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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Clive Anthony Mussett v Janet Anne Shuttlewood (Boundary dispute : Determining exact line of boundary) [2007] EWLandRA 2005_1745 (16 July 2007)
URL: http://www.bailii.org/ew/cases/EWLandRA/2007/2005_1745.html
Cite as: [2007] EWLandRA 2005_1745
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The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
APPLICANT
and
RESPONDENT
Property Address: 23 & 24 Field Head Gardens, Bourne End, Bucks
Title Number: BM54835 and BM54948
Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry
Sitting at: The Adjudicator to HM Land Registry
On: Thursday 14 and Friday 15th June 2007
Applicant Representation: Mr Harry Angelides of Counsel instructed by Messrs Abercorn Solicitors
Respondent Representation: Mr Andrew Clark of Counsel instructed by Messrs Allan Janes LLP solicitors
DECISION
1. On 30th March 2005 the Applicant lodged an application to determine the exact line of a boundary in form DB. The Applicant is the sole registered proprietor of 24 Fieldhead Gardens, registered under Title Number BM54948. That title shares a common boundary with the adjoining property, number 23 Fieldhead Gardens, which is registered under title BM54835, of the Respondent is the registered proprietor. On 25th July 2005 the Respondent, by her solicitors, objected in writing to the proposed boundary, but enclosing a plan which suggested a different position for the boundary. This alternative position reflected the position on the ground of a new drive which had been laid by the Respondent. The parties were unable to resolve the matter by agreement, and accordingly on 15th November 2005 the Chief Land Registrar referred the dispute to the Adjudicator pursuant to section 73(7) of the Land Registration Act 2002 (“the 2002 Act”). I heard this case on 14th June 2007, and I had the benefit of a Site View on the afternoon prior to the first day of the hearing.
2. Before I explain the nature of the dispute, I shall describe the physical layout of the site. Fieldhead Gardens is a cul de sac, and the road terminates in a hammerhead, surrounded by pavement. The axis of the hammerhead is approximately east-west. To the south of the hammerhead there is a terrace of four houses, numbers 23 to 26 Fieldhead Gardens. Number 23 is the most westerly of these properties. It is to the south-west of the hammerhead: that is, it is offset diagonally from the public highway and pavement. Number 24, its immediate neighbour, is situated due south of the south-western end of the hammerhead and to the east of Number 23. Number 24 has an integral garage, which is accessed by a concrete drive which leads into the hammerhead at the end of Field Head Gardens. The western edge of the concrete driveway is more or less in line with the western edge of the carriageway. In other words, it is possible to drive in a straight line (more or less due north) out of the garage of number 24 and on to the road. To the west of the garage (on the right-hand side, with one’s back to the hammerhead on Fieldhead Gardens) is the front porch and door of number 24, and to the west of that a small window. Just past the window is the party wall with number 23. The party wall forms the eastern wall of the garage to number 23. This garage is, as I have said, offset from the hammerhead, so in order to reach the road it is necessary to take a diagonal line on to the corner of the carriageway. Currently, there is a block paving drive which covers much of the front curtilage of number 23. The eastern edge of this drive runs in a straight line from the eastern wall of number 23’s garage to the hammerhead. The north eastern end of this drive is several metres to the east of the party wall line between number 23 and number 24. The Respondent – the owner of number 23 – contends that the eastern edge of the block paving constitutes the legal boundary between the two properties. If this is right, the plot on which number 24 is built is clearly not rectangular, but a segment of the rectangle – at its north western corner – is taken out of the rectangle and forms part of number 23. Furthermore, a manhole or inspection cover – which, it is agreed, serves number 24 – is within the block paving drive, and therefore within the curtilage of number 23 as contended for by the Respondent. I should also note that, even with the driveway positioned in this way, number 23 is unable to access the garage with a vehicle without driving over part of the curtilage of the property adjoining to the north, namely number 22 Fieldhead Gardens (over which it has a right of way for this purpose).
