England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WELSHPOOL AND
NEWTON COUNTY COURT
(DISTRICT JUDGE HOFFMAN)

		Royal Courts of Justice Strand London WC2A 2LL 11 October 2001

1. LORD JUSTICE SCHIEMANN: This is a claimant's appeal from a judgment of District Judge Hoffman in a boundary dispute case. The learned judge gave leave to make this appeal but gave no reasons for doing so.
2. We are concerned with the strip of land which lies at the bottom of the gardens at numbers 18 and 19 Grungog Road. Those two houses face onto the road which is north-west of them. The gardens are behind the house and run in a south-easterly direction. Both houses are owned by the defendant.
3. The claimant undoubtedly owns a broadly rectangular plot of land, which adjoins the bottom of those two gardens and which runs from south-west to north-east. The plot has a north-west boundary which is the same as the south-east boundary of the gardens. The issue is, where does this boundary run, where do the gardens end and the plot begin?
4. The parties are arguing about some four feet. The claimant asserts that the boundary runs four feet north-west of the line where the defendant says that the boundary runs. The south-east boundary of the plot is marked by a concrete wall which runs north-east to south-west and as to which there is no dispute. It was common ground that that concrete wall ran broadly parallel to the rear of the defendant's houses and was separated from them by about 90 feet.
5. The claimants submitted before the district judge that the proper way to establish the boundary line between his plot and the defendant's garden, was to draw a line parallel to the concrete wall and 30 feet away from it. The defendant relied on the existence in the 1950s of a hedge at the bottom of his garden running north-east to south-west. It was submitted that the proper way to establish the boundary line was to establish where the line of the hedge ran.
6. The north-eastern boundary of the plot is marked by a block of three garages. The defendant submitted that the north-west corner of this block marked the point through which the north-eastern boundary of the plot ran. The claimant submitted that the north-east boundary of the plot ran through a point north-west of the north-west corner of the block of garages.
7. The district judge adopted the defendant's approach. Having heard various witnesses and having visited the site twice (early on in the case, which lasted three days, and at the end of it), he made findings as to where the hedge ran. He accepted that the claimant was not entitled to the extra four feet he claimed and dismissed the claim. The claimant appealed.
8. Before us the claimant accepts that the only issue before this court is whether the district judge was entitled to come to the view on the material before him that the hedge ran where he claimed it ran. No mistake of law is alleged. As I have indicated, the judge had no less than two views of the site and heard the witnesses. We have no material before us which was not before the judge. In those circumstances, an appeal in a case of this nature does not start with any great prospect of success.
9. I am somewhat surprised that the district judge thought it appropriate to give permission, bearing in mind CPR Part 52.3(6) which says:

"Permission to appeal will only be given where-

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

10. Manifestly, (b) could not apply to the present case. As to (a), in the circumstances which I have outlined and which I shall continue to outline, I confess I am puzzled. It is only fair to counsel who appeared before the appellant and before the district judge that he made a rather hesitant application for permission to appeal and (no doubt to his temporary delight) the judge gave it to him without giving any reasons for so doing. It is in general helpful if judges who give permission to appeal give some indication as to why they have done so. It enables this court to focus on the point where the judge below had some hesitation, as a judge often can have, as to the correctness of his own view.
11. Returning to the facts of the case, it is common ground that the title documents are not in themselves much help because the parcels are not described and its plans are not drawn with sufficient particularity to be of much use. The judge found, and it is not disputed, that the hedge was planted in about 1949 when the various plots onto Grungog Road, which included 18 and 19 but also included some others, were sold off.
12. The claimant called her father, Mr Pritchard. The judge did not believe Mr Pritchard on a number of points, although he did believe him on others. It is accepted, as it must be, that the judge was entitled, on the face of it, to come to the view that he did not believe Mr Pritchard on those points. Nowhere does the judge express any disbelief of Mr Jones. Subject to what follows, that again is not argued to have been an impermissible decision.
13. The judge was thus faced with an agreement between the parties that the crucial point was the line of the hedge, an agreement that the hedge had been in the same position for 50 years, but two versions of where the hedge ran before it was grubbed up by Mr Pritchard in 1998. The judge believed Mr Jones' version having seen the witnesses, inspected the site and various photographs and plans. In particular, the judge inspected various ordnance survey plans which indicate a line which is in accord with the defendant's submission as to the location of the hedge and is inconsistent with the claimant's version. Since all were agreed that the only boundary feature which remained constant throughout the relevant years was the hedge, these ordnance survey maps were manifestly helpful to the defendant.
14. It is submitted on behalf of Mrs Pritchard that there are three main reasons why the judge was not entitled to come to the view to which he came. The first is two aerial photographs which were drawn to our attention as they were drawn to the attention of the judge. The submission was that these failed to show the hedge or, alternatively, showed something which might be the hedge but if so then on the line claimed by the claimant. I found it difficult, unaided by experts, to interpret these aerial photographs but, doing the best I can I am not persuaded that they are inconsistent with the defendant's case.
15. The second point that was raised on behalf of the claimant concerns two of the written documents which were before the judge. One of them was a conveyance of 1946 in which land was conveyed by a Mr Archibald Douglas Pritchard. That included the two properties with which we are concerned. On Mr Pritchard's copy of that conveyance are indorsed in type-written form two memoranda. The first one deals with a right of way which was created by a conveyance dated 30 December 1953. Nothing turns on that, save that one can see from it, or it is regarded as following from it, that the second memorandum must have been made after 1953. The second memorandum says:

"MEMORANDUM that the within-written Conveyance is retained by the within-named Richard Archibald Douglas Pritchard by virtue of his ownership of a strip of land Ten yards wide situate and abutting the eastern boundaries of the gardens belonging to the within-described premises known as Numbers 16, 17, 18 and 19 Grungog Road Welshpool and running parallel and co-extensive therewith.

SEE ABOVE MEMORANDUM."

16. The judge was clearly puzzled as to what function this memorandum fulfilled. I confess to sharing that puzzlement. It does not matter because I do not understand how it can be said that a memorandum executed by one party without, as far as one can see, the knowledge, still less the agreement, of the other can possibly inhibit the judge from finding as he did.
17. It is, moreover, noteworthy that we are told that the only evidence as to how the measurement of ten yards was arrived at in the first place was that they had been paced out. That, particularly in the context of a site of this kind, hardly leads to mathematical accuracy.
18. The third submission advanced as disabling the judge from reaching the conclusion which he did was that, if one looked at the aerial photographs and scaled off from the photographs, one could see that, broadly speaking, the plot was one third of the total area from the rear wall of the houses to the concrete wall which I have described. What, it is said, could be more natural than that one-third should be retained, given that some such amount was being retained, and that would add up to ten yards. That would support a submission that one should measure from the concrete wall, which is the way that the case was run below. I see the attractiveness of that, but it is a factor which does not in my judgment go anywhere near disabling the judge from finding as he did.
19. There were further submissions in relation to conclusions which could be drawn from an aerial photograph in 1953 and a further aerial photograph in 1981. I have done my best to see whether anything appears from those photographs to my untrained eye, even aided by counsel, which would stop the judge arriving at his conclusion. I find no such point.
20. In my judgment, therefore, the judge was quite entitled to come to the judgment to which he came. This appeal is dismissed.
21. LORD JUSTICE WALLER: I agree. As I understood the submissions of Mr Jackson ultimately, the lynchpin of his argument came down to asking this court to examine the photograph of April 1981. He sought to suggest that this court should be able to tell from that photograph that there were items in the building yard (ie the plot that on any view was owned by the claimant), which were in a straight line. He submitted that this court should take the view that that demonstrated that there was a hedge there but its position was as alleged by the claimant rather than the defendant. But, this photograph is one amongst many. It is also one piece of evidence amongst all the other evidence before the district judge. Furthermore, since one cannot discern in that photograph any hedge at all, it demonstrates the difficulty that there is in analysing aerial photographs, and is hardly powerful evidence of anything.
22. In my view, the district judge took all the care one would expect in visiting the site and analysing all the evidence. He was entitled to take the view he did.
23. Like my Lord, I would emphasise that when the judge came to consider whether permission to appeal should be given, he appears to have taken the view that if the claimant was unhappy with the decision then he should certainly give leave to appeal. That was an entirely wrong approach. The correct approach was to consider whether the appeal would have any real prospect of success. In my view it never had. The judge should have so ruled and the costs to which the parties have been put as a result of having to come before this court should never have been incurred.
24. I agree that this appeal should be dismissed.
Order: Appeal dismissed with costs to be subject to a detailed assessment by a costs judge in Welshpool.