PROPERTY CHAMBER

FIRST –TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO 2013/0353

 

BETWEEN

 

 

(1)    DEREK STEWART MAY

(2)    PHILLIPA MAY

 

Applicants

and

 

(1)    MICHAEL JOHN STARR

(2)    LOIS MARY ANN NIBLOCK

 

Respondents

 

Property address: 9 and 10 Beechcroft, Ashtead, Surrey KT21 2TY

Title numbers: SY296665 and SY720648

 

Before Judge McAllister

Alfred Place , London

1 ^st and 2 ^nd July 2014

 

 

Representation: Kevin Leigh of Counsel appeared for the Applicants; David Holland QC appeared for the Respondents

 

 

DECISION

 

 

Introduction

 

 

1. The Applicants and the Respondents are neighbours. The Applicants are the joint freehold owners of 10 Beechcroft, Ashtead (‘Number 10’); the Respondents are the joint freehold owners of 9 Beechcroft, Ashtead (‘Number 9’). Both titles are registered. This dispute relates to the boundary between the two properties.

 

2. By an application dated 12 December 2012 the Applicants applied for a determined boundary relying on a plan dated March 2012 prepared by David J Powell Surveys Limited (‘PSL’) . As explained more fully below, Mr Powell, who gave evidence, put forward an alternative boundary line in his report (‘the Blue Line’) the effect of which, in simple terms, would be to move the boundary further into Number 9 (most noticeably at the front of the properties) than the line projected from the boundary fence on the ground. Not least because the Blue Line does not match any of the existing features (and indeed passes through Number 9’s extension) the Applicants’ preferred line (subject to one point only) is the line on the March 2012 plan. I will refer to this as the Red Line.

 

3. The Red Line matches or follows several of the existing features on the ground. The properties are separated by concrete post, concrete gravel board and timber panelled fence which now runs from the end of the extension at Number 9 northwards but stopping some 4 metres from the back fence. South of the extension is a gate and a sleeper retaining wall running down to the road. The Red Line follows the line of the fence and is projected northwards to point A (at the northern end of the gardens of both properties), then effectively follows the south western side of a retaining wall along the extension and then close to the north eastern side of a retaining sleeper wall at the front of the property. This places the sleeper retaining wall on Number 9’s land.

 

4. On the Respondents’ case the fence has been in the same position since, at the latest, the early 1980s. Prior to the Respondents’ extension, which was built in 2008, the fence continued southwards in a straight line to a gate leading to passage way at the side of the house at Number 10.

 

 

5. The Respondents contend that the true boundary between the properties runs along the red dotted line shown on the plan dated 16 January 2013 prepared by John Maynard Boundaries Limited, which for ease of reference I shall call ‘The Black Line’. Two alternative boundaries are explored, but, in the event it is the Black Line which is the line contended for by the Respondents.

 

6. The importance to the parties of their respective cases as to where the true boundary lies arises in the following way. The front of Number 10 is on higher ground than the front of Number 9, sloping down to the road. Prior to the recent works carried out by the Respondents, there was already a subterranean retaining wall (‘the Old Wall’) running from the gate at the side of Number 10 to a point where, now, the decking to the back and side of Number 10 stops. The Old Wall consisted of a single skin wall constructed of standard 105mm bricks laid end to end. In September 2008 the Respondents replaced the Old Wall with a new retaining wall (‘the New Wall’). The New Wall is the same length as the Old Wall, namely some 9 metres long, but is 110mm wider. The width of New Wall is 220mm. It is 900mm in height. The Red Line puts all but 15mm of the New Wall on Number 10’s side of the boundary.

 

7. It is also the Applicants’ case that the New Wall is structurally unsound. They have obtained a report from a structural engineer dated October 2010 which concludes that the New Wall does not comply with the relevant codes of practice and needs to be strengthened or rebuilt. It is said to be over- stressed by a factor of 2.2. The Respondents’ contest these conclusions. I am not concerned with this point, but it is clear that if the Applicants’ claim relating to the boundary is correct, the Respondents have trespassed on to their land. There may be further proceedings relating to the trespass and alleged damage.

 

8. The Respondents’ Black Line runs in a straight line from the angle iron to the north east corner of the Wall (Old and New) then turns to run along the east face of the Wall, then continues in a straight line to strike the road frontage at a point 0.109m to the east of the sleeper wall.

 

9. The fundamental disagreement (and the cause of the dispute), therefore, between the parties (and their experts) relates to whether the New Wall (and indeed the Old Wall) lies wholly or in part on the Applicants’ side of the boundary, or whether it lies on Respondents’ side of the boundary and is therefore part of Number 9.

 

Determined boundaries

 

10. The provisions relating to boundaries of registered land are set out in section 60 of the Land Registration Act 2002. Section 60(1) provides that, as is well known, the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless determined under this section. Section 60(2) states that a general boundary does not determine the exact line of the boundary. Section 60(3) provides that rules may make provision for the determination of the exact line of the boundary.

 

11. The relevant rules are set out in Part 10 of the Land Registration Rules 2003. In particular, Rule 118 provides that (1) a proprietor of a registered estate may apply to the registrar for the exact line of the boundary of the registered estate to be determined and (2) an application under under paragraph (1) must be made in Form DB and be accompanied by (a) a plan, or a plan and 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.

 

12. Further requirements regarding applications for determined boundaries can be found in the Land Registry Practice Guide 40 (May 2014 edition). The plan supporting a determined boundary application must conform to strict requirements: in particular it must be to preferred scale no smaller than 1:200, must be accurate to 10mm, and must be taken from at least two defined points on surrounding permanent physical features such as the corners of buildings.

