Parmar & others v Upton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Ryder,Lady Justice Arden |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] EWCA Civ 795 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2014/3131 |
| Date | 22 July 2015 |
[2015] EWCA Civ 795
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE WORSTER
2BM02319
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Ryder
and
Lord Justice Briggs
Case No: B2/2014/3131
George Laurence QC and David Warner (instructed by HADGKISS HUGHES & BEALE) for the APPELLANT
Jonathan Gaunt QC and Matthew Haynes (instructed by SYDNEY MITCHELL) for the RESPONDENT
Hearing dates : 7 th and 8 th July 2015
Introduction
This appeal is mainly about the application to a particular set of facts of the pair of rebuttable presumptions which conveyancers call the "hedge and ditch rule". While, to many modern (and in particular urban) lawyers, this rule might at first sight appear to be something of a quaint chancery conceit, it continues to serve a valuable purpose, not least as a means of enabling neighbouring owners of rural land to avoid what is almost always the wholly disproportionate cost and stress of having to litigate a boundary dispute. The blood, toil and sweat which has been devoted to this litigation would even have horrified Prince Hamlet who, watching Fortinbras march away with his army, observed:
"…while, to my shame, I see
The imminent death of twenty thousand men
That, for a fantasy and trick of fame
Go to their graves like beds, fight for a plot
Whereon the numbers cannot try the cause,
Which is not tomb enough and continent
To hide the slain? O, from this time forth
My thoughts be bloody, or be nothing worth!"
In Alan Wibberley Building Limited v Insley [1998] 1WLR 881, at 891, giving a dissenting judgment later approved by the House of Lords [1999] 1WLR 894, Judge LJ said this, of the hedge and ditch rule:
"I can see no basis for trivialising this principle. In large areas of the countryside it is well understood and has indeed ensured that those with a boundary formed by a hedge and ditch know exactly where they stand without recourse to legal advice or litigation."
In the House of Lords in the Wibberley case, at page 897, Lord Hoffmann explained the hedge and ditch rule as follows:
"There are certain presumptions which assist the inferences which may be drawn from the topographical features. Perhaps the best known is the one which is drawn from the existence along the boundary of a hedge and a ditch. In such a case, it is presumed that the boundary likes along the edge of the ditch on the far side from the hedge. The basis of this presumption was explained by Laurence J. in Vowles v. Miller (1810) 3 Taunt. 137, 138:
"The rule about ditching is this. No man, making a ditch, can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on top of it."
It should be noticed that this rule involves two successive presumptions. First, it is presumed that the ditch was dug after the boundary was drawn. Secondly, it is the presumed that the ditch was dug and the hedge grown in the manner described by Laurence J. If the first presumption is displaced by evidence which shows that the ditch was in existence before the boundary was drawn, for example, as an internal drainage ditch which was later used as a boundary when part of the land was sold, then there is obviously no room for the reasoning of Laurence J. to operate."
In the present case the Judge, HHJ Worster, concluded after a meticulous examination of the evidence deployed during a four-day trial in the Birmingham County Court that there was nothing sufficient to displace those presumptions, so that the hedge and ditch rule provided the simple answer to the main issue raised by the proceedings. The Judge did not, unfortunately, have the benefit of evidence discovered only after the conclusion of the trial, which was admitted as fresh evidence on this appeal by Vos LJ on the without notice application of the Appellant, the admission of which has not been challenged by the Respondent. The result is that the analysis of the critical question whether the presumption underlying the hedge and ditch rule can be rebutted in the present case has needed to be conducted afresh in this court. It is only a small mercy that this (together with other issues) has taken two, rather than four days. The result is that the challenge to the applicability of this simple rule has occupied two courts and four judges for no less than six days of painstaking analysis, not to mention time for pre-reading and judgment writing, and the involvement of four counsel, including senior leading counsel in this Court, all in relation to a dispute which, however riveting for the parties, can only sensibly be described as modest, in terms of value at risk other than costs.
