REF/2014/0879

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
LAND REGISTRATION ACT 2002

 

BETWEEN

 

(1) ALEXIS JUNIOR NOEL

(2) TRICIA ALISON HUNTE Applicants

 

- and -

 

HELEN SARAH KNIGHT Respondent

 

 

Property Addresses: 92 Valeswood Road, Bromley, Kent BR1 4RD

and 48a Alexandra Crescent, Bromley, Kent BR1 4EX

Title Numbers: SGL517600 and SGL637053

 

__________________________________

 

SUBSTANTIVE DECISION

__________________________________

Introduction

 

1.       This is a boundary dispute between two residential properties. On 28 March 2014, Applicants applied to H M Land Registry ("HMLR") for the determination of the exact line of the boundary. The Respondent objected, on 18 June 2014, to the line specified in the Applicants' application. Pursuant to section 73(7) of the Land Registration Act 2002, HMLR referred the dispute to this Tribunal on 19 November 2014.

2.       I visited the site on 1 December 2015 and heard evidence and submissions in court at Alfred Place, London on 2 and 3 December 2015.

The Hearing

3.       Some procedural matters needed to be resolved at the hearing. I set out here my decisions on those matters (which were also delivered orally to the parties at the hearing) before turning to the substantive aspects of the matter in paragraph 9 below. The Respondent was represented by her counsel, Mr Vanderman. The Applicants had no legal representation. The First Respondent, Mr Noel, represented both of them. The Second Respondent, Miss Hunte, did not attend court but sent an email dated 2 December 2015 to the Tribunal Office consenting to Mr Noel representing her. Miss Hunte had signed all of the correspondence and documents submitted to the Tribunal by the Applicants. I was happy to proceed on that basis with the agreement of Mr Vanderman and Mr Noel.

4.       At the outset of the hearing, each of the parties made an application. The Respondent applied to exclude the Applicant's witness statements, because they were not received by the Respondent's representatives until two days before the hearing and because they were in an inadequate format. The Applicant applied to adjourn the hearing so that his witnesses could attend, because he had not received notice of the hearing within sufficient time to organise the attendance of his witnesses.

5.       I acceded to the Respondent's application to exclude the evidence of Mr P Williams of PHY Builders on the grounds that his witness evidence consisted entirely of opinion evidence without complying with any of the requirements of an expert's report. I rejected all other aspects of both parties' applications.

6.       I rejected the Respondent's application to exclude the Applicants' witness evidence of fact because:

6.1.    The Applicants said that they had attempted to serve the witness statements by emailing them directly from a NHS Barts Trust scanning machine on 18 September 2015. This was not received by the Respondent's representatives and there was no documentary evidence that they had ever been sent, but there remains a significant possibility that the Applicants had, at least tried to serve them on time.

6.2.    The witness statements were very short and did not contain evidence which would be a great surprise to the Respondents. Although it is not ideal, they would not be caused a great deal of prejudice by having to prepare cross examination in the two days before the hearing. I had to balance that against the potential injustice of preventing the Applicants from being able fully to present their case with potentially relevant evidence.

6.3.    It is true that the witness statements did not contain any of the formal requirements, were undated and appear to have been typed in virtually identical form by Mr Noel for each of the witnesses to sign. But the Applicants are litigants in person and cannot be held to the same high standards as legal professionals in the preparation of witness statements. The quality of the witness statements is a matter either to deal with in cross examination or by way of submissions about the weight of the evidence, rather than by way of excluding them altogether. It is part of the overriding objective contained in the rules for this Tribunal (see below) that formality should be avoided where appropriate.

7.       I rejected the Applicants' application to adjourn the hearing because:

7.1.    It is only for "pressing reasons" [1] that the Tribunal should adjourn a hearing, especially one which was listed for two days at which the other side has attended with solicitor and counsel and brought all their witnesses.

7.2.    It was unclear why the Applicants had not received the Tribunal's letter informing them (in October) of the hearing listed for 2 and 3 December 2015, but it was clear that they knew about the hearing by the afternoon of Wednesday 18 November 2015 at the latest, because that was the time when Mr Noel received the Respondent's trial bundle which came with a covering letter stating that the hearing was taking place on 2 and 3 December 2015. That was nearly 2 weeks before the hearing.

