BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Christopher Martin Cantelmi (2) Maha Nakli v Ian John Hart [2014] EWLandRA 2013_0880 (13 November 2014)
URL: http://www.bailii.org/ew/cases/EWLandRA/2014/2013_0880.html
Cite as: [2014] EWLandRA 2013_0880, [2014] EWLandRA 2013_880

[New search] [Printable RTF version] [Help]

PROPERTY CHAMBER

FIRST –TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO 2013/0880

 

BETWEEN

 

 

 

 

 

(1)   CHRISTOPHER MARTIN CANTELMI

(2)   MAHA NAKLI

 

 

Applicants

and

 

 

IAN JOHN HART

 

Respondent

 

Property address: 35 Dorset Road, London SW19 3EZ

Title numbers: SY145694, SY145695 and SY22897

 

Before Judge McAllister

Alfred Place, London

25th September 2014

 

Representation: Mr Daniel Dovar of Counsel instructed by Child and Child solicitors appeared for the Applicants; Mr John De Waal QC appeared for the Respondent.

 

DECISION

Introduction

  1. The Applicants and the Respondent are neighbours. The Applicants are the registered owners of 35 Dorset Road, Merton Park, London SW19 (registered with title number SY144694). The Respondent, together with his wife Cindy Janye Hart, is the registered owner of 37 Dorset Road (registered with title number SY222897). The First Applicant is also the registered owner of adjacent land, described as land on the south east of Sheridan Road (which is a small parcel of land at the end of the garden of number 35). This land has a separate title: title number SY145695.  For ease of reference, the land comprised in titles numbers SY145694 and SY145695 will be referred to as ‘Number 35’ and the adjoining property as ‘Number 37’.

 

  1. By an application dated 18 March 2013, the Applicants applied for a determined boundary relying on a plan dated 14 March 2013 prepared by two surveyors in the firm of David J Powell Ltd, namely Lauren MacNair MRICS (who has now emigrated to Australia) and Robert Avenell FRICS. Mr Avenell gave evidence at the hearing. I will refer to this as Plan A. The Respondent objected to the proposed boundary.

 

  1. The issue between the parties can be stated simply. Numbers 35 and 37 share a common dividing wall. The footprint of the properties is such that, although they are semi-detached dwellings, the flank wall of Number 37 extends beyond the building at Number 35 at the front and at the rear. In short, the properties are not symmetrical.

 

  1. The Applicants contend that the boundary runs down the middle of the wall separating the two properties: the Respondent contends that the boundary runs along the external face of the wall. This line is shown (for illustrative purposes) on the plan attached to Mr De Waal’s skeleton argument (Plan A1). The alternative line runs from the agreed datum point A (where the boundary meets Dorset Road) to A1 (the north east corner of Number 37), along the outside flank wall to A2, then alongside the outside of the garden wall to B1 (the south west corner of Number 35) and then to C. The line shown as B1 to C separates Number 37 from two other properties which no longer form part of title SY144694.

 

  1. The issue as to the true location of the boundary is not merely an academic exercise, nor does it reflect any dissent or ill will between the neighbours. The Applicants want to build a flat roof ground floor extension (with a depth of approximately 6m and a width of 6.5 m) extending to the boundary wall. Planning permission was sought and refused, and an appeal dismissed on 18 April 2008. It may well be that a further application will be made.

 

  1. The matter was referred to the Tribunal on 15 October 2013. I had the benefit of a site visit on 24 September 2014. On that occasion, I also saw a number of other properties in Dorset Road.  For the reasons set out below I will order the Chief Land Registrar to cancel the application.

 

Determined boundaries

  1. The provisions relating to boundaries of registered land are set out in section 60 of the Land Registration Act 2002. Section 60(1) provides that, as is well known, the boundary of a registered estate as shown for the purposes of the register is a general boundary, unless determined under that section. Section 60(2) states that a general boundary does not determine the exact line of the boundary. Section 60 (3) provides that rules may make provision for the determination of the exact line of the boundary.

