B2/2000/3642

Neutral Citation Number: [2001] EWCA Civ 1213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT
(MR RECORDER BELDEN)
                               Royal Courts of Justice
                               Strand
                               London WC2
 
                               Thursday 19th July 2001
B e f o r e :

LORD JUSTICE JONATHAN PARKER

‑and‑

LORD MUSTILL

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KEVIN MATTHEW COSTELLOE
Claimant/Respondent

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CICELY BEATRICE MORTIMER‑MOORE
Defendant/Applicant

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207‑421 4040/0207‑404 1400
Fax No: 0207‑831 8838
Official Shorthand Writers to the Court)
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MR MP WARNER (instructed by AE SMith & Son, STroud, Gloucestershire GL5 1AF) appeared on behalf of the Appellant.
MR C AULD (instructed by Daniels Ferraby & Co, Gloucestershire GL20 5BJ) appeared on behalf of the Respondent.

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JUDGMENT
Thursday 19th July 2001
1.	LORD JUSTICE JONATHAN PARKER: This is an application by Mrs Mortimer‑Moore, the defendant in a boundary dispute, for permission to appeal against an order made on 26th August of last year by Mr Recorder Belben in the Gloucester County Court. The judge refused permission to appeal, but permission was given by Lord Justice Schiemann on 12th April of this year. Lord Justice Schiemann directed that notice of the application be given to the claimant, Mr Kevin Costelloe. Mr Costelloe is represented on this application by Mr Charles Auld, of counsel, who also represented him at the trial.
2.	Mrs Mortimer‑Moore appeared in person at the trial, but she is represented on this application by Mr Malcolm Warner of counsel.
3.	The boundary which is the subject of the dispute is that which lies between No.79 Montpelier Terrace, Cheltenham, which is owned by Mr Costelloe, and No.81 Montpelier Terrace, which lies immediately to the east of No.79 and which is owned by Mrs Mortimer‑Moore. Both properties front on to Montpelier Terrace to the north, and each is separated from the road by a small front garden area. No.79 is, as the judge described it, a fine Regency property. It is a Grade 2 listed building. It was built in the early nineteenth century probably as the end house of a terrace extending westwards (i.e. to say away from No.81). No.81 a detached property and is considerably larger than No.79. It was built in approximately 1825 and is a Grade 2 starred listed building. To the east of No.81 is No.83, which is the end house of a terrace extending further eastwards. No.81 is flanked by two brick arches, which effectively span the gap between the end walls of No.81 and the end walls of No.79 (to the west) and No.83 (to the east). The arches are, however, not symmetrical. There are two buttresses supporting the eastern flank wall of No.79, the more northerly of which is situated near the north east corner of the building. This buttress has at some time been incorporated into the western pier of the arch of the western side of No.81, between No.81 and No.79.
4.	There is no evidence that Nos.79 and 81 ever formed part of a single title.
5.	The dispute relates to the boundary between No.79 and No.81 at the front. Prior to the events which have given rise to this dispute, the situation on the ground between No.79 and No.81 was as follows. To the west of No.81 there was and (and is) a dwarf brick wall (the bricks being laid in “stretcherbond”, that is to say endways) leading in a straight line from the western side of the arch on that side of No.81 to the road, which it meets more or less at right angles. At its southern end it butts against the westerly pier of the arch, the brick at that end of the wall standing slightly (that is to say a matter of an inch or two) proud of the easterly face of the pier. It is matched by a wall of similar size and construction on the other side of No.81. At the road end of the brick wall to the west of No.81, and at right angles to it, is a stone which featured largely in the evidence and which has been referred to as the “keystone”. The keystone has three holes drilled or punched into it. The judge found that at one time it probably carried two sets of railings. He commented that this was indicative of a boundary running along the right hand, that is to say the western, face of the brick wall. To the west of the brick wall, that is to say on the side of it which faces No.79, there stood what the judge described as a poor quality stone plinth wall extending along a line from the eastern side of a flight of steps leading up to the front door of No.79, to the road.
6.	In February 1999 Mr Costelloe's father, Mr Richard Costelloe (I will call him Mr Costelloe senior) wanted to erect a set of metal railings with a new plinth wall at their base made of concrete in place of the existing stone plinth wall or what remained of it. He told Mrs Mortimer‑Moore of his intentions, and (as the judge found) indicated to her that he considered that the boundary between No.81 and No.79 was shown by the position of the keystone at the end of the brick wall. The judge found that:
“There was some discussion as to the correct position of the concrete plinth wall into which the railings were to stand, and accordingly Mr Costelloe senior decided to build the concrete plinth wall into which the railings were to be fixed further over towards No.79 than he might otherwise have done.” 