 

13. In this, as in other cases referred to the Tribunal, the primary concern of the parties is to establish the line of the boundary, whether or not it follows the exact line of the determined boundary applied for. And, as is again often the case, the issues between the parties have expanded and developed over the course of the proceedings.

 

 

 

 

 

Establishing the boundary:general principles .

 

14. Number 9 and Number 10 were built as part of a development in the early 1960s. Number 9 was transferred first. The starting point, therefore, is to establish what land was conveyed to the Respondents’ predecessors in title. The transfer refers to the ‘land shown coloured red and numbered 9 on the accompanying plan’. It is accepted by both parties that, other than indicating that the eastern boundary of Plot 9 was a straight line, no further assistance can be drawn from the this plan (or from the plan attached to the transfer of Number 10, which was taken from the same development plan). It is also accepted that the only original feature which remains is one iron angle post in the north eastern corner of Number 9. This, of itself, is not sufficient to allow the boundary to be determined. It is, of course, permissible to have regard to other terms in the original transfer document in so far as these may assist: I will return to this point below.

 

15. The position relating to the admission of extrinsic evidence in relation to conveyances of land was considered in some detail by Carnwarth LJ (as he then was) in Liaquat Ali v Robert Lane [2007] 1 P&CR 26. The general rule that such evidence is not admissible to construe contracts is applied in a modified form in conveyances of land for the reasons set out by Megarry J in Neilson v Poole (1969) 20 P&CR 909: ‘…. in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey…the court cannot simply say that the boundaries are uncertain and leave the plot conveyed fuzzy at the edges, as it were…’

 

16. In that case the issue was, as here, the position of the boundary. The plaintiff succeeded on his primary case based on the construction of the conveyance. The court also held that, on the evidence, there was an oral agreement between himself and the defendant’s predecessor in title for the boundary in the same place, and that this agreement was in any event binding as a boundary agreement. Megarry J said this: ‘I must, too, bear in mind that a boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation and so is to be favoured in the law.’ He rejected the further argument that the agreement was void for want of registration on the ground that the agreement merely established, on the ground, what the conveyance showed: it did not supersede the conveyance but was merely ancillary to the agreement.

 

17. A boundary agreement can be made by adjoining owners at any time, and need not be in writing. The owners need not be the original owners (see Joyce v Rigolli [2004] EWCA Civ 79). In Burns v Morton [2000] 1 WLR 347, the original conveyance indicated an intention that the boundary walls or fences were to be party walls and maintainable as such. The defendant removed the fence and built a wall some six inches on his side of the line. The judge held that the boundary between the properties had by implied agreement been altered so that the new wall became the party wall. His decision was upheld on appeal. These cases are, of course, fact specific: in Hawkes v Howe [2002] EWCA Civ 1136 the Court of Appeal upheld the Recorder’s decision that the appellant had trespassed on his neighbour’s land by building a new garage and rejected the argument that, amongst other things, there was a boundary agreement between his predecessor in title and the respondent to the appeal.

 

18. The courts have also considered the position where there is no evidence of an agreement between the parties, but where it is said that the subsequent conduct of one or other is or may be relevant. It is axiomatic that the mere fact that a fence or other physical boundary is in a certain position, and has been in this position for many years, does not, of itself, mean (even where the original conveyance is itself unclear as to the boundary) that this is the line of the boundary. It is possible, of course, that an owner may erect the fence or boundary on another position than the true boundary. This is what is asserted here by Mr Starr.

 

19. But subsequent conduct is not irrelevant. In St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973]1 WLR 1572 (which was a case involving easements) Megarry J also said this: ‘where for some 25 years or more the parties have acted on the footing that the dispute strip had passed to Mr Clark, then even though the full period of limitation had not run (the period for a spiritual corporation sole is 30 years) this seems to be a good reason for tending to construe the 1945 conveyance as having done what the parties appear to have treated it as having been done…’

 

20. In Liquat Ali Carnwarth LJ, having reviewed the more recent authorities, said : ‘In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.’ He added that the intention of the parties refers to the original parties but added that the comments made above by Megarry J should not be read as being confined to long usage by the original parties. The possibility that ‘ evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary’ might be a permissible extension of the relaxation of the strict rule of construction was raised and not decided.

 

21. Liquat Ali has been followed in a number of cases: Haycocks v Neville [2007] 1 EGLR 78, Bradford v James [2008] EWCA Civ 837 and Piper v Wakeford [2008] EWCA Civ 1378. In Haycocks, the Court of Appeal held that the trial judge was entitled to have regard to later plans and the conduct of the parties in reaching her own conclusion as to where the boundary lay, and in rejecting both experts’ views. In that case, too, the plans attached to the conveyances were of little or no assistance. The Court held that where disputes arise as to small areas of land, and the plans are difficult to follow, the trial judge is entitled to look at all the available evidence.

 

22. Finally, there are two other ways in which boundaries can become established (both relevant,or possibly relevant, to this case). The first is by the doctrine of estoppel. As is well known, if a party takes possession of a piece of land under an expectation, created or encouraged by and with the consent of the true owner, and acts to his detriment by so doing (whether by incurring expenditure or otherwise) the true owner will not be able to stand on his rights, and claim the land to be his. The second is the law relating to adverse possession.

