Austin Pickering & Anor v Rita Mensforth [2026] UKFTT 449 (PC)

FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Between
Austin Pickering & AnorApplicant / claimantRita MensforthRespondent / defendant

Applicants

[1]Introduction 1.1. The Applicants have been the registered proprietors of the freehold title to the premises which are known as 1 Derwent Mews, Spennymoor, County Durham since 1st May 1991. They applied on 9th August 2023 in Form DB to determine the position of the western boundary of their land with the eastern boundary of the Respondent’s land. 1.2. The properties are separated by a small roadway to the rear of Derwent Terrace which is tarmaced but of law quality. For convenience, I shall refer in this decision to the roadway as “Derwent Terrace”. 1.3. I had the benefit of viewing the site in advance of the hearing and the conclusions which I express below are informed by my observations on that occasion. In particular, it is important to record that in the course of the site visit various measurements were taken using a conventional long tape measure. 1.4. The Applicants rely heavily upon the measurements of the boundaries of their land as they are shown on the plan to a conveyance of it dated 4th April 1984. The relevant ones are: the northern boundary at 147’; and the eastern boundary 70’ – see Figure 1 below.[8]Figure 1 1.5. It is the Applicants’ case that the northern boundary could be measured from the northernmost of the fence posts which they say mark the original position of the eastern boundary of their land. The position of these fence posts is shown on the DB Plan which is annexed hereto (“the Plan”). Measuring 147’ from that fence post in a westerly direction towards the disputed boundary, the end point was in the middle of Derwent Terrace, more than a metre beyond the western edge of the concrete pad, which is the limit of the Applicants’ claim. 1.6. The Respondent contended, amongst other things, that the fence post from which the Applicants contend the northern boundary should be measured was not in the north eastern corner of the plot conveyed and that it was necessary to measure the length of the eastern boundary from the south eastern corner of the plot northwards in order to determine the position of the north eastern corner of the plot and then and to measure the northern boundary from that north eastern corner. That measurement of the eastern boundary was made from the point marked “Original Fence” on the Plan with the result that the north eastern corner of the plat was approximately a metre beyond the northernmost of what the Applicants contended were the original fence posts. The northern boundary was then re-measured from that point, with almost precisely the same result. 1.7. I record these observations because, although nothing which was done or said in the course of the site visit constituted evidence, as such, these observations informed and were the subject of much of the evidence, discussion and submissions during the course of the hearing. Accordingly, those observations form part of the evidence to which I must have regard. 1.8. The final point to mention is that Ms Cheetum was clear throughout that her clients’ claim as to the position of the disputed boundary was limited to the outside (western) edge of the concrete pad which the First Applicant said he had laid between his ‘boundary’ fence and the tarmac surface of Derwent Mews. That is to say, the Applicants do not claim the full extent of the land which the measurements described above would indicate is within their title. 1.9. Unfortunately, although the Applicants’ position was clearly stated by Ms Cheetum, the plan which accompanied the referred DB application (“the Plan”) was not included within the hearing bundle. It was only produced towards the end of the hearing. The plan which was included within the bundle was a Promap plan, which accompanied the Applicants’ first DB application. That application had been rejected by HM Land Registry because the plan did not meet the requirements of its Practice Guide for plans accompanying DB applications in that it did not pretend to have been prepared to the required degree of accuracy. 1.10. There is, however, a more significant problem with the correct DB plan. As may been seen from Figure 2 below, the claimed boundary l[15]Figure 2 1.11. This is a significant problem which I will have to address further below. 1.12. It is also worth stating at this juncture what “the matter” referred to the Tribunal with which this decision is solely concerned does not include. The dispute between the parties which gave rise to the Applicants’ application concerned rights to park on the land immediately outside the gateway to the Applicants’ property, namely the concrete pad. Whether that land is, or is not, within the Applicants’ title, which is a part of the matter which I have to decide, will not be determinative of the question whether the Applicants or anyone else is entitled to park on that land and I will not determine that question. That is, naturally, somewhat unfortunate but it is to be hoped that clarity about the position of the boundary between the Applicants’ land and the Respondent’s may assist the resolution of such further or other disputes as may exist or arise.