Cook v JD Wetherspoon Plc

When land is transferred by reference to a plan, a conflict between a figured dimension and a width obtained by scaling the plan is resolved through construction of the instrument as a whole and in light of surrounding circumstances. Neither indication automatically prevails. The court should draw inferences from topographical features existing when the transfer was made and choose the conclusion producing the more sensible physical result. A dimension must be considered, but it may yield to evidence that the scaled boundary follows a recognisable feature, keeps a building within one ownership, or avoids an impractical division. The appeal was therefore dismissed.

By a transfer dated 20 March 2000, Emmanuel Cook transferred the major part of his property, including a public house, to JD Wetherspoon Plc. The attached plan showed the transferred land edged red and described the retained strip as 40 feet wide. When scaled, however, the strip was approximately 30 feet wide. The physical features included a concrete apron and a building near the disputed boundary. The Chester County Court preferred the 30-foot interpretation in a judgment dated 13 July 2005. Cook appealed, raising the central question whether the marked dimension or the scaled plan governed the boundary.

The appeal was dismissed and the County Court’s conclusion was affirmed.

1. The transfer contained no ambiguity in its wording, but the plan itself contained a conflict between the marked dimension of 40 feet and the approximately 30-foot width obtained by scaling it. That conflict required resolution by established principles of construction.
2. The court construed the instrument as a whole, according to the natural meaning of its words and in the light of surrounding circumstances. The same principle applied to a plan incorporated into the instrument. The approach stated in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468, 476–477, was applied.
3. There was no general rule that a figured dimension prevailed over a scaled dimension. The court had to consider the physical features existing when the transfer was made and determine which construction produced the more sensible result. The court applied the reasoning in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, 896, and Jackson v Bishop (1984) 48 P & CR 57, 62.
4. The scaled boundary coincided, broadly, with the northern edge of the concrete apron, a recognisable boundary feature. It also placed the betting-office building within the defendant’s land and transferred the whole area apparently used for parking.
5. A 40-foot boundary would run through the building approximately 10 feet from its northern end. That was an absurd practical consequence. It was also inconsistent with the covenant restricting any fence or wall along the boundary to three feet in height, since such a structure would likewise run through the building.
6. The County Court judge had relied in part on evidence introduced for alternative rectification claims which was irrelevant to, or inadmissible on, construction. Some of his reasoning could not therefore be supported. Nevertheless, sufficient relevant and admissible evidence, particularly the topographical evidence, supported the correct conclusion.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 330, the appeal was dismissed and the County Court’s conclusion was affirmed.
• Chester County Court: His Honour Judge Wyn Williams QC, on 13 July 2005, preferred the interpretation that the retained strip was approximately 30 feet wide.