Rashid & Anor v Sharif & Anor [2014] EWCA Civ 377

[2014] EWCA Civ 377Case No B2/2013/0407
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
DISTRICT JUDGE LANGLEY
0CL10535
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/03/2014
Before
LORD JUSTICE JACKSONLORD JUSTICE ELIAS
Between
(1) MR ABDUL RASHIDClaimants/(2) MRS PARVEEN AKHTARRespondents(1) MR NADEEM AHMEN SHARIFDefendants/Appellants(2) MRS GULZAR SHARIFAppellant
Mr Marc Glover (instructed by Rainer Hughes) for AppellantsMr Oriel Hinds (instructed by Legal Solutions) for RespondentsHearing Hearing date: 20th February 2014

Judgment

[1]This judgment is in four parts, namely: Part 1. Introduction

Part 1. Introduction

[2]This is an appeal in a boundary dispute. The central issues are(a) whether the defendants have committed a trespass by constructing a shed at the end of their garden at a point where the claimants’ back garden and the defendants’ back garden meet and(b) whether the defendants should be ordered to demolish the north wall of their shed.[3]There are two parallel roads in Ilford called Rutland Road and Dudley Road. The back gardens of the houses in Rutland Road abut the back gardens of the houses in Dudley Road.[4]Many of the residents in both roads have constructed outbuildings at the ends of their gardens. Some are built of wood and some are built of breeze blocks. Some of these outbuildings are used as store rooms. Some are used as workshops or put to other uses. Without intending any disrespect, I shall refer to all of the outbuildings at the ends of the gardens as “sheds”.[5]Unfortunately the recording equipment in the courtroom at the Central London County Court where this action was tried was not functioning. So no transcript of the evidence or judgment is available.[6]Counsel have agreed a note of the judgment which was given by District Judge Langley, the trial judge. The judge has approved that note with a small number of manuscript amendments. That note of the judgment appears at pages 44 to 53 of the appeal bundle. I have numbered the paragraphs on each page of the note of the judgment, for ease of reference.[7]In so far as I refer to the oral evidence given by witnesses at trial, I derive this either from the judge’s summary of the evidence or from what counsel have told the court without contradiction.[8]After these introductory remarks, I must now turn to the facts.

