Pennock & Anor v Hodgson

A conveyance must be construed in its objective factual setting. A plan stated to be for identification does not ordinarily fix an exact private boundary, even where it is based on an Ordnance Survey map. Where the plan does not precisely identify the boundary, the court may use evidence of physical features existing and known when the conveyance was made. This is contextual construction, not inadmissible contradiction of the instrument. Extrinsic evidence remains inadmissible where it contradicts a conveyance or plan that clearly and precisely defines the boundary. The parties’ subjective beliefs about the land conveyed are irrelevant to construction.

The parties owned neighbouring properties formerly held in common ownership. The respondent bought Kalmara under a 1993 conveyance with an Ordnance Survey plan stated to be for identification. The plan showed a stream, but did not show a stock fence south of it.

The appellants later bought the retained land and contended that the stream bed had remained with it. David Richards J held that the 1993 conveyance included the stream bed and that the boundary lay along the fence. He also ordered the appellants to block steps giving access from their wall to the stream.

On appeal, the central issue was whether the plan precisely fixed the boundary so as to exclude evidence of the fence and other physical features.

1. Appeal dismissed. The judge was entitled to conclude that the 1993 plan did not precisely fix the boundary. Its thick coloured edging, absence of measurements and uncertain delineation near the stream showed only a general boundary.
2. The court applied the principles in Alan Wibberley Building Limited v Insley [1999] 1 WLR 894. A plan stated to be for identification does not define exact private boundaries. Where exact boundaries remain uncertain, the court may inspect the plan against physical features which existed and were objectively known at the date of the conveyance.
3. That exercise forms part of contextual construction. It does not breach the rule excluding extrinsic evidence that contradicts a clearly expressed conveyance. The evidence of the fence was therefore admissible and supported the conclusion that the stream bed passed with Kalmara and that the boundary lay on the fence line.
4. The parties’ subjective beliefs about ownership of the stream did not assist construction. The trial judge had recorded those beliefs as part of the evidence, but had not relied on them in reaching his constructional conclusion.
5. The challenge to the order concerning the steps also failed. The proposed estoppel amendment did not appear to have been pursued and would not have yielded relief beyond the respondent’s concession that the wall might remain if access to the stream were blocked.

• Court of Appeal (Civil Division): dismissed the appellants’ appeal in [2010] EWCA Civ 873.
• Newcastle upon Tyne County Court: David Richards J declared that the respondent owned the bed of the stream and ordered the appellants to block the steps giving access to it.