3. As with all applications for a Determined Boundary, the Applicant has lodged a plan, with measurements shown accurate to ten millimetres, on which he has put forward the proposed Determined Boundary. The plan has been drawn by a professional surveyor, a Mr Ash of Plowman Craven & Associates. The Determined Boundary is shown on Mr Ash’s plan number 5. I shall call this the Applicant’s primary boundary. Curiously enough, Mr Ash has also plotted an alternative boundary position, on his plan number 6. I shall call this “the alternative boundary”, and I shall explain it in more detail below. The Applicant’s primary boundary runs to the west of the edge of the block paving drive, and to the west of the inspection chamber which I referred to. It terminates 1.5 metres to the east of the party wall line between number 23 and number 24. Accordingly, it also recognises that the plot of number 24 is not entirely rectangular, but has a “chamfered” corner on its north-western side. However, a boundary in this position would have the effect of preventing, so it would seem, any vehicular access from the hammerhead into the garage of number 23. Nevertheless, that is the determined boundary which is put forward on behalf of the Applicant.
4. As is well known, the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as having been determined under section 60 of the 2002 Act. A general boundary does not determine the exact line of the boundary: section 62. Rules have been formulated to provide for an application for a determined boundary. These are found in Part 10 of the Land Registration Rules 2003 (“the 2003 Rules”), and specifically Rules 117 to 120. Rule 118 requires an application to be made in form DB and to be accompanied by “(a) a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and (b) evidence to establish the exact line of the boundary.” On receipt of this material, and essentially where the Registrar is satisfied that the Applicant has made out a prima facie case, the Registrar must give notice to all owners affected by the application. If there is a challenge to the proposed determined boundary line, and the application itself is not groundless, the Registrar must refer the matter to the Adjudicator, which is what happened in this case.
5. By Rule 120 of the 2003 Rules it is provided that where the Registrar completes a determined boundary application, he must
“(a) make an entry in the individual register of the Applicant’s registered title…. and any registered title affecting the other land adjoining the determined boundary, stating that the exact line of the boundary is determined under section 60 of the Act, and
(b) subject to paragraph (2) add to the title plan of the Applicant’s registered title…and any registered title affecting the other land adjoining the determined boundary, such particulars of the exact line of the boundary as he considers appropriate.”
It is also provided that the Registrar may, instead of or as well as adding particulars of the exact line of the boundary to the title plans referred to in paragraph (1)(b), make an entry in the individual registers referring to any other plan showing the exact line of the boundary: see Rule 120(2) of the 2003 Rules.
6. The determination of the exact boundary line is essentially a matter of interpreting the conveyancing documents relating to the title, in the light of the known physical features, and history of the site. The underlying purpose is to ascertain the intention of the parties to those documents of title. In essence, it is no different an exercise in relation to registered land as it is in unregistered land. There is a narrower view of a determined boundary application. It has been said that the Adjudicator, in this situation, is obliged either to find for or against the plan put forward by the Applicant and attached to form DB. Accordingly, if there is any part of this plan which does not truly reflect the correct boundary, the entire application must be rejected and the Applicant must start again. This is not a view which I share. The purpose of a determined boundary application is to fix an exact line for the boundary. If it happens that the Applicant’s plan does not exactly reflect where the boundary is, in the light of all the evidence which the Adjudicator has heard, it would be entirely unhelpful to the parties to refuse to make a judicial determination of the exact line of the boundary. The parties will have spent a great deal of time and money on obtaining a definitive ruling on the boundary line and it would be perverse, in my view, to send them away with nothing but the prospect of further litigation. Furthermore, I do not consider that the Rules themselves favour such a narrow view. In particular, it is clear from Rule 118 that the Applicant must bring forward evidence to establish the boundary. Furthermore, the Registrar may fix the boundary by reference to any plan – under Rule 120(2) – rather than the plan put forward by the Applicant with form DB. In my judgment, therefore, once a determined boundary application has been referred to the Adjudicator, the Adjudicator’s task is to determine the boundary on all the evidence. If it appears that the boundary is in a different line than that contended for by the Applicant, however, the Adjudicator must direct the Land Registry to note the exact boundary as so determined. I may add that I drew this potential issue to the attention of both parties in this case. Each party invited me, in enthusiastic terms, to determine the boundary between these two properties. They want me to do this, whether or not the plans put forward by the Applicant are exactly right.
