B2/02/1123
Neutral Citation Number: [2002] EWCA Civ 1287
IN THE SUPREME COURT OF JUDICATURE                                  
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT COUNTY 
COURT SITTING AT BASINGSTOKE
(HIS HONOUR JUDGE THOMPSON)
Royal Courts of Justice
Strand
London WC2A 2LL

Wednesday 28 August 2002
B e f o r e:

LORD JUSTICE PETER GIBSON

LORD JUSTICE TUCKEY

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NORMA ELEANOR GENEVIEVE FLACK
Claimant/Applicant

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PASQUALE LANZANTE
Defendant/Respondent
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)

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MR PIERS HILL (Instructed by Messrs Langshaw Kyriacou, London, WC1H 9JF) appeared on behalf of the Applicant.
The Respondent did not attend and was not represented.
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J U D G M E N T
1.	LORD JUSTICE PETER GIBSON: This case involves a boundary dispute. The claimant, Norma Flack, makes a renewed application for leave to appeal after permission was refused by Sir Philip Otton on paper. 
2.	On 19 September 1988 Mrs Flack conveyed to the defendant, Pasquale Lanzante, part of her land at Sleaford Farm, Bordon, Hampshire. The conveyance contained an exception and reservation of a right of way from the public highway over a driveway being part of the land conveyed. The driveway was shown on a small plan attached to the conveyance. The plan contained no measurements. The driveway led to two buildings, one of which was a workshop on the land acquired by Mr Lanzante, the other was an open garage retained by Mrs Flack. 
3.	After the conveyance, Mrs Flack obtained planning permission for another driveway on the land she retained. Her husband, Mr Flack, on behalf of his wife, and Mr Lanzante entered into negotiations for the release of the right of way over the driveway. On 10 October 1989, Mr Flack faxed Mrs Flack's solicitors a drawing prepared by him, “showing the dimensions of the existing drive as to what belongs to whom as Mr Lanzante wanted this clarified”. That was passed on by Mrs Flack's solicitors to Mr Lanzante's solicitors with Mr Flack's suggestion that the drawing be referred to in the proposed Release. But Mr Lanzante's solicitors preferred to use the plan in the 1998 conveyance. The Release was executed on 27 October 1989 and Mr Lanzante paid Mrs Flack £3,500 under the Release. 
4.	Mr Flack and Mr Lanzante had that month agreed on the exact placement of a fence which Mr Lanzante had erected on part of the boundary, and of a wall with a metre deep foundation which Mr Lanzante had built at a cost of £700 for the remainder of the boundary. The wall and fence show a line which contains a kink in it. If the line were straight, it would run directly between points E and D on the plan attached to the points of claim. With the kink, the line of the wall and fence runs between points E, G and D. The shallow triangle of land formed by the lines E to D, E to G and G to D are what this dispute is about. The fence and wall roughly follow the boundary shown on Mr Flack's drawing. 
5.	Some 11 years later, on 29 November 2000, Mrs Flack wrote to Mr Lanzante saying that the wall and fence had been built in the wrong place. On 26 July 2001 these proceedings were commenced in the Aldershot and Farnham County Court. She claimed an injunction to move the wall and fence between points E, G and D and a declaration that the true boundary ran between points E and D. In his defence and counterclaim, Mr Lanzante claimed that the Release was part of a wider express agreement, that it was Mr Flack's proposal that Mr Lanzante build a brick wall on part of the boundary and that the position of the fence and wall were agreed with Mr Flack as the boundary. 
6.	The issues on the pleadings were summarised in the case summary as being:
“1. Whether C and D agreed the position of the wall and fence line and whether they agreed that the wall and fence line would mark the boundary between their respective pieces of land, and if so;
2. Whether D believed that the wall and fence line marked the boundary and, if so, whether C encouraged him in that belief and, if so;
3. Did D act to his detriment in reliance on C's actions, and
4. In the circumstances should C be estopped from taking back de facto possession of C's land.”
7.	That statement of the issues did not in terms identify as a self-contained issue whether there was a boundary agreement as distinct from identifying the question whether there was an agreement as to a boundary as part of an estoppel issue. However, on 8 May 2002 (four days before the trial) Mr Lanzante's solicitors informed Mrs Flack's solicitors that they intended to rely on a boundary agreement in addition to a estoppel and to apply to amend the pleadings. The defendant's supplementary skeleton argument prepared by counsel also made clear that it was being argued that there was a new boundary agreement. 
8.	At the commencement of the trial before His Honour Judge Thompson QC, the application to amend was made. We have been told by Mr Hill, appearing today on behalf of Mrs Flack, that the judge indicated that it was not clear whether an amendment was necessary. He deferred his decision on that point. 
9.	The trial then continued with oral evidence. When the judge gave judgment on 15 May 2002, he held that there was a binding boundary agreement to locate the wall and fences on the line E, G and D. He said that it was not necessary for any amendment, the pleadings being sufficient. He further held, in case he was wrong about a boundary agreement, that Mrs Flack was estopped from resiling from the agreement between Mr Flack and Mr Lanzante. The judge found Mr Lanzante had relied on the agreement to his detriment in that he had expended £700 in building the wall. He had also paid Mrs Flack £3,500 for the Release and he had ceded part of his own land, 1.2 meters in depth as a surveyor subsequently ascertained, along the driveway to Mrs Flack. The judge held that it would be unconscionable for Mrs Flack to have the wall removed and to recover the disputed land. The judge, therefore, dismissed the action. 
10.	Mrs Flack seeks permission to appeal on 4 grounds. 
(1) She was prejudiced by the judge's decision to allow Mr Lanzante to advance the new argument on the boundary agreement without proper pleadings. 
