Smith v Brough

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date22 Feb 2005
Neutral Citation[2005] EWCA Civ 261
Docket NumberB2/2004/2529

[2005] EWCA Civ 261






Royal Courts of Justice


London, WC2


Lord Justice Brooke

Vice-President of the Court of Appeal (Civil Division)

Lady Justice Arden


Patricia Renee Smith
Barry Hutchinson
Jean Brough
Paul Danby Brough

MISS C TASKIS (instructed by Messrs Dickinson Dees, Newcastle upon Tyne) appeared on behalf of the Applicant

MR B DENYER-GREEN (instructed by Messrs Savages, Newcastle upon Tyne, NE1 1DF appeared on behalf of the Respondent


Pursuant to directions given by Brooke LJ on 21st December 2004, this is an application by Mr and Mrs Brough for an extension of time and, if that is granted, for permission to appeal, from the order of Mr Recorder Hirst, dated 4 September 2001. By this order the Recorder made an order for the location of the boundary between 44 Middle Drive and 46 Middle Drive, Darras Hall in Pontiland, Newcastle upon Tyne. He found in favour of the respondents to this appeal. They were the claimants in the action. They are Dr Smith and Dr Hutchinson. The judge also made a permanent injunction and granted damages against the appellants for trespass.


In support of their application the appellants, Mr and Mrs Brough, rely on two witness statements of their solicitor, Mrs Jennifer Smurthwaite, a partner of Dickinson Dees in Newcastle. In addition, pursuant to directions given by Brooke LJ, the respondents rely on a witness statement of Dr Smith, dated 1st February, and a witness statement, dated 11 February, of Mr Richard Pickersgill.


Before I go into the judge's judgment and the background, I will indicate the grounds of appeal. First, it is contended that the judge wrongly concluded that there was a boundary agreement made between the successors in title of the appellants and the respondents in 1990 to fix the boundary along the line of the wire mesh fence. The judge found alternatively that the factors amounting to the boundary agreement were sufficient to amount to an estoppel to prevent the appellants from asserting otherwise in relation to the boundary than he found the boundary to be.


The appellants contend that the judge's findings on these points were fatally flawed. They say that, first, no claim was made in the case as pleaded to a boundary agreement, second, no such issue was addressed in the written or oral evidence of the parties and third, the only relevant evidence was a discussion between Mr Mulhern and Dr Smith. The court did not hear directly from the evidence of Mr Mulhern as to the replacement of the fence in question. It is contended that it was not sufficient for the judge to infer an agreement.


The second ground of appeal is that the judge also erred in dealing inconsistently and erroneously with the evidence as to the planting and position, vis-a-vis the boundary of a line of Leylandii trees between the two properties. He accepted the evidence of a Mr Turnbull that he had planted the trees on the respondent's side, but then held that he had planted the trees at a place different from that which Mr Turnbull said he had planted the trees. Mr Turnbull referred to the trees as planted on the Respondent's side of the boundary, when on his finding they had, in fact, been planted on the appellant's side.


The judge also held that the wire mesh fence had been planted in the place of the former post and rail fence, when this was contrary to photographic evidence produced at the trial by Mr Turnbull.


The third ground of appeal is that the judge should have found that the boundary was located according to the conveyancing documents and its historic position. The appellants state in their notice of appeal that the appeal is against the judge's findings of fact.

The judgment below


The trial of this action took some four days. There were a number of witnesses, including Dr Smith, Mrs Brough, Mr Mulhern and others. In his judgment the judge referred to the plans produced by the experts. He held that according to the conveyancing documents the boundary between number 44 Middle Drive and number 46 Middle Drive ran down the line called the legal boundary on their plan. Subject to certain alterations agreed upon by the experts, or in the case identified by one of the experts, Mr Duff.


