Daniel Andrew Denno & Anor v Lee White & Anor

Key words: Determined boundary – general boundaries – finding as to location of boundary – construction of conveyance – extrinsic evidence Cases referred to: Larking v. Chamberlain [2025] UKFTT 00132 (PC) Drake v. Fripp [2011] EWCA Civ 1279 Lowe v. William Davis Limited [2018] UKUT 206 (TCC) Jurga & May v. Iles [2018] UKFTT 575 (PC) Farrow v. Boag [2023] UKUT 0167 (LC) Witt v. Woodhead [2020] UKUT 319 (LC) Introduction: the application

1. By an application made on form DB, received and dated by HM Land Registry on 23 rd April 2024, the Applicants applied under section 60 Land Registration Act 2002 for the determination of the exact boundary, in one particular area, between:- i) their property West Colleton, title number DN 213492; and ii) the Respondents’ neighbouring property Little Colleton, title number DN 487553.

2. Those properties share both a north/south and east/west boundary, since Little Colleton lies approximately at the north-east ‘corner’ of the much larger West Colleton title: see the title filed plans below. West Colleton title (Applicants) Little Colleton title (Respondents)

3. This application concerns the east/west boundary, between the points marked A and B above on the Little Colleton filed plan. Sadly, the parties appear also to have had a dispute over the north/south boundary, but that is not a matter before me. General boundaries: meaning and effect

4. I regret having to begin this decision with a re-iteration of one of the most basic and fundamental principles of registration of title. It is, however, necessary to do so; in this case and generally. It is my unfortunate experience that many parties who come before this Tribunal, including many who have made applications for determined boundaries under section 60 Land Registration Act 2002 , appear not to have read or understood sections 60(1) and (2), which state as follows:- “(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) A general boundary does not determine the exact line of the boundary.”

5. Both parties cited a previous decision of mine, Larking v. Chamberlain [2025] UKFTT 00132 (PC), in which I also re-iterated those principles, before applying them to the particular facts of that case. I was not, in doing so, establishing any new principle or saying anything controversial. I will re-summarise what I said then about general and exact boundaries.

6. Land Registry Practice Guide 40 confirms that “the great majority of registered titles show only the ’general boundaries’, under section 60(1) of the Land Registration Act 2002 …..We will complete a first registration without making detailed enquiries as to the precise location of the legal boundaries.” This amounts to nothing more than a “..reasonable interpretation of the land in the pre-registration deeds”. It does not determine or define any precise boundary in any location. It does not tell a registered proprietor whether, for example, a legal boundary on one side of their title consists of a fence, a wall, a stream, some other feature, or no feature at all. The apparent depiction of the land by the red edging on the filed plan does not guarantee that any land appearing to be within that red edging actually forms part of that title. As in Drake v. Fripp [2011] EWCA Civ 1279 , there could in fact be a very large area of land which appears to be within that title, but is not. Ruoff and Roper (in Registered Conveyancing , Vol.1 paragraph 5-010) summarise the consequence of this: “…. it follows from the general boundaries rule that a disagreement as to the boundary of the registered title (a “boundary dispute”) cannot be determined by the title plan.”

7. As I then said in Larking at paragraph 7, referring to rule 118(2) Land Registration Rules 2003 and the Upper Tribunal decision in Farrow v. Boag [2023] UKUT 0167 (LC) :- “So a successful determined boundary applicant will therefore need two things, reflecting paragraphs (a) and (b) of rule 118(2): both a sufficiently detailed and scaled plan, and – importantly – evidence, and therefore a case, to establish why the exact boundary should be drawn on that plan along the specific line proposed.”

8. I went on to say, at paragraphs 64 to 67 of that decision, that it was therefore simply not good enough for a section 60 determined boundary applicant, or their surveyor on their behalf, to produce a plan on which the exact boundary contended for was simply a scaling or overlay of a general boundary shown on the title filed plan. That is a contradiction in terms, and represents a complete misunderstanding of the difference between the two. I said in that case (at paragraph 67) that:- “The line contended for was not based on any reasoned analysis derived from the creation of the legal boundary…but is essentially an overlay of filed plans on an up to date land survey. That is not good enough, in this or in any such application.”

