Best & Best v Parkin & Dennis

Boundary Disputes – Injunctions

Best & Best v Parkin & Dennis [2015] Luton county Court

“Mr Antino is a palpable expert witness” HHJ Hildyard sitting in the Luton County Court

Philip Antino Expert Witness for the Claimants in this case which relates to a boundary dispute between two property owners and was heard in the Luton County Court and Judgment handed down on the 21st May 2015. As soon as a copy of the Judgment is now downloadable from our website.

The Claimants Mr & Mrs Best were represented by Mr Ashley Bean of MLC Solicitors and Mr David Mayall of Lamb Chambers. The Defendants Mr Parkin and his sister Mrs Dennis were represented by Sebastian Kokelaar of 13 Old Square Chambers. The dispute related to a strip of land approximately 2 feet in width and running the length of Mr & Mrs Best’s property between a shared driveway positioned between the parties respective properties. It was common ground that the driveway was in the defendants demise save for the disputed piece of land. The defendants were developers and had obtained planning permission to build 4 cottages to the rear of their property. The claimants property was their main residential dwelling and used the driveway for access to their garages and yard at the rear of their house. There was also a turning circle at the end of the access way which was necessary to allow the claimants to manoeuvre their vehicle into their yard. The right of access has been enjoyed for many years (circa 1836) by previous owners of the respective properties. Following the defendants desire to build their cottages they erected a fence across the turning circle preventing access into the claimants property. This was the start of the dispute that the RICS experts and in particular Mr Philip Antino had to resolve, and recommended injunctive relief to remove the fence to allow access.

The claimants 1836 title incorporated an unrestricted right of access over the driveway and yard (including the turning circle) and therefore obtained an injunction which the defendants subsequently removed. It was at this time that the defendants began claiming ownership of the full width of the access road, although did not have any expert advice or evidence to support their claim. A drawing referred to as the “Thompson plan” had been produced many years previous and contained an area shaded in red which was in Mr Philip Antino’s opinion clearly the claimants title. Helpfully the plan had measurements marked around the whole perimeter of the plan relating only to the claimants property.

This plan included to the south elevation of the claimants property a strip of land recorded as being 2 feet in width. The Thompson plan included a the 2 foot strip along the flank wall of the claimants property and the access road. This had been coloured in “red” as had the whole area of the claimants title to denote that it was within the claimants parcel.

As an RICS member Mr Antino was instructed to provide an experts report on behalf of the claimants. The report included specific reasons and evidence that supported Mr Antino contention that the 2 foot strip of land was within the claimants parcel, the unique attributes of the Thompson plan and indeed why it was necessary to have access over the turning circle to ensure vehicle access to the rear of the claimants property.

Thereafter and prior to the dispute being resolved the defendants attempted to connect into a shared drain and failed to serve notice under 6(1) of The Party Wall etc. Act. Mr Antino produced a further report setting out the breaches of the statutory legislation which persuaded the defendants to either serve notice or find an alternative means to connect into the main sewer (albeit considerably more expensive) than their intended easy option.

The defendants maintained throughout the 3 year court case and throughout the trial that the claimants did not have a right of access over the turning circle and that it was possible to turn into their yard without using the turning circle. Mr Antino demonstrated that this was physically impossible to do. The defendants also maintained to the bitter end that they owned the strip of land measuring 2 feet running along the south elevation of the claimants property.

The parties experts (both RICS members) narrowed the issues which left two points unresolved. One was in relation to the retaining/boundary wall to the rear boundary between the parties property. Where it was submitted by the defendants that this was part of an old building that had previously been built and positioned on the defendants land and therefore indicated where the boundary was located. The defendants’ expert maintained that this was in fact a 4 inch wall (half brick) which therefore supported his contention that it was part of a previous building.

Mr Antino’s position contended that the southern edge of the wall was the boundary line and that the boundary wall would have been built by the previous owners of the claimants’ property to retain their soil and to stop it falling onto the defendants’ property. In evidence and on cross examination Mr Antino demonstrated to the satisfaction of the Judge that the wall was in fact a one brick (9 inch) thick wall and would not have been part of a building because of its construction, its form and the fact that the wall showed no sign of any previous indentations, bonding or alterations having been undertaken. The wall was in Mr Antino’s opinion a retaining wall for its full length, and the wall was in line with the 2ft strip now in dispute.

Mr Antino in evidence explained that in his view the “Thompson plan” was unique, and that in boundary disputes it is very unusual to find a historic drawing that not only identifies the boundaries but has the physical measurements written on them, rather than having to scale the dimensions from the drawings. Mr Antino explained that the problems with scaling from a land registry plan is that it is readily acknowledged under section 60 of the Land Registration Act 2002 that land registry drawings can be +/- 1.2m out upon measuring with a scale rule. The fact that these measurements corresponded exactly with the physical measurements of the claimant’s property and included the 2 foot strip was in Mr Antino’s submission significant evidence to support the claimants position that they owned the strip of land.

The defendants claimed that even if they did not own the land, they were entitled to an unrestricted access over the 2 foot width of land for its full length. The claimant’s contention was that this was not correct and indeed was not necessary because the access way was of sufficient width to allow normal width vehicles along the driveway. Furthermore, the claimants drains were within part of this 2 foot strip of land and only 150mm below the surface. They were rightly concerned that any traffic movement over the 2 foot strip of land would cause damage. The defendants maintained that they owned that piece of land and he claimants drains were a trespass.

HHJ Hildyard provided in summing up the case provided a detailed analysis of the evidence, which included previous owners being called by both parties, the RICS expert witness of both parties and concluded that “Mr Philip Antino to be a palpable witness. His evidence in relation to the retaining wall having been both a master mason and a chartered surveyor, supported in a rational and reasoned way why the wall was a retaining wall”. HHJ Hildyard rejected the defendants expert evidence on this point. The evidence submitted collated and presented by Mr Antino were simply that the measurements on the Thompson plan and the shaded area must have been recorded at a time by someone for the purposes of identifying the boundary, because every part of the claimants boundary plan had a measurement. HHJ Hildyard accepted this evidence that the 2 foot strip of land was within the claimants title.

HHJ Hildyard also recognised that Mr Antino had taken the Court to the Thompson plan and because of its uniqueness, held that it was sufficient to establish that the 2 foot strip of land was indeed within the claimants title.

A drawing was produced by Mr Antino setting out the width of the access the boundary and the turning circle which was subsequently agreed to be provided and maintained by the defendants, and it was held that the drawing was sufficient to establish that vehicular access through the passageway could be achieved without the use of the full length or width of the 2 foot strip of land.

In essence HHJ Hildyard held that the defendant had “comprehensively failed” in their case. and awarded damages to the claimants and costs. There was an Order that the defendants pay immediately on the day a sum of £50,000 on account for the costs to be summarily assessed.

Over the course of the 3 years the claimants had invited the defendants to mediate on 9 separate occasions, each and every invitation was dismissed by the defendants. This was not a rational, reasonable or tactical strategy to adopt. It demonstrated a complete disregard to the claimants position with a “I am right and you are wrong attitude” being adopted by the defendants.

Philip Antino