The judge went on to say that that did not dispose of the case because there were other questions to be resolved. He then made a number of findings of fact: first, he held that between 1957 and 1967 a post and rail fence had been installed down most of the boundary starting at Middle Drive and he found that this fence was placed on the legal boundary. The judge then found that in about 1986 Mr Turnbull, then the owner of number 46, planted a row of Leylandii trees. The Turnbulls had built an extension to their property and there had been complaints by the owners of number 44, the respondents to this appeal.


The judge referred to Mr Turnbull's evidence that to appease his neighbours he planted conifer trees (that is Leylandii) in 1986 from the front of his property to a halfway point in the garden. His evidence was that he planted the trees well on their side of the boundary. He also said, however, that the boundary was made up of mature trees and bushes. Mr Turnbull did not refer to the post and rail fence. The judge found that it must have been dilapidated by 1986. The fact that it was dilapidated had been referred to by Mr and Mrs Mulhern who gave evidence before them. The judge accepted that Mr Turnbull planted the trees in a situation which he "considered was well within [his] own boundary." The judge found that Mr Turnbull was more concerned with privacy and that in fact he did not plant the trees well within his own boundary but into the eastern side of the post, and rail fence and thus on 44 Middle Drive.


The judge also found that in 1990 the Turnbulls vacated number 46 Middle Drive and that property was empty for about a year. During that period Dr Smith, a co-owner of 44 Middle Drive, installed a large panel fence that ran for some 200 feet over the northerly part of the boundary between the two properties. It ran along the line identified on the plan, to which I have referred, by the phrase "start of fence" on the plan up to the northern edge.


The judge found that the larch panel fence, on Dr Smith's evidence, was replaced the bushes and plants which had stood on the boundary. The judge found at this point in time the Broughs at number 46 effectively occupied a larger amount of land than they were strictly entitled to under their legal title. The matter with which the judge dealt next was whether Dr Smith had, as she said in her evidence, replaced the Leylandii. Her evidence was supported by that of her gardener, Mr Clegghorn. The judge rejected his evidence because on his site inspection he found older Leylandii.


Next the judge turned to the question of whether in 1990 there was an agreement between the Mulherns, primarily through Mrs Mulhern, and Dr Smith relating to the boundary. The judge found was that in 1990 there was an agreement between Mrs Mulhern and Dr Smith to put in a new black wire mesh fence from the point of the boundary with Middle Drive to the point where the larch panel fence ended. The large panel fence ended some 200 yards from the northerly boundary of the two properties. Mr Mulhern was away working in Abu Dhabi. The judge found that Dr Smith wanted the wire mesh fence in order to keep their dog in. The judge went on to find that the new wire mesh fence was placed in the position of the existing post and rail fence.


We have today seen the plan which was placed before the judge, and while I have just said that the wire mesh fence began at the point of the boundary with Middle Drive, it may have in fact begun only at a point contiguous to the two houses where there was, on the side of number 44, a side gate to the house thus preventing the dog from leaving the rear garden and getting into the front garden, or the garden of their neighbours.


The judge concluded as follows at [49]:

"My conclusion is that the parties had two matters in mind. First of all, they knew that this was the boundary and not only delineated the boundary but was going to represent the boundary between the two properties, hence the reason for the very substantial four by four posts being used, which were, as I find, concreted in place. The concreting is referred to at page 209 of the witness statement of Mr Adam. He says in paragraph 4,: 'All the fence posts and mesh fence were concreted in the ground. Concreting means that it is there for a substantial period of time. The size, again, means the degree of permanency is intended."

The Judge went on to make findings about what happened after this fence was erected, but I am not concerned with that part of his judgment.


The Judge then considered the authorities of Neilson v Poole [1969] 20 P&CR 909 and Burns v Morton [1999] 3 All ER 646, which deal with boundary agreements. In effect (so far as relevant), these cases decide that where parties agree to identify a boundary between their properties, there is no contract for the disposition of an interest in land, and thus no need for compliance with the formalities for such a contract, unless there is clearly an agreement to transfer an interest in land.


The judge then went on to consider the doctrine of estoppel. He found that an estoppel ought to apply to prevent the Broughs from asserting the boundary further to the east and...

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