[2025] UKUT 141 (LC)

Grounds 2 and 3 are both concerned with the validity and effect of the Memorandum and whether the FTT was entitled or correct to find that it established definitively that the location of the boundary was in a different position from the line proposed by Mr Bishop and was therefore fatal to the success of his application.

On behalf of Mr Bishop, Mr Ingham took four points against the FTT’s decision on the effect of the Memorandum of 28th October 1971, two each under grounds 2 and 3 of the grounds of appeal.

Mr Ingham first took a procedural point, submitting that what he referred to as “the agency theory”, namely, that Mr Dewar had acted as his wife’s agent in concluding the agreement recorded in the Memorandum, and that “she was an undisclosed principal”, had not been pleaded in Mrs Jaques’ statement of objection to the defined boundary application nor in her statement of case in the FTT proceedings and had appeared for the first time in the Judge’s decision, not having been raised at the hearing. Mr Bishop, who represented himself at the hearing, had not been alerted to the significance of the proposition that Mrs Dewar was an undisclosed principal, and had not had a fair opportunity to respond to it, to test the evidence or to consider how he might challenge it by evidence or argument. That was unfair and amounted to a procedural irregularity which vitiated the FTT’s conclusion.

I do not accept this submission. In my judgment the proceedings were conducted fairly and the case Mr Bishop had to meet was clearly explained in advance.

I begin with the objection to the application for a defined boundary submitted to the Land Registry on Mrs Jaques’ behalf by her solicitor on 13 July 2020. In it, Mrs Jaques asserted that the disputed land between the line of the 1949 hedge and the western edge of the verge on which the pine trees had formerly stood was within her ownership. One reason was the Memorandum, which was said to be a binding agreement between the parties’ respective predecessors: “The then owner of North Lodge, Mr Noble, signed a written boundary agreement with Mr Dewar, acting on his and Mrs Dewar’s behalf, to agree that the land and the pine trees thereon formed part of Beacon Cottage’s title.”

In her statement of case for the FTT proceedings, Mrs Jaques case was put in the same way: Mr Dewar had agreed with Mr Noble that the strip of land on which the trees stood was his (Mr Dewar’s) property, but “In fact Mr Dewar was not the owner of Beacon Cottage but he was negotiating with Mr Noble on behalf of his wife, who was the owner.”

Mrs Dewar had previously made a witness statement (in 2015) which was relied on by Mrs Jaques in the proceedings. In her statement she explained that legal correspondence at the time she acquired Beacon Cottage in 1971 had been addressed by her solicitor, Mr Munday, to her husband, as they were personal friends. She referred to the report on title and the information that there was a dispute regarding the ownership of the pine trees on the western boundary. Her statement continued:

“There was an issue as to who was responsible for maintaining the trees. Stewart and I then agreed to apply for a preservation order with the consent of Mr Noble who then acknowledged our ownership of the Pine trees and the boundary hedge alongside it. I refer to a letter dated 28^th October 1971 signed by Mr Noble and my late husband, Stewart.

By 28^th October 1971, I believe I had transferred Beacon Cottage into the joint names of me and Stewart. I was not a signatory to the letter of 28^th October 1971 but I was fully aware of it.”

Mrs Dewar was mistaken in her belief that she had transferred the property into joint names by the time the Memorandum was signed. But the material I have referred to gave Mr Bishop ample notice that it was Mrs Jaques’ case that Mr Dewar had acted on his wife’s behalf when he signed the Memorandum which described Beacon Cottage as his property when at that time it belonged to her.

Mrs Dewar attended the hearing and was cross examined by Mr Bishop. There is a transcript of the proceedings. Mr Bishop put this question to Mrs Dewar about the Memorandum:

“Q. Yes; so there’s a very simple agreement and the key bit is, apart from where the people are, is that the strip of land and the trees thereon, which forms the western boundary of Beacon Cottage, is the property of the said Stewart Grant Dewar, which means you, as well. Now, that doesn’t mention the Scots Pines, does it?”

It is clear from Mr Bishop’s question that he considered that when the Memorandum referred to Beacon Cottage as the property of Mr Dewar, it was to be understood as meaning Mrs Dewar as well.