[2]The conveyancing history 2.1. As I have said, the Applicants’ case is founded upon the plan to the conveyance dated 4th April 1984 (“the 1984 Conveyance”). That conveyance was made between Henry Robinson, of 79 Derwent Mews (the adjoining property), and Ross Hodgson and was of the parcel described as ‘land at Derwent Terrace, Spennymoor … more particularly delineated on the plan annexed hereto [of which Figure 1 is an extract] and thereon coloured round in red …”. The parcel of land was conveyed together with the benefit of a right of way over the land coloured blue on the plan to the conveyance. The precise identity of the land coloured blue is one of the matters which I will need to determine but it is sufficient for present purposes to say that it comprises that part of Derwent Terrace which enables access via its southern entrance to the Applicants’ property. 2.2. The schedule to the 1984 Conveyance refers to four instruments which are of significance for the purpose of understanding how the Applicants’ land came to be defined as it was by the plan to the 1984 Conveyance, when they are put together with: the evidence of Mr Truswell and the plan to a conveyance dated 11th May 1950 of the land within the Respondent’s title to which he refers; and the extracts from that conveyance (which has not apparently survived) which are recorded as part of the Respondent’s title. Those documents are: 2.2.1. A conveyance dated 11th May 1950 and made between William Passet, Alfred Askew and Frank Sherratt of the one part and Wilfred Lightfoot of the other part (“the 1950 Conveyance”); 2.2.2. An assent dated 5th February 1968 and made between Bruce Lightfoot and Hazel Robinson of the one part and Hazel Robinson of the other part; 2.2.3. Letters of administration dated 19th September 1979 in respect of the estate of Hazel Robinson deceased; and 2.2.4. An assent in favour of Henry Robinson in respect of the estate of Hazel Robinson. They show how the land conveyed to Mr Hodgson by Mr Robinson in 1984 came to be vested in him. 2.3. The 1950 Conveyance has survived and was exhibited to the witness statement of Mr Trevor Humphries who is the current owner of 79 Derwent Terrace, it is at pp. 107 ff of the Hearing Bundle. The plan to it, which is extracted below as Figure 3, shows that the land conveyed to Mr Hodgson by the 1984 Conveyance formed part of a larger parcel which included both the land on which 79 Derwent Terrace now stands and the property which was then known as 37 Barnfield Road. 2.4. The 1950 Conveyance also granted a right of way for the benefit of the land conveyed over what is now Derwent Terrace and reserved for the benefit of the sellers and their successors in title a right of way over the land which appears to be coloured orange on the copy of the plan in the bundle but which is described as being yellow by the conveyance, that is to say the southern access into Derwent Terrace, which formed part of the parcel of land conveyed. 2.5. It is not[24]Figure 3 2.6. The plan to the conveyance of the Respondent’s land to which Mr Truswell refers in his evidence is at p. 120 of the hearing bundle and is extracted below as Figure 4.[26]Figure 4 2.7. The extract from that conveyance which is recorded as part of the Respondent’s title is in the following terms: "TOGETHER WITH a right of way for the Purchaser and his successors in title owner or owners for the time being of the property hereby conveyed and his or their tenants servants and workmen at all times and for all purposes with or without horses cattle or other animals carts carriages and motor cars or other vehicles over and along the road coloured green on the said plan and thence into Barnfield Road aforesaid (Except and reserved unto the Vendors and their successors in title owner or owners for the time being of a piece of land situate at the rear of and co-extensive with Foundry Villas Foundry Cottages and the land hereby conveyed and now contracted to be sold to one Lightfoot a right of way at all times and for all purposes with or without horses cattle or other animals carts carriages motor cars or other vehicles over and along the portion of the road hereby conveyed as is coloured blue on the said plan and Except and Reserved all rights of way and other rights to the owners or occupiers of Foundry Cottages and their successors in title over and along the portion of the said private road as is coloured blue and yellow on the said plan so far as they are