9. The relevance of that introduction should by now be obvious. This is precisely what the Applicants have done here. An extract from the plan accompanying their application on form DB is below. Below it, however, is the original surveyor’s drawing on which it was based. This shows clearly that the red line on the application plan was derived merely from an “overlay” of the title plans. Application plan Surveyor’s drawing showing production of line by “direct overlay” of title plan Disposal of original application

10. The above point would justify a direction to the Chief Land Registrar simply to cancel the original application, without more. This Tribunal is not obliged to go further, and make any further findings, as the Upper Tribunal confirmed in Farrow v. Boag [2023] UKUT 0167 (LC) . I am, frankly, somewhat surprised that HM Land Registry allowed the application as made to be referred to this Tribunal. The case summary accompanying that referral showed no appreciation that “the position of the boundary… as proposed by the Applicants on the application plan”, to which the Respondents had objected, was nothing more than an overlay of the filed plan general boundary.

11. It was on this basis that the Respondents previously applied in these proceedings, on 12 th May 2025, to strike out the Applicants’ proceedings and application. The Applicants responded to that application by arguing a new case as to the exact location of the boundary. It was now said to be the centre line of a “beech hedge”:- “If any reasonable person were to come to our property and be asked to determine the boundary between West Colleton and the western part of Little Colleton, based on extrinsic evidence, they would say ‘the beech hedge’ ” [paragraph 4, Reply to application]

12. This was not the line shown on their application plan. As can be seen on the surveyor’s drawing above, the “root line” of a “beech hedge” is shown coloured orange, with green lines showing its foliage on either side. This is a considerable distance west of the application line, which as can be seen above, continued north and sliced through a corner of a garden building constructed by the Respondents.

13. It is highly debatable whether a determined boundary applicant is entitled to fundamentally change their case in this way. The limits of the principle confirmed in the line of cases up to Lowe v. William Davis Limited [2018] UKUT 206 (TCC) appeared to be that the Tribunal could potentially give effect to an existing application in part, with a slight variation as to one section of the exact boundary. It could not direct the Registrar to give effect to an entirely different exact boundary (although cf. Jurga & May v. Iles [2018] UKFTT 575 (PC), which may be something of an outlier in this regard).

14. The judge who considered the strike out application in this case did not perhaps appreciate that the Applicants had fundamentally changed their case in this way. In refusing the application, he characterised the dispute simply as a conventional one over whether the boundary was the line of a hedge or a fence, in deciding that it was unsuitable for striking out. There was no appeal from that order (of 26 th June 2025) and the matter proceeded to trial. Jurisdiction of Tribunal to make findings as to “location of the boundary” in determining a section 60 application

15. In the Larking case already referred to, I further referred to the decision of the Upper Tribunal in Witt v. Woodhead [2020] UKUT 319 (LC) to the effect that in the course of deciding a determined boundary application, this Tribunal may go further and be able to make a finding on the “location of the boundary”, on the evidence and legal principles as presented before it. This most commonly arises when a Respondent’s reason, or one reason, for objecting to a section 60 DB application is an argument that the location of the boundary is a position other than that stated by the Applicant. Even in the absence of a separate DB application by that Respondent, the Tribunal might positively accept their argument (in whole or part) as a reason for rejecting the Applicant’s application; and make a finding to that effect which binds the parties, even if not with the specificity of an exact boundary: see Witt v. Woodhead (at paragraph 69, per Upper Tribunal Judge Cooke): “69. That leaves the parties without a determined boundary. However, all my findings about the position of the boundary were made in order to decide what direction should be given to the registrar. They therefore create an issue estoppel between the parties, which means that they cannot be questioned in any future proceedings between the parties in which the position of the boundary is in question.” Such a finding would effectively be a slightly more accurate determination of the general boundary.

16. Some care is required in going down this route. This Tribunal does not have a free-ranging declaratory jurisdiction as to the location of boundaries. The Law Commission recommended in 2018 that it should, a proposal which the then Government accepted but then never legislated. I consider that the Tribunal can only make a finding of the above nature if this is a necessary part of its determination of the application actually before it. The Respondent’s case in these proceedings: the fence

17. From the outset, and despite their unsuccessful strike out application against the Applicant’s application as actually made, the Respondents have opposed that application on a substantive ground other than the “general boundary” title plan fallacy described above. They have always said, and still say, that the boundary is in a different location.

