Norma Eleanor Genevieve Flack v Pasquale Lanzante
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE TUCKEY |
| Judgment Date | 28 August 2002 |
| Neutral Citation | [2002] EWCA Civ 1287 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 August 2002 |
| Docket Number | B2/02/1123 |
[2002] EWCA Civ 1287
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT COUNTY
COURT SITTING AT BASINGSTOKE
(HIS HONOUR JUDGE THOMPSON)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Tuckey
B2/02/1123
MR PIERS HILL (Instructed by Messrs Langshaw Kyriacou, London, WC1H 9JF) appeared on behalf of the Applicant.
The Respondent did not attend and was not represented.
This case involves a boundary dispute. The claimant, Norma Flack, makes a renewed application for leave to appeal after permission was refused by Sir Philip Otton on paper.
On 19 September 1988 Mrs Flack conveyed to the defendant, Pasquale Lanzante, part of her land at Sleaford Farm, Bordon, Hampshire. The conveyance contained an exception and reservation of a right of way from the public highway over a driveway being part of the land conveyed. The driveway was shown on a small plan attached to the conveyance. The plan contained no measurements. The driveway led to two buildings, one of which was a workshop on the land acquired by Mr Lanzante, the other was an open garage retained by Mrs Flack.
After the conveyance, Mrs Flack obtained planning permission for another driveway on the land she retained. Her husband, Mr Flack, on behalf of his wife, and Mr Lanzante entered into negotiations for the release of the right of way over the driveway. On 10 October 1989, Mr Flack faxed Mrs Flack's solicitors a drawing prepared by him, "showing the dimensions of the existing drive as to what belongs to whom as Mr Lanzante wanted this clarified". That was passed on by Mrs Flack's solicitors to Mr Lanzante's solicitors with Mr Flack's suggestion that the drawing be referred to in the proposed Release. But Mr Lanzante's solicitors preferred to use the plan in the 1998 conveyance. The Release was executed on 27 October 1989 and Mr Lanzante paid Mrs Flack £3,500 under the Release.
Mr Flack and Mr Lanzante had that month agreed on the exact placement of a fence which Mr Lanzante had erected on part of the boundary, and of a wall with a metre deep foundation which Mr Lanzante had built at a cost of £700 for the remainder of the boundary. The wall and fence show a line which contains a kink in it. If the line were straight, it would run directly between points E and D on the plan attached to the points of claim. With the kink, the line of the wall and fence runs between points E, G and D. The shallow triangle of land formed by the lines E to D, E to G and G to D are what this dispute is about. The fence and wall roughly follow the boundary shown on Mr Flack's drawing.
Some 11 years later, on 29 November 2000, Mrs Flack wrote to Mr Lanzante saying that the wall and fence had been built in the wrong place. On 26 July 2001 these proceedings were commenced in the Aldershot and Farnham County Court. She claimed an injunction to move the wall and fence between points E, G and D and a declaration that the true boundary ran between points E and D. In his defence and counterclaim, Mr Lanzante claimed that the Release was part of a wider express agreement, that it was Mr Flack's proposal that Mr Lanzante build a brick wall on part of the boundary and that the position of the fence and wall were agreed with Mr Flack as the boundary.
The issues on the pleadings were summarised in the case summary as being:
"1. Whether C and D agreed the position of the wall and fence line and whether they agreed that the wall and fence line would mark the boundary between their respective pieces of land, and if so;
2. Whether D believed that the wall and fence line marked the boundary and, if so, whether C encouraged him in that belief and, if so;
3. Did D act to his detriment in reliance on C's actions, and
4. In the circumstances should C be estopped from taking back de facto possession of C's land."
That statement of the issues did not in terms identify as a self-contained issue whether there was a boundary agreement as distinct from identifying the question whether there was an agreement as to a boundary as part of an estoppel issue. However, on 8 May 2002 (four days before the trial) Mr Lanzante's solicitors informed Mrs Flack's solicitors that they intended to rely on a boundary agreement in addition to a estoppel and to apply to amend the pleadings. The defendant's supplementary skeleton argument prepared by counsel also made clear that it was being argued that there was a new boundary agreement.
At the commencement of the trial before His Honour Judge Thompson QC, the application to amend was made. We have been told by Mr Hill, appearing today on behalf of Mrs Flack, that the judge indicated that it was not clear whether an amendment was necessary. He deferred his decision on that point.
The trial then continued with oral evidence. When the judge gave judgment on 15 May 2002, he held that there was a binding boundary agreement to locate the wall and fences on the line E, G and D. He said that it was not necessary for any amendment, the pleadings being sufficient. He further held, in case he was wrong about a boundary agreement, that Mrs Flack was estopped from resiling from the agreement between Mr Flack and Mr Lanzante. The judge found Mr Lanzante had relied on the agreement to his detriment in that he had expended £700 in building the wall. He had also paid Mrs Flack £3,500 for the Release and he had ceded part of his own land, 1.2 meters in depth as a surveyor subsequently ascertained, along the driveway to Mrs Flack. The judge held that it would...
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