FTT considers relevance of unregistered collateral documents to boundary disputes

In his well-known judgment in Cherry Tree Investments ltd v Landmain Ltd [2012] EWCA Civ 736, [2013] Ch. 305, the Court of Appeal considered the extent to which unregistered documents should be used to influence the interpretation of documents registered at HMLR. At [129]-[130] Lewison LJ said:

“In Attorney General of Belize v Belize Telecom Ltd Lord Hoffmann himself said of an earlier decision of the Court of Appeal discussing a company's articles of association:

"Because the articles are required to be registered, addressed to anyone who wishes to inspect them, the admissible background for the purposes of construction must be limited to what any reader would reasonably be supposed to know. It cannot include extrinsic facts which were known only to some of the people involved in the formation of the company."

In my judgment this is the key to the present case. The reasonable reader's background knowledge would, of course, include the knowledge that the charge would be registered in a publicly accessible register upon which third parties might be expected to rely. In other words a publicly registered document is addressed to anyone who wishes to inspect it. His knowledge would include the knowledge that in so far as documents or copy documents were retained by the registrar they were to be taken as containing all material terms, and that a person inspecting the register could not call for originals. The reasonable reader would also understand that the parties had a choice about what they put into the public domain and what they kept private. He would conclude that matters which the parties chose to keep private should not influence the parts of the bargain that they chose to make public. There is, in my judgment, a real difference between allowing the physical features of the land in question to influence the interpretation of a transfer or conveyance (which we do) and allowing the terms of collateral documents to do the same (which we should not). Land is (almost) invariably registered with general boundaries only, so the register is not conclusive about the precise boundaries of what is transferred. Moreover, physical features are, after all, capable of being seen by anyone contemplating dealing with the land and who takes the trouble to inspect. But a third party contemplating dealing with the land has no access to collateral documents.”

Since that date, although Cherry Tree has been applied to matters such as easements (British Malleable Iron Co Ltd v Revelan (IOM) Ltd [2013] EWHC 1954 (Ch) and Bockenfield Aerodrome Ltd v Clarehugh [2021] EWHC 848 (Ch)), there have been few, if any, cases considering whether and how it should apply in the context of boundary disputes. This, however, was squarely in issue before the FTT in Cattermole v Jordan & Ors (REF 2019/0777), Judge Tozer QC. So far as is material, the facts of that case are relatively simple. It concerned a plot of land fronting the Thames at Wallingford. Prior to 2016, the land had been owned by Ms Jordan. In May 2016, Ms Jordan transferred the land to her neighbour, Mr Rodgers. She had a plan drawn up (the “Barrington Plan”) which she showed to him. However, at some point during the sale process one or other of their solicitors switched out the Barrington Plan for a different plan with a different boundary (the “Sale Plan”). The difference between the two lines was a triangle of about 125m2, with a difference of 6.68m at its widest. Due to a historic s. 106 agreement, no party could erect any fence or planting which would tend to show any carving up of the land. Mr Rodgers then sold his property, with the land, to Mr Cattermole. The judge found that he had provided the Barrington Plan to his estate agents, but that they had not provided it to Mr Cattermole. Relations between Mr Cattermole and Mr Jordan deteriorated, and he applied to register the boundary of his property along the line in the Sale Plan. Ms Jordan alleged the boundary should follow the line in the Barrington Plan. A key point in issue was the extent to which any weight should be given to the Barrington Plan. Ms Jordan argued Cherry Tree should not be applied as (a) Lewison LJ’s comments were “obiter”, (b) it does not overrule previous cases where pre-contractual plans were used such as Scarfe v Adams [1981] 1 All ER 842 and Partridge v Lawrence [2003] EWCA Civ 1121, and (c) there is a distinction between cases such as Cherry Tree (which concerned a charge which appeared on its face to be complete) and cases such as a boundary dispute where, because of the general boundaries rules, parties would know they have to look outside the register to ascertain the precise boundary’s location. Mr Cattermole argued this case was a straightforward application of Cherry Tree: (a) Lewison LJ’s comments were not “obiter”, (b) Scarfe pre-dated the LRA 2002 and the new regime it brought in, Partridge concerned a map which, having been registered on the planning portal, was a public document, and (c) there is no valid distinction between the types of cases, in either one the party will have to look at the underlying document, but that in either case the question is then whether it is permissible to look at other collateral documents as a matter of construction. On this question, the judge agreed with Mr Cattermole. She said, with regard to Ms Jordan’s third point:

“Whilst that point has a superficial attraction, I am not sure that that distinction holds good: the terms of a legal charge are not apparent from the register, so anyone wanting to know the terms knows that they must look at the underlying charge in the same way as anyone wanting to know the precise boundary knows that they must look at the underlying first conveyance. In both cases, the question is whether it is then permissible to go and look at other documents to illuminate the terms of the relevant document.

However, it is important to appreciate that in Cherry Tree, the register itself identified the document to be construed (and a copy of the charge was available from Land Registry); however, in a boundary dispute, the registered title may not identify the first conveyance, so it will always be necessary to look beyond the register in order to determine what document needs to be construed; in this case, the Transfer was registered, but in many cases, the first conveyance will not be held by Land Registry…

However, where a parcel of land is registered, the fact of registration tells you only that the registered proprietor is deemed to have owners’ powers over the parcel of land in question (and, of course, about any leases, charges or minor interests held over that land by others). The fact of registration generally (and deliberately) tells you nothing about where to look to ascertain the boundaries of the registered parcel. I can therefore see a powerful argument that the fact of registration should not result in a different analysis than in unregistered land, when determining a boundary.

As I have indicated I can see a strong argument that boundary disputes are different and collateral documents should be admitted when determining boundaries, even where the land is registered, because land is only registered with general boundaries. After all, it is difficult to see (at least for me) why physical features, which change over time and which may equally be unknown to a subsequent purchaser, should be permitted to influence the construction of the transfer but other extrinsic evidence should not. However, given the clear indication by the Court of Appeal that documents of this sort should not be given weight even for the purposes of determining boundaries, I do not consider that I should depart from this guidance. I therefore determine that little weight should be given to collateral documents when determining a boundary.”

Although this is a decision of the FTT and therefore not binding, it is a good indicator of how a well-respected judge considers the law lies and how it is likely to be applied in future. Nick Grant acted for Mr Cattermole.