Brick wall built to replace fence along common boundary — Dispute arose as to how far wall extended — Consequential use of wider access with leave or license of neighbour — County court holding that plaintiffs had granted to defendants gratuitous licence for increased access revocable at any time upon reasonable notice — Court of Appeal discharging court order and directing new trial
Two properties at 1 and 2 Rosedale Close, Carlton Colville, Lowestoft, Suffolk, were divided by an east-west boundary. The plaintiff’s obligation was to maintain the fence between the two properties. In about 1982 the defendants obtained permission from the plaintiffs to replace the boundary fence with a brick wall. A dispute arose whether the wall extended as far as the fence it replaced; and if it did not, whether the consequential use by the defendants of wider access to their property was or was not with the leave or licence of the plaintiffs. It was an important part of the defendants’ contentions that early in 1980, soon after their purchase, they erected two matching metal gates across the gap between the end of the boundary fence and the western boundary of the property. The width of the existing gap was the width of the gates, plus posts at either end and the addition of fencing panel, giving a total width of 19ft 3ins. The defendants claimed that conclusively established that the boundary fence ended at the point where the wall now ended. The county court decided that the boundary fence ended no more than 15ft from the western boundary and that consequential use by the defendants of the wider access once the wall was built had been by the plaintiffs’ leave and licence. The defendants appealed.
Held The appeal was allowed, the judge’s order discharged and a new trial ordered before another judge.
1. As the judge found that on the evidence there was an agreement to create at will revocable on reasonable notice there was no basis on which the defendants could show either the expectation or the encouragement necessary to establish some larger right under the doctrine of proprietary estoppel.
2. However, the failure of the judge to examine the evidence as to the erection of gates by the defendant demonstrated that he did not grasp the significance of one of the most important issues in the case. It also cast doubt on his assessment of the reliability of the witnesses on each side: see Yuill v Yuill [1945] P 15. Therefore, the Court of Appeal had to examine the evidence for itself.
3. Although it was open to the judge the prefer the plaintiffs’ evidence it was a matter for comment that neither spoke of using the gates whereas the defendants’ witnesses had used them regularly between 1980 and 1982. The point having assumed the importance it had, the conflict in the evidence could not be satisfactorily resolved merely by the expression of a general preference for the evidence of the plaintiffs’ witnesses.
4. In the circumstances it was clear that the decision of the judge could not stand. There was a real possibility that justice had not been done. However, the Court of Appeal could not decide the case itself not having seen or heard the witnesses. Consequently a new trial was ordered.
Graham Sinclair (instructed by Powleys, of Lowestoft) appeared for the appellants; Simon Redmayne (instructed by Norton Peskett & Forward, of Lowestoft) appeared for the defendants.