7.3. Mr Noel thereafter made no efforts, with one exception, to secure the attendance of any of his witnesses until Sunday 29 November (two days before the hearing), when he saw Ms Ellis and Mr Yomu in the street (on separate occasions) and asked each of them if they could attend. Mr Yomu told Mr Noel that he was too busy at work as a builder to attend a Tribunal at all this week. Ms Ellis got back to Mr Noel on Tuesday 1 December to tell him that she could not arrange the necessary childcare at such short notice. Mr Noel first approached Mr Dunford on the afternoon of Tuesday 1 December (after my site visit and the afternoon before the hearing) to ask him to attend the hearing on Wednesday 2 December. Mr Dunford said that he had a hospital appointment and could not attend the Tribunal. Upon further enquiry during the first day of the hearing, it turned out that Mr Dunford could attend the hearing on 3 December 2015.

7.4.    The one witness Mr Noel did approach before Sunday 29 November was Miss Marshall. He called at her house on Monday 16 or Tuesday 17 November and was told by her daughter, who is a child, that Miss Marshall was on dialysis in hospital and would not be able to attend the Tribunal at all. Mr Noel was not able to explain why he had approached Miss Marshall to ask her to attend the hearing at a time (on his account) before he even knew that the hearing had been fixed.

7.5.    In summary, Mr Noel had 13 days notice of the hearing at least. With the exception of one witness, who was hospitalised and unable to attend in any event, he made no effort to secure the attendance of any of his witnesses until it was far too late. He did nothing about it at all for about 10 days. I have to ensure, in the light of the overriding objective, that the case is dealt with fairly and justly and so I had to consider whether an adjournment was necessary to ensure that the Applicants were able to present their case fully. I also took into account that there was no guarantee that any of the witnesses would be able to attend on a future date.

8.       The overriding objective in rule 3 Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 ("the Rules") also requires me to consider the anticipated costs and resources of the parties and avoid delay. In my judgment, the real cause for the Applicants' inability to call all of their witnesses at the hearing is Mr Noel's failure to make any effort to arrange for their attendance until it was too late. He had at least a period of nearly two weeks. I remind myself that the time allowed for a witness summons is only 7 days before the hearing. In those circumstances it would not be just or fair to adjourn the hearing, which would be a considerable inconvenience and expense to the Respondent. For those reasons, using my wide case management discretion, I decided not to adjourn the hearing.

Background

9.       The two properties are adjacent, sitting side by side, both facing onto the same stretch of road. The stretch of road onto which they face effectively changes its name at the boundary between the two properties, which is why their addresses are so different. If one stands facing the road, the Applicants' property - 92 Valeswood Road ("No 92") - is on the right and the Respondent's property - 48a Alexandra Crescent ("No 48a") - is on the left. For convenience, all of my descriptions of the properties shall be from the point of view of someone standing in the road, facing the front of them.

10.   Both plots are roughly rectangular in shape with the short side facing onto the road. No 48a is, however, much larger than No 92. In particular, it is longer in the sense that it stretches back further away from the road. This means that the shared boundary between the two properties only forms part of that side boundary of No 48a. The dispute arose because the Applicant is in the process of building a side extension to his house.

11.   The house on No 48a is semi-detached and the house on No 92 is part of a terrace of three properties, but the two houses are not attached to each other. The disputed part of the boundary in question therefore runs somewhere in the space between the two houses.

The Dispute

 

12.   In essence, the dispute can be summarised as follows. The physical boundary-type features (comprising a wall, a difference in ground level and fences) between the two residential properties describe a roughly straight line from front to back, save that in the area between the two houses, the fence line doglegs out towards the Applicants' house by a width of about 4 feet, carries on along that new line for about 25-30 feet and then doglegs back towards the Respondent's house and carries on towards the back of the Respondent's property, along roughly the original line. The effect of this dogleg in the fence line is to incorporate within the Respondent's property a piece of land ("the Disputed Land") about 4 feet wide between the two houses. From first impressions, especially when looking at a plan of the boundary-type features, it looks like the Disputed Land falls on the Applicant's side of what should be a straight line following the rest of the fence. In other words, if the fence were to be along that straight line, then the Disputed Land would fall on the Applicant's side of it.

