Nata Lee Ltd v Abid & Anor

An informal boundary agreement which is intended to transfer land is subject to the statutory formalities governing dispositions of land. An agreement merely identifying an uncertain documentary boundary is not, even if it incidentally transfers a trivial area.

Adverse possession requires factual possession which excludes the paper owner. Parking, modest maintenance and marking a limit do not suffice where the paper owner retains access and control.

Interference with a vehicular right of way is actionable only if substantial. The practical effect of any narrowing or obstruction must be assessed in context. Temporary parking is not necessarily actionable where the vehicle is promptly removed on request.

The respondents owned printing premises adjoining land redeveloped by the appellant. They claimed ownership of a three-metre section of a shared yard through an alleged oral boundary agreement and adverse possession. They also alleged trespass by the new building, its foundations and drains, and interference with a vehicular right of way.

After a liability-only trial, District Judge Langley found broadly for the respondents and made declarations on each claim. The appellant challenged those declarations and alternatively sought a retrial. The principal issues concerned the legal effect of the alleged boundary agreement, whether the respondents' conduct established adverse possession, the exclusion of material factual survey evidence, and whether the redevelopment substantially interfered with the right of way.

1. Appeal allowed in substantial part. The alleged boundary agreement was intended to move a clear documentary boundary and transfer a significant parcel capable of providing an urban parking space. It was therefore subject to the statutory formalities governing transfers of land. The doctrines concerning informal agreements which merely demarcate an uncertain boundary did not apply. The disputed land remained part of the appellant's property.
2. The respondents had not acquired the disputed land by adverse possession. Parking occupied only part of it and did not prevent the paper owner from using it for access. Keeping the area clean and tidy amounted to limited maintenance. The boundary line had been painted by the paper owner to mark the permitted extent of parking. Those acts, separately or together, did not exclude the paper owner.
3. The building and foundation encroachment issues were remitted for retrial, confined to the respondents' paper title. The judge had wrongly excluded important before-and-after measurements from the appellant's party-wall surveyor. His prior involvement affected weight rather than admissibility, and any attempt to give expert opinion while called as a factual witness could have been controlled at trial. The serious lateness of the application had to be balanced against the evidence's importance, simplicity and absence of significant prejudice.
4. The drainage trespass declarations were set aside. The works conformed, so far as found, to an addendum party-wall award signed by both parties' surveyors, and the judge had concluded that this supplied the respondents' consent.
5. Narrowing the yard from approximately 15 feet to 14 feet did not substantially interfere with the vehicular easement. The evidence did not establish any material practical obstruction. The appeal was therefore allowed on that issue. The finding that narrowing the gateway by approximately one metre substantially interfered with the easement was upheld because the judge was entitled to assess its practical effect together with the features of the adjoining road.
6. The temporary-obstruction claim was remitted for retrial. Parking is not actionable merely because access is required at all times; a vehicle promptly removed on request may cause no actionable interference. The declaration also improperly extended beyond the pleaded case of obstruction by vehicles to other obstructions.

Underhill and Moore-Bick LJJ agreed with Briggs LJ.

• Court of Appeal (Civil Division): By [2014] EWCA Civ 1652, allowed the appeal in substantial part, upheld the declaration concerning interference caused by the narrowed gateway, and remitted the building, foundation and temporary-obstruction issues for retrial.
• Central London County Court: District Judge Langley, following a liability-only trial, made declarations broadly upholding the respondents' claims in boundary, trespass and interference with a right of way, and directed a further remedies hearing.