Strand, London, WC2A 2LL
B e f o r e :
| (1) GEOFFREY ALLAN CHADWICK
(2) SYLVIA JOYCE CHADWICK
(3) EDWARD JAMES CHADWICK
|- and -
|(1) ABBOTSWOOD PROPERTIES LIMITED
(2) GORDON LEONARD HAUSER
(3) PAMELA ANN HAUSER
(4) RECTORY PUMP LIMITED
Philip Glen (instructed by Paris, Smith & Randall) for the Defendant
Hearing dates : 29th, 30th April & 3rd May 2004
Crown Copyright ©
Mr Justice Lewison:
"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army."
"the land at St Giles Close Winchester and shown edged red on Plan No 1"
"the land edged blue on the Plan 2"
"1. Boundary positions A, B, C to D may be varied subject to planning but not so as to vary the flat areas of Plot 1
2. Area shown hatched to be landscaped by purchaser."
"the alignment, height and materials of all walls fences and other means of enclosure".
"It was nice to see you on Tuesday evening and it was good to hear your plans for the boundary fencing at the back and also the hedging at the front to replace the Thuya Plicatas that were removed: the latter would be much appreciated. It was also good to hear that some flat land can be generated to the side of the kitchen between the existing garage and the new house. We have measured the parallel line and it will fit between the two small side windows.
At the time you phoned on Wednesday morning we were drafting a letter to you, having spent some time examining the relevant maps and drawings. I think your proposal, in that telephone conversation, to raise the height of the retaining wall between our two houses and erect a fence on the top of that is a good proposal and would certainly increase the privacy of both houses while giving us a back garden without a slope. If, as I suggested, the retaining wall were carried further up the roadway then I believe some level land could be reinstated under the large horse-chestnut tree and give reasonable access to the far landscaped part of the garden. It would also provide a break in the slope beneath the horse-chestnut tree which, at the moment, looks so dangerous and difficult to maintain, as well as providing the possibility of access via a gateway to the far landscaped area through the fence up to St Giles Close.
We contacted Jim Harrison at Ensor Byfield and asked him to communicate with Hadfield Butt and Bowyer to let them know that, subject to further discussion with you, we would be willing to accept your proposal in principle. Jim Harrison has subsequently asked if you could now produce a new plan showing the revised boundary because this will be needed when the property is passed back to us."
"We are instructed that the boundaries shown on the Land Registry plan accurately reflect the boundaries on the ground. We refer you to the handwritten note on the Contract plan which states that boundaries A-B, C-D may be varied subject to planning. The final boundary reflects the planning consent granted."
"… our Clients had a meeting with your Clients on site and explained the whole matter of the "flat land" to them and at the end of the meeting our Clients were under the impression that your Clients were perfectly satisfied that they would be receiving the same area of "flat land" that they had previously expected to receive albeit in a slightly different position. Clearly there can be no question of the boundary of Plot 1 extending over any part of the access road."
"The fence being constructed within the boundaries of the property is not in accordance with the plan. You will need to agree the true position of the fence at our site meeting. Further it would appear that the supporting posts for the fence (or some of the fences) may be on the wrong side of the fences."
"The Transfer has been executed by our clients using the plan sent to you previously by reference to the Land Registry plan. The Contract provided that boundaries A, B, C –D could be varied for planning reasons. The reasons were a combination of the area and position of the landscaped areas (as opposed to garden land) required by the planners, and the gradient of the driveway leading to Plots 2-5."
"Your clients have been shown the landscape plan, showing plantings, which is a condition of the planning consent. Your clients have spoken of treating part of the land which they are to acquire, and which is included within the landscape plan, as "garden". We are instructed to point out that the areas must in fact be retained as landscaped areas in order not to be in breach of planning.
Further, it was agreed at the meeting that in so far as the fence CEF was being erected at your clients request but contrary to planning, your clients would indemnify ours in respect of the consequences."
"Finally, as the fence is to be moved inside the full extent of the property it may be sensible for your client to actually own the land outside the fence including the retaining wall. Do you agree?"
|"the Plan"||The plan annexed hereto|
|"the Property"||The land shown edged in red on the Plan and known as Plot 1 St Giles Close Winchester|
|"the Retained Land"||The land being the balance of Title Number HP 508540 shown edged blue on the Plan and the land comprised in Title Number HP 516031 shown edged green on the Plan|
|"the Transferees"||PROFESSOR GEOFFREY ALLAN CHADWICK AND SYLVIA JOYCE CHADWICK both of 12 St Giles Close Winchester|
|"the Transferor"||HAUSER GREENWOOD LIMITED whose registered office is at 38 Edgar Road Winchester|
"Our clients have asked us to clarify, for the avoidance of doubt, precisely where the boundary line of the property will be taken to run in relation to the banks and slopes.
We have therefore taken a further copy of the plan from the supplemental agreement dated 9 August 1996 and drawn on it a red line which we think represents the actual boundaries and would be grateful if you would confirm that this is indeed the case."
"We are not certain why you have sent us a further copy of the plan and the Supplemental Agreement on the question of the position of the boundaries since, so far as we are concerned, the boundaries are those edged red on the Transfer Plan."
"As far as the plan is concerned as the boundary would appear in physical terms to be at the top of the bank it would seem sensible to have this as the actual boundary of the property for Land Registry purposes with our client obtaining the bank. Do you not agree?"
"Our understanding is that the fence is entirely on our land. At the time of its erection I asked for the close boarding side to be put on our side as it was within our land and we would have to look directly on to it all the time from our lower storey windows. Your argument then was that we owned the fence and must therefore, by convention, have the concrete spurs and rails of the fence on our side and that "nails pointed towards the owner"."
"As I was trying to explain this morning our understanding was that the boundary was a continuation of the fence behind your old house. The plan shows this to be the case.
If you recall Geoffrey said he would prefer not to own the bank and we said we would be happy to own it and maintain it. Perhaps that is where the confusion arises."
"It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result."
"The land shown edged in red on the Plan and known as Plot 1 St Giles Close Winchester"
"In my judgment, when a property, the subject matter of a conveyancing document, is described as "the property known as . . ." it is permissible, indeed inevitable, that recourse will be had to extrinsic evidence to identify the property so known. In Spall v. Owen (1981) 44 P. & C.R. 36, in which there was a description of a property as "the property known as plot No. 1," I said, at p. 43, that such a description cried aloud for evidence of the surrounding circumstances."
"In those circumstances, as we are concerned with a general filed map or plan, the sole question for us is whether, notwithstanding the transfer and the facts I have mentioned, the effect of the statutory provisions, sections 19 and 69 in particular, is that as matters stand what the defendant has, and is entitled to say he has, is a piece of land identified by reference to the map on his certificate; and the argument is that, if you look at that map, it is as plain as possible that there is no question of an angled division; the piece of land of which the defendant is certified as proprietor is regular in shape." (Emphasis added)
"You are, therefore, told that this document does no more than indicate the boundaries, and - what I think is far more significant - that what they are intending to do is to show what you would find on the transfer plan. When all that is added together, I am for my part left in no doubt that this plan cannot be set up to overturn the plain effect of what otherwise would have resulted from the bargain made between the defendant and his vendor as had been recorded in his contract and in his instrument of transfer." (Emphasis added)
"The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed." (Emphasis added)
"Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."
"The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared, and, in approaching that, I must consider the cases of the two plaintiffs separately because it may be that quite different considerations apply to each."