Kupfer & Anor v Dunne

Lord Justice Pill : This is an appeal by Mr. and Mrs. S. Kupfer against judgments of His Honour Judge Peter Latham given at Willesden County Court on 6 and 13 February 2003. The judge determined the boundary between residential premises at 8 Greystone Gardens, Kenton, Middlesex owned since 1990 by Mr. and Mrs. Kupfer (“the appellants”) and No.6 to the north of it owned since 2001 by Mrs. M. C. Dunne (“the respondent”). The judge made an injunction requiring the appellants to remove a length of fencing between the properties and four concrete fence posts. The appellants were ordered to pay damages of £20,625, plus interest, and the costs of the action, some of them on an indemnity basis.

The judge refused permission to appeal. It was subsequently granted by Peter Gibson LJ upon a consideration of the papers.

This is an extremely unfortunate dispute between neighbours over a trivial area of land. It has led to a very substantial expenditure of costs. Its only practical importance is that, if the appellants are correct, the respondent is unable to build an extension, for which she has planning permission, quite in accordance with the presently approved plans. The judge decided that a post, described as the first concrete post, or Datum B, erected by the appellants, was on the respondent’s land. We are told that the extension could be built, on the approved plans, if the post and the boundary were about 150mm to the south of where it was erected. There were no sensible discussions between the parties before the litigation began and the significance of that will need to be considered in more detail when the issue of costs is determined. Notwithstanding the triviality of the area of land involved, the court is required to decide whether the judge correctly determined the line of the boundary and, if not, what that line should be.

The houses were built in about 1928 in a style typical of substantial, suburban residential properties at that time. They each had small front gardens abutting onto the highway and long rear gardens, the total length of the boundary being at least 50 metres. As one would expect often to occur with properties of this age, the features erected from time to time to delineate the boundary have not been aligned consistently over the years. On the road side of the properties, a former fence has been replaced with a low brick wall. To the rear of the buildings, a new fence was erected in about 1980 and there is no evidence of what it replaced. The 1980 fence, over a part of the disputed length of boundary, was replaced in January 2002 by the appellants on a line which the appellants submit is the boundary between the properties.

In 1992, the appellants replaced a garage on the side of their property nearer No.6 with a two-storey extension. There is no precise measurement but it is common ground that the new structure, by a small distance, is further south and back from the buildings on No.6 than was the former garage. Between the main buildings, there was a lean-to on No.6 extending to a point near the boundary and, to the west of that, a shed, to which further reference will need to be made.

When the appellants were having their extension built, No.6 was occupied by Mr. D. Jeffrey, who gave evidence at the trial. The work undermined the lean-to structure on No.6. The difficulty was settled amicably, three brick piers being erected to incorporate timber posts which supported the lean-to.

The present dispute arose when, pursuant to planning permission, the respondent proposed to erect an extension which, as had been the case in No.8, would replace existing structures. Builders began preparatory works close to the brick piers and the appellants objected to such an extent that they sought and obtained an interim injunction. They claimed that the proposed extension would trespass onto their property. While it is not determinative of the boundary dispute, the respondent accurately points out that it was the removal of the brick piers which triggered the litigation and not the issue of practical importance which later emerged and which has led to the bulk of the argument before this court. That issue is whether the north face of the concrete post No.1, (the north east corner of which is Datum B), erected in January 2002 just to the north of the western face of the appellants’ extension, correctly marks the boundary.

At the trial, evidence was given by the parties and by a chartered surveyor instructed on each side, Mr.Levy for the appellants, and Mr.Cooper for the respondent. Mr. Beard, who worked on No.8 in 1992, and Mr.Barnes, who erected the present fence in January 2002, gave evidence for the appellants and Mr.Jeffrey gave evidence for the respondent. The judge found the evidence of Mr.Beard and Mr.Barnes unreliable. He said of Mr.Beard that, either by accident or intentionally, he put up a fence post which was to the north of the original boundary. Critical comments are made by the judge, particularly about Mr.Beard, and also about Mr.Kupfer’s evidence and conduct. The judge found that Mr.Jeffrey was “honest, accurate and impartial”. The judge made other comments and findings which neither party has claimed to be relevant to the issues now placed before the court.

