Childs & Anor v Vernon

Boundary disputes between neighbours are wretched affairs: they cause misery and stress; they lead to costs which are often grossly disproportionate to the value being fought over; and as Lord Justice Mummery pointed out during the argument, they put a blight on the properties, because no sane person would want to buy a property affected by a boundary squabble, except perhaps at a significantly discounted price.

Mr Vernon is in dispute with his neighbours on both sides about their respective boundaries. He is the owner and occupier of number 19 Holly Close, West Chiltington, West Sussex. Number 17 is owned by Mrs Butcher. Number 21 is owned by Mr and Mrs Childs. The houses are detached with gardens at the front and back. They face approximately north/south with number 17 to the east and number 21 to the west of Mr Vernon’s property. The houses were built in 1976 as part of a development by Federated Homes Limited and the conveyances to the first owners were in 1997. The original owner of number 21 was Mr Chaplin. He sold it to the Childs in 1993. The original owner of number 19 was Mr De’Ath. In 1986 he sold it to Mr Mursell, who let it in 1996 to Mr Vernon under an assured shorthold tenancy. In 2001 Mr Vernon bought the freehold from Mr Mursell. Mrs Butcher bought number 21 in 1999. Her predecessor, Mrs Webb, had owned the property since 1984. The original transfers all refer to a builder’s drawing, number 8871/1 Revision C, amended 15 March 1976, and the Land Registry plans for each property are based on that drawing. At the time of the original transfers the rear gardens were separated by post and wire fences put up by the builders. The front gardens were intended to be open plan and the transfers contained covenants to that effect.

The original fencing was later replaced. The dates when this happened are not entirely clear. On the side between number 17 and 19, it happened before Mrs Butcher bought number 17. At some stage, some low fencing was erected between number 17 and number 19 at the front of the properties, although not in fact on the boundary line. In 1997 Mr Vernon replaced a section of the fencing between number 17 and 19 by a wooden lean-to extension, built off number 19. Not long after Mrs Butcher and her partner Mr Baker moved into number 17, they complained of encroachments by Mr Vernon. Relations deteriorated further in the summer of 2001 when Mr Vernon began doing further work on the extension to his property on Mrs Butcher’s side.

To cut the story short, on 12 June 2003 Mr Vernon began proceedings against Mrs Butcher in the Horsham County Court alleging that she had trespassed on his land, erected fencing on it and caused damage. In response Mrs Butcher said that the fencing had all been erected by Mr Vernon and she counterclaimed, asserting that he had caused damage to her property and that the lean-to encroached on her land.

Over on the other side, in 2002 the Childs built an extension on the side of their property facing number 19. Their case was that they built it entirely on their own property and left enough room for them to walk down the side of the house. Mr Vernon took the view that the extension encroached on his land and that when the Childs walked down the side of their house they were walking on his land, so he put up a fence to stop them. On 18 August 2003 the Childs started an action in the Chichester County Court claiming, among other things, an order for the removal of the fencing on their land. Mr Vernon denied that he had committed trespass and counterclaimed an order requiring the Childs to rebuild their extension so that it did not encroach.

On 19 May 2004 District Judge Taylor gave directions in both actions. He ordered that they be managed and tried directly after one another by the same judge. He also gave directions for expert evidence to be given by a surveyor, Mr Nicholas Symes. The directions stated:

“For the avoidance of doubt, Mr Symes shall act as a joint expert, the parties seeking to agree the terms of his instruction and, failing agreement, each instructing him separately, and his report shall address the position of the disputed boundaries and the extent and cost of repairing damage to property caused by the alleged trespasses.”

It is understandable why the District Judge thought that it would be right to appoint a single joint expert. He probably considered that the costs of two or even three experts would be disproportionate. He may have hoped that a neutral report would pave the way to a settlement. However, the task of a single joint expert in this type of case was going to be very difficult unless his role was quite strictly defined. In view of the state of relations between the parties, I think that it would have been better not to have had a single joint expert; but if there was to be a single joint expert, the court should have taken responsibility for stating explicitly in its order what the joint expert was to do, so that the expert and the parties all knew just what his role was to be. It was a recipe for trouble to leave it to the parties to try to agree joint instructions which, unsurprisingly, they failed to do.

