Ceri James Charlton & Anor v Billy Forrest & Ors

Where an historic boundary was created by reference to a natural feature such as a line of trees, its present location must be determined from the best available evidence of that feature when the parcels were divided. The court must assess the evidence itself, including historic photographs, maps and surviving physical features. The boundary is an approximation rather than an exact science where the original trees have been replaced over time. Expert evidence may assist by identifying specialised matters outside the judge’s expertise, but the location of the boundary remains a question of fact for the court. A trespass claim based on alleged encroachment fails where the evidence establishes that the impugned works occurred on the defendants’ side of the boundary.

The claimants were the registered proprietors of Ty Chwarel. The defendants owned adjacent land operated as Castleton Residential Park. The dispute concerned the precise position of part of their common boundary, marked principally by a line of trees.

The claimants alleged that the defendants had cut down boundary trees and erected a fence on their land, amounting to trespass. The defendants maintained that the relevant boundary followed the existing line identified as the Red Line. The court considered historic aerial photographs, Ordnance Survey maps, conveyances, physical features and witness and expert evidence.

1. Boundary determination. The original conveyance creating the separate parcels was unavailable. The court therefore inferred the historic boundary from the available evidence, particularly the 1945 aerial photograph and subsequent photographs showing the same tree line. The most likely inference was that the boundary, when created, followed the row of trees.
2. Expert evidence. The ultimate location of the boundary was a question of fact for the court. Expert evidence was admissible and useful only insofar as it involved scientific, technical or other specialised knowledge outside the judge’s expertise, applying the approach in TUI UK Limited v Griffiths [2023] UKSC 48; [2023] 3 WLR 1204. The experts’ conclusions based on collated documentary and photographic material did not bind the court, and the court undertook its own analysis.
3. Assessment of the tree line. The western edge of the historic tree line remained relatively straight through the photographs. Later growth predominantly extended eastwards, including into the disputed section. The evidence therefore supported treating the western edge as the more constant feature. The suggested continuous mound or embankment was not established and was not determinative.
4. Disposition. The best approximation of the historic boundary through the disputed section was the defendants’ Red Line. The claimants’ alleged encroachment was therefore not proved, and the trespass claim fell away. The court found for the defendants on the central boundary issue.

Not stated in the judgment.