 

  1. The relevant rules are set out in Part 10 of the Land Registration Rules 2003. In particular, Rule 118 provides that (1) a proprietor of a registered estate may apply to the register for the exact line of the boundary of the registered estate to be determined and (2) an application made under paragraph (1) must be made in Form DB and be accompanied by (a) a plan, or a plan and verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map and (b) evidence to establish the exact line of the boundary.

 

  1. Further requirements regarding applications for determined boundaries can be found in the Land Registry Practice Guide 40 (May 2014 edition). The plan supporting a determined boundary application must conform to strict requirements: in particular it must be to a scale no smaller than 1:200, must be accurate to 10mm, and must be taken from at least two defined points on surrounding permanent physical features such as the corners of buildings.

 

Conveyancing history  and evidence

  1. The properties form part of the John Innes Merton Park Conservation Area. The  history of the site is set out in a document entitled John Innes Merton Park Conservation Area Character assessment produced by the London Borough of Merton in 2006. In addition Mr Cantelmi, the First Applicant, has carried out considerable historical research into the area, and came to court with the original architectural  plans for a number of properties.

 

  1. In 1867 a successful business man, John Innes, bought a substantial area of land,some 340 acres,  in  what was then Lower Merton with the intention of creating what might later have been called ‘a garden suburb’. Three new roads (including Dorset Road and Sheridan Road) were laid out in 1870/71 in anticipation of the development. The development took place in phases, under at least four architects, including HG Quatermain who was the architect for the Merton Park Estate Company Limited between 1873 and 1903. He was followed by Thomas Newell.  The development was intended to be a socially mixed development, with small cottages, semi detached and large detached houses. Numbers 35 and 37 are recorded as having been built in 1904 using Newell’s plans, in an ‘arts and crafts’ style. Symmetry was not a feature of the ‘neo-vernacular’ or ‘arts and crafts style’. They are both Locally Listed buildings.

 

  1. The Applicant relies on the building designs of other properties, and in particular Numbers 5 and 7, to support his argument that the boundary line is along the midde of the wall. The Respondent relies on the historic background and the originality of the overall development as factors in support of his claim that the boundary does not follow the middle line of the wall. I will come back to these points below.

 

  1. Numbers 35 and 37 remained in common ownership until 3 March 1922 when Number 35 was conveyed by the Merton Park Estate Company Limited to a Mr Wollacott. The parcels clause is as follows: ‘All that piece or parcel of land situate in Dorset Road in the Parish of Merton in the County of Surrey together with the messuages  or tenement erected thereon and known as no 35 Dorset Road aforesaid which said premises are by way of identification and not limitation more particularly delineated and described in the plan drawn herein and there coloured red.’

 

  1. Apart from the obvious point that the plan cannot both be used only for identification and precise delineation, it is also clear that the plan (drawn to a very small scale) does not assist other than to show (and this may be of significance) that the boundary between Number 35 and Number 37 is in a straight line (albeit not perpendicular to Dorset Road). Clause 7 of the 1922 conveyance provides that the purchaser shall erect and at all times thereafter maintain suitable boundary fences.  

 

  1. Number 37 was conveyed by the same vendor to a Mr Vardon on 2 May 1924. The conveyance is of: ‘All that piece or parcel of land situate in Dorset Road in the Parish of Merton in the County of Surrey fronting on the South West side to Dorset Road aforesaid as the dimensions (be the same more or less) and the boundaries are attributable thereof as more particularly delineated on the plan drawn on the margin of these presents and thereon coloured pink Together with the messuage or dwellinghouse and tbuildings appertaining thereto recorded thereon…’

 

  1. Clause 7 provides that: ‘the sub purchaser shall at all times maintain proper and suitable boundary fences or hedges to the said land on the sides marked ‘T’ on the said plan such fences or hedges to be of a nature and design to be previously approved by the Vendors’ surveyors.’

