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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Harrison & Anor v Brading [2016] EWHC 3267 (Ch) (16 December 2016) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2016/3267.html Cite as: [2016] EWHC 3267 (Ch) |
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CHANCERY BUSINESS
Priory Courts, 33 Bull Street Birmingham B15 3ST |
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B e f o r e :
(sitting as a Judge of the County Court)
____________________
PAUL FRASER HARRISON THERESA JANET HARRISON |
Claimants |
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- and - |
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JUSTIN JOHN BRADING |
Defendant |
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Mr Matthew Haynes (instructed by Moore & Tibbits) for the Defendant
Hearing dates: 6-9 December 2016
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Crown Copyright ©
Mr Justice Newey :
"12. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121; [2004] 1 P. & C.R. 176 at 187; cf Beale v. Harvey [2003] EWCA Civ 1883; [2004] 2 P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips [2003] EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance….
13. Before the judge and in this court it was agreed that the parties' subjective beliefs about the position of the disputed boundary in this case and about who owned the bed of the stream were extrinsic evidence that was inadmissible in the construction of the relevant conveyance: Investors Compensation Scheme Ltd v. West Bromwich BS [1998] 1 WLR 896 at 913. The effect of the conveyance is not determined by evidence of what the parties to it believed it means, but what, against the relevant objective factual background, they would reasonably have understood it to mean."
"In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended."
Carnwath LJ added, however, that "in principle reference to the intentions of the parties means the parties to the original conveyance" (paragraph 38).
"He [i.e. Carnwath LJ in Seeckts v Derwent [2004] EWCA Civ 393] recognised that there is a common and well-established practice of using 'T' marks to identify the ownership of the wall or fence marking the boundary. That is undoubtedly a relevant factor to keep in mind when construing a conveyance by reference to a plan which incorporates 'T' marks. But whether it is determinative of the boundary depends upon balancing it against the other relevant terms of the conveyance and the features of the plan coupled, when appropriate, with evidence of the position on the ground. The task of the court is to decide by reference to all these elements how the conveyance or transfer should be construed. All are relevant but none is necessarily conclusive. To say that the use of 'T' marks raises a presumption of law (even a rebuttable one) that the boundary feature belongs to the adjoining landowner indicated by the use of the marks seems to me to be wrong in principle and in effect to pre-empt the process of construction on which the court is engaged."
"After we moved into Cathole Manor Farm Dick [Taylor] made it clear to us where the garden boundary was as he asked us to ensure we cut back the line of conifer trees on the south east boundary complaining that they had not been cut back in a long time. We always made sure thereafter that we maintained the same either ourselves or using contractors …."
Mr Haynes argued this evidence showed that Mr Dick Taylor considered the southern boundary to lie south of the garden fence. I do not, however, accept that that is so. Mr Brading does not claim that Mr Dick Taylor said in terms where he thought the boundary was but rather draws an inference from Mr Dick Taylor having asked for the conifers to be cut back. However, I do not think any inference as to the location of the boundary can be drawn from the fact that Mr Dick Taylor asked Mr Brading to cut back vegetation lying between the properties that could be reached more conveniently from the Bradings' side (as would seem to have been the case).
"(1) a sufficient degree of physical custody and control ('factual possession'); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ('intention to possess')".
In the same case, Lord Browne-Wilkinson approved (at paragraph 41) a passage from Slade J's judgment in Powell v McFarlane (1977) 38 P&CR 452 in which the latter said:
"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."
"When a landlord grants a lease he gives the tenant the right to exclusive possession of the demised premises for the term of the lease. The grant of a lease is thus a strong indication that the grantor has the animus possidendi. In Bristow v Cormican [(1878) 3 App Cas 641], Lord Hatherley said: 'It has been decided undoubtedly, with respect to old leases in particular, especially where rent has been paid under them, that those leases do amount to a clear and distinct evidence of possession …'."
