Mr Paul Byrne v Mr William George James Archer

Site visit: 14 January 2025

Hearing dates: 15, 16, 17, 20, 21 January 2025, and 9 May 2025

Introduction

These proceedings in essence concern a dispute between neighbours over the ownership of 2 hedges. In summary, the Claimants claim that the hedges are jointly owned, whereas the Defendants counterclaim exclusive ownership. It is not disputed that the hedges belong to the persons in whose ground they are planted, and so I must decide where the disputed legal boundaries lie in relation to the stems of the hedges.

On 30 September 2019, Mr Paul Byrne (“ C1”) and Mrs Julie Ann Byrne (“ C2”) (together “ the Claimants”) purchased a freehold residential property (“ Hillsway”) in the village of Dalbury Lees, Derbyshire.

Mr William George James Archer (“ D1”) and Mrs Rosemary Ann Archer (“ D2”) (together “ the Defendants”) own, and have done so for many years, the freehold residential property (“ Brookfields”), which lies immediately to the south of Hillsway. In addition, D1 owns agricultural land, which lies to the west of Hillsway (“ the Fields to the West”).

Therefore, the parties share two common boundaries:

a. the southern boundary of Hillsway (“ the Southern Boundary”); and

b. the western boundary of Hillsway (“ the Western Boundary”).

The disputed hedges are planted in the vicinity of those common boundaries.

Orientation

For orientation purposes only:

a. The following plan shows the layout of the parties' land with Hillsway outlined in blue, Brookfields outlined in green, and the Fields to the West outlined in red. The Western Boundary is marked between points A-B, and the Southern Boundary is marked between points B-C. –

b. The following plan identifies other parcels of land that were referred to in the evidence. They are ‘Robinson Fields’, which lie to the north of Hillsway, and the ‘Allotment Gardens’, which lie to the south of the rear garden of Brookfields. There are further hedges in the vicinity of the common boundaries between (i) Hillsway and Robinson Fields (“ the Northern Hedge”), and (ii) Brookfields and the Allotment Gardens —

c. The following is a photograph (taken from the rear of Hillsway pointing eastwards) of the disputed hedge in the vicinity of the Southern Boundary (“ the Southern Hedge”)—

d. The following is a photograph (taken at the rear of Hillsway pointing southwards) of the disputed hedge in the vicinity of the Western Boundary (“ the Western Hedge”) —

The claims and counterclaims

Paper titles

The Claimants claim that the original legal boundary lines were:

a. the Southern Boundary line ran through the centre of the stems of the Southern Hedge, and

b. the Western Boundary line ran through the centre of the stems of the Western Hedge,

with the result that Hillsway and Brookfields each own half of the Southern Hedge, and Hillsway and the Fields to the West each own half of the Western Hedge (together “ the Disputed Hedges”).

The Defendants claim that the original legal boundary lines were:

a. the Southern Boundary line ran along the outer edge of a depression (“ the Alleged Southern Ditch”) located on the far side of the Southern Hedge, and

b. the Western Boundary line ran along the outer edge of a depression (“ the Alleged Western Ditch”) located on the far side of the Western Hedge,

with the result that the Disputed Hedges together with the strips of land occupied by the Alleged Southern Ditch and the Alleged Western Ditch (together “ the Alleged Ditches”) are owned by the Defendants as part of Brookfields and the Fields to the West respectively.

Estoppel by deed

The Claimants assert that, if the original boundary lines were originally as contended for by the Defendants, subsequent conveyances had the effect of transferring the boundary lines to the centre-lines of the Disputed Hedges.

Adverse possession

The parties each assert that if they do not enjoy paper title up to the boundary lines for which they contend, they have nevertheless acquired title as the result of the adverse possession by their predecessors in title of land lying up to those boundary lines. Neither side relies upon a period of adverse possession that concluded after 13 October 2003, and so the adverse possession relied upon arises by operation of the Limitation Act 1980 and/or s. 75 Land Registration Act 1925.

Boundary agreements

The parties each assert that, if they do not enjoy paper title or they have not acquired title as a result of adverse possession up to the boundary lines for which they contend, they have nevertheless acquired ownership of one or both the Disputed Hedges as a result of binding boundary agreements.