 

  1. The plan attached to the 1924 conveyance is more detailed in that it provides measurements on all four sides of the plot, marked ‘abt’. A ‘T’ mark is shown along the rear fence line to the north east of the building. There is an issue as to the significance of ‘T’ marks. The Applicant accepts that ‘T’ marks provide a natural implication of ownership of the boundary feature, whilst the Respondent argues that, in this context, the ‘T’ mark is determinative of the ownership of the rear fence, and that accordingly this indicates that the entire wall dividing the properties, and extending beyond them, is also owned by the Respondent. The absence of any ‘T’ marks along the front boundary is, it is said, irrelevant.

 

  1. The Land Registry’s view of ‘T’ marks is set out clearly in paragraph 5.017 of Ruoff and Roper, Registered Conveyancing. ‘T’ marks will only be reproduced on the title plan when they are expressly referred to in the deed lodged for registration, either as a boundary feature or as imposing a covenant. Otherwise, the view is taken that they have no legal significance. This may be an oversimplification of the position. In Seeckts v Derwent [2004] EWCA Civ 393 the issue was the ownership of a hedge. The plan showed inward facing ‘T’ marks, but the dimensions indicated that the hedge was not the boundary. It was held on appeal that it was impossible to disregard the ‘T’ marks and the dimensions (which would have produced odd results on the ground) were ignored. Carnwarth LJ said this: ‘In my view, it is not possible to disregard the ordinary understanding of the T-marks. The natural implication is that they were intended to represent existing boundary features, and that those features were to belong to Clock House.’

 

  1. The point arose again in Avon Estates Ltd v Evans & Anor [2013] EWHC 1635. HHJ Cooke expressed the view that ‘T’ marks are not necessarily conclusive as to ownership of the relevant features: ‘In my judgment there is no single meaning or default meaning established by evidence or authority that can be attached to ‘T’ marks where a meaning cannot be ascertained by reference to the body of the conveyance or other relevant material…’ This decision was in turn criticised by counsel in Lanfear v Chandler [2013] EWCA Civ 1497, in so far as it watered down the ratio in Seeckts that ‘T’ marks raise a presumption of law that the siting of the mark indicated ownership of the feature. Patten LJ said this: ‘ But I doubt whether Carwarth LJ intended to go that far. He recognised that there is a common and well established practice of using ‘T’ marks to identify the ownership of the wall or fence marking the boundary. That is undoubtedly a relevant factor to keep in mind when construing a conveyance by reference to a plan which incorporates ‘T’ marks. But whether it is determinative of the boundary depends upon balancing it against the other relevant terms of the conveyance and the features of the plan coupled, when appropriate, with evidence of the position on the ground. The task of the court is to decide by reference to all these elements how the conveyance or transfer should be construed. All are relevant but none is necessarily conclusive. To say that the use of ‘T’ marks raises a presumption of law (even a rebuttable one) that the boundary feature belongs to the adjoining landowner indicated by the use of the marks seems to me to be wrong in principle and in effect to pre-empt the process of construction on which the court is engaged.’

 

  1. The Applicant’s case on this point is that the 1922 conveyance required the owner of Number 35 to fence all the boundaries, and that the remaining stub at point A indicates this was done. It would then seem unlikely, and make no sense, for the owner of Number 37 to take on the responsibility of fencing the rear garden of his property. But there is no clear evidence of which property was built first. The ‘T’ mark cannot, in my judgment, be simply ignored. Nor do I accept the argument that, if it had any effect, it was limited to the back fencing.

 

  1. Applying the guidance set out above, it seems to me that it cannot be said that the presence of a ‘T’ mark along the rear boundary is of itself determinative of the position of the boundary. However, taking all the relevant evidence together, it is clearly a factor which assists the Respondent’s case. I also do not accept the argument that the obligation to fence, if such it was, was limited to the back garden.

