England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON THAMES COUNTY COURT
HIS HONOUR JUDGE WINSTANLEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th February 2011

Lord Justice Ward:

1. This must rank as one of the most ludicrous boundary disputes it has been my misfortune to deal with in nearly 16 years in this court.
2. The parties are neighbours. The appellant bought a piece of land and was concerned on his inspection of it by the presence of a system of pipes and cables which ran through a laurel hedge which physically divided his property from that of the defendants, Mr and Mrs Mead. He apparently asked for those pipes to be removed, alleging that they trespassed on his land. I do not have a copy of his letter of complaint but we do have the letter in reply to it, dated 23 July 2007, written by the solicitors of which the first defendant was a partner. It records that:

(Checked to audio – removed from bundle)

"Whilst there have been unresolved discussions about various matters, including the location of a potential wall/fence and positioning of electrical cables along the western boundary at the pool side, the parties main disagreement is as to the positioning of the northern and western boundaries and what access/rights if any have been acquired over the land."

3. Then it goes on to say:

"We note from your letter of 13 July you have threatened to interfere with our clients' irrigation systems and electrical cables by removing the pipes and cables and placing them on what you perceive to be our clients land. We confirm that you are not authorised to interfere with, tamper or remove these items in any way whatsoever without our clients' prior consent. This consent has not been given. We further understand that our clients have already explained to you that interference with any part of the system will affect the whole, which will inevitably become unusable. Computers operating the system will be damaged and there could be a substantial loss of water."

As a result the defendants threatened that if there was any attempt to interfere with those pipes they would immediately seek an injunction restraining the claimant from interfering with or tampering with their property.

4. So there we have the battle lines drawn in July 2007. The result of these intransigent attitudes was inevitable. A claim was duly issued by Mr Langridge in which he sought a) declarations as to the proper line of the boundary between the properties; and b) a separate claim for trespass, that trespass being by the pipes and cables that he said extended onto his land and he sought orders that they be removed forthwith and that the defendants make good any damage that was involved in removal.
5. Those issues came before HHJ Winstanley sitting in the Kingston Upon Thames County Court. He decided that the western boundary of the claimant's land is a line that is created by drawing across the side of the laurels on that boundary facing the claimant's land on the joint plan and he identified a number of relevant laurel trees on that boundary. The northern line was similarly declared to be the line drawn across the side of the laurels on that boundary facing the claimant's land on the joint plan, the relevant laurels being identified. So one has a wiggly line, not a straight line.
6. As for the trespass, he dismissed the claim. The claimant sought permission to appeal. Lloyd LJ refused permission to challenge the judgment relating to the boundary, and we are therefore in a position of having to accept that part of the judgment; but permission was given with regard to the trespass. The judge dealt with the trespass in this way. He recorded how the first defendant, Mr Mead, had explained in his witness statement that in 2004 he had an irrigation system installed for the benefit of the laurel hedge. The pipes and cables of this system were in or close to the laurel hedge on the northern and western boundaries of the Avus land, which is the name given to the claimant's land. The judge recorded as follows:

"Mr Mead said in oral evidence that following complaint from Mr Langridge he arranged for the contractors to move the irrigation system. This was done between July and September 2007. Mr Mead said that the pipes and cables on the western boundary were moved to the Fir Tree Lodge side [ie the defendants' side] of the laurel hedge. The pipes and cables on the northern boundary were moved back to the area of the Meadows wall [again part of the defendant's land]."

7. The judge continued:

"If I accept this evidence from Mr Mead then in the light of the determination of the position of the boundary that I have made, no pipes or cables moved back into the areas described by Mr Mead will be on the Avus land. This is because all such pipes and cables will be situated behind the laurels."

8. The judge then had regard to the evidence given by Mr Mead and Mr Langridge. He found that because Mr Langridge had not provided his surveyor with a copy of the relevant conveyance:

"this was a significant attempt by Mr Langridge to mislead the court, so significant that his credibility is just about completely undermined."

9. Then he criticised Mr Mead for trying to convey an impression that the new summerhouse could not be trespassing on the land because it did no more than replace an existing summerhouse and, having found that he was incorrect about that, the judge said "this undermines Mr Mead's credibility, but not to the same extent as that of Mr Langridge". He concluded:

"It is a close run thing, but in the circumstances I prefer the evidence of Mr Mead to that of Mr Langridge.

