[2025] UKFTT 00921 (PC)
REF/2023/0514
PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
MATTHEW DAVID GOULD & ALICE ELIZABETH SHIRLEY
Applicants
and
CHERYL JANE HAMILTON
Respondent
Property Address: 3 Gaskell Road, Altrincham (WA14 1JF)
Title Numbers: MAN144588 and GM730847
Before: Judge Laura D’Cruz
Sitting at: Manchester Employment Tribunal
On: 25th & 26th March 2025
Representation: both parties represented themselves
Key words: Determined boundary – extrinsic evidence – boundary agreement – adverse possession
DECISION
1. The matter that has been referred to the Tribunal is the Applicants’ application to determine the exact line of a boundary.
2. The Applicants are the registered proprietors of 3 Gaskell Road, Altrincham WA14 1JF, registered under title number MAN144588 (“Number 3”), extracts from the title plan below.
Number 3 Title Plan Enlargement
3. The Respondent is the registered proprietors of 1 Gaskell Road, Altrincham WA14 1JF, registered under title number GM730847 (“Number 1”).
Number 1 Title Plan
4. The boundary between Numbers 1 & 3 is not shown as a straight line, as can be seen on extracts above, and also on an extract from HM Land Registry’s Illustrative Plan below: A-B does not line up with C-D/E.
Illustrative Plan
5. There is no dispute about the boundary from C-D/E; it is A-B-C that is contentious. I shall refer to A-B-C as the Boundary.
6. Both parties acquired their properties relatively recently: the Applicants in 2020 and the Respondent in 2019. In July 2022, the Respondent commenced work to lower the ground level of Number 1 to align with the ground level of Number 3. The Applicants agreed to the Respondent removing the existing fence between the properties to facilitate the works. It was when it came to reinstating the fence that this dispute arose.
7. The Applicants’ case runs as follows:
(a) the Boundary was created when one of their predecessors purchased a strip of land from Number 1 in 1967;
(b) a fence was erected between the properties in 1967. I will refer to the line along which this was erected as the Fenceline;
(c) a fence has remained in place along the Fenceline until the recent issues between the parties;
(d) the Fenceline marks the Boundary;
(e) the plan produced by their surveyor accurately maps the Fenceline;
(f) the Boundary should be determined as claimed.
8. The Respondent avers that the fence between the properties was moved in recent years, meaning that the fence that was in situ when the parties bought their respective properties was not along the Fenceline. Moreover, she does not accept that the plan accurately maps the Fenceline.
9. It is for the Applicants to establish on the balance of probabilities that the Fenceline is the Boundary, and that it has been accurately mapped.
Creation of the Boundary
10. The boundary of a registered estate as shown on the register is only a general boundary; it does not determine the exact line of the boundary (section 60 of the Land Registration Act 2002). However, a proprietor may apply for the exact line of the boundary to be determined pursuant to rule 118 of the Land Registration Rules 2003.
11. The starting point is the deed which created the boundary, that is, the deed which divides the land either side of the boundary into two separate parcels.
12. The Applicants do not have a copy of the conveyance creating the Boundary. However, there is other evidence as to how and when it was created.
13. Firstly, the Charges Register to Number 3 states that the land tinted blue is subject to a yearly rentcharge, but goes on to say “By the Conveyance of the land tinted blue on the title plan dated 11 January 1967 made between (1) County Council for the Administrative County of the County Palatine of Chester and (2) Charles Harold Evans and Peggy Joy Evans the land was informally exonerated from this rentcharge”.
14. Secondly, there are extracts from Mr Evans’ diary, provided by Nicholas Shaw, his son-in-law (and also father of the Applicants’ predecessor in title). In his witness statement, Mr Shaw says Mr Evans was “a very methodical man and kept records of all work undertaken at the property”. These are handwritten, but mostly legible, and I set out the relevant parts below:
(a) October 9 1965: “Cheshire County Council accepted proposal to purchase strip of land 55 feet from front wall to pram shelter, 18” wide which consisted of old brick boundary wall between nursery and No 3 (to enable to park car in rear)”
(b) January 16 1967: “Paid solicitor… for conveyance for transfer of wall and land from Cheshire County Council – also paid CCC £1=00 for same (nominal sum only charged”;
(c) Jan 20 1967: “Received deeds – completed”
(d) Jan/Feb 1967: “Commenced demolition of brick wall (used old bricks for path bases). Ordered concrete post, base concrete panels & wood interwoven fences”
(e) March 1967: “Wall removed & fence completed. Drive completed and chippings laid (access for car to rear completed)”
(f) April 15 1967: “Made car-port”.
15. Thirdly, there is an undated photograph which shows a car under the car port. The fence – concrete posts and base panels, wooden panels – can be seen in the background.