7. Accordingly, in approaching this application, I must first look at the underlying pre-registration documentation. Prior to 30th May 1977, both numbers 23 and 24 Fieldhead Gardens were in common ownership. By a transfer of that date (“the May 1977 Transfer”), Joyce & Co Builders (Crowell Hill) Limited (1) (“the common vendors”) transferred to William James Shuttlewood and Janet Ann Shuttlewood (2) “the plot of land shown and edged with red on the accompanying plan TOGETHER WITH the house and garage constructed thereon or on some part thereof and known as Plot 24 Fieldhead Bourne End in the County of Buckingham being part of the land comprised in the Title above referred to”. The plan attached to this Transfer shows the boundaries of the plot marked by a red line. The disputed boundary is shown as a diagonal line which cuts across the frontage of the adjoining property (Number 24). The plan is based on the estate layout plan dated May 1976 and numbered 560/19/2388. The scale is 1:500. The boundary line terminates on the hammerhead at a short distance from the extreme south-western corner of the hammerhead, where the pavement adjoins the front boundary of the surrounding dwellings. It echoes the chamfered shape which I have referred to above. The plan appears to have been signed by both vendor and purchaser. Furthermore, the May 1977 Transfer includes an express right of way at all times for all purposes and with or without vehicles over part of the driveway of the adjoining property known as Plot 23 Fieldhead. This plot is now known as number 22 Fieldhead Gardens, and is situated immediately to the north of the Respondent’s property as I have described above. The existence of this express right of way recognises that the Respondent’s access to the garage from the roadway would only be possible if there was access over the neighbouring property to the north.
8. The adjoining plot, known as Plot 25 Fieldhead (now known as Number 24 Fieldhead Gardens) was transferred by the common vendor (1) to Richard Arthur Ing and Susan Carol Ing (2) by a transfer dated 13th June 1977 (“the June 1977 Transfer”) It will be apparent, therefore, that the transfer of Plot 24 (i.e the Respondent’s property) was first in time. The parcels clause reads as follows: “the plot of land shown and edged with red on the accompanying plan TOGETHER WITH the house and garage constructed thereon or on some part thereof and known as Plot 25 Fieldhead Bourne End in the County of Buckingham being part of the land comprised in the Title above referred to”. The plan attached to the June 1977 Transfer is the same as the plan attached to the May 1977 transfer, and also appears to be signed by the parties thereto. It shows a chamfered boundary between Plots 24 and 25 which, as far as one can tell, is exactly the same as that delineated on the May 1977 Transfer of the Respondent’s property.
9. The filed plan relating to number 23 – registered as BM54835 – does not show an entire completed estate. In particular, it does not show a finished hammerhead because it does not show the line of the pavement which surrounds the carriageway. As a result, the chamfered line running in a north-easterly direction towards the hammerhead does not make it clear where it joins the public road. By contrast, the filed plan relating to number 24 – BM54948 – shows the chamfered line running into the exact south-western corner of the pavement surrounding the hammerhead. This filed plan seems to date from December 1988. For what it is worth, therefore, it would appear that neither the boundary line contended for by the Respondent, nor that shown as the Applicant’s primary boundary line coincides exactly with the filed plans.
10. It is common ground that the drive originally constructed to serve the garage of number 23 was in a different position to that which it currently occupies. As I have said, the Respondent laid a new drive in 2002, and the eastern extremity of that drive runs in a straight line from the eastern corner of the garage to the hammerhead pavement. As originally constructed, the drive ran due north for a short distance and then turned so as to run diagonally towards the hammerhead. In other words, the drive had a dog leg. This can be seen very clearly in the photograph dated June 1987 which has been produced by the Applicant (see page 107 of the Bundle). As it happens, the line of the original drive means that the inspection cover which I have referred to is outside of the area of the drive, to its east, that is on the side of number 24. However, Mr and Mrs Shuttlewood said that shortly before they took possession of their house, in May 1977 they went down to the site where they saw the builder constructing the drive. As originally pegged out, the concrete was going to be poured so that the eastern edge of the drive was indeed in a straight line from the eastern corner of the garage up to the hammerhead. In other words, the drive would not have had a dog leg shape, but would have run in a straight line but diagonally towards the hammerhead. According to Mr and Mrs Shuttlewood, they did not regard this arrangement as convenient, since it would mean that any vehicle would be entering or leaving the garage at an angle. Accordingly, they asked the builder if he would alter the line of the drive, so that the section of drive immediately in front of the garage was in a straight line, with the turn towards the hammerhead beginning a few metres to the north. The builder agreed and in the event the drive was laid in the position shown in the photograph I have mentioned. As it happens, Mr Mussett, the Applicant, did not come on the scene until the late 1980s, when his mother purchased the property. Accordingly, he was not in a position, through Counsel, to challenge this account of the drive to any great extent. It must be noted, however, that this conversation was not referred to in either of the Shuttlewood’s witness statements, although Mr Shuttlewood does say in his statement that the developers confirmed to him that the boundary between the two plots was a straight line from the corner of his garage to the north-eastern corner of the drive. He also says in the statement that he asked the builders to lay turf on the area of the land which would have fallen within 23’s boundary if the dogleg had not been built. Notwithstanding this failure to mention the re-alignment of the drive in the witness statements, I consider that the Shuttlewoods were telling the truth concerning this conversation, and therefore I find as a fact that the original intention was to locate the drive along a straight line in accordance with the proposed boundary, no doubt in accordance with the line shown on the May and June 1977 Transfers.