On the issue of the boundaries the directions to the expert should have been that he should do the following:

What happened was rather different. Take the case of the dispute between Mr Vernon and the Childs. Mr Symes received different sets of instructions including witness statements about what had or had not happened in the past. He reviewed the evidence and expressed his opinion about what he thought was likely to have happened; he should not have been asked to do this. At the end of his report dated 25 October 2004 he provided a summary in which he said as follows:

“7.1

Bearing all the above in mind, and the superimposition of the current site survey over the various historic documents, namely the fencing plan, builders plan and Land Registry plan, I have arrived at a suitable position for what I consider to be an equitable arrangement for the boundary.

7.2

In arriving at my view I have taken into account the witness statements, what can be seen on the ground currently, the photographs and the various plans.

7.3

I therefore enclose as Appendix 9 what I consider to be a reasonable boundary line.”

On 10 February 2005 the Childs’ solicitors wrote to Mr Symes putting to him the following questions to which they received the following answers:

“14.

Q: In paragraph 7.1 you refer to ‘an equitable arrangement’ for the boundary. Please state whether the suitable position for this arrangement differs from the boundary as set out by Mr Chaplin and Mr De’Ath. If it does please show by reference to a plan any differences between that boundary position and the suggested suitable arrangement.

“A: This is where the boundary between the two properties has been removed and I endeavour to show what I consider to be an equitable boundary on the basis of the evidence collated from the various plans and the witness statements. Since Mr Chaplin and Mr De’Ath refenced the boundary, both current owners have erected new fencing and removed old fencing. I would hope that the red line shown on the plan would fairly reflect what I consider to be the reasonable boundary line.

“Q: Please explain why you considered it necessary or appropriate to make this suggestion.

“A: As noted above, that is why I felt it was necessary to make this suggestion. In my discussions with Mr Vernon he appeared generally in agreement with the suggested boundary line.

“Q: To what extent is the boundary line described in the Land Registry plan relevant if after registration the boundary fences have been replaced by the parties consensually?

“A: As has been noted in my report the Land Registry plans are only one part of a series of factors that I used to determine the boundary position. As I have noted in my report, unfortunately there are errors with both the Land Registry and Ordnance Survey plans.”

Clearly, the line shown on Mr Symes’ appendix 9 was not based simply on original drawings but on a combination of those drawings and his analysis of what various people had said they had done at various times. It would not be clear to anybody from reading the report exactly how that line was arrived at, other than that Mr Symes thought that this was a fair suggestion to put forward in the light of all the various pieces of evidence. Inexcusably, Mr and Mrs Childs’ solicitors failed to send Mr Vernon a copy of those instructions or Mr Symes’ reply; Mr Vernon was unaware of them until after the trial.

The actions came on for trial before HHJ Coltart at Lewes Combined Court on 24 August 2005. It was agreed at the outset that he would deal with the boundary issues and that consequential issues would be dealt with subsequently. The judge heard factual evidence, not only from the parties but also in particular from Mr Chaplin, the original owner of number 21, and he heard evidence from Mr Symes. The judge rejected an argument by Mr Vernon that the boundaries could be established simply from the original plans. The judge said:

“I am satisfied in this particular case that although the conveyances do not specify that the plans attached are for the purposes of identification only, that the plan that was used throughout, the builders’ plan, is not sufficiently detailed for it to be possible to determine with accuracy where every boundary should be. That is also the opinion of Mr Symes, the jointly instructed expert. He says it is nigh on impossible to determine the boundaries from the Land Registry plan.”

The judge continued:

“I think [that] the law follows common sense in saying that it is in those circumstances appropriate to look at the reality of the situation. What happened -- and one knows this from the evidence that I have heard -- is that during the course of construction, probably after the houses themselves were built but before anybody moved in, the developers arranged with their builders for post and wire fences to be erected between the various properties to be the boundaries between the as yet uncultivated gardens and between the houses themselves. These fences did not extend into the area in front of all the houses because, as I have already said, there is a prohibition on any sort of division or fencing at that point.

