[2025] EWHC 2638 (KB)

This appeal concerns a boundary dispute between Peter and Helen Crea, who own The Heathers in Nailsbourne, Taunton, and Philip and Christine Camp, who own the neighbouring property Sunnyside. The case was tried by His Honour Judge Berkley sitting in the County Court at Taunton. By his reserved judgment handed down on 1 August 2024, Judge Berkley found that the parties had entered into a binding agreement that they would accept the boundary as determined by their jointly instructed surveyor.

Mr and Mrs Crea now appeal with permission granted by Sheldon J. The central issue in their appeal is whether the trial judge was right to find that the parties were bound by the surveyor’s report. Grounds 1-5 address that issue. Should those grounds succeed, the Creas argue by ground 6 that the judge should have determined that the true boundary ran along what was referred to in this dispute (by reference to a 1958 conveyance) as the “60-foot line”.

Contracts for the disposition of an interest in land must be made in writing and signed by the parties: s.2 of the Law Reform (Miscellaneous Provisions) Act 1989. Thus, a boundary agreement that purports to convey land cannot be enforced unless it complies with the section. Very often, however, the purpose of a boundary agreement is not to convey land but to confirm the boundary line between two neighbouring properties. Such agreements are valid and enforceable even if they don’t comply with the provisions of the section.

The seminal case in this field is the decision of Megarry J in Neilson v. Poole (1969) 20 P.&C.R. 909. The judge identified two types of boundary agreement at p.618:

“Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land.

In general, I think that a boundary agreement will be presumed to fall into this latter category.”

In Neilson, Megarry J found that the agreed boundary coincided with the proper construction of conveyancing documents. He added, at p.619, that even if that had not been the case then the agreement would still not have been registrable under the Land Charges Act 1925 because it was not a “contract to convey” but rather a contract “merely to demarcate and confirm”.

Neilson has been repeatedly approved by the Court of Appeal, most recently earlier this year in White v. Alder [2025] EWCA Civ 392, [2025] 2 P.&C.TR. DG11. Neilson directly concerned the 1925 Act, but in Joyce v. Rigolli [2004] EWCA Civ 79, [2004] 1 P.&C.R. DG22, Arden LJ held by parity of reasoning that an agreement fixing the boundary such that it might have encroached on one party’s land with the consequence that a small parcel of land was given up was nevertheless an agreement merely to demarcate the boundary. Since the parties’ purpose had been to fix the boundary rather than to sell or dispose of land, it was not subject to s.2 of the 1989 Act.

In Neilson, Megarry J described a boundary agreement at p.919 as “in its nature, an act of peace, quieting strife and averting litigation, and so is to be favoured by the law”. Endorsing this view in White, Asplin LJ added, at [59], that a boundary demarcation agreement was “an act of peace that should be encouraged” and that avoids the uncertainty and risk of litigation. Such an agreement does not undermine the formalities for the transfer of land because its purpose is not to effect such a transfer. Megarry J observed that many boundary agreements are of the “most informal nature”. Indeed, the boundary agreements in both Neilson and Joyce had been entirely oral.

The primary issue in this case is not, however, whether a proven informal boundary agreement should be enforced but whether the parties entered into a binding agreement as to the demarcation of their boundary at all. While public policy rightly favours the enforcement of boundary agreements that avert ruinously expensive and disproportionate litigation and have the potential to restore good relations between neighbours, such policy cannot extend to finding such an agreement where it does not exist. Indeed, Norris J stressed this point in Bradley v. Heslin [2014] EWHC 3267 (Ch), at [51]:

“Third, although properly proved agreements or understandings are favoured by the law some caution must be exercised. Simple acts of neighbourliness should not ripen into legal rights vested in the beneficiary of the actor’s kindness, or amount to an abandonment of some legal right already vested in the actor.”

That said, sitting in the Court of Appeal in Stephenson v. Johnson, unreported, 12 July 2000, Bennett J rejected at [41]-[42] a submission that the law should not strive to find boundary agreements. In both that case and Burns v. Morton [2000] 1 W.L.R. 347, the Court of Appeal found there to have been implied agreements as to the true boundary.

