[2025] UKUT 141 (LC)

The FTT’s decision was framed by reference to the grounds of Mrs Jaques’ objections. The Judge dealt first with the boundary agreement, which he held to be decisive. He identified the relevant principles by reference to the decision of the Court of Appeal in Nata Lee Ltd v Abid [2014] EWCA Civ 1652 and the decision of Megarry J in Neilson v Poole (1969) 20 P. & C.R. 909. He determined that the Memorandum was not ineffective for failure to comply with formalities for the transfer of land, because it had not been intended to effect a transfer of land, but rather had recorded the parties’ agreement about the true position of the boundary; as the Judge explained, “they certified that they agreed that the land is (i.e. already, as opposed to from henceforth) owned by Mr Dewar.” In the light of Mr Munday’s report of 1 December 1970 identifying the existence of a dispute over the ownership of the pine trees, the Judge interpreted the Memorandum as an agreement that the trees and the strip of land on which they stood were part of the property of Beacon Cottage. Finally, the Judge considered whether the fact that the Memorandum was made between Mr Noble and Mr Dewar, rather than Mrs Dewar, who was the owner of Beacon Cottage, robbed it of binding force. He decided that it did not, because:

“It is clear from Mundays' correspondence that Mr Dewar dealt with matters relating to the purchase of the property on his wife's behalf. He acted as her agent and in the case of the Memorandum she was an undisclosed principal.”

The Judge explained, correctly, that his conclusion on the binding effect of the Memorandum resolved the application conclusively against Mr Bishop. But, because he had heard a good deal of evidence about adverse possession and about the location of the boundary on the paper title, he considered those issues as well.

As to the location of the boundary on the 1949 Conveyance, the Judge considered that the line of pine trees which had lined the Avenue in 1949 was most probably the feature which the parties would have taken to mark the boundary. He decided that they were the feature which was being depicted by the solid line on the 1949 Conveyance plan and although there probably was a hedge inside the line of the trees the trees would have been the substantial boundary feature. There would have been some doubt about the matter, as there was in 1970, but a reasonable person would have understood that the pine trees rather than the 1949 hedge marked the boundary and that that is why Mr Noble and Mr Dewar were able to agree the point in 1971.

On the issue of adverse possession the Judge first directed himself on the relevant principles then considered evidence about the maintenance of the cotoneaster hedge by Mrs Jaques and her predecessor Mrs Dewar, and the disposal of the fallen trees after the hurricane of 1987 (again by Mrs Jaques). He dealt with care and in detail with disputed evidence concerning conversations between Mrs Jaques and Mr and Mrs Bishop about the trees and the hedge, before concluding that, even if his previous findings were wrong, Mrs Jaques and her predecessors have been in adverse possession of the land up to the line of the trees since at least 1980 and that if it did not belong to her already, she had acquired title to it by that means.