18. They say that the location of the relevant boundary is in fact much further west than the Applicants’ application line, or even the “beech hedge”. They say that it is represented by the remains of a post and wire fence , situated at the top of a bank in the approximate location shown on the plan below. This plan was drawn by a surveyor, Mr. Carl Calvert, who provided an expert report and gave oral evidence. The location of the remains of the fence is shown dark blue, in contrast to the orange line of the application plan shown much further east. Surveyor’s plan showing Respondents’ contention as to boundary (fence)

19. It was very much the Respondents’ position and contention that I should not just direct cancellation of the Applicants’ application – in either its original or “revised” form – but also go on to make a finding as the location of the boundary being as shown above.

20. The Applicants, through Mr. Denno, were likewise very keen that I should make such findings as to the location of the boundary as I possibly could; even if rejecting their application as originally made. On this issue alone, the parties were as one. Neither of them wished the position to be left undetermined – in effect, with merely a finding of “not there” – which might result in yet further litigation, time and cost.

21. While neither these nor any parties can confer on the Tribunal “jurisdiction by consent”, I will have regard to their clear wishes in this respect when considering whether it is possible to make any such findings in this case. The position on the ground

22. Before considering those issues further, it is first necessary briefly to describe the physical features and lie of the land in the vicinity of the disputed boundary.

23. A feature described variously by the parties as a “stream”, “ditch”, “gully”, or “watercourse” runs north-south through the area in dispute. It is the central red dashed line in the second plan above. Neither party has any direct knowledge or evidence as to its origins. It is not known, for example, whether it is natural or man-made; or if the latter, for what purpose (e.g. drainage or otherwise) it may have been dug. For ease of reference, and without expressing a preference for either party’s nomenclature, I shall refer to it hereafter as the “stream”.

24. On the eastern bank of the stream (so on the Respondents’ side), a beech hedge runs south to north for part, but not all, of its length. The Respondents’ estimated (although this is not an exact measurement) that this hedge runs along approximately one-third of the bank. To the east of the hedge there is a long established telegraph/telephone pole. To the north of it, and far more recently, the Respondents themselves have planted some laurels to extend the hedge northwards. At the northernmost end of the area in dispute lies the Respondents’ garden annexe building, shown on the plans above. As stated, the application plan line of the Applicants would have cut through part of this structure.

25. On the western bank, at the southern end there is a wooden fence or frame which I understand was erected by the Applicants in relatively recent times. Moving further north, there are assorted (and some dead) shrubs and other foliage on that side, but also what was described by the Respondents’ surveyor as a “post and wire fence”. Some of the posts and wires are still in place, and attached to trees, on which the bark has in some places grown over the attached wires. The fence is not complete, and there are a few other isolated posts still in the ground. The Respondent’s surveyor, in the plan above, depicted what remains of this fence with a blue line. As with the stream, there was no direct evidence from either party as to the origins or purpose of this fence. For these purposes I do not regard non-expert opinion or speculation as evidence.

26. For the purposes of illustration I attach below first a photograph from the Applicants, looking north from the corner of the West Colleton house, then the Respondents’ photograph looking south down the stream, with the beech hedge visible to the left (east). For completeness’s sake, I attach a photograph which I took (with the parties’ consent) on the site visit, looking north up the stream, with the section of beech hedge on the right. Relevant title history

27. This was not initially straightforward, but close reading of such title documents as the parties disclosed made it reasonably clear. All of the relevant land, and a large quantity surrounding it, was previously part of a single estate, the Colleton Hall Estate. By 1965 the owner of that estate was one Geoffrey Edward Ford North, a retired military officer.

28. I am satisfied that as at 15 th March 1966, Geoffrey North was the sole owner of what are now the relevant parts of the Applicants’ and Respondents’ properties. As to the former, I derive that from an entry in the Fifth Schedule to a later conveyance of 25 th March 1987, which refers to title to the first property conveyed on that relating back to a reconveyance to Geoffrey North from a mortgagee on 15 th March 1966.

