Planning permission — Land conveyed in separate parcels — Different plans attached to each conveyance based on different map scales — Plan attached to earler conveyance referred to in later conveyance — Whether earlier plan incorporated into later conveyance indicating boundary line — Whether planning permission relevant — High Court holding that earlier plan should be taken into account — Court of Appeal holding that only plan annexed for purposes of identifying land conveyed to be relied upon — Judgment for the appellant plaintiff
On February 21 1974 New House Farm, Little Oakley, Essex, a total of 166.5 acres, was conveyed to the plaintiff. Part of New House Farm had narrow frontage to Rectory Road, Little Oakley and part lay behind, ie to the north of existing houses fronting on to Harwich Road. On April 6 1979 an application was made on behalf of the plaintiff for planning permission for residential development of part of the land, including an area lying to the north of Harwich Road together with a strip providing for an access road to Rectory Road. Permission for that development was granted in 1980. On October 18 1983 the council again granted permission for the residential development of the land. The 1983 permission effectively covered a larger area of land than that granted in 1980. For the purpose of selling the land for which planning permission had been granted, it was divided into three parcels.
All three parcels were sold to the same purchaser, the defendant’s predecessor. Parcel 2 was conveyed on August 30 1984. Plan A annexed to that conveyance was on the same 1:2500 1979 OS map base as the 1983 planning permission. Plan B was annexed to the earlier conveyance of parcel 1 in March 1984 and was not in an OS base, but had been drawn by chartered surveyors on a scale of 1:500. Plan B was also incorporated into the August conveyance. A dispute arose as to the proper boundary between parcels 2 and 3 and the land retained by the plaintiff to the east of those parcels. The plaintiff claimed to own the disputed land, but the High Court held that the disputed land had been conveyed to the defendants. The plaintiff appealed.
Held The appeal was allowed.
1. If plan A were the only plan annexed to the conveyance and if it were sufficiently clear to identify the land to which the conveyance related with reasonable precision, the boundaries of the land could (and could only) be identified by reference to that plan: see Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462.
2. However, plan a was not the only plan referred to. There was also plan B annexed to the March 1984 conveyance, but specifically incorporated in the conveyance of August 1984.
3. If plan A indicated the boundaries of the land conveyed with reasonable certainty, no reference should then be made to plan B. Only plan A was referred to in the part of the conveyance which purported to identify the land being conveyed. Plan B was brought in only to identify the precise position, ie the line and boundaries of that part of the land retained by the vendor over which the easement for the laying of drains and services was conveyed. For the purpose of identifying the land, reference should be made only to plan A.
4. Plan A identified the boundaries of the land with sufficient precision. It showed the same boundaries, on the same base and to the same scale, as the plan of the land for which planning permission had been granted in 1983. It was clear that the parties intended that the land conveyed should be the land for which permission had been granted: see Scott v Martin [1987] 1 WLR 841.
Hubert Picarda QC and Eason Rajah (instructed by Penningtons) appeared for the plaintiff; John Cherryman QC and Henry Setwright (instructed by Robert Gore & Co) appeared for the defendant.
