Avon Estates Ltd v Richard Evans (1) and Susan Evans (2)
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 13 June 2013 |
| Neutral Citation | [2013] EWHC 1635 (Ch) |
| Court | Chancery Division |
| Date | 13 June 2013 |
| Docket Number | Case No: 1BM 30168 |
[2013] EWHC 1635 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: 1BM 30168
Kevin Leigh (instructed by Emms Gilmore Liberson Ltd) for the Claimant
Julian Greenhill (instructed by Rickerbys LLP) for the Defendants
Hearing dates: 2–5 April 2013
This case arises from a boundary dispute between the owners of two commercial properties in a rural area near Stratford-upon-Avon. The claimant company is the owner of Avon Park, on which there are approximately 225 large mobile homes. The defendants are the owners of Oxtalls Farm, which is operated as a stud farm for thoroughbred horses. The length of the boundary remaining in dispute runs between points D and H on a plan prepared by the defendant's surveyor Mr Gibbons (bundle reference 3/7/135, referred to as the "Key plan"). In general terms, the disputed boundary runs from West to East, with Oxtalls Farm to the north. On the Avon Park side there are plots for a number of mobile homes starting at the eastern end of the disputed boundary, while at the western end there are a small car park, some permanent buildings providing toilet and other facilities for the plot holders, and a building in which the site manager lives.
Both parties have relied on expert surveying evidence, from Mr Powell on behalf of claimant and Mr Gibbons on behalf of the defendants. The experts have produced two joint statements and an agreed plan setting out the location of various features on the ground that are referred to in the conveyancing documents and evidence of the lay witnesses. I had the benefit of a site visit on the first day of the trial, in the presence of counsel and solicitors for both parties and the principal lay witnesses, who also gave oral evidence. The experts were called and cross-examined.
There is one other remaining issue, relating to alleged nuisance by the claimant having modified a road along the western boundary of Oxtalls Farm so that it is raised above the surrounding ground level and, it is said, interferes with the natural drainage from fields forming part of Oxtalls Farm. Depending on my findings on these two issues, there will be matters arising as to damages or other remedies. A claim by the claimant for aggravated damages arising from Mr Evans' alleged conduct was withdrawn by Mr Leigh on instructions before the evidence commenced. All the other issues raised in the pleadings have been resolved between the parties prior to the commencement of the trial.
The two properties were in common ownership until 3 October 1955. On that date the then owner, EH Youell & Co Ltd, divided the site by conveying Oxtalls Farm to Mr Evans' parents, from whom it has subsequently been transferred to the defendants. What is now Avon Park was retained and conveyed a few months later, by deed dated 26 April 1956, to Mr Ernest Higgins. Mr Higgins sold Avon Park in 1963 to Allens Caravans Ltd, which in turn transferred it in 1984 to the claimant company.
Most of the disputed boundary was established by the 1955 conveyance. That document appears in bundle 4 at tab 4, and has a plan attached to it which is based on the 1914 ordnance survey map. This shows the boundary running between fields numbered 75, 67A and 67 on the north side and therefore within Oxtalls Farm, and field number 74 to the south, being Avon Park. A short length of the disputed boundary, between points D and E on the Key plan is affected by a transfer made in 1963 from Mr Evans senior to Allens Caravans Ltd of an irregularly shaped strip of approximately 1 acre out of field 75.
The location of the boundary is therefore in the first instance a question of the true construction of the 1955 and 1963 conveyances. This is a matter which the court is required to approach on an objective basis, construing the documents as a whole to ascertain the meaning they would convey to a reasonable person in the light of the background circumstances known to the parties at that time there were entered into, in accordance with the principles set out by the House of Lords in ICS v West Bromwich BS [1998] 1 WLR 896. Both parties referred me to authority on the question when and to what extent the court can take account of the actual features on the ground in the exercise of construction of a conveyance; in general such evidence is admissible and the court must assess its weight as part of the construction process; see Neilson v Poole [1969] 20 P&CR 909 at 915.
