(1) Richard Lanfear & (2) Mary Lanfear v Margaret Chandler
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Rafferty,Lord Justice Moore-Bick |
| Judgment Date | 20 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1497 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2013 |
| Docket Number | Case No: B2/2012/3164 |
[2013] EWCA Civ 1497
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
HIS HONOUR JUDGE HAMILTON
0RG02937
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Patten
and
Lady Justice Rafferty
Case No: B2/2012/3164
Roger Smithers (instructed by Blandy & Blandy) for the Appellant
Caley Wright (instructed by Pitmans LLP) for the Respondents
This is an appeal by Mrs Margaret Chandler from the order of HH Judge Hamilton QC dated 13 th November 2012 which was made after a trial of a boundary dispute between Mrs Chandler and her neighbours, Mr and Mrs Lanfear. The judge made a declaration as to the location of the true and proper boundary between the property of Mr and Mrs Lanfear at 3 Barton Road, Tilehurst ("no. 3") and Mrs Chandler's property at 5 Barton Road ("no. 5"). Critically, for the purposes of this appeal, the judge decided that the line of the boundary lay some 5 inches from the wall of the side extension to no. 3. This has the consequence that a car port erected by Mrs Chandler in front of her garage with supports resting on the disputed strip amounted to a trespass on the Lanfears' property and the judge has ordered its removal. Mrs Chandler appeals against his decision on this part of the boundary.
She also raises an issue about his order in respect of the next section of the boundary where it runs along the length of her garage. At the trial the difference between the parties was whether the line of the boundary lay adjacent to or 12" from the garage wall which abuts the garden of no. 3. The judge indicated in his judgment that he accepted the view of the single joint expert that it lay 3.25" (80mm) from the wall but his order declares that the boundary follows the line of the wall itself, a position which Mrs Chandler contends is inconsistent with his judgment and is unsupported by any of the evidence.
To assist the readers of this judgment in understanding the layout of the site and the areas in dispute I have incorporated at the end of the judgment a copy of the agreed plan which forms part of the judge's order. To this, I have added various letters to identify the sections of the boundary which remain in dispute on this appeal. Line A-B (which is not in dispute) denotes the outer edge of a line of 50 mm wide pre-cast concrete edging stones which abut what was originally the concrete driveway of no. 5. This has since been tarmacked but the edging stones remain visible. The adjacent front drives of both properties are level at the entrance to Barton Road but the drive of no. 5 rises gradually so that at point B on the plan there is a small difference in height between the two.
The boundary then turns right through 90 degrees between points B and C on the plan which mark what is now the front right hand corner of a brick built extension to no. 3 that was erected on what was originally open ground at the side of the house. It then makes a second 90 degree turn to the left to follow a line between points C and D up to the front left hand wall of the garage at no. 5. There are concrete edging stones along the drive of no. 5 between points C and D which the joint expert said were original and of the same type as between points A and B. Between the outer edge of those stones and the wall of the brick extension to no. 3 is a thin (165 mm) strip of earth which is the first area in dispute. Mr and Mrs Lanfear claimed that the outer edge of the concrete stones continued to form the boundary between the two properties between points C and D and the judge accepted this. In doing so, he differed from the opinion of the joint expert, which was that the developer had left enough space between no. 3 and the boundary for a garage to be constructed hence the off-set of the boundary line between points B-C; but that the gap between what is now the extension to no. 3 and the outer edge of the concrete edging stones between points C and D provided room for a fence which was to belong to no. 5.
The evidence at the trial (including some early sales particulars of no. 5) was that no. 3, when first sold by the developers (George Wimpey & Co Ltd), had a section of white ranch-style fencing (about 4–5 feet high) running from the right hand corner of the house at no. 3 (point G on the plan) to point C. A similar but much lower fence then continued from point C to point D along the strip of land now in dispute. The issue for the judge was whether the land occupied by that return fence was part of no. 3 or part of no. 5.
Mr and Mrs Lanfear were the original purchasers of no. 3 which they acquired under a transfer dated 8 th October 1971. All the houses in Barton Road were constructed between 1970 and 1971 as part of a development by George Wimpey & Co Ltd. The first two pairs of houses (which included no. 3 and no. 5) were show houses for the estate. The original transfers identified the land conveyed by reference to a site plan on which all the boundaries are shown as straight lines. The plan also contains "T" marks on the boundary lines to the rear of each property with the "T" mark on the no. 5 side of the boundary in dispute.
The terms of the original transfers are also important. By clause 5 of each transfer the transferee covenanted with George Wimpey & Co Ltd that he would:
"(b) at all times hereafter maintain and keep in good repair the fence on the side or sides of the land hereby transferred marked "T" within the boundary on the said plan."
The judge found that the concrete edging stones I described earlier were an original feature of the drive to no. 5 but that there was no driveway to no. 3 and that the area to the side of no. 3 behind the white boarded fence between points G and C on the plan was an open area of grass bounded to the north and west by the white fence and to the east by the side wall of no. 3. The white fence (both between points G and C and between points C and D) was erected by the developers with the posts on the no. 3 side of the fence. Mrs Lanfear also gave evidence (which the judge accepted) that until Mrs Chandler and her late husband purchased no. 5 in 1988 the Lanfears and their neighbours had always treated the two sets of concrete edging stones as marking the boundary between their two properties.
As I explained earlier in this judgment, the joint expert, Mr John Morris FRICS, produced a report in which he expressed the opinion that the boundary between points C and D ran on the eastern side of the disputed strip because the fence which occupied it was intended to belong to the owners of no. 5. The boundary then continued, he said, after a slight kink at point E, along a line 80mm from the eastern wall of the garage to no. 5. The judge (in paragraph 39 of his judgment) said that he had no difficulty in accepting Mr Morris' proposed boundary line between points E and F but that he rejected the evidence of Mrs Chandler's witnesses that the boundary was marked by a fence some 9 to 12 inches away from the garage wall. The declaration, however, in his order states that the true boundary between points E and F follows the wall of the garage.
The judge held that the boundary between points C and D lay along the eastern side of the concrete edging stones. He rejected the contrary opinion of Mr Morris. Although the expert accepted in evidence that the boundary was not a straight line as shown on the transfer plan and that changes in the position of the houses and their boundaries often occurred during the course of construction of a housing estate without being recorded on the transfer plan, he maintained a position on the boundary between points C and D which meant that the developer must have intended to convey to the purchasers of no. 5 the site of a fence even though it was not erected with the posts facing no. 5 which appears to have been a unique feature of no. 3. The judge considered that this was unlikely to have been the developer's intention and that any inferences to be drawn from the use of the "T" marks on the transfer plan were effectively countered by the position on the ground.
The parties' title to the disputed strip depends upon what was transferred to them or their predecessors in title in 1971. It therefore turns on the true construction of the 1971 transfers which it is common ground were in materially identical terms and which used a plan whose scale and accuracy does not enable the dispute to be resolved by a process of measurement. Mr Smithers' principal argument in support of Mrs Chandler's appeal is that the judge was wrong to regard the terms...
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Paul Fraser Harrison and Another v Justin John Brading
...of the parties means the parties to the original conveyance" (paragraph 38). 23 The significance of "T" marks was discussed in Lanfear v Chandler [2013] EWCA Civ 1497. Patten LJ (with whom Moore-Bick and Rafferty LJJ agreed) explained (at paragraph 16): "He [i.e. Carnwath LJ in Seeckts v De......