Part 2. The facts

[9]During the 1980s Mr Chaudary Khalid Hussain owned and occupied 16 Rutland Road, Ilford in Essex. The plan annexed to this judgment shows the location of that property. It can be seen that the back garden of 16 Rutland Road abuts the back garden of 11 Dudley Road. The two properties are not completely in line. A small part of the back garden of 16 Rutland Road abuts a small part of the back garden of 9 Dudley Road.[10]As can be seen from the plan, the division between the Rutland Road properties and the Dudley Road properties is a line running east/west roughly at right angles to the eastern boundary wall of the Cleveland Schools.[11]A wooden fence used to run from east to west along the line where the Rutland Road gardens and the Dudley Road gardens met. It seems to me likely that originally the fence ran along the entire length of the two lines of properties. Whether or not that is right, there was certainly a fence at the bottom of the gardens of 14, 16 and 18 Rutland Road in the 1980s.[12]On an unknown date Mr Hussain removed the fence at the bottom of his garden and built a low brick wall to replace it. All parties have referred to this wall as the “historic brick wall” and I will do the same. Whether Mr Hussain built the wall along the boundary line or to one side of the boundary line is a question to which I shall return in Part 4 below.[13]In 1991 the claimants purchased 16 Rutland Road from Mr Hussain. For the next ten years the claimants let that property to tenants.[14]In 1996 Mr Sajjad Sharif purchased 13 Dudley Road. Ever since then he has lived there with his wife and children.[15]In 2001 the tenants left 16 Rutland Road and the claimants moved into that property. In the same year the claimants built a shed at the bottom of their garden. The west side of this shed was up against the boundary fence between 16 and 14 Rutland Road. On the eastern side there was a gap between the shed and the boundary fence of 18 Rutland Road. Thus the claimants could walk down their garden and by going to the left of their shed they could reach the historic brick wall. Mr Rashid says that he sometimes did this in order to maintain the rear wall of his shed.[16]Subsequently Mr Rashid built a five foot high breeze block wall between the back of his shed and the boundary of 18 Rutland Road. In the photographs this wall spans the gap between the claimants’ shed and the side fence of 18 Rutland Road. Mr Rashid’s evidence was that that fence was built seven or eight years ago. Since then he has had no access from his garden to the historic brick wall or the back of his shed.[17]In March 2009 the defendants purchased 11 Dudley Road. The first defendant, Nadeem Sharif, is the younger brother of Sajjad Sharif. The second defendant, Mrs Gulzar Sharif, is the mother of Sajjad and Nadeem Sharif. Mr Mohammed Sharif is the husband of Mrs Gulzar Sharif and the father of Sajjad and Nadeem Sharif.[18]Ever since March 2009 Mohammed, Gulzar and Nadeem Sharif have lived at 11 Dudley Road. This is convenient because other members of the Sharif family live next door at 13 Dudley Road.[19]Nadeem Sharif was at the relevant time a university student. Although Nadeem Sharif and his mother, Gulzar Sharif, are the defendants, neither of them has played an active part in the events that are subject to this litigation. They are the owners of 11 Dudley Road and of the shed which is said to constitute a trespass, but they have left matters in the hands of Sajjad and Mohammed Sharif.[20]The Sharifs decided to build a shed at the end of the back garden of 11 Dudley Road. Sajjad and Mohammed Sharif engaged Mr Fakhar Cheema, trading as DC Construction, to build the shed at the end of the garden of 11 Dudley Road and also to carry out a loft conversion at 13 Dudley Road.[21]Mr Cheema carried out the agreed construction work in the summer of 2009. He demolished the historic brick wall save for a small section between 16 Rutland Road and 9 Dudley Road. He constructed the shed out of breeze blocks. He used what remained of the historic brick wall within the ground as the foundations for the north wall of the new shed. Thus the north wall of the defendants’ new shed was built along the line of the historic brick wall.[22]There were discussions between the parties, both before building works started and during the course of the works. I need not go into those matters, although they were the subject of much evidence at trial. Suffice it to say that the judge has held that Mr Rashid did not consent to the Sharifs building the shed where they did.[23]It is not disputed that the claimants protested strongly when the works were far advanced. Mr Rashid demanded that the Sharifs should demolish the northern part of the new shed and rebuild it on their own land. The Sharifs refused to do this.[24]There were attempts at mediation with the assistance of others in the community. These came to nothing. In order to vindicate what they believed to be their rights, the claimants issued the present proceedings.

Part 3. The present proceedings

[25]By a claim form issued in the Ilford County Court on 8th July 2010 the claimants claimed against the owners of 11 Dudley Road damages for trespass and an injunction requiring them to remove the rear wall of their shed.[26]The claimants’ case as originally pleaded was that they had built their shed set back from the historic brick wall; the west end of their shed was 100 mm back from the wall; the east end of their shed was 700 mm back from the wall. The claimants pleaded that the defendants had constructed their shed up against the claimants’ shed; thus the defendants were trespassing on the claimants’ land.[27]The defendants served a defence, denying the alleged trespass. They denied that their shed was constructed up against the claimants’ shed. In paragraph 15 of their defence the defendants asserted that the legal boundary lay along the outside face of the north wall of their new shed. Since that wall was built along the line of the historic brick wall, the defendants were in effect contending that the entirety of the historic brick wall had been built on their land.[28]The defendants also asserted that the claimants had consented to the construction of the defendants’ shed in its current position. The defendants advanced ingenious pleas of proprietary estoppel, irrevocable licence and adverse possession.[29]The defendants advanced a counterclaim in which they sought declarations confirming their ownership of all the land on which their shed stood. They also sought, if necessary, rectification of the land registry plans, alternatively a declaration that they had an irrevocable licence to occupy the disputed land.[30]In due course the action was transferred to the Central London County Court. District Judge Langley managed and tried the case. She gave directions for the exchange of factual witness statements and expert reports. Very sensibly, the judge also made a site visit in order to inspect the gardens and the sheds of both parties.[31]The action came on for trial in January 2013. The claimants’ factual witnesses were Mr Rashid, Mr Hussain, Mr Odedra (the owner of 14 Rutland Road) and Mr Shah, who had attempted to mediate between the parties. The defendants’ factual witnesses were Sajjad Sharif, Mohammed Sharif and Mr Cheema, the builder. At the time of the trial Mr Hussain was ill and in hospital. His written witness statement was received in evidence, but there was no opportunity to cross-examine him.[32]Mr Shahlab Baig, a chartered surveyor and civil engineer, was the expert witness for the claimants. Mr Matthew Chandler, a chartered surveyor, was the expert witness for the defendants. Both experts produced reports, plans and photographs for the assistance of the court. In dealing with this appeal I have gained considerable assistance from the material produced by both experts. I express my appreciation of their work.[33]There was a significant development during the course of the trial. With Mr Odedra’s consent, Mr Rashid went into the garden of 14 Rutland Road and removed some plaster and bricks at the west end of the claimants’ shed. He then took photographs looking along the line of the gap between the claimants’ shed and the shed belonging to 9 Dudley Road. These photographs show that the west end of the claimants’ shed was built hard up against the historic brick wall. They also show that the rear wall of the defendants’ shed is a breeze block wall built directly on top of the historic brick wall. Thus at the west end the defendants’ shed and the claimants’ shed are physically abutting each other.[34]It can be seen from photographs taken by Mr Chandler when he was standing on the shed roofs that the claimants’ shed roof and the defendants’ shed roof are touching one another at the west end. At the east end, however, there is a gap between the two shed roofs.