13.   The Applicants' case is that the true boundary line is the straight line broadly-speaking along the line described by the majority of the existing fence line. The Applicants say that that line corresponds to the line shown on the HMLR filed plan. In other words, according to the Applicants there should be no dogleg, and all of the Disputed Land should fall within the Applicants' title.

14.   The Respondent's primary case is that the part of the dogleg which is nearest to the Applicants' house in fact represents the straight line of the true boundary follows the fence line. The reason, according to the Respondent, why there is a dogleg is because one of her predecessors in title placed the majority of his fence well within his property some distance away from the true boundary in about 1978, effectively withdrawing from his own land.

15.   The Respondent's alternative case is that if the original true boundary was as proposed by the Applicant, then the boundary has changed (by boundary agreement or by adverse possession) such that the boundary now follows the line of the fence. In other words, according to the Respondent's alternative case, the dogleg is part of the boundary and the Disputed Land falls within the Respondent's title.

The Application

 

16.   On the basis of their case as outlined above, the Applicants applied to HMLR for the determination of the exact line of the boundary pursuant to subsections 60(3) and 60(4) of the Land Registration Act 2002 and the rules made thereunder. It is important to note that the starting point for the application is that the general boundaries rule applies, as set out in subsections 60(1) and (2) of the 2002 Act, namely that the boundary shown on the land register does not determine the exact line of the boundary. The rules (Land Registration Rules 2003, rules 118-120) provide that the application must be accompanied by a plan of specified accuracy and evidence to establish the exact line.

The Plan in Support of the Application

 

17.   The plan submitted by the Applicants in support of their application was produced in November 2013 by a Mr Hegley, who describes himself as the director of Sitech Surveying Services Limited. It shows the location of the existing walls and fences and the buildings on the plot of No 48a. It then overlays those marked features onto the Ordnance Survey plan of the area. Finally, it imposes on the plan a line in red which is described on the key to the plan as "Land Registry boundary of 92 Valeswood Road".

18.   There is no explanation in the plan or in its covering letter what Mr Hegley's source is for the "Land Registry boundary". Mr Hegley did not attend the Tribunal to give evidence, so it was not possible to ask him. Mr Noel, for the Applicants, submitted that I should accept Mr Hegley's plan as having been produced by an expert, but there is no evidence of Mr Hegley's expert qualifications anywhere in the papers. He describes himself only as "director" of Sitech. In any event, without him attending to be cross examined, his opinion (which is strongly contested by the Respondent) is of little weight and value, even if he is an expert. Doing my best in his absence, the only inference I can draw is that Mr Hegley's "Land Registry boundary" is a scaled-up superimposed representation of the line drawn on the HMLR filed plan of the title to No 92. That filed plan is to a scale of 1:1,250 and bears at the bottom the usual warning about it being the general position and not the exact line of the boundary, being subject to distortion in scale and not necessarily matching measurements on the ground. I cannot find any other basis for the line drawn on the plan by Mr Hegley as "Land Registry boundary" as there is no other possible explanation for that term. For that reason, the method which seems to have been adopted by Mr Hegley for drawing the exact line of the boundary to be determined is unsound and incorrect and Mr Hegley did not attend to explain otherwise why I should accept his opinion and his plan. I therefore reject the evidence of Mr Hegley.

19.   That does not, of itself, mean that the line drawn on his plan is not the boundary. It just means that he has drawn that line using an incorrect method. So I must turn to other evidence in order to determine the exact line of the boundary, if possible.

Method for Determining the Boundary

 

20.   As a matter of law, the boundary between two properties does not necessarily consist of the location of the features which happen to be there at any particular time. The legal boundary is a notional line defined by the conveyance (or other document) which first separated off the plot in question from its neighbour. The usual method for determining a boundary is therefore:

a)          look at the relevant conveyance,

b)         interpret what it says (in the text of the deed or the plan or both)

c)          try to apply that to what is found on the ground and

d)         if necessary, consider any evidence of matters which might have subsequent t ly changed the line of the original conveyed boundary (such as adverse possession or boundary agreements).