“In this case, unlike some, there is evidence going back to the erection of these houses from the original owners and so I have had the advantage of hearing or reading what the original owners have said about their boundaries and what they did about them.”

The judge then proceeded to review that evidence. In the case of the boundary between numbers 19 and 21, he accepted as reliable the evidence of Mr Chaplin that he and Mr De’Ath had put in a gate post at the front of the property replacing a post of the original fence. The judge found that the post marked the boundary at that point. To the south of the gatepost between the two houses there was the remains of a shallow wall built by Mr Chaplin, which the judge accepted was on the line of the boundary. The judge found that the boundary to the north of the gatepost, ie to the front of the property, continued in a straight line. This meant that there was a wedge-shaped piece of grass to the front of the property between the boundary line and some concrete which Mr Chaplin had laid as a driveway for his car; that conclusion also accorded with the evidence of Mr Chaplin.

Although Mr Symes’ answers to the additional questions put to him had not been disclosed to Mr Vernon, they were referred to in a skeleton argument put before the court by Mr Widdup, counsel appearing both for the Childs and for Mrs Butcher, so the judge must have been aware of them. Mr Vernon was acting in person. As to the suggested line proposed by Mr Symes in his appendix 9 the judge said:

“It is right to say that in an attempt to produce perhaps a sensible compromise in this case in both of his reports he proposed a boundary which he thought might be acceptable to both sides in whichever dispute it was that he was dealing with. It is Appendix 9, his suggested boundary line. He accepts that he was not, by that, intending to say that that is where he thought the boundary truly was, but merely putting forward something that he hoped might be a practical compromise. He realises now that that perhaps was slightly beyond his brief, and has apologised for any confusion that that has caused. But it has not caused any confusion for me, because I am satisfied on all the evidence that the boundaries are and should be where I have stated them to be.”

From that extract from the judgment, Mr Symes seems to have said different things at different times about what the line on his appendix 9 was supposed to represent, but as the judge said, it caused him no confusion because he based his judgment effectively on the evidence of Mr Chaplin.

The judge considered an argument by Mr Vernon that the line found by the judge to be the boundary line could not be right because it would produce a kink in the boundary line at the back of the houses and there was no indication that the line had initially been intended to be anything other than straight; quite the contrary. The judge took the common sense view that since the fence at the rear had been replaced at a time when the respective owners were on good terms and not fretting over small matters, it was virtually impossible to tell where the original line had there been. He added:

“It seems to me that from what has been said during the course of this case that it will be inappropriate and not proportionate for there to be any material change to the existing boundary fence where it runs from the bottom of the garden up until it gets to the point by the corner of Mr Vernon’s shed, both parties being agreed that [it] is sufficiently close to the original boundary not to justify them moving it and replacing it millimetres one side or the other.”

It followed from the judge’s conclusion that the Childs’ extension was built on their own land. As to the boundary between number 17 and 19, the judge noted that it was common ground that the low fence at the front was on Mr Vernon’s land and did not represent the true boundary. Mrs Butcher was happy for it to be moved. There was also no quarrel about the fence at the back. The battle was over where Mr Vernon had built his lean-to and whether that encroached on Mrs Butcher’s land. Mr Symes concluded that the distance between the side wall of the Mrs Butcher’s property and the boundary was 1570 millimetres. He based that on a drawing prepared in 1981 by a Mr Neill, an architectural technician in a firm who had been instructed by the then-owner of number 19 to prepare plans for an extension.

Without going into further details in the matter, the judge found that this was the boundary line. During the trial Mr Symes was asked to measure the distance from the side of Mrs Butcher’s property to Mr Vernon’s lean-to. He came back with measurements showing that the wall of Mr Vernon’s lean-to encroached by 4 millimetres at the northern end, but only at the northern end. The roof edge overhanging Mrs Butcher’s land encroached by 114 millimetres at the north end and 93 millimetres at the south end. On the strength of that evidence the judge found that the lean-to was on or in some places slightly over the boundary. At the end of the trial he made an order to which I will return.

Mr Vernon prepared his own notice of appeals against the judge’s decision both in relation to the boundary between numbers 17 and 19 and in relation to the boundary between numbers 19 and 21. Permission to appeal was refused on paper but was granted by Lord Justice Mummery, after hearing oral submissions on Mr Vernon’s behalf by Ms Radcliffe, who has also appeared for him on the appeals. The respondents have been represented by Mr Pascall; so neither counsel appeared below.