29. As to what is now the Respondents’ property, on 21 st March 1966 Geoffrey North executed a conveyance of land from himself alone to he and his wife Margaret Isolda North. By that conveyance, in consideration of £250, Mr. North conveyed:- “ALL THAT piece of land situate in the Parish of Witheridge in the County of Devon containing 1.030 acres or thereabouts which is more particularly described in the Schedule hereto and for the purposes of identification only delineated on the plan annexed hereto and thereon edged in red.” The Schedule described the land simply by reference to three Ordnance Survey parcels and their acreage: 1099 (.318), 1095 (.428) and Pt. 1096 (.284); total acreage 1.030.

30. The plan showed the conveyed land as follows: 1966 conveyance plan That was the conveyance which created the east/west boundary now in dispute – just to the left of the number “1099” – since Geoffrey North then retained the OS parcels 1100 and 1101 to the west, and now held the land to the east in a different (joint) ownership with his wife Margaret.

31. By the 25 th March 1987 conveyance already referred to, Mr. and Mrs. North conveyed two separate pieces of land to their purchasers, a Mr. and Mrs. Sibley, for £76,000. The first piece of land, described as the “First Property”, was then still owned by Mr. North alone. It included the parcels shown above whose OS numbers in 1966 were 1100 and 1101, but which by 1987 had been renumbered as 1938 and 2233, and which is described on the plan to that conveyance as “Pony Paddock”. It also included further parcels to the west and south. It is shown as “Lot 3” edged in red on the conveyance plan 1 (below). 1987 conveyance plan 1

32. The second piece of land conveyed was part – approximately the southern half – of the land conveyed by Mr. North to himself and his wife in 1966, now renumbered as OS 3134. It is shown edged in green to the east of the red parcel, and included the house and outbuildings known as West Colleton constructed in the 1960s. Mr. and Mrs. North jointly were the vendors as to that part, while Mr. North alone was the vendor of the first piece. Mr. and Mrs. North then retained for themselves the northern half of OS 3134, which is now the Respondents’ property – and on which a house had also been constructed in the 1960s, Little Colleton.

33. So while that conveyance created the north/south boundary between what are now the parties’ properties (Little Colleton and West Colleton), the east/west boundary remained as it had been created by the division in ownership of those lands on 21 st March 1966. The 1987 conveyance simply conveyed the two pieces of land by reference to their OS numbers and the antecedent conveyances.

34. The Sibleys were the first registered proprietors of the land conveyed to them in 1987, under title DN 213492. The Respondents purchased Little Colleton in 2003 from Mr. North himself, which is when it was first registered under title DN 487553. A few years later, in 2010, Mrs. Sibley (I presume by then widowed) sold West Colleton to the Applicants. Creation of the boundary in 1966: construction of the 21 st March 1966 conveyance

35. The fundamental issue is therefore what boundary was created by the 1966 conveyance. Neither party mounted any alternative case that the originally created boundary was altered by subsequent adverse possession or boundary agreement.