21.   But in this case, neither party has produced a copy of the relevant conveyance. The date of the relevant document has not even been identified. It is clear that the No 48a plot was created and sold off first. This is apparent from historical evidence, which I have seen. No 48a was on the edge of a private housing estate and at first, the land on the No 92 side of the boundary was part of a farm. The farm was then sold off to the local authority who built a council housing estate there. The residents of the private estate were so outraged that a council estate was going to be built on adjacent land that they erected a "class wall" between the two estates in 1926. The wall would have run along the boundary between No 48a and No 92, but none of the historic photographs are detailed enough to see the section of wall in the location of this dispute.

22.   No 48a was, until 1988, rented out by the local authority to council tenants. In 1988, the then tenants, Mr & Mrs Trigg purchased the house from the local authority under the right to buy legislation. The Applicants purchased No 92 from Mr & Mrs Trigg in 2012. The register at HMLR for No 48a shows that No 48a was sold off on 21 May 1925, but there is no copy of that conveyance and it is not clear whether that was the first sale which created the boundary. Given the history of the sites, as summarised above, it is likely that the boundary, between the private estate on which No 48a now sits and the farm on which No 92 now sits, was created some time earlier.

23.   There are therefore no documents of title from which the location of the boundary can be identified.

24.   In the absence of such documents of title, the Tribunal may consider any extrinsic evidence on the issue and to attribute such weight to it as appropriate. The extrinsic evidence available in this case is as follows:

24.1.                     The site itself, in its present form and layout.

24.2.                     The testimony of witnesses.

24.3.                     Documents - in particular historic photographs.

Site inspection

 

25.   On 1 December 2015, I visited the site in the presence of both parties and the Respondent's legal representatives. An important feature of the properties apparent from a physical inspection, which is not discernible from plans, is that the house on No 48a sits on an area of land which is at least one metre higher than the area of land on which No 92's house sits. Between the two levels is a sharp drop, rather than a slope. This is most noticeable in the area of land which is between the two houses, for the obvious reason that the houses broadly speaking need to rest on level ground. It is, as I have already observed, the area of land between the two houses which is the focus of this boundary dispute.

26.   Starting from the road at the front, there is a short brick wall between the front driveways/gardens running from the front towards the back. The brick wall is in a poor state of repair and sits partly on a concrete platform which is on a level between the heights of the two properties. The brick wall does not describe a straight line. Just after halfway down its length (travelling from front to back) it doglegs by a few inches towards the Applicant's house. The front brick wall stops level with the front right hand corner of the house on No 48a.

27.   The end of that brick wall which is furthest from the road is adjacent to a taller brick pillar. One side of a pedestrian metal gate is attached to that brick pillar. The other side of the gate is attached to the front right hand corner of the house at No 48a. The gate therefore forms a side entrance to No 48a.

28.   Continuing from the line of the wall away from the road, there is a timber fence (part of which is missing where the Applicants' extension works are taking place) which follows the line I have described above. The important feature to see on site is that the line of the fence also follows the line of difference in height of the two plots. In particular, the Disputed Land sits entirely on the higher level which is occupied by No 48a.

29.   So if the Applicants' application were to succeed and a fence erected along the line of the boundary which they favour, then a four foot wide piece of land (namely the Disputed Land), which is about 3 feet higher than the rest of their plot with a sheer drop, would be incorporated within their curtilage. That would be an odd result and it would be difficult to see why that would have been the intention of the original plotters of the boundary or why the two properties would have previously been laid out and occupied like that. That does not mean that the Applicants' proposed line for the boundary is not possible. In fact, in the back garden of No 92 along the line of the fence, there is a smaller step difference in level within the Applicants' property which forms a raised bed. The difference in level there is not as dramatic as it is between the houses, but it shows that it is not impossible for there to have been such a feature within the plot of No 92 all along, but it is unlikely given the context of the surrounding features and the lie of the land.

