BOUNDARY RIGHT OF WAY DISPUTES NOTTINGHAM LOGO

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NOTTINGHAM DERBY RICS SURVEYORS INDEPENDENT EXPERT REPORT FOR A BOUNDARY DISPUTE

This concerned a pair of semi detached houses that were not touching. They had both extended over their garage areas so as to be almost touching. One of them trying to alter the boundary so as to be able to access the gap between them. The available conveyance plan was unhelpful as it was very vague. Fortunately there was an almost complete set of ancient boundary posts in the rear garden and the conveyance plan was clear as to responsibility for the original wall separating the front driveways.

 

Click image for larger plan 

A rather sketchy conveyance plan of the properties trying to move the boundary. Only useful for identifying ownership of the boundary. The open area at the side of the property has now been extended over right to the boundary preventing them accessing the side.

 

Click image for larger plan

 

 

Front of the two properties. 47 on the left. 49 on the right.  Both have been extended so as to almost touch

 

Other houses have similar walls suggesting that the drive dividing wall is original.

General view of the rear garden. The house over the fence wanted to move the boundary from its existing position to the edge of the lawn. The bank had been occupied by a hedge which 49 claimed to be theirs.

Note the covered store of the property on the right between the fence and single storey extension.

Base of post and some lying on the ground. The corrosion suggests they are ancient if not original.

Markers showing the location of each post for measurement by the laser. It can be seen that they approximate to the existing mesh and timber fences.

Top of old metal post between the covered store and extension of the neighbour wanting to expand the boundary.

 

The post looking from within the gap between the houses.

Brick pier supporting the extension of the defendant sitting in the wall that is likely to belong the property beyond the wall.

 

23rd July 2021

 

Mr S

47 Rowley Lane

 

 

 

Dear Sir

 

47 and 49 Rowley Lane

 

  1. Instruction

 

  1. To prepare a Part 35 CPR report in respect of the boundary between 47 and 49 Rowley Lane

 

  1. Mr and Mrs S are the owners of 47 and Mr M. A and Mrs P A are the owners of 49.

 

  1. I have not acted for either party before.

 

  1. Qualifications

 

  1. I am Steven John Macgregor Butler, a Member of the Royal Institution of Chartered Surveyor trading as a sole practitioner. I qualified in 1992 and have in excess of ten years’ experience of preparing reports on boundaries and rights of way. CV attached as Appendix 1.

 

  1. Photographs

 

  1. Annotated photographs follow the report at Appendix 2 and prior reference to them may enable a reader to follow the report more easily.

 

  1. Documents

 

  1. The following documents may also be relevant to the matter:

 

Conveyance 27th September 1938 of 47 Rowley Lane. Not able to purchase from the Land Registry.

Conveyance 26th June 1939 of 47 Rowley Lane.

Not able to purchase from the Land Registry.

Conveyance Plan only of 49 from a 1964 conveyance. Appendix 3.

Survey Hub plan of 49 and notes. Appendices 4 and 5.

 

1:100 and 1:200 plans of 47 drawn by Steve Butler. Appendices 6 and 7.

 

  1. Inspection

 

  1. The properties are adjacent but not attached semi-detached houses on the eastern end of a drive way leading off Rowley Lane. 47 is to the north of 49. When constructed they were approximately symmetrical to each other about a boundary that tracks at about 45 degrees to the flank walls of the original properties which were set about 2.5m from the boundary. Otherwise the sites are irregular.

 

  1. The 1967 to 1979 OS sheet suggests that 49 had been extended close to the boundary line for the full depth of the house by that time.

 

  1. An extension of 47 that is also close the boundary line was signed off by Building Control in March 1991.

 

  1. The flank walls of the properties are separated by an area that is about 500mm wide at the eastern end reducing to about 200mm at the western end.

 

  1. The front driveways are separated by a low wall the age of which cannot be established.

 

  1. A pier supporting the canopy projection of 47 sits on half of the wall and the front corner of the side of the extension approximates to a projection of the centre of the wall.

 

  1. The rear gardens are separated by a line of 8 historic metal posts with much more modern mesh fencing attached to them. The nearest post to the two houses is at the side of part of the extension at 49 and the outside face (that nearest to 47) is about 150mm from the general line of the flank wall of 49’s extension.

