Lee James Bootle v GHL Property Management and Development Limited & Anor

Registered title plans show only the general position of a boundary where the exact line has not been determined. The precise boundary must be established from topographical, historical and title evidence, subject to applicable presumptions. A hedge and ditch presumption may be displaced where the ditch is artificial or the circumstances do not support the presumption.

In trespass proceedings, an injunction is prima facie the appropriate remedy. The defendant bears the legal burden of showing why it should not be granted. The Shelfer working rule remains relevant but must not be applied rigidly.

Applications for injunctive relief without proper notice are exceptional. Applicants must present their case fully, fairly and with the utmost good faith. A material but inadvertent failure of fair presentation may justify setting aside the order.

The claimant owned Little Knowley Farm and the first defendant owned adjoining development land. The second defendant carried out development works. The parties disputed the position of their shared boundary, the claimant’s alleged drainage rights, trespass and encroachment, injunctive relief, and the validity of an interim injunction granted without sufficient notice.

The properties were registered under separate titles. Historic conveyances, Ordnance Survey maps, physical features and expert evidence were relied on to establish the boundary. The claimant also sought damages for trespass and a prescriptive drainage easement.

The court therefore had to determine the true boundary, the existence and extent of drainage rights, the consequences of the defendants’ works, the appropriate remedy, and whether the earlier without-notice order should be set aside.

1. Boundary. The general boundaries rule applied under Land Registration Act 2002, section 60(1). The registered plans showed only the general position. The exact line had to be established from topographical and historical evidence, together with the available title documents and any applicable presumptions. The court found that the boundary generally followed the centre of the roots of the historic hedge north of the ditch, with a short deviation along the southern edge of the former pond. The boundary was represented sufficiently accurately by the blue line on Mr Meggitt’s plan at Appendix 7.
2. The hedge and ditch presumption did not apply. The ditch was substantially artificial, and the evidence did not establish that the hedge had been planted in the manner required for the presumption. The 1929 conveyance plan was more reliable than the 1930 plan for identifying the historic boundary.
3. Drainage. Natural drainage onto lower adjoining land was an incident of ownership rather than an easement. The claimant could therefore allow naturally occurring water to pass onto the development land. He failed, however, to establish a prescriptive easement through the outlet pipe. There was insufficient evidence of the character, quality and regularity of historic use or of a defined channel.
4. Trespass and relief. The defendants had repeatedly entered the claimant’s land and removed vegetation north of the established boundary. The claimant was prima facie entitled to damages, with quantum to be assessed. Applying the guidance in Coventry v Lawrence, an injunction was the prima facie remedy. The defendants’ repeated conduct and the continuing risk of trespass justified an injunction for the anticipated duration of the development works. Damages in substitution under section 50 of the Senior Courts Act 1981 were inappropriate.
5. Cross-application. The without-notice application had involved an incorrect submission that the defendants had refused to share their development plans. That submission was material to the judge’s assessment of urgency and fair presentation, although inadvertent. The 22 August 2024 interim injunction was therefore set aside. The defendants were entitled to an inquiry as to damages under the claimant’s cross-undertaking.

The established boundary was declared, damages for trespass were ordered to be assessed, the defendants were restrained from trespassing on Little Knowley Farm, and the earlier interim injunction was set aside.

The judgment describes earlier interlocutory proceedings in the same litigation. On 22 August 2024 HHJ Cadwallader granted interim injunctive relief. On 9 September 2024 HHJ Halliwell continued modified relief by reference to the registered title plan. This judgment determined the substantive issues and set aside the 22 August 2024 order.