Historic Photograph
16. I do not have a copy of the conveyance creating the Boundary. However, even if there were any inconsistency between the land conveyed by the conveyance and the location of the fence that was erected, its erection without any dispute from Number 1 would amount to a boundary agreement fixing the boundary along its line and/or would extinguish Number 1’s title to the land on Number 3’s side of the fence by adverse possession.
17. I am therefore satisfied that the Fenceline is the Boundary.
The Fenceline
18. The real factual dispute between the parties is as to whether the fence that was in situ when they purchased the properties followed the Fenceline or not: the Applicants aver that it did; the Respondent avers that, in 2019, the fence was replaced in a different position.
GoogleMaps images
19. I start first by considering a series of images from GoogleMaps showing the front of the properties in May 2009, October 2014, June 2016, April 2019, and December 2020. These all show a fence in the vicinity of the Boundary – whether it is the same fence and/or in the same position is the issue.
20. Up until the photographs from April 2019, the front of Number 3 is a gated gravel driveway. By April 2019, the gate has been removed and the driveway is now block paved.
21. The photographs show that, throughout this period:
(a) the driveway does not abut the fence. Rather, at the front, there is a narrow strip of what appears to be boxed in planting. By April 2019, there is also an edged gravel strip beyond the boxed in planting;
(b) the fence is shown as stopping short of the pavement. To the front of the fence there is a particularly tall concrete post (not part of the fence), to which is attached a corner section of black railings (running approximately in line with the fence for a very short distance before turning through 90° to run parallel to the pavement). The railings are above a white-painted wall which runs along the pavement at the front of Number 1;
(c) there is a telegraph pole on the pavement in front of the tall concrete post;
(d) the front three concrete posts that form part of the fence are shorter than those further back.
22. These features are illustrated on the following images.
May 2009 #1 April 2019 May 2009 #2 December 2020
Applicants’ case
23. The Applicants rely on the evidence of various witnesses that a fence has remained in the same position along the Fenceline since 1967.
24. Kean Woodmansey (14, Gaskell Road since 2019), Pamela Bradshaw (6, Gaskell Road since 1946), Simon Daniel (10, Gaskell Road since before 2016), Rob & Juliana Edge (16, Gaskell Road, knowledge of the area since 2014/15) all mention the boundary being a straight line parallel to both gable ends, marked by the concrete post to the left of the black gate post. Ms Bradshaw specifically describes this as a tall post. It appears that they were all shown the GoogleMaps photographs before making their statements.
25. The views of neighbours as to the location of the Boundary are not of any real value – the location of the Boundary is a legal question, not a factual one, and witnesses should be giving evidence of facts that are within their knowledge. That said, the gist of all of this witness evidence is that the fence did not move, which is a matter of fact.
26. More specifically, the Applicants also aver that the concrete posts and panels have remained the same, although the wooden panels have been replaced. This comes from the written evidence of Mr Shaw. He explains that he spoke to his wife and his sister-in-law regarding Number 3, and this is how he learned of the conveyance and fence erected in 1967.
27. He states, “My son and I did replace the boundary fence panels between number 3 and 1 Gaskell Road in 2019. However, only the fence panels were changed and we utilised the existing concrete posts and base panels. Owing to the higher land of 1 Gaskell Road, replacing the concrete fence posts and base panels was not feasible. For absolute clarity, the boundary position has not moved since 1967”.
28. None of the witnesses attended to give evidence, save for Mr Woodmansey, who was not very clear about which post he was referring to in his statement, but was clear that the fence had not moved. This means there has been no opportunity for the evidence of the other witnesses to be tested, and therefore less weight should be attached to their evidence. That said, it does amount to a small body of consistent evidence, supported by Mr Woodmansey’s oral evidence.
29. Mr Shaw is the most important witness as he gives evidence of the works themselves. In relation to his comment that removing the base panels would not be feasible, I note that the Respondent herself makes much of the height differential and the need for Number 1’s land to be “held in”. I do not go so far as to find that removing the panels was not feasible without further evidence, but certainly I accept it would have been a difficult task.
30. Perhaps most importantly, I find it very difficult to see any change to the position of the fence from the GoogleMap images.
31. In addition to the images and the witness evidence, the Applicants also argue that it would not have been possible to move the fence because of the existence of a shed on Number 1 (which can be seen on an aerial photograph below). However, without better photographs of the shed before 2019, it is not possible to determine whether there is anything in this or not.
Respondent’s case
32. The Respondent relies on the written evidence of Kevin Hughes, of 30, Gaskell Road. He states that he has been resident in Gaskell Road for over 46 years, and mentions stopping to talk to Peggy Evans over the black gates before her passing. He states that Peggy’s nephew purchased Number 3 to develop it and sell in, widening the driveway, putting down block paving, and replacing the fence for a higher one.