The judge drew two important conclusions from the evidence:

[35]i). The north wall of the defendants’ shed was built along the line of the historic brick wall (judgment, page 52, paragraph 6). ii). The shed at 16 Rutland Road was not built square on its plot. Hence the east end of the claimants’ shed was set back from the east end of the defendants’ shed, as illustrated in Mr Chandler’s plan and photograph (judgment page 49, paragraphs 3 to 4).[36]These conclusions are plainly correct. Thus the claimants’ pleaded case that the defendants’ shed extended to the north of the historic brick wall could not succeed. Thus the crucial question became who owned the (now demolished) historic brick wall. The claimants asserted that it stood on their land. The defendants asserted that it stood on their land.[37]The defendants’ alternative case was that the historic brick wall was built actually on the boundary and thus it constituted a party wall. Since this would be a party wall dividing two gardens, rather than two parts of a single building, it would fall into the category “party fence wall”: see Bickford-Smith and Sydenham, Party Walls (3rd edition, 2009), pages 9-10.[38]The judge correctly identified the ownership of the land on which the historic brick wall had stood as the crucial question. Her findings in relation to this question were as follows: “8. There is no evidence before the court that the position of the historic brick wall was the cause of issue or complaint with either 9 or 11 Dudley Road or their owners so it is not unreasonable to assume that it was built in the same place as the wooden fence that it replaced. 9. It was clearly done before Mr Rashid purchased the property in 1991 and as the defendant and other members of the family did not purchase 13 Dudley Road until 1996 they would not have lived in the road when the historic brick wall was erected. That does leave open the issue as to whether a historic brick wall was built completely in the garden of 16 Rutland Road so that the south side of it was along the boundary of 11 Dudley Road or alternatively whether it was a party wall or even a space between the south side of the historic brick wall where the boundary was situated. 2. The claimants have not pleaded in the particulars of claim that the historic brick wall was a party wall and the clear evidence from Mr Hussain was that he did not treat it as such. It was also not treated as such by Mr Rashid at any point. The view is that Mr Hussain always treated it as his wall and it was his sole responsibility. Mr Rashid has also accepted that this was the situation before 1991 and it must be difficult for the defendant to assert now that this historic brick is or was a party wall. 3. If the court accepts that the historic brick wall was built on the plot of 16 Rutland Road it must mean that the boundary is the south side of that wall, or further south from it. It does appear that Mr Hussain treated the south side of the wall as the effective boundary line.” (judgment, pages 47-48) … “6. Mr Odedra’s evidence was that the historic brick wall did remain as proved by Mr Rashid on production of the photographs and it shows that the historic brick wall ran along the rear of 16 Rutland Road and extended to 9 Dudley Road and coincided with the boundary. 7. I do not accept that there is any clear evidence that the historic brick wall was extended by Mr Hussain to number 13 Dudley Road, and although it is conceivably possible that someone else may have done that, I do not regard this as being relevant to my finding. 8. I do accept Mr Rashid’s evidence that he was told by Mr Hussain that the historic brick wall was his and this was corroborated by the evidence of Mr Hussain and I find that it was situated on his land. 9. It follows from that, that the boundary must lie along the south side of the historic brick wall or further south from it and when the defendants or rather Mr Mohammed Sharif instructed Mr Cheema to build the store at 11 Dudley Road and in doing so demolished the historic brick wall that ran along the rear of 11 Dudley Road, the defendants committed a trespass to the claimants’ land and their property and this also accords with the evidence that the stores at 7 and 9 Dudley Road were built back from the boundary.” (judgment page 51)[39]Accordingly the judge held that the historic brick wall and the land upon which it stood belonged to the owner of 16 Rutland Road. Initially that was Mr Hussain. Latterly the owners were the claimants. The judge added an alternative finding to the same effect, based upon adverse possession. In the second half of paragraph 5 on page 52 she said:
“After a period of 19 years after positioning of the historic brick wall remaining unchallenged, the claimant has established a right to the land.”
[40]On the basis of those findings the judge granted an injunction. She ordered the defendants to remove the rear wall of their shed and to reinstate the historic brick wall. It is implicit in the judge’s order that the defendants would then be at liberty to build a new north wall for their shed up against the restored historic brick wall. Since the historic brick wall was 225 mm wide, the effect of the judge’s order would be to reduce the depth of the defendants’ shed by 225 mm (approximately 9 inches). The judge made no separate award of damages.[41]The defendants were aggrieved by the judge’s decision. Accordingly they appealed to the Court of Appeal.

