Commoner’s Corner, New Forest rights – does your property benefit?
Kerry Dovey | 16.08.2018
12.07.2018 Kerry Dovey
Whilst physical boundary features - for example a hedge or fence - can easily define a boundary that separates your land from your neighbour’s, clients are often surprised to discover that a Land Registry Filed Plan of their land does not mean that the thin red line on the plan represents the exact boundary of that land.
Whilst a good indication of a boundary, the Land Registry Plan is based on ordinance survey maps. Therefore, a filed plan is only as good as the data the Ordinance Survey has on a property. A filed plan will only indicate the general boundary unless the register notes that the boundary has been determined.
This usually means that an agreement has been reached with a neighbour, with both then entering into an agreement to record the boundary.
On a practical level, neighbouring land owners often accept their land’s physical boundary feature (hedge, fence etc) yet rarely consider whether that physical feature is an accurate representation of the real boundary.
It is important to understand your property’s boundary as land ownership carries responsibilities, for example the maintenance of a fence, wall or other boundary feature. Many people believe that the way a fence or wall has been constructed will indicate ownership, for example posts and rails are usually on the owners’ side. This is simply not the case and is not indicative of boundaries.
However, there are some legal presumptions which can assist in identifying a boundary:
It is presumed that the boundary of land abutting a roadway or private right of way extends “ad medium filum” (meaning “up to the medium line” – the subsoil up to the centre line of the road).
The main definition of this presumption was given in Berridge v Ward (1861) 142 E.R. 507:
“Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law is, that the soil of the highway ad medium filum [up to the medium line] passes by the conveyance, even though reference is made to a plan annexed, the measurement and colouring of which would exclude it.” As a non-lawyer I find this hard to understand – Can we take this out? I think we can do that without affecting the point being made.
The above presumption is strong and will apply even though conveyance or transfer refers to land conveyed or transferred as being bounded by the roadway in question (eg not the medium line). This presumption can be rebutted by sufficiently strong evidence of contrary intention.
Hedge and Ditch
Where two properties are divided by a hedge and a ditch it is presumed that the boundary is the edge of the ditch furthest from the hedge. This is because the presumption is that landowners would stand at the boundary to dig the ditch, throwing the earth onto their own land to create the bank on which a hedge may then be planted (Vowles v Miller (1810) 3 Taunt. 137). Interestingly, this rule will not apply to a natural ditch.
Foreshore and Tidal Rivers
In the absence of any alternative evidence, it is presumed that a property which adjoins the foreshore will have a boundary at the top of the foreshore (the land lying between the high and low water-marks of a mean average tide between spring and neap tides). Unless ownership has been transferred, the foreshore is owned by the crown. In Lynn Shellfish Ltd & Ors v Loose & Anor  UKSC 14 (13 April 2016), the Supreme Court considered the seaward boundary of a prescriptive right to fish on the foreshore and held that it was the level of the lowest astronomical tide (LAT).
Remember that whilst the purpose of a Land Registry plan is to support the property description it only shows general boundaries; the physical boundaries on the ground may differ. The Land Registry’s red edging runs along the inside of a boundary and the plans are only as accurate as the most current version of the Ordinance Survey Map.
We would advise that if you have any queries, ensure that full investigations are carried out and supported by necessary evidence.