Childs & Anor v Vernon

In a boundary dispute, imprecise original plans do not prevent the court from determining the true line by considering the physical situation and reliable historical evidence. A trial judge may prefer evidence from an original owner and need not reject it merely because the resulting line is not perfectly straight. A tenant’s encroachment is presumed to be for the landlord’s benefit, so a tenant who later acquires the freehold may rely on an earlier boundary agreement or acquiescence. Encroachment does not automatically require removal: the remedy is discretionary and must take account of predecessor consent, duration, harm and alteration costs. Where the lower court failed to address those matters, the removal order may be set aside and a proportionate final order made.

Mr Vernon owned number 19, between properties owned by Mrs Butcher and Mr and Mrs Childs. The parties brought related actions and counterclaims concerning boundary lines, fencing, alleged trespasses and an extension or lean-to. The actions were tried consecutively before HHJ Coltart, who determined the boundaries, held that the Childs’ extension did not encroach, and ordered Mr Vernon to remove the encroaching part of his lean-to on Mrs Butcher’s side.

Mr Vernon appealed both decisions. The central issues were the use and conduct of a jointly instructed expert, the proper method for determining boundaries where plans were unclear, the legal effect of an alleged agreement or acquiescence by a predecessor owner, and whether removal was the appropriate remedy for encroachment.

1. Disposition. The appeal concerning the Childs’ property was dismissed. The appeal concerning Mrs Butcher’s property was allowed. The decision was unanimous, Lady Justice Smith and Lord Justice Mummery agreeing with Lord Justice Toulson.
2. Joint expert. If a single joint expert is appointed, the court should define the expert’s role expressly. Directions should identify the plans and objective evidence to be examined, require a site inspection and an explanatory report, and avoid asking the expert to assess historical witness accounts or propose an equitable compromise boundary. It is also improper for one party to discuss the case with a joint expert at court without the other party, unless there is fully informed consent. The evidence about the discussions involving Mr Symes was unclear, and the court was not persuaded that they affected the relevant findings. The principle was stated by reference to P (A Child) v Mid-Kent Area Healthcare NHS Trust [2002] EWCA Civ 1703.
3. Childs dispute. Where the original plans are insufficiently detailed to locate the boundaries accurately, the court may consider the reality of the physical situation, objective evidence, boundary markers and reliable evidence from original owners. The trial judge was entitled to accept Mr Chaplin’s evidence about the gatepost, wall and continuation of the boundary. A possible kink caused by later fencing was not sufficient to displace that factual finding, particularly since the later fence might not have followed the original line.
4. Butcher dispute. The trial judge erred in treating an agreement or acquiescence by Mrs Webb as legally irrelevant merely because Mr Vernon was then an assured shorthold tenant. A tenant who encroaches on a neighbour’s land is presumed to act for the benefit of the landlord. The landlord may repudiate that conduct, but a tenant who later becomes the freeholder may take advantage of an agreement previously made with the neighbour. The court relied on the line of authority beginning with Kingsmill v Millard (1855) 11 Exchequer 313 and reviewed in London Borough of Tower Hamlets v Barrett [2005] EWCA Civ 923.
5. Remedy. Encroachment does not necessarily require removal. The appropriate order is discretionary. Relevant matters included any agreement or acquiescence by the predecessor owner, the length of time the structure had existed before the successor acquired the property, the degree of harm and the cost of alteration. The lower court had not addressed those matters. The removal order was therefore quashed, while the boundary declaration, an order concerning the guttering, a stay of damages claims and cross-claims, and no order as to costs below were proposed as proportionate disposal.
6. The appeal costs were proposed to be paid by Mr Vernon in the Childs dispute and by Mrs Butcher in the Butcher dispute. The formal order recorded the relevant application as refused in the dismissed appeal and granted in the allowed appeal.

• Court of Appeal (Civil Division): Mr Vernon’s appeal concerning the Childs property was dismissed. His appeal concerning Mrs Butcher’s property was allowed, with the removal order concerning the lean-to quashed and consequential relief proposed.
• Brighton County Court: HHJ Coltart determined the boundary issues after trial at Lewes Combined Court on 24 August 2005. He held that the Childs’ extension was on their own land and ordered removal of the encroaching part of Mr Vernon’s lean-to. No lower-court citation is stated in the judgment.