Boundary dispute edges towards Supreme Court

The dispute opposing two neighbours over the boundary line separating their properties could be heard by the Supreme Court, Solicitors Journal has learned.

As first reported on solicitorsjournal.com on 28 July, Ian and Diane Pennock lost their case in the Court of Appeal that a brook marked the boundary between their and their neighbour's properties.

The Pennocks argue that both the first instance judge and the Court of Appeal failed to properly consider the original conveyance documents.

They have now applied to the Supreme Court for leave to appeal and a decision on whether the court will hear their case could be made as early as mid-October.

The couple bought a plot of land in Cotherstone, County Durham, in 2005, carved out of a larger estate and, according to the conveyance, bordered by a brook.

Their neighbour, Gillian Hodgson, later objected to their proposal to build a stone wall on the side of the brook which they believe is their land, claiming that both banks of the stream are on her land.

The Pennocks sought to rely on the governing conveyance drawn at the time the land was partitioned to argue that the stream was the boundary between the two properties and that the south side of the stream was part of their land.

Upholding Richards J's approach, the Court of Appeal found that he had been entitled to consider extrinsic evidence because the governing conveyance was not sufficiently clear.

In his ruling in Pennock v Hodgson [2010] EWCA Civ 873, Lord Justice Mummery said the judge did not act subjectively when he rejected the Pennocks' claim over the stream.

He criticised the parties for apparently allowing the case to escalate into court instead of attempting to mediate.

But Jaroslaw Stachiw, the Pennocks' solicitors, said Gillian Hodgson had turned down his clients' invitation to discuss the issue and consider whether it could be resolved amicably.

Diane Pennock added that a further offer the couple made days before applying to the Supreme Court for permission to appeal had been rejected.

Stachiw warned that the Court of Appeal ruling meant that the 'acid test' in determining boundaries was no longer the plan attached to the conveyance, but the judge's view of the topography of an area.