Residential boundary disputes should invariably be settled through informal negotiation between the parties or left to a surveyor’s determination, but despite all the warnings and costs consequences, they still seem to occupy an inordinate amount of the courts’ time. Such a case was Haycocks & anr v Neville & anr, decided by the Court of Appeal on 18 January 2007, which confirmed the discretion that lower court judges have in such matters. The case should, but not necessarily will, deter such claims being fought out in the Appeal Courts in the future.

The issues

The case in itself provides very useful guidance for practitioners on the methodology to be adopted in determining where a boundary line should be drawn, and whether a judge was entitled to devise her own method of interpreting a plan – by doing so rejecting the different interpretations of the position of the boundary contended by the parties. Further, it clarifies the extent to which it was right to have regard to matters occurring since the legal boundary was first fixed.

Background

This was a dispute between neighbours as to the location of the boundary between the front gardens of their houses. The houses had open front gardens where no fences, walls or hedges marked the boundary. There was, however, a fence running between the back gardens of the properties. It was accepted that the boundary ran in a straight line from the back gardens of the properties to a point located in the front gardens (the hinge point) from where the boundary ran at an angle of 45 degrees to the road.

Mr and Mrs Haycocks purchased 10 Courtenay Drive, Beckenham following completion of the development in 1992. Mr and Mrs Neville purchased no 11 from its first owners in 2000. Tensions had existed ever since Mr and Mrs Neville purchased their house and several years of unsuccessful negotiations eventually culminated in court proceedings.

The County Court decision

The issue for the court had been to determine where the hinge point lay. Each party contended for a different point.

Both parties accepted that the Land Registry plan was based upon the original plan drawn by the developers prior to the building of the development. The difficulty with the original plan, and therefore the Land Registry plan, was that it was drawn to a scale of 1:500 and the only current copy was a poor photocopied version of the original. A line of 2mm on the plan corresponded to 1 metre on the ground. The parties found it impractical to locate the hinge point from simply using the original plan.

As there were no other contemporaneous plans upon which to rely, both parties’ experts used scaled measurement to arrive at their respective hinge points. The difference between their respective points was accounted for by the fact that the parties’ experts had measured from different points. The Haycocks’ expert had measured from the front walls of the houses. The Nevilles contended that this was the wrong approach as neither the houses, nor indeed the driveways, were built on the exact locations as shown on the developer’s plan. The Nevilles’ expert had measured from the intersection of the rear boundaries of the two houses, stating that this fixed, known position was the optimum point from which to apply the scaled measurement.

HHJ Hamilton QC rejected the approach of scaling off altogether and applied what was essentially her own method for plotting the hinge point. She rejected the use of the original plan because it was a photocopied version lacking in any dimensions, and therefore lacked precision. Instead, she used a later plan, based on a 1:200 scale. This had been prepared at the Haycocks’ behest by the original developer’s surveyor after the Haycocks had bought no 10 as they were uncertain where the boundary lay.

This later plan had been prepared in 1992. The judge plotted the hinge point by extending the common boundary line marked by the existing fencing to the point where it intersected with the curvature of the ‘hammerhead’ of the driveway of no 10. The reason for this was probably to ensure that the whole of the driveway to no 10 fell within the ownership of that property. She considered further non-contemporaneous topographical features, accepting the Haycocks’ evidence that trees had been planted by the first owners of no 11 to mark the boundary line in accordance with the later plan.

Grounds for appeal

The Nevilles contended that the judge had been wrong to devise her own method of plotting the hinge point. The judge’s methodology had not been contended for by either party, nor had it been the subject of any questions from either expert. In particular, the judge was wrong to have regard to the hammerhead of the driveway and the trees which were topographical features constructed after the preparation of the original plan. Furthermore, the Nevilles contended that the later plan had been prepared at the Haycocks’ behest, before the Nevilles bought their house, and hence could not bind the Nevilles.

In June 2006 the Nevilles were given permission to appeal. The reason cited in the order granting permission to appeal was that the judge had rejected the reasoning of the experts of both parties and (although no encouragement should be given), ‘the parties should be allowed to waste more of their money if they wish’. This was rather a novel ground for allowing permission to appeal and one that also bites against the ‘innocent party’ – in this case the Haycocks, who had been endeavouring to avoid court by previously proposing that the matter be settled at their expense by reference to a surveyor to provide an expert determination. This offer, to the Nevilles’ cost, was never taken up. The court’s general reasoning is that if parties are determined to resort to litigation they are entitled to have their case thoroughly adjudicated and to pursue that process to the bitter end.

The appeal decision

Lawrence Collins LJ delivered the unanimous judgment. He agreed with the judgment in Richardson v MacNab [1999] that to the outside observer such disputes produce feelings ‘bordering on despair’.

Whilst agreeing that the first step in any boundary dispute was to look at the available plans, he accepted that the plans on the registered title will often be of little use, being imprecise as to the boundaries and on too small a scale to be helpful. Consequently, he concluded that it would be necessary to look elsewhere for assistance in determining where the line should be drawn. The parties had agreed that the plan appended to the registered title was a relevant plan and that all points contended for by both parties were within the tolerance of that plan. Lawrence Collins LJ stated that the judge at first instance had been entitled to draw her own line by reference to the available evidence. She had properly taken the original plan as a starting point, finding as she did that it was impossible to rely solely upon it due to its deficiencies as to scale and clarity, and then had taken additional evidence into account to assist in its interpretation.

Lawrence Collins LJ held that the judge at first instance was entitled to dismiss the contentions of both of the parties’ experts. She could devise her own methodology having regard to matters which had occurred since the legal boundary had been fixed, including what actions the parties had taken and what features had been placed on the ground. The Court of Appeal concluded that when disputes arise over small areas of land and the plans are difficult to follow, then regard should be had to all available evidence.

Whilst the judge was entitled to reject the evidence of both experts, here the judge had not rejected the evidence but had viewed it as just one factor to which to have regard. Further, it was also permissible to have regard to subsequent evidence such as later plans and topographical features developed after the houses had been built. The original plan might well be a starting point, but later plans may reflect more accurately the positions of the houses after they had been built. In determining that a judge can have regard to topographical features which did not exist at the time of the conveyance, and to later plans, the Court of Appeal followed its recent decision in Liaquat Ali v Robert Lane [2006]. Whilst the general rule is that extrinsic evidence is not admissible for the construction of a written contract, it is permissible to have regard to extraneous evidence of probative value to the precise issues in dispute.

Comment

This case is another salutary lesson that boundary dispute litigation can be a very costly exercise. Practitioners should be aware that judges have a wide discretion, which can extend to rejecting both parties’ evidence and adopting their own methodology. Parties engaging in such litigation will therefore have no certainty as to how the court will view the matter, save the knowledge of its wide discretion and ability not just to have reference to original plans but, in cases where such plans cannot determine boundaries with any certainty, to all other topographical features and even to plans drawn on dates after the original boundary line has been marked.

Such discretion and consquential uncertainty re-emphasises the importance of advising any litigants embarking on such a dispute to go no further than engaging in an ADR process. A failure to do so may lead a client to maintain that you are in breach of your duty to properly advise them.  © Property Law Journal