36. That is a question of construction of that conveyance, in the light of any relevant physical characteristics known to exist at the time. The correct approach to this is well-known and as follows. Given the parties’ joint enthusiasm for my decision in Larking v. Chamberlain , I set out again the summary of the relevant principles from paragraphs 72 to 77 of that decision:- “The correct approach to construing a conveyance has been set out many times by the courts, and this Tribunal, in a number of cases. One starts with the words or “parcels clause” used to described what is being transferred. There may be some cases where those words are so clear and specific that they are sufficient to identify the land either without recourse to an attached plan, or so as to override and prevail over any different depiction on such a plan, whether because of the detail of the description, acreage measurements or some other description: see e.g. Dunlop v. Romanoff [2023] UKUT 0200 (LC). In other cases, the words will refer (and defer) to the plan as the “dominant description”, so that one then looks to the plan to see if the boundary can be ascertained clearly. This would be the approach where the words refer to the land being conveyed as being e.g. “shown” or “more particularly delineated” or “defined” on the plan. If the plan referred to is then sufficiently clear and unambiguous to provide an answer, it may be that the search ends there, so that no extrinsic evidence- including even the presence of physical features – is even admissible to contradict that answer. In Beale v. Harvey [2004] 2 P&CR 18 (CA), it was held that the boundary had been sufficiently and clearly depicted by a “single straight line” at right angles to adjacent buildings, which was not displaced as the boundary by the subsequent erection of a fence in a different position. Where neither the words nor the plan can provide a definitive answer, it is then necessary to construe the conveyance in the light of available extrinsic evidence of the circumstances on the ground at the time: see Pennock v Hodgson [2010] EWCA Civ. 873 , in which Mummery LJ summarised the approach as follows: “(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time. (2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land. (3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance. (4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.” In a well-known and much-cited passage, he added “12. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction…” “This exercise is an objective one of construction of the relevant document: what would the reasonable person, ‘plan in hand’, have thought they were buying? Evidence of the subjective intentions or beliefs of the parties to it is therefore irrelevant and indeed inadmissible: see e.g. Cameron v Boggiano [2012] EWCA Civ. 157 , per Rimer LJ at paragraph 114: ii) [where the plan is not sufficiently clear] “….the court can, and in my view must, have regard to all admissible evidence with a view to elucidating the true sense of the transfer. Such evidence will not of course include the parties' prior negotiations or their expressed subjective intentions as to the land to be transferred [see also per Mummery LJ at paragraph 52: “I agree that evidence of the subjective intentions of the parties, of the pre-contract negotiations between the parties and of the existence of other plans, such as Plan B and Plan C, are not available for the construction of the title documents.”] … It will, however, include a consideration of the topography of the relevant land at the time of the transfer. Recourse can be had to such evidence not for the purpose of contradicting Plan A but for the purpose of elucidating the true sense of its uncertain elements, in particular the line of the northern boundary. The court's interpretation is ultimately guided by the answer that the reasonable man, armed with the relevant material, would give to the relevant question.” “While the subjective intentions of the parties to the original conveyance are in themselves inadmissible as an aid to construction, there is some authority that the subsequent conduct of parties and their successors may be admissible extrinsic evidence if it tends to suggest acceptance of a particular boundary. In Ali v. Lane [2006] EWCA Civ 1532 , Carnwath LJ said that i) if the conveyance is inconclusive, the court or tribunal must in such circumstances “make use of all the help it can get, from extrinsic evidence” ([27]: this is actually a quotation from Robert Walker LJ in Hillman v. Rogers , 1987, unreported); ii) this may include the conduct of subsequent parties “if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary … [but the] unilateral actions of the owner of one side … could not be relied on as binding on the owner of the other.” [38].

37. The application of those principles to the facts and evidence of the present case presents a challenge to both parties, for these reasons.

38. First, there is little evidence of the circumstances, and physical position on the ground, in 1966. It is uncommon, but not unusual, for there to be evidence from a living party to a 60 year old conveyance; but there was no such evidence here. Nor could any other living person, perhaps a neighbour or local resident, speak to such matters. Nor were there any historic photographs, aerial or otherwise.

39. Second, the 1966 conveyance itself does not provide a great deal of clarity. The conveyed land was said to be “more particularly described in the Schedule hereto”. The Schedule then simply described the three OS parcels by their numbers and acreage. The land was then said to be “for the purposes of identification only delineated on the plan annexed hereto and edged in red”. While the use of the word “delineated” might have enabled the plan to provide some precision, despite its “identification only” limitation, the actual plan used did not do so.

40. The written and oral expert evidence of Mr. Carl Calvert as to successive editions of the Ordnance Survey in this location was of some relevance in this regard. He is a very experienced surveyor, who actually joined and worked for the Ordnance Survey in 1967. He explained that the 1966 conveyance plan was based on the 1904 edition of the Ordnance Survey. That plan shows a single solid black line feature in that location. This could have represented any feature, such as a hedge, fence, bank or stream. But there is no way of knowing what that feature was, or whether it was still there (or in the same location) 62 years later 1904 OS plan extract

41. Far closer in time, and of more potential relevance to this case, was a 1971 National Grid map produced by what he explained to be the “overhaul” method (“overhauling” the previous 1:2500 County Series maps for the purposes of the “Mercator” projection for the National Grid series). While his observations about the accuracy or otherwise of this process are of interest, what is more relevant and interesting is what the 1971 map actually showed. By this time, the modern dwelling houses on Little and West Colleton had been constructed and are depicted. As can be seen, the former OS parcels 1099 and 1100 had been renumbered as 1938 and 2233, but the curved dashed line between them is still depicted. 1971 OS National Grid plan

42. He confirmed that this now showed a “double feature” in the location of the disputed boundary. He was initially quite specific about these features, and stated that they were “a bank and a stream”. The left hand (western) feature was the midpoint of a stream, because of the arrow showing its direction of flow. This can be seen as flowing for the full length of the boundary now in dispute, although it curves off in different directions to the north and south.

