Abraham v Oakley Park Developments Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 20 March 2019 |
| Neutral Citation | [2019] IECA 87 |
| Date | 20 March 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2019] IECA 87 Record No. 2017/101 |
[2019] IECA 87
THE COURT OF APPEAL
Peart J.
Peart J.
Whelan J.
Costello J.
Neutral Citation Number: [2019] IECA 87
Record No. 2017/101
AND
Lands – Boundaries – Evidence – Appellant seeking to appeal against a declaration in respect of the boundary between lands – Whether there was ample admissible evidence before the trial judge to conclude that the location of the true boundary was as he determined
Facts: The defendant/appellant, Oakley Park Developments Ltd, appealed to the Court of Appeal against the judgment of O Connor J of the 8th December 2016 where the High Court made a declaration in respect of the boundary between lands comprised in folio 7062F and folio 34848F and an order directing the Property Registration Authority pursuant to s. 21 of the Registration of Title Act 1964 to record the boundary between the two folios as set out in the order as a conclusive boundary. The appellant’s case was that it acquired part of the lands comprised in folio 26791F. It claimed that the disputed area was never at any time contained within folio 7062F. It said that its deed of transfer was clear and unambiguous both as to the description and as to the map, which was certified by Mr Mealy, architect. Its case was based upon areas not boundaries and the map in the Land Registry reflected the area of land to which it was entitled. That plan included the disputed area of land and therefore it correctly formed part of the lands comprised in folio 34848F and conversely was never part of the lands comprised in 7062F.
Held by Costello J that there was ample admissible evidence before the trial judge to conclude that the location of the true boundary was as he determined.
Costello J held that she would refuse the appeal and affirm the decision of the High Court.
Appeal dismissed.
This is an appeal against the judgment of O Connor J of the 8th December 2016 ( [2016] IEHC 790) where the High Court made a declaration in respect of the boundary between lands comprised in folio 7062F and folio 34848F and an order directing the Property Registration Authority pursuant to s.21 of the Registration of Title Act 1964 to record the boundary between the two folios as set out in the order as a conclusive boundary. The defendant appealed against these orders and, in the event that it was successful in this appeal, it sought to appeal the award of damages awarded against the appellant by O Connor J.
This case has its origins in the subdivision of rural land and is illustrative of the difficulties that can arise therefrom. The lands at issue in these proceedings were originally all part of one folio, 13741F (‘the parent folio’). Mr. Brady Sr. purchased the lands which comprised a pub and approximately 37 acres. Included on the lands was a small cottage at the southwestern corner of the folio.
In late 1979/1980, Mr Brady Sr. sold a small corner of the parent folio comprising the small cottage and a plot of 0.2 acres to his son, Mr Osmond Brady. As this involved a sub division of the parent folio, 13741F, it was necessary to create a new folio, which was subsequently numbered 7062F. Mr Osmond Brady was registered as the full owner of folio 7062F in 1981. The boundary between folio 7062F and the parent folio to the northwest are central to this case.
When Mr Brady Sr. sold the cottage and adjoining lands to his son, Mr Osmond Brady, the parcel of land was fenced to the north with an old steel and post wire fence and a gate. The balance of the lands remained in folio 13741F, which included a 5 acre field to the north and east of folio 7062F.
Subsequently, Mr Osmond Brady transferred the title to folio 7062F into the joint names of himself and his wife, Mrs Mary Brady.
In 1998 Mr and Mrs Brady acquired further lands from the parent folio, 13741F, from Mr Brady Sr. The lands were contiguous to their existing holding in folio 7062F to the north and east. This involved a second sub division of the parent folio and led to the creation of a new folio, 26791F. These lands comprised a small roughly triangular area to the west of folio 7062F and a 5 acre field to the north of folio 7062F. Mr And Mrs Brady were registered as full owners of this new folio, 26791F.
In October 2000 Mr and Mrs Brady agreed to sell lands comprising part of folio 26791F to the appellant. The lands in sale were transferred to the appellant in consideration of the sum of €1.5m. The deed transferred: -
‘ALL THAT AND THOSE part of the lands comprised in folio 26791F of the Register of Freeholders County Kildare having an area of 2.057 hectares or 5.079 acres and more particularly delineated on the map annexed hereto and thereon surrounded by a red verge line.’ (emphasis added)
The attached map was prepared on the Ordnance Survey Ireland rural place map, scale 1:2500. Paul Mealy, architect, certified the area outlined in red as 2.057 hectares = 5.079 acres on the 27th October 2000.
