Case No: B4/2009/0713

Neutral Citation Number: [2009] EWCA Civ 1578
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE HARRINGTON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 14th December 2009 

Before:

LORD JUSTICE STANLEY BURNTON 
and
LORD JUSTICE WARD
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Between:

	CHARALAMBOUS	
Appellant	
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WELDING	

Respondent	

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(DAR Transcript of 
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Gary Blaker (instructed by Gadd and Co) appeared on behalf of the Appellant.

Robert Trevis (instructed by Pinkerton Leeke and Co) appeared on behalf of the Respondent.
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Judgment
Lord Justice Stanley Burnton:

1.	St Jude’s Walk in Charlton Kings in Cheltenham is, by the photographs we have seen, part of an attractive development of Tudor-style houses constructed in the late 1980s.  This case sadly arises from a dispute between the claimant/respondent, the owner of 14 St Judes Walk, originally owned by a Mr and Mrs Pratt, and the appellant/defendants, who owned 15 St Judes Walk, originally owned by a Mrs Pearson whose husband Mr Pearson was a property developer.  The Pratts and the Pearsons both bought off the developer, a company called Prowting, in the late 1980s.

2.	The dispute is a sad dispute because it concerns a relatively small area of land the intrinsic value of which is far less than the costs that both sides have put into this litigation.  Moreover it is apparent from the claim and counterclaim of harassment that the dispute as to precisely where the border between No 14 and 15 lies has led to extreme ill-feeling between the parties, who ought to be neighbours.  The case is even sadder when one considers the evidence of their predecessors, which shows that formerly relations between neighbours were good in the extreme, there was a lot of give and take and one neighbour maintaining the garden of another neighbour irrespective of whose ownership a particular area of lawn or rose trees was in.

3.	The area of land which is in dispute is shown on the plan at page 315 of the appeal bundle.  For the purpose of this litigation both parties instructed surveyors, and those surveyors have been able, using the Land Registry plan and the original developers’ plans, to agree the line of the boundary between Nos. 14 and 15 as depicted on the Land Registry plan, which is otherwise somewhat approximate.  The Land Registry plan was, in the case of both the present owners of 14 and the owners of 15, the basis of their purchases of the land in question.  

4.	It follows that unless there had been an agreement between their predecessors in title which fixed a different boundary from that to be arrived at using the Land Registry plan and the original developers’ plans, the boundary between the parties’ respective titles is that shown on the Land Registry plan as so clarified. That is indeed the case, the judge ultimately found, because his finding was that there had been no earlier agreement between the predecessors of the claimant and the predecessors of the defendants, the respondent and the appellant respectively, which defined or altered the boundary between the premises.

5.	When the plots were originally constructed there was an open and unplanted area between the fronts of the two properties.  There was no fence or anything else marking the boundary.  Planting was carried out of a run of bushes including in particular a pyracantha bush along the line of the drive to No 14.  The planting was carried out by Mr Pearson.  He had, before the Pratts, who were the first purchasers of No 14, instructed a landscape architect who had designed a proposal for landscaping which, according to Mr Pearson’s evidence, he at some stage showed to Mr Pratt and Mr Pratt was happy with it.  

6.	The issue before the judge and before us was and is whether that landscaping plan, accepted apparently by Mr Pratt, amounted to an agreement between the predecessors in title of the parties in this litigation, determining a different boundary from that in the Land Registry plan.  An agreement defining the marking of a boundary between the properties of two neighbours may be entirely informal.  One does not expect neighbours to use the language of a conveyance.  If two neighbours get together, trying to work out where their boundary is, and agree on a line, which they mark by planting or erecting a fence, putting a string along the land, whatever, clarifying the line of the boundary that agreement may be binding.  Moreover an agreement may be inferred from the conduct of the parties.  But whether there has been such an agreement is a question of facts and not of law.  Whether the agreement if made is binding on successors in title is a different question.  In certain cases the agreement has to be in writing to comply with statutory requirements.  If an agreement is made which is not intended to clarify an uncertain boundary but which fixes a line irrespective of the existing titles, then that agreement would have to be in writing.  It may be a narrow and difficult line to draw between agreements which require writing and agreements which do not, but the existence of the distinction is clear from the authorities.

7.	The appellants’ case is that the Pratts and the Pearsons agreed that their boundary should run from a point by the original brick wall shown on the plan at page 315 just above where a trial hole is shown in a curve to the pyracantha bush shown on the plan.  That line would, as it happens, take in part of the new brick wall built by the appellants, and they accept that if they were to succeed on this appeal, as I understand it, part of that wall might have to be demolished in order to comply with the line of the title so established.

8.	The appellants contend that the pyracantha was planted where it was pursuant to an agreement between the Pearsons and the Pratts that that was where their boundary was or where the boundary was to be. The respondent denies that there was ever such an agreement.  