 

23. One of the fundamental functions of the doctrine of adverse possession is that it avoids protracted uncertainty as to the where title to land lies. In the St Edmundsbury case Megarry J observed that: ‘ Furthermore, in these problems of application the passage of time often brings its own cure: the passing of 12 years may stifle an incipient boundary dispute…’ . The function of adverse possession as a means to determine boundaries is recognised and preserved in the new provisions set out in the Land Registration Act 2002: see paragraph 5(4) of Schedule 6 to the Act. Adverse possession can be made out where for at least 10 years the applicant reasonably believed that the land in question was his, and the land was adjacent to his land, and the exact line of the boundary has not been determined under section 60.

 

24. It is right to say that there may be cases where the true owner makes it clear that there was no intention to abandon the disputed land, in which case no adverse possession arises. This is not, plainly, the case here: it is to my mind unarguable that, whether or not the fence erected in the early 1980s can be said to be the true boundary, or to have given rise to a boundary agreement, all the land to the east of that fence became part and parcel of, and was used with, the remainder of the land and garden of Number 10. Both Mr and Mrs Starr senior, and the Applicants’ predecessors in title conducted themselves at all times on the basis that the fence marked the boundary. Both the Old Wall and the New Wall, I find, were and are on the Number 10 side of the fence. It would, in my judgment, be difficult to find a clearer case of adverse possession than the present case (if, contrary to my findings, the boundary is not on the Red Line).

 

Summary of my conclusions

25. For the reasons set out below my conclusions are as follows: I find that the boundary follows the Red Line save that, for the avoidance of doubt, it follows the south western edge of the New Wall. As the calculation made by the Applicants’ expert places the boundary 15mm within the Wall, and as the tolerance for a determined boundary is 10mm, I will make an order which reflects this finding. It may be necessary to re-draw the plan relied on by the Applicants. I will leave this point to the Applicants and the Land Registry.

 

Relevant chronology and evidence

 

26. In April 1961 New Ideal Homestead Limited purchased land for development, which included the land on which Numbers 9 and 10 were built. Number 9 was transferred to Harry Herbert Smith on 3 July 1962. The purchaser covenanted at all times to maintain and keep in repair the fence on the sides marked ‘T’ within the boundary on the plan attached to the transfer, and covenanted not to erect any fence hedge or wall on the frontage of the purchased property nor on the sides thereof in front of the front wall of the house. In short, the fence dividing Number 9 from Number 10 was to be erected by the owner of Number 9, save that the area at the front of the property was to be left open. The transfer plan for Number 9 shows ‘MP’ at the intersection of each boundary and the development of the road frontage. This stands for marker post. It is common ground that no marker posts survive to this day, although, as explained below, it is Mr Starr’s evidence that he located the remnants of a hole where it might have been.

 

27. The Applicants make the point that the 1962 transfer makes no reference to the retaining wall, and places no obligation on the owners of Number 9 to maintain or support the Old Wall. The absence of any reference to the Old Wall, and, perhaps more relevantly, the absence of any covenant on the part of the owners of Number 9 to support the Old Wall (or any replacement) lends weight, on the Applicants’ case, to their argument that the Old Wall was always within the boundary of Number 10. The Respondents accept (and indeed assert) that they owe an easement of support to Number 10.

 

28. Number 10 was transferred on 28 January 1963 to Norman Douglas Houston. The same transfer plan was used. It therefore suffers from the same defects as the plan attached to the 1962 transfer.

 

29. Harry Smith sold Number 9 to Malcolm John Starr and Mary Starr (the First Respondent’s parents) a little less than two years after they purchased the property, and Mr Starr senior and Mrs Starr were registered as proprietors in March 1974. The First Respondent (Mr Starr) was then aged 20. Mr Starr lived at Number 9 between 1974 and 1979, and then again between 1982 and 1987. Together with the Second Respondent, he purchased the house and part of the land which formerly constituted Number 9 from his parents and they were registered as owners in May 2003. Mr Starr’s parents retained part of the original plot, and built a bungalow on it where they still reside. Mr Starr senior did not give evidence and did not put in a witness statement. He is said to be unwell and suffering from dementia.

 

30. Mr Starr gave evidence as to the location of the original fence, and its replacement with the current fence by his father in the early 1980s. The original fence was a chain link and iron angle fence. Mr Starr unearthed the remains of the original angle iron boundary fence post in the north east corner of Number 9. He also unearthed what he believes to be the supporting concrete for the south eastern marker post marked ‘MP’ on the original developer’s layout plan. Neither expert places much weight on this point.

 

31. Mr Starr’s evidence is that, when his father replaced the original fence, he moved the new fence westwards, away from the original boundary. This was because the old chain link fence had become entangled with a line of large conifers planted on the Number 9 side of the boundary. The conifers were removed but to avoid difficulty with their roots the new fence was moved further into Number 9. Mr Starr stated that his father adopted the same principle in relation to the northern boundary. The new fence there is erected in places 12 inches south of the original fence.

 

32. Mr Starr’s evidence is that the original iron and chain link fence ran along the top of the Old Wall. Again, he said, in order to avoid cutting through and possibly weakening the Old Wall, his father decided to place the new concrete posts of the new fence against the western face of the Old Wall. Thus, from that date onwards, on any basis, the Old Wall lay on Number 10’s side of the fence. Mr Leigh, for the Applicants, submits that this is an improbable version of events. The Old Wall (prior to the works done by Mr and Mrs Caller) was near or at the surface. It makes little sense to put iron posts into the wall without the risk of damaging it. If, as is alleged, the fence moved westwards, the old fence was, if not on top of the wall, then presumably on Number 10’s side of the Wall. It is difficult to see why Mr Starr senior would go to the trouble of moving this fence to the other side of the wall.

