[2025] UKUT 141 (LC)

Mr Bishop was given permission to appeal the FTT’s conclusion that the western boundary of Beacon Cottage in the 1949 Conveyance was along the line of the pine trees. He contends that the Judge overlooked the agreed position between the experts that the solid line shown on the OS plan used as the base of the Conveyance plan most probably represented the 1949 hedge shown on the contemporaneous planning application drawing. There is force in the submission that the Judge may have overlooked the importance of that evidence and that his assumption that the pines which lined the Avenue were the feature which was being depicted by the solid line on the 1949 conveyance plan was an unexplained departure from it. But whether that is so or not is irrelevant and has been irrelevant since the position of the boundary was agreed in 1971. The parties are bound by their predecessors’ agreement, even if it is contrary to whatever may have been the intention of the original parties to the 1949 Conveyance. I therefore intend to say no more about the first ground of appeal.

Mr Bishop was also given permission to challenge the FTT’s conclusion that Mrs Jaques could also rely, if necessary, on a title acquired by adverse possession. Because of the Judge’s finding about the effect of the Memorandum, it was not necessary for Mrs Jaques to rely on her fallback adverse possession case, and as Mr Ingham recognised, that may have influenced the way the issue was approached in the decision. The Judge concentrated on determining a number of hotly contested disputes about who had said what to whom about planting a new hedge and about ownership of the trees which he obviously felt ought not to be left unresolved. He dealt more economically with the facts necessary to sustain a claim based on adverse possession, but that economy was perfectly justified in the circumstances. In the event, that issue does not arise and I need not determine the fourth ground of appeal.