Lord Justice Mummery gave leave to appeal principally on a new ground, which was that the trial had been unfair through a serious procedural irregularity of which the judge was unaware. The complaint in brief was that at court the supposed joint expert took part in discussions with the respondents, their solicitor and counsel, from which Mr Vernon was excluded and which materially affected the evidence that Mr Symes gave. The principles are absolutely clear and were spelled out by this court in P (A Child) v Mid-Kent Area Healthcare NHS Trust [2002] EWCA Civ 1703, [2002] 1 WLR 210 in terms that nobody could misunderstand. It would be wholly improper for one party to have any discussion about the case with a joint expert at court in the absence of the other party (unless with the other party’s fully informed consent and an unrepresented party could not give fully informed consent without knowing his rights).

The evidence about what actually took place is much less clear. According to a witness statement of Mr Vernon, on the morning of the first day of the trial he told Mr Hills, the solicitor for the respondents, that he wanted to have a conference with everyone, including Mr Symes, to see if they could agree boundary lines. Mr Hills suggested that they met at lunchtime. At 1.00pm Mr Vernon spoke again to Mr Hills. Mr Hills said that Mr Widdup needed a conference with Mr Symes but he would try to fit it in at 1.45pm. At 1.45pm Mr Hills said that they had run out of time.

On the next day, according to Mr Vernon’s statement, Mr Symes and Mr Widdup had another detailed conversation before court, which Mr Vernon was not invited to join. Mr Widdup and Mr Symes provided short statements. Neither of them commented directly or in detail on Mr Vernon’s statement. Mr Widdup said that he had a prehearing conference at court with his clients, but he did not believe that Mr Symes was present. Mr Symes gave evidence that day and was asked by the judge to go back to the site to take further measurements. Mr Widdup said that he probably spoke to Mr Symes after court to clarify a measurement and again on the following morning to find out what the additional measurements showed. Mr Widdup recalled having no contact with Mr Symes before he gave evidence, apart from merely being introduced to him. According to Mr Symes’ statement, he did attend the meeting at court before the start of the hearing at which the respondents and Mr Widdup were present. He was asked by Mr Widdup to clarify certain distances but the meeting was brief. No written statement was provided by Mr Hills. The respondents’ solicitors asked Mr Vernon’s solicitors if they required Mr Widdup or Mr Symes to attend the appeal so that they could be cross-examined and were told that the respondents had no wish to cross-examine them.

At the start of the appeal counsel stated their respective positions. Ms Radcliffe’s position was that Mr Vernon did not accept the truth of Mr Widdup’s or Mr Symes’ statements, but their presence was not considered necessary for the purposes of cross-examination because their evidence was so short and internally inconsistent. Her submission was that there had plainly been some impermissible contact and that it could be demonstrated that it affected Mr Symes’ evidence. Mr Pascall’s position was that the respondents had legitimately taken it that the accuracy of Mr Widdup’s and Mr Symes’ statements was undisputed because they had not been required to attend. If Ms Radcliffe wanted to suggest that there was more extensive contact than disclosed in those statements and that this had influenced Mr Symes’ evidence, then the respondents would want an adjournment for those witnesses to give evidence. Mr Pascall also sought to put in a statement from Mr Hills, which we did not read.

The situation with which the court found itself faced was both unusual and unsatisfactory. Plainly, the court could not resolve the differences between these various accounts without hearing from the witnesses. On the other hand, we were loathe to adjourn the appeal if this could be avoided because an adjournment would be for several months. So we decided to continue with the hearing of the appeal in order to dispose of it if we properly could. This necessitated examining whether any discussions involving Mr Symes outside the court room may have had a bearing on the judgment. It is convenient to take first the case between Mr Vernon and the Childs.