 

  1. It is believed that there were once two additional posts that cannot be located. The posts are very old and in very poor condition some having snapped off completely and two lean at precarious angles.

 

  1. Slightly nearer to 49 at distances ranging from touching to about 270mm from the metal post and mesh fence is a modern concrete posts and timber fence. The variations are caused by both fences whilst running in an approximately straight line actually meandering.

 

  1. On 49’s side of the concrete and timber fence is a row of immature Leylandii trees.

 

  1.  Close to the houses a timber fence that encloses a covered passage at Number 47 directly abuts the two most westerly of the metal posts and mesh.

 

  1. The remains of a hedge or shrubs can be seen near the metal post and mesh fence but somewhat on the side on the side of 47. The diameter of the stumps suggests that they were not of great age.

 

  1. The Dispute

 

  1. The dispute concerns the boundary between the two properties. Number 49 alleges various acts of trespass including:

 

  1. Removal of a hedge.

 

  1. Damage to the mesh fence and a close board fence and conifers.

 

  1. Other unspecified matters.

 

  1. Law

 

Mr Justice Barker summarized much of the boundary law that had gone before in the case of and Severn in 2011. I shall follow his guidelines for determining a boundary as I do in preparing any reports on boundaries. I can see no reason why his guidelines should not be extended to the consideration of express rights of way and the acquisition of rights of way or by prescription, just as he says that boundaries can be expanded by adverse possession at Point (i) of his comments which are set out below.

 

Comments of Mr Justice Barker:

 

a.  ‘Before turning to the facts and expert opinion evidence, I should briefly remind myself of the principles relevant to determination of boundary disputes, at least insofar as they are potentially applicable to this case:

 

b.  Where, as in this case, the property in question is registered land, the file plans show only general boundaries and not the exact line of the boundaries unless the property is said to be “more particularly described in the plan.”

 

c.  Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary.  This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition.

 

d.  In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive.

 

e.  If that does not bring clarity, or the clarity necessary to define a boundary, recourse may then be had to extrinsic evidence - such as topographical features on the land that existed, or maybe supposed to have existed, when the dividing conveyance was executed.

 

f.   Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended.

 

g.  Evidence of later features - that is, later than the earliest dividing conveyance - may or may not be of relevance.  The probative significance of such evidence depends upon the extent to which, if at all, the dividing conveyance, or evidence of its terms, exists.

 

h.  Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot “fuzzy at the edges” (Neilson v Poole (1969) 20 P&CR 909, Megarry J).

 

i.   Even where a boundary line may be determined by reference to a conveyance, other evidence may be admitted and probative in establishing a different boundary obtained by adverse possession, showing enclosure of the land in denial of the title of the true owner.  As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner, and maintaining such possession continuously for the limitation period.

 

j.   As to informal boundary agreements, the statutory requirement that contracts for the sale or other disposition of land be in writing does not apply.  That is because the purpose of such agreements is to demarcate an unclear boundary referred to in title documents and not to transfer an interest in land.

 

k.  Such agreements are usually oral and the result of neighbours meeting to avoid or resolve a potential or actual dispute.  However, there is scope for a boundary agreement to be implied or inferred - that is, to be the logical conclusion to be drawn from primary facts.

 

l.   When bearing these principles in mind as the platform on which to place and examine the facts, a judge should have regard to three further important yardsticks or rules of thumb.  These are:  (1) when considering any acquisition of property, it is vital to consider what a reasonable layman would think he was buying; (2) every case turns on its own facts; and (3) the task of the court is to assess all available and admissible material in arriving at its answer, and then to achieve the correct answer.

 

  1. Analysis

 

  1. Intrinsic Evidence

 

  1. The dividing conveyance is that of 47 from 27th September 1938. Unfortunately, it is not available to purchase from Land Registry.

 

  1. The next best document from the sale of 49 in June 1939 is also not available to purchase.

 

  1. A plan purporting to be from a 1964 conveyance has been used by Survey Hub to prepare a plan but there are considerable problems with this.

 

  1. It is trite law that the 1964 conveyance is not relevant as it is not the dividing conveyance.

 

  1. The plan is dawn at poor scale with no dimensions and is of the type used to identify as opposed to define sites.

 

  1. The exercise of trying to overlay the plan onto measurements taken by Survey Hub is fundamentally flawed given the quality of the plan.

