Parmar & Ors v Upton [2015] EWCA Civ 795
onathan Gaunt QC appeared for the successful Repondent in the above boundary dispute and trespass claim. A "for identification only" plan was used to identify the extent of the Respondent's land. The plan was an Ordnance Survey plan, and it appeared to end at a marked feature which was a hedge. Beyond the hedge lay a strip of land, and then a ditch. Beyond the ditch was land that was incontrovertibly the Appellant's. The Appellant filled in the ditch and used the area on his side of the hedgeas part of his residential development. The Respondent sought damages for trespass. The question was, therefore, whether the hedge and ditch presumption applied notwithstanding the apparent line on the plan. The Court of Appeal endorsed expressly what might have been an obiter dictum by Lord Hoffmann in Alan Wibberley Building Limited v Insley [1999] 1 WLR 894, at 899 E-G. The Court of Appeal in Parmar explained that, where the ownership boundary visible on the ground was created before the earliest surviving conveyance, then the conveyancing history was unlikely to help in determining where the boundary lay. If, for instance, the surviving earliest conveyance appeared not to convey all of the land to the boundary, then either (a) the plan was inadequate, or (b) the vendor had, for some reason, reserved to himself an inaccessible ransom strip. The latter was unlikely to be the right interpretation of such a plan absent any evidence of that intention. This was the point decided by Wibberley, and is a consequence which is avoided by the application of the hedge and ditch presumption, if the facts gave rise to it. This presumption states that, where an owner digs a ditch to drain his land, he is likely to have done that at the very extremity of his holding, throwing the soil back onto his own land to form a bank, and then planting a hedge on top of it. It is an open question whether the existence of a bank is a prerequisite for the presumption. Lord Hoffmann considered that the presumption operated where plans were "for identification only", and could operate even where the relevant plan was an OS plan, or a Land Registry plan (which are based on OS plans). Parmar resolves the question of whether this observation by Lord Hoffmann was correct or not. The Court of Appeal decided that it was indeed correct, and an application of common sense.
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