Mr Vernon’s evidence was that, after Mr Chaplin had given evidence that the gatepost to which I have referred was on the original boundary line, Mr Symes gave evidence supporting him, in contrast with his drawing at appendix 9 in which he had placed the boundary line nearer to the Childs’ house than the gatepost. In his judgment the judge had a lot to say about the evidence of Mr Chaplin which he accepted as factually accurate. But he made no reference to Mr Symes supporting that evidence. His only reference to Mr Symes’ position regarding the boundary was his reference to the drawing at appendix 9, as to which I have already read the relevant extract from the judgment. The judge treated this as nothing more than an attempt to broker a compromise, based on the evidence which he heard from Mr Symes.

The judge could not have made it clearer in his judgment that his finding as to the boundary was based on the factual evidence of Mr Chaplin rather than any opinion evidence of Mr Symes, and I can see no ground on which that finding can properly be disturbed. It was argued before us, as it was argued before the judge, that this result had to be wrong because it would produce a kink in the boundary line at the rear of Mr Vernon’s house. We have not seen any drawing which would show the degree of the kink, but I can see no reason to fault the judge’s approach to this argument. Frankly, nobody was bothered about the line of the fence to the rear of the properties. The fencing at the rear was not the original post and wire fencing, and it is perfectly possible that it did not follow the exact line of the original fencing. The essential point in my judgment is this: the judge was fully entitled not to regard the argument about the kink as a sufficient reason to reject the evidence which he had heard from Mr Chaplin about the boundary line between and in front of the houses.

I would therefore dismiss the appeal in the case between Mr Vernon and the Childs.

I turn to the case between Mr Vernon and Mrs Butcher. As already recounted, the judge’s finding as to the boundary line between number 17 and 19 was based on the Neill drawing. Mr Symes commented in detail on that drawing in his report and it is not suggested that his evidence on that matter changed in any way during the trial. The only relevant addition to his evidence was that at the judge’s request he went back to the site and took further measurements. It is not suggested, and could not be suggested, that any discussion involving Mr Symes and Mr Widdup outside court affected that finding by the judge as to the boundary line being 1570 millimetres from the flank wall of Mrs Butcher’s property. To say that is emphatically not to condone any such discussion.

But Ms Radcliffe had other grounds of appeal. In his reply, which contained a statement of truth, Mr Vernon stated that the lean-to and its guttering were built with the agreement of Mrs Webb in 1997. On this point the judge said in his judgment as follows:

“Mr Vernon has from time to time asserted that he and Mrs Webb agreed that this lean-to could occupy its present position and if that meant that it was either on or just over the true boundary line then that is something which they agreed between them and which should govern the position. I say he has asserted that from time to time; it is not entirely clear to me whether he is maintaining that or merely maintaining that certainly as between them there was that agreement but it does not bind any successors.”

The judge went on to hold that if there was any such agreement, it was legally irrelevant because Mr Vernon was then an assured shorthold tenant and he had no authority to make lasting changes to his landlord’s property. In this respect the judge accepted the argument presented by Mr Widdup in his skeleton argument. Regrettably, Mr Widdup did not refer the judge, as he should have done, to all the relevant authorities. He particularly should have done so since Mr Vernon was a litigant in person. In my judgment the judge was wrong to conclude that whether Mr Vernon had built his lean-to by agreement or with the acquiescence of Mrs Webb was legally irrelevant for two reasons. First, it is clear from a line of authorities not cited to the judge, which date back to Kingsmill v Millard (1855) 11 Exchequer 313 and were more recently reviewed and summarised by Neuberger LJ in London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923, that a tenant who encroaches on a neighbour’s land is presumed to act for the benefit of his landlord. The landlord, of course, can repudiate his conduct, but there was nothing in law to stop Mr Vernon when he became the freeholder from taking advantage of the effect of any agreement which he may previously have made with Mrs Webb. Secondly, and in any event, it did not follow that because there was an encroachment on Mrs Butcher’s land the right order was necessarily to require that the encroachment be removed. That brings me to the order which the judge made.