(2) The judge erred in law on the boundary agreement, the boundary agreement being only binding if it is a genuine attempt to resolve a disputed boundary line. 
(3) The payment of £3,500 was not a detriment capable of founding an estoppel and the £700 cost of the wall was insufficient to give rise to an equitable interest.
(4) If (3) was wrong, the judge failed to consider other ways in which the equity could be satisfied. 
11.	I shall consider these in turn. 
12.	(1) Mr Hill submits that the issue of a boundary agreement was not pleaded nor raised in the agreed case summary, and there was insufficient time to examine files and to prepare argument on the point. In my judgment this ground of appeal has no prospect of success. 
13.	Whether or not there was an agreement as to where the wall and fence would be positioned was an issue raised in the pleadings. The legal consequences do not have to be pleaded, although the issue of a boundary agreement should have been in the case summary. However, Mrs Flack's legal advisers had four days' notice that the point was to be taken. Having regard to the overriding objective, I cannot see how the judge's decision on this point could successfully be challenged. Competent legal advisers should have been able to identify the minimal legal text book and case law authority on the point within the time and apply the law to the facts. There was no unfairness to Mrs Flack in a binding boundary agreement not being expressly pleaded. 
14.	There was no application made at the commencement of the trial for an adjournment. Mrs Flack's legal advisers were on notice that it was to be argued, and indeed it was argued, that there was a boundary agreement. If they had insufficient time to prepare themselves for the point, they should have applied for an adjournment at the outset. Given that the case had been set down for a hearing for several days it would have been a poor use of time for there to have been an adjournment. In my judgment this point fails. 
15.	(2) Mr Hill's second argument rests on the premise that there can be no boundary agreement unless it constitutes a genuine attempt to resolve a disputed boundary line. He has referred us to the decision of this court in Penfold and Penfold v Cooke (1978) 128 NLJ 736 as authority for that proposition. Having looked at the transcript of the judgments in that case, I am not persuaded that it supports the premise. The trial judge had found that there was a boundary agreement which gave one party as much as three quarters of an acre of land. It is clear from the judgments of this court that the court thought that the judge was not justified in drawing an inference that the parties had agreed that the position where a fence was placed was the boundary between them. The parties' main, if not only, concern was their interest in preventing the trespass of one party's cattle. The precise line of any boundary or fence was of secondary, if any, importance. It was in that context that Geoffrey Lane LJ said, “I do not believe that this situation could amount to a settlement of a boundary dispute between the parties when in truth there was no such dispute to be settled”. 
16.	I accept as correct the statement in Emmet on Title, 17.012: 
“Where the boundaries are not fixed with certainty in the title deeds, disputes as to their lines may be settled or forestalled by an agreement on the ground which effectively determines the parties' parcels for the future. Such an agreement has been held to require neither evidence in writing nor registration as an estate contract in order to bind successors in title: Neilson v Poole (1969) 20 P&CR 909.” 
17.	The editor points out that the Neilson case was followed by this court in Burns v Morton [1999] 3 All ER 646. I emphasise the words in Emmet “...disputes ... may be forestalled ... by an agreement”. That does not support the notion that there must be some extant dispute. It is important that there should be consideration moving from each party, but where there is uncertainty as to the boundary line and that uncertainty is removed by an agreement as to the precise line of the boundary, each party provides consideration to support the contract. Every boundary identified by reference to a plan is uncertain unless the plan is sufficiently detailed and precise in its measurements or description to permit of no argument. 
18.	The plan in this case was not precise; hence Mrs Lanzante's uncertainty, referred to by Mr Flack in his fax, and his attempt to be precise in his drawing with measurements. It was only when the surveyor was brought in that the true position of the boundary, according to the parties' paper title, was ascertained. That showed the line of the wall and fence was too generous to Mr Lanzante at some points and too generous to Mrs Flack at other points. 
19.	I see no reason in principle why the parties' agreement as to the line of the fence and wall on the ground should not constitute a binding agreement. That is supported by the remarks of Megarry J in the Neilson case where he said at 918:
“A boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land.” 
20.	The judge found in the present case that neither party was consciously intending to convey and exchange land when they agreed the boundary line. Mr Hill has argued that the case falls within the first type of boundary agreement referred to by Megarry J. I do not agree. That is not sustainable on the facts as found by the judge. 
21.	Mr Hill has drawn attention to the concern of Mr Lanzante that he should have sufficient land to enable vehicles which he wished to come on to the driveway to turn. That does not indicate that Mr Lanzante was aware, still less that Mr Flack was aware, that Mrs Flack was giving up land inconsistently with the conveyance in 1988. 
22.	In my judgment, on the facts as found by the judge, there is no real prospect of an appeal succeeding on this ground either. 
23.	(3) and (4) Mr Hill did not address us on his third and fourth arguments. I do not suggest that he abandoned them but, if he fails on the first two grounds, as in my judgment he does, this appeal cannot succeed. 
24.	Mr Hill drew our attention to the fact that there is little authority on the points sought to be raised in the appeal. In my judgment the law is tolerably clear. I do not see that this provides a compelling reason for this appeal to go ahead. 
25.	For these reasons, I would refuse this application. 
26.	LORD JUSTICE TUCKEY: So would I. 
Order: Permission to appeal refused.