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INDEPENDENT EXPERT SURVEYORS REPORT FOR A FOR BOUDARY AND RIGHTS OF WAY DISPUTE

The claimant tried to argue that she had a right of way through the splay marked pavement edge but the court found that it was behind 551 over the area marked yellow on a conveyance plan. The claim failed because at the time the conveyance was granted the old wall shown on the plan obstructed the splay preventing claims under an older conveyance prescription and the LPA 1925 Section 62.

A conveyance plan, photographs and two of the reports from the case follow. The coloured lines were measured with a GeoMax Zoom 30 Total Station and overlaid onto the original conveyance with CAD

 

 

4^th August 2019

 

The County Court

 

Dear Sir

 

Case Number:

 

VA v S A and MA

553 A Road, S9 3RA and land to the rear

 

1. Instruction

 

2. To prepare an independent expert report on behalf of the claimants in connection with a right of way dispute.

 

3. The claimants allege that Mr MA the owner of land at the rear of her premises has allowed Mr SAto park a car in order to maliciously obstruct her rights of way.

 

4. I have not acted for any of the parties before.

 

5. Qualifications

 

6. 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 twenty years’ experience of preparing reports in respect of boundary disputes. CV attached at Appendix 1.

 

7. Photographs

 

8. The photograph at Appendix 2 shows a car obstructing what on casual inspection appears to be an access from a Kimberly Street public car park at the rear of the land owned by Mr Yahoub. The claimant claims that the car obstructs contractual rights of way to her property 553.

 

9. Background

 

10.  The plan attached at Appendix 3 is from the conveyance of 553 A Road 10^th January 2002.

 

11. The actual conveyance document from 10^th January 2002 cannot be obtained but the Register (Appendix 4) contains the following clause:

 

(10.10.2002) The land has the benefit of the following rights granted by a Transfer of the land in this title dated 10 January 2002 made between (1) K C Sethia (Investments) Limited (Transferor) and (2) Paul Martin Antcliffe (Transferee):

"References in this panel to areas of land by colour are to the areas more particularly so coloured on the plan annexed to this Transfer

3. The property is transferred together with the benefit of rights (for the Transferee with successors in title owners and occupiers of the Property and all others authorised by them) at all times by day or night to pass and repass over and along

(a) the yellow land (with or without vehicles) and

(b) the brown land (on foot only).

4. The rights mentioned in clause 3 of this panel ("the Rights") are granted for all purposes connected with the use and enjoyment of the Property but not for any other purpose.

The Register (Appendix 5) and Title Plan (Appendix 6) for Title SYK439752 confirm that Mr MA is the owner of the area of land on which the vehicle is parked.

12. The claimant claims that the car parked by Mr SAobstructs part of the area coloured yellow belonging to Mr MA approximating to a continuation of the path shown brown on the plan and adjacent to the rear boundary of the site.

 

13. Inspection

 

14. The property 23 was inspected 26^th July 2019. It is possible to see the relevant parts of the properties.

 

15. The width of the area coloured yellow on the plan was scaled from the outside of the wall at the west end of the area marked yellow on the plan. The eastern end of the area shaded yellow is approximately 9.0m from the outside of the wall when scaled from the plan.

 

16. The position of the vehicle was then established by running a tape from the outside of the wall at the western end of the area coloured yellow on the plan.

 

17. The vehicle shown at Appendix 2 was measured as being parked immediately adjacent to the rear boundary of Mr MA’s land and including the towing point of the vehicle obstructing 1.0m by 1.8m of the rights of way in favour of 553 A Road.

 

18. Conclusion

 

19. The vehicle parked by Mr SA on Mr MA Land obstructs the claimants express rights of way.

 

Statement of Truth

 

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

 

I, Steven John MacGregor Butler, declare that:

 

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

 

2. 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 opinion on the matters to which they refer.

 

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

 

4. I confirm that I am aware of the requirements of Civil Procedures Rule 35 and Practice Direction, of the Civil Justice Protocol for the Instruction of Experts to Give Evidence in Civil Claims and the Practice Direction on Pre-Action Conduct.

