Kerdene Ltd v Pernull-Excell

This is an oral application for permission to appeal against an order of Mr Recorder Patterson dated 9 January 2009, which was considered by Mummery LJ on paper and rejected, but which Mr Pernull-Excell has, of course, the right to renew orally, as he has done. He has provided me with the basic papers, the judgment, the pleadings and so on, and he has also provided me helpfully with a lot of photographs and plans, some of which were before the trial judge, and some of which may not have been before the trial judge or at any rate not in properly legible form.

The history of the property is this. Mr Pernull-Excell undoubtedly owns a property known as 179 St Merryn Holiday Centre at or near Padstow. The claimant, Kerdene Limited, appears to own those parts of the holiday village that have not been sold off by way of individual sales and apparently has been in the process of developing certain parts further in recent years. The issue is as to the size of the garden of No. 179. The filed plan at the Land Registry shows that the garden does not extend very far beyond the end of the house to the north, but the contention is that in practice it has always extended quite a bit further and that that more distant boundary is the true boundary of the property as it was first of all sold off by the common owner, which was as long ago as November 1988, and as it has passed down by several stages to the present appellant.

In November 1988 Salcombe Ltd, which I assume then owned much of the holiday village, sold and conveyed the site of what became Nos. 176, 177, 178 and 179 to a company called Merryn Estates. No. 179 was later sold itself in, I think, March 1989 to another company. That is the point at which it was registered with a title by reference to the filed plan which is as now exists, showing a not very extensive garden. We have what I think must be the plan of the conveyance of the 9 November 1988, which appears to be the moment at which No. 179 and the adjacent properties came into separate ownership from the rest of the property now owned by Kerdene. That, therefore, is the conveyance by which the northern boundary was defined, because it is not suggested that, in terms of conveyancing, anything has happened since then to change that position. That plan is one that, I believe, was available at the trial. It shows the estate laid out in lots, although the details of the conveyance are such that that lotting was going to have to be varied, because the boundary of what was conveyed seems to have gone straight through what was going to be No. 175. Whatever may have happened as regards that does not matter for present purposes.

There is a straight boundary going, I suppose, more or less east-west along the side of No. 179 and the back of Nos. 178 and 177 and the side of No. 176. That straight line is a very important feature in the appellant’s arguments. What the plan does show is that Nos. 181, 180, 178, 177 and 176 and indeed some other houses shown on the plan all have a little space immediately adjacent to the house, which Mr Pernull-Excell tells me shows a garage, and 179 does not have a garage. He says that that may be because that was for a time occupied by the site manager, and it may have been thought that he did not need a garage and that a garage would not be provided with that property. For whatever reason, the garden of 179 is not as big, either on that or on the eventual filed plan, as the gardens of the other adjacent properties, but it does enjoy this straight line going back from the road along the backs of the adjacent properties. When the appellant bought the property himself, which was in 2002, it had the benefit of a rather larger garden. He makes no pretence of the fact that he was aware that the garden as it appeared on the ground was larger than the garden as it appeared on the filed plan. He says that he eventually took this up with the Land Registry, and the suggestion was made that it might be possible to regularise that and in due course an application was made with a view to regularising it under the Land Registration Act 2002, to which I will refer in due course.

At all events, that led to Kerdene Ltd bringing proceedings against him in order to establish that he was occupying land to which he was not entitled and to establish that Kerdene was entitled to the extra garden and with a view to confining his garden to the rather narrower extent that appeared to be correct according to the Land Registry filed plan. On Mr Pernull-Excell’s behalf, his solicitors and counsel defended the case and put in a defence and counterclaim, contending first of all that the fence which delineated the boundary in practical terms at that stage was the correct boundary and, secondly, that even if it was not, he was entitled to remain in possession of it by virtue of section 98 of the Land Registration Act, having been in occupation with his predecessors in title for at least ten years and having reasonably believed that the land belonged to them.

So he put two issues in by way of defence and sought by a counterclaim a declaration accordingly. Thus the first question that Mr Recorder Patterson had to consider at trial was where the true boundary was, and this depended on ascertaining the position on 9 November 1988. It seems that the judge felt that the conveyancing documents were not of great assistance. But he did have the plan attached to the conveyance which I have mentioned. Admittedly, it seems to have been referred to only for the purposes of identification, but nothing else was available other than any evidence that was produced to the judge as to any physical features. As regards physical features which might have indicated where the boundary was thought to be, there was a feature which was described as a “Cornish hedge”. That is not something with which I am familiar and I am not sure that the judge was, because he asked for a definition of that feature, which he refers to in paragraph 20. He says that the defendant gave evidence that there was such a feature and that would have been treated as the boundary, being the natural barrier immediately adjacent to the property.