The outcome was a declaration that the boundary was “in a straight line from the north-west corner of the brick wall presently standing between the front gardens of the two premises and the north-east corner of the fifth concrete fence post presently standing to the west of the north-west corner of the north extension of No.8”. That line was clearly marked on a plan accompanying the order of the court. The judge made a declaration that concrete post 1, along with concrete posts 2 and 3 to the west, stand entirely on the premises of No.6 and his mandatory injunction required concrete posts 1 to 4 inclusive and the timber fence between them extending to concrete post 5 to be removed.

A physical feature which is in my view a very significant factor in the decision to be reached is what has been described as a brick planter in the rear garden of No.8, close to the boundary, and on any view predominantly on No.8. It is in effect a raised flowerbed, rectangular in shape, with walls five bricks high. It is approximately 8.5 metres long by 75cms wide. It is accepted as having been correctly surveyed by Mr.Levy on Plan 102. It was built by the appellants in 1992 while the 1980 fence was in position. The judge found that on a balance of probabilities “some part of the brick planter is over the boundary and is trespassing”. While Mr.Joseph, for the respondent, did not accept that necessarily to be so, and the brick planter is not shown on the drawing annexed to the Order, the judge was in my view undoubtedly correct in his finding that, as he had drawn the boundary, a part of the planter trespassed onto No.6. That finding does, as will appear, cast serious doubt as to whether the judge has correctly aligned the boundary. The implications of the finding are not considered in the judgment.

Having made findings upon the credibility of the witnesses on each side, the judge appears to have formed the view that a finding in the respondent’s favour on credibility led necessarily to a determination of a boundary in her favour. I am unable to adopt that approach. A fuller analysis of the evidence, including the photographic evidence and the plans, is necessary before a decision can be reached.

In the respondent’s notice, reference is made to the evidence at the trial of Mr.D.F. Cooke, the respondent’s father, which is not mentioned by the judge. We are told that he gave evidence that there was no post at the point referred to at the trial as the first concrete post before the erection of a new fence in January 2002 and that the rear panel of the shed of No.6 had been kept in place because there was no fence at that part of the boundary. A somewhat curious feature of the evidence is that the judge disbelieved Mr.Beard as to where he had put concrete post 1 when Mr.Beard himself had given no evidence that he had inserted a post. The judge’s finding that he had inserted a post must have been based on an inference from Mr.Barnes’s evidence that in 2002 he had replaced an earlier post and put a post in the same position.

For the appellant, Mr.Driscoll QC made alternative submissions. The first is that the boundary follows what has been described as the green line shown on Mr.Levy’s plan 102. The alternative submission is that the boundary runs from what has been described as datum point A at the north-west corner of the brick wall in the front garden, to the north side of the first concrete post (Datum B) and then along the line of the fence built in January 2002. The first case is based on the discovery in the course of the trial of a 1947 conveyance which shows the boundary between No.8 and No.6 as a straight line and which gives the widths of the plot on which No.8 is built as 39ft or thereabouts at the east end and 40ft or thereabouts at the west end. I reject that submission. Quite apart from the question whether the appellants can resile from the agreement that Datum A marked the starting point of the disputed length of boundary, reliance on a conveyance in that form is inappropriate when on any view there has been activity along the boundary many more than 12 years before these proceedings commenced, for example the front brick wall and the 1980 fence, which greatly diminish the value of the approximate dimensions on the plan as an evidential tool.