Mr Ingham submitted that it was not enough for Mrs Jaques to allege that Mr Dewar had acted on his wife’s behalf. Her statements of case did not allege that Mr Dewar had actual or ostensible authority to bind his wife in law. In my judgment that is not a sustainable criticism. It was enough for the statements of case to make clear that Mr Dewar was negotiating on his wife’s behalf, and for her evidence to confirm that she was fully aware of that. Had Mr Bishop wished to explore whether Mrs Dewar had specifically asked her husband to represent her, or whether he had been acting on his own, with her knowledge but without her approval, he had the opportunity to do so.

Nor did the Judge’s description of Mrs Dewar as an “undisclosed principal” have any effect on the fairness of the proceedings. It was not part of the case advanced by Mrs Jaques that Mrs Dewar was undisclosed and there does not seem to have been evidence going to the question of whether Mr Noble knew that she was the owner of Beacon Cottage. Whether Mr Dewar made it clear that he acted on behalf of his wife, notwithstanding the reference in the Memorandum to the property as belonging to him is unknown. Mr Ingham did not explain why it mattered whether Mrs Dewar’s role was disclosed or undisclosed and I do not think it did. What mattered was that Mr Dewar acted on behalf of his wife, who was the owner. I therefore reject Mr Ingham’s first point.

Mr Ingham next submitted that there was no evidence that Mr Dewar had authority from Mrs Dewar to reach an agreement on her behalf. I disagree. Mrs Dewar’s evidence was that she was aware of the agreement with Mr Noble. In the course of her cross examination by Mr Bishop she responded to a question about the absence of a plan from the Memorandum by saying this:

“A.

In those days, we weren’t going in for a lot of litigation. It was a conversation which we discussed with Colonel Noble; they discussed it; we said, “We are responsible”; and he certified that piece of paper and that was to cover everybody.”

That evidence might be said to have been unclear about whether Mrs Dewar herself had participated in the relevant conversation, or whether it had been conducted only between her husband and Mr Noble. But it provided ample material from which, in view of the correspondence which he saw and the general circumstances, the Judge was entitled to infer that Mr Dewar had acted with his wife’s authority. That was Mrs Jaques pleaded case, with which the evidence was consistent and which on that point was not challenged by Mr Bishop. I therefore reject Mr Ingham‘s second point under his ground 2.

Since the decision of the FTT in this case, which was based on Neilson v Poole and on Nata Lee Ltd, the statements of principle concerning the binding effect of a boundary agreement which were relied on have been analysed and confirmed by the Court of Appeal in White v Alder [2025] EWCA Civ 392.

The issue in White v Alder was whether a boundary agreement between predecessors in title of the parties, of which the parties themselves had been unaware at the time of their own acquisitions, was binding on them. Having reviewed the relevant authorities at [21]-[52], Asplin LJ (with whom Zacaroli LJ and Sir Launcelot Henderson agreed) took stock, at [53]-[54]:

“53.

Where does that leave us? Drawing all of the authorities together, it seems to me that as Megarry J first explained, there are two types of boundary agreement. The first is an agreement the purpose of which is to move a boundary so as to transfer land from one neighbour to another. That first type is subject to the formalities necessary for the transfer of land. The second type is an agreement, the purpose of which is to define a previously unclear or uncertain boundary, even if it includes the conscious or unconscious transfer of a trivial amount of land. It is presumed that the land transferred is trivial unless the presumption is rebutted. This second type, a boundary demarcation agreement, binds the parties to it for the reasons explained by Briggs LJ in Nata Lee Ltd at [32]. The consideration for the agreement is the substitution of certainty for uncertainty and the avoidance of the risk of future disputes. Although in many cases, the parties will act upon the agreement, for example, by building a wall or erecting a fence, there is no need for anything more in order to render it binding as between them. […].

54.

Such an agreement has proprietary effect and, as a result, also binds successors in title. It does so because of its very nature. It defines and delineates the boundary between the properties as from the root conveyance or transfer. Such an agreement is, of its very nature, a delineation of the property transferred or conveyed and is so for all purposes. As no one is able to transfer or convey more than they own, such an agreement effectively “binds” successors in title whether or not they have knowledge of it. It does so because it defines what they purchase. As “Ruoff and Roper on the Law and Practice of Registered Conveyancing” explains at paragraph 5.020, a legal boundary does not move because the land is subsequently conveyed or transferred. The boundary demarcation agreement is ancillary to the conveyance or transfer. As Megarry J explained at 919 of Neilson v Poole, the boundaries established are, in the words of Lord Hardwick L.C. in Penn v Lord Baltimore, “presumed to be the true and ancient limits”. In other words, a boundary demarcation agreement establishes on the ground the physical extent of the respective legal estates created by the conveyance or transfer. The boundary is presumed always to have been in that location.”

