[2025] UKUT 190 (LC)

The evidence of fact given for both parties in the FTT indicates that Area A is more or less on a level with the metalled drive and that there is a bank around its eastern edge. Evidence given for Mr and Mrs Hannah indicated that it had been used as a passing place for some years. Mr and Mrs French said that it was part of their land and had never formed part of the driveway. Both parties adduced expert evidence from surveyors. In their joint statement they agreed that Area A is about 15m long and 3m wide.

By far the most significant evidence was the conditional planning permission granted on 10 February 1959, prior to the creation of the disputed boundary. The permission and associated documents were discovered by Mr and Mrs French in course of the proceedings, and both parties rely on it in different ways.

A planning application was made by LH Johns Esq in January 1959 for the division of Oaklawn into three dwellings. The plan attached to the application makes it clear that the applicant proposed to provide a separate drive for The Stables, meeting Sandy Lane some way away from the shared drive which would continue to serve Heatherwood West and Heatherwood South.

The planning permission granted on 10 February 1959 gave permission for the proposed development (just in time for the conveyance of 18 February 1959, whereby Mrs Secretan retained The Stables but disposed of the rest of the land). Conditions were imposed “in the interests of and for the safety of persons and vehicles using the premises and/or the adjoining road.” The conditions to the permission required that instead of a separate drive for The Stables there be a single drive, which was to be “reconstructed in accordance with the dimensions and constructional details shown on the drawing (overleaf) type F”. Here is the drawing, sometimes referred to as a “schematic” because it is simply a diagram, in standard form, intended to show the sort of layout required without matching the requirement to the actual plan:

The wording on the schematic indicates that the existing drive was 10 feet wide, and that its width was to be doubled for a short way. It is impossible to be sure about the geometry of the plan and so it is impossible to tell for how far the drive was required to be 20 feet wide, but it had to be that width for something over 10 feet, perhaps 15 feet or more but apparently less than 20 feet. The diagram appears to envisage – but does not require – that an additional drive to The Stables then diverges westwards from the 20-feet-wide entrance; but as can be seen from all the plans copied above that has never happened and The Stables continues to share the drive used by Heatherwood South and Heatherwood West. The schematic refers to granite “setts” across the junction with the highway, and it is common ground that these are present today; they are lighter-coloured stones set into the drive where it meets Sandy Lane. The planning permission required a line of setts 35 feet long; the current line extends to 33 feet. Schematic F also appears to envisage that the drive would be widened to the west; but neither party has suggested that the western edge of the drive has moved.

As to the constructional details referred to on the previous page, at the bottom of the page on which schematic F was set out was a diagram showing a cross-section of a road, made up of 2 inches of tarmacadam on top, 6 inches of hardcore beneath and then 3 inches of clinker, and depicting one of the granite setts in cross-section showing how it was to be inserted.

The DB plan, copied at paragraph 6 above, contains lines and triangles where the drive meets the road which have been superimposed by Mr and Mrs Hannah on the DB plan and are intended to show how Area A represents a widening of the drive in conformity with the schematic. Mr and Mrs French do not agree. In my judgment the superimposition of the block plan is simply a conjecture and I give it very little weight. But it is not in dispute that the width of the metalled drive together with the width of Area A is about 20 feet at point B.

On 13 April 1959 (before the conveyance that created the boundary) Mr and Mrs Johns’ solicitor wrote to the local planning authority confirming that the main residence had now been divided and asking the authority to inspect it and to confirm that the work had been done in accordance with the council’s requirements. On 20 April 1959 the authority’s reply confirmed that the division of the building was in accordance with building regulations and also said: “It is also confirmed that the development is in accordance with the planning permission given by this council.”

Mr and Mrs Hannah’s case in the FTT was that the drive had been widened in accordance with the planning condition and that the process of widening the drive created Area A on a level with the metalled drive. They thought that the bank on its eastern edge, on which they said there are mature shrubs and trees, was created when the area was levelled. Mr and Mrs French’s case was that the bank was of recent origin, that the drive had not been widened and remained 10 feet wide throughout. No-one knows when the drive was metalled but Mr and Mrs French say that the drive is what is now metalled, that Area A has never been part of the drive, and therefore the boundary runs along the eastern edge of the metalling.