 

5. I have indicated the sources of all information I have used.

 

6. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others (in particular my instructing lawyers).

 

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

 

8. I understand that:

 

1. my report, subject to any corrections before swearing as to its correctness, will form the evidence be given under oath or affirmation.
2. I may be cross-examined on my report by a cross-examiner assisted by an expert.
3. I am likely to be the subject of public adverse criticism by the Arbitrator if the Arbitrator concludes that I have not taken reasonable care in trying to meet the standards set out above.

 

9. I confirm that I have not entered into any arrangements where the amount or payment of my fees is in any way dependent upon the outcome of the case.

                                                                                          

10. I confirm that I have no conflicts of interest.                     

Signed                                                                                   Dated

 

SJM Butler                                                   6^th August 2019

 

14^th March 2022

 

Burn out car used to obstruct the former access.

 

A pedestrian access that actual ran to the splay shown brown on the plan.

Side on view of the former access and the total station used to make the plan.

The actual access blocked by another car.

The County Court

 

 

 

Dear Sir

 

Case Number:

 

VAv SAs

553 A Road,  and land to the rear

 

1. This letter is supplemental to previous reports.

 

2. Attached at Appendix 1 is a plan showing features of the site at 13^th March 2022 overlaid on to the 10^th January 2002 conveyance of 553 A Road.

 

3. It is believed that the errors shown on the 2002 conveyance plan compared to the actual site were because it was based on the OS sheet of the time which has similar errors, the most obvious being the track of the boundary of 561 and 563.

 

4. The points numbered red on the plan may be of interest to the Court:

 

1. The blue fence post base would obstruct the area marked yellow on the 2002 conveyance if it extended through the line of the now demolished wall as implied by the conveyance plan.

 

2. The raiseable bollards obstruct the access splay from the public car park as actually constructed.

 

3. The blue fence post base obstructs the right of way running north south.

 

5. The north south right of way is considered to be an attempt to more precisely define the right of way of 557/559 shown in the conveyance of 2nd December 1999. However, it fails to consider that the 1999 plan is a sketch plan and might reasonable be interpreted by the parties to the conveyances as running from the mouth of the entry tunnel between 555 and 557 to the mouth of the public car park entrance splay. Although a matter of legal argument it would prima facie be somewhat difficult for the draftsman of the plans of 553 and 555 A Road to interfere with a contract between the parties to the conveyances of 557 and 559 A Road. There are no documents amending 557 and 559’s 2^nd December 1999 rights of way.

 

6. Attached at Appendix 2 are photographs showing:

 

Various fence post bases, raisable bollards and a concrete slab erected by Mr SA over the last few years.

 

Line drawn by Mr SA one of which is a good approximation of the eastern edge of the area shaded yellow on the 2002 conveyance.

 

7. Although the conveyance plans suggests that the purple roller shutter door belonged to 555 A Road it now forms part of 553 A Road due to alterations by Mrs VA.

 

8. Conclusion

 

Mr SA’s line running from close to the west most raisable bollard to the eastern edge of the purple roller shutter door at the rear of 555 A Road is a good approximation to the edge of the area shaded yellow on the 2002 conveyance plan.

 

Two of the fence post bases constructed by Mr SA obstruct the area shaded yellow on the 2002 conveyance plan and the right of way running north/ south.

 

The raisable bollards obstruct the entrance splay from the public car park as actually constructed.

 

Given the errors on the conveyance plan is it likely that the north south right of way ran from the mouth of the entry between 555 and 557 to the access splay of the public car park.

 

There are no documents amending the rights of way of 557 and 559 rights of way which might reasonable be interpreted as running from the mouth of the entry tunnel to the mouth of the public car park splay.

 

9. Updated CV attached at Appendix 3

 

 

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 endeavoured 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.

 

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

                                                                                            

Signed                                                                                   Dated

 

SJM Butler                                                      14^th March 2022