 

33. Other than Mr Starr’s evidence on this point, there is no evidence that the original fence was moved westwards at any time. There is no documentary or photographic evidence. Nor is there a statement from Mr Starr senior. I did not find Mr Starr a wholly convincing witness on this or other points, and I have reached the conclusion that I am not satisfied that the fence was moved, as Mr Starr claims, and in particular I am not satisfied that the original fence was other than abutting the western face of the Old Wall. Further, where Mr Starr’s evidence conflicts with that of Mr May, I prefer Mr May’s evidence.

 

34. In November 1988 John Mowlem prepared a survey plan (‘the Mowlem Plan’). It appears that this was prepared to deal with a proposed joint development between Mr Starr senior and his wife on the one hand, and the then owners of Number 8 on the other. The proposal, which never came to fruition, was to sell their respective properties to Mowlem to allow the redevelopment of the large area of land they occupied. The Respondents, in particular, relied extensively on the Mowlem Plan to support their case as to the true position of the boundary. This report was prepared, of course, after Mr Starr senior (on the Respondents’ case) replaced the original fence with the present fence, and can only, at best, show the historical physical features present in 1988. It is common ground that it does not show the Old Wall as such. It is also to be noted, of course, that this is a site survey of Numbers 8 and 9, and not of Number 10.

 

35. In July 1989 Mr and Mrs Caller purchased Number 10. Mrs Caller did not attend to give evidence, but she prepared a witness statement in which she sets out her recollection of events. At the time of their purchase the concrete post and wooden panel fence was already in place. In her mind there was no doubt that this was the boundary between the properties, and she stated that she would not have bought Number 10 if there had been any indication of any dispute. The Old Wall was, as I have said, on their side of the fence.

 

36. In 1999 Mr and Mrs Caller applied for planning permission to build a two storey extension on the western side of their house. The extension was built in 2001/2002. As part of the works carried out at the time, Mr and Mrs Caller altered the construction of the driveway to Number 10, and installed a retaining wall made of railway sleepers at the front of the two properties. The old concrete drive was replaced with pavers. In addition, decking was placed at the side of and behind Number 10, built up to the fence with Number 9. No issues were raised, in relation to any of the works, by Mr and Mrs Starr senior who were shown the various plans. No issues were raised by the Respondents when they purchased Number 9 in 2003.

 

37. It is the Respondents’ case in these proceedings that the sleeper retaining wall was placed on their land. The Red Line shown on Plan 1 places all but 10mm of the sleeper retaining wall on the Number 9 side of the boundary. The Applicants nonetheless seek to argue that the sleeper retaining wall is on their side of the boundary. They say that the sleepers have twisted slightly westwards (particularly at the top end) due to the work done by the Respondents in 2008. They also argue that, in any event, Mrs Caller placed the sleeper retaining wall in its present position, and that no objections were raised at any time by Mr and Mrs Starr senior over 10 years ago, and that accordingly either by estoppel or by a boundary agreement the boundary should lie on the western face of the sleeper wall. I do not accept these submissions, as explained further below.

 

38. The Applicants purchased Number 10 from Mr and Mrs Caller in January 2007. Some months later, in August 2007, the Respondents instructed Higgs Design to draw up plans for the erection of a single storey extension to the east of the existing house up to boundary with Number 10. The Applicants objected on the grounds, amongst other things, that the new building would span nearly 15 metres along the length of their property and their garden, and would require the removal of the existing fence. In the event, the Respondents were granted planning permission in October 2007.

 

39. The origins of this dispute can be traced to a letter written by the Respondents to the Applicants on 12 August 2008. The letter is in the following terms:

 

‘ The Party Wall etc Act 1996

Notice of Proposed Works – Party Structure Notice

As the owners of 9 Beechcroft which is adjacent to your premises at 10 Beechcroft we Michael Starr and Lois Niblock notify you that in accordance with our rights under section 2 of the Party Wall ect Act we intend to carry out building works

The proposed works are to excavate to lay foundations and construct a retaining wall for the proposed new single storey extension.

The proposed works do not involve special foundations.

We intend to start works on 25 August 2008 with your written agreement.

If you are content for the works to go ahead as proposed please complete, sign and return the attached letter within 14 days of receiving this letter.

………………………………………’

 

40. The Applicants signed and returned the attached consent form on 17 August 2008. The works to the side extension began on 27 August 2008: the New Wall was built between 15 September and 26 September 2008. It is common ground between the parties that the Party Wall legislation is not relevant to this dispute.

 

41. The extension and the New Wall were built by Mr Starr’s builder, a Mr Birchall. His estimate dated 9 August 2008 for the ‘side extension footings’ quoted, amongst other things, for ‘dig[ging] out under the neighbour’s boundary along the side of the new extension (300mm by 300mm) as per Plans.’ In an email written in March 2014 to Mr May, Mr Birchall stated that the New Wall was built entirely on Number 10’s side of the property. This was done so that Mr Starr’s extension could be as close to the boundary as ‘legality would allow.’ The work, he said, was done fully under Mr Starr’s drawings and instructions. Mr Birchell did not give evidence nor did he prepare a witness statement. Nonetheless, these documents lend some support, it seems to me, to the Applicants’ case. I should also add that Mr Starr accepted that the letter written by him on 12 August 2008 did not state that the Old Wall would be removed, and stated in evidence that, at the time of writing this letter, it was not his intention to remove the Old Wall.