"After Sarah and I moved into Cathole Manor Farm in about August 1999 we started work on refurbishing it which created building debris. The debris that was not initially removed from the site we would put on the strip of land at the eastern border of our property near the power pole. We also used the same area to pile up garden debris and to have a bonfire of the same from time to time."
He adhered to this account during his oral evidence and Mr Cliff Jones, who worked for Mr Dick Taylor from about 2003, referred to Mr Brading having tipped cuttings over the retaining wall quite often (perhaps once a fortnight).
"I must, too, bear in mind that a boundary agreement is, in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured in the law."
In Stephenson v Johnson [2000] EG 92 (C.S.), where the Court of Appeal concluded that such an agreement had been made, Bennett J said (at paragraph 57):
"In summary, in my judgment, the judge was right to find an agreement between Mr Vane and the defendants. It is not strictly necessary for a court to have to find an offer and an acceptance. The course of the parties' conduct, that is to say, Mr Vane and the defendants, should be looked at and if, on the balance of probabilities, an agreement is established, that is sufficient. In my judgment, the conduct of Mr Vane and the defendants does establish such an agreement."
In a similar vein, Pill LJ said (at paragraph 71):
"in my judgment, the passage which I have just cited [from Neilson v Poole] indicates a favourable view of the value of boundary agreements. That value is indorsed by Megarry J and too much formality must not be expected. It is the task of the court to consider the evidence as a whole and to reach a conclusion as to whether or not a boundary agreement has been made."
"In view of the above considerations we would like to propose some changes in the way we do things:
- We propose that face-to-face negotiations take place only between two individuals at a time, one from each 'side'. This should keep discussions focussed on only the essential elements of the negotiation. The 'other partner' on each side will be available for their 'lead negotiator' to liaise fully with in real time.
- As you know, there are several pending issues between us:
a). The location of upgraded boundary fences and hedges.
b). The final location of the telegraph pole and associated new hardware.
c). The trimming of the trees along the common boundary between our two gardens.
We believe that a negotiated settlement of the three issues is in all our best interests, and we seek a single comprehensive agreement over all of them.
- We wish the agreement to be put into writing and signed by all four of us, once agreed.
- Until agreement has been reached and put into writing, no further works would be carried out in the disputed areas ….
We believe that with the above approach, it should be possible to reach agreement in principle quickly, within hours, or a couple of days at the most. It may take a little longer to finalise the written agreement, but we would hope that all can be settled in writing by the end of April, or thereabouts."
"We wish for a resolution, however we have already put back completion of the works a season but the field fencing needs resolution within two weeks as a disaster scenario would be prize cattle munching their way through circa £700 of new laurel and fruit trees."
"Hi Paul thanks for letting us know. I'll leave it to Sarah [i.e. Mrs Brading] to iron out the details of things with Theresa [i.e. Dr Harrison] so the fencing can be sorted out in time."
As I understand it, the Harrisons had let the Bradings know that cattle would be arriving.
"The gardeners have responded today to confirm they will come tomorrow to sort out the fencing in the field.
Please could Theresa speak with Sarah if there are any issues with it as now marked up.
Hopefully we are heading towards resolving all matters to everyone's satisfaction."
"Having been notified of a planned trespass, it is inconceivable that a land-owner, even while tolerating it, would not make herself present to witness the trespass and to exert any influence possible over the hostile action. Indeed, I chose to be present on my land on the 10th May 2011, while the fence erection took place and I observed its installation by the Defendant's contractors. I intervened to limit the extent of the incursion to the degree that I was able, as any landowner would. Later claims by the Defendant have misconstrued this observation and intervention as 'supervision'. My presence did not represent consent to the action being taken by the Defendant and his wife in erecting the fence."
i) The 1989 conveyance gave Mr Browne a strip of land to the east of the present day retaining wall in Area A. The boundary of the plot lay in the position shown by the purple pecked line on page 469 of the bundle;ii) The land conveyed in 1989 did not include any of Area B. On the true construction of the conveyance, the southern boundary of Mr Browne's plot was to run along the garden fence and then continue eastwards; and
iii) The boundaries have not changed since 1989.