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Mummery LJ attacks the "absence of any compromise" by neighbours

2 August 2010

Lord Justice Mummery has renewed his criticism of neighbours who refuse to compromise and insist on generating “ill-feeling” by taking their disputes to the courts.

In the latest court battle between feuding neighbours, he ruled at the Court of Appeal that a fence was a boundary rather than a nearby brook, even though, unlike the brook, it was not marked on the plan attached to the conveyance.

Giving judgment in Pennock v Hodgson [2010] EWCA Civ 873, Lord Justice Mummery said 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.

Jaroslaw Stachiw, senior partner of Stachiw Bashir Green solicitors in Bradford, acted for the Pennocks. He said they were considering an appeal to the Supreme Court.

“This judgment is a very sad day for sellers and buyers of property (and those who have to advise them), because what’s the point in having a very clear plan showing what is bought and sold (and the plan was the only description given) when people can later ignore it?”

Stachiw added that the “acid test” was no longer the plan, but the judge’s view of the topography of an area.

Two years ago Mummery LJ 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.

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Landlord & Tenant Local government