Mr and Mrs Crea commenced proceedings against the Camps seeking, among other relief, a declaration as to the true boundary between their neighbouring properties. Their case was put on two bases:

While the Creas asserted that part of the Camps’ bungalow and garage had been built on their land, they did not seek the removal of such buildings. Rather they invited the court to declare a boundary line that adjusted the true boundary to allow such encroachments to remain but to order the payment of damages in lieu of the parts of their land that had been built upon.

By their Defence and Counterclaim, Mr and Mrs Camp pleaded that the boundary had been determined in accordance with a boundary agreement that the parties would accept the boundary as determined by their jointly instructed surveyor. They pleaded the agreement as follows:

The Camps pleaded that the Creas were therefore bound by the report and boundary as determined within it and further that they were estopped from denying the boundary as recorded in the agreement. In the alternative, they asserted that there was no evidence of any ditch between the two properties, denied the applicability of the bank and ditch presumption, asserted that the true boundary was largely represented on the ground by the present boundary structures, and denied that the 60-foot line was helpful given that in 1958 the westerly boundary had not been delineated and the measurement would have been taken in a westerly direction from the boundary with the Creas’ land.

By their Reply and Defence to Counterclaim, Mr and Mrs Crea denied that there was any agreement or that they had represented that they would observe and agree any findings made by Lewis Brown. They pleaded that the Lewis Brown report was prepared in draft and that the work was never invoiced or paid for.

The idea of instructing a surveyor was in fact first proposed by the Creas. By their letter dated 6 December 2016, Mr and Mrs Crea wrote:

“We remain committed to minimizing costs for all concerned and we propose resolving the situation as follows:

1.

We need a surveyor to examine our wall foundations to determine what remedial action needs to be taken. To do this he will need to enter your property. This could affect both of us as if remedial actions are required these could involve work close to both your garage and our wall. To minimize cost we propose that we jointly appoint a surveyor.

2.

As a surveyor has to be involved to assess the wall we will also ask him to assess the disputed boundaries. We suggest this is done jointly …”

Mr and Mrs Camp’s letter of 9/11 December 2016 was written in reply to that letter. They wrote:

“Despite best efforts on our part we seem to be unable to even discuss an amicable low-cost solution to the definition of our boundary.

We are advised that the best way forward is to jointly instruct a Boundary Surveyor (who must be impartial by law) and agree beforehand to accept their result. They would need to be briefed by both parties and provided with all known documents to avoid duplicate costs.

You have suggested that we share this cost, it is estimated at £700-£1,000 taking between 2 and 3 days depending on complexity.

We understand that Lewis Brown Chartered Surveyors at Wellington will provide this type of service and if you agree to the above we will contact them to arrange a date.

Would you confirm with any dates when you will be unavailable as soon as possible so that we may conclude this unfortunate dispute.”

Mr and Mrs Crea responded further by their letter of 12 December 2016:

“Thank you for your letter received today. We are content that a joint surveyor be appointed to assess the boundary and your suggestion of using Lewis Brown is acceptable. Please proceed and contact them. We will forward any relevant documentation to the surveyor without delay.

You have not however addressed the issue of appointing a joint surveyor to assess if any remedial action is needed on our wall foundations. This will need to be a different surveyor from that appointed to assess the boundary dispute Do you wish to be jointly involved with this or shall we proceed with appointing a surveyor.”

Mr Brown was duly instructed. Although no copy of the letter of instruction is before the court, Mr Brown confirmed his instructions by letter dated 12 January 2017. He explained his proposed methodology. Broadly, he would start by surveying the physical boundary between the two properties and accurately recording on a plan all physical features along the boundary at the date of his survey. He would then consider the historical maps and plans in the parties’ title deeds in order to overlay these documents on to the physical features present along the boundary. By such process he said that he would be able to make “observations and comments” and that once the boundary had been “defined”, he would prepare a “determined boundary plan (with dimensions) that will define the boundary between the two properties”.

Mr Brown proceeded with the work and produced a report dated 6 February 2017. His report started by stating his joint instruction and then explained:

“2.2

I was asked to ascertain the location of the legal boundary between the two properties forming the eastern boundary of Sunnyside and the western boundary of The Heathers.

2.3

I am also required to prepare a Determined Boundary Report once the location has been agreed between the two parties.”