 

42. There are issues of fact between the parties as to what was discussed regarding the construction of the New Wall. Mr Starr’s evidence is that before removing the Old Wall he had two conversations with Mr May. The first was inside Number 10. He says that he unfolded the construction drawings for the extension. Mr May was, he says, concerned about the small gap between the flank extension wall and the higher ground level of Number 10. Mr Starr said he would fill this gap with shingle, as indeed is the case.

 

43. The second meeting was over a weekend or early evening (there were no workmen on site). Mr Starr stated that he told Mr May that he had a duty to support the Applicants’ land and provided the Applicants with two options relating to the New Wall: either construct the new 215mm concrete wall alongside the Old Wall or remove the Old Wall and replace it with the New Wall, the excess 110mm of the New Wall being on Number 9’s side of the boundary. Mr May replied, according to Mr Starr, that he would prefer the second option.

 

44. Mr May’s recollection of events is very different. He agrees that he was shown some plans, but these, he said, were planning drawings, and that his concern was the height of the new extension at Number 9. He did not see the Higgs plans until these proceedings. The drawings he saw did not show any interference with the boundary. He believed that the flank extension was on Number 9’s land, and that the flank wall was the retaining wall. He did not at any point understand that a separate wall was to be built. Mr May was not aware of the removal of the Old Wall (he had been away for work over this period). He first became aware of the construction of the New Wall when it was nearing completion. His evidence is that he approached both Mr Starr and his contractor, and was told that they had a right to build the Wall because it was Mr Starr’s responsibility to provide support for Number 10. Once built, in any event, Mr Starr refused to consider removing it. Mr May denied that there had been a second meeting when he was provided with alternative options. If he had been told that a New Wall was to be built, and if he had understood where the Wall would be built, he would have refused consent.

 

45. Mr May’s further evidence is that, as soon as he became aware of what had happened, he spoke to Mr Starr, probably on three occasions before the first letter of complaint dated 17 December 2008. Mr Starr says that the first time he was aware of any dissatisfaction on the part of Mr and Mrs May was on receipt of the letter.

 

46. I prefer the evidence of Mr May on these points. I fully accept his version of events, and in particular I accept that he would not have consented to the removal of the Old Wall and its replacement without, at the very least, further investigation and assurances. I found Mr May to be a calm, measured and impressive witness. It seems to me that it is highly improbable that he would have embarked on costly and lengthy proceedings if, in fact, he had agreed to the removal of the Old Wall and the replacement of the New Wall on his land.

 

47. Mr Starr was asked about the position of the New Wall. He stated that he put the New Wall in exactly the same position as the Old Wall, save that, as the New Wall is wider by 110 mm, it came closer to Number 9. In other words, the eastern face of the New Wall is, on his evidence, in the same place as the eastern face of the Old Wall. As explained further below, I do not accept that this is the case. The New Wall is twice the width of the Old Wall, and the western face of the New Wall corresponds to the western face of the Old Wall.

 

48. The Respondents’ alternative case is that, by returning the agreement to this letter, and by remaining silent for some 10 weeks, the Applicants are estopped from disputing the position of the New Wall, if, contrary to their primary case, the Wall or any part of it is built on the Applicants’ land. The principal difficulty with this argument is that the consent given in the letter of 17 September was not, even on its face, consent to trespassing on the Applicants’ land.

 

49. Moreover, as stated above, I accept the evidence of Mr May that at no time prior to the construction of the New Wall did Starr make it clear that he intended to remove the Old Wall and replace with a New Wall on his land. I also accept that Mr May raised objections with Mr Starr before the letter of 17 December 2008.

 

50. The point was also made that the first time the issue of consent was raised by the Respondents was in a letter dated July 2012. But even here the position is unclear: it remains the Respondents’ case that the New Wall is entirely on their land. If this is correct, no consent would have been necessary. It also follows that the Respondents could not have relied on the Applicants’ consent: they believed they were building on their land. Finally the Respondents point to the fact that, on their case, there was a 10 week delay between the Wall being built and the first complaint. I do not accept that this is the case, but even if it were, this does not take the argument any further: there could not have been any reliance placed on the lack of complaints in this period since the Wall was already in place and the damage (if any) was already done. I do not therefore accept that the doctrine of estoppel can be prayed in aid by the Respondents to place the boundary on the east side of the New Wall.

 

 

 

 

Expert evidence

 

51. I heard evidence from Mr Powell FRICS on behalf of the Applicants and from Mr Maynard FRICS on behalf of the Respondents. Both prepared detailed reports and a joint statement. Both agreed, in evidence, that there is very little material upon which they can reliably plot the original boundary other than one iron angle post. Both agree that the original transfer plans are of little or no assistance, other than indicating that the boundary was intended to be a straight line. In the simplest of terms, Mr Powell assumed that the line of the fence was and is the boundary: Mr Maynard assumed that the Wall was and is on Number 9’s side of the boundary.

 

52. The fist survey, on behalf of the Applicants, was carried out by Lauren MacNair MRCS. She has now left PSL to go to Australia. As I have said her plan was used for the determined boundary application. Mr Powell has not altered this plan, save that he has added the alternative Blue Line. As Miss MacNair pointed out in her accompanying letter, the transfer plan to Number 9 (and indeed to Number 10) appears to be based on a proposed layout plan of the housing estate. There is no scale indicated on the plan. All that remains of the original fence is stump of the angle iron post at the north east corner of Number 9 and the north west corner of Number 10. para 8). It is also agreed that the front gardens were open plan, and not fenced.