The land conveyed by the 1955 conveyance is described as follows in the parcels clause:
" All those pieces or parcels of land together with the farm, bailiff's house cottages and farm buildings and premises being part of Oxtalls Farm situated in the parish of Old Stratford in the County of Warwick and containing an area of 131.282 acres or thereabouts. All which said premises are for the purposes of identification only more particularly delineated on the plan attached hereto and thereon edged red and more particularly described in the first schedule hereto… "
The plan attached is as I have said based on the 1914 ordnance survey map and shows the various field numbers referred to above. Within each field, there is not only the field number, but a figure given (by the Ordnance Survey) for the acreage of that field. The red edging follows a solid black line at the boundary between the fields that are sold and field 74 which is retained. Along that section of the boundary there are "T" marks drawn on the side of the retained land, i.e. that which became Avon Park. There is however no reference to these "T" marks anywhere else in the document.
The first schedule to the conveyance consists of a table setting out the various ordnance survey field numbers of land sold, a description of each field such as "pasture" or "arable" and a figure for the acreage of that field, which corresponds to the ordnance survey map.
It is common ground that the solid black line on the ordnance survey map represents the line of an ancient hedge, and that the practice of the ordnance survey when plotting such a feature is to draw the line, within the limits of accuracy available given the scale of the map, along the centre line of such hedge. The map itself of course does not purport to show boundaries between land in different ownership, but only the physical features of the terrain mapped. Both expert witnesses were in agreement that the map was prepared in this way. I was also referred to Harsten Developments Ltd v Bleaken [2012] EWHC 2704 (Ch) in which Morgan J noted at paragraph 25 the statement of the Court of Appeal in Davey v Harrow Corporation [1958] 1 QB 60 that courts could in future take notice of the practice of the ordnance survey in this respect. The evidence of the experts in this case went slightly further however, since they were both agreed that at least where the hedge consisted of a single line of trunks or "growers" the line taken as the centre of the hedge was a line through the centre of the growers.
There are photographs in the bundle taken some years ago which show the hedge in question as quite a flourishing feature. It is now in a much reduced state. It was apparent on inspection that a number of the former growers have been cut off at ground level, for the most part apparently some time ago. There are counter allegations as to who was responsible for this. It consists mainly of hawthorn trees, although there are also a number of alder trees. In places, new hawthorn whips have been planted by the defendants in an attempt to restore some of the lost material.
The remnants can be seen of an old chestnut paling fence, which on the evidence must have been in place in 1955. A fence of this type consists of a number of roughly split strips of wood about 4 feet high bound together with twisted wire along the top and bottom. Mr Powell's evidence was that it is supplied on a roll and so must be unrolled on site in order to be fixed to whatever is to support it. In this case, the remains of the fence can be seen to be mostly supported by the growers of the hedge. For the most part the fencing lies on the south side of the growers, and is attached to them by nailing the wire to the trunks. There are however places where it is attached to the north side of the trunks. In other places, particularly at the eastern end of the disputed boundary, it can be seen that the chestnut paling fence is supported on posts in the ground, many of which have rotted off at ground level so that it is not possible to say without further investigation whether they are all in the places in which they were originally.
The dispute arose because Mr Evans alleged that there were encroachments across the boundary in some cases by caravans placed on plots on Avon Park and in others by things such as sheds or gas bottles placed behind those caravans by the various plot holders. He also alleged that there were numerous incidents of trespass by rubbish and other items being thrown over or pushed through the hedge by the plot holders, including soil and grass clippings. He was particularly concerned about grass clippings which, it is accepted, can be poisonous to horses. It is accepted that there have been incidents in which rubbish, soil and grass clippings have been thrown over and the claimant maintains that it has done what it can to prevent the plot holders from repeating these incidents. It is not accepted that the matters complained of as encroachments are in fact such, until the exact line of the boundary is established. The claimants say that Mr Evans has exaggerated these incidents and there have been a number of occasions on which he has been abusive or...
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(1) Richard Lanfear & (2) Mary Lanfear v Margaret Chandler
...was evidence, that there was a "hedge" along the disputed boundary." 14 In the subsequent case of Avon Estates Ltd v Evans & Anor [2013] EWHC 1635 (Ch) HH Judge Cooke (sitting as a judge of the Chancery Division) expressed the view that the presence of "T" marks on a plan is not necessarily......