[2025] UKUT 190 (LC)

I said above that the neither party has appealed the judge’s findings of fact but that the parties do not agree what he found. I am going to set out the relevant paragraphs of the FTT’s decision interspersed with my findings as to what the judge decided.

The judge correctly noted that the conveyance that created the boundary was that of the 20 May 1959, and that the plan to that conveyance was for the purpose of identification only. At paragraph 20 of his decision the judge explained that therefore the conveyance plans could not be relied on to show the precise dimensions of the road and then said:

“20.

… [Mr and Mrs French’s expert witness’s] plan closely followed the line of the drive but was predicated on it having a width of 10 feet only. As will appear hereafter this is, in my judgement, an error.

Area A

21.

As to the surrounding circumstances, the Respondents in their statement of case produced a copy of the application for planning permission to Cuckfield Rural District Council made by CJ Austin, Surveyor, on behalf of LH Johns on the 7th January 1959. They also produced a copy of the decision to grant permission and associated correspondence between the Council and the solicitor acting for LH Johns. The copies are in places faint but they are just legible. The authenticity of these documents was not challenged in evidence and I am prepared to accept them.

…

23.

Planning permission was granted on the 10th February 1958[that is a typographical error: it was 1959] subject to conditions. …

24.

The conditions indicate by reference to the block plan accompanying the application where the access to the newly divided property should be. The application envisaged an entirely separate entrance to the stables with its own connection to Sandy Lane. This was not permitted. The existing access was to be the single entrance to all three properties, but it was to be modified in accordance with drawing type F. A copy of this drawing is in evidence, and it requires a drive 20 feet wide at its junction with Sandy Way. It also requires some granite setts to mark the boundary of the drive with the public highway. Those setts are there today and I viewed them at the site visit.

25.

There is, finally, a letter dated 20th April 1959 to Morrison Hewitt Harris, Solicitors, from the Clerk of Cuckfield RDC confirming inspection of the property and that the development was in accordance with the planning permission given by the Council. Unfortunately, the signature on the letter is no longer legible.

26.

It was faintly argued because drawing F recited an access width of 10 feet for the existing drive, and a like width for the drive to Stable Cottage, and because no separate access to Stable Cottage was ever constructed, then the drive must have remained 10 feet wide throughout. In my judgement this argument has to be rejected. The tenor of the permission was that if the development was to proceed, there had to be a safe means of ingress and egress to and from the properties. This would be achieved by having a drive permitting the flow of traffic in either direction at the same time.”

I interject there to say that so far the judge has found two important facts. He has found, first, that the granite setts required by the 1959 planning permission are in position today. I take that to be what he meant in paragraph 24, particularly from his reference to the setts as “those setts”. Second he has found (at paragraphs 20 and 26) that the proposition “that the drive … remained 10 feet wide throughout … has to be rejected”. At minimum therefore something has happened to the drive; it has not “remained” as it was. And it appears that the judge took the view that it was made wider to permit safe access to and from the properties for traffic in both directions at the same time.

It does not follow from the reasoning so far that the drive is 20 feet wide all the way to the houses, which was impossible because of the bridge, nor that it was 20 feet wide all the way to the bridge, because the planning permission did not require that. To comply with the planning permission all that had to be done was to make the drive 20 feet wide for some distance from Sandy Lane, that distance being between 10 and 20 feet, nearer 20 than 10.

The judge continued:

“27.

Drawing F also gives the surface specification for the new drive. The top two inches are binding gravel or tarmacadam, below that is 6 inches of hardcore and below that 8 inches of clinker. In her closing argument Counsel for the Respondents questioned whether the drive had been laid out as envisaged by drawing F. She said that the suggestion by the Applicants that the drive had been widened in 1959 was hypothetical. By contrast, Ms Mattson submitted that it was highly unlikely that Drawing F was ignored. She said that the drive had been excavated in 1959 in order to widen it and create a bank where it abutted HS. In evidence, Mr Mann accepted that the texture of the surface of Area A was compacted earth with gravel but without tarmacadam. By contrast, the surface of the drive contained tarmacadam. On the balance of probabilities, I find that the driveway was not excavated in 1959. Ms Mattson submitted that with passage of time, no significance could be attached to the difference between the surface of the driveway and the surface of Area A. This strikes me as implausible. The difference is too marked. There is no evidence of clinker or hardcore at Area A which would have been the purpose of the excavation. The letter of 8th April 1959 from the Council is evidence to the contrary, but the author of the letter is unascertained and has not been cross-examined. It is of very limited weight.”

The first thing that we can see from that paragraph is that the judge has now referred to three requirements of the planning permission. The first was the granite setts (paragraph 24); the second was the widening (paragraph 26); paragraph 27 then says that the planning permission “also” required a particular surfacing.

