Gillon v Baxter & Anor

In construing a transfer of land by reference to a plan, the plan must be considered with the surrounding physical circumstances. A plan drawn to a very small scale, with thick boundary markings, may identify only the general area and may not fix the precise boundary. The court may infer the intended boundary from topographical features existing, or reasonably supposed to have existed, when the transfer was made. Practical features such as an access gate and track may be decisive. An appellate court should not interfere with a trial judge’s fact-sensitive boundary determination where it rests on the evidence as a whole, including a site inspection, and the same conclusion would follow without inadmissible evidence.

This was a boundary dispute concerning land transferred in 1985. The transfer described the land by reference to a red-edged plan, but the plan was a reduced photocopy at a very small scale. The claimant later acquired the retained land, while the defendants acquired the transferred property.

After hearing evidence and inspecting the site, Exeter County Court declared that the boundary followed a fence marked E–F on a survey plan and ordered the claimant to pay the defendants’ costs. The property was later sold and the substantive dispute became academic, but the parties required determination of the appeal to resolve costs. The central issue was where the paper-title boundary lay.

Disposition. Sir Martin Nourse delivered the substantive judgment. Scott Baker LJ and Ward LJ agreed. Permission to appeal was granted, but the appeal was dismissed with costs subject to detailed assessment.

1. Construction of the transfer. The effect of a plan forming part of a conveyance or transfer must be assessed by construing the instrument and the surrounding circumstances together. This principle, stated in St Edmundsbury and Ipswich Diocesan Board of Finance and Anor v Clark (No 2) [1975] 1 WLR 468, was treated as applying generally to instruments of title. The approach was confirmed in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894.
2. Insufficient plan and physical features. The 1985 plan was too small and its boundary line too thick to delineate the precise boundary. The court was therefore entitled to draw inferences from the topographical features existing in 1985. The only practical access to Barn Field was through the timber gate and along the relevant part of the track. It would have been unrealistic to place the boundary east of the gate. The trial judge was entitled, on the evidence as a whole and following his site inspection, to select the fence line E–F.
3. Errors in subsidiary reasoning. The Court of Appeal disregarded apparently inadmissible witness-statement evidence and did not attach the significance given below to the general boundary-repair agreement. Nevertheless, the judge could and would have reached the same conclusion without relying on those matters.
4. Additional authority. The observations in Scarfe v Adams [1981] 1 All ER 8043, particularly those of Cumming-Bruce LJ, supported reliance on extrinsic evidence concerning the physical premises.

The order for costs was affirmed. The sum of £10,000 paid into court, with interest, was ordered to be released to the defendants.

• Court of Appeal (Civil Division). Permission to appeal was granted. The appeal was dismissed with costs subject to detailed assessment.
• Exeter County Court. On 3 October 2002, His Honour Judge John Neligan declared that the boundary followed line E–F on the final analysis plan and ordered costs in favour of the defendants.