 

53. Miss MacNair went on to state that, although the current fence is not the original fence, it is reasonable to deduce that the fence stands on the line of the original fence. The line on her plan therefore followed the north eastern face of the existing fence and runs along the south west edge of the decking on Number 10’s property. Her conclusion is that the New Wall lies almost totally on the Number 10 side of the boundary and all but a maximum of 10mm of the sleeper retaining wall stands, on this analysis, as I have said, within the boundary of Number 9.

 

54. I have already mentioned that Mr Powell puts forward an alternative line for the boundary, the Blue Line. The difference is that this line is parallel to the houses themselves, and is line which, absent any other features, and taking the angle post as a starting line, would have been drawn by him. The blue line is further to the west of the red A-B line: it would cut through part of Number 9’s garden and extension, and would end up to the west of the sleeper wall (so as to put the sleeper retaining wall in Number 10’s property).

 

55. However, he is clear in his evidence that he prefers the Red Line because this provides a straight line, roughly parallel to the houses, and because it accords with and is parallel to the features it runs past or crosses over. Mr Powell accepted, as he had to, that he only had one fixed point, the angle iron, but stated that he relied on assumptions, factual evidence, and many years experience. His line does not deviate to accommodate the Wall.

 

56. Mr Powell initially drew some support form the plans prepared by Mr Higgs. Mr Higgs located the boundary 3950mm from the existing flank wall of Number 9 ‘to the face of the fence and retaining wall’. Adding 75mm for the width of the fence, meant that the boundary was 4025mm from the flank wall. The width of the new extension is 3840mm. It would therefore follow that the boundary should be 185mm from the flank wall of the new extension (ie 4025mm less 3840mm). There is a gap of 150mm between the edge of the flank wall and the western edge of the New Wall. The wall is 220mm wide. Accordingly, 185mm of the Wall is on the Number 10 said of the boundary, and 35mm on Number 9’s side. On another calculation by Mr Higgs, and taking the actual dimensions between the flank wall of Number 10 and the western side of the New Wall, the New Wall is entirely on Number 10s land. Taking the mean of the two calculations places 205mm of the Wall on Number 10’s side and 15mm on Number 9’s side, which accords with the Red Line. However, this exercise depends on the Higgs measurement being accurate, and being to the fence and not the post. By the end of Mr Powell’s evidence, and certainly by the end of the hearing, it was generally accepted that the Higgs measurements could not be relied on by either party. It is to be noted, for example, that the Higgs drawing shows the fence on top of the Old Wall whereas it was on the western side of the Old Wall.

 

57. A key feature of Mr Maynard’s analysis, and one that in effect informs the remainder of his report is set out in paragraph 2.14 where, after having set out Mr Starr’s evidence as to the conversation he had with Mr May regarding the two options for building the New Wall he said: ‘ The implication of the above episode, at least to a boundary demarcation specialist such as me, is that Mr Starr was claiming that the boundary ran along the east face of the old retaining wall and Mr May’s actions did nothing to rebut that claim. It is of course not for me, a non lawyer, to make a decision upon a legal point such as this, but ownership of the old retaining wall resting with the owners of Number 9 is consistent with the T mark on the 3 July 1963 transfer plan: it is on this basis that the remainder of my analysis is predicated.’ The argument that the T marks lend support to the argument that the Old Wall formed part of Number 9 was not pursued at the hearing.

 

58. In paragraph 7.12.4 of his report Mr Maynard stated that Mr May’s agreement to adopt one of the two offers made by Mr Starr relating to the construction of the New Wall and Mr Starr’s offer to pay for the works is ‘ surely an implied agreement as to the ownership of the wall and the location of the boundary.’

 

59. Mr Maynard identified two features present, he says, in 1962. The first, which is agreed, is the angle iron at the north east corner of Number 9. The second, which is very much in dispute, comes from the Mowlem Plan, and is a spot height indicated by a cross to the east of the fence which was in front of Number 9’s utility room before the extension works were carried out. This cross is labelled 100.90. I will refer to this as the Spot Point.

 

60. Mr Maynard’s case is that it was ‘entirely possible’ that the Spot Point occupied the same position as the south east corner of the Old Wall. He also identified the cross 300mm to the west of the Spot Point as the south west corner of the concrete post supporting the eastern end of the fence in front of the then utility room of Number 9. Mr Maynard tested his hypothesis against the Higgs drawings and concluded that the New Wall stands no closer to Number 10 than the Old Wall did.

 

61. Specifically, Mr Maynard took the width of the extension (3865mm), the air gap (100mm) and the width of the Old Wall (105mm), thus totalling 4007mm. On the ground, as built, the extension projects 3840mm, the gap is 150mm and the New Wall is 220mm: ie 4210mm. Scaling from the Mowlem Plan, the Spot Point is 4230mm from the flank wall of Number 9. If the Spot Point is the south eastern corner of the Old Wall then, he argues, the New Wall is no closer to Number 10 than the Old Wall.

 

62. He has accordingly drawn a line through these two points and continued it until it hits the road frontage. This line is shown by a red dashed line in appendix 6.3 of his report. In addition to this line, Mr Maynard posits two alternatives. The first, described in his report, is not in the event relied upon. The second alternative, however, is, in Mr Maynard’s opinion, the true translation onto the ground of the paper title boundary described in the 3 July 1962 transfer plan. This is the Black Line shown on appendix 6.5 of his report. This boundary is preferred in part because it is based on the evidence that Mr Starr built the New Wall such that its eastern face follows the same line as the eastern face of the Old Wall. This point, of course, is very much in dispute.

