When a longstanding fence is pulled down before anyone can record exactly where it stood, determining a boundary can become a battle of photographs and wills.
Background:
Two neighbouring households fell into dispute over the precise line dividing their land. The applicants had held their property on a long lease since 1981 and later acquired the freehold in 2018. Their neighbours had bought the adjoining land in 2015 and developed it, building a new access road, several bungalows and a house.
For decades, a line of fencing – which had remained in place before the applicants ever moved in – had demarcated the respective properties. During later development works on the adjoining land, the neighbour had removed the old fencing and erected its replacement on a slightly different line. When the applicants asked HM Land Registry to have their boundary formally determined, the neighbour objected, and the matter was referred to a tribunal.
By the time of the hearing, both sides had dropped references to an alleged agreement over the new fence and adverse possession. Strikingly, they had found agreement on the governing principle, namely that the true boundary lay where the previous fencing had stood. The dispute therefore narrowed to a single question of fact: where exactly had the original fence line stood?
Decision:
The First-tier Tribunal (FTT) found in favour of the applicants, directing the Chief Land Registrar (CLR) to give effect to their application as though the neighbour's objection had never been raised (it should be noted that the FTT does not technically grant the boundary determination itself, but rather it decides whether an objection is groundless or well-founded, and then directs the CLR to either give effect to or cancel the application).
The application was brought under Section 60 of the Land Registration Act (LRA) 2002, which allows a registered proprietor to have the exact line of a boundary determined. On the facts, the Judge rejected each of the neighbour's photographic challenges, holding that distances could not reliably be read from images taken at such awkward angles. Moreover, he was not satisfied that the former fence line had been wrongly plotted, opted to determine the true boundary based on the expert's compliant plan, and left the costs, albeit provisionally, where they fell.
Implications:
The crux of this case is that you should never remove a longstanding boundary feature, be it a fence, hedge or wall, without first recording precisely where it stood. This dispute arose entirely because the old fencing was taken down during building works, leaving both sides arguing over a line that had no discernible trace. A few dated photographs by a surveyor or a quick formal survey could very likely have avoided years of conflict.
For anyone buying, selling or developing land, this case is a reminder that registered title plans are imprecise, as the "general boundaries" shown on the register are just that, and do not purport to present a precise, definitive line. Where certainty matters, especially before or after development, a determined boundary application is the proper route, although whether it succeeds or fails depends on physical evidence and a plan drawn to Land Registry standards. As such, a definitive line cannot rest on old deeds or family recollection.
This decision also underlines how important it is to handle expert evidence correctly. Permission is needed before an expert report can be relied upon, and experts are normally expected to meet and narrow their differences. Any attempts to circumvent such steps may lead to further cost and delay.
Finally, ‘winning’ is not substantially the same as recovering your costs. Even the more successful of the two parties in this case was left to pay their own legal fees.