The judge ordered that Mr Vernon should remove all that part of the lean-to which was located on Mrs Butcher’s land or projecting over it so as to allow her a width of 1570 millimetres between her house and a fence to be erected by her. He went on to make various further consequential orders. We are told that this order was prepared by Mr Widdup and it appears to have been made without any further argument. Whether such an injunction ought to have been granted involved an exercise of discretion. There were a number of factors to consider. If the lean-to had been there since before Mrs Butcher bought the property, and if it had been built with the agreement or acquiescence of Mrs Webb, there was plainly an argument to be made that it would be unreasonable for her successor to require its removal. There were other potentially relevant factors to consider, such as the degree of harm which the extension and its overhang may have been causing to Mrs Butcher and the cost of alterations to remove the encroachment. Unfortunately, there does not appear to have been any discussion on these matters.

It follows that the judgment in favour of Mrs Butcher must in my view be set aside, at least in part, and the question is what should now happen. I do not think it would be right for this court to make a finding that there was an agreement between Mr Vernon and Mrs Webb, as he alleges. The judge made no finding on the issue and we do not have full details of the evidence before him. The judge said in his judgment:

“There has been some evidence that Mrs Webb at the time had recently been widowed and was vulnerable, and it is suggested that she was in some way taken advantage of by Mr Vernon. I am not prepared to go as far as making any findings about that although I do not necessarily rule it out as a possibility.”

We are not in a position to evaluate that evidence.

There is obviously a difference between true agreement and mere unwillingness to protest for fear of unpleasantness, particularly if Mrs Webb was thinking about moving. What is to be done? One possibility would be to order a partial retrial. The retrial would be on the basis that the boundary line between numbers 17 and 19 was where the judge held it to be subject to the issue of an agreement between Mr Vernon and Mrs Webb. The questions on the retrial would be whether there had been an enforceable boundary agreement and, whether or not there had been such an agreement, what order should be made. I would, however, be reluctant to see this case go back for another round of litigation. Mrs Butcher indicated through her counsel that she would much prefer finality. I would therefore provisionally propose that the court should dispose of the matter as follows:

I should add some explanatory comments. The refusal of an order for the removal of the encroaching part of Mr Vernon’s lean-to would reflect the fact that, in circumstances which have not been fully explored, Mrs Webb allowed it to be built without protest and that it has been in place since before Mrs Butcher bought number 17. The order about the guttering and discharge of rainwater seems fair in principle and is based on a suggestion by Mr Symes in paragraph 9.2 of his report. The declaration as to the boundary reflects the findings of the judge. The net result would be that the lean-to would be encroaching to some degree, but there would in all the circumstances be no order for its removal. The stay of the claims and cross-claims for damages is intended to bring peace, or at least cessation of hostilities, and to prevent further disproportionate costs from being incurred. The order that each party bear its own costs below would reflect that there was a finding of encroachment but no order for removal. Ms Radcliffe made the point in her submissions that in terms of measurement the major encroachment was in the front garden, about which Mr Vernon won, but there would never have been a trial about the low fence in the front garden. The judge said in his judgment about that post and rail fence:

“It is accepted by Mrs Butcher that that is not in the right place, and there is no dispute between the parties that the boundary line runs to the east of that, and it is up to Mr Vernon to decide whether or not he wishes that fence to be retained or removed. Technically, it should not be there anyway, and any boundary that I find there to be should be further to the east.

But the problem has arisen in relation to a fairly substantial lean-to building that Mr Vernon has put on the side of his house.”

The costs of the appeal are another matter. Subject to any further argument, as between the Childs and Mr Vernon the costs should be paid by Mr Vernon, because he has lost his appeal. As between Mrs Butcher and Mr Vernon the costs should be paid by Mrs Butcher, because he has won his appeal.

I refer to my proposed order as a provisional order because the parties should have the opportunity to consider whether they wish to oppose it and, if so, what alternative order they would ask this court to make, although I would not encourage them to take that course. There are in these cases never complete winners. Everyone ends up out of pocket to some extent and the sooner the process can be stopped the better. In the case of the action between Mr Vernon and Mrs Butcher, to have a further trial would be an expensive exercise for a dubious return, not to mention the intervening stress.

Subject to any further submissions I would dispose of these appeals as I have indicated.

I agree

I agree and I express the hope that the very full and fair judgment which has been given by my Lord, Lord Justice Toulson on these unfortunate disputes will lead to an improvement in the future relationships between these neighbours.

Appeal dismissed.

Application granted.

Appeal allowed.