Durden v Aston

At the conclusion of the argument we indicated that this appeal would be allowed. We now set out our reasons.

The appeal concerns another unfortunate dispute between neighbours as to the correct position of the boundary between their two properties. It is a particularly depressing piece of litigation because (for the reasons which I will come to) the end result, after all the hostility, unpleasantness and cost generated by the proceedings, is that the boundary will remain more or less where it has been throughout the ownership of these respective parties.

The appellant owns and resides at 70, Union Road, Shirley, Solihull (“No. 70”). This comprises a semi-detached house and garden which was built in the 1950’s as part of the development of Bronte Farm. The land in question was then open farmland fronting on to Union Road. The freehold of the land was acquired by the developer, Herbert Johnson (Builders) Limited. The development comprised a row of semi-detached houses of which Nos. 72 and 70 formed the last pair at the western end of the site. The ordnance survey plan of the area prior to the development shows the boundary between the development site and No. 68 Union Road (“No. 68”) as a solid straight line and also indicates what appears to have been a path within the field about five feet wide which ran alongside and parallel to that western boundary so as to link the farmhouse at Bronte Farm with Union Road. The surface area of this path was included in the land conveyed to the developers.

The houses on the development were let on long leases to residential tenants. In the case of No. 70, there was a lease dated 1^st May 1958 to Mr Zozislaw Podraza which describes the demised property as having a frontage of 16 feet to Union Road. This is confirmed by measurements on the lease plan which indicate both the width of the frontage of No. 70 and the five foot width of the adjoining path lying between No. 70 and the boundary with No. 68. This path was retained in the ownership of the developer and may well have been retained at the time in order to provide a means of access from Union Road so as to service any future development of the remainder of Bronte Farm. In the event, this land (to the rear of No. 70 and the other houses on Union Road) was ultimately developed in the 1960’s with its own road access to another point in Union Road.

At the time of the grant of the lease in 1958 No. 68 comprised an older detached bungalow. In 1962 the lease of No. 70 was assigned to Mr Alan Gibson and in August 1964 he applied for planning permission to construct an extension to his house on that part of his garden adjacent to the boundary with No. 68. In the planning application Mr Gibson described himself as the part owner/part lessee of the land in question and there is a side note which says “We have bought a strip of land from neighbour”. That is a reference to a purchase which was completed on 21^st September 1964 after planning permission for the development had been granted on 16^th September 1964. The conveyance does not survive but it is referred to in a subsequent conveyance of the same piece of land to Mr John O’Rourke on 1^st April 1968 as part of the sale of No. 70.

That describes the land in question as lying between No. 68 and No. 70 with a frontage to Union Road and containing an area of 44 square yards or thereabouts. The extension to No. 70 was built on part of this land. The conveyance of this additional strip of land to Mr O’Rourke occasioned the first registration of title and a surveyor from the Ordnance Survey Office (a Mr Kaye) instructed by HM Land Registry therefore inspected the land and produced a report on 22^nd April 1968 which was in evidence at the trial.

As part of his instructions Mr Kaye was required to measure both the width of the frontage of No. 70 on to Union Road and the width of the strip of land acquired by Mr Gibson under the 1964 Conveyance. He measured the frontage of No. 70 as 6.4m (21 feet) and that of the additional land as 0.8m (2 feet 6 inches). He was also asked to identify the age and nature of the relevant boundary features. He did this by means of a plan which shows the boundary with No. 68 as an established hedge some 20 years old. The front boundary of No. 70 was marked by a wooden fence which extended as far as the boundary between No. 70 and the additional strip of land (marked as point B on the plan). There was then a low brick wall (described as more than 10 years old) which ran continuously from point B across the Union Road frontage of the additional land.

The additional strip of land was registered with title number WK83699 and the filed plan shows the strip running parallel with the boundary to No. 68 and as including the extension to No. 70 up to that boundary.