In Alan Wibberley Building Limited v Insley [1998] 1 WLR 893, Lord Hoffmann, having referred to Land Registry maps based upon the Ordnance Survey, added that “the precise boundary must, if the question arises, be established by topographical and other evidence”. Lord Hoffmann had specifically in mind natural features such as hedges, but the same principle in my view applies when considering the line of a boundary between residential premises on which features have been removed, modified and added over the many years the premises have been occupied. In the millions of such situations which exist around the country, there will very frequently have been changes such as those which occurred in this case, a wall replacing a fence and a fence replacing another, as a result of which small deviations in the boundary will occur once the limitation period has expired. There may well be other cases where an original straight line may remain the boundary notwithstanding periodic alterations. It would depend on the evidence. In the present case it is not disputed that the 1980 fence correctly delineated the boundary, at any rate once twelve years had elapsed. The dispute is as to where that fence was positioned. Fortunately, in the overwhelming majority of cases, consultation, discussion and agreement will avoid the appalling situation which has arisen in this case, the expenditure of very considerable amounts of money in a dispute over a very inconsiderable area of land.

The alternative submission of Mr.Driscoll requires the close analysis of the evidence to which I have referred. Mr.Joseph, who has argued the case thoroughly and forcefully on behalf of the respondent, correctly submits that it is for the appellant to establish that the judge is in error. He submits that, on the evidence, the judge was entitled to place the boundary where he did. It had been agreed that Datum A was the starting point at the east and both parties contended that the boundary ran on a straight line. The fact that the judge disbelieved Mr.Beard was fatal to the appellant’s case. I cannot agree that the judge was bound to find a straight line boundary. The appellants’ alternative case, as demonstrated on plan J54, was not a straight line and neither is the respondent’s present case, given the concessions mentioned below. For the reason given earlier in relation to the appellants’ straight line, that is the multitude of activities which may take place over the years on boundary lines such as these, an analysis of the particular situation was required in order to determine the boundary.

As to present dimensions, it is common ground that the figures on Mr.Levy’s plan J54 can be accepted. They show that Datum A is 130mm to the north of the eastern face of the extension to No.8 and the three brick piers, which formerly supported the lean-to on No.6, are between 165mm and 175mm from the northern face of the extension. The northern side of concrete post No.1 (Datum B) is 300mm from that face and the post is 118mm square. The resulting gap of 182 mm is at present closed by what has been described as timber infill. The northern face of the timber gatepost on No.6, which at present forms a part of the side entrance to No.6 between the properties, is 240mm from the north face of No.8 and the post is believed to be approximately 75mm square. The judge had the advantage, as does this court, of photographs of members of the appellants’ family, taken in about 1992, which incidentally show features relevant to the present dispute.

In his judgment, the judge acknowledged that on his findings, consequential problems between the parties are likely to arise, for example the trespass by the brick planter and also by the gutters on the extension to No.8. In his skeleton argument and at the hearing, Mr.Joseph has sensibly made concessions which, it is submitted, eliminate the risk of further litigation.

It is necessary to analyse the evidence of Mr.Jeffrey, found by the judge to be reliable, and the findings of the judge. It was common ground, as the judge found, that the brick planter was built in 1992 and that it incorporated 3 concrete posts designed for supporting timber fence posts. The judge concluded that he regarded “those 3 concrete fence posts in their present position as important historical landmarks”. Photographs taken in 1992 show the then existing fence, erected in about 1980, and wooden posts supporting it in the conventional way. It is common ground that the 1980 fence was the appellants’ property. That part of the fence shown in the photographs, which is the part nearer the house, appears to be in reasonable condition.

The judge found that the wooden posts were in close proximity to the concrete pier posts in the planter and with no gap between them. The concrete posts were supporting the wooden fence posts. The judge also accepted as accurate and reliable evidence that “there was just room for a tennis ball between the north face of the planter and the southern part of the fence supports. There was “vivid evidence” that “balls from the children’s play area went down between the planter, after it had been built, and the gap between the timber fence”. The gap is accounted for by the width of the timber fence posts supporting the wooden fence. Mr. Jeffrey, during re-examination on behalf of the respondent, confirmed that the concrete piers were on No.8’s side and were attached to and supporting the wooden posts.

