BOUNDARY DISPUTES : CONDUCT : DETERMINATION OF BOUNDARIES :
ASSESSMENT OF EVIDENCE ABOUT AGREEMENT OF BOUNDARY LINE : LACK OF DISCUSSION OF BOUNDARY LINE
A judge determining a boundary dispute between neighbouring residential property owners had been entitled to conclude that there was no evidence of a boundary agreement, as there had been no actual discussion of where the boundary lay.
The appellants (C), residential property owners, appealed against a judgment settling the boundary between their property and the property of their neighbour (W). It had been accepted by both parties that the boundary lay somewhere along the lawned area between the two driveways in front of the properties. The first owners of the properties (P), C’s predecessor in title, and (R), W’s predecessor in title, had discussed landscaping the lawned area and produced a plan, and planted various shrubs, in particular a bush. The shrubbery followed the line of the driveway, and P and R continued to tend to the other’s side irrespective of where the boundary lay. Prior to C and W’s occupation of the properties there had been no dispute regarding the boundary.
HELD: The judge had been entitled on the facts before him to reach the conclusion that he had. There were inconsistencies in P’s evidence, and the judge was entitled to reject it on the basis that it lacked consistency and clarity. Further, there had been no discussion, or indeed an agreement, between the parties as to where the boundary lay. R’s letter referred to a tacit agreement, and not an actual agreement. There had only been discussion in relation to the maintenance of the landscaping, and R’s offer to contribute to the cost of the landscaping only served to reinforce W’s case that discussion centred on maintenance, and not boundary demarcation, as did R’s denial of any agreement in relation to landscaping impacting the boundary. P had failed to show that the judge’s findings had been perverse or that he had ignored the evidence. The findings of fact made by the judge had been findings that were open to him. Accordingly, the decision of the judge was upheld.
WELDING v CHARALAMOUS & ANOR (2009)
CA (Civ Div) (Ward LJ, Stanley Burnton LJ) 14/12/2009