9.	The appellants put their case in two ways.  First they say that this was a case of ambiguity on the border because the line shown in the registry plan is somewhat uncertain and the actual border was clarified by agreement and conduct between the Pratts and the Pearsons.  In addition, they say that there was in fact an agreement fixing the border irrespective of that uncertainty.  It seems to me that for the purposes of this appeal there is no substantial difference between the ways they put their case.  In the end they must show some agreement or conduct evidencing an agreement, fixing the border elsewhere than where it is shown on the conveyancing documents, as clarified by the agreement between the parties’ surveyors.

10.	It is at this point that the appellants’ case faces a significant difficulty.  This is a court of appeal.  This court does not hear testimony and does not assess evidence at first hand.  That is the function of the trial judge.  Here the judge found as a fact that there had never been any agreement about the boundary or its position.  In order to succeed, the appellants must show that the trial judge’s findings of fact were perverse in that they were unsupported by evidence or that those findings ignored relevant other evidence.  That is a significant hurdle for them to surmount.

11.	On the side of the Pratts there was a written statement of Mrs Pratt, which begins at page 82 of the bundle, dated 6 July 2008.  As I understand it, it was taken by her solicitors rather than by the solicitors for either party.  Her written evidence is quite explicit.  She denied that there had been any agreement affecting or having any impact on the boundary.  There was an agreement as to landscaping, but that was a matter of convenience which did not and was not intended to affect the title of either 14 or 15.  She says in paragraph 14 of that statement that she considered the agreement to landscape the patch of ground as described above to be an entirely informal arrangement between neighbours but there was no impact whatsoever on the boundary of either property.  That agreement to landscape was an agreement to landscape in accordance with the plans which had been produced on the instructions of Mr Pearson, according to Mrs Pratt, when Mr Pearson suggested that landscaping the Pratts offered to share the cost.  The offer was declined, and Mrs Pratt says that seemed reasonable at the time because Mr Pearson’s business connections meant that any costs involved would be minimal.  They therefore accepted the offer of landscaping as a gesture of goodwill between new neighbours.  Given that Mr Pearson was a property developer, it is perhaps not surprising that that was Mrs Pratt’s reaction to his declining the offer to contribute to the cost, but the mere fact that there was an offer to contribute to the costs is consistent with the respondent’s case that the agreement that was made about landscaping was one only about landscaping and was not an agreement as to the delineation of the boundary between the parties.

12.	It is true that Mrs Pratt had at an earlier date written a letter which might be considered inconsistent with her written statement, and the letter is at page 131, dated 20 February 2007 in which she wrote to the appellant saying: 

“All I can say is, that for the 18 years we lived in No. 14, it was a tacit mutual agreement that we regarded our boundary to run from the corner of the wall to the large shrub -- Pyracantha -- in the border. We never experienced any problems over this.”

13.	But the difficulty with that letter, so far as the appellants are concerned, is that it refers to a tacit mutual agreement.  It does not suggest that there was any discussion between the Pearsons and the Pratts as to where the boundary lay, and indeed it is inconsistent with there having been any such discussion.  

14.	The significant evidence the other way was that of Mr Pearson.  Mrs Pearson, who apparently is still alive, did not give evidence.  The property had been in her name, no doubt because Mr Pearson would have been conscious of the financial risks facing property developers, but that is a matter of speculation. For present purposes it is unnecessary to distinguish between Mr and Mrs Pearson.  If one assumes that he had full authority to deal with the question of title to his wife’s property, the question is whether the judge was entitled to reject his evidence as to an agreement between himself (or himself and his wife) and the Pratts.  So far as that is concerned, his first statement referred to the boundary of the property being in accordance with a line of shrubs that runs along the edge of the driveway of No. 14.  It was in later statements that he referred not to the line of shrubs but to the pyracantha bush, which is roughly halfway along that line of shrubs, and it is one of the not just curiosities but relevant features of this case that neither party contends that the line of shrubs as a whole marks the boundary between the properties, but only the pyracantha and the end of the originally constructed brick wall; so it cannot be said that the planting of those shrubs was carried out in accordance with an agreement as to where the boundary lay.  There has to be some significance attached to the pyracantha, a significance which is inconsistent with Mr Pearson’s first statement and appears only in his later statements.

15.	Mr Pearson gave evidence.  Having been taken to that evidence, I am bound to say that it was not of the clarity required for a finding by this court that the judge was bound to accept it.  We have also been taken to the evidence of Mrs Caines, but she too in referring to the planting of rosebushes refers to the fact that what was under discussion was a neighbourly way of dividing up the work and maintaining the garden.  