 

  1. Mr and Mrs Barrett purchased Number 37 in August 1982. Neither attended to give evidence but prepared a statement (with a statement of truth) which I have read. They lived at Number 37 until January 2013. Their statement makes two points. The first is that they always believed that the boundary ran from outside the front flank wall in a straight line to the road, and, at the rear, from the outside edge of the rear flank wall and garden wall and then along the outside of the fence. They repaired and maintained the flank wall, and cleared all the gutters.  At no stage (until after the purchase of Number 35 by the Applicant) was there any suggestion that the boundary was elsewhere. The second point relates to the position of the front railing dividing the properties. When the property was purchased the railing ran alongside the front flank wall to an iron railing by the street. Mr Barrett removed it altogether to allow easier access for postmen and the like to go from one house to another, and in due course replaced the railings in another place, namely affixed to the front wall of Number 37, where they are now, some 18cm or 7” ‘inside’ the flank wall.

 

  1.  It is clear from the photographic evidence, and my site visit, that the railings have been bent out of shape as a result of  being moved. It is also possible to see the point at which the railings were originally fixed to the flank wall. Again, in so far as this is relevant, I accept that, at least from 1982 until the railings were moved, they were fixed to the flank wall and not to the front of the house. I also accept that Mr and Mrs Barrett repaired and maintained the rear and front flank walls, cleared the gutters, and repaired any broken down pipes.

 

  1. I heard evidence from the Applicant, Mr Cantelmi. He purchased Number 35, with his wife, in October 2006. A great deal of his evidence consists, in effect, of submissions, or overlaps with the expert evidence called on his behalf. Mr Cantelmi also relies on, and brought the original plans of, the plans relating to Numbers 1,3, 5 and 7 Dorset Road. It is his case that 5 and 7  are mirror images of Numbers  35 and 37, and that the design plans show very clearly that the boundary runs along the centre line of the dividing wall. A similar point is made in relation to Numbers 5 and 7.

 

Relevant legal principles

 

  1. Although the Applicant relies on the 1924 deed plan in support of his contention that the boundary lies along the middle of the wall it is clear that neither the 1922 nor the 1924 conveyance are sufficiently detailed to define this boundary. It is therefore necessary to have regard to extrinsic evidence in order to establish, to use the test set out by Butler-Sloss LJ in Topliss v Green [1992] EGCS 20, what the reasonable layman would think he was buying. A more recent and detailed analysis of the relevant test is to be found in Mummery LJ’s decision in Pennock v Hodgson [2010] EWCA Civ 873 at [12].

 

  1. It is also important to separate the function of a wall from the question of ownership of the wall. The law relating to party walls is concerned with mutual obligations and is now enshrined in the Party Wall Act etc 1996. Section 20 defines party walls as (a) a wall which forms part of a building and stands on lands of different owners to a greater extent than the projection of any artificially formed support on which the wall rests; and (b) so much of a wall not being a wall referred to in paragraph (a) as separates buildings belonging to different owners.

 

  1. Paragraph (a) is concerned with external walls of single buildings. The wall must stand astride the boundary, partly (but not necessarily equally) in one property and partly in another. If the whole of the wall is one side of the boundary it is not a party wall. Paragraph (b) deals with walls attached to buildings on both sides. In this case the wall will be a party wall regardless of ownership. It is of course possible for a wall separating two buildings to belong solely to one owner.  Thus, if the Applicants are correct, the entire wall will be a party wall. If the Respondents are correct, only that part of the wall which divides the two buildings will be a party wall.

 

  1. The case is not concerned with party walls, as such. But it is clear from the authorities that there is, on occasion, an elision between ownership and function.  There is no reason in principle why a boundary wall, even between terraced houses, should not belong to one house or the other, but that wall will, now, in any event be a party wall.

