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Neighbour dispute in the Court of Appeal

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A dispute between two neighbours over the boundary line separating their properties went up to the Court of Appeal last year and the dispute only ended when one of the parties were refused permission to appeal to the Supreme Court in November 2010.
After the Court of Appeal’s decision the solicitor for the losing party, Mr & Mrs Pennock, suggested that the ruling meant the “acid test” in determining boundaries had been changed and was no longer the plan attached to the conveyance, but the judge’s view on the topography of the area. But has the position really been substantially changed by that decision and if so where do we go from here?
The facts of the case itself are not, in my experience, standout. The parties’ properties were in common ownership until 28 May 1993. At that time the owners, Mr & Mrs Thorn, transferred a property comprising of a detached bungalow and garden and known as Kalmara to Mr & Mrs Hodgson. The Hodgsons later divorced and Mrs Hodgson remained in the Property. Mrs Thorn then transferred the remaining land to Mr & Mrs Pennock in 2005. This property lay to the south of a stream and at the time of the transfer was a building plot with detailed planning permission for a 4 bedroom house. The house was bought at auction by Mr & Mrs Pennock and they then built their house, Dalegarth, upon the plot.
The boundary between the plots was the subject of a heated dispute between the parties. A dispute appears to have arisen after a wall was erected by the Pennocks with steps leading down into the stream. Mrs Hodgson considered that she owned the stream and land on the other side up to a point where there had been a wooden post and wire fence. The Pennocks considered, as they had been led to believe at auction, that the boundary was on the northern edge of the stream and as such the bed belonged to them.
In the High Court, David Richards J agreed with Mrs Hodgson’s argument and held that the boundary was the post and wire fence that was in place at the time of the 1993 transfer.
The Pennocks appealed on the basis that the Judge was wrong to consider extrinsic evidence at the time of the transfer. The Pennocks considered that the 1993 conveyance was unambiguous and that reference should have been made to the plan attached to that conveyance in determining the position. They argued that the plan was clear in that it showed the stream as a black line and the black line was within the land retained by the Thorns following that conveyance. Therefore upon the transfer from Mrs Thorn to them the stream was in their possession.
The lead judgment of the Court of Appeal was handed down by the Lord Justice Mummery dismissing the Pennocks appeal. He found that the plan showed only a general boundary marked by quite thick red and blue lines in the vicinity of the stream. The plan was insufficiently clear and therefore the Judge was entitled to look at the physical features on the ground in 1993 and form a view on what would have been considered by a reasonable person to be the boundary line.
Mrs Pennock when questioned about the case stated that “The effect this has on everyone’s conveyances is quite worrying, It dilutes their influence, if not making them worthless and that means that people do not know what they are buying or selling.”
So has this case had a catastrophic impact on the way in which conveyances are be relied upon and does it mean that the position has been fundamentally altered such that people no longer know what is being bought or sold? In my view, the answer is no. 
I have dealt with neighbour disputes almost exclusively for several years. The reliability of conveyances in determining the positions of boundaries in my experience has always been variable from useless to moderately useful. Where the conveyance itself is not clear as to where the boundary is and the plan attached to it is “for identification only” then I would certainly be looking to extrinsic evidence of the features on the ground at the time of the relevant conveyance.
In an ideal world all conveyances would be very specific about the positions of the boundaries which separate the plot being sold from the one next to it. They would all have plans which contain very precise measurements and clear reference to immovable features which mark the boundaries. But in reality, it is very unusual to come across a conveyance which does all of these things. 
A conveyance such as the one in this case is not unusual. I do not think the Pennock case brought anything particularly new to the arena. Lord Justice Mummery referred to the case of Alan Wibberley Building Limited v Insley [1999] 1 WLR 894 within his Judgment. In that case the House of Lords had given a very clear indication as to how a conveyance should be considered in determining the boundary line.
Firstly, we should start with the conveyance and the parcels clause describing the land. Next we must look to the attached plan. If the plan is “for identification only” then it does not define precise or exact boundaries. An attached plan based on Ordnance Survey, whilst very accurate, does not fix boundaries. Therefore precise boundaries must be established by other evidence. That includes reference to other physical features of the land existing at the time of the relevant conveyance.
So interpreting the House of Lords judgment against the fact of this case we have a conveyance parcels clause which stated that “the boundary between the property hereby conveyed and the retained property shall be and belong to the retained property”. Not particularly clear. Next we look to the plan attached which was said to be “for the purpose of identification only”. Again not particularly clear. The Conveyance and plan was not unambiguous. Therefore, following the House of Lords guidance, we must then look to other evidence to establish the boundary. Referring back to the facts of the case, the layout at the time of the conveyance in 1993 was that at the date of the conveyance there was a visible wooden post and wire fence 2 feet on the Pennocks side of the stream. The fence was erected in 1985 replacing an earlier wire stock fence to stop sheep from getting into the stream and then the garden of Kalmara. The southern bank of the stream was several feet higher than the stream and adjacent to the southern bank was pasture. The Northern side of the stream was lower and had easy access to the stream and on the northern side was the garden of Kalmara.  
Taking all these factors into account there can be no sensible argument in my view that David Richards J, and subsequently the unanimous Court of Appeal, were wrong to interpret the Conveyance and to define the boundary as they did.
So where do we go from here? Boundary disputes have always been difficult cases to pursue. Rarely do I advise my client that a boundary case has very strong prospects of success. It is in my experience unusual to find a conveyance which contains a parcels clause or a plan which leaves no doubt as to the position of the boundary. In newer transfers this is made even worse by the use of HM Land Registry title plans which are not intended to show anything but general boundaries. Even with reference to a reasonably clear plan it is not difficult to find one expert surveyor disagreeing with another. Often it comes down to whose interpretation of the Conveyance and the layout of the land the Court accepts on the day of trial. 
Having a system of defined boundaries has been attempted before and was found to be even less workable. When registration was first introduced in 1862, Parliament thought it would be useful to have a system of registration which provided for exact boundaries. The idea behind this was a good one but practically speaking it was impossible to implement. It meant that every time land needed to be conveyed there needed to be a discussion with your neighbour as to where the boundary was. This in turn led to a substantial increase in disputes and substantial delays in property being sold. The system only lasted a few years before the Land Transfer Act 1875 introduced the “general boundaries” rule. Therefore getting precision on boundaries to avoid disputes has been tried before and I very much doubt it will ever be tried again.
Boundary disputes are inevitably complex and difficult cases to pursue and should not be entered into lightly. This leads to substantial costs on both sides and often the house itself is put at risk. Mr & Mrs Pennock will be thankful that in this case their insurers were covering the cost otherwise they may well have lost their home. I found Lord Justice Mummery’s closing comments to be most telling “the unfortunate consequences of a case like this are that, in the absence of compromise, someone wins and some loses, it always costs a lot of money and usually generates a lot of ill feeling that does not end with the litigation. None of those things are good for neighbours.” I often describe neighbour disputes to my clients as being worse than divorce because even after the process has ended you still have to live next to the person and face them every day.