UTLC LC-2022-533 - [2023] UKUT 167 (LC)

St Austin’s Grove is a private road running east from Curtis Lane, which itself runs north from Beeston Common. The disputed boundary was created by an Indenture of 26 July 1913 (the 1913 Indenture) by which Sheringham Estates Ltd (the Company) conveyed part of its St Austin’s Estate at Beeston Regis in Norfolk (the Estate) to Juliette Helene Comte. The boundary runs north from St Austin’s Grove terminating at a passageway running east from Curtis Lane. The passageway proves access to a garage at the rear of Mr Boag’s property.

In 1911 the Cremer family conveyed land on the east side of Curtis Lane to the Company for the development of the Estate. The land was conveyed by reference to Ordnance Survey field numbers shown on a plan which gives no indication of there having been any building on the land at that time The first house built by the Company was on the north side of St Austin’s Grove at its junction with Curtis Lane. The house was called St Austin’s, and is now called 5 Curtis Lane. Although it appears to have been completed by 1912, it was retained by the Company until 1921.

Mr Farrow’s land was originally part of the grounds of 5 Curtis Lane and is located to the east of the house and its formal gardens.

Long before the sale of 5 Curtis Lane the Company conveyed a plot of land immediately to the east to Mlle Comte by the 1913 Indenture. That plot was described in the 1913 Indenture as land “with the dimensions (be the same little more or less) boundaries and abuttals thereof more particularly delineated on the plan drawn herein and thereon coloured pink.” The plan is shown below.

The plan drawn on the front of the 1913 Indenture is small, diagrammatic and not to scale. It shows the plot as having straight boundaries on all sides. The dimensions shown include measurements of 77’ along its southern boundary to St Austin’s Grove and 77’ across its northern boundary where it abuts the passageway from Curtis Lane. The western boundary is marked as 165’6”. The plan also marks the southern boundary of 5 Curtis Lane as “about 127’0””, that being the distance from Curtis Lane to the southern end of the boundary which is now in dispute.

The land comprised in the 1913 Conveyance is now the western part of Mr Boag’s property at 2 St Austin’s Grove. The house which now stands there had been built by 1919 and named St Hugh’s Cottage. In that year the Company conveyed a further plot of land to the east of St Hugh’s Cottage to Mlle Comte. That parcel now comprises the eastern part of Mr Boag’s property.

On 16 June 1921 the Company conveyed 5 Curtis Lane, including Mr Farrow’s land, to Francis George Joseph. The 1921 Conveyance includes a scale plan on which the southern boundary of 5 Curtis Lane is marked as being “132’ or thereabouts”. This is the same boundary as had been marked as “about 127’” on the 1913 Indenture plan of its immediate neighbour at 2 St Austin’s Grove (there with the additional qualification “be the same little more or less”).

The FTT found that there was no evidence that any physical feature corresponding with the line of the western boundary shown on the 1913 Conveyance plan existed on the land at the time the 1913 Indenture was executed. Nor was there any evidence that the plot had been staked out or that trees which were present when Mr Farrow acquired his land in 1988 had been there in 1913.

The Judge inspected the land and his decision includes a description of the boundary as it existed at the time of his visit. The land slopes upwards from St Austin’s Grove and on Mr Farrow’s side of the boundary it has been terraced in recent years in preparation for development. A low concrete block wall runs north from St Austin’s Grove for a short distance in the vicinity of the disputed boundary and for about one fifth of its length. The concrete block wall is perpendicular to a section of flint wall along the southern boundary of Mr Farrow’s land. It is not known when the wall was constructed, and although it is assumed that it was built by owners of 5 Curtis Lane who may have intended to build it on their own land, the FTT placed no weight on it as indicating the true position of the disputed boundary in that location as the builder of the wall may have been incorrect about where that line was. There is also a mature beech tree halfway along the disputed boundary. Vegetation which previously existed at the northern end of the boundary was removed by Mr Farrow in 1997 along with the remnants of old wire fencing.