Sparling v Norman & Anor (Rev 1)

In a boundary dispute, construction begins with the conveyance containing the parcels clause. A plan stated to be for identification is not ordinarily precise. If the deed and plan are unclear or ambiguous, the court may use objective extrinsic evidence, including relevant physical features and subsequent conduct of the parties to the original conveyance, to identify the intended boundary. Such conduct must be probative, remain consistent with the parcel description and cannot enlarge the land conveyed or refix the boundary. The relevant intention is that of the original parties, not merely later owners. An appellate court may uphold a correct conclusion despite criticism of the lower court’s reasoning where the evidence is overwhelming.

The parties owned adjoining properties separated by a hedge bank. The respondents claimed that the boundary ran along the top of the bank; the appellants claimed that it ran lower down on the respondents’ side.

The first conveyance contained measurements and a small-scale plan, but the boundary could not be plotted precisely. The bank was constructed after the original gift but before the subsequent conveyance to the respondents. HHJ Milwyn Jarman QC declared the boundary to be at the top of the bank. The appeal challenged both that conclusion and the associated costs order. The central issue was whether subsequent conduct, including the construction and marking of the bank, could assist in identifying the boundary fixed by the original conveyance.

Disposition. The Court of Appeal unanimously dismissed the appeal on the boundary and costs issues. Elias LJ gave the leading judgment; Pitchford LJ and Maurice Kay LJ agreed.

1. The relevant starting point was the original gift, since the later conveyance could not transfer more land than had been conveyed by that gift. The court applied the principles in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 and Pennock v Hodgson [2010] EWCA (Civ) 873. The parcels clause is primary, but a plan stated to be for identification does not ordinarily fix precise boundaries. Where the deed is unclear, objective extrinsic evidence of physical features existing or known at the relevant date may be considered. Subjective beliefs are not sufficient.
2. The principles concerning subsequent conduct in Liaquat Ali v Lane [2007] 1 P&CR 26 applied. Subsequent conduct may be probative where the conveyance is unclear or ambiguous, but it must assist in identifying the intention of the original parties, remain within the tolerance of the parcel description and cannot refix the boundary or enlarge the land conveyed. The evidence of Mr Birch’s marking of the boundary, the posts placed at the top of the bank and the absence of objection to planting on the respondents’ side was highly probative. The top of the bank was within the permissible limits of the description.
3. Although the judge’s reasoning focused inadequately on the later conveyance, his conclusion was supported by an implicit finding that the bank had been constructed where the original donor intended the boundary to lie. The evidence was overwhelming, so remittal was unnecessary and the appeal failed.
4. The judge had been entitled to shift responsibility for costs after the respondents’ offer had remained unaccepted for a reasonable period. There was no basis for appellate interference with that discretionary order.

1. Court of Appeal (Civil Division) — The appeal from the boundary declaration and costs order was dismissed: [2014] EWCA Civ 1152.
2. Cardiff Civil Justice Centre, Chancery Business — HHJ Milwyn Jarman QC declared that the boundary ran along the top of the hedge bank and made the consequential costs order.