Christopher Giles Cattermole v Theresa Naomi Jordan & Ors

In determining a registered boundary, the court must begin with the deed or transfer that created it. An unambiguous deed governs. Where it is ambiguous or incomplete, physical features and other contextual evidence may be considered, but evidence cannot contradict the deed. Subsequent conduct is relevant only so far as it illuminates the parties’ objective intention when the deed was made. Subjective intentions and pre-contractual negotiations are irrelevant to construction. A tribunal must not base its decision on an unevidenced factual finding, especially one not put to the parties, and must explain why it rejects unchallenged expert evidence. The value or price of the land is irrelevant to construing the boundary.

The appellant appealed from a decision of the First-tier Tribunal (Property Chamber) determining the boundary between registered land at East Gate House and a retained strip belonging to Lodge Cottage. The FTT accepted that the transfer plan governed the boundary, rather than an earlier plan relied upon by the respondents, but fixed the line on the ground by reference to an inferred drain and a point on the river wall.

The appellant challenged the relevance of the purchase price and the evidential basis for the inferred drain, and argued that the FTT had failed to explain why it rejected the parties’ agreed expert evidence. The central issue was the exact location on the ground of the boundary shown on the transfer plan.

1. The appeal was allowed. The FTT’s decision was set aside insofar as it determined the position of the boundary on the ground.
2. The construction of a boundary begins with the deed or transfer creating it. If its terms are unambiguous, they determine the boundary. If they are ambiguous or incomplete, physical features and other objective contextual evidence may be considered. Such evidence cannot contradict the deed. Subsequent conduct is relevant only as evidence of what the parties objectively intended in the deed.
3. The value or price of the land was irrelevant to the construction exercise described in Pennock v Hodgson [2010] EWCA Civ 873. The FTT had treated the price as integral to rejecting the appellant’s proposed line, so the error was material.
4. The FTT had no evidential basis for finding that a dashed line on the plan represented an underground drain. The possibility had not been raised at the hearing, and the parties had not been given an opportunity to address it. The inference was therefore both unsupported by the evidence and procedurally unfair.
5. The FTT had also failed to explain why it rejected the unchallenged agreement of the expert witnesses as to the location of the line. That agreement was unusually valuable evidence in a boundary dispute. Although scaling up a Land Registry plan is generally unreliable, it was less so here because the boundary was a straight line.
6. On the evidence before it, the Upper Tribunal substituted its own determination. The boundary ran from point C, where the south and east walls of the churchyard intersected, to point F, the northern edge of the identified buttress on the river wall. The registrar was directed to give effect to the application on that basis, subject to representations about the form of the order within 14 days.

• First-tier Tribunal (Property Chamber): determined that the transfer plan governed the boundary but fixed the line on the ground at point X.
• Upper Tribunal (Lands Chamber): set aside that part of the FTT’s decision and substituted a determination that the boundary ran from point C to point F.