Mr Ingham’s next challenge to the effectiveness of the Memorandum was to the Judge’s interpretation of the document. He submitted in his skeleton argument that the Judge should not have treated the Memorandum as determinative when it referred only to trees and not to defined boundary features. It contained no plan, dimensions, coordinates or title references. Its subject-matter was described in general terms and, Mr Ingham submitted, there was ambiguity even as to which trees it referred to. Despite this, the Judge concluded that the parties could not have been referring to anything other than the Scots Pines, and that the boundary had thereby been fixed. This conclusion was said to ignore the presence of other significant trees and vegetation in the area at the time, as shown in photographs and expert analysis.

I do not accept these submissions. The Memorandum was clearly intended to be a formal document; it recites that its purpose is to record the existence of an agreement and to some extent it is couched in legalese. With the benefit of the near contemporaneous correspondence and the planning permission plan it is abundantly clear what trees are being referred to, namely the trees shown on that plan. Those trees were not individual specimens but stood in a line, and so were consistent with the reference to “the strip of land and the trees thereon”. They were also very substantial and required no other qualifying description to make it clear which they were. Significantly, the context in which they were being referred to in the Memorandum was the resolution of a dispute, as Mrs Dewar explained, and the trees about which there had been a dispute between Mr Noble and the previous owner of Beacon Cottage were specifically identified in the report on title as pine trees. I therefore agree with the Judge that it is fanciful to suggest that the trees with which the agreement was concerned were other than the row of pines trees shown on the planning application plan.

The original parties having agreed that the trees and the strip of land on which they stood (a reference to the verge on the eastern side of the Avenue) were part of Beacon Cottage, it is immaterial for the purpose of these proceedings that the precise position of the trees was not specified. The stumps of the trees are still present and their location is not in doubt. Nor is there any need for a boundary agreement to satisfy the technical requirements of a determined boundary application. What matters is that the owners of land on both sides of the boundary agreed that the trees and the strip of land they stood on form the western boundary of Beacon Cottage. That is enough to defeat Mr Bishop’s application to determine a boundary up to three or four metres to the east of the trees.

Mr Ingham’s fourth and final submission about the effect of the Memorandum was that the Judge had failed to distinguish sufficiently between the two different types of boundary agreement identified in the authorities and at times had treated the Memorandum as an agreement to transfer land. If the agreement was of that type, it was invalid as it did not meet the requirements of section 52(1), Law of Property Act 1925 that all conveyances of land must be made by deed.

Contrary to Mr Ingham’s submission, the Judge left no doubt at all that he accepted the pleaded case of Mrs Jaques and the submissions of Mr Williams that the Memorandum was not intended to achieve a transfer land from one title to the other. It was, he said, an agreement “in which the parties agree that the true position of boundary is or shall from henceforth be agreed to be in the position they decide without consciously transferring any land between them.” No formalities were required to be completed to give effect to that agreement. The Judge also rightly recognised that the question whether any transfer was actually effected was irrelevant, because the parties expressed themselves simply to be recording the position and ownership of the boundary as it already was, not as it was intended to become as a result of the agreement. That approach is entirely consistent with the reasoning of Asplin LJ in White v Alder at [54] and specifically with the statement that “a boundary demarcation agreement establishes on the ground the physical extent of the respective legal estates created by the conveyance or transfer. The boundary is presumed always to have been in that location.”

The passages which Mr Ingham relied on to suggest that there was some ambiguity in the Judge’s approach concerned the question whether the extent of the land which might in fact have been transferred was trivial or not. At paragraph 3.5 that question was specifically stated by the Judge to be irrelevant. What followed in paragraph 3.6 was therefore based on a counterfactual and dealt with a matter which was known to be irrelevant. It was no doubt included out of courtesy to the wide ranging arguments presented by Mr Bishop, but it did not cast any doubt on the Judge’s clear conclusion that the boundary agreement did not transfer any land from North Lodge to Beacon Cottage.