Darren White v Michael and Sheila Alder

Hearing date: 26 March 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The issue

This appeal is concerned with whether a boundary agreement binds successors in title and whether, if it is capable of doing so, it only binds them if they have knowledge of the agreement.

Background

The Appellant, Mr White, and the Respondents, Professor and Mrs Alder are neighbours. Mr White is the registered freehold proprietor of “Willow Cottage” Fuller Street, Fairstead, Chelmsford and the Alders are the registered freehold proprietors of the property next door, “The Old Stores”. They purchased their respective properties at about the same time. The Alders purchased The Old Stores on 2 November 2005 and Mr White purchased Willow Cottage on 11 November 2005.

On or about 18 October 2005 and no later than 22 October 2005, Mr White's predecessors in title, the Hobsons, and the Alders' predecessors in title, the Joneses, had orally agreed the location of the boundary between their respective properties. They also agreed that The Old Stores' owner owned the physical boundary features. The agreement was later recorded in writing in the form of some text and a plan (the “Boundary Agreement”).

In or about April or May 2016, Mr White, or others on his behalf, demolished a part of the boundary wall between the two properties and began to construct an extension to Willow Cottage. It was alleged that the wall and foundations of the extension and the temporary scaffolding for its construction trespassed on land forming part of The Old Stores. It was also alleged that on various dates in 2019, Mr White committed or caused to be committed further acts of trespass. The Alders commenced proceedings in September 2020 seeking damages not exceeding £15,000 plus interest, an injunction requiring Mr White to remove goods trespassing on The Old Stores, a further injunction restraining Mr White from further trespassing on The Old Stores and declarations as to the position of the boundary between The Old Stores and Willow Cottage and that the boundary features belong to the Alders.

The matter was heard by District Judge Mills. Given the time available, it was agreed that the district judge would deal only with the preliminary issues as to the existence and effect of the Boundary Agreement.

The Decisions below

In a judgment handed down on 29 July 2022, the district judge found that the Hobsons and the Joneses had reached the Boundary Agreement before the sale of Willow Cottage and The Old Stores to Mr White and the Alders respectively; the Boundary Agreement was an agreement to clarify an uncertain boundary and not a contract to convey land; and the Boundary Agreement bound Mr White and the Alders as successors in title. The district judge came to this latter conclusion having considered Neilson v Poole (1969) 20 P&CR 909, Joyce v Rigolli [2004] All ER (D) 203 (Feb), Haycocks & Anr v Neville & Anr [2007] EWCA Civ 78 and Gibson v New [2021] EWHC 1811 (QB).

In particular, in relation to Gibson v New, the district judge held as follows:

“60. Drawing all of this together

a. the High Court decision in Neilson which formed part of the ratio in that case, was that boundary agreements are binding on successors. The decision has been repeatedly and resoundingly endorsed by the Court of Appeal, albeit by way of obiter dicta. Nevertheless, the strength of the endorsements arguably makes the view of the Court of Appeal very clear.

b. The decision in Gibson which (it is argued) reaches the contrary conclusion to that of in (sic) Neilson is also a decision of the High Court, but one in which the comments made were by way of an obiter dictum. The binding nature of the agreement as between the parties was the key and dispositive point to the relevant ground of appeal. The case was dealing with a very specific issue. It never posits itself as being a revisiting of long-established principle.

61. I do not consider that Gibson changes the general position articulated in Neilson and endorsed repeatedly and forcefully in the Court of Appeal. Accordingly, the boundary demarcation agreement is binding on successors and is binding in this case.”

Mr White appealed. The appeal was heard by HHJ Duddridge. In a judgment dated 20 October 2023, the judge refused permission to appeal on four grounds relating to the district judge's findings as to the existence of the Boundary Agreement and granted permission to appeal but dismissed the appeal in relation to the fifth ground which was concerned with the effect of the Boundary Agreement.

The judge held that the district judge had been right to find that Gibson v New did not change the position in relation to whether a boundary agreement binds successors in title, that he had been required to follow Neilson v Poole and that accordingly, the Boundary Agreement was binding on successors in title to the parties to that agreement [67]. He had dealt with the issue of precedent in the following way:

“64. The passages in the judgment of Murray J. relied on by Mr Wilmshurst appear in a section dealing with Ground 5 of the appeal before him, which was to the effect that it was a serious procedural irregularity for the trial judge to have made a declaration which had unfairly determined the whole proceedings in the respondents' favour, when the question of remedies was not before him. There was no discussion, or even recognition, in the analysis Murray J. carried out that Neilson v Poole in fact decided that a boundary agreement that merely demarcates a boundary does bind successors in title and, as Mr Adams submitted, it is clear that Murray J. thought that he was following Neilson v Poole, not departing from it. It does not appear from his judgment that Murray J. heard any argument directed specifically to the question whether or not boundary agreements in general bind successors in title or whether he should follow Neilson v Poole in that respect. Of course, it was not necessary for such arguments to be made or considered precisely because neither party in that case was a successor in title. What appears to have happened is that counsel had made a passing submission that the declaration and/or the Settlement Agreement or expert report did not have any effect in rem or bind successors in title, as part of his argument resisting that Ground of Appeal, which Murray J. said he agreed with as part of his analysis of the appeal against the declaration.

65. In an email sent to me after I circulated a draft of this judgment, Mr Wilmshurst reminded me that he had submitted to me that all of the relevant authorities were provided to Murray J. before he handed down judgment. He also stated that Murray J. had heard extensive argument on the successors in title issue, including further written submissions that Mr Wilmshurst had made after Murray J. circulated his draft judgment. As Mr Wilmshurst represented the appellants in Gibson v New, I accept that he will know what materials and arguments were advanced before Murray J. However, even if that was the case, it is clear that Murray J. did not give the issue full consideration. His judgment contains no reasons for departing from Neilson v Poole or analysis as to whether it is correct and, as I have stated above, he thought he was following that authority.

66. In my judgment, therefore, the dicta of Murray J. relied on by Mr Wilmshurst were not part of the ratio decidendi in that case, it being unnecessary to decide the issue in order to determine the appeal before him. But, even if they were, it is clear that (even if he received full argument on the question), the contrary decision in Neilson v Poole was not subjected to full consideration in his judgment.”

The judge gave permission to appeal in relation to this fifth ground.

He also went on to deal with an alternative submission which Mr Wilmshurst had made in relation to the fifth ground of appeal. The judge stated at [70] that it had been part of the factual case before the district judge that Mr White did not know about the Boundary Agreement until sometime after he purchased Willow Cottage. He also recorded that in his skeleton argument for the trial, Mr Wilmshurst had quoted a passage from the Land Registry Practice Guide 40 which questioned whether a boundary agreement will bind successors in title in all circumstances, in particular, in the absence of their knowledge of the agreement. At [71] the judge noted that in that skeleton argument, Mr Wilmshurst had submitted that, if his primary case about the effect of Gibson v New was incorrect, an alternative interpretation of it was that the Boundary Agreement was not binding on Mr White because he did not know about it.

The judge pointed out at [72] of his judgment, that the alternative submission was not referred to in the grounds of appeal and did not form part of the criticism of the district judge's decision set out in ground five. He went on to note that:

“Although Mr Wilmshurst's skeleton argument for the appeal made passing reference to the Appellant's [Mr White's] case that he did not know about the Boundary Agreement until long after his purchase, the submissions under Ground 5 did not refer...