 

63. Mr Maynard and Mr Starr carried out certain further calculations which, they say, show that the boundary was 4245mm from the flank wall of Number 9. This calculation (again based on the Higgs plans) is taken to the old corner post (not the fence), and requires that there be a gap of approximately 50mm between the eastern face of the corner post and the western face of the Old Wall. Reliance is further placed on a photograph taken on 18 September 2008 which appears to show such a gap. The picture is taken whilst the work is in progress, and it shows the Old Wall broken in at least one place, by the post. One explanation for the gap is that the Wall was damaged during the works.

 

64. These calculations rely on a number of assumptions. The first is that the Spot Point was intended to, and did, locate the south east corner of the Old Wall. The second is that the Higgs drawings, properly examined, lend support to their analysis. Mr Higgs clearly did not wish to become further involved in this matter: his written evidence is that he measured to the fence (and this difference in the calculation makes Mr Maynard’s own calculations flawed). Mr Starr stated that he saw him measure to the post, but I am not persuaded by this. The third assumption is that the cross 33mm to the west (marked at 100.77) was indeed the south west corner of the concrete post. Mr Powell stated that it was more likely that it was placed on the south east corner.

 

65. Importantly, it was accepted during the hearing on behalf of the Respondents, as I have said, that Mr Higgs’ evidence was unreliable. Finally, Mr Maynard accepted, in cross examination, that he could not be sure that the Spot Height on the Mowlem Plan represented the south eastern corner of the Old Wall.

 

66. Mr Powell makes the point that if the surveyor preparing the Mowlem Plan had identified the Old Wall as being on Number 9’s property (the Plan does not show Number 10) he would have shown it by a solid line symbol. The Spot Point does no more than indicate a change of surface. In any event, even if, by some coincidence, the Spot Point did show the southern end of the Old Wall, this still does not help establish the boundary.

 

67. The Black Line, as I have said, is based on Mr Starr’s evidence that the eastern face of the New Wall follows the eastern face of the Old Wall. As the New Wall is double the width of the Old Wall, there is an obvious difficulty. In order for the New Wall not to encroach onto Number 10 the western face of the Wall must be closer to Number 9 than the western face of the Old Wall, or the true boundary must be to the east of the eastern face of the Old Wall. If the latter, then the true boundary line would not only not be straight, but would deviate further to accommodate the Wall. Moreover, if this is correct, the decking would have had to protrude beyond the western face of the old wall. The photographs show that this was not the case.

 

68. There is clear photographic evidence that the decking (prior to the works in 2008) run up to and abutted the old post and panel fence and lay directly above the western face of the Old Wall. The decking did not, clearly, overhang the Wall. Mr Powell stated in evidence, and I accept, that far from there being 50mm between the Wall and the fence post, it would have been difficult even to slide a ruler in the gap. These photographs also show, in my judgment, the Old Wall as intact.

 

69. Mr Maynard’s comments on the Red Line (the Applicants’ line) is that it has a major flaw: it places the Old Wall (and consequently the New Wall) to the east side of the boundary, ie on Number 10’s land. This is only a flaw if, as appears to be the case, Mr Maynard’s entire report is, as he himself stated, predicated on the assumption that the original fence was on top of the Old Wall and that the boundary is the eastern face of the New Wall. In other words, it is his opinion that the Red Line cannot be right because the Old and New Wall were and are on Number 9’s land. This of course begs the very question which needs to be determined. It is to be noted that one of the reasons Mr Maynard rejects his own alternative boundary lines is that, in both cases, the New Wall encroaches onto Number 10 (albeit in one case by 25mm (one inch) and in the other case by 64mm (2.52 inches).

 

70. I have been assisted by a number of photographs, taken before, during and after the extension works. In particular, the photographs taken before the extension works taken by Mr May in 2006 showing the decking in the side passage between Number 10 and the then fence, as enlarged in the course of the hearing, make it clear, to my mind, that there was no gap, or no appreciable gap, between the western face of the Old Wall and the concrete posts of the fence. A photograph taken from Number 9’s side when the New Wall had been built also, to my mind, shows clearly that the edge of the decking was in line with the western face of the New Wall. A further photograph, taken from the Number 10 side when the decking was being replaced after the construction of the New Wall, also shows the edge of the decking resting on the New Wall.

 

71. In short, it seems to me that the boundary line contended for by the Respondents rests both on accepting as accurate the evidence of Mr Starr as to the position of the original fence, and on a series of calculations, themselves based on a number of assumptions which were not, in the end, made good.

 

Analysis

 

72. The starting point, is of course, the transfer to Number 9 in July 1962. The boundary between plots 9 and 10 is shown in a straight line. I also note that the transfer refers to a fence and not to a wall, and that there is no express easement of support placed on the owner of Number 9 to support the wall. It seems to me, therefore, that as a matter of construction of the transfer, and having regard to the nature of the retaining wall, the absence of any reference to the wall (and to an easement of support) in the transfer to Number 9 lend considerable support to the argument that the Old Wall formed part of Number 10.

73. The line contended for by Mr Maynard is not straight, in that it places the boundary to the east of the Old and New Wall. The arguments advanced by Mr Maynard in support of this conclusion are not, in my judgment, persuasive. They rely on various assumptions which are not made out, including, it seems, an acceptance by Mr Maynard of the factual evidence put forward by Mr Starr as to the location of the original boundary.