The registration of this transfer resulted in the sub division of folio 26791F. Mr and Mrs Brady remained the registered owner of the small part of that folio which was not sold to the appellant. A new folio, KE34848F was opened and the appellant was registered as the full owner of the lands comprised in that new folio.
On the 21st April 2008, Osmond and Mary Brady agreed to sell lands to Sean and Pauline Abraham, the respondents. The contract describes the particulars of tenure as:-
‘ALL THAT AND THOSE the lands, hereditaments and premises known as “Glebe”, Straffan, County Kildare, more particularly comprised in folio 7062F and folio 26791F of the Register of Freeholders County Kildare which for identification purposes only is shown on the map annexed hereto.’
The deed of transfer by Mr and Mrs Brady to Mr and Mrs Abraham was not apparently adduced in evidence. On the 5th June 2008 the respondents were registered as full owners of folio 26791F and folio 7062F.
At all material times there was a well-defined physical boundary between the lands and curtilage upon which the cottage was situate and the field to the north west of these lands, referred to as the 5 acre field. Originally the boundary was a steel and wire fence with a gate from the cottage lands into the field. Mr and Mrs Brady replaced the original fencing with a post and rail fence along the same line. They never moved the line of the fence. There is a large copper beech tree to the north of the cottage. At all times this was within the garden of the cottage i.e. it was never in the 5 acre field. When Mr and Mrs Brady acquired the lands which led to the creation of folio 26791F, they incorporated that part of those lands which did not comprise the 5 acre field and which lay to the west of their existing small holding, into the garden and thereby increased the curtilage of the lands surrounding the cottage. When the respondents purchased the lands comprised in folio 7062F and the remaining lands in folio 26791F, they built a new house and garage and erected a shed and landscaped their garden within the existing physical boundaries. The line of the physical boundary between the 5 acre field to the north west and the cottage and garden to the south was never changed or challenged until August 2013, save for the incorporation of additional land to the east into the garden, and this latter boundary is not in dispute in these proceedings.
The Land Registry operates a non-conclusive boundary system. Section 85 of the Registration of Title Act, 1964 (as amended) states that ‘ the description of the land in the register or on such maps shall not be conclusive as to the boundaries or extent of the land’. This situation is neatly encapsulated by an endorsement which appears on all maps attached to folios. It states ‘the registry map identifies properties not boundaries meaning neither the description of land in a register nor its identification by reference to a registry map is conclusive as to the boundaries or extent.’
All of the maps employed in this case were plotted on rural OS maps scale 1:2500. The accuracy and the amount of information that can be represented on the map is primarily dependant on the scale of the map used. There was evidence that using maps to this scale is subject to a margin of error.
‘the typical achievable accuracies are of a low order, mapping discrepancies of +/- 2 metres are quite typical when checked by precise ground survey measurements’
Parties applying for first registration of title are required to present a map using either a land registry map or the most up to date map of the Ordnance Survey of Ireland. When Mr Osmond Brady applied to register the new folio 7602 in July 1985 the map attached was required to be based on the then most up to date available OSI map. Subsequently, commencing in 1995, the Ordnance Survey resurveyed the lands in the State using ITM coordinate reference systems. The Land Registry then digitised all of the maps based upon this resurvey of the State using the ITM coordinate reference system. The revised editions of OS maps can vary from earlier editions due to different mapping technology and practices over decades and a move from field surveying to desk top surveying based on aerial photography. This can and does give rise to discrepancies in relation to boundaries.
This occurred in relation to the map attached to folio 7062F. Mr. Kestell produced a map marked 1A which shows, outlined in blue, the old Land Registry record for folio 7062F and the current Property Registration Authority extent of lands for folios KE7062F and KE26791F outlined in red. The map is attached to...
To continue reading
Request your trial
-
Ryan v Flattery and Others
...authorities that confirmed that boundaries shown on Land Registry maps are not conclusive ( Abraham v. Oakley Park Developments Ltd [2019] IECA 87 (Costello J, at paragraph 29), approving the text in Deeney, Registration of Deeds and Title in Ireland (Bloomsbury Professional, 2014)), the tr......