11. I shall now turn to the evidence given by Mr Ash, the Chartered Surveyor who prepared a detailed boundary report in March 2005, and whose plan was used as the basis for the application for the Determined Boundary. Mr Ash prepared, in all, six plans. First (plan no. 1) was a site survey plan depicting the details as observed on site. Plan no. 2 was a combined plan, showing the surveyed detail with the current Ordnance Survey Pro-map detail matched into it. Plan no. 3 shows the resultant plan when plan no. 2 is matched with a scanned image of the extract from the plan attached to the Applicant’s Land Certificate, being drawing number 560/19/2388. Mr Ash says that this exercise was not as helpful as he had hoped it might be. He also notes that the western red demise line clearly extends out from number 24 perpendicularly before slanting towards the pavement, which he says conflicts with other copies of the layout plan that portray a straight diagonal chamfer to the property extent. He is quite right to identify this conflict. The plan bound up within the Land Certificate is the layout plan for the estate also used as the basis for the transfer plan. However, the Land Certificate plan is not signed by the parties and is not exactly the same as the plan used in both the May and June 1977 Transfers. In particular, and crucially, the common boundary between numbers 23 and 24 does not run in a straight line from the corner of number 24’s garage to the hammerhead pavement. Instead, it follows the line identified by Mr Ash, that is running perpendicularly north and then turning north-east. The Land Certificate closely matches, therefore, the actual drive as it was built, but not the line of the boundary as identified in both transfers.
12. In relation to plan no. 4, Mr Ash also identifies the central difficulty with the mapping, namely that the features on the map do not coincide with the features of the estate as built. In particular the position of the hammerhead and pavement as shown on the layout plan is different from the relative positions as actually built. Mr Ash creates composite plan 4, which is combination of plan 2 and a scanned image of the current Land Registry filed plan relating to BM54948, 24 Field Head Gardens. As I have already indicated, this filed plan shows the boundary between the two properties terminating at the exact south-western point of the pavement surrounding the hammerhead. That of course is not consistent with either of the transfer plans. In his report, Mr Ash notes that “there are inconsistencies between record drawings and a history that identifies and describes these particularly with reference to the development of layout plan drawing number 560/19/2388, scale 1:500 and the title plans produced by the Land Registry for both numbers 24 and 23 Field Head Gardens”.
13. Using these four plans, Mr Ash seeks to identify the exact line of the boundary in plan no. 5. He identifies the difficulties in the exercise. First, he says that the dispute emanates substantially from the fact that the garage extensions to the entire block of houses were built on the opposite sides to those intended and as shown on the design plan 560/19/2388. He says that if the garage for number 23 had been built on the right as one views the building frontage (i.e. on the west side) a curved access drive would have permitted comfortable access, as indeed is depicted on the layout plan. In the event, however, the garage was built on the eastern side, that is immediately adjacent to the party wall with number 23. However, he concludes that the starting point for the Determined Boundary ought to be to the west of the existing garage corner and the very near edge of the existing block paving. This point is agreed between the parties. Next, Mr Ash seeks to determine the boundary end point – point Y on plan no. 5. He repeats that it is difficult to recognise the as-built arrangement of the buildings and access road with the design layout plan, given that the features as-built do not coincide with their position as shown on the plan. He determines the end point by this method. Recognising that the plot of number 24 is not rectangular because of the chamfered corner, it is his task to decide how long the remaining frontage should be. He estimates that the total width of the plot, if rectangular, would be 6 metres. On his interpretation of the plans, and the other material I have referred to, he determined that the extent of the chamfer was 1.5 metres, leaving a frontage for number 24 of 4.5 metres. It was on that basis that he identified the line X-Y shown on the plan no. 5. This places the end point (Y) slightly to the west of the south-western corner of the pavement: west, therefore, of the line shown on number 24’s filed plan. The result is that the entirety of the inspection chamber is on number 24’s side of the boundary and a substantial segment of the block paving constructed by the Respondent would also be on the wrong side of the line.