7.	The judge found that Mrs Mortimer‑Moore had asserted that the entirety of the keystone lay within her property, and that that assertion led Mr Costelloe senior to position the northern end of the new plinth wall immediately to the west of the keystone. In consequence, since the keystone lies across the northern end of brick wall, forming in effect a “T” shape, the new plinth wall diverges slightly from the line of the brick wall as it runs towards the road, leaving a narrow triangular sliver of land between it and the brick wall. The judge continued:
“The work took several days and involved shuttering being positioned and concrete poured in. The work finished on or about 16th March. While the shuttering was in place both Mrs Mortimer‑Moore and her son [he also lived at No.81] were in residence at No.81.” 
8.	The judge also found as a fact that Mrs Mortimer‑Moore:
“ ... could see and did see exactly where the plinth wall was going up.” 
9.	The new plinth wall abuts southern end of the brick wall. In effect, it touches the brick wall at the point where both walls meet the western pier of the arch. This means that four and three quarters inches of the width of the new plinth wall at its southern end meets the western pier of the arch: in other words, the width of the new plinth wall at its southern end extends some four and three quarter inches to the east of the flank wall of No.79. Thus the south eastern corner of the new plinth wall is more or less flush with the north eastern corner of the buttress (now forming part of the western pier of the arch).
10.	The building of the new plinth wall was completed on 16th March 1999. The judge found that Mrs Mortimer‑Moore did not complain about the work while it was going on, but on 5th April 1999 she wrote to Mr Costelloe complaining that the new plinth wall encroached on her property, No.81. Mrs Mortimer‑Moore maintains that she complained while the work was going on in the sense that there was correspondence, to which we have been referred, indicating that that was the case, and that she continued to complain after the work had been completed.
11.	Later, a solicitors' letter was written on behalf of Mrs Mortimer‑Moore which led to the commencement of this action on 4th June 1999. By his Particulars of Claim Mr Costelloe seeks primarily a declaration in relation to the boundary from the rear corner of the building of No.79 (that is to say from its south eastern corner) up to the road, notwithstanding that (initially, at all events) the dispute related only to the boundary at the front. As appears from the plan annexed to the Particulars of Claim, the boundary contended for by Mr Costelloe runs (taking it from south to north) along the line of the exterior of the basement flank wall of No.79, taking in the two buttresses, and then runs along the eastern face of the brick wall: that is to say it includes within the boundary of No.79 not merely the new plinth wall, which the original dispute was about, but the full width of the brick wall.
12.	In the alternative, Mr Costelloe contends for a boundary which runs along the centre line of the brick wall.
13.	He also seeks a declaration that the new plinth wall lies entirely within the boundary of No.79.
14.	Mr Costelloe also pleads a case of estoppel and/or acquiescence against Mrs Mortimer‑Moore on the basis that she stood by and allowed him to complete the work of building the new plinth wall before complaining that it encroached on her property.
15.	By her Defence, Mrs Mortimer‑Moore alleges that the true boundary starts from the north eastern corner of No.79 (that is to say the house itself) and runs from there in a straight line to the road, with the consequence that at its southern end and for most of its length (going northwards towards the road) the new plinth wall encroaches on her property, No.81.
16.	At an interlocutory hearing on 18th August 1999, the court directed that there should be a single expert, jointly instructed, on “the issue of measurements”. In the event, the expert so instructed, who provided a report and plans and who gave oral evidence at the trial, was Mr Michael Grosscurth ARICS. It is material to note that, in making that direction, the District Judge effectively declined to allow the parties to call their own expert witnesses on such issues. Mr Costelloe had wished to call a Mr Romeo. Mrs Mortimer‑Moore had wished to call a Mr Turner (an architect) and a Mr Hewitt (a consulting structural engineer), and in the event their statements were included in the trial bundles. At the outset of the trial Mrs Mortimer‑Moore sought leave to call them to give expert evidence, but the judge refused leave.
17.	At the trial the judge heard evidence of fact from Mr Costelloe senior and Mrs Mortimer‑Moore. He also heard evidence of fact from a Mr Coates (who worked on the building of the new plinth wall, who was called as a witness by Mr Costelloe) and from Mrs Mortimer‑Moore's son (called as a witness by her). The only expert witness, as I indicated earlier, was Mr Grosscurth.
18.	In addition, the judge had the relevant documents of title before him. As pointed out earlier, there was no suggestion that the two properties had ever formed part of a common title, but Mrs Mortimer‑Moore nevertheless relied on a measurement in her own conveyance in support of her case as to the true boundary.
