[2025] UKUT 141 (LC)

The FTT’s decision contains a comprehensive description of the relevant conveyancing history, from which the following abbreviated account is derived.

The plan above shows the North Lodge estate, situated on North Trade Road in Battle, East Sussex, as it was in 1949. North Lodge is a substantial house in extensive grounds. Beacon Cottage and its own garden were originally part of the same estate, as was The Avenue, which lies immediately to the west of the garden of Beacon Cottage. The Avenue leads from North Trade Road, past Beacon Cottage to some further cottages and then to land which also formed part of the estate.

By a conveyance of 31st May 1949 (the 1949 Conveyance), the owner of North Lodge, Sir Henry Birkmyre, conveyed Beacon Cottage to Francis Garret Ridley. No copy of that conveyance survives, but it is recorded in a memorandum endorsed on a 1954 abstract of Mr Ridley’s title which also includes what was taken by the FTT to be an accurate copy of the 1949 Conveyance plan (above). Beacon Cottage was there described as “lying on the North side of the North Trade Road and being the South-western corner of the property within described [i.e. North Lodge] and edged pink on the plan (and also for the purpose of identification only shown on the plan attached hereto and edged purple).” It was conveyed “Together with the right of way for all purposes over the roadway along the west side leading off the North Trade Road coloured green on the attached plan."

As the Judge noted, the plan to the 1949 Conveyance depicts the western boundary between Beacon Cottage and the roadway coloured green (The Avenue) by a solid line, indicating the presence of a boundary feature greater than 12" in height.

Further evidence of topographical features at around the time of the 1949 Conveyance is provided by an application for planning permission to build a garage in the northwestern corner of the grounds of Beacon Cottage. It is dated 5th July 1949 and was made by Mr Ridley within little over a month of his acquisition. The application was supported by a sketch plan of the proposed garage site drawn at a scale of 1" to 12', which is reproduced on the next page.The Judge accepted that the plan provides an impression, contemporaneous with the 1949 Conveyance, of features on the ground at the time the conveyance plan was prepared.

The plan shows part of Beacon Cottage on the right of the image (east) and The Avenue (marked “existing vehicular lane”) on the left (west). The Avenue is bounded on its west by a “low hedge”. A measurement of 59’ is marked immediately to the right of the lane showing the distance from North Trade Road to an entrance to the site of the proposed garage (which I will call the garage entrance). The garage entrance itself is shown as being 19’ wide. The first feature shown to the east of The Avenue is a row of trees, five between the road and the garage entrance, and a further four beyond the entrance; these feature in many later photographs are were tall pine trees which remained in position until the hurricane of 1987. To the east of the trees is a hedge, shown as a continuous feature without gaps, running from the frontage with North Trade Road to the garage entrance; it is convenient to refer to this hedge as “the 1949 hedge” (although that was not a designation used by the Judge). At the garage entrance it forms a right angle with another feature, believed to be a fence, a brick wall, or simply a line of bricks set into the ground (there is a line of bricks at ground level in the same location to this day). The Judge drew attention to the fact that, on the 1949 planning application plan, the fencing on either side of the garage entrance projects beyond the line of the 1949 hedge.

The substance of the dispute between the parties is whether the boundary between The Avenue and the garden of Beacon Cottage is immediately to the west of the row of pine trees or lies further to the east, following the line of the 1949 hedge shown on the planning permission plan.

Photographic evidence from 1966 confirms that at that time a hedge was still present in the same location as the 1949 hedge shown on the planning permission plan. It had been removed by 1970. Mrs Susan Dewar, who purchased Beacon Cottage in 1971, gave evidence to the FTT that when she and her husband moved there, there was no hedge between the house and the row of pine trees, although there was a cotoneaster hedge between the trees themselves (“all kind of interlocking”). It is possible that the 1949 hedge was removed in connection with a proposal to build a second house in the garden of Beacon Cottage for which planning permission was granted in 1967. The planning application was made by Mr Heughan, who (jointly with his wife) had acquired Beacon Cottage in 1964 and who sold it to Mr and Mrs Dewar with the benefit of the planning permission for a second dwelling in about February 1971.

The 1971 sale of Beacon Cottage by Mr and Mrs Heughan to Mrs Dewar is significant because it provides the context for the agreement on which the FTT based its conclusion about the position of the disputed boundary. A report on title provided to Mrs Dewar by her solicitor, Mr Peter Munday, on 1^st December 1970 was in evidence. Mr Munday explained that to the western side of Beacon Cottage there was a private roadway which was owned by a Mr. Noble of North Lodge over which Beacon Cottage enjoyed a right of way. After reporting on various other matters Mr Munday then said this:

In an ironic reversal of the positions now taken by their successors in title, it appears from Mr Munday’s report that in 1970 the owner of North Lodge, Mr Noble, and the owners of Beacon Cottage, Mr and Mrs Heughan, were each keen that the land on the eastern margin of The Avenue on which the pine trees stood should belong to the other. The pine trees were very tall and in the FTT’s decision the Judge agreed with a suggestion made by Mr Bishop that Mr and Mrs Heughan may have been anxious not to have responsibility for maintaining them. Whether that is correct or whether there was some other unknown reason for the dispute it is clear that there was a dispute. A dispute about the ownership of the trees was necessarily also a dispute about the position of the boundary.

In her evidence to the FTT Mrs Dewar explained that after the sale was completed the dispute was resolved and that she and her husband applied for a tree preservation order with the consent of Mr Noble. She produced a typed memorandum signed by both Mr Noble and Mr Dewar dated 28th October 1971 which reads as follows:

The decision goes into some detail about events after the signing of the Memorandum but for the purpose of the appeal it is enough for me to record that title to Beacon Cottage was first registered in 1977 on a sale by Mrs Dewar to Mr Salmon and that Mrs Jaques, the respondent, and her husband became the registered proprietors in 1982. North Lodge (including The Avenue) was sold in 1979 by Mr Noble to Mr and Mrs Ashworth from whom Mr Bishop acquired it in May 1992. At some later date he sold the house and retained only The Avenue and a small field in the northwestern corner of the grounds of North Lodge which by then had been zoned for residential development.