14. In cross-examination, Mr Ash was asked by Mr Clark, Counsel for the Respondent, whether, in deciding where to place point Y, he had taken into account the position of Number 23 and access to its garage. He replied that he was instructed by the owner of Number 24 to identify the boundary, and he had not therefore taken into account any matters relating to Number 23. It was pointed out to him that his line X-Y would effectively prevent the owners of number 23 from obtaining any vehicular access to their garage from the public highway. He accepted that this was the case but insisted that this did not alter his view as to the correctness of point Y.
15. In order to determine the exact line of a legal boundary, the primary task is to construe the title documents. In this case, the principal title documents are the May and June 1977 Transfers, together with their plans. Those plans have to be construed in the light of such physical features as may have existed at the time and other associated material. If there is any ambiguity it is possible to look at extrinsic evidence. However the underlying purpose of the exercise is to seek to ascertain, from the documents and the other available material, what the intention of the parties were. The parties, in this case, would have been the common vendor and the Shuttlewoods in respect of Number 23, and the common vendor and the Applicant’s predecessors in title in the case of Number 24. It seems to me that the purchasers of Number 23, and indeed the vendor of Number 23, cannot possibly have intended that the garage would be inaccessible by motor vehicles. As I have said, the May 1977 Transfer contains an express right of way over the adjoining property Number 22, which indicates that the question of access to the garage was very much in parties’ minds at the time. It accordingly seems most unlikely that the boundary between Number 23 and Number 24 could possibly be along the line X-Y as contended for by Mr Ash. If indeed that is the result of Mr Ash’s interpretation of the plans, I would suggest that his interpretation is clearly incorrect. Mr Ash, does not, to his credit, contend that his interpretation is the only interpretation. He says that has tried to do the best that he can on the basis of the plans and other material bearing in mind the discrepancy between the as-built environment and the position as shown on the layout plans. He accepts that the plans are difficult to interpret for that reason, and has had to use his judgment to reconcile the differences. However, in carrying out this exercise he has not taken into account the critical question of access to the garage, and he has not, I believe, paid sufficient attention to the northern terminus of the boundary line as shown on both the May and June 1977 Transfer plans: this terminus is clearly set to the east of the right angle formed by the south-western corner of the pavement. With respect to him, therefore, I do not consider that his interpretation of the plans is the correct one. I therefore reject plan no. 5 as delineating the exact line of the boundary. I also reject plan no. 6 as delineating the exact line of the boundary. Although this appears to equate to the layout of the drive as it was actually built in 1977, it does not accord at all with either of the transfer plans. These plans show the boundary as drawn in a straight line from the north-eastern corner of number 23’s garage to the pavement, and although the dog leg configuration is shown on the plan attached to the Land Certificate of Number 24 it is wrong.