As previously indicated, Mr Brown surveyed the site and considered the conveyancing and physical evidence. He concluded that the two end points of the boundary line were defined by the stone walls at points A and G of his plan. He observed, at paragraph 5.2 of his report:

“Between these two well-defined points there have been many changes and modifications to the physical boundary, so defining the definitive boundary becomes more difficult.”

He concluded:

“6.3

The exact legal boundary line between A and G cannot be accurately reproduced on the ground today because there have been so many changes to the physical feature(s) that define it, and there is nothing in writing that I am aware of that describes it in detail.

6.4

There have been material changes on and adjacent to the boundary over the years that could be considered encroachments. Looking at the RED and DARK BLUE lines these could possibly include:

6.4.1

The block wall, when built in 1958/9 may well have encroached the boundary, however it is probable that this area now has a prescriptive easement (see 6.7 below).

6.4.2

The very eastern end of Sunnyside straddles the DARK BLUE line.

6.4.3

The western edge of The Heathers’ Garage straddles the RED line.

6.4.4

The Shed and Raised Beds in the Heathers straddle the RED line.

6.5

It would be ridiculous to suggest that either neighbour should demolish parts of permanent buildings or structures that have been in place for such a long time.

6.6

As it is not possible, with the evidence to hand, to determine the exact legal boundary, I believe the best solution is to create a new Determined Boundary that agrees with my findings, but provides a practical solution to an unanswerable question, G or G1. This solution is described in 6.20 below …

6.17

With the information I have available to me, and subject to the mapping scales and tolerances, I believe that the original boundary was intended to be either the RED line or the DARK BLUE line. I cannot be certain which one.

6.18

The shape of the two lines are identical and have been taken from a relevant 1:2500 scale OS Map. The only difference between them is the northern boundary point, G or G1?

6.19

The boundary between Sunnyside and The Heathers should now be defined by the creation of a Determined Boundary Plan. This would fix Points A - G inclusively by dimensions and by descriptions.

6.20

I suggest that such a plan is prepared defining points A to G thus:

6.20.1

Point A - the southwestern corner of the stone wall.

6.20.2

Point B - the point at which the stone wall abuts the base of the dry-stone wall built into the bank.

6.20.3

Points B to C - To follow the bottom of the western side of the bank.

6.20.4

Points C to D to E - To follow the eastern edge of the block retaining wall.

6.20.5

Points E to F - To follow the centreline of the close boarded fence in its current location.

6.20.6

Point F - Defined by the end of the close boarded fence.

6.20.7

Pointe (sic) F - G (via G1) defined by the corrugated metal fence in its current location to a point G1, measured as 0.90m from the western end of the stone wall.”

Mr Brown sent his report to the parties under cover of his email of 10 February 2017. He wrote:

“Please find attached the Boundary Report in accordance with your instructions. Once you have had the opportunity to read the report, please confirm your acceptance, or otherwise, of my conclusions. As soon as I receive confirmation of acceptance and payment of my fees in full I will prepare and issue the Determined Boundary Plan.”

Mr and Mrs Crea were unhappy with Mr Brown’s report. By an email dated 15 February 2017, they set out what the judge described as a detailed critique of his report. They alleged bias and asserted that they had not “signed up” to a binding agreement as to the boundary. They asserted that they had only expected Mr Brown to produce a definitive site plan at which stage the boundary could be assessed by “someone expert in boundary law” after which Mr Brown could produce the determined boundary plan. In view of that attack, Mr Brown felt that he had no choice other than to withdraw as the parties’ jointly instructed boundary expert.

By his judgment, Judge Berkley cited the general presumption identified by Megarry J in Neilson that a boundary agreement is “merely an agreement to demarcate or confirm, not to convey” land. He observed that a boundary agreement may provide for expert determination as in Gibson v. New [2021] EWHC 1811 (QB). He said that such agreements drafted by parties intending to avoid litigation may not deploy sophisticated drafting and that conduct apparently sanctioning the agreement may be relevant to the determination of the parties’ intent. He said that it would not be fair for a party to act in “apparent sanction” of a boundary agreement only later to reject an outcome that was not to their liking. Relying again on Gibson, he said that such conduct would give rise to an arguable estoppel.

The judge then considered the exchange of correspondence from December 2016. He observed that the Creas acted in accordance with the correspondence in sending emails to Mr Brown of Lewis Brown.