The judge then accepted Mr and Mrs Hannah’s expert’s evidence that the surface of Area A was compacted earth and gravel without tarmacadam, whereas the drive was tarmacked. The judge then said “I find that the driveway was not excavated in 1959.” He has moved from a proposition about Area A (it was not tarmacked) to a proposition about the drive (it was not excavated). He reinforced that proposition with a further assertion about Area A: there was no evidence of clinker or hardcore at Area A.

I have to conclude from those words that the judge regarded Area A as part of the drive.

I note that the judge did not make any finding about when the drive was tarmacked. There was no evidence about that. What I think he was saying was that the drive was widened in 1959; that Area A was created in order to effect that widening; but that the drive was not excavated as required by the planning permission. That might appear to contradict the letter of 20 April 1959, but the judge gave “limited weight” to the letter. I would add that the letter is not specific, and it may be that the planning authority’s surveyor was content with the road widening (on the east side of the drive not the west as schematic F envisaged) and was not concerned, or overlooked, the fact that the excavation required by the planning conditions had not been carried out.

The judge continued:

“28.

Nevertheless, the true test to be applied is what the reasonable layman thought they were buying in May 1959. In my judgement, the western boundary of HS created by the May 1959 Conveyance was intended to be a line following the eastern edge of the drive serving (at its southern end) all three properties. The reasonable layman looking at that Conveyance and with the knowledge of the planning permission of the 10th February 1959, and the dimensions on drawing F, would have concluded that they were to own everything up to the edge of the drive. That drive was, or was intended to be, 20 feet wide at least as far as the entrance to Stable Cottage. In my judgement, a correct reading of the permission is that it envisaged a metalled carriageway of 20 feet as necessary to cope with the increased volume of traffic once the development was completed.”

The parties agree that the judge went wrong in these paragraphs; Mr and Mrs Hannah did not seek a boundary 20 feet away from the western edge of the drive all the way to the entrance to Stables Cottage – nor to point F as the judge said in his order, nor to point E as the judge said in paragraph 40 of his decision. Instead, they say the boundary followed the line on their DB plan. I shall turn later to what Mr and Mrs French say about paragraph 28 of the FTT’s decision.

At paragraph 29 the judge commented on what he described as the “antics” of the parties in relation to the topsoil in 2018 (paragraph 30 above) and said that they were of little assistance to him. At paragraph 30 he said that he now had to look at whether the line of the boundary created in May 1959 has moved since. That indicates that he took the view that everything he had said so far was about the boundary created in 1959. He stated in paragraph 30 that there had been no subsequent boundary agreement. He then discussed adverse possession:

“30.

… I must briefly mention adverse possession.

31.

Given the finding that the drive was not constructed with a metalled width of 20 feet means that the garden of HS extended beyond the boundary created by the 1959

Conveyance. The only evidence on this point is from the Second Respondent who stated that when she and her husband bought HS in December 2015 the drive (which she refers to as the public pathway) was single track bordered by the garden of HS. To the contrary was the evidence of Betty Chapman who worked intermittently for the Applicants as a gardener since 2007. She confirmed that the surface of Area A was from time to time covered with moss and algae. Leaves also gathered there which it was her duty to clear away. Mrs Chapman was challenged in cross-examination, but not in any way which advanced the case that there had been adverse possession by the Respondents. Maria Bernard who has lived at The Stables since November 2007 gave evidence about the use of Area A as a passing place, but no case of adverse possession by the Respondents was put to her. In my judgement, simply allowing shrubs and other vegetation to grow beyond the legal boundary of HS is not a sufficient degree of custody and control to engage the rules about adverse possession.”

The alternative argument by Mr and Mrs French that Area A was theirs by adverse possession therefore failed; allowing shrubs and vegetation to grow beyond the boundary did not amount to adverse possession. There is no appeal from the judge’s finding on adverse possession.

The first sentence of paragraph 31 confirms the finding in paragraph 27: the drive was not metalled to a width of 20 feet. I take the view that that does not alter the finding in paragraph 26 that the drive was nevertheless widened. And the judge’s comments in this paragraph confirm that he regarded Area A as being within the legal boundary to Heatherwood West; Mr and Mrs French’s argument that they were in possession of Area A was rejected, and that can only mean that the judge took the view that it had not been conveyed as part of Heatherwood South in 1959. As we saw above, he actually took that view about a more extensive area, because he thought that a strip 20 feet wide up to point E was in the ownership of Heatherwood West, and we have seen that that did not follow either from the legal test for deciding where a boundary is or from the facts that he had found in paragraphs 24 to 27.