 

  1. The general rule is that ownership of party wall follows the ownership of the land on which it was built (Jones v Read (1876) 10 I.R.C.L 315 at 320.) If the middle of the wall follows the boundary there is a presumption that each owner owns one half of the wall, split longitudinally. This outcome meant that neither had any right of support from the other, so a more usual presumption, where the land on which the wall stood had been owned in common, was that the owners were tenants in common. In Cubitt v Porter [1828] 8 B&C 257, for example,  it was held that common user of a wall separating adjoining lands was prima facie evidence that the wall and the land on which it stood belonged to the owners of the adjoining land in equal shares as tenants in common. Bayley J said this: ‘ there was evidence of a common user by both parties, which justified either that the wall was originally built, on land belonging in undivided moities to the owners of the respective premises, at their joint expense; or that it had been agreed between them that the wall and the land on which it stood should be considered the property of both as tenants in common, so as to insure to each a continuance of the use of the wall.’  Section 38 of the Law of Property Act 1925 provides that such a party wall is not owned as tenants in common, but longitudinally, with the important qualification that each party was a right of support from the other.

 

  1.  It is also possible for the same wall to be a party wall for part of the wall, but in sole ownership for the remainder. In Weston v Arnold (1873) 8 Ch. App 1084, it was common ground that a wall up to the first floor of the Plaintiff’s house was a party wall. The wall extended upwards. The Plaintiff argued that this part of the wall was his alone. The Defendant argued that it was a party wall. The court found in favour of the Plaintiff. Sir W.M. James LJ said this: ‘Unless there is something in the Act of Parliament [in that case the Bristol Improvement Act 1840] which shows a clear intention to the contrary, it appears to me that a wall may be in part of its length a party wall, and in part an external wall, and there is no distinction between height and length’.

 

  1. In Knight v Pursell [1879] 11 Ch D 412, a similar question arose. Fry J considered the terms of the Metropolitan Buildings Act and held that a party wall is defined not by reference to the rights of ownership which the adjoining owners may have in any particular wall in dispute but by reference to the mode in which the wall is used. The object of the Act was to limit the acts of private owners for the benefit of the public, to stop the spread of fire and the like. He concluded that the wall was only a party wall in so far as it was used by both the plaintiff and the defendant, but no further, and the remainder of the wall was part of the plaintiff’s lease.

 

  1. In Dean v Walker (1996) 73 P&CR 366, two properties adjoined, and, as here, the wall of the respondent’s house extended on all sides beyond the wall forming the eastern wall of the appellant’s property. The respondent needed to have access to the appellant’s property to carry out works to the external part of the wall. The appellant argued that this part of the wall was a party wall, and that, as he owned the part of the wall on which the works were to be done, access under the Access to Neighbouring Act 1972 should be denied. The County Court judge held that the part of the wall on which the respondent wanted to carry out works was owned by him, and that the definition in the 1972 Act extended to ‘any land’. The Court of Appeal dismissed the appeal, but on different grounds. It was held that the definition of land in the Act was wide enough to include a party wall. Beldam LJ added this: ‘If it were necessary for the disposal of this appeal to decide whether or not the judge was justified in reaching the conclusion that she did, that except where the wall was co-extensive between Gorwood and No 1 Midtown it belonged to the respondent, I would support her finding. As a matter of common sense, looking at the photographs of these premises it seems to me the west wall of Gorwood would serve no other purpose above the party wall than to provide support and protection for Gorwood.’

 

 

The Applicant’s expert evidence

  1. The boundary line contended for by the Applicant is taken from point A on Plan A (that is to say the agreed datum point as the easternmost point of the boundary) to where it meets the building line of Number 37 an angle of 90 degrees, with the result that the boundary contended for is 18cm within the flank wall of Number 37. Mr Avenell measured the various distances on the ground and concluded that the close correlation between the dimensions on the 1924 deed plan and those measured means that the boundary between Numbers 35 and 37 meets Dorset Road approximately 0.03m to the north west of point A. As the boundary between the properties is perpendicular to the buildings, a line drawn from point A meets the front wall of Number 37 0.18m from its north western flank, ie half the thickness of the wall.  

 

  1. Mr Avenell fairly accepted in his report that, as the dwelling of Number 37 extends further forwards and backwards than the front and rear walls of the dwelling at Number 35, it is at least possible that it was intended that the entirety of Number 37 should be built within the land forming part of Number 37, so that the boundary between the two properties runs along the northwestern flank of Number 37. The only part of the wall which would be considered a party wall would be the section of the wall between the two buildings. However, he continues, since this situation would be considered out of the norm, he would expect that such a boundary would be described either on the conveyance plan or in the text of the deed. This comment, in reality, raises issues of law, rather than of surveying expertise.

 

  1. Mr Avenell also accepted, as he had to, that the plans attached to the 1922 and 1924 conveyances are not sufficiently detailed to allow a conclusion to be drawn merely from the plans themselves as to where the boundary is located, other than saying that it is parallel to the lateral flank wall, and that the line is straight. And he also accepted, in evidence, that the scale of the plans of itself does not preclude the boundary running, as the Respondent contends, from point A to point A1. As he put it, this would be a possible but not probable boundary line.  This line too would be straight, but merely moved by 2 degrees. It was also accepted that the plots to both properties are not rectangular. Finally, Mr Avenell stated that he had not spent time researching the area or examining other properties.

 

  1. Mr Avenell’s boundary line also means that Number 35 owns at least part of the eaves and chimney stack, which, at least as a matter of the layout of the buildings, appear to be clearly part of Number 37 alone. This would be an odd outcome which, in my judgment, could only be justified if there was clear and compelling evidence that this was the original intended boundary.

 

  1.  With no disrespect to Mr Avenell, I did not, at the end of the day, find his evidence of any great assistance. Once he accepted that the measurement of 26’ 3” shown on the 1924 deed plan could be taken to point A1, it seems to me that a great deal of arguments in support of the boundary contended for by the Applicant were really no more than speculation.

 

Other points

  1. Both sides refer to the design evidence of other properties in the street. I have seen architectural drawings for numbers 1,3,  5 and 7 Dorset Road. 5 and 7 are said to be (and may well be) mirror images of Numbers 35 and 37. These properties, and numbers 1 and 3 Dorset Road (which are conventional, symmetrical semi detached houses) were built in 1884 by Mr Quatermain. Extrinsic evidence is, in principle, admissible in this case, due to the paucity of detail and lack of precision in the conveyancing documents. But I cannot see how any assistance is to be derived from architectural drawings in respect of other properties, built at different times and by different architects.

 

  1.  More specifically, there was no expert evidence before me as to the significance of various lines (pecked, dotted or straight) on the design plans made over 100 years ago. Mr Avenell was not a building surveyor and expressed the view (which, in the absence of any other evidence I agree with) that it was not possible to be certain as to what lines indicated a boundary. He made the point that the pecked line shown on the attic and roof plan for 5 an 7 might simply mark the eaves.  These are, as I have said, architectural drawings: they are not intended to show (or, at the very least, there is no evidence that they are intended to show) the legal boundary between the properties.

 

  1. A further point taken by the Respondent is that it would seem that Number 37 was built first, and Number 35 was built later. The bricks of Number 35 appear to butt up against Number 37. Moreover, the chimneys of Number 37 are on one side of the centre line, again suggesting, it is said, that Number 37 was built first. The flashing of Number 35 is affixed to the flank wall. The downpipes for Number 37 are affixed to the front and back flank walls. These drain, it is said by the Applicant, into the underground soakaways of Number 35. The Applicant argues that because there are no express easements in respect of the drainage, it must follow that the guttering on the walls belong to Number 35, and that therefore that part of the wall belongs to Number 35. In fact the position seems to be that the rain water for Number 37 runs into the main sewer drain through the front garden of Number 37 into the garden of Number 35. The manhole is at the front of Number 35.  Whatever the position is in relation to drainage, it seems clear to me that, if necessary, rights to drain will have been acquired by prescription, and that the position of the drains on the flank wall of Number 37 do not assist the Applicant in his argument that the boundary lies along the middle of that wall.

 

  1. It seems to me that, even if it is not possible to determine which property was built first, the location of the chimneys and the flashing is of central importance. If the Applicant’s contention is correct, the boundary line would bisect the chimney which, visually, is sited on Number 37’s side.  This, as I have already said, is an outcome which, in the absence of any clear evidence to support it, makes very little sense. 

 

  1. Finally, it is said on behalf of the Applicants that the asymmetric supporting pillar a the end of the garden wall at the back of the properties extends into Number 35. This is clearly the case, but it is a pillar, and not a fence, and the position of one pillar is on no assistance in establishing the boundary between the properties.

 

 

 

Conclusion

 

  1. In my judgment the application for a determined boundary fails. The boundary does not run along the centre line of the front or rear flank walls of Number 37, but along the outside, north-western, face of the walls. There is no more than a presumption that the boundary runs along the wall  shared by two properties: in this case, and in order to be consistent with my findings in relation to the flank wall, it seems to me more likely that the entire wall belongs to Number 37. This is a point of little practical importance, since it is clear that this part of the wall is a party wall. The boundary also runs along the north west side of the fence dividing  the two properties at the rear.

 

  1. My reasons for reaching this conclusion are as follows. First, once it is accepted, as Mr Avenell accepted, that it is possible that the boundary line runs to point A1 (ie the outside of the flank wall at the front) and be consistent with the measurement in the 1924 conveyance (26’3” approx from point A to the building line), the only point the Applicant can rely on from the conveyances is that the boundary line is not entirely straight, but deviates by 2 degrees, increasing the length by 2mm.  This point is of little importance, given that the plots are not rectangular and the houses are not built square to the road, but the building line is at an angle of about 10 degrees to the street.  The deviation is in any event insignificant. Second, there is no other evidence to support the Applicant’s case. No assistance can be derived, to my mind, from the architectural drawings of Numbers 1,3, 5 and 7.

 

  1. Third, the position of the chimney and the flashings all clearly indicate that the boundary is in line with the flashings, leaving the entirety of the chimneys on Number 37. I do not accept the suggestion that part of the chimney straddles Number 35, in the same way as eaves or guttering might do. As I have said, it seems to me that clear and compelling evidence would be needed in order to justify reaching a conclusion which is contrary to common sense.  Fourth, albeit that the ‘T’ mark on the 1924 conveyance is not determinate, it is a factor which, in the overall context of this case, assists the Respondent. Fifth, it is important to bear in mind that these properties are not conventional semi detached houses. The layout of the properties to my mind displaces any presumption which might otherwise arise by virtue of the fact that  the properties were once in common ownership.

 

  1. Sixth, the evidence of Mr and Mrs Barrett, which I accept, is to the effect that, at least from 1982 onwards, the owners of both properties treated the boundary as the outside flank wall. Again, this is not conclusive, but it is of some relevance.

 

  1. For all the above reasons I will order the Chief Land Registrar to cancel the application dated 18 March 2013.

 

Costs

  1. In principle the Respondent, as the successful party, is entitled to his costs from the date of the reference , ie from 15 October 2013. To the extent that he acted in person, he is entitled to the claim the appropriate level of costs. A schedule in Form N260 or the like is to be filed and served by 28 November 2014. The Applicant may make such representations or raise such objections as he considers appropriate 14 days after receipt of the schedule. These representations must be filed with the Tribunal and served on the Respondent. I will then consider what order to make.

 

 

 

BY ORDER OF THE TRIBUNAL

 

 

Dated this 13th day of November 2014

 

 

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWLandRA/2014/2013_0880.html