In 2001 the bungalow on the site of No. 68 (which had existed since before the construction of either No. 70 or its extension) was demolished and replaced with two semi-detached houses. The proposed site layout plan indicates that the hedge on the front part of the boundary with No. 70 was to be retained but that it had already been replaced by a close-boarded fence some 1.8m in height along part of the boundary between No. 68 and the extension to No. 70.

The photographic evidence shows that the bungalow at No. 68 had been built with a low brick front wall either side of a driveway up to the garage and front of the house. The main section of the wall was removed as part of the re-development but the developers left in place part of the short section of original wall on the side of the driveway adjacent to No. 70. At the time of this dispute this section of wall was physically part of No. 70 in that the closed-boarded boundary fence between the two properties ran from the western face of this section of wall leaving it enclosed within the front garden of No. 70. This point is shown as point G on what is now an agreed plan and I shall refer to it as such in this judgment.

I can now turn to the history of the dispute itself. Put shortly, the claimant discovered in about April 2008 that the defendant, Mr Aston, had been using the driveway and side passage of No. 68 in order to gain access to his rear garden. For this purpose he had removed one of the fence panels adjacent to the rear of the extension to No. 70. At the time No. 68 was tenanted and no objection had been made by the tenants to this use of their drive. But the claimant and her family did object and informed Mr Aston that his use of their property for access must cease. His response to this was that he had a right of way over the land in question. There was an altercation during which, according to the claimant, Mr Aston threatened to assault her father and the police became involved. Solicitors were then instructed and on 1^st December 2008 the claimant issued proceedings seeking an injunction to restrain the defendant from trespassing on her property. In his defence Mr Aston pleaded that the true boundary between No. 70 and No. 68 was that identified in the survey plan prepared in connection with the first registration of the title to the strip purchased in 1964 of which he was now the registered proprietor. As part of his Part 20 claim he alleged that the existing boundary fence had been erected within the land comprised in the 1964 conveyance and that, in using the side passage on the claimant’s side of the fence, he was simply passing and re-passing over his own land. The claimant’s reply was that the entirety of the additional strip lay on the defendant’s side of the existing boundary fence.

Experts were then instructed and the dispute about the boundary eventually came on for trial before District Judge Ingram in the Birmingham County Court on 6^th May 2010. The judge was hampered by the fact that there was no scaled plan setting out the existing physical features of the boundary and indicating the position of each side’s respective contentions about the boundary line. Nor was the expert evidence as helpful as it might have been. The defendant’s expert showed the existing boundary fence in the wrong place by indicating that it began from the eastern end of the surviving section of wall (marked as point E on the agreed plan) and not at point G. Point E is 21 feet from the established boundary between Nos. 70 and 72. His schematic plan of the site also indicated that a straight boundary line drawn from point E to the rear boundary would place the extension entirely within the title to No. 70. This was also inaccurate.

The experts met and produced a joint report setting out the points of agreement and disagreement. They were agreed that the short section of the brick wall between points E and G pre-dated the demolition of the bungalow and originally formed part of a larger boundary wall at the front of No. 68. They were also agreed that the development plan for No. 70 (which was attached to the 1958 lease) showed the 16 foot and 5 foot measurements referred to in paragraph 3 above.

What they disagreed about was the boundary point on the front boundary with Union Road. The defendant’s expert (Mr Wroughton) considered that the boundary had to accommodate the original 16 foot frontage of No. 70; the additional 5 foot strip not included in the lease but measured as being within the existing boundary of No. 70 on the 1968 ordnance survey carried out for the Land Registry; and the further strip purchased in 1964 which is represented for the most part by the surviving length of original brick wall between points E and G. Mr Wroughton calculated that an area of 44 square yards represented as an additional strip of land along the entire length of the boundary would give Mr Aston an additional 3 feet 2 inches (0.98m) of frontage beyond the 21 feet measured on the ordnance survey plan. He therefore supported Mr Aston’s claim to a boundary which lay within the existing curtilage of No. 68. By contrast, the claimant’s expert (Mr Moore) was of the view that only the original 16 foot wide frontage together with the additional 5 feet were included in the defendant’s title so that the correct boundary point at the front of the two properties was point E.

