Brittany Pearce was recently instructed by Nick Southwell of Willans LLP in connection with a boundary dispute that had arisen in urban Cheltenham. Whilst the area of land in dispute was relatively small – a footpath 74cm wide (“the Footpath”) – it was of crucial importance to our client, a developer, who had constructed a series of properties that depended on the footpath for rear access.
The neighbouring plot had been purchased by another developer from the local authority. That developer had obtained planning permission to build two apartments in a three-storey structure on the plot, which had previously been bare land for decades. The plans retained the Footpath at ground level and proposed to build the second and third storey above the Footpath. The Footpath was to be used to provide access to the second apartment, which was otherwise not accessible from the road. Inevitably, a dispute arose between the developers as to who owned the Footpath and the airspace above it.
The case was unusual in light of the lack of physical features on the ground. Old OS maps indicated that there had been terraced houses on the plots, but that these had been demolished in the 1970s to make way for a car park. The only conveyance available to the parties was a conveyance of the neighbouring plot to the local authority, in the 1960s. At that point the property thereon was still standing, and the plot was described (in the parcels clause and on the plan) as extending to approximately 50 square yards. The plan was tolerably clear that, the properties being terraced houses, the boundary between them ran along the wall dividing the properties. It was unknown whether the 1960s conveyance was the root conveyance, dividing the properties for the first time, but it was possible this had occurred earlier, given the nature of the properties and the length of time since they had been constructed.
The developers, therefore, were faced with a conundrum as to where the original boundary was situated, in circumstances where no original features were located on the ground. Whilst the director of my client is not an expert surveyor, he is an experienced developer. He carried out a series of excavations, which revealed what appeared to be footings consistent with the buildings that were known to have been demolished. He engaged surveyors to precisely map these footings. He also investigated the wall on the far side of the neighbouring plot, which he determined was not an original wall, but rather one that had been constructed to protect the neighbouring building following demolition of the two buildings in the 1970s. Using these physical features, the conveyance from the 1960s with its measurements, and by considering old OS plans, he identified where the boundary was most likely to have been located. Whilst the plans were expertly prepared, there was no expert report in the case.
Another feature of the case was that my client’s director had met with various employees of the local authority, prior to the sale of their plot. He was adamant that, whilst there had been some initial concern on their part as to who owned the Footpath, they later conceded that the matter was too close to call, and that they would not pursue the point. Prior to the plot’s sale, he spoke to a different member of the local authority, who, he said, had telephoned him to double check that the Footpath was the boundary. That was also reflected in the sales particulars that were drawn up a month later.
After the Respondent’s purchase, a new title plan indicated that its plot extended up to the wall of my client’s development, and thus that its land included the Footpath. My client applied for alteration of the boundary, on the basis that the general boundary indicated on the Respondent’s title was a mistake, and that it should be moved to a position that reflect a more accurate general boundary. Whilst my client’s investigations revealed that the boundary might be rather beyond the Footpath, perhaps by an extra foot, the practical reality was that he was only concerned with the Footpath. The case was, simply, that either the Council had agreed the boundary with my client’s director, in which case the current general boundary was a mistake, or in any event, the Footpath fell within my client’s land.
The most interesting points of argument were these:
- What information is relevant when trying to ascertain the boundary?
- To what extent did the assertions made by the director of my client need to be confirmed by expert evidence?
- Was it sufficient that a boundary agreement was expressed to be nothing more than confirmation that a matter would not be pursued?
Relevant evidence
Not all evidence concerning the location of a boundary is good evidence. The original disposition dividing the parcels is, usually, the best evidence, and the starting point, but it is not always available. Subsequent conveyances might assist, but only if they can be relied upon as accurately depicting the boundary. In our case, we could rely on the 1960s conveyance because at the time, the boundary would have been clearly indicated by obvious physical features (the walls of houses) and because there was no indication of there having been a boundary dispute during the time of the local authority’s ownership. That conveyance was helpful because, firstly, the plan and parcels clause indicated what was on the ground at the time, and secondly, because an approximate measurement was given. Measurements can assist. The more precise, the better, unless you have a precise measurement but cannot ascertain where the measurement was taken from (it happens). An approximate measurement is of value where it can act as a useful cross-check against other evidence.
Obviously, physical features from a time when the boundary was not in issue can also assist, and it is worth noting that excavation may reveal relevant features not otherwise observable.
Evidence of later owners’ views rarely assists. Further, a great deal of time was spent in this case focusing on the plans that had been submitted in support of planning permission applications and how they compared to what was built on the ground. This was also irrelevant: the plans were not purporting to establish the boundary and the current physical features were of no assistance when trying to establish the location of the boundary, because they had all been constructed recently.
The quality of evidence you need may vary depending on whether you are dealing with general boundaries, or determined boundaries. This was not a determined boundary case and different thresholds need to be overcome in those cases.
The use of expert evidence
Expert evidence, usually that of surveyors’, is a common feature in boundary disputes. It is usually recommended, but not a requirement. In this case, my client’s director gave reliable, precise evidence as to what he had seen and his conclusions were common sense conclusions. For instance, he did not think a wall on the Respondent’s plot was original because he could see that there was an older wall behind it, further the new wall had a modern concrete footprint and a damp-proof course, which would not be expected of a 19th century wall. When it came to the excavations, what he revealed was consistent with what had been found by the Respondent’s archaeologist in the course of planning permission investigations; the location was a strong match with multiple historic maps, and there was no other explanation as to what the footings might be. In those circumstances, e.g. where there was no competing explanation between the parties about what something might show, a party might think twice about expert evidence. However, when there are competing explanations, that is when the instruction of experts tips into the inevitable.
Boundary agreements
Boundary agreements can be informal. They do not need to be written, and there is no magic phrase that needs to be uttered. They can, but won’t always, bind successors in title. In my case, my client’s position was not that the local authority had said they agreed with my client, but that they had simply said they would not take the matter further. It was suggested that this was not enough to amount to an agreement. In Nielson v Poole (1990) 20 P&CR 909, at 919, Megarry J put it this way: “…a boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation…”. Whilst the local authority had not agreed with my client’s assessment of the precise boundary location, the parties had reached an accord that was an act of peace, quieting strife and averting litigation.
Outcome
Under cross-examination the local authority conceded that it could not dispute my client’s account of the boundary, and that it had not taken any of the steps that might have been expected had agreement not been reached, such as writing correspondence, litigating, preventing access to the land, etc. The respondent offered no evidence in support of its claimed boundary position.
My client was successful on both arguments: it was held that there was a boundary agreement, and that, in any event, the Footpath lay within my client’s curtilage. The resulting order will alter the titles to reflect that the Footpath belongs to my client. The practical impact is that those people who purchased the development properties from my client will be able to use their exterior access. For the Respondent, it has lost a not insubstantial part of its plot, which will require development plans to be reassessed, as even though the Respondent had intended to retain the Footpath, its plan to build into the airspace can no longer be pursued, as it follows that that airspace belongs to my client.
Brittany is a member of our Real Estate team. She is ranked as a ‘rising star’ in tier 1 by The Legal 500, and by Chambers UK. Instructing solicitors describe her as an “effective advocate, and excellent in dealing with clients”. Brittany accepts instructions in property disputes and probate & trust cases, with a specific emphasis on real property litigation. Read more here.
To instruct her, please speak to a member of the Chancery & Commercial Clerking team on 0117 923 4740 or at [email protected]