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Mummery slams feuding neighbours - again

28 July 2010

A judge had been right to regard a fence as a boundary rather than a nearby brook, even though, unlike the brook, it was not marked on the plan attached to the conveyance, the Court of Appeal has ruled in the latest court battle between feuding neighbours.

Dismissing an appeal in the case of Pennock v Hodgson [2010] EWCA Civ 873, Lord Justice Mummery ruled that the judge, Mr Justice David Richards, did not act subjectively when rejecting the applicants’ claim over the stream.

The parties bought land previously in common ownership which had been divided into two separate properties.

The OS plan attached to the conveyance showed the stream as a black squiggle, but not a fence which ran just south of the stream - suggesting, the defendant counter-claimed, that the stream was on her land. It was agreed, however, that the fence was in place at the time of the conveyance.

Mummery LJ said construction rules for conveyances where plans were attached "for the purposes of identification" were clear.

The senior judge said the plan did not contain "any relevant measurements", nor did it "fix the position of the boundaries".

"As the plan is insufficiently clear about the position of the boundary, this was a case in which the judge was entitled to take the plan in hand and look at the physical features of the land on the ground as at the date of the conveyance," he said.

He added that this approach was in line with the precedent set by the House of Lords in Alan Wibberley v Insley (29 April 1999) and with "the common sense of the situation".

Mummery LJ also expressed renewed disapproval about escalating costs in neighbour disputes.

"The unfortunate consequences of a case like this are that, in the absence of any compromise, someone wins, someone loses, it always costs a lot of money and usually generates a lot of ill-feeling that does not end with the litigation. None of those things are good for neighbours," he concluded.

According to Jaroslaw Stachiw, the Pennocks' solicitors, "their invitation to [Mrs Hodgson] to discuss [the matter] over a cup of coffee was met with a letter from her solicitor".

"She decided to go 'legal' and even instructed her solicitor not to attend a meeting on site in order to see if they could arrive at a settlement of the problem amicably," he said.

Mr Stachiw also said: "She refused any reasonable offer to discuss it further and having disinstructed her original solicitors she wrote saying she 'would welcome going to court'".

Two years ago he had already warned about the increasing risk of boundary disputes arising from the partitioning of plots and suggested that large-scale surveyor's plans "recording vital measurements and physical features" should be used.

The case, Bradford v James [2008] EWCA Civ 837, involved a small area of cobbled yard, prompting Mummery LJ to bemoan the growing number of "calamitous neighbour disputes" that ended up in court instead of begin mediated.

"An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive," he said at the time.

"By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue.

"Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both."

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