The facts
This is an action in trespass. The claimant Mr. Upton is, and has been since 1997, the owner of a house and agricultural land constituting the bulk (but not the whole) of what had for many years previously been known as Birchy Farm, Tidbury Green near Solihull. Birchy Farm lies on the north- east side of Birchy Leasowes Lane ("the Lane"). I have appended as Annex 1 to this Judgment a photocopied extract from the 1937/38 Ordnance Survey 1.2500 County Series map, upon which the Lane appears running northwest to southeast across its bottom-left hand corner. I will refer to this plan as "the Annex Plan".
In November 1991, Mr. Parmar acquired the house and land adjacent to the Lane immediately southeast of Birchy Farm, known as 77 Birchy Leasowes Lane. At that time, Number 77 consisted of a plot bounded by my letters D, E, F, G, H of the Annex Plan, but in and after 2008 Mr. Parmar carried out a residential development of the northeast part of his land, bordering the line D, E on the Annex Plan, thereby creating two properties now known as Numbers 79 and 79A Birchy Leasowes Lane, which he sold to the Hunters and the Gardners, the second to fifth defendants. It was during the carrying out of this development that the alleged trespass began upon Mr. Upton's south- east boundary, between points D and E. This led to the dispute about the whole of the boundary between points D and F, although Mr. Upton has since settled with all the defendants other than Mr. Parmar.
Prior to substantial residential development after 1920, the whole of the land to the south- east of the line A to F consisted of a coppice, known as Birchy Leasows Coppice ("the Coppice"). It was sold at auction as a single lot in 1920 (probably for development) and Number 77 was carved out of it and sold to a predecessor of Mr. Parmar by a conveyance dated 24 th July 1925 ("the 1925 Conveyance").
The Coppice has since then been almost entirely covered by residential development.
The hedge and the ditch
It is common ground that there has at all times since at least 1925 been a ditch carrying drainage water from point D to point F on the Annex Plan. The ditch now discharges into a culvert under the Lane but, at least until 1925, it used to turn south- east at point F and run along the south-western boundary of the Coppice into a pond at the south-eastern corner of the Coppice lying beyond the bottom right hand corner of the Annex Plan.
Although the ditch therefore ran along the whole of the now-disputed boundary, it is most unlikely that it began at point D. The photographic and other evidence now available shows that it began at least as far north- east as point A, so that it ran along the whole of the north-west and south-west physical boundaries of the Coppice. The lie of the land is such that the ditch was capable of draining both the Coppice itself and the agricultural land lying to the north-west of it between points A and F, including both Birchy Farm betweens points B and F, and what is now a rugby pitch lying to the north-west of the line A to B.
The judge found (and this is not challenged on appeal) that there used to be a hedge along the line D to F immediately to the north-west of the ditch, which continued north- east from point D, and vestiges of which, including some mature oak trees, are still to be seen. He accepted expert opinion that the hard line between points D and F on the 1882–84 Ordnance Survey map (replicated in the Annex Plan) depicted the line of that hedge and that, as indeed appears from the 1882–84 OS map and from aerial photographs, it is common in that vicinity to find mature deciduous trees along such hedges. The Judge was assisted in making these findings by his own site visit.
The Judge had no evidence at all with which to enable him to decide (if it mattered) whether the land either side of the line A to B on the Annex Plan was in separate or common ownership. Prior to its current use as a rugby pitch, the land to the north-west was a field, and the Coppice extended along the south- east side of that line. Perfectly properly, he declined to speculate about that question.
By contrast, the fresh evidence admitted on this appeal demonstrates beyond dispute that, until 1920, the land on either side of the line A to B on the Annex Plan was indeed in common ownership. The field was part of what used to be known as Betteridge Farm. It is unnecessary to describe that new evidence in any detail, save to note that it extends back to 1801. Not only does it show that Betteridge Farm and the Coppice were in common ownership, but also that Betteridge Farm was separately owned from Birchy Farm, along a boundary running west-north-west from point B on the...
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