16. However, it is possible for me to identify the exact line of the boundary, based on all the material which I have mentioned, and also the evidence from Mr Mussett which was as follows. He said that the original drive to number 24, built in the dog leg configuration, “intersected the pavement at the midpoint of number 23’s Thames Water manhole cover. The physical location of these manholes has remained unaltered since before the start of the dispute.” Mr Mussett was in fact referring to the Stop Valves, which are indeed situated within the pavement to the north of Number 24. There are shown clearly on the various plans prepared by Mr Ash. I did not understand this evidence to be challenged. If this is correct, this suggests to me that the original drive would have terminated at this point. Mr Shuttlewood gave evidence, which I have referred to, that the builders put a dog leg into the drive in order to meet his requirements. However, there is no suggestion that the end point of the drive would have been moved away from the actual boundary. Accordingly, it must be inferred that the north-eastern point of the original driveway rested on the exact boundary line between the two properties. If a straight line is drawn from the north-eastern corner of Number 23’s garage (or Point X) to the point on the pavement which I have referred to – by the Stop Valve – that seems to me to represent the true boundary between the two properties. It may be noted that Mr Ash’s drawing number 6 places the end of the boundary at precisely this point, based upon the drawing within the Applicant’s Land Certificate. Furthermore, this line broadly agrees with the plans attached to both the May and June 1977 Transfers. As I have indicated, this shows that the north-eastern tip of number 23’s boundary is a short distance to the east of the right angle in the pavement at the south-western corner of the hammerhead. Although of course the exact measurements are in dispute and the scale of the plan is very small, the general shape of the boundary would seem to accord with the findings that I have made.
17. I therefore conclude that the true boundary between title number BM54835 and BM54948 follows a line drawn from the north-eastern corner of the garage to number 23 to a point along the northern boundary of number 24 adjacent to the Stop Valve in the pavement. This point can be seen on Mr Ash’s Drawing Number 8715-6 being the northernmost point of the red line drawn thereon.
18. I appreciate that this line may satisfy neither party. It runs across the Inspection Chamber, although by virtue of the grant at clause A of the June 1977 Transfer the Applicant does have the right to enter the curtilage of No 23 in order to inspect, maintain and repair the sewer served by the chamber. Equally, it does not coincide with the existing block paving drive. However, it must necessarily provide sufficient vehicular access to the garage of No 23, since it is in the same position as the original drive. In any event, it is the correct boundary line, and I so determine.
19. However, the Respondent additionally relied on the doctrine of adverse possession in resisting the Applicant’s claim. She contended that, even if the legal boundary lay in the position put forward by the Applicant, nevertheless she and her husband had been in adverse possession of such part of the area occupied by the new drive as fell to the west of that boundary line. Since I have decided that the true boundary line is not in the position contended for by the Applicant, the adverse possession issue only relates to the small segment of land which lies between the legal boundary as determined by me, and the eastern edge of the new drive. The Shuttlewoods gave oral evidence as to the facts they relied on, and they also produced some letters supporting their case. The Applicant and his father both gave oral evidence before me. My findings are based on the evidence which I heard, principally the oral evidence.
20. The Respondent’s argument was based on the following basic facts. In 1988 the Applicant’s mother, who was then the owner of No 24, and the Shuttlewoods, were in dispute over the true boundary line. It is not entirely clear how the dispute arose – it may have been related to the parking of cars between the two houses – but it was serious enough to involve solicitors on both sides. There was a site meeting which was attended by each side’s solicitor. Mr Shuttlewood gave evidence about this meeting, and he said that on this occasion Mrs Mussett agreed the boundary to be in the position asserted by the Respondent. Neither of the solicitors was called to give evidence, and sadly Mrs Mussett has died, so his was the only evidence of this meeting. However, I do not think any formal agreement can have been made at this time, having regard to the terms of the letter dated 27th April 1988 from his solicitors Kidd Rapinet to Mr Oscroft, Mrs Mussett’s solicitor. A copy of this letter has been produced, and the final paragraph reads as follows:
“We call upon your client therefore to concede that the boundary line is not the line of the concrete drive but is a straight line from the “yellow mark” to the corner mark that we identified at our site meeting.”
