Hill and Ors v Rees and Ors
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux |
| Judgment Date | 02 February 2017 |
| Neutral Citation | [2017] EWCA Civ 128 |
| Docket Number | Case No: B2/2015/4316 |
| Date | 02 February 2017 |
| Court | Court of Appeal (Civil Division) |
[2017] EWCA Civ 128
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL AND FAMILY
JUSTICE CENTRE
(JUDGE JARMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Case No: B2/2015/4316
Mr Daniel Bromilow (instructed by Edward Harris Solicitors) appeared on behalf of the Applicant
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal the judgments of HHJ Jarman QC dated 2 October 2015 and 13 November 2015 given in the Swansea County Court following refusal of permission on paper by Sharp LJ on 30 March 2016. The applicants, who are represented today by Mr Bromilow, as they were at trial, were the claimants in the proceedings and the respondents were two of the defendants. The proceedings concerned a disputed piece of land.
In 1998, the respondents sold the relevant farmhouse to the third defendant, currently controlled by the third claimant, father of the second applicant, which in turn transferred the farmhouse to the applicants, then husband and wife, in 1999. The judge found that the sale included the disputed land and that, contrary to their case at trial, the respondents intended to sell the disputed land as part of the farmhouse. By an application to the Land Registry dated 19 October 2007, the respondents applied to change the registered title of the farmhouse to exclude the disputed land on the basis that it was said that they did not intend to transfer it. For reasons which do not matter for present purposes, the applicants did not object to the application. The title was rectified.
In 2010, the respondents grassed over the disputed land and installed curb stones along the edge of the grass where it met the road way. They also tied a wooden gate to the adjacent pedestrian gate into the garden of the farmhouse. The judge found in favour of the applicants that that gate was left there for some six months. A little later, the respondents erected a series of six foot fence posts and then some time after that fixed a six foot wooden fence to those posts about a metre from the western windows of the farmhouse, including the conservatory the appellants had built.
The second appellant's evidence was that she had a brief conversation with the first respondent after the posts went up and asked him what they were for and he said that they were to define what was what. The second appellant, in fact, left the farmhouse after the fence posts had been put up but before the fence was completed and the first appellant left some months later. They divorced in 2011 and the farmhouse was left empty thereafter.
The judge found, as I have said, that the disputed land had been transferred as part of the sale in 1998 and he rejected the claimants' argument that the dispute was a boundary dispute rather than a land dispute so that the general boundaries rule in section 60 of the Land Registration Act 2002 did not apply. However, he held that the Land Register had been altered by a lack of proper care on the part of the respondents in making an application to the Land Registry, on the basis that the disputed land had been included in the original transfer by mistake when, in fact, it was not. Accordingly, he held that the register should be rectified so that the disputed land would revert to the applicants. In those circumstances, the fence would have to be taken down. To that extent the claim succeeded.
The learned judge found that the dumping of soil in a gap in the hedge by the respondents, which had taken place some years earlier, the erection of the fence and the putting up of the wooden gate and the laying of the curb stones and grass were all trespass and/or nuisance, except that the laying of the grass and the curb stones were not a substantial interference with the right of way and the fence was not a substantial interference with the right to light. The judge refused the injunctive relief which the claimants sought on the basis that it was not necessary because the matters of which complaint was made, such as the gate and the fence, had been removed and remedied.
The principal claim made by the applicants was for harassment. They relied upon the dumping of the soil, the putting up of the wooden gate and the erection of a post and a fence in 2010 as a "course of conduct" within section 1 of the Protection from Harassment Act 1977. The learned judge found that the blocking up of the second gap with soil and the putting up of the gate were not harassment, because the respondents believed that the hedge was theirs. They accepted that the gate was initially put up as a safety measure, while the curbing and grassing took place. He was not satisfied that the respondents knew or ought to have known that these acts would cause alarm or distress, so that the requirements of section 1(b) of the 1977 Act were not satisfied. The judge found that the putting up of the posts and the fence were beyond reasonable conduct and from the...
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