Making plans identifying, avoiding and addressing boundary discrepancies in development transactions

As developers will know, discrepancies between boundaries shown on title plans the physical boundaries or the boundaries within planning drawings are a common issue which can have costly implications and cause delay. 

Some discrepancies may have little material impact and can be ignored but others could result in unintended ransom arising or result in the grant of planning permission for schemes which are not deliverable due to the boundaries of the consented site shown on the planning drawings including third party land or land which third parties may claim to own or have rights over. 

These discrepancies can result in additional costs and significant delays whilst planning permissions are amended or disputes settled which will not be welcomed by developers, their funders or future occupiers.

As the search for viable sites become increasingly more competitive developers are looking to maximise square footage and create schemes which extend to the very extremes of the site boundaries making the analysis of boundary locations even more important.

This note explores the issues to be considered and explains how to reduce the risks of these boundary discrepancies arising. 

Legal Boundary

A legal boundary is the boundary which owners of adjoining properties will have at one point in time agreed is the boundary between two parcels of land. It is an imaginary or invisible line dividing one property from another. It has no thickness or width and is rarely identified with any precision either on the ground or in conveyances or transfers and is not accurately shown on Ordnance Survey data. Even the boundary lines shown on Land Registry title plans are not guaranteed to be correct and remain subject to challenge and the Land Registry itself publically acknowledges that the legal boundaries shown on a title plan amounts only to its “reasonable interpretation of the land in the pre-registration deeds”. 

Depending on the scale of the title plan, the thickness of a redline can equate to a measurement on the ground of several metres which makes a detailed analysis even harder. Small measurements on the ground can make or break the viability of a site. 

The Land Registry can also change its opinion on the location of the legal boundary shown within its records and boundaries shown on title plans can and often do change during the lifecycle of a development usually without any warning. Changes can occur for many reasons - one of the most common being as a result of the Land Registry updating its underlying mapping which it bases on evolving Ordnance Survey data. 

In addition to considering title plans, developers and their consultants should also consider the Land Registry mapsearch facility which is available through the Land Registry on line portal and which the Land Registry keeps up to date. The mapsearch data represents the Land Registry’s current interpretation of the legal boundaries. 

Land Registry General Boundaries Rule 

Given the difficulties in establishing the precise position of the legal boundary, the great majority of registered titles only reveal the ’general boundaries’ which is essentially the Land Registry’s best guess of the legal boundary. This best guess is based on the information supplied on first registration and subsequent conveyances or transfers and by reference to other evidence such as Ordnance Survey mapping and details shown on mapping of adjoining titles.

There is no standard tolerance, measurement or ratio that can be attributed to the relationship between the position of the “general boundary” shown on the Land Registry title plan and the position of the legal boundary. 

Case law makes it clear that there is no limit to the quantity of land that can fall within the scope of the general boundaries rule. As a result the title plan can occasionally include significant discrepancies. 

Physical Boundary

It will come as no surprise that a physical boundary found on site and which will usually take the form of a fence, wall, hedge, posts, line, ditch or line of trees, for example may, or may not, follow the line of a legal boundary and this is where the problems arise.

The legal boundary may correlate precisely with the physical boundary but it might just as easily run along one particular side of the structure or hedge, for example, or it may include all or any part of an adjoining roadway, footpath, stream or ditch. On the other hand, a physical boundary could have no resemblance to the legal boundary whatsoever and may have been erected well inside or outside the legal boundary often for reasons which are unclear or long forgotten. Seller’s replies to boundary enquiries are notoriously unhelpful.

A physical boundary structure may at one time have accurately reflected the legal boundary but years of damage, disrepair and replacement may mean that the boundary now found on site is no longer accurate. Living boundary structures, such as hedges, can also be prone to a certain degree of movement and change over time and physical boundaries can also occur as a result of intentional land grabbing by a neighbouring owner, innocently or otherwise. 

Land Registry surveying practices can also contribute to boundary discrepancies as the Land Registry can align the title boundary with the apparent physical boundaries, even when not located along the legal boundary. This can commonly occur in rural settings where farmers have erected stock-proof fences some distance inside old hedge lines resulting in the unintended loss of the intervening strip from the registered title. It can also happen where gates to large properties are set back from the road resulting in part of the entrance being excluded from the title.

As a result a physical boundary also cannot be relied upon to provide an accurate location of the legal boundaries and may therefore not provide the certainty required by developers to assess the extent of developable area. 

