runs along the dotted line on the western side of the drive. I have not reproduced the plan to the conveyance of The Stables on 15 May 1959 but the same plan has been re-used there too and the drive is the same shape. In his skeleton argument for the Mr and Mrs French Mr Morris said: “It is common ground that, properly construed, the [conveyance of 20 May 1959] set the line of the boundary along the eastern edge of the Access Road then in existence, with a corresponding right of way along the Access Road being granted in favour of Heatherwood South.” It will be clear from what I have already explained that what is not common ground is where that eastern edge is: is it along the edge of the metalled drive throughout and therefore the western edge of Area A, or does it follow the eastern edge of Area A?

A number of later conveyances are in evidence but none has any effect on the boundary created on 20 May 1959 between Heatherwood West and Heatherwood South. Those that have plans depict the drive as being the same shape as the plans used in the February and May conveyances. Title to the two properties later became registered, and the drive still looks the same shape on all the relevant Land Registry plans as it did in the plans to the 1959 conveyances. No plan depicts a bulge that looks like Area A.

Evidence was given to the FTT that for some years Area A has been used as a passing place. In 2018 Mr and Mrs French deposited some topsoil on it (believing it to be their land); Mr and Mrs Hannah removed it. County Court proceedings were commenced, and have been stayed pending the outcome of the respondents’ application to HM Land Registry in April 2020 and the reference of the dispute to the FTT.