33. 
He comments that the later GoogleMaps images from April 2019 and December 2020 are of poor quality, and goes on to refer to a satellite image he has found (extract reproduced to the right), saying “you can clearly see the initial new fence” erected after Peggy Evans’ death. He says the fence cuts in to Number 1’s land after the shed, is in no way straight, and that this is “evident from the lack of paving on 3 Gaskell Road’s side up to this fence and where the paving stops up to the original fence posts at the back of the property. I can only assume this was done to allow vehicle/machine access to the rear of the property whilst the extension was being done and has remained like this even after the extension was completed”.
Aerial Photograph
34. I begin by noting that, like opinions as to the location of the Boundary, the views of a witness as to how to interpret photographs are not of any real value.
35. What is difficult about Mr Hughes’ statement is that it is hard to understand which parts, if any, come from his own knowledge. It seems to me that, at its highest, his relevant evidence of fact is that the driveway was widened (albeit during the hearing it was accepted that this was a reference to the other side of the driveway), and the fence replaced with a higher one, but he does not expressly say that the fence moved position. His statement does not provide clear evidence that the fence as it was in 2019 was not in the same position as the fence in 1967.
36. The Respondent in fact accepted that she thought the “jutting in” by the shed was temporary, but that it shows some posts must have been moved. I do not accept that this necessarily follows. The Aerial Photograph is not very clear. It appears to show a structure in a straight line save for a stretch just below the shed, where it curves into Number 1, but that stretch could well be between two posts.
37. I turn next to the issue of the rear end post of the Fenceline. On or around 30th January 2023, the Respondent removed part of the block paving forming part of Number 3’s driveway and laid her own edging flags. Then, on or around 21st February 2023, she lifted her edging flags, removed more of the block paving, and relaid the edging flags further across. This seems to be because, in carrying out the works, she discovered a fence post within what had been a boxed off area at B-C on the plans above. An aerial view of the boxed in area is shown below.
Original fence post
as averred
by the Respondent
Original fence post
as averred
by the Applicants
B-C Aerial View
38. The Respondent claims that the post she discovered, the smaller red one, is the original fence post (“the Red Post”), and that the larger grey one is new, from when she says the fence was replaced in 2019 (“the Grey Post”).
39. The Respondent also relies on photographs showing the base of the Red Post, which she avers show the original concrete base panel, a black post at the other end of that same panel (“the Black Post”), and a post next to the Black Post. She avers that the Black Post was part of the original fence, and that the latter photograph shows that a new fence post was erected next to it.
Red Post Base Black Post Base Two Posts
40. The Applicants deny that the panels shown are concrete base panels and/or that the Black Post is part of the fence itself. They say the panels shown have decorative tops, and the one to the front is the edging to the gravel strip. They suggest that the Red Post may have been part of the car port. Initially, they suggested the Black Post was part of a gate that is visible in the earlier GoogleMaps images, but later accepted that this was wrong (the black gate was located nearer to the front of the building on Number 3).
41. I do not accept the Respondent’s claim for the following reasons:
(a) neither the Black Post nor the Red Post looks anything like the posts visible on the GoogleMaps photographs, even the ones from before April 2019;
(b) the panels do not look like any of the other panels;
(c) the panel to the front of the Black Post in particular looks like the edging of the gravel strip;
(d) there is a reasonable alternative explanation for the Red Post: the car-port.
The Black Post remains a bit of a mystery – it is not visible on any of the photographs before the works were carried out in 2022 – but I am not satisfied that it formed part of the original fence for the reasons given above.
42. The Respondent avers that what I have described as the boxed in planting was not a planter but was to “hold in” land from Number 1, and therefore is part of the Boundary.
43. The below extracts show the boxed in planting as being in generally the same state (certainly around the same height) as at May 2009 and April 2019, but then its condition deteriorating considerably by May 2022.
May 2009 #1 April 2019 May 2022
44. The later photograph shows that the fence is supported by double concrete panels, albeit one, the lower one below the red arrow, seems to be missing. It is possible that these were not installed until the works in April 2019, but it seems unlikely, particularly as it does not make sense for the area to be in a worse condition after additional support is added. I do not accept that it is the boxed in planting, rather than the fence, that is doing, or has ever done, the “holding in”.
45. In her written documents, the Respondent relied upon evidence of a wall that was found during the works. However, during the hearing she accepted that this was not a visible physical feature and so was not of any relevance.
46. The Respondent also avers that she had conversations with Mr Shaw and/or his son in which they admitted the fence was erected on Number 1’s land. This is denied by Mr Shaw in his witness statement.
