Christel Naish v Vasos Vassili & Anor

In construing a conveyance and an attached plan marked for identification only, the court must consider the conveyance as a whole and the objective physical features existing and known when it was made. The plan does not necessarily fix the precise private boundary. A completed building may pass with projections beyond its apparent boundary, or the right to maintain those projections may arise by implied easement. The existence of a projection therefore does not necessarily place the boundary in a plane cast from its outer edge. On causation, a trial judge is entitled to assess conflicting expert evidence and apportion responsibility for damage where the evidence supports the finding.

This was an appeal from HHJ Hellman’s judgment in the Central London County Court concerning the boundary between adjoining residential properties and responsibility for damp affecting a conservatory. The boundary had been fixed by reference to a 1953 conveyance and plan. The appellant argued that the boundary followed the outer plane of guttering and foundations rather than the flank wall, and challenged the treatment of evidence about a former boundary fence.

The appellant also challenged the finding that decking and its concrete screed caused only 20% of the damp, seeking an assessment of 50%. There was a further appeal concerning costs, which was left for consequential determination.

1. Appeal dismissed on the substantive issues. The costs appeal was adjourned for determination at a consequential hearing.
2. Construction of the 1953 conveyance required attention to the conveyance as a whole, the attached plan and the objective topographical circumstances existing when the conveyance was made. The fact that the plan was for identification only did not prevent it assisting in identifying the land. The completed house was a key physical feature. The flank wall, including the chimney-breast projections, was the obvious boundary feature corresponding with the plan.
3. The appellant’s trespass argument did not require the boundary to be placed in a plane cast from the outer edge of the guttering. A conveyance of a building may include projections beyond its apparent boundary, or the right to maintain them may arise by easement. The guttering therefore did not determine ownership of the disputed ground-level gap. The boundary was the flank wall at ground and upper-floor level, with the guttering passing at its level only.
4. The statutory declaration of a former occupier should not have been given evidential significance. It was not a permitted witness statement, no Civil Evidence Act notice had been served, and its inclusion in the bundle did not confer evidential status. Even without that evidence, the trial judge was entitled to reject the appellant’s evidence about a fence and, in any event, a fence said to exist in 1961 would not necessarily establish the boundary in 1953.
5. The judge below was entitled to weigh conflicting expert evidence and find that the concrete screed caused 20% of the damp. Other causes included the low damp-proof-course level and missing pointing. The appellate criticisms of those findings were unjustified.

• High Court (Chancery Division) — appeal from the judgment of HHJ Hellman in the Central London County Court, delivered on 17 January 2024, with the order made on 24 July 2024. The substantive appeal was dismissed. The costs appeal remained to be determined.