It is clear that the 1980 fence did not extend as far as the lean-to attached to No.6. Between the end of the fence and the lean-to a physical barrier between the two premises was provided by a shed on No.6 which backed onto No.8. It is a reasonable inference that the fence was not continued on because the presence of the shed at this point provided the owners of both properties with the privacy and security they needed. It is common ground that the southern face of the shed extended in an east-west direction from a point west of where the eastern face of the extension on No.8 now is and east of the western end of where the planter now is, on each side providing a substantial overlap.

Mr. Jeffrey was asked about events when the extension was built in No.8 in 1992. He behaved in a very neighbourly manner. The 1980 fence was not moved at that time. Work on the extension interfered with the support for his lean-to on No.6 and the three concrete piers to the north of the new extension were built to accommodate posts which supported the lean-to. Mr.Jeffrey said that he thought the brick piers were within his boundary but “was not that bothered about individual inches either way”. He said that he did not know whether or not the shed was on the line of the boundary and was not sure what the position was on the No.8 side of the shed. Cross-examined about a conversation he had had with Mrs.Kupfer, it was put to him that he had agreed that there was a gap of about 1ft between the shed and the corner of the 1992 extension. He accepted that, “in approximate terms”. He agreed that the gap between the shed and the north-west corner of the new extension had been filled in. It would be surprising if it had not been filled, given the age of the appellants’ children at that time.

The difficulty with the respondent’s case, upon the judge’s findings and the evidence of Mr.Jeffrey, is that the 1980 fence, which plainly had been accepted as marking the boundary along its length, was some inches on the north side of the brick planter. The northern aspect of the planter is straight and was built at least the width of a tennis ball on the No.8 side of the fence. The drawing 102 is accepted as being accurate in this respect and, indeed, is consistent with photographs and other evidence. The shed on No.6 overlapped the fence and thus could not have been on the No.8 side of it. It is not suggested that the southern face of the shed was curved or had a stepped construction which would have allowed any part of it to extend to the south, No.8 side, of the line of the fence.

The judge found that Mr.Beard had erected a fence post at a point near the north west corner of the new extension in 1992 but had erected it in the wrong position. I would not disturb the finding that a post had been erected in 1992 though, in view of the judge’s conclusions about the credibility of Mr.Beard and Mr.Barnes (paragraphs 8 and 12 of this judgment), certainty is impossible. The case does not in any event turn on whether or not a post was erected in 1992.

The judge found Mr.Beard (and Mr.Barnes) to be unreliable witnesses. He appears to have taken the step from that finding to a finding that the boundary at this point is to the south of where the appellants claim it is without having regard to the other evidence before him. The judge has not, with respect, considered the implications of his finding that part of the brick planter was over the boundary, when the 1980 fence formed the boundary. The brick planter cannot have been over the boundary because it was entirely, and with a gap of a few inches, on the south, No.8, side of the fence. Nor has he considered the implication of Mr.Jeffrey’s evidence, which is consistent with a boundary further north at Datum B.

Mr.Joseph has at length sought to argue that the former presence of the shed makes it possible to avoid a conclusion in the appellants’ favour but, on the evidence, it is in my view impossible to avoid the conclusion that concrete post No.1 (Datum B) is correctly positioned on the continuation of the line of the former fence as are concrete posts 2,3 and 4. I am wholly unpersuaded that the presence of the shed can have created a southwards kink in the boundary at the eastern end of the brick planter. If, as appears to be inescapable, the southern face of the shed must have been along the line, or indeed slightly to the north of, the 1980 fence line, a post adjacent to it on the south side would be on the same alignment as the former 1980 fence posts shown in the 1992 photograph and plan 102. No amount of disbelieving Mr. & Mrs. Kupfer, Mr.Beard and Mr.Barnes or paying respect to the opinions of chartered surveyors can defeat these basic facts. It is extremely unfortunate that so much cost and effort has been expended in determining whether, at this point, the boundary is 150mm north of the extension, as the respondent contends, or 300mm, as the appellants contend.