30.   It is, however, not possible to know whether there was a sharp difference in level between the two properties when the boundary was first drawn, especially since that may have been at a time when one side was the grounds of a private estate and the other was a farm. I therefore conclude that the mere fact of the difference in level is not strong enough evidence to determine the line of the original boundary, although it is a factor to take into account together with other evidence.

31.   Following the line of the existing fence away from the road, after the dogleg the line of the timber fence follows a more or less straight line all the way to the back of No 48a, although most of the rear portion does not relate to the boundary with No 92 for the reason stated above.

Discussion of Evidence

 

32.   Evidence for the Applicants was given by the first Applicant, Mr Noel and also by Mr Dunford and Ms Ellis.

33.   Evidence for the Respondent was given by Mr Nicholas Keable who is her ex-husband and her predecessor in title. Mr Keable had grown up in No 48a from the early 1960s and No 48a had been the matrimonial home which he shared with the Respondent and with their son Nathan (who was born in 2003). Evidence for the Respondent was also given by the Respondent herself and Mr Hart.

The Front Brick Wall

34.   As a starting point for assessing the evidence, there is a useful fixed feature on the ground. All parties accept that the position of the brick wall along the front part of the disputed boundary had not changed in living memory, namely since the mid 1960s when Mr Keable was a small child. Mr Noel conceded that fact, because he had no evidence to the contrary. The end of the front wall furthest from the road consists of a brick pillar to which the pedestrian side gate is attached. The other side of that gate is attached to the side of the house on No 48a. One consequence of those agreed facts is that the width of the aperture in which that pedestrian side gate is installed is a fixed distance throughout the relevant history of this dispute. The gate itself may have changed over the years, but the width of the entrance to the side of the No 48a house has been the same for about 50 years. This is important because the line drawn by Sitech, on the plan on which the Applicants' application is based, bisects the aperture of that gateway. The gateway is, however a feature which has been in place for about 50 years at least.

Location of the Fence prior to 2006/2007

35.   It is common ground between the parties that the fence has been in its current location since 2006/2007. The parties disagree about what happened before then:

35.1.                     The Applicants' case is that the fence was previously along the line which they now claim to be the boundary, but it was moved to its current position in 2006/2007. In other words, the Applicants allege that the Respondent's predecessor in title annexed the Disputed Land in 2006/2007.

35.2.                     The Respondent accepts that a new fence was erected in that position in 2006/2007, but she argues that it was erected along exactly the same line as the previous fence which it replaced.

36.   That issue was the subject of contested oral witness evidence. Mr Noel himself was not able to assist with any personal recollection, because he did not purchase his property until 2012. He gave evidence that the area around the Disputed Land was then so overgrown that he could not see the dogleg in the fence. He only realised the true line of the fence when he started clearing away the foliage in Spring 2013 in preparation for the building of the extension. That last piece of evidence is useful for assessing the recollection of some other witnesses.

37.   There was conflicting evidence of fact as to the location of the fence in the area of the Disputed Land prior to 2006/2007. Mr Keable gave evidence that he was responsible for erecting the fence in 2006/2007 and that it was in the same location as the previous fence. He also gave evidence that he used to play as a child in the 1960s in the area of the Disputed Land and that to the best of his recollection the fence was in the same location then as well. Most significantly, he produced photographs taken in 2002, 2005 and 2006 of the Disputed Land. These show, without any doubt, that the Disputed Land was at that time incorporated within No 48a and the dogleg in the fence was in the same position as it is now. The reason why I can be reasonably confident of the dates when these photographs were taken is because one of them shows refurbishment works being carried (which was in 2002) and the other two show Mr Keable's son Nathan at the age he would have been in 2005 and 2006 (about 2-3 years old - he was born in 2003). I accept Mr Keable's evidence about the location of the fence prior to 2007, because it is corroborated by photographs and by the evidence of the Respondent herself and relates to a recent memory from a time when he was an adult (in contrast to some of his other evidence analysed below). It follows that I also accept the evidence of the Respondent on this point, in relation to which she gave the same evidence as Mr Keable.