In these circumstances I accept that Mr Mead arranged for the irrigation system to be moved to the Fir Tree Lodge side of the laurels before the claim was issued."

10. That is an important finding by the judge, accepting therefore that the pipes and cables were behind the laurel hedge. It may be thought to be an odd conclusion because the judge then went on to record that when he visited the site:

"Pipes and cables were observed on the Avus land during the site inspection."

11. So to the judge's own knowledge, visible with his own eyes, there were pipes and cables on the claimant's land. Then he said:

"No evidence was presented to me of the function of this cable, or indeed as to whether it had any function at all. No effort had been made to trace its source or to its outlet.

I am asked in effect by the Claimant to infer that this and the other cables on the Avus site are some sort of left over from the Claimant's irrigation system. In the absence of positive evidence to this effect I am not prepared to make this inference.

I find that the Claimant has not satisfied me that any pipes or cables in the area of the northern and western boundaries of the Avus land were put or left there by Mr Mead."

And in those circumstances the claim made in trespass failed.

12. With respect to the learned judge, I find that an astonishing conclusion. As Mr Mead accepted pipes and cables were part of his irrigation system. The evidence he gave was to this effect. Asked about a cable in a photograph:

"Q: Can you confirm is that your cable?

A: I don't know. I don't know. I mean the assumption is that it's mine. If it is mine, if it's part of the irrigation system I'm told that is all low voltage, that there is no high voltage component to it. I asked the contractors when I bought it, I asked them when they moved the pipes and I am told there are no high voltage cables. I cannot think of any other reason why a high voltage cable should be in Mr Langridge's garden but if there is one and it's anything to do with anything on my land I will remove it, quite simply.

Q: When irrigation pipes were moved back, why not move back these cables as well?

A: I didn't know that any cables were left in situ."

13. A few questions later:

"Q: You have not at any time inspected yourself or sent somebody else to inspect as to where your cables are located on Mr Langridge's land?

A: No, I haven't."

And so the evidence actually given to the judge was that Mr Mead had not inspected to see whether his contractors had done the job he asked them to do. He himself did not know what the position on the ground was because, quite astonishingly, he had not bothered to go and look. In those circumstances, the judge was faced with this situation. An irrigation system of water pipes and electrical cables had been installed in 2004 by the defendant. The defendant assumed that the pipes and cables were his. If they were not his, the other possibility is that they were the pipes of the claimant, but there was no evidence given that they were his; there is no suggestion that they belonged to or formed part of the Avus property. The overwhelming probability, which was irresistible, was that the pipes which the judge saw still to be on the wrong side of the boundary were part of the system installed by the defendant in 2004. There was no other reasonable conclusion he could have reached. Mr Palfrey has done his best to defend this judgment. He submits correctly that the claimant who alleges trespass must prove that trespass. The judge was entitled to find on a balance of probabilities that the claim was not made out. Of course that is right in abstract, but it is a far cry from the reality of this case, where there was only one answer to the question: to whom do these pipes belong? They belong to the defendant.

14. The case is even more absurd than that because, following the judgment, the claimant, on inspecting his land again, observed an electrical cable, twined between the laurel hedges and clearly on his land. He asked the defendant to remove it. This time the defendant did send a contractor, and it is accepted by Mr Palfrey that that cable constituted a trespass. It was pointed out to him that there were cables on the northern boundary or pipes on the northern boundary that were on the wrong side of the laurel hedge. No opportunity arose immediately in March last year to inspect it. It was said that somebody would come along at Easter. Nobody has been since then, and those pipes still remain on the land. The claimant would be entitled to take a pickaxe and chop them off, but in view of the threat of an injunction and the threat to the possibility of ruining this complicated irrigation system he has desisted; but in my judgment this appeal must succeed on the admissions made and on the error of the judge in failing with respect to do his duty and make up his mind to whom these pipes belonged.
15. I would therefore allow this appeal.

Lord Justice Jacob:

16. I agree.

Lord Justice Patten:

17. I also agree.

Order: Appeal allowed