There was also disagreement between the experts prior to the trial as to the correct boundary point on the line of the rear boundary. But this was eventually resolved and does not feature as part of this appeal. Both experts agreed, and the judge therefore accepted, that the correct boundary point on the rear boundary was what is now shown on the agreed plan as point C which was marked by a wooden post. Nor was it suggested to the judge that the correct boundary should be represented by anything other than a straight line. Neither the filed plans nor the earlier conveyancing documents suggest otherwise. The issue for the court was therefore to fix the front boundary point on Union Road. Once determined it would then be a matter of drawing a straight line boundary from that point to point C.

The judge decided that the correct boundary line lay between points C and E. She accepted the argument advanced on behalf of the claimant that the defendant’s case depended upon the 5 foot strip already having been in the ownership of No. 70. The claimant’s case was that there was no evidence of the 5 foot strip ever having been conveyed to the owner of No. 70; and that the established hedge which marked the boundary prior to the construction of the extension appears to have been left largely in place. The evidence that the garden of No. 70 already included a 21 foot frontage on to Union Road depended on the accuracy of the measurements in the ordnance survey which could simply have been erroneous. The fact that the hedge remained in place until the redevelopment of No. 68 in 2000 was inconsistent with the intention of the 1964 conveyance being to transfer ownership of the strip including the hedge to the owner of No. 70. Therefore, although the claimant was in fact prepared to accept the line of the existing fence as the boundary, its correct starting point at the front was point E.

Having set out the contentions of the parties, the judge summarised the reasons for her decision as follows:

“51.

In considering where the boundary lies at the front of the property: In my judgment I accept the submissions of the Claimant’s counsel. The starting point is the filed plan at 699 for number 70 and 757 to number 68. Plans are subject to the general boundaries rule so the court can look at what is on the ground to determine the boundaries. There is an agreement between the experts as to the front; they measured between 70 and 72 on the front which is 21 feet (20’ 11’’ and the document says thereabouts). The physical feature on the ground at 20’ 11’’ is the brickwork pillar which is the historical boundary of number 68 which is shown on the photographs. I believe that on the balance or probabilities, that this shows the exact point of the front boundary.

…

53.

Assisting me in arriving at the decision I have had regard to the front and rear points, I accept that the starting point must be the operative conveyance, from September 1964 and that I have to construe it, as best I can, so as to determine the boundary between Nos 70 and 68. The operative conveyance states that the land conveyed was between Nos 68 and 70, such that there was no other strip of land between those two properties at the date of the 1964 transfer. I concur with the submissions made by the Claimant with regard to this, and do not repeat them here.

54.

The Defendant must satisfy the burden of what was conveyed under the 1964 conveyance, and I am entitled to look at probative extrinsic evidence in order to determine the position of the boundary. I agree with the Claimant’s submissions that I am not helped by the lay witnesses in this case. I am grateful to them for attending and I am satisfied that they gave truthful recollections to the court, and wished to be of assistance. However, they were only able to assist the court with their recollections about who assumed responsibility to assist in the cutting of the hedge, and its position/height width etc. This is not probative evidence about the ownership of the boundary or indeed the hedge. . I accept that the shrubs to the front of the property have probably more likely than not been in situ only for approximately the last 10 years, as the hedge was present until approx 2000.

55.

In my judgment I accept the Claimant’s submissions that the plan at p351 also is not probative – as this was a developers’ plan for the purpose of dividing 68 into 2 parcels, and is not cogent evidence with regard the boundary line between 68 and 70.

56.