19.	The evidence of Mr Costelloe senior and Mrs Mortimer‑Moore was essentially confined to the issue of estoppel/acquiescence, as was that of Mrs Mortimer‑Moore's son. Mr Coates, on the other hand, gave evidence (which the judge accepted) that there had been incorporated into the new plinth wall an existing stone which was set within the second step down of the flight of steps leading to the front door of No.79 and which had been covered with only a very thin layer of concrete on its eastern side (that is to say the side facing No.81). For the sake of clarity I will refer to it as “the support stone”. Mr Coates' evidence was that the support stone had not been moved when the new plinth wall was constructed, and that there was evidence that in the past there had been railings set in the support stone which led to the front door of No.79. The judge found that the outer face of the support stone is in line with the projected line of the outer face of the buttress. As he put it:
“In other words, the line of the buttress, the outer face of the support stone and the outer face of the plinth wall are all in line with one another.” 
20.	The only expert witness was Mr Grosscurth. He plainly gave a wide interpretation to the District Judge's reference to “issues of measurement” since, in addition to providing a very helpful measured plan, he went further and gave his opinion as to where the true boundary lay. His opinion was (a) that the boundary line on the eastern side of the house at No.79 lay along the line of the extreme limit of the lower ground floor wall of the house (as shown on the plan annexed to the particulars of claim); (b) that the new plinth wall lies entirely within the boundary of No.79; and (c) that both brick walls were part of No.81. It is to be noted that, so far as (c) is concerned, Mr Grosscurth's opinion was not in accordance with Mr Costelloe's primarily pleaded case that the boundary lies along the eastern edge of the brick wall, alternatively down its centre line.
21.	In the course of his oral evidence, Mr Grosscurth opined that the buttresses were probably part of the original structure of No.79, although he could not be sure without removing the rendering.
22.	The judge addressed essentially two issues: first, did the new plinth wall encroach on No.81; and secondly, if it did, was Mrs Mortimer‑Moore nevertheless estopped by her conduct from complaining about the encroachment? He did not, in terms, address the issue precisely where the true boundary lay.
23.	On the first issue (encroachment) the judge held that the new plinth wall was wholly within the boundary of No.79, and that accordingly there had been no encroachment. In reaching this conclusion he found that the buttresses were part of the original construction of No.79. Thus, at page 7 of the transcript, he says:
“They [that is, the buttresses] are part of the original construction of No.79 and that flank wall [that is to say the eastern flank wall of No.79] is accordingly stepped.” 
24.	However, the judge also took into account the keystone and the support stone. As to the support stone, basing himself on Mr Coates' evidence, the judge concluded that the “outer” face (that is to say the eastern face) of the support stone “formed part of the boundary between No.79 and No.81”. He further concluded that “no part of the plinth wall projects further than the support stone”. Thus he found (contrary to Mr Costelloe's pleaded case but in agreement with Mr Grosscurth) that the entirety of the brick wall lay within the boundary of No.81.
25.	In reaching his conclusion, the judge did not find the measurements on the deeds to be of assistance.
26.	On the alternative issue of estoppel/acquiescence, the judge also found in Mr Costelloe's favour. He made a number of findings of fact on that issue including, as noted earlier, that Mrs Mortimer‑Moore could, and did, see exactly where the plinth wall was going up.
27.	The order was drawn up on 30th April 2000, that is to say four days after delivery of the judgment. As drawn, it includes a declaration in the terms sought by Mr Costelloe in his Particulars of Claim, accompanied by a copy of the plan annexed to the Particulars of Claim. In other words, it purports to declare that the boundary at the front of the properties lies along the eastern face of the brick wall rather than the eastern face of the new plinth wall, so that the entirety of the brick wall forms part of No.79. As I have already pointed out, this was not in accordance with the judge's conclusions as to the true line of the boundary, as has been accepted by both counsel this morning.
28.	No one involved in the case appears to have noticed this until a few days ago. Had they done so earlier, it may well be that this application would not have been pursued.
29.	Against that background I turn to Mrs Mortimer‑Moore's amended grounds of appeal.
30.	Paragraph 3 of the amended grounds of appeal reads as follows:
“The learned judge concluded that the boundary of No.79 included the said dwarf concrete walls [it is expressed in the plural] and adjacent dwarf brick wall and the pier to an arch which accommodates No.81 (the defendant's property).” 
