Barry Boas v Aventure International Ltd
| Jurisdiction | England & Wales |
| Judge | Hodge QC |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] EWHC 237 (Ch) |
| Court | Chancery Division |
| Docket Number | Appeal No. CH-2018-000206 |
| Date | 30 January 2020 |
[2020] EWHC 237 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
APPEALS LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
HIS HONOUR JUDGE Hodge QC
Sitting as a Judge of the High Court
Appeal No. CH-2018-000206
Mr Daniel Burton (instructed by Raymond Saul & Co LLP) appeared on behalf of the Claimants/Appellants.
Mr Joshua Swirsky (instructed by Prometheus Law) appeared on behalf of the Defendant/Respondent.
This is my extemporary judgment in the case of Barry Boas and two others (as claimants and appellants) against Aventure International Limited (as defendant and respondent), Appeal Reference number CH-2018-000206. Had he been asked to consider this case, Sir Arthur Conan Doyle might have described it as ‘The Case of the Three Fences’.
This extemporary judgment is divided into seven sections as follows: (1) Introduction (2) Background (3) The Recorder's judgment (4) Permission to appeal (5) Applicable law (6) Submissions (7) Conclusions.
INTRODUCTION
This is an appeal from a judgment of Mr Recorder Lawrence Cohen QC, sitting in the County Court at Central London Civil Justice Centre, on the trial of a Part 7 claim issued on 31 March 2016 seeking a declaration as to the true boundary separating the parties' freehold land together with injunctive relief and/or damages for trespass.
The trial took place over three days between 8 and 10 May 2018 and the learned Recorder handed down a reserved judgment on 12 July 2018. The proceedings were the result of the partial removal by the respondent, in August 2014, of a metal palisade fence which the appellants assert had been situated on the line of the true boundary between the parties' land followed by the construction by the respondent, in September 2014, of a new fence which was some 1.13 m closer to the appellants' land. This new section of fencing extends for some 28.3 m and thus the area which is the subject-matter of the present dispute comprises some 32 sq.m. of land. A helpful plan of the area in question appears at page 68 of the appeal bundle.
A further plan was prepared for the purposes of this appeal by the appellants' surveyor. This appears at page 59 of the appeal bundle. This plan post-dates the handing down of the Recorder's judgment by about a month. It is not an agreed plan, and the appellants have not sought to rely upon it as further evidence on this appeal. It is indicative of the claimants' analysis and understanding of various features of the land identified in the evidence given at the trial but I make no findings as to its accuracy and I treat it (as is common ground) as being of no evidential value on this appeal.
Permission to appeal was granted by the late Henry Carr J on 12 March 2019 at a hearing attended by counsel for both parties in accordance with case management directions which had been given by Mann J on 20 November 2018. Henry Carr J's reasons for giving permission to appeal were delivered in an extemporary judgment, an approved transcript whereof (bearing the neutral citation number [2019] EWHC 1020 (Ch)) appears at pages 61C to E of the appeal bundle.
Both at the trial and on the appeal, both before Henry Carr J and now me, the claimants (and appellants) were represented by Mr Daniel Burton (of counsel) and the defendant (and respondent) was represented by Mr Joshua Swirsky (also of counsel). I understand that I have been authorised by the Chancellor to hear this appeal from the Recorder sitting as a Judge of the High Court under s.9(1) of the Senior Courts Act 1981. The hearing of this appeal occupied a full court day yesterday (29 January 2020) preceded by a half day's pre-reading by me.
Both counsel have produced helpful and detailed written skeleton arguments and they have provided two bundles comprising some ten case law authorities. Mr Burton addressed me in opening for a little over two hours. Mr Swirsky replied, either side of the luncheon adjournment, for two hours, and Mr Burton then replied for about 25 minutes. The hearing concluded at about 4.20 p.m. yesterday and I adjourned overnight to map out this extemporary judgment.
BACKGROUND
I can take this from Mr Burton's skeleton argument. The parties are the freeholders of neighbouring units on an industrial estate known as the Hainault Business Park in the County of Essex. Specifically:
(1) The appellants are the registered freehold proprietors of land known as 2–6 Fowler Road. The claimants' land includes a commercial yard which is let to a tenant who runs a garage providing vehicle repairs. The first and second appellants purchased the land in the middle of 2000, and the third appellant became a joint owner in April 2013.
(2) The respondent is the registered freehold proprietor of land known variously as 8–10 Fowler Road and Units P, Q, R, S, and T Pegasus Works, Roebuck Road, Hainault Business Park. The defendant's land also comprises commercial premises and is also let to tenants. The defendant first purchased the land on 30 June 1991 but it sold it on 5 July 2007, repurchasing it on 12 June 2014.
The extent of the plots of land and the features relevant to this claim are illustrated by the plan which was annexed to the Particulars of Claim (at page 68) and the Grounds of Appeal. This plan gives a simple overview of the position of certain key features of the boundary. Specifically:
(1) There is a retaining wall some 4 to 4.5 ft high at the south east end of the yard on the claimants' land which runs parallel to the defendant's land and is marked in black on the plan.
(2) A metal palisade fence dating from 2004 was situated on top of the retaining wall, 1.5 m back from the edge, and it ran for approximately 50 m from points A to C. It is marked in red as the “Original Fence”.
(3) Between the 2004 fence and the retaining wall was a grass strip measuring 1.5 m in width with acted as a soakaway for water running down into the claimants' land at a lower level.
(4) The new fence, which is marked in yellow on the plan, was erected by the respondent in September 2014 close to the edge of the retaining wall between points C and B. The respondent also concreted over the soakaway up to and slightly beyond the edge of the retaining wall. The 2004 fence remains in place between points A and C on the plan because the land to the south and east is not within the respondent's land ownership.
(5) The disputed land is marked in green cross-hatching. It amounts to a rectangular strip of land between the new fence and the 2004 fence some 1.13 m wide and 28.3 m long and thus comprising some 32 sq.m in area.
The primary issue in dispute between the parties at the trial relating to the position of the boundary was the position of an original fence which had pre-dated the 2004 fence and which both parties accepted as representing the true position of the boundary.
In summary, the history of the land is as follows:
(1) The claimants' land and the defendant's land was in the common ownership of the London County Council pursuant to a conveyance dated February 1948. No copy of this conveyance has been located.
(2) The defendant's land was carved out of this larger estate by a conveyance from the Greater London Council, as the statutory successor to London County Council, dated 20 September 1983. No copy of this 1983 conveyance can now be located. The land was subsequently first registered on 14 November 1983.
(3) The claimants' land was created by a conveyance dated 5 May 1988 from the London Residuary Body, as the successor in title to the Greater London Council. A copy of this conveyance was before the court. It contained a parcels clause and a plan delineating the boundary by a verged red line. The claimants' land was subsequently first registered on 23 May 1988.
In summary, the appellants' case at trial was that:
(1) The Original fence consisted of mesh supported by concrete posts and was erected prior to 8 June 2000 and marks the boundary line between the parties' land.
(2) The respondent entered on to the claimants' land in August 2014 and removed the 2004 fence without permission. It then erected the new fence encroaching on to the claimants' land and installed concrete on the claimants' land.
(3) The respondent has wrongly refused to remove the new fence or to replace the 2004 fence and remove the concrete, and the appellants seek declaratory relief, injunctive relief and/or damages.
In summary, the respondent's case was that it did remove the 2004 fence and it replaced it with the new fence and that that new fence is not situated in the same position as the 2004 fence. However, the true boundary line is not the 2004 fence and the position of the new fence is consistent with the true boundary line.
Mr Burton notes that during and after the trial — but before...
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