In my judgment I accept the Claimant’s submissions that there is clear probative evidence that the land was purchased to build the extension at 70, and I accept that on balance of probabilities the hedge was left in position until 2000, and that no section of the hedge was removed to build the extension. I accept that it follows that it is not consistent, as the Defendant contends, that the conveyance was to transfer the hedge.. The 1968 Survey supports this and I agree with the Claimant’s submissions that no one queried the boundary, and the surveyor had the operative conveyance at the time, and the extension to 70 having been built upon the land, and the schedule to the documents [417] only refers to 3 titles not 4.

57.

Accordingly, therefore, I prefer the submissions from the Claimant, and the Defendant has not discharged the burden upon it, and it follows that the boundary should be drawn in a straight line between the front and rear points as declared above. I would hope that this does not cut through the extension, and if it follows the green dotted line on the plan at p68, (if it is accurate to that effect) it should not. However, I am informed by both counsel that an agreement would be reached so as not to involve any demolition; this is certainly not envisaged by this court. It has been agreed that any damages are nominal, which I agree is suitable in this particular case.”

Contrary to the judge’s hopes and, perhaps, expectations, the boundary line drawn from point E to point C does cut through part of the extension even though on the filed plan it is wholly contained within the boundaries of No. 70. The defendant now appeals against the finding that the boundary line should be drawn from point E. Although Mr Wroughton’s evidence at trial put the correct boundary point beyond the existing boundary fence, that contention is now abandoned and Mr Aston is content that the boundary should be drawn from point G on the agreed plan. We have therefore now reached the position that both sides will live with the boundary fence which has existed throughout the periods of their respective ownership. Mr Aston, whose use of the driveway of No. 68 sparked the dispute, has now resiled from that position but he wishes to overturn the judge’s determination that the existing boundary fence is over-generous to him even in its current position.

I turn then to the issue of where the boundary lies. There is a subsidiary issue about rectification which the claimant contends is necessary (but not possible) in order for the defendant to obtain the substantive relief which he seeks. But, in order to explain how that point arises, it is necessary to deal first with the rival contentions about the effect of the various documents of title.

If one goes back to the position when No. 70 was built it is clear that the 1958 lease demised the property with a frontage of only 16 feet and that this left a five foot wide strip of land in the ownership of the developers between No. 70 and the established boundary of No. 68. This is shown as a straight line on the ordnance survey plan thereby representing a boundary consisting of a fence or hedge. The judge was right to conclude that there is no evidence that this intermediate strip of land, which both parties accept was about 5 feet in width as indicated on the 1958 lease plan, was ever conveyed to the owner of No. 70 so as to become part of his paper title. But it is equally clear that this land has now been included in the registered freehold title of No. 70.

The claimant’s argument that any land comprised within the 1964 conveyance must lie to the east of point E has a number of formidable hurdles to overcome. In the first place, it assumes that the owner of No. 68 purported to convey land which was not in fact in her ownership. Although the 5 foot wide strip may not have been formally conveyed to Mr Aston’s predecessors in title, there is no suggestion that it was ever conveyed to the owner of No. 68. Assuming therefore that the intention was to transfer to Mr Gibson part of the land then comprising No. 68, the additional strip of land must have been within the boundary of No. 68 as shown on the ordnance survey plan and not part of the 5 foot strip.

The suggestion adopted by the claimant’s expert that post the 1964 conveyance the title to No. 70 consisted of no more than the original 16 foot frontage and the 5 foot strip, is also inconsistent with the express dimensions contained in the 1964 conveyance. As mentioned earlier, this described the land conveyed as having an area of 44 square yards or thereabouts. Converted into a rectangular strip along the whole length of the boundary between the two properties, this would produce an additional frontage width of only 3 feet 2 inches. To produce a width of 5 feet the surface area would need to be more than 80 square yards.