21. Unfortunately, there is no record of either of these marks and the Shuttlewoods were unable to tell me where they were placed. However, this correspondence does demonstrate that as long ago as 1988 the Shuttlewoods were claiming that the concrete drive did not mark the boundary, which according to them was in a straight line and not a dogleg. The letter demonstrates that no final agreement can have been made at the site meeting. However, whether or not Mrs Mussett formally agreed at that stage that the boundary did not follow the eastern edge of the concrete drive, it seems that the dispute effectively came to an end at that time. It appears that within a few months of the meeting Mrs Mussett had placed some stones in the disputed area. These can be seen in the photographs at page 204 in the bundle. The photograph of the gold-coloured car can be dated with some precision, namely to the summer of 1988: I accept the evidence supplied by Mr Hyland in the form of a written statement and copies of passport entries. These stones are in a rough line, running from the large stone at the northern tip of No 24’s land back towards the house and, perhaps importantly, just to the east of the Inspection Cover. Subsequently, a rough hedge was planted in the grassed area in front of No 24. Mr Mussett believed that his mother planted it, whilst Mr Shuttlewood thought that Mr Mussett had planted it after 1994. Whatever the date of planting, the line of the hedge is clear from the photographs – see in particular those at page 199, 207 and 218. The hedge was planted roughly along the same line as the stone markers, and subsequently wooden sleepers or posts were also placed on the ground – on the western (No 23) side – tight up against the hedge line. Mr Mussett said that he did this in order to retain the bark chippings that he laid on the ground on his side of the hedge. Whatever may have been the motivation for the placing of the stones, the planting of the hedge, and the laying of the wooden sleepers or posts, it is apparent that after 1988 there was a de facto division of the disputed land in front of No 24.
22. The stones were placed in 1988. The date of the planting of the hedge is less clear. Mr Mussett says that this occurred before 1994 and he did not plant the hedge himself: the Respondent says it was after Mr Mussett acquired No 24 in 1994. It seems to me that Mr Mussett would remember if he had planted the hedge, and accordingly I find that that the hedge was planted by Mrs Mussett. It seems likely that she would have done this soon after the placing of the stones in 1988: I find that the hedge was in place by 1990. In his witness statement, Mr Shuttlewood stated that he has always maintained the area of grass on “his” side of the stones and hedge, that he and his wife regarded the stones and hedge as forming the boundary, and that they maintained their side of the stones and hedge. He never saw Mr Mussett on his side of the hedge and did not see him clipping the hedge on No 23’s side. He also replaced the manhole cover, which had become dangerous and one of his visitors had suffered injury as a result. In his evidence, Mr Mussett said that he had continued to cut the hedge on both sides, sometimes leaning over the top of the hedge and sometimes actually going round onto the other side. In either event he went round onto the other side and cleared away the clippings. His father’s evidence supported this, to the extent that he said that his son cut the Respondent’s side of the hedge but from his (No 24’s) side. The Applicant denied that the hedge, stones and wooden poles were intended to mark the boundary. He said that his mother had decided not to exacerbate the dispute by doing anything which might antagonise the Shuttlewoods. She never formally accepted that they were right about the line of the boundary, but in effect left the dispute in abeyance. Mr Mussett himself adopted the same view.
23. I must decide whether the Shuttlewoods can establish that they have barred the Applicant’s title to the small segment of land which lies between the true boundary and the eastern edge of the new drive laid by the Shuttlewoods in 2002. Before making the necessary findings of fact, I shall set out the relevant legal principles. In essence, a squatter must demonstrate both (a) factual possession and (b) an intention to possess. Slade J (as he then was) in Powell v McFarlane (1977) 38 P & CR 452 at 470-71, in a passage expressly approved by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 436, defined factual possession as follows:
“Factual possession signifies an appropriate degree of physical control. It must be single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several person jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of that land at the same time. The question whether acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed…Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”
24. As to an intention to possess, Slade J, in Powell v McFarlane (at page 471-2), formulated the requirement as being an
“intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”
He continued as follows:
“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts wil treat him as not having had the relevant animus possidendi and consequently as not having dispossessed the owner.”
25. As I have said, after 1988 there was a de facto division of the grassed area at the front of No 24. This is agreed by both sides. Although Mrs Mussett did not formally accept the boundary line claimed by the Shuttlewoods, in my judgment she tacitly accepted it by her conduct in placing the stones where she did and subsequently by planting the hedge. For neighbours in the position of the Shuttlewoods, it would be reasonable to infer that the boundary issue was settled, since Mrs Mussett had herself chosen to create a straight line physical demarcation, contrary to her prior contention that the boundary followed the edge of No 23’s doglegged drive. It seems to me entirely possible that in this case the parties reached a boundary agreement by conduct. I appreciate that there was no written, formal acceptance by Mrs Mussett of the “new” boundary, but her actions may speak louder than words. As cases such as Neilson v Poole (1969) 20 P & CR and Joyce v Rigoli [2004] EWCA Civ 79 (C.A.) have emphasised, a boundary agreement can be effective without any formal document having been executed. There is a strong public policy incentive for such agreements, however informal, to be given effect to, and in my judgment that approach should be adopted here. I therefore find that conduct of Mrs Mussett, in conjunction with the assertion by the Shuttlewoods that their boundary ran in a straight line and did not follow the shape of their drive, created a boundary agreement by which her successor in title is bound.