Judge Berkley assumed that Charles Auld, who appeared for the Creas at trial as he does in this appeal, was correct to argue that extrinsic evidence was admissible on the question of whether a contract was concluded. He therefore considered Mr Crea’s evidence. He noted that his witness statement had been “curiously silent” on the question of whether agreement had been reached. He briefly recounted the cross-examination as to whether he had accepted the offer made by the Camps and Mr Crea’s evidence (which the judge rejected) that he had expected the surveyor to prepare a draft report on which comments would be invited in accordance with the rules of the Royal Institute of Chartered Surveyors. He noted Mr Crea’s assertion that he had not been bound to accept Mr Brown’s report.

The judge then considered Mr Camp’s evidence that, to his mind, there was definitely an agreement to be bound by Mr Brown’s findings. He accepted Mr Camp’s assessment that Mr Crea was a man of strong opinions and noted Mr Auld’s own candid description of his client as a forceful and opinionated man who saw things as black or white with a very strong sense of right and wrong. He added that Mr Crea is very particular and has an eye for detail.

The judge then turned back to the December correspondence. He noted the Creas’ reference to their commitment to minimising costs and seeking to resolve the dispute in their letter of 6 December. He inferred that they had some form of alternative dispute resolution in mind. He noted that the Camps’ letter of 9/11 December likewise referred to the need to find a low-cost solution. He observed that Mr Crea’s reply dated 12 December did not demur from the Camps’ proposals and gave every indication of accepting them. The judge added:

“I have little doubt in my mind that, had Mr Crea not intended to be bound by the conditions in the 9/11 December letter, he would have made that abundantly clear in his reply. The parties were at loggerheads at that time, and every ounce of disagreement was being identified and communicated between them.”

The judge then concluded at paragraph 64 of his judgment that it was the clear intention of all parties to be bound by Mr Brown’s decision and that the Creas’ letter of 12 December accepted the Camps’ offer in their 9/11 December letter. The judge found that it was irrelevant whether Mr Brown felt that there remained scope for not accepting his decision as to the boundary. He added, at paragraph 65:

“… the parties had agreed to agree with the report’s conclusions. Mr Brown may or may not have known about that. The report was not expressed as being in draft, nor was it couched in terms of a preliminary view upon which further submissions could be made or documents submitted.”

The judge then noted that, although argued at trial, the Creas did not plead any alternative case that, even if there had been a binding agreement, Mr Brown had exceeded his remit or that the agreement went beyond a boundary agreement such that it was subject to s.2 of the 1989 Act. The judge rejected Mr Auld’s argument that there was a lack of finality in Mr Brown’s report and found that Mr Brown had concluded that the boundary should be demarcated as described at paragraph 6.20 of the report.

The judge therefore found that there was a binding boundary agreement. Although that finding was sufficient to dispose of the claim, the judge considered and rejected in the alternative Mr Auld’s unpleaded arguments that the report was flawed. The judge did not consider it necessary to deal with the estoppel argument.

Mr and Mrs Crea have permission to argue six of their original seven grounds of appeal. The remaining grounds are as follows:

It is convenient to take these grounds together. Mr Auld argues these grounds solely by reference to the December correspondence. Relying on Chitty on Contracts, 35^th Ed at para. 4-032, he submits that an acceptance is a final and unqualified expression of assent to the terms of an offer. He argues that the Creas’ letter of 12 December did not agree to accept the result of Lewis Brown’s work and expressly stated that the firm should be instructed to “assess” (and not “determine”) the boundary. He criticises the judge for determining whether there was a binding agreement before deciding what the terms of the offer were. Further, he argues that if there was an agreement, it was not that Lewis Brown would conclusively define the boundary. He contends for the following analysis of the correspondence:

Mr Auld argues that if the court can consider the terms of the instructions as set out at paragraphs 2.2-2.3 of Mr Brown’s report then it is clear that he was simply to assess or ascertain the boundary and report back to the parties. Thus, he submits, it was only once the parties agreed the position that the surveyor would draw up a determined boundary plan which could be registered at HM Land Registry. Such construction is, Mr Auld submits, consistent with Mr Brown’s understanding as reflected in his email of 10 February 2017.