[2025] UKUT 190 (LC)

Heatherwood West and Heatherwood South are two halves of the same building, but they are separate dwellings and separate titles each with their own adjoining land. Heatherwood West is, disconcertingly, the northern half of the building while Heatherwood South is, reassuringly, the southern half. A drive leading from the building to the public highway belongs to the owners of Heatherwood West, the respondents Mr and Mr Hannah; the owners of Heatherwood South, the appellants Mr and Mrs French, have a right of way over it with and without vehicles, granted by the conveyance that separated the two titles on 20 May 1959. A dispute arose about the width of the drive, and therefore about the extent of the land owned by each party, and the Mr and Mrs Hannah applied to HM Land Registry for a determined boundary. Mr and Mrs French objected and the matter was referred to the First-tier Tribunal under section 73(7) of the Land Registration Act 2002.

Below is a copy of the registered title plan for Heatherwood South, showing the layout of the two halves of the building and the position of the drive.

Next is a copy of the registered title plan for Heatherwood West, on which the drive can be seen running south to the road. To the left (west) is Stables Cottages, whose land is of course not outlined on this plan but it extends south to Sandy Lane.

Before 18 February 1959 all three properties (The Stables and the two Heatherwoods) were in single ownership, and known as Oaklands; on that date the owner of the whole, a Mrs Secretan, sold all but The Stables to Mrs Bessie Johns. Mrs Johns then sold Heatherwood South on 20 May 1959, retaining Heatherwood West and thus creating the boundary with which we are concerned which is the eastern edge of the drive used by all three properties to access the highway.

The application to HM Land Registry, dated 23 April 2002, was accompanied by a plan which was slightly different from the one eventually used by the judge, because Mr and Mrs Hannah’s view of the boundary changed a little as a result of planning documents disclosed prior to the hearing. The plan below (“the DB plan”) is what the judge called the “working plan”, which was used at the hearing, appended to the decision (dated 27 November 2023), and incorporated in the order addressed to the registrar. The line from point A to point M is the boundary for which Mr and Mrs Hannah argue, and to which they say the judge’s reasoning leads. The shaded area to the left (west) of the line A to M is the area that is in dispute, and I refer to it as did the judge as “Area A”; it was not the only area in dispute in the FTT but it is now. Area A is not metalled; the rest of the drive is (I do not intend by that statement to pre-judge the question whether Area A is part of the drive, merely to explain how the two areas are surfaced). The distance from the western edge of the drive to point B is 20 feet. Between points E and G, where the drive runs over a bridge, it is physically impossible for it to be any more than 10 feet wide.

The shaded triangles on the DB plan on either side of the drive near the highway, and the lines between them, do not represent any physical feature on the ground; their significance will be explained shortly. The outline of the triangles does not depict the boundary, on either the appellants’ or the respondents’ case.

The judge stated that the line drawn from point A to point B was agreed (as we shall see shortly, that was not the case) and that only the lines from B to F and from K to M were in dispute. Having discussed the evidence and considered the law he expressed his conclusion as follows:

“There will be a direction to the Registrar to make an entry in the registers of title numbers WSX196833 and WSX26328 to show the boundary between points B to E on the application plan along a line which gives the driveway a width of 20 feet throughout. The boundary between points E to M should follow the line on the Applicants’ plan, a copy of which is attached to this decision.”

The FTT’s consequent direction to the registrar read as follows, and referred to the DB plan:

“The registrar shall record in the register of title nos. WSX26328 and WSX196833 that the exact line of the boundary between those titles is determined under section 60 of Land Registration Act 2002 in accordance with the plan attached to this order save that the boundary between points B and F shall follow a line which gives the drive a width of 20 feet measured from the western edge of the metalled surface throughout its length between B and F.”

Following an application for permission to appeal the judge corrected the order so as to refer to point E rather than point F, because it is impossible for the drive to be 20 feet wide over the bridge (see paragraph 7 above).

But even so, there is a problem; no-one argued for the drive to be 20 feet wide all the way to point E. That would create a right angle at point E where the drive met the bridge and went from 20 feet wide to 10 feet. That is not what Mr and Mrs Hannah argued. Accordingly, the parties agree that the judge was wrong about the boundary between points B and E: it does not run 20’ from the western edge of the drive between those two points.

Mr and Mrs Hannah say that, instead, it tapers from B (where it is 20’ wide) to E (where it meets the bridge) as depicted on the DB plan and so the drive includes Area A. But the Mr and Mrs French say that the drive follows the eastern edge of the metalled drive and excludes Area A.

There is no appeal from the judge’s primary findings of fact. But the parties do not agree what those findings were. In particular, for Mr and Mrs French at paragraph 2 of his skeleton argument Mr Morris said “the FTT found as a fact that that access road had not been widened beyond its original width of ten feet”, and at his paragraph 21 he refers to “the FTT’s finding that the drive was not widened to 20 feet”. Yet Ms Mattsson for the respondents at paragraph 19 of her skeleton argument said “the Judge agreed with the Hannahs that the accessway is 20 feet across”. So one of the tasks of the Tribunal in this appeal is to decide what facts the judge found.

As an aside, it will be clear from what I have just said that Mr and Mrs French do not agree the line on the DB plan from A to B, as the judge thought they did; I think that was a misunderstanding by the judge arising from the fact that Mr and Mrs Hannah, as applicants in the FTT, actually changed their plan and point A was originally in a different place.

To summarise: the issue in the appeal is whether the boundary runs around the eastern or western edge of shaded area on the DB plan, known as Area A.

In the paragraphs that follow I first set out the law, as to which there is no dispute, and then explain the conveyancing history of the properties. Next I look at the proceedings in the FTT and the evidence that was before it, in particular about a planning permission given in February 1959, prior to the creation of the boundary now in issue, and also about the physical layout of the land, which the judge saw but I have not seen. I then turn to the FTT’s decision and the grounds of appeal.