38.   There is also some physical evidence on the ground. The Disputed Land has the same brick paving as the rest of the No 48a land in that area. It looks old and weathered. I cannot make a finding as to exactly how long it has been there, but I say no more than that it is consistent with the Disputed Land having been treated as part of No 48a for a considerable time. Mr Keable said that it was laid as part of the refurbishment works in 2002 and I have no reason to doubt that evidence.

39.   Against this evidence of Mr Keable and Ms Knight, the Applicants called two neighbouring residents to give oral evidence. Mr Brett Dunford lives at 90 Valeswood Road. He said that he visited No 48a many times throughout the 1990s because he was friendly with Mr Keable's brother Mark. He said that he remembered going down the side passage (in the area of the Disputed Land) and that it was narrow. He said he remembers having to turn to his side to get through. If that is true, then the fence line may have been along the line claimed by the Applicants in the 1990s at least.

40.   However, Mr Dunford also said that he only went down the side passage a couple of times in all his visits, he identified the photographs from 2002-2006 (see above) as showing the fence in the position he remembered it (ie with the dogleg) and when he was shown the line of the boundary claimed by the Applicants he said "it couldn't have been that narrow. No-one could go down there. No one could navigate down there. You couldn't fit a gate there. That's surely not what you are arguing about". I conclude that, although Mr Dunford was doing his best to remember, he did not support the Applicants claim that the dogleg was not there in the 1990s. It is not clear where the passageway was which he had to turn to his side to use, but I find that it was not the side passage on the right side on No 48a.

41.   Yvonne Joy Ellis lives at 50 Alexandra Crescent. She gave evidence that the line of the fence was changed in 2007. She remembered it following on from an application for planning permission by No 48a to build an extension which was eventually not built. She remembers the No 48a side passageway previously running from the brick post to which the gate is hung in a straight line with no dogleg. She did, however, admit in cross examination that she had never been down the passageway, she had only noticed it from the road. She also conceded that the area was covered by shrubs at the time (as shown in photographs and as conceded by Mr Noel himself, in evidence). Miss Ellis' evidence is impossible to reconcile with the photographic evidence of Mr Keable and Ms Knight's son and the dogleg in 2002-2006 and the other witnesses who confirm those photographs as showing the position since at least as far back as the 1990s. I therefore reject the evidence of Miss Ellis on this point. She was doing her best to help, but her recollection was based on less direct experience than the other witnesses and must be mistaken.

42.   So on the question of whether the line of the fence changed in 2006/2007, I prefer the evidence of the Respondent and her witnesses to that of the Applicants' witnesses where they clash. I therefore find as a fact, on the balance of the evidence, that the new fence erected in 2006/2007 was along the same line as the fence which it replaced. In other words, the erection of the fence in 2006/2007 did not include an act of annexation of land by the owner of No 48a.

43.   That conclusion, however, gives rise to a further question: for how long had the pre-2006 fence been in its position? Mr Keable's evidence was that a new fence had been erected in 1978 in a position different from its previous location. I therefore turn my attention to that evidence.

The New Timber Fence of 1978

44.   Mr Keable said that before 1978, there was a wire fence which marked the boundary. It was held up by concrete posts. It went in a straight line from the northern most point of the dogleg section of the current fence. In other words, it incorporated the Disputed Land within No 48a and made the rear garden to No 48a up to 4 feet wider than it currently is all the way along to the back of the rear garden of No 48a. He further explained that, in the area of what is now the raised bed in the rear garden of No 92, there was a narrow bike garage which belonged to his father, who was then the owner of No 48a.

45.   Mr Keable's evidence was that his father removed the wire fence in 1978 and replaced it "in stages" with a timber fence which (from the far end, away from the road, of what is now the dogleg) was located about 4 feet within his own boundary, thereby ceding strips of land 4 feet wide to all of the adjacent properties, including No 92. Mr Keable said that the reason for doing this was because there were two trees in the rear of his father's garden and his father did not want to have to maintain them so he excluded them from his garden by moving the fence.