At a late stage, reliance was placed on the evidence of Mr.Jeffrey that a manhole shown in the photographs on the north side of the extension was wholly under the shed. A photograph showed that a very small part of it is to the south of Datum B. Given the other available evidence, including the rest of that of Mr.Jeffrey, I cannot regard that answer as sufficient to reverse the conclusion expressed. Mr. Jeffrey, who did not go into detail on the point, is likely to have ignored or been unaware that a small area of manhole was outside the shed. Moreover, in context, reliance cannot be placed either on a line placed by the appellants’ architect on a drawing submitted with the planning application for the extension or on the land registry plan for No.10.

I turn to that part of the boundary east of Datum B. This can be dealt with more briefly. It is common ground that the 1992 extension on No.8 is somewhat to the south of the former garage. Datum A is agreed as being 130mm from the northern face of the extension at the point where it abuts the low brick wall (once the appellants’ green line is rejected). It is necessary to join that point with Datum B. Mr.Driscoll proposes a straight line between the two points. Late in the hearing, evidence emerged which provides a very good reference point between Datum A and Datum B. When the garage was present on No.8 the gatepost for No.6’s side gate was attached to it. There is clear evidence that the post has remained in the same position. It is now supported by another post between it and the extension.

Mr.Levy’s drawing is agreed as showing accurate dimensions and the northern face of the gatepost is shown as 240mm from the north face of the extension. There is evidence that the post is 3 x 3, that is almost exactly 75mm square, so that the southern face is 165mm from the extension. That is the best reference point on this part of the boundary.

I see no justification for drawing a diagonal line between that point and Datum B. So far as is known, there has never been a fence in this position and the boundary would be expected to run parallel with the extension. Datum B has been justified on a different alignment, by virtue of establishing the line of the 1980 fence as marking the boundary from the west to that point. Moreover, as appears likely, and as Mr.Jeffery believes, the brick piers were on his side of the boundary and the nearest of them is 165mm from the extension. There is no evidence that the boundary has at any time been varied on the east-west length between Datum B and the gate post. In my judgment the boundary runs from the southern face of the gatepost to the timber infilling between Datum B and the extension, parallel with the extension and at a distance of 165mm from it. That leaves a small north to south step 135mm long, the difference between the 165mm just mentioned and the 300mm mentioned in the paragraph 16, at Datum B. East of the gate post, and to give effect to the agreed Datum A, 130mm from the north-east corner of the extension, I would draw a straight line from the southern face of the gate post to Datum A. It follows that the three brick piers were on the respondent’s land.

It follows that the declaration made by the judge as to the position of the boundary (paragraph 2 of order of 13 February 2003) cannot stand and the mandatory injunction requiring the appellants to remove concrete fence posts 1 to 4 and the length of fence to post 5 (paragraph 4 of order) ought not to have been made. The declaration in relation to the 3 brick piers (paragraph 3 of Order) was correctly made. The present Order as to damages (paragraph 2 of order of 6 February 2003) cannot stand.

I would hear counsel on the issue of costs and any matters which remain in dispute, including damages, and as to the form of the order. I would hope that, to prevent still more costs being incurred, outstanding issues can be resolved when the judgments are handed down. Skeleton arguments should , if possible, be submitted in advance of the hand down; existing arguments on damages have naturally been based on the judge’s findings as to the boundary. If, unfortunately, it should be necessary to remit the question of damages, that should not be taken as approval by the court of the way the judge has dealt with the issues as then before him or of his quantification.

To the extent I have indicated, I would allow this appeal. I remain incredulous as to how a dispute which ought to have been capable of prompt resolution escalated in the way it did.

Lord Justice Rix : I also agree