31.	As an assertion that is simply wrong in two respects. Granted, that is what the order on its face provides, but (as already explained and as accepted by counsel) the judge did not decide that the brick wall was part of No.79. On the contrary, it follows from his conclusion that the boundary runs along the eastern edge of the new plinth wall that the brick wall forms part of No.81. And so far as the arch is concerned, he did not find that the whole of the western pier of the arch lies within the boundary of No.79. He was taking as his reference point the eastern face of the buttress.
32.	The substantive grounds of appeal (or proposed grounds of appeal) are contained in paragraphs 6 and 7 of the amended grounds of appeal. Paragraph 6.1 to 6.3 inclusive refer to the expert evidence. In the first place, complaint is made that Mrs Mortimer‑Moore was not allowed to call Mr Turner and Mr Hewitt to give expert evidence. Secondly, it is complained that Mr Grosscurth exceeded his brief and gave opinion evidence which was inadmissible. Thirdly, it is asserted that the judge misunderstood the expert evidence. As to this last assertion, it is, I am afraid, Mrs Mortimer‑Moore and her advisers who have misunderstood the judgment. The judge's conclusions accord with Mr Grosscurth's opinion so far as the brick wall is concerned. As to the first and second grounds of complaint, I agree with Mr Warner that Mr Grosscurth did exceed his brief in giving opinion evidence, his brief being limited to issues of measurement. On the other hand, the judge had plenty more evidence before him to support the conclusions which he reached, most particularly the support stone coupled with the evidence of Mr Coates. Having concluded (a) that the outer (that is to say eastern) face of the support stone formed part of the boundary and (b) that “the line of the buttress, the outer face of the old support stone and the outer face of the plinth wall are in line with one another”, the conclusion almost inevitably follows that the western four and three quarter inches or so of the pier of the arch (that is to say that part of the pier which consists of the buttress) is part of No.79.
33.	As to the judge's refusal to allow Mrs Mortimer‑Moore to call Mr Turner and Mr Hewitt as experts, I can, for my part, see no basis at all upon which that refusal could be challenged in this court. The judge no doubt took the view, as he was fully entitled to do, that the District Judge's order should not be disturbed in this respect. Mr Warner has suggested that the judge did not realise that, despite the District Judge's order, the court still had a discretion as to whether or not to admit her expert evidence. I cannot accept that submission. I have no doubt that the judge was well aware of his powers in that respect.
34.	Paragraphs 6.4 and 6.5 of the amended grounds of appeal relate to the measurements in the documents of title, and this was an aspect of the application which was stressed by Mr Warner in his oral submissions this morning. It is submitted that the judge gave insufficient weight to such measurements, alternatively that he may not have taken them into account at all, and that he misunderstood the law concerning the accuracy of plans annexed to documents of title. In my judgment, however, the judge was entirely justified in concluding that in the circumstances of this case where there is, as I have said, no evidence of a common title, measurements on the deeds which are, in any event, expressed to be proximate, are of no assistance. Moreover, as the judge said, it was impossible to tell precisely where the measurements were taken from. In those circumstances, the degree of accuracy of the measurements is immaterial.
35.	A further ground of appeal to the effect that the judge wrongly described the frontages as “curved” is not pursued.
36.	Paragraph 7 seeks to challenge the judge's conclusions on the estoppel issues. As I have said, the judge made a number of findings of fact which are, in my judgment, unchallengeable in this Court. However, Mr Warner submits that an essential requirement of estoppel is detrimental reliance by the party seeking to set up the estoppel, and he submits that in the instant case there has been no detriment to Mr Costelloe by reason of his having relied upon the acquiescence of Mrs Mortimer‑Moore. In my judgment that submission is entirely unarguable in the circumstances of this case. One only has to observe that this dispute concerning a tiny area of ground has reached the Court of Appeal, and has taken an enormous amount of time on the part of the judge, the advocates, the solicitors and this Court, to see that Mr Costelloe's reliance on Mrs Mortimer‑Moore's acquiescence was indeed detrimental, should it be held that the boundary was not where he asserted it to be. In my judgment, therefore, there is nothing in the submissions made by Mr Warner on the subject of estoppel.
37.	Accordingly I would have no hesitation in refusing permission to appeal. At the same time I would make a direction, to which neither counsel objects, indeed to which both I think consent, that the form of order be brought into line with the judge's judgment so as to show that from the buttress northwards the true boundary between No.81 and No.79 lies along the eastern side of the new plinth wall and not as expressed in the order as it stands, along the eastern side of the adjacent brick wall.
38.	LORD MUSTILL: I agree, and there is nothing I can usefully add.
ORDER: Application dismissed with costs summarily assessed in the sum of £5,000 including VAT.
(Order not part of the approved judgment)