Mr Justice Zacaroli confirmed in the recent High Court case of Charlton & Anor v Forrest & Ors [2024] EWHC 1014 (Ch) that ascertaining the precise location of a boundary between two properties is a matter of fact, not opinion, to be determined on the best evidence available.
In this case, evidence of the location of the boundary between two properties was thin on the ground. They had originally been part of the same title, but the precise date of separation was unknown. Each party had instructed an expert building surveyor to provide an opinion. Initially, the surveyors disagreed, but after a meeting, the claimants' surveyor agreed with the defendant's surveyor as to the location.
The claimants contended that the joint experts' conclusions were flawed. The judge found that while the experts' reports were useful in identifying and collating potentially relevant evidence, the joint conclusions of the experts did not constitute admissible expert opinion.
The ultimate issue was the factual matter of where the boundary lay, which is a question of fact to be determined by the Court. Expert evidence may be of assistance insofar as it consists of matters of scientific, technical or other specialised knowledge which are outside the judge's expertise. Still, in this instance, there did not appear to be any particular specialised knowledge that the experts brought to bear in expressing their conclusions based on the evidence they had collated. It was, therefore, for the judge to analyse the evidence himself in order to decide where the boundary lies.
With little to go on, of principal relevance was "evidence, insofar as it survives, as to the historical location of the boundary, in particular aerial photographs and early ordinance survey maps."
Comment
The starting point is, of course, the Land Registry title and plan. There are two aspects to the concept of a boundary: the legal boundary (an invisible line having no thickness) and the physical boundary (fences, walls, hedges and other boundary features). The two may or may not be in the same place. Section 60 of the Land Registration Act 2002 states that the boundary of a registered estate, as shown for the purposes of the register, is a general boundary unless "determined".
In addition, there are uncertain tolerances within the red-edging on the title plan. The Land Registry Practice Guide 40 supplement 3 (Land Registry plans: boundaries) states that: "Unlike the tolerances applied to Ordnance Survey mapping, there is no standard tolerance, measurement or ratio that can be attributed to the relationship between the position of the general boundary mapped on an HM Land Registry title plan and the position of the legal boundary".
Where doubt persists, or there is a requirement for greater accuracy, careful consideration of the history of any relevant boundary features (e.g. for how long has a boundary structure been in place, and who has maintained the structure separating two properties) should be undertaken. According to the Court of Appeal in the case of Liaquat (Ali v Robert Lane [2006] EWCA Civ 1532), "In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended."
Other lines of investigation include inspecting all aspects of the title, especially the pre-registration title deeds. These may assist in clarifying inaccuracies at the Land Registry. An old unregistered deed plan stated to be "for the purposes of identification only", can still be used as an aid to construction. Some plans will include "T" marks. Even if not specifically referenced in the deed they may still amount to persuasive evidence of ownership of the boundary feature (Seeckts v Derwent [2004] EWCA Civ 393)
Finally, as this case shows, it is also worthwhile analysing current and old Ordnance Survey maps and any historical aerial or other photographs, including Google Earth pictures. What you are looking for is the best evidence available to throw light upon a matter of fact. The role of an expert is to identify the physical indicators on the ground and to ensure that the drawn lines can be and have been applied to the physical position.
