Boas & Ors v Aventure International Ltd

Determining a boundary is an exercise in construing the relevant conveyance, informed where necessary by physical features and other extrinsic evidence. On an appeal involving documentary evidence, the appellate court must respect the trial judge’s fact-finding role, but may intervene where a critical finding has no evidential support or no reasonable judge could have reached it. That threshold is met where the trial judge has demonstrably failed to appreciate the significance of clear photographic evidence and drawn conclusions that cannot stand in its light.

The claimants appealed from a County Court judgment concerning the boundary between neighbouring freehold properties. The dispute followed the respondent’s removal of a 2004 fence and construction of a replacement fence in 2014. The parties agreed that the true boundary followed the original fence, but disputed whether that fence stood on the line of the 2004 or 2014 fence.

The Recorder declared that the boundary followed the 2014 fence, subject to limited trespass. Permission to appeal was granted by Henry Carr J, whose reasons are reported at [2019] EWHC 1020 (Ch). The central issue was whether the Recorder had drawn an impermissible inference from the photographic and other evidence.

1. The appeal was allowed on the substantive boundary issue. The correct starting point was the 1983 conveyance, by which the relevant parcels first left common ownership. The parties accepted, and the Recorder correctly found, that the boundary was indicated by the line of the original fence.

2. Boundary determination is an exercise in construction. The conveyance and plan must be considered together with relevant physical features and other extrinsic evidence. The issue on this appeal was factual: identifying the parcel shown on the conveyancing plan and locating the original fence.

3. An appellate court should interfere with factual findings only where a critical finding is unsupported by the evidence, no reasonable judge could have reached the decision, or there is an identifiable error such as a material misunderstanding of relevant evidence or failure to consider it. The fact that evidence is documentary does not automatically eliminate the trial judge’s advantages, particularly where there has been a site visit.

4. The Recorder had found that the fence shown in the June 2000 photograph was the same fence line as that shown in 1953. He was therefore correct to treat the 2000 fence as marking the true boundary. However, he was plainly wrong to conclude that the photograph did not show the fence’s position relative to the retaining wall. The photograph showed a verge materially wider than that beside the 2014 fence.

5. The Google Earth photographs provided further support, particularly those from December 2003 and 2006, which showed a consistent distance between the fence and retaining wall before and after the 2004 fence was erected. The Recorder’s conclusions based on the 2014 photographs could not stand in light of the clear significance of the 2000 photograph. The original fence was on the line of the 2004 fence.

6. The case was exceptional. The Recorder had otherwise approached the evidence conscientiously, but the site visit occurred after the 2004 fence had been removed and the verge concreted over. The oral evidence and written expert evidence did not materially assist in resolving the crucial issue.

7. The court would hear further submissions on the form of order. The respondent indicated that, if the boundary was found to be on the 2004 line, it was prepared to restore the boundary fence to that position.

• High Court (Chancery Division): appeal from the judgment of Mr Recorder Lawrence Cohen QC in the County Court at Central London Civil Justice Centre. The appeal was allowed on the boundary issue.
• High Court: permission to appeal was granted by Henry Carr J on 12 March 2019, in reasons bearing the citation [2019] EWHC 1020 (Ch).