How do you determine a boundary?

Whether the boundary dispute relates to a rear garden boundary or whether it relates to a driveway, the issue of boundaries is often very divisive between neighbours but when faced with such issues, how will the correct boundary be determined?

The exact position of a boundary is a question of fact for the court. The court will determine the issue on the best possible evidence it has available to it. That evidence may include Ordnance Survey plans, historical conveyances and aerial photographs.

High Court decision in Charlton and another v Forrest and others [2024]

The issue of evidence was highlighted in the recent High Court decision in Charlton and another v Forrest and others [2024]. The dispute involved a boundary between two plots of land which had previously been marked by a row of trees . The Defendants cut down this row of trees and replaced this with a fence. The Claimants viewed this as an encroachment on their land.

Usually a Court in such a case between two plots would look at the necessary conveyance pursuant to which separate parcels of land were created. However, in this case the original conveyances were unavailable. The Land Registry plans are subject to the “General Boundaries Rule”. This means that the precise line of the boundary is undetermined by the Land Registry unless and application is made for it to be fixed. Accordingly these plans were useless. Further witness evidence in the case was equally unhelpful.

Expert evidence from surveyors

The most useful piece of evidence the judge had was expert evidence . Expert surveyors has been instructed by both parties and had agreed a boundary. The judge however determined that he was not bound to reach the same conclusion as the experts. He stated that the experts “agreed” position was not admissible expert opinion. The ultimate question of where the boundary actually lay was a question of fact for the court and whilst the experts reports were helpful in gathering and analysing the evidence, it was for the court to determine where the boundary lay.

Natural features determined important

The judge considered the natural features of the land and which divided the properties were important. He considered a series of aerial photos going back to 1945 which evidenced the position of the line of trees and determined that this was the boundary when the land was separated by the missing conveyance. Despite the growth of additional vegetation, the main tree line remained and therefore this was the boundary. The Claimant’s trespass claim was dismissed.

The case demonstrates the importance of evidence in boundary disputes and whilst expert evidence can be useful, it is limited.

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