Donald Stephen Ashmoor Burch & Anor v Grahame Michael Nelson

Determined Boundary application – whether boundary capable of being determined with required precision on evidence available Cases referred to Farrow v Boag [2023] UKUT 167 (LC) Pennock v Hodgson [2010] EWCA Civ 837 Acco Properties Ltd v Severn [2011] EWHC 1362 (Ch)

1. This is my judgment on Mr & Mrs Burch’s application to have their boundary with Mr Nelson determined.

2. In 1998 the Burches were registered as the proprietors of Green Acre, Hare Lane, Blindley Heath, where they live. In 2008 Mr Nelson was registered as the proprietor of the next-door Oak Cottage, where he lives. Both titles consist of a dwelling and outbuildings set back from the main road with garden front and back. To the rear of both properties the garden gives way to grass pasture. The boundary and the evidence

3. I conducted a site view on 17 February in the presence of Mr Burch and Mr Nelson and his barrister Mr Choudhury and walked along both sides of the boundary. On the Burches’ side I walked to the very rear and on Mr Nelson’s side just as far as a low fence across his land to a point where neither party had any concerns about the boundary even if it was not clear exactly where lies. A hedge runs along most of the boundary but as it nears the dwellings, it gives way to fence panelling which in turn gives way to yet more hedge at the very front as it nears Hare Lane. A narrow water channel runs part-way along the approximate location of the boundary. It is fair to say that the ground was saturated and this seems to have been a longstanding problem for these properties.

4. The application plan was prepared by the Burches’ surveyor John Witherden: The red arrow For those with a black and white copy, this is arrow higher up the page. indicates the Burches’ house and the blue arrow indicates Mr Nelson’s. To the right of the picture is Hare Lane and to the left is Crockers Lane. For present purposes the lack of visible detail matters not.

4. The boundary was created by a conveyance dated 17 August 1917. Three plots or titles, including parties’, were created out of a field. The relevant part of the conveyance provides: “...which piece of land has a frontage to Hare Lane of ninety four feet or thereabouts and contains at the rear abutting on Crockers Lane seventy four feet or thereabouts (both measurements following the line of the hedge) and with its boundaries abuttals and dimensions (little more or less) is more particularly delineated and described in the plan drawn hereon and therein coloured pink together with the messuage erections and buildings thereon erected... the Purchase will not erect any Buildings (other than the Motor Shed already built and a similar structure hereby authorized...”

5. Mr Witherden’s report acknowledges the general boundaries rule, the conveyance (but only makes mention of the dimensions (94 and 74 feet)) and the “physical evidence” being “a mature Hawthorn hedge aligned with mature Oak trees and fruit trees... remnants of very old fence wire embedded in trunks of some of the mature Oak trees on the line of the Hawthorn hedge... a relatively new timber panel fence along the inside of the property boundary between the buildings. The hedge aligns with the established boundary at the front which is formed by a brick gate pillar and chain link fence.” It is Mr Witherden’s expert opinion that the boundary “is located on the root line of the existing long establish Hawthorn hedge... extending north towards the front of the property along the existing chainlink fence to the junction of the brick wall and gate pillar...”. Mr Witherden was not called to give evidence.

6. Although I heard evidence from both Mr Burch and Mr Nelson, I do not think anything they told me was relevant to the locating of the boundary which was created in 1917 long before either of them was born.

7. The law with regard to determining boundaries is well-settled and set out in numerous authorities such as Pennock v Hodgson and Acco Properties Ltd v Severn . During the hearing I provided the parties with a copy of Farrow v Boag which, it seemed to me, was relevant. Neither side had anything to say about the law. As is usual, the burden of proof is on the applicants, the Burches, to the civil standard. Discussion and analysis

8. Given the way that the hearing proceeded, I do not think that it will come as a surprise to the parties that it is my conclusion that I cannot determine the boundary because there is simply not the requisite evidence for me to do so.

9. The conveyance and plan, which I have to construe on the evidence put before me, are little help. The two measurements given are not tethered to any particular points or features on the plan, so we do not know where they start and finish. Further, the only features marked on the plan are two structures or buildings. One of these may well be the “motor shed” mentioned in the conveyance but I have heard no evidence about this and even if it was, it would not help because of the lack of measurements and information as to whether the Burches’ garage is the very same building. The conveyance also mentions “the line of the hedge” but there was no evidence as to what hedge existed back in 1917. Was it the “mature Haythorn hedge” of the expert’s report and in situ now? We simply do not know. I was under the impression that the parties’ titles were formed out of an open field, in which case I would not expect a hedge running across the field, but I simply do not know. The fact is that we do not know whether any of the features presently in existence were in existence when the boundary was created in 1917. There is no extrinsic evidence with any probative value.

10. A further difficulty with Mr Witherden’s report is that he does not explain the reasoning for his conclusion. He does not identify from the conveyance start points at either end of the boundary but, rather, without explanation alights upon the brick gate pillar at the Hare Lane end and a point that I cannot determine from any physical feature on the ground at the other. The boundary line that he gives along the wiggling or meandering hedge root line might make sense as matters stand in 2026 but the question is what would the first purchaser of Greenacre think he was buying if at the date of purchase he stood on the land with the conveyance in his hands? For one thing, he would have expected a straight boundary line given that that is what is shown on the conveyance. Conclusion and disposal

11. Accordingly, I find that there is insufficient evidence from which to determine the exact location of the disputed boundary and must, therefore, direct the Chief Land Registrar to cancel the Burches’ original application dated 22 December 2022 (made by a Form DB dated 13 July 2023) for determination of the boundary. Costs

12. As regards costs, paragraph 9.1(b)(i) of the Land Registration Division’s Practice Direction provides that if the Tribunal decides to make an order about costs, ordinarily the unsuccessful party will be ordered to pay the successful party’s costs.

13. My preliminary view is that Mr Nelson is entitled to payment by the Burches of his reasonable and proportionate costs (i.e. on the Standard Basis) since referral by the Registry to the Tribunal on 6 February 2024.

14. I direct: 14.1 By 5 pm on 10 March 2026, any party who wishes to make an application for costs should file and serve by email (a) written submissions on the principle of who should pay costs and upon what basis, and (b) an estimate of those costs. 14.2 If such a costs application is served, then by 5 pm 17 March 2025 the recipient of that application should file and serve their representations in response. 14.3 The party applying for costs may then file and serve a response by no later than 5 pm 24 March 2026. Dated this 23 rd day of February 2026 Judge Alexander Bastin By Order of The Tribunal