 

  1. Furthermore Survey Hub have estimated the position of a number of features.

 

  1. It is considered unlikely hat there is any prospect of establishing the boundary from the intrinsic evidence as none is available.

 

  1. Extrinsic Evidence.

 

  1. The condition of the metal posts close to the boundary are of considerable age. They are in very poor condition. It is considered highly likely that they have been considered to be a boundary feature at some time and that they are most likely an original feature.

 

  1. The metal posts all but align with the flank wall of the extension of 49 and whist they have their limitations the 1967-1979 OS sheet suggests that the rear boundary was close to a continuation of the flank wall of 49.

 

  1. The boundary wall separating the driveways is of unknown age.

 

  1. The construction of the pier supporting the extension at 47 and the alignment of the centre of the boundary wall with the corner of the extension suggest that a previous owner of 47 believed that at least half of the wall belonged to them.

 

  1. It is of course possible that 49 were responsible for maintaining some other type of boundary feature that abutted the wall or which was replaced by the wall.

 

  1. The corner of the wall nearest to 49 approximates to a line projected from the face of the metal posts nearest to 47.

 

  1. Any line from the centre of the wall or 47’s corner of the wall would track in relation of the line of metal posts.

 

  1. I am unable to see anything that suggests that the remains of the hedge at 47 may be an original boundary feature.

 

  1. The concrete and timber fence and leylandii trees of 49 are modern features.

 

  1. Adverse Possession.

 

  1. Not considered to be applicable.

 

  1. Boundary/ Right of Way Agreements.

 

  1. None known.

 

  1. The construction of the pier and position of 47’s extension may imply an agreement that 47 are owners of the wall.

 

  1. Alleged damage/ trespass.

 

  1. It is considered to be most unlikely that the hedge removed by 47 in anyway belonged to 49.

 

  1. Damage to the mesh fence is nominal. There was no evidence that this has been caused by 47 and the fence could be stitched back together for a few pounds. It is entirely possible that damage has been caused as the heavy metal posts have pulled the mesh against other objects as they have fallen over.

 

  1. There is no evidence that 47 have excluded 49 from the gap between the two properties. They have been excluded by construction of their own extension in relation of the metal posts. The gap between the extension and metal post is 75mm.

 

  1. No obvious damage the timber close board fence noted.

 

  1. S’s fence is constructed on their side of the metal and mesh fence.

 

  1. There is no evidence that the Leylandii trees have been over trimmed if at all.

 

  1. Potential Counter Claim

 

  1. The gutter of 49’s extension clearly projects over a line projected from the face of metal posts nearest to 47.

 

  1. The Leylandii trees of 49 are considerably in excess of 2.0m and may be considered to be a nuisance in terms of shading the garden of 47 or a breach of the High Hedges Act legislation.

 

  1. Conclusion

 

  1. There is little prospect of establishing the boundary from intrinsic evidence.

 

  1. The metal posts are likely to be an original boundary feature.

 

  1. The face of the metal posts aligns with 49’s corner of the boundary wall at the front of the property.

 

  1. There is no evidence of any trespass or nuisance by 47 or such acts are of the most de minimis nature.

 

  1. 49’s extension gutter projects beyond the likely boundary line

 

Statement of Truth

 

This report is prepared in accordance with the Royal Institution of Chartered Surveyors Expert Witness Practice Statement.

 

I Steven JM Butler DECLARE THAT:

 

1. I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.

 

2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

 

3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.

 

5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affects my answers to points 3 and 4 above.

 

6. I have shown the sources of all information I have used.

 

7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.

 

8. I have endeavored to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.

 

9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.

 

10. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.

 

11. I understand that –

 

a. my report will form the evidence to be given under oath or affirmation;

 

b. questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;

 

c. the Court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;

 

d. the Court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;

 

e. I may be required to attend Court to be cross-examined on my report; and

 

f. I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

STATEMENT OF TRUTH I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

 

Signature                                                                               Date

SJM Butler                                                           23/07/2021

 

 

 

 

 

 

14th March 2022

RIGHT OF WAY DISPUTE NOTTINGHAM