43. In his report he said that the right hand (eastern) feature was therefore a bank. In his oral evidence, however, he appeared to me to say that this might also have been a hedge, fence or wall. Whatever it was, however, it was to the east of the stream; so could not have been the fence now on the western side of the bank as described in his report (which the Respondents say is the boundary). He also confirmed that the “S” shaped tie marks shown on the 1971 plan would generally be used to indicate that the feature appeared to be included in the OS parcels to which it was tied (1938 and 2233), although he noted in this regard the unusual tie mark further south (by the “FB” for footbridge) which appeared to extend into the OS parcel further east. Findings as to physical features on ground in 1966

44. I consider that this 1971 plan, as explained by Mr. Calvert, is the best – indeed, only – evidence of the probable position on the ground in 1966. The then recently constructed houses are clearly shown. I consider it unlikely that the surrounding physical features had changed significantly in those five years.

45. I therefore conclude that, on the balance of probabilities, the physical features dividing the relevant OS parcels at the date of the 1966 conveyance were:- i) the stream; and ii) an unknown feature to its east, but which was most probably simply the elevated bank on that side, as Mr. Calvert said in his original written report. There is no evidence at all – whether photographic, oral or otherwise – of any feature such as a fence or wall in that location.

46. As to the suggestion - and the Applicants’ alternative case – that the presently existing beech hedge was, or could have been, a relevant physical feature in 1966, I reject that possibility. First, it is clear on the ground that, even in its current state of growth, it only extends part of the way up the relevant boundary – between about one-third and a half. Second, I accept the oral evidence of Mrs. Theresa White that when she and her husband purchased Little Colleton in 2003, this section of beech hedge was only about two feet high. It is therefore most unlikely to have existed in 1966. For either or both of these reasons, it could not have been the second solid feature depicted on the 1971 Ordnance Survey plan.

47. I also, however, reject the Respondents’ submission, made by Mr. Reid, that I should find that the post and wire fence identified in Mr. Calvert’s report existed in 1966. There is precisely no evidence for this assertion. There is no evidence, lay or expert, as to the age of this fence, the purpose for which it might have been erected, or by whom. Mr. Reid’s submission that I should find that this fence was erected by Mr. North in the 1960s, to prevent livestock straying from the OS fields to west into his newly developed “residential” land to the east, was – with respect – pure speculation.

48. The short point is, however, that had such a post and wire fence to the west of the stream (and at the top of the western bank, more than 2 metres from the stream) been in existence at this time, it would have been depicted as a separate feature on the 1971 OS plan. It was not. Conclusion on construction of 1966 conveyance

49. I find that on an objective construction of this conveyance, a reasonable person with ‘plan in hand’ would have concluded that:- i) the intended boundary as depicted was whatever visible physical feature then divided OS parcel 1099 from parcels 1100 and 1101. ii) as found above, the only identifiable physical feature known to have existed at that time was the stream. iii) the intended boundary was therefore the midpoint of that feature.

50. Such a conclusion is consistent with the views of the Ordnance Survey in 1971, who – while of course not determining legal boundaries – formed the view (with the use of the “S” marks) that the midpoint of the stream depicted by the western solid black line was tied to the adjoining parcel to the west.

51. As a matter of law, such a conclusion would also fit with the presumption of ownership which would apply – “ad medium filae aquae” – if the watercourse were a natural rather than man-made one. We do not have any evidence either way (expert or lay) as to the origins of this watercourse, so strictly speaking we cannot know whether the presumption actually applied. A reasonable person, however, might well have assumed (absent any special features) that this was a natural watercourse, which would then reinforce the above conclusion. Relevance, or otherwise, of subsequent events and conveyances

52. Although a good deal of time was spent in cross-examination and submissions on the 1987 conveyance of West Colleton to the Sibleys, I am not persuaded that this has any real bearing on the issue I have to decide. This is for the following reasons.