In 2005/2006 and in consequence of their planning application for the building of the house at Brookfields, the Defendants erected a fence and wall on the Brookfields' side of the Southern Hedge. The Claimants assert that in erecting the fence and wall the Defendants made a boundary agreement with the Claimants' predecessors in title to Hillsway (Joseph and Eva Morley) that the Southern Boundary line runs to the southern edge of the Southern Hedge such that it is now wholly owned by the Claimants (“ the Alleged 2006 Boundary Agreement”).

Prior to purchasing Hillsway and by way of pre-contract enquiries, the Claimants sought to challenge the information provided to them by the vendors (Rachel Morley and Anne Harvey-Bailey as personal representatives for the estate of their late mother, Eva Morley) regarding ownership of the Southern Hedge, the Western Hedge and the Northern Hedge. The Defendants assert that, in consequence of the Claimants' challenges, they met and agreed with Rachel Morley that the Disputed Hedges belong to the Defendants (“ the Alleged 2019 Boundary Agreement”).

Trespass

The Claimants assert that D1 trespassed by:

a. on or around 10 September 2020 and on 30 November 2021, cutting all the way across the top of the Western Hedge;

b. on 12 December 2021, his son Adam cutting all the way across the top of the Southern Hedge;

c. on 19 April 2022, causing damage and widening the gap in the Southern Hedge; and

d. on 20 April 2022, depositing topsoil and planting laurel hedges in the vicinity of the Southern Hedge.

Nuisance

The Claimants assert that the Defendants have committed an actionable private nuisance by:

a. on 9 September 2020, D1 threatened on two occasions to chop down the Southern Hedge; and

b. holding open a “live neighbour dispute”, which the Defendants knew would have to be disclosed to any potential buyer and which could affect the value of Hillsway in the event that the Claimants decided to sell their property.

Deceit

The Claimants assert that the Defendants have committed the tort of deceit by knowingly or recklessly making false statements of exclusive ownership of the Disputed Hedges.

Damages

The Claimants seek aggravated damages for the alleged trespass, deceit and nuisance committed by the Defendants.

Injunction

The Claimants seek a final injunction to prohibit the Defendants from committing further acts of trespass.

Issues to be determined at trial

The case management order dated 25 September 2023 provided (with my emphasis added) that:

“[30] The parties must agree and the Claimants must lodge at court… at least 7 days before the trial …. a trial bundle(s) containing:

— a succinct case summary;

— a chronology;

— a statement of issues to be determined by the Judge ………”

Civil Procedure Rules (“ CPR”) r.1.3 provides that the parties are required to help the court further the overriding objective of dealing with the case justly and at proportionate cost, which includes dealing with the case in ways which are proportionate to the amount of money involved and the importance of the case.

Notwithstanding the mandatory terms in which the case management order was expressed, the parties chose to file separate case summaries and statements of issues together with an unagreed chronology.

The Claimants' statement of issues ran to 25 numbered items, and the Defendants' statement of issues ran to 22 numbered items.

The trial bundles ran to a total of 1961 pages.

The parties' opening skeleton arguments ran to a combined total of 75 pages (48 pages for the Claimants/27 pages for the Defendants), and notwithstanding that the Chancery Guide states that such skeleton arguments should not normally need to exceed 25 pages each.

The legal authorities bundles ran to a total of 1919 pages, and notwithstanding that the Chancery Guide states that excessive citation of authority should be avoided.

I am unable in the course of this judgment to refer to all the evidence and argument relied upon by the parties. In particular, if I do not make reference to a specific matter raised by or on behalf of the parties' then I have not considered it relevant to the cross claims that I must ultimately determine.

The witnesses

For the Claimants

I read and heard evidence from:

a. C1;

b. C2. Whilst C2 was supportive of her husband, she readily conceded in her oral evidence that she had left much of the detail regarding this dispute to C1, since she was working full time whilst her husband had retired; and

c. Stephen Willows, who was contracted to “cut the hedges of Hillsway… twice a year for about 10 years prior to 2019”.

For the Defendants

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