Part 4. The appeal to the Court of Appeal

[42]By an appellant’s notice dated 13th February 2013 the defendants appealed against the judge’s decision. In that notice the defendants advanced a number of detailed points, all of which were elaborated in their skeleton argument. Despite that, I shall concentrate on the main points as they were refined and developed during the oral hearing of the appeal.[43]Some weeks after the claimants had served their appellants’ notice, the Central London County Court sent to the parties a plan on which the judge had marked the boundary line between the claimants’ property and the defendants’ property. Quite when this was done is unknown; it may have been very shortly after she had given judgment, or it may have been much later. As counsel have pointed out, there are inconsistencies between that plan and the findings set out in the judgment. The judge did not have the assistance of counsel when she was doing this exercise. In the circumstances I propose to disregard the plan subsequently sent by the court and to concentrate on the findings in the judgment.[44]Mr Marc Glover, who appears for the defendants, concentrates his attack upon the judge’s finding that Mr Hussain built the historic brick wall on his own land. He submits that the judge misunderstood Mr Hussain’s evidence and thus she fell into error at paragraph 8 on page 51.[45]Mr Oriel Hinds, who appears for the claimants, submits that the judge heard the evidence. She visited the site and she appraised the witnesses. This court should not interfere with the judge’s findings of fact.[46]In the ordinary way I would agree with Mr Hinds’ submission. In this case, however, I consider that the judge fell into error in paragraph 8 on page 51 of the judgment. Contrary to the judge’s statement in that paragraph Mr Hussain’s evidence was not to the effect that he built the historic brick wall on his own land.[47]The totality of Mr Hussain’s evidence is contained in his witness statement. He did not give oral evidence for the reasons explained in Part 3 above. In paragraphs 3 to 5 of his statement Mr Hussain says:
“3. I confirm that I am the previous owner of the property. Originally there was a wooden fence dividing the boundaries of my property and the property at the rear i.e. 11 Dudley Road. 4. I further confirm that during my ownership, I replaced the wooden fence with a brick wall in line with the wooden fence then existing on both sides of my property namely 14 Rutland and 18 Rutland properties. 5. I recall that the said brick wall also covered some part of the boundary between (the then) my property and 9 Dudley Road.”
[48]In effect, Mr Hussain is saying that he built the wall actually on the boundary between his back garden and the back gardens of numbers 9 and 11 Dudley Road. The pre-existing wooden fence marked the boundary between the Rutland Road and Dudley Road properties. The judge accepts that the historic brick wall was built along the line of the fence (judgment page 47, paragraph 8).[49]In paragraph 7 of his statement Mr Hussain says that he maintained the brick wall. That, however, does not mean that the structure was entirely built on his own land. Since the historic brick wall was 225 mm thick and it went along the line of the former fence, the natural inference is that it was a party fence wall. In other words the wall was built partly on the land of 16 Rutland Road and partly on the land of 9 and 11 Dudley Road.[50]Mr Hussain was the claimants’ witness. The claimants’ solicitor interviewed him and prepared his witness statement. If Mr Hussain was willing to say that he built the entire width of the wall on his own garden, the solicitors would surely have included that in his witness statement. Indeed it would have been the most important part of his witness statement. Mr Hussain’s witness statement contains no such assertion. Mr Rashid said in evidence that Mr Hussain had told him that the historic brick wall was situated on his own land. That hearsay evidence differs from Mr Hussain’s witness statement. In my view, in the circumstances of this case, it was not open to the judge to accept hearsay evidence of what Mr Hussain had said, when that hearsay evidence differed from Mr Hussain’s own evidence.[51]It is significant that Mr Odedra’s evidence (which the judge accepted) was that the historic brick wall “coincided with the boundary”: see judgment, page 51, paragraph 6.