Peter Robert Crea & Anor v Philip George Camp & Anor

A boundary agreement may identify and confirm the boundary without conveying land, and is therefore generally enforceable without the signed writing required by Law Reform (Miscellaneous Provisions) Act 1989, s 2. An agreement to submit a boundary dispute to expert determination is governed by conventional contractual principles. The court assesses the correspondence objectively in its factual matrix. Silence on one term is not necessarily fatal where the communication objectively treats the agreement as concluded and does not invite further negotiation. Subjective intentions and the expert’s later understanding are irrelevant to contractual construction. Where parties agree to accept an expert’s assessment or definition of the boundary, they may be bound even though the expert cannot identify the precise historical legal line, provided that the expert defines a boundary in accordance with the agreed remit.

The appellants owned The Heathers and the respondents owned neighbouring Sunnyside. Following a boundary dispute, the parties exchanged letters in December 2016 concerning the joint instruction of Lewis Brown Chartered Surveyors. The respondents proposed that the parties agree in advance to accept the surveyor’s result. The appellants agreed to the joint instruction and asked the respondents to proceed.

The surveyor reported that the exact legal boundary could not be identified, but proposed a practical boundary line. The County Court at Taunton held that the correspondence created a binding agreement to accept the surveyor’s determination and that the parties were bound by his report. The appeal concerned whether an agreement had been formed, its terms, whether the report defined the boundary, whether material evidence had been overlooked, and whether the boundary should instead be fixed by reference to the 1958 conveyance.

1. Appeal dismissed. The parties entered into a binding agreement to jointly instruct Lewis Brown Chartered Surveyors on terms that they would be bound by the firm’s conclusion as to the boundary.
2. The alleged agreement was a mixed question of fact and law. The appellate court would not interfere with factual findings absent perversity, but could determine the legal effect of the facts found. No special rule required the correspondence to be construed as creating an expert-determination agreement. The question was governed by conventional contractual principles.
3. The respondents’ letter was a counter-offer. It accepted the proposal for a joint boundary survey but added terms, including that the parties would accept the result. The appellants’ reply accepted the joint instruction, supplied documents, did not invite further discussion, and objectively treated the arrangement as concluded. Its failure expressly to address the acceptance term did not prevent acceptance of the counter-offer.
4. The court applied the objective approach to contractual construction. Arguments based on why a party did not expressly reject a term should not be given weight merely because the agreement could have been expressed more clearly. Evidence of subjective intention was inadmissible on the question whether the correspondence objectively created the agreement. The surveyor’s later misunderstanding of the bargain was irrelevant.
5. The surveyor’s report provided a binding answer within the agreed remit. Although he could not identify the exact historical legal boundary, he defined a boundary line as a practical solution to the evidential uncertainty. The subsequent determined boundary plan was not a condition precedent to the parties becoming bound.
6. The alleged oversight of a prior witness statement caused no material irregularity. The statement largely contained argument, inadmissible evidence of subjective intention, irrelevant material, or evidence repeated or tested at trial. The issue concerning the 60-foot line did not arise once the binding agreement and report were upheld.

• County Court at Taunton: His Honour Judge Berkley held on 1 August 2024 that the parties had entered into a binding agreement to accept the boundary determined by their jointly instructed surveyor.
• High Court (King’s Bench Division): The appeal was dismissed.