47. When asked about this in her evidence, the Respondent said that she said to Mr Shaw/his son that the fence was leaning. This was her focus, rather than its location. She said they responded by saying they would sort it out, but she described them as flippant.
48. I do not accept that anything Mr Shaw and/or his son might have said about the location of the fence would be in any way binding and so I do not consider this further. There is no evidence that Mr Shaw or anybody else admitted to moving the fence.
49. The Respondent argues that the fence was moved so that Number 3 could be sold with a larger parking area. There is already a lot of room for parking at Number 3. I do not consider that this counters the weight of the evidence against the fence having moved.
50. I note for completeness that the Respondent raises other issues she has with the Applicants, for example, in relation to rainwater. As explained during the hearing, they are outside the scope of these proceedings and do not assist me in the determination I have to make as to the Boundary.
Conclusion
51. Having considered all of the evidence and submissions, I am not satisfied that the location of the fence has moved since 1967. I am satisfied on the balance of probabilities that the Fenceline is the Boundary.
The DB Plan
52. I turn next to the question of whether the Fenceline has been accurately mapped.
53. The Applicants rely on a plan of the proposed determined boundary produced by SurveyEng Ltd, Land Surveyors & Engineers (“the DB Plan”). A copy of the DB Plan is appended to this Decision.
54. The most pertinent part is below.
DB Plan Enlargement
55. The Applicants’ case is that the line from point M through point O to point V marks the long established boundary line. Point M is described as “Old post cut down from the long established boundary line”. Point O is described as “Old post removed from the long established boundary line”. Point V is described as “Intersection where long established boundary meets adjacent footpath”.
56. Photographs are included on the DB Plan: P2 is a photograph of point M; P3 of O.
P2 P3
57. It is important to note that the cut down post at point M was visible to the surveyor when he conducted his survey. However, the removed post at point O was not. The First Applicant’s evidence is that he took a measurement, as in photograph P3, and the surveyor was able to plot it from that.
58. The Respondent does not accept that this is accurate. In fact, she goes so far as to say that a piece of fence post has been picked up and placed elsewhere.
59. I do not accept the Respondent’s allegation that the features shown in P3 have been manipulated. Below is a photograph showing the fence post and gate post in situ in January 2023 before they were removed by the Respondent’s second set of works. The features in this – dark grey brick, concrete post, wooden gate post – marry up completely with the features on P3. I do not accept that the First Applicant manipulated the evidence in any way.
Base of the Gate
60. The dark grey brick provides a fixed point. Moreover, although the Respondent took down the gate, it remained on Number 3’s land and it was possible to hold it up in its former position (by reference to the gate post on the wall of the building on Number 3 and a bolt hole in the ground), as can be seen happening in some of the photographs.
61. The surveyor evidently thought he was able to map the old post at point O to the appropriate degree of accuracy despite not having seen it in situ himself. Given the available photographs, I can see why. I am satisfied that the DB Plan properly maps point O.
62. The Respondent makes a further argument in relation to the accuracy of the DB Plan. She avers it cannot be accurate because the fence was not in a straight line. In fact, at one point she said she accepted that the line V-M would map the Fenceline, if only the Fenceline had been straight.
63. The Applicant avers that only one fence post is out of line – the second one back from the pavement – and that this had been affected by subsidence.
64. The two photographs that perhaps best illustrate the Respondent’s argument are below.
October 2019 July 2022
65. Looking at all of the photographs that have been provided, including the GoogleMap images, it is clear that, over the years, the second post back from the pavement has started leaning over towards Number 3. However, I am not satisfied that this demonstrates that the concrete base panels are out of line.
66. I am satisfied on the balance of probabilities that the DB Plan accurately maps the Fenceline.
Conclusion
67. For the reasons given above, I accept that DB Plan accurately maps the Boundary. I therefore direct the Chief Land Registrar to give effect to the Applicants’ original application dated 24th March 2023 to determine the exact line of a boundary as if the objection of the Respondent had not been made.
68. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that the Respondent should pay the Applicants’ costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case. My preliminary view is therefore that the Respondent should pay the Applicants’ costs of the proceedings, to be summarily assessed if not agreed.
69. A party may claim costs even if they are unrepresented (litigant in person costs are allowed at the rate of £19 per hour unless the litigant can prove financial loss). Costs are potentially recoverable from the date of the reference to the Tribunal, which in this case took place on 4th September 2023.
70. Any application for costs should be sent to the Tribunal and the other side by 5pm on 31st July 2025, explaining why the Tribunal should make a costs order in their favour, and also providing a breakdown of the costs they are seeking. Further directions will then be given as appropriate.
Dated this Thursday 3rd July 2025
Laura D’Cruz
By Order of The Tribunal
DB Plan