Rectification and Agreement of Legal Boundaries 

The Land Registry now provides a detailed process for determining the precise location of a legal boundary. The simplest and easier method is agreement to be reached between adjoining owners as the location of the legal boundary which is documented by way of a boundary agreement and registered at the Land Registry. This requires the cooperation of both land owners which is not always achievable. The alternative is to ask the Land Registry to determine the legal boundary which involves a semi-judicial process which, if contested, can be costly and time consuming and unlikely to provide the immediate solution a developer will usually require. 

Other Issues

Even where a legal boundary can be established, it may be possible for the adjoining owner or third party to claim ownership of land which, whilst not within its legal boundary, has been within its physical boundary for a sufficient period. If the neighbour or third party can prove that it has possessed land without permission, secrecy, force or payment for 10, 12 or 30 years (depending on the circumstances) then it may have a claim for adverse possession of that land. 

If an application for adverse possession is not successful, the neighbouring owner may be able to establish prescriptive rights of that land such as a right to use or pass over parts to access adjoining land. 

A successful third party claim for adverse possession of prescriptive rights over land intended for development could have a significant impact on the delivery of that scheme and, in certain circumstances could sterilise development. Furthermore, the existence of a potential to claim adverse possession or prescriptive rights could cause nervousness with advisers for developers and their funders and future purchasers and occupiers and could result in difficulties and delays with future transactions which a developer will want to avoid. 

Practical Advice 

So how can these issues be overcome?

Our experiences tell us that following these simple practical suggestions can help to significantly reduce the risk of boundary discrepancies and the consequential costs and delays:

• Obtain a measured topographical survey of the site to accurately identify the physical characteristics of the site and existing boundary structures. If relying on a survey commissioned by a seller or third party make sure the survey is relatively recent and secure the ability to rely on that survey by obtaining a letter of reliance from the consultant that prepared the survey. The reliance letter should be expressed to benefit the purchasing developer, its funders and allow assignment and should include an express statement confirming its duty of care.
• Developers should encourage their legal advisers to inspect the site. Legal advisers should also obtain title information for adjoining land and compare title boundaries to highlight potential inconsistencies.
• Developers should, as a matter of routine, pass the title plans and a mapsearch extract of all relevant land to the consultants preparing the planning application and drawings and to those engaged in appraising the site. Care should be taken to avoid distorting the scale of the plans. 
• Where preparing planning drawings, the developer or its consultants should “overlay” the title plans over the topographical survey to establish any discrepancies. The developer should think very carefully before including any land within the site boundary shown on the planning drawings which is either i) outside the physical boundaries of the site and/or ii) outside the legal boundaries of the site. Following this guidance should materially reduce the risks associated with uncertain boundaries. 
• Where a site is acquired with the benefit of an existing permission the developer should, at an early stage in its appraisal, undertake a similar overlay of the title plans and topographical survey but should also overlay the location and site layout plans which form part of the planning application. This will help to reveal if the existing permission includes land outside the i) physical and/or ii) legal boundary so that the impact can be assessed at an early stage.
• Where boundary discrepancies are identified with a consented scheme (it happens a lot) consideration should be given as to the actual impact of the discrepancy and whether the absence of the land in question from the scheme would present practical or legal concerns or cause difficulties from a planning perspective. 
• Redline location plans and site plans should be sent to the Land Registry for “SIM” search approval prior to use within a planning application and/or prior to acquisition of a site with an existing consent. This will give comfort that the Land Registry accepts there is no third party land within the site boundary and will also give greater confidence when preparing plans for disposal of the units. 
• Where preparing to dispose of the units on a site, the proposed master conveyance plan should be sent to the Land Registry for “estate boundary approval” to provide certainty that the boundaries of all plots fall within the developer’s legal title. Conveyancers acting for purchasers will expect to see estate boundary approval within the sales pack. No discrepancies should be revealed if the same underlying location plan has been used throughout the legal and planning process. 
• Where material discrepancies are revealed, consideration should be given to potential solutions. This may include asking the Land Registry to update its mapping and issue a revised title plan or mapsearch detailing, obtaining indemnity insurance or resubmitting or revising the planning consent or negotiating with adjoining owners (usually the last resort). 

Boundary discrepancies are very common and should be identified and addressed at an early stage in the development and planning process. Simple steps can be taken which will help to avoid wasted costs and delays further along the lifecycle of a development.