26. Alternatively, I find that the Shuttlewoods have been in possession of the relevant land since 1988. In 2002 of course they built the drive, which was an unequivocal act of possession. Prior to that time, however, they were in factual possession of the land, insofar as the nature of the land allowed them to be so. It must be borne in mind that the land was effectively enclosed within their front garden, albeit that there was no barrier to entry from the front. There was little that they could do – other than erecting a fence and gate – to assert greater physical control of land that they actually occupied. I accept Mr Shuttlewood’s evidence that he tended the hedge and grass on “his” side. He replaced the cover to the Inspection Chamber. He says that he never saw Mr Mussett cutting the hedge on his side or raking the cuttings. There is a conflict of evidence on this point. However, Mr John Mussett saw his son cutting the hedge on both sides, but by leaning over from No 24’s side. Furthermore, the Applicant was at pains to point out that he did not want to provoke the Shuttlewoods, that the boundary was a “sensitive” issue, and that he tolerated the physical boundary as it was. It seems to me that it is very unlikely that the Applicant would have made a habit of going on to the Shuttlewoods’ drive in order to cut the hedge and rake the cuttings. It is perfectly possible that this may have been done a few times over the course of the years, but I do not accept that it was done regularly twice a year over the period since 1994. First, it is improbable that he would not have been seen by the Shuttlewoods on at least one occasion. Secondly, it would be a provocative act repeated many times, which is quite inconsistent with the attitude which he and his father frequently emphasised to me in evidence, namely that they did not wish to antagonise the Shuttlewoods regarding the boundary. Although I have regard to the words of Slade J in Powell v McFarlane that “the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession” I do not consider that the Applicant, or his mother, remained in possession of the land on the far side of the stones after 1988 and the hedge after 1990. Although the Applicant may have occasionally entered the Shuttlewoods’ land to rake the hedge cuttings, this has to be set against the de facto abandonment of the disputed land by creating a physical boundary feature.
27. I am also satisfied that the Respondent had sufficient animus possidendi. The Shuttlewoods had made clear in 1988, through their solicitors, that they claimed ownership of the land up to a straight line boundary which was actually marked out on the ground at the site meeting in April 1988. I infer that this line must have been close to the line of stones placed by Mrs Mussett and ultimately the hedge planted either by her or her son. As far as the Shuttlewoods were concerned, the boundary dispute was to all intents and purposes at an end, and Mrs Mussett appeared to have accepted that the line of the boundary was to the east of the dogleg in the drive. There was nothing more they could do to assert their claim against the paper owner.
28. The one element of uncertainty is the precise area occupied by the Shuttlewoods, being the land on the western side of the boundary features (the stones, hedge and wooden post) installed by the Applicant and his mother. It appears from the photographs – see for instance page 218 – that the edge of the new drive is within that line, namely to the west of the line of the former hedge. In the circumstances, I am prepared to assume that the area of land to which the Respondent has acquired by adverse possession is co-terminous with the eastern edge of the new driveway.
29. I am therefore proposing to direct the Chief Land Registrar to note that part of the boundary between these two titles has been determined in accordance with section 60 of the 2002 Act. The boundary shall be along the broken blue line as shown on the Applicant’s plan 8715-5, running north-easterly from Point X until it reaches the pavement, and marked on the ground by the eastern edge of the block paving drive which serves No 23 Fieldhead Gardens. I appreciate that this outcome will be very disappointing to the Applicant. My sense is that this dispute would not have arisen, to this extent at least, if the Shuttlewoods had discussed the construction of their new drive with Mr Mussett in advance. He seems to have been presented with a fait accompli and, in view of the history, and the conscious effort made by his mother and himself to avoid confrontation with the Shuttlewoods, he may have felt that they were taking advantage of this forbearance. However much sympathy I may feel for his situation, however, I consider that the Shuttlewoods are entitled to this Order.
Dated this 16th day of July 2007
By Order of The Adjudicator to HM Land Registry