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BOUNDARY DISPUTES : CONDUCT : DETERMINATION OF BOUNDARIES : ASSESSMENT OF EVIDENCE ABOUT AGREEMENT OF BOUNDARY LINE : LACK OF DISCUSSION OF BOUNDARY LINE A judge determining a boundary dispute between neighbouring residential property owners had been entitled to conclude that there was no evidence of a boundary agreement, as there had been no actual discussion of where the boundary lay. The appellants (C), residential property owners, appealed against a judgment settling the boundary between their property and the property of their neighbour (W). It had been accepted by both parties that the boundary lay somewhere along the lawned area between the two driveways in front of the properties. The first owners of the properties (P), C's predecessor in title, and (R), W's predecessor in title, had discussed landscaping the lawned area and produced a plan, and planted various shrubs, in particular a bush. The shrubbery followed the line of the driveway, and P and R continued to tend to the other's side irrespective of where the boundary lay. Prior to C and W's occupation of the properties there had been no dispute regarding the boundary. C believed that the boundary was demarcated by a straight line running from the rear gardens and then ran in a natural curve from the corner of the wall between the properties to W's driveway marked by the bush and then followed the curve of the driveway to the road. W believed that the boundary was as shown on the land registry plan. Both parties instructed experts, and the experts agreed that the boundary was correctly marked on the land registry plan. The issue for the judge was whether the landscape plan was capable of amounting to an agreement between the predecessors in title, and subsequently C, to denote a different boundary than the one marked on the land registry plan. R's witness statement stated that there was an informal arrangement in respect of the landscaping, which did not impact the boundary or affect the title in respect of the properties.
There was also a letter from R to C referring to a "tacit" agreement that the boundary ran from the bush. P's first witness statement referred to an agreement in respect of the landscaping and an understanding by both parties that the boundary ran along the line of the shrubs. His second statement said the boundary ran to the bush, and that an agreement on the boundary had been reached. However, his oral evidence was unclear as to what arrangement had been reached. P stated that there had been no discussions about where the boundary lay, as both parties knew where it was. Discounting the evidence of P due to its inconsistencies, the judge held that the parties had wrongly assumed the boundary line and that there had been no earlier agreement, or conduct evincing an agreement, between the predecessors in title or C which defined the boundary. C submitted that although the boundary line was unclear from the land registry plan, the parties had, by conduct and agreement, clarified where the boundary lay.
HELD: The judge had been entitled on the facts before him to reach the conclusion that he had. There were inconsistencies in P's evidence, and the judge was entitled to reject it on the basis that it lacked consistency and clarity. Further, there had been no discussion, or indeed an agreement, between the parties as to where the boundary lay. R's letter referred to a tacit agreement, and not an actual agreement. There had only been discussion in relation to the maintenance of the landscaping, and R's offer to contribute to the cost of the landscaping only served to reinforce W's case that discussion centred on maintenance, and not boundary demarcation, as did R's denial of any agreement in relation to landscaping impacting the boundary. P had failed to show that the judge's findings had been perverse or that he had ignored the evidence. The findings of fact made by the judge had been findings that were open to him. Accordingly, the decision of the judge was upheld. Appeal dismissed WELDING v CHARALAMOUS & ANOR (2009) CA (Civ Div) (Ward LJ, Stanley Burnton LJ) 14/12/2009 “Lawtel”: 21.12.09 |
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