53. First, the conveyance of the parcels relevant to the present issue was that of what were by then number 1938 and 2233, and they were simply conveyed by reference to those OS numbers (see First Schedule, Part 1). Plan 1, on which these parcels and others were coloured yellow and edged red, was said to be “for the purposes of identification only” (see below). So nothing in that plan could be taken to alter the boundary between those parcels and the ‘1966 land’ owned by Mr. and Mrs. North jointly.

54. Second, even if one did have recourse to both plans attached to this conveyance, it is clear that they use the 1971 National Grid edition of the Ordnance Survey referred to above. The various features, and the “S” tie marks tying one of those features (the stream) to OS 1938 and 2233, are clearly visible on it.

55. Third, there is no clear evidence or indication of any feature to which the “T” mark on plan 1, clearly shown to the east of the stream and “tie” marks, might have referred. The conveyance is silent on any “T” marks, including the various covenants entered into.

56. Fourth, although the Respondents exhibited some text messages from Mrs. Jane Sibley, she did not produce a witness statement, and therefore gave no evidence. Even taking the 2025 text messages as civil hearsay with some (albeit very limited) weight, it is not at all clear to me from them exactly to which fences Mrs. Sibley was referring, and what she was saying about them. In any event, there is nothing in these texts which could remotely support any fresh boundary agreement, altering the boundary between the parcels which had been created in 1966.

57. The main point, however, is the first one. The relevant boundary had been created by the 1966 conveyance, by reference to the OS parcels and (as I have found) the then existing physical feature. This 1987 conveyance simply conveyed the two portions of land by reference to the OS numbers and (in relation to the First Schedule, Part 2 land) the 1966 conveyance. So nothing about that boundary was changed by this conveyance. 2003 conveyance of Little Colleton to Respondents

58. As stated above, the Respondents actually purchased this property from Mr. North himself, in 2003. Some evidence was given, and submissions made, about Mr. North’s answers about boundaries on the Sellers Property Information Form. Mrs White gave evidence that the post and wire fence was then in existence, on the western bank above the stream. Mr. North’s answer to question 1(1)(a): “Which of the boundary features (walls, fences, hedges etc.)…belong with the Property?” was:- “Those on the west boundary only.” The answer to 1(1)(b), on which boundary features belonged to neighbouring owners, was “None”.

59. Those answers by themselves do not, however, identify to what “boundary features” Mr. North was referring. There is no express mention of any fence, in this or any other disclosed document. Mrs. White was not able to clarify the source of her statement that “we were advised by those acting for Major North that the wire fence to the west of the gulley was the boundary feature”. In cross-examination she at first appeared to say that this information came from their own solicitors, but it then appeared to me that this was simply an inference made from the answers on the Sellers Property Information Form.

60. In any event, absent some change of boundaries since 1966, Mr./Major North’s opinion about where the boundaries lay could not change them. He could only sell to the Respondents what was his to sell. 2010 conveyance of West Colleton to Applicants

61. The same applies to the owners of West Colleton between 1987 and 2010, the Sibleys, who sold to the Applicants in that latter year. Their opinions or beliefs as to where the boundary lay could not change it. Their own Sellers Property Information Form answers to the Applicants were in any event largely non-committal on the questions in 1.1 about boundaries (to which they answered “not known” on each side). They also said, on question 1.2, that no boundary feature had been moved in the last 20 years. I have already referred to the absence of any evidence from either of the Sibleys (although I assume that Mr. Sibley is now deceased) on boundaries, specific fences or any dealings they had with Mr. and Mrs. North. Other acts and matters

62. As stated earlier, neither party has pursued any case based on historical or accumulated adverse possession of land up to some physical feature. So the evidence given by both parties about the extent to which they entered into and maintained the stream are largely irrelevant, but I find that both parties have from time to time set foot in it. I accept the evidence of Mrs. White that the Respondents from time to time maintained it, and the evidence of their daughter Jordan that she played in it as a child, but I also accept the First Applicant’s evidence that he has had access to and cleared it as well. He has in any event not been excluded from it.