[52]At page 51 of the judgment, paragraph 2, the judge records the agreed fact that the sheds in the back gardens of 9 and 7 Dudley Road had been set back from the original boundary. It can be seen from the photograph taken by Mr Rashid and also from photograph five annexed to Mr Baig’s report that the back wall of the shed of 9 Dudley Road directly abuts the remains of the historic brick wall. This is inconsistent with the proposition that the historic brick wall was built entirely within the garden of 16 Rutland Road.[53]I am driven to the conclusion that, despite the care which she took in respect of other aspects of the case, the judge fell into error on this particular point. The historic brick wall was not built entirely on Mr Hussain’s land (now the claimants’ land). It was a party fence wall.[54]In the circumstances the judge’s reference to adverse possession cannot assist the claimants. The fact that a party fence wall had stood for many years partly on the land of 16 Rutland Road and partly on the land of 9 and 11 Dudley Road does not give rise to a claim of adverse possession.[55]What are the consequences of this analysis? The defendants and their family demolished the party fence wall between their garden and the claimants’ garden. They then built a new and taller wall along the line of the demolished wall. In effect they constructed a new party fence wall and this formed part of the structure of the defendants’ new shed.[56]The judge has rejected the defendants’ evidence that Mr Rashid agreed to what the defendants were doing. Therefore the defendants were not entitled to carry out such substantial works to the party fence wall without(a) serving the appropriate notices under the Party Wall etc Act 1996 and(b) following the statutory procedures to secure permission. The defendants did not do this.[57]In those circumstances the defendants’ execution of works to the party fence wall constituted a trespass: see Bickford-Smith and Sydenham (supra) at pages 34-35 and 163. Nevertheless this was not as serious or as extensive a trespass as that which the judge found.[58]Neither party has succeeded on its case as pleaded. Indeed that was so by the end of the trial, as new facts emerged from the evidence. The judge did not treat either party as strictly tied to the details of their cases as originally pleaded.[59]Both parties’ detailed arguments have mutated as further evidence emerged. Nevertheless the core case of the claimants has always been that the construction of the north wall of the new shed constituted a trespass. The core case of the defendants has always been that it was not a trespass. Ironically, the claimants’ original pleaded case was that the historic brick wall was a party wall, but this subsequently became their fallback case: see paragraphs 3 to 5 of the particulars of claim and paragraph 15 of Mr Hinds’ skeleton argument in the Court of Appeal.[60]What then is the appropriate order, in the light of my conclusions as set out above? The defendants’ counterclaim must be dismissed. As to the claimants’ claim, the defendants are liable for trespass, but the extent of the trespass is more modest than that found by the judge. The claimants’ shed and the adjoining five foot high brick wall prevent the claimants from gaining access to the area where the trespass has occurred. In the circumstances the mandatory injunction granted by the judge cannot stand. The appropriate order is for damages in lieu of an injunction.[61]This is a very modest trespass. If the appropriate notices had been served and the procedures under the Party Wall etc Act 1996 had been followed, the rear of the defendants’ shed may have ended up where it now is. Alternatively, the defendants could have built their shed wall 9 inches further back without the need for any notices. I assess damages for trespass, in lieu of an injunction, at £300.[62]I turn now to the question of costs. The claimants have succeeded on their claim but only to a modest extent. The defendants failed on their counterclaim. The defendants succeeded in part on their appeal, in that they remain liable for trespass but the remedy is now damages, not an injunction. I have examined the costs incurred by both parties(a) in relation to the proceedings below and(b) in relation to the appeal. The settlement proposals made by both parties were wildly unrealistic. Having considered the degree of success achieved by each of the parties and the costs incurred at each stage of the litigation, I would make the following[63]I agree.

order

i). There be no order in respect of the costs of the claim. ii). There be no order in respect of the costs of the counterclaim. iii). There be no order in respect of the costs of the appeal. In other words each of the parties will bear its own costs of the entire litigation.

Cited in 1 later judgment