Stiaan Van Zyl & Anor v Peter James Walker-Smith

A plan attached to a lease “for the purpose of identification only” may be considered as part of the lease and used as an aid to construction. It does not, however, ordinarily define precise boundaries or control the verbal description of the demised premises. The court may consider other evidence, including physical features existing and known when the lease was granted. No hierarchy requires an Ordnance Survey-based plan to prevail over such evidence. The boundary is determined by construing the lease as a whole and evaluating all relevant evidence. A longstanding hedge may establish the boundary where the factual evidence supports that conclusion.

The appeal concerned the boundary between the rear gardens of two neighbouring leasehold maisonettes at 34 and 36 Albany Crescent. The leases described their attached plans as being “for the purpose of identification only”. A hedge separating the gardens had been removed and replaced by the appellants, who contended that the boundary followed a straight line shown on the lease plan. The respondent relied on the former hedge line.

The appellants appealed the order of His Honour Judge Saggerson dated 28 February 2024, which declared the boundary to follow a line based on the former hedge. The central issues were the legal significance of the lease plan and whether the judge was entitled to prefer the hedge and other physical evidence.

1. Appeal dismissed. The order declaring the boundary was affirmed.
2. A plan described as being “for the purpose of identification only” is admissible as part of the instrument and may assist in understanding the description of the parcels. It is not, without more, the document being construed and does not have the primacy of a plan which more particularly delineates the property. The lease had to be construed as a whole. The judge had correctly construed the lease rather than treating the plan as controlling: [17]–[19].
3. Precise boundaries may need to be established by evidence beyond the plan, including inferences from physical features existing and known when the conveyance or lease was executed. There is no legal rule requiring a line shown on an Ordnance Survey-based plan to prevail over other relevant evidence. The judge was entitled to consider the hedge and to weigh it against the lease plan: [20]–[21].
4. The plan was small, not to scale, and contained internally inconsistent measurements. Its lines and measurements were therefore indicative rather than determinative. The asserted immovable building corner assumed the very boundary issue in dispute: [22(ii)].
5. The judge’s findings that a hedge had existed on substantially the same diagonal line since at least 1970, including when the lease was granted in 1988, provided a proper evidential basis for treating the hedge as the boundary. The description of the hedge as changing did not undermine those findings: [22(iii)].
6. The evidence, properly considered, was consistent and mutually reinforcing. The judge had reached the correct conclusion: [24].

• Chancery Appeals (ChD): Appeal from the order of His Honour Judge Saggerson dated 28 February 2024. The appeal was dismissed and the order affirmed.
• Central London County Court: Judgment was given on 1 February 2024, followed by the order dated 28 February 2024 declaring the boundary between the properties.