In fact, since then, the appellant has been able to find an aerial photograph, which he has shown me, taken in April 1988, which shows that there was no such feature in that area at that time. So, to the extent that by a later date something in the way of gorse hedges and gorse bushes and rubble had arisen, that must have been part of the side-effects of construction on the holiday village.

The judge came to the conclusion that such construction as there was was more likely to be rubble from the clearance of the land than a carefully constructed Cornish hedge, so he felt that that was of no assistance in deciding what would have been treated as the natural boundary for the property. He then looked at such plans as there were. He looked at some plans prepared by a surveyor called Team Surveys Ltd, said to have been jointly instructed by the parties, although the appellant has something to say about that, and he says that that shows the northeast boundary as being no more than just over four metres from the defendant’s bungalow. His conclusion at the end was that the true boundary was on that four-metre line.

Mr Pernull-Excell contends that that is completely wrong for a number of reasons. He takes issue with the way in which Team Surveys went about their task, but I do not think that is really central to the case. What he says is that if you take that four-metre boundary and accordingly move his boundary back by some considerable distance towards his house, the result is that his boundary would be a good deal further south than the boundary of his neighbours at Nos. 178, 177 and for that matter 176 and there would not be the straight line which he says is a feature of all the plans starting with the conveyance plan of 1988. How, therefore, can that be right, he argues?

One of the difficulties of that argument is that he has to accept that his existing boundary is further away than the existing straight line as regards the neighbouring properties. He has made the point to me that he says he has offered to take his boundary back to being a straight line, but that would involve moving it only about a metre and a half and not the greater distance, which is what the claimants seek and what the judge has said is correct.

He argues that he has sought always to be reasonable. He has sought arbitration. He has sought a round-table meeting with documentation. He says that the judge was under a misapprehension if he thought that he had not tried to be reasonable and accommodating and reach a practical solution to the problem. But the fact is that the judge came to the conclusion on the basis of his assessment of the evidence as it related to the position in 1988. The material on which he had to make the position was pretty limited and actually the most important document is the plan annexed to the conveyance, which shows a smaller distance between the side of 179, the house as eventually constructed, and the northeastern boundary than that which is present enjoyed.

I find it very difficult to see how there could be any prospect that the Court of Appeal will be persuaded that the judge was wrong in his assessment of where the true boundary is.

Mr Pernull-Excell, in his very clear and courteous submissions this afternoon, has focused on a quotation in the judgment from a judgment of Carnwath LJ, saying “the question, therefore, is what would the reasonable layman think he was in fact buying?” Perfectly understandably, he has applied that to his position buying the property as it was in 2002, but of course by 2002 it had taken its present form, with a fenced-off garden, and the question is whether that is correct. That question has to be assessed by reference not to what the reasonable layman would have thought in 2002 but what the reasonable layman would have thought in 1988, looking at the property as it then stood by reference to the plans and other documents then available.

In my judgment Mr Pernull-Excell shows no reasonable prospect of persuading the Court of Appeal that the judge was wrong to interpret the evidence before him as he did.

He does seek to go further than that in at least one respect. There are, as I have mentioned, at least some additional plans, photographs and documents that he will wish to rely on, but I have not found anything there that is of sufficient important to make a difference in his favour. There is, however, a statement by a Mr Hancox, who bought No. 179 in 1998 and sold it to Mr Pernull-Excell in 2002. At the time of the trial he was thought to be available, because he had moved abroad and could not be found. He has made a statement, in the course of which he says that, when he bought the house in 1998 from a mortgagee following repossession, there was at that stage no marked boundary. He constructed a fence in a position in line with the fences of the others and he received no objection to the boundary fence.

If that evidence had been given at the trial, I am sure that Mr Recorder Patterson would have listened to it carefully, but he would not have been influenced by it in any way because it could not bear on the crucial question: what was the position in 1988?

The other aspect of the case at trial was that the successive owners of the property had been in occupation of the extended land for over ten years, reasonably believing that they were the owners and that, in those circumstances, there was a defence under section 98 of the Land Registration Act. That is not a point to which Mr Pernull-Excell has referred this afternoon, but it is a point mentioned in his documents. But all I need to say about that is it seems to me the judge’s conclusions on that were plainly correct.

The crucial issue on that aspect was as to what Mr Pernull-Excell’s state of mind was as regards ownership of the property. That is dealt with by the judge at paragraphs 55 through to 61 and the judge is right on that.

I can quite see that the situation is extremely aggravating to the appellant because he has been in possession of the extended garden for some time and his predecessors were for some considerable time, and he does not see why he should be required to bring his boundary back further than in line with that of his neighbours. But the question whether he must do so depends entirely on whether the judge was correct, and I have to say that I see no reasonable prospect of the Court of Appeal being persuaded the judge was not correct.

Accordingly, I propose to dismiss this application.