The next point to be considered is the position on the ground. The experts were agreed that the short section of brick wall between points E and G is what survives of the original front wall of the bungalow at No. 68. It therefore was in situ at the time of the 1964 conveyance and was obviously constructed on what was at the time part of No. 68. This section of wall survived the demolition of the bungalow because the new wooden boundary fence erected after 2000 began from point G. Although not conclusive, this strongly suggests that the positioning of the new boundary fence recognised the addition to the frontage of No. 70 of the 2 feet 6 inches represented by the wall. It is also consistent with the 1968 ordnance survey report which measured the length of the wall as the end of a 2 feet 6 inches wide strip on which the extension to No. 70 had been erected. This survey was carried out in preparation for the first registration of the strip as a separate title. As already mentioned, the survey also measured the existing frontage of No. 70 up to point E as being 21 feet which would obviously have included the 5 foot strip retained by the developers in 1958.

The judge mentions many of these points but does not really engage with them. In particular, she gives no reasons for accepting (if she did) that the measurements on the 1968 ordnance survey were inaccurate or for rejecting the evidence on the ground including the position of what remains of the front wall of No. 68. Nor does she attempt to resolve the obvious inconsistency between the terms of the 1964 conveyance (including its description of the surface area) and the area of the 5 foot strip or to explain why she accepted that the owner of No. 68 purported to convey land which she did not own.

What seems to have had a particular influence on the judge was the combination of the absence of any conveyance of the 5 foot strip to Mr Gibson and the way in which the additional strip conveyed in 1964 has been shown on the Land Registry plan. The title plan for title number WK83699 shows a strip of land within the physical boundaries of No. 70 but on which the extension to No. 70 has been constructed. The line of the boundary between the land comprised in that title and No. 68 remains, however, the same boundary line as shown on the ordnance survey plan for the area both before and after 1964. Hence it is submitted that the land comprised in this registered title was situated on the eastern side of an existing boundary hedge which remains unaffected by the transfer. If this is correct then it must follow that what has been registered under this title is part of the 5 foot strip.

This argument also formed the basis of Mr Mitchell’s submission that in order to obtain amendment of the filed plan (which was what Mr Aston sought as part of his Part 20 claim) it was necessary for him to seek rectification of the register. But I will come to that point shortly. If one considers the filed plan in relation to the determination of the boundary it is necessary to resolve the matter not simply by looking at the plan itself but also by relating it to the position on the ground without which it is meaningless. Consistently with the 1968 survey, the person responsible for preparing the filed plan has included within the registered strip the extension to No. 70. As the agreed plan now shows, this is not physically possible if the boundary runs from point E as opposed to point G.

The claimant is, of course, entitled to say that the scale of the filed plan and the fact that the ordnance survey plan on which it is based records only general boundaries makes it impossible to resolve physical disputes of that kind but that argument cuts both ways. The filed plan was intended to give effect to the transfer of the strip of land identified earlier in the 1968 survey on which the extension had been built. But it was not intended to be (and could not be) definitive as to the precise position of the boundary between No. 68 and this registered title which remained a general boundary.

The filed plan is therefore inconclusive for the purpose of determining where the boundary lies and it is necessary to have regard to the other relevant circumstances. All of those (which I have summarised earlier) point, in my view, to the boundary line commencing at point G. If Mr Mitchell is right and the land conveyed formed part of the 5 foot strip then the conveyance was ineffective to pass any title to Mr Gibson and Mr O’Rourke’s application for first registration proceeded on a wholly false basis. The most that he was entitled to was a possessory title. The claimant’s challenge to the accuracy of the measurements taken as part of the 1968 survey is also, in my view, entirely speculative and contradicts the position on the ground.

Perhaps the most compelling piece of evidence to indicate that some land in addition to the existing 21 feet was conveyed to Mr Gibson in 1964 was the physical integration of the 2 foot 6 inches length of wall between points E and G into the front garden of No. 70. On the claimant’s case this is inexplicable except by challenging the accuracy of the 1968 survey. Mr Mitchell bolstered this submission at trial by emphasising the absence of any conveyance of the 5 foot strip to Mr Gibson or his predecessors in title. But, in my view, that was no more than a neutral factor. An obvious explanation for the inclusion of the 5 foot strip within the curtilage of No. 70 was that it had been acquired by adverse possession once the development of Bronte Close had proceeded without it being utilised as a means of access. We are talking about a 5 foot strip of land which, by 1968, no longer had any terminus ad quem and was not therefore accessible except by the owners of No. 70. The most likely explanation is that the land was simply incorporated into the garden of No. 70. But even if there is no obvious explanation as to how it came to be included within the boundaries of No. 70, the evidence comprised in the 1968 survey plan and the other factors I have mentioned are only consistent in my view with the 1964 conveyance having transferred land outside the existing 21 foot frontage to No. 70.