16.	The judge’s central finding was that there was no discussion ever about the boundary, about the true line of the boundary or moving the boundary or fixing the boundary.  What there were were discussions about landscaping and discussions as to who was to maintain which parts of the garden.  It seems to me that those findings were entirely open to him on the evidence, in particular that of Mrs Pratt.  It was a matter for him what weight he gave to that evidence.  It might have been discounted on the basis that it was written and not tested by cross-examination, but it was evidence before him which he was entitled to accept, especially if it was consistent with other matters. In my judgment he was entitled to discount the evidence of Mr Pearson for the reason I have already given, namely that there was a lack of consistency and clarity in that evidence.  Moreover another curiosity of Mr Pearson’s evidence is that he said that the landscaping architect had intended to follow the line of the Land Registry plan, yet he has now said that the actual line, referred to as the “historic line”, departs significantly from that line.  

17.	In my judgment it has not been shown that the judge was not entitled to reach the findings of fact which are set out in his judgment.  I therefore would dismiss this appeal.

Lord Justice Ward: 

18.	I agree.  I have to say that on reading the papers and reading the skeleton argument of Mr Blaker there did appear to be an attraction in the submissions that where the owners of No 14 and No 15 proceeded for many, many years on an understanding or assumption that the boundary ran from the edge of the wall in a curved line to a Pyracantha bush and then along the edge of the paved driveway, that represented the true boundary.  

19.	So let me analyse that for a moment.  The evidence of the experts was that the title plans attached to the title deeds and a plan that had been found prepared by the developers were inappropriate for doing more than indicating the general line to be taken by the boundary, but they also agreed that the line of the curve on the drawings that they produced was virtually identical one to the other and that it should be adopted as the agreed line of the boundary shown in the Land Registry and developers’ plans. 

20.	So that is the starting point, but given the inaccuracy of the plans and the room for disagreement it is clear that had the parties agreed a different boundary line that agreement would prevail.  The  judgment on this point in paragraph 45 of the judgment is to this effect: 

“It does not seem to me that when Mr Pratt and Mr Pearson were discussing the landscaping and who was going to be responsible for doing it and how it was going to be done, that they either discussed or intended to enter into any agreement about the boundary line.  I, therefore, find there was no express or implied oral agreement about the line of the boundary.”

21.	As my Lord has indicated, it needs a high case to upset that finding and in this case it simply cannot be done.  Mr Pearson’s evidence was inconsistent in his first witness statement.  He spoke of agreeing to landscape the property and an understanding about where the border was.  In his second statement he did refer to an understanding that this line was to go to a Pyracantha bush.  He spoke again of agreements about the boundary, but, when he gave his evidence, we see from the re-examination that it was not clear what agreement had been reached with Mr Pratt and his answer to the attempt to clarify that was his wife was not there: 

“ … so she did not see the layout.  He was quite happy and I said to him at the time, and I recall saying it to him, “Are we agreed that we do this?” and he said “Yes, I agree to that.” That is clear in my mind as I stand here today under oath.  And so I went ahead and did what I just described we did and it was never raised.  He never came round to me and said: “I think that boundary is the wrong boundary, I think this is wrong and that’s wrong.”  I never had the builders come and challenge the layout at all, so there was no challenge put to me at all once the landscaping had been done.  That is an agreement to do something not to fix a boundary.”

22.	His next answer makes that clear:

“The boundaries were  not discussed, no, because as far as I was concerned it was clear to me what my boundary was and when I say it was not discussed he knew where his boundary was and I knew where my boundary was and I went over his boundary in terms of the landscaping.”

23.	Again there is simply no agreement recorded in that part of his evidence and it is equivocal insofar as he says “I went over his boundary in terms of the landscaping”.  And the oddity of this case is that the landscaping follows the line of the curve of the driveway, yet if you look at the developers’ plan there is an appreciable distance running more or less parallel with the drive which marks the boundary between the two properties, so why should the line come from the wall to the Pyracantha bush and then follow the line of the driveway? There is no explanation for that.  The judge was entitled to find the agreement he did, and the conduct of the owners thereafter is not sufficient to displace the fact that there was no firm agreement.  The judge dealt with conduct in paragraph 50 of his judgment, saying:

“I accept the evidence I have heard from the defendants and the former occupants of number 15 about their ‘understanding’ as to where the boundary line ran.  Given the position of the Pyracantha bush in particular and the other plants it seems to me it is wrongly assumed that that was where the boundary line ran.”

24.	That mistake, though, falls short of providing any basis for saying that there was a boundary agreement or that the occupants of number 15 did what they did in the area in front of the houses because of their beliefs about the line of the boundary.  What is necessary to find is evidence of subsequent conduct being probative in determining what the parties intended.  Here the judge ruled against them having heard the evidence.  It was a judgment for him to make, not for this court to make, and I for my part cannot be sufficiently convinced that the boundary would have run in this curious line where, without any reason being given for the prominence of the Pyracantha, the Pyracantha became suddenly the end point of the boundary midway through the planting, beginning at the roadway and going virtually up to the front of No. 14.  There is no convincing explanation for the prominence of the Pyracantha.  The judge was entitled to reach his conclusion as he did.  

25.	I too would therefore dismiss this appeal. 

Order: Appeal dismissed.