46.   In support of his position on this issue, Mr Keable pointed to a tall concrete post within one of the adjacent properties towards the rear of No 48a and claimed that it was one of the original concrete fence posts which his father had left. It was, however, clear that Mr Keable had only noticed this for the first time during the site visit (because he said so at the time) and so he was speculating that it was an original fence post, rather than specifically remembering his father leaving it there in 1978. Mr Noel suggested that the tall concrete post was installed for the purpose of hanging a washing line and that there was a similar one in his own rear garden which was in such a position that it could not have been a former boundary fence post between No 92 and No 48a. Mr Dunford gave evidence that he had a similar post in his garden which was used to hold up a washing line.

47.   I also noticed during the site visit that some of the fence panels of the neighbouring gardens which were perpendicular to the fence in question had stopped short of No 48a's timber fence and in some cases had short panels to fill in the gap. I pointed this out to the parties. It was submitted by the Respondent at the hearing that this was evidence that the boundary fence at the side of No 48a had once been in a different position. I do not think it is safe for me to reach that conclusion based on speculating about fence panels. There was no witness evidence from any of those neighbours as to why their fences were arranged that way. In any event, I would be surprised if those perpendicular fences (which were all made of timber panels) were the same ones as were in place in 1978. They are unlikely to have lasted that long. I therefore find that there are no clear physical features on the ground now which support the pre-1978 fence line suggested by Mr Keable.

48.   That leaves only Mr Keable's oral evidence about this matter. I find his evidence on this issue difficult to accept. I do not understand why someone would give up a strip of land four feet wide and around 100 feet long down the length of their entire property, just because there are two trees at the end he does not want to maintain. Since the alleged moving of the fence in 1978 involved retaining a dogleg at the house end (according to Mr Keable), why not just keep the alleged original line of the fence along the majority of the boundary and create a dogleg around the offending trees at the end? Why give up the land on which the bike garage was allegedly kept, which was nowhere near the offending trees? In any event, why give up land because of trees at all? If Mr Keable's father did not want to maintain some trees, he could simply ignore them or take them down. He did not have to divert his fence around them. None of it makes much sense and Mr Keable's father, who is deceased, was not therefore available to answer questions about it. The only available evidence was that of his son, who was a teenager at the time of the alleged moving of the fence in 1978, nearly 40 years ago. There are no photographs or other documents available to corroborate this account.

49.   I stress that I regard Mr Keable as a credible witness doing his best to remember something which happened 40 years ago, but I do not think his recollection can be correct. This is understandable, because he would not necessarily have paid a great deal of attention as a teenager to the line of a fence being erected by his father "in stages". There may have been some adjustment of the line of the fence in 1978 by his father (perhaps in the area of the bike garage), but I do not think it can have been as dramatic as is suggested by Mr Keable in his evidence, for the reasons I have stated. Mr Keable did also give evidence that he remembers there being no dogleg in the fence when he was a child, but that may be explained by the possibility that his father made some small adjustments to the line of the fence in 1978 which may have made a dogleg more pronounced. Otherwise, it could be that that aspect of Mr Keable's childhood memory is simply mistaken.

50.   I therefore find as a fact that the line of the timber fence along the rear garden of No 48a on the right hand side is in about the same position as the wire fence which was there in 1978. It is already common ground between the parties that the brick wall in the front garden has been in the same position for as long as can be remembered.

Origin of the Dogleg

51.   That then leaves open the question as to the origin of the dogleg in the fence line which gives rise to the Disputed Land. There remain three possibilities:

51.1.                     the dogleg was created when Mr Keable senior erected the new fence in 1978 so as to incorporate the Disputed Land within the curtilage of No 48a; or

51.2.                     the dogleg was created some time prior to that when someone changed boundary features so as to incorporate the Disputed Land within the curtilage of No 48a; or

51.3.                     there was always a dogleg in the true boundary, because the original boundary followed the line of the edge of the raised plot

52.   In my judgment, the first of these is unlikely (on the balance of probabilities) because of the location of the brick wall at the front and for similar reasons as discussed above in a different context. The reasoning is as follows: if the fence (or other boundary structure) prior to 1978 had followed the line shown in the Applicants' application, then it would have left a piece of land down the right-hand side of No 48a which would have been impossible for a normal sized adult to walk down comfortably. That does not square with the evidence of an old tradesman's bell in the side door of No 48a on the right hand side. It is a very old style and looks like it has been there a long time and is now longer working. No reasonable person would put a tradesman's entrance in a location which a tradesman (with or without parcels / loads / equipment etc) cannot easily reach - especially in the light of Mr Dunford's evidence quoted above.