The judge’s conclusion was for these reasons in conflict with the preponderance of the evidence. The reference in paragraph 56 of the judgment to the hedge not being removed seems to me not to be borne out by the developers’ layout plan for No. 68 which shows a section of hedge removed along the section of the boundary where the extension comes closest to No. 68. But the removal or otherwise of the hedge is inconclusive for the reasons already explained. There was no precise evidence as to the position of the central line of the hedge or as to whether it precisely corresponded to the line of the boundary prior to the 1964 conveyance. Much of the contemporary evidence in fact points the other way. The 1968 survey plan shows the line of the hedge meeting Union Road at point G, not point E. And the 2000 developers’ layout plan is consistent with this. I do not therefore accept that its non-removal proves that the post-1964 boundary ran between points E and C. In my view, the evidence clearly supports a straight line boundary between points G and C and the judge’s findings on the line of the boundary should be set aside.

The remaining issue is whether the court is precluded from granting effective relief in this case without making an order for the rectification of the register. This point arises because the defendant at the trial sought not only a declaration as to the position of the true boundary but also an order for the amendment of the filed plan. Mr Mitchell accepts that relief of the latter kind can be granted in appropriate cases without the necessity for the court to order rectification of the register under Schedule 4 to the Land Registration Act 2002. This issue arises primarily in relation to Mr Aston’s claim for an order requiring the amendment of the filed plan. There is no doubt that the court can make such an order without rectifying the register where its only purpose is to provide a more accurate plan of what remains a general boundary. Whether this will serve any useful purpose is, however, debateable given that any revised plan will do no more than to re-map what will remain a general boundary: see e.g. Derbyshire County Council v Fallon [2007] 3 EGLR 44.

For this reason, Mr Verduyn no longer seeks an amendment of the plan. He is content that the court should limit itself to a declaration that the true line of the boundary based on his client’s paper title runs between points G and C. Mr Aston is content to rely on this as effectively determining the present boundary dispute with the claimant. If he wants more permanent protection that will have to be sought by an application to the Land Registry.

In these circumstances, it is, I think, unnecessary for us to consider Mr Mitchell’s argument that an alteration of the filed plan in this case sufficient to show the additional strip (registered under title number WK83699) as within the pre-existing boundary between No. 70 and 68 could only be achieved by rectification under paragraph 1 of Schedule 4 to the 2002 Act. As explained in the decision of this court in Drake v Fripp [2011] EWCA Civ 1279, the question whether an amendment to the plan falls outside the scope of the general boundaries rule and involves an alteration of the respondent’s registered title (for which rectification is necessary) is a question of fact and degree. Mr Mitchell contends that the necessary amendment would require the relocation of the strip identified on the filed plan to a position to the west of the field boundary. This would involve not only a substantial alteration to the position of the registered land comprised in title WK83699 but also an interference with (and the rectification of) the claimant’s own registered title (WM752757) to No. 68 which depends upon the same boundary.

Although these arguments are not without substance, they do not now arise for determination on this appeal.

I would therefore allow the appeal and amend paragraph 1 of the order of the District Judge by substituting as the boundary line a straight line boundary between points G and C.

I am indebted to Patten LJ for his careful analysis of the issues arising on this appeal. I echo his comment about the depressing nature of this litigation. However, for the reasons he gives, I too would allow the appeal and amend paragraph 1 of the order by substituting as the boundary line a straight line boundary between points G and C.

I also agree.