63. Although it appears to have been one of the starting points of the dispute, the beech hedge – and questions of who has trimmed it, when – is likewise largely irrelevant. For the reasons above, it cannot have been a relevant boundary feature in 1966. It lies on the Respondents’ side of the stream, was only two feet high when they first moved in, and does not extend the full length of the boundary. On the face of it, it clearly belongs to the Respondents. No application has been made by the Applicants to claim it, or half of it, or any land between it and the stream, on the basis of alleged adverse possession; but in any event no evidence provided by them would come remotely close to making such a case. A few isolated incidents of trimming one side of it do not fall into this category.

64. The Respondents returned, in submissions, to the presence of the post and wire fence on the western bank, from the time of their purchase in 2003. But their application is not based on that constituting some form of adverse possession by them of all the land east of it (including the whole of the stream, and the western bank) since then. Nor, as stated, could they give any evidence as to who erected it, when, and why. Their speculation that it might, or even must, have been erected by Mr. North to “protect” his residential development from straying livestock was matched by the First Applicant’s Mr. Denno’s speculation that it might equally have been erected to prevent livestock straying into the stream. Neither party knows. It is therefore largely irrelevant as a token of possession or a potential boundary feature.

65. Nor is there any evidence of the actions of the Norths themselves between 1966 and 1987 which might possibly, on the very limited principle described in Ali v. Lane , cast light on the intended 1966 boundary, as “subsequent conduct” of the parties to that conveyance admissible on that issue. Again, no-one knows. Both of the Norths are, I assume, long deceased. Conclusion and disposal

66. As initially stated, I must in any event direct the Applicants’ original application for a determined boundary to be cancelled. A determined boundary cannot be based on a mere projection of the general boundaries from title filed plans.

67. Nor is this a case in which I could direct the original application to be given effect to in part, but with a slight variation on the line of the boundary made via a direction under rule 40(3)(a) of the Tribunal rules, as in e.g. Bean v. Katz [2016] UKUT 168 (TCC) . The original application must be cancelled in its entirety.

68. I do consider, however, that my findings above are additional reasons why the Applicants’ original application should be cancelled, and as such part of my decision in this case on the “matter” before me. I therefore consider that these fall within the principle of Witt v. Woodhead [2020] UKUT 319 (LC) , paragraph 69, as findings made “..in order to decide what direction should be given to the registrar.”

69. Those findings include a rejection of:- i) the Applicants’ alternative case that the beech hedge was the location of the boundary; and ii) the case positively argued by the Respondents, in opposition to the Applicants’ application, that the location of the boundary was the post and wire fence on the western bank above the stream.

70. Part of my reasoning in making those findings were the further findings that:- i) the 1966 conveyance, which created the relevant boundary, did so by reference to a then physical feature dividing the relevant OS parcels. ii) the only known physical feature at that date, by inference from the 1971 Ordnance Survey and on the balance of probabilities, was the stream. iii) the most probable objective interpretation of the conveyance is therefore that the midpoint of that feature (to which the 1971 Ordnance Survey “tied” the OS parcels to the west) was the intended boundary.

71. That latter finding therefore represents my finding as to the “location of the boundary” as discussed in Lowe v. William Davis Limited [2018] UKUT 206 (TCC) . The boundary between the registered titles remains as a general boundary, but the above finding as to the location of the boundary constitutes (on the authority of Witt ) a binding decision as between these parties and their successors. I repeat that this is what both parties expressly requested me to do.

72. The consequence of that finding would of course be that the beech hedge, and indeed all land and items east of the midpoint of the stream, are the property of the Respondents; while all land and items west of that midpoint would belong to the Applicants. The stream itself would be a jointly owned and maintainable feature. The parties ought, with the application of some common sense and less animosity, to be able to live with such an outcome. That, however, is a matter for them from now on.

73. The order accompanying this decision gives the necessary direction to the Chief Land Registrar to cancel the application. Any applications relating to the costs of these proceedings (which, for the avoidance of doubt, only commenced on the date of the reference from HM Land Registry, which was 23 rd March 2025) should be made by the date stated in the order. After that date, any necessary decisions on costs and their assessment shall be made in accordance with the further directions given. Judge Ewan Paton Dated this 19 th day of March 2026 By Order of The Tribunal