53.   I stress that this is only an inference on my part. In the absence of reliable oral, documentary or photographic evidence about the line of the boundary in the area of the Disputed Land before 1978, it is the best I can do.

54.   That then leaves the other two possibilities postulated above. The second (dogleg was in the original boundary) cannot be proved or disproved, for the reasons set out above - in particular because of the absence of original documents of title from the time of partition. The third (someone moved the boundary before 1978) also cannot be proved or disproved because we have no evidence of what happened on the Disputed Land before about 1978. I think it is unlikely that the fence line was ever along the line claimed by the Applicants since the house was built on the No 48a plot because of the implications of the side entrance which I have mentioned above. It is true that urban and suburban properties do sometimes have very narrow and awkward side passages, but that is unlikely in this case given the history of the building of the plots.

55.   The other feature which leads me to this conclusion is the sharp step in the level of the land between No 92 and No 48a on the No 92 edge of the Disputed Land. It forms a natural boundary. It also looked to me, at the site visit, like the step itself was created by builder's rubble from when one or both of the two houses were first built. There is no evidence of any major construction work at the site between that time and the Applicants' new extension. It is therefore likely that, wherever the original boundaries between the two plots may have been, the boundary has effectively run along the difference in level of the land since the houses were built.

56.   The evidence on that point is not strong enough for me to make a firm finding, but it is an observation which I take into account.

Conclusion

57.   I am left with the conclusion that the boundary features abutting the Disputed Land have been the same as they are now since some time well before 1978, and probably even before No 92 was built. Mr Vanderman produced authorities and arguments on implied boundary agreements and adverse possession against tenants, which was relevant to a scenario in which Mr Keable senior had moved the boundary so an to annex the Disputed Land in 1978. But there was no evidence for such an event having happened. The Applicants say that the Disputed Land was annexed in 2006/2007. Mr Keable said that the Disputed Land was already part of No 48a when he was a child in the 1960s. There is no evidence that the Disputed Land was incorporated into No 48a in 1978. It would therefore be an entirely fruitless exercise to apply the law to such a scenario in this judgment.

58.   I cannot say on the balance of probabilities whether (a) the present line constitutes the true original boundary laid out by the conveyance which partitioned the land or defined the boundaries of the original estates or (b) is a line which results from some change of boundary features long ago about which we have no evidence at all.

59.   In my judgment, on the balance of probabilities and doing the best with the limited and incomplete evidence I have, the boundary has run along the No 48a side of the Disputed Land since before No 92 was built and probably from about the time when No 48a was built - in other words, from the time which the sharp difference in level was created or buttressed by the builders' rubble during the building of No 48a. It is not possible to know whether that line differed from the original line of the boundary between the private estate and the farm, but I am satisfied that the line has now become the true boundary whether by adverse possession or by implied boundary agreements some time in the first half of the last century. I can say with greater confidence that the owners of No 92 have never been the legal owners of the Disputed Land.

60.   The line of the boundary now is the line described by the existing fence, so that the Disputed Land falls within the title to No 48a.

61.   At the very least, I am able to conclude with certainty that the line of the boundary is not the line claimed in the Applicants' application and it must therefore follow that the application to determine the exact line of the boundary should be rejected and I direct the Chief Land Registrar to dismiss the application.

62.   I would add, for the avoidance of doubt, that my finding as to the probable line of the boundary is not a determination of the exact line of the boundary. It is merely a finding of fact made to enable me to decide whether the Applicant's application should succeed or fail. The situation on the register will therefore remain that whatever is shown on the filed plan is subject to the general boundaries rule in section 60 of the 2002 Act.

Dated this 18 ^th day of January 2016

 

 

By Order of The Tribunal