 

74. Thus, if the issue is to be resolved on the basis of the conveyancing documents alone, it seems to me that the boundary followed the line contended for by the Applicants and ran on the western side of the Old Wall. But the analysis does not stop there. On any footing it is accepted that the original fence was replaced by a new concrete post and panel fence sometime in the early 1980s. That fence has not been moved since, save that a part of it was removed to allow for the new extension to Number 9 to be built.

 

75. The Applicants put forward a pragmatic analysis. They argue that, whatever the original boundary, either by virtue of a boundary agreement or by virtue of subsequent conduct, the boundary follows the fence, and, importantly, puts the Wall on Number 10’s side. Thus, even if they are wrong in arguing that the Red Line represents the original boundary between the properties, the fact that the boundary has been in the same place (and it is their case that both the Old Wall and the New Wall were on the other side of the fence erected by Mr Starr senior) for over 30 years means that this is now the legal boundary.

 

76. As I have stated above, the mere fact that a boundary has moved is not, without more, enough to establish that this is the legal boundary. In this case, there is no evidence of any boundary agreement, as such, between Mr Starr senior and the then owners of Number 10. Nonetheless, it is in my judgment clear that at the time when Mr and Mrs Caller built a new extension to Number 10 in 2001/2002, and laid the decking to the side of their property, there was then an (implied, if not express) agreement that the boundary would be the eastern face of the concrete and panel fence: to that extent it seems to me that an agreement was reached between the then owners of both properties.

 

77. The alternative argument rests on looking at the conduct of Mr Starr senior. As stated above, I do not accept that Mr Starr moved the fence eastwards, but, even if I am wrong on that, it seems to me that this is a case where, following on the authorities set out above, it is permissible to look at the conduct of Mr Starr and the owners of Number 10 in establishing the line of the (new) boundary. There is no doubt, in my mind, that the owners of Number 9 and Number 10 conducted themselves, from the early 1980s onwards, on the basis that the new post and panel fence marked the boundary between the two properties. Mr and Mrs Calver acted on this belief when they constructed their new extension. Mrs Caller’s evidence is clear on this point. The Applicants bought Number 10 on this basis. At no time did Mr and Mrs Starr senior, or the Respondents, indicate in any way that the clear and unequivocal physical boundary did not mark the legal boundary.

 

78. Finally, I have no hesitation in concluding that, if I am wrong on the position of the original boundary, and if I am also wrong in finding that an agreement was reached in relation to the location of the boundary along the Wall and/or that the conduct of the parties by accepting the fence as the boundary is itself determinative, this is a clear case where the (very small) area of land in dispute has been acquired by adverse possession. This area includes the Wall, since it is clear to me that the fence was on the western side of the Old Wall before the extension to Number 9. I should add that the Applicants’ case is that they do not need to rely on the doctrine of adverse possession. Nonetheless, I take the view that, in this case, the doctrine comes into play in the event that I am wrong on the other points raised.

 

79. There is nothing remarkable about the gardens at the back of both properties or about the boundary between them. At no time have the owners of Number 9 entered onto the land to the east of the boundary or asserted, in any way, that they retained ownership of this land. If the question had been asked, at any time, after the erection of the post and panel fence of the owners of either Number 9 or Number 10, I have no doubt that all would have said that the fence represented the legal boundary. Any other boundary would be, in the context of this case, wholly fanciful.

 

80. The owners of Number 10 have made full use of the land up to the fence as a garden and decking area. There have been a number of cases where the courts have readily found that the squatter has taken possession of the disputed land separated from the paper owner’s land by a fence, ditch or wall. This is not a case where it can be said that the true owner continued to make any use of the garden or decking area of Number 10. Prior to the erection of the New Wall and the extension to Number 9 the concrete post and panel fence abutted and was adjacent to the line of the decking and, I find, with the western edge of the Old Wall.

 

81. There are two further points I need to deal with. The first relates to the estoppel argument advanced by the Respondents. As stated above, this argument, it seems to me, cannot succeed. The second point relates to the railway sleepers at the front of the properties. It will be recalled that there was no obligation to fence at the front of the properties, and that no fencing was in fact erected. The area remained open. The works done by Mr and Mrs Caller resulted in the changes to the front area and the construction of the sleeper retaining wall. The Applicants ask that the western face of the sleeper wall be determined as the boundary, on the grounds of a boundary agreement or by estoppel. It seems to me that neither of these arguments can succeed. There is nothing to suggest an agreement, as such, and, moreover, given the layout of the land, it is not obvious that the boundary should lie on one side or other of the sleeper wall. The Red Line, drawn as it is in a straight line having regard to the features on the ground, results in the sleeper wall being within Number 9.

 

Order

 

82. I will accordingly order the Chief Land Registrar to give effect to the Applicants’ application with one qualification, namely that the boundary follows the south western edge of the New Wall. In my judgment no part of the New Wall falls on the Number 9 side of the boundary.

 

 

Costs

83. As the Applicants are the successful parties in this case, it seems, on the face of it, that they should be entitled to their costs. These can either be assessed by me on a summary basis either on paper or after a short hearing, or sent to a costs judge for a detailed assessment. In the first instance, I invite the Applicants to submit a schedule of costs and submissions on whether these should be assessed summarily or on detailed basis by 7 October 2014. The Respondents may respond within 21 days of receipt of the schedule and submissions.

 

BY ORDER OF THE TRIBUNAL

 

Dated this 16 ^th day of September 2014