Judgment has recently been handed down in the case of Charlton and another v Forrest and others [2024] EWHC 1014 (Ch), a claim for trespass in which the court had to determine a precise boundary where there were no clear plans. The court turned to aerial photographs showing the topographical features over the years to determine the boundary as a question of fact.
This case concerned the precise boundary between the Claimants' property 'Ty Chwarel' and the Defendants' property 'Castleton'. The Claimants alleged that by cutting down trees and erecting a new fence on that boundary, the Defendants had encroached on the Claimants' land.
There was a plan dated December 2022 which both parties agreed was an accurate representation of the features that existed on the site at that date. It was common ground that a line of trees was the predominant feature marking the boundary. The dispute arose when the Defendants removed a substantial number of trees, shrubs and other growth on the eastern side of the boundary. This created gaps in the foliage screen so that the Claimants' house could be seen from the Defendants' land, and the Claimants could see the caravans on the Defendants' land.
The Claimants alleged that the trees cut down by the Defendants formed part of the boundary and were in joint ownership. If correct, to cut them without consent constituted a trespass. The Defendants however argued that the trees were wholly on their land, to the east of the boundary.
The conveyance by which Ty Chwarel and Castleton were divided had been lost. The parties agreed that the plans attached to subsequent conveyances of the individual properties were not sufficiently clear, that ordnance survey maps did not show the exact location of boundaries, and that the Land Registry title plans only mark the general position of a boundary rather than the exact position. It therefore fell to evidence of topographical features marking the boundary.
Both parties instructed expert surveyors, who agreed (the Claimants' expert having been persuaded to change his mind) that the boundary was that advocated by the Defendants. Mr Justice Zacaroli however stated that he did not think their conclusion constituted expert opinion. Where the boundary lies is a question of fact to be determined by the court. No scientific, technical or other specialised knowledge was required or indeed given by the experts. He concluded that he must analyse the evidence himself to decide the boundary and of principle relevance was "evidence of the historical location of the boundary and in particular aerial photographs and early ordinance survey maps".
There was no evidence of a historical man-made boundary. Mr Justice Zacaroli concluded that a 1945 photo showed the position of the boundary marked by a row of trees, and absent other evidence inferred that this was the boundary when the land was divided. He then looked at subsequent aerial photographs to determine where on current plans this historical line of trees stood. Most additional trees and vegetation had grown up on the eastern side, and the western edge of the tree line appeared to have remained constant through time. Mr Justice Zacaroli explained that where a boundary is created over a century ago marked by trees, those trees and the line of them will inevitably go through some minor variations. He concluded that the best approximation of where the boundary lay, based on aerial photographs, was as propounded by the Defendant.
The claim for trespass was therefore dismissed.
This case shows the difficulties associated with identifying a precise boundary in the absence of clear plans. In the end it will come down to a question of fact based on a review of the available evidence, the outcome of which is often hard to predict and – by the time it gets to trial – very expensive.
