Q&A: What evidence can establish boundaries?

Chandni Pandya and David Holland KC look at the role of various types of evidence in boundary disputes in the absence of any relevant conveyances.

Question

I am involved in a boundary dispute, but neither party nor the Land Registry appears to have possession of the original transfers. Will the court be able to determine where the boundary lies in the absence of the original conveyances and, if so, how?

Answer

Yes, the exact position of a boundary is a question of fact for the court which will have to determine the issue on the best available evidence. That evidence may include Ordnance Survey plans and aerial photographs and it is for the court to determine the location of the boundary.

Explanation

The recent High Court decision in Charlton and another v Forrest and others [2024] EWHC 1014 is a helpful reminder of the role of expert evidence and that of aerial photographs in boundary disputes.

The case concerned the boundary between two plots of land on which there had previously been a row of trees that had effectively divided the properties from each other. The defendants cut down the trees.

The claimants were of the view that the defendants had encroached on their land by cutting down these trees and erecting a new fence. The claimants believed the trees had been in the joint ownership of the parties and that their removal without consent had constituted a trespass. The defendants argued that the trees were wholly on their land.

Ordinarily, as the court in that case noted, when determining the boundary between two plots of land, it is necessary to look at the conveyance by which the separate parcels were created. In this case, however, these original conveyances were absent. They were, as the judge noted, “lost in the mists of time”.

The parties were in agreement that the Land Registry plans, being subject to the “General Boundaries Rule”, were of little if any use in identifying the precise boundary. The judge also held that the witness evidence in this case was of “peripheral, if any, relevance”.

Perhaps of most interest is the judge’s treatment of the expert surveying evidence. As is frequently the case, expert surveyors had been instructed by both parties. In the end, they both agreed that the position of the boundary was along the line contended for by the defendants (the claimants’ expert having changed his mind).

The judge, however, held that he was not bound to come to the same conclusion as the experts’ agreed position. He said the experts’ conclusion as to where the boundary lay was not “admissible expert opinion”. The ultimate question of where the boundary lay, he held, was one of fact for the court. While the experts’ reports were helpful in gathering together the various types of evidence (OS plans, plans annexed to prior conveyances and the historical photographic evidence) it was for the court to determine where the boundary lay.

In this case the topographical features which divided the two plots of land, and which were likely to have existed at the time of the conveyance, were of particular importance. The judge held that the key feature was the line of trees. He examined a series of aerial photographs dating back to 1945 which evidenced the position of the line of trees.

He determined that this was the boundary when the land was separated by the missing conveyance. Although the photographs showed that, over time, additional vegetation had appeared and there were other topographical variations, the main tree line as shown in the photographs had remained. Therefore, the court agreed with the defendants (and indeed the experts), and the trespass claim was dismissed.

This case is a timely reminder of the limitation of expert evidence in boundary dispute cases. It is also an illustration of the potential importance of historical photographs and OS plans in the absence of conveyances. In particular, in respect of most locations, there are usually a series of aerial photographs available (such as those from Google Earth) which can date back for many decades.

These can assist in ascertaining the topographical features which may run along a boundary line and the changes to them over time. You may wish to consider what evidence is available in your boundary dispute in the absence of any conveyance.

David Holland KC is a barrister at Landmark Chambers and Chandni Pandya is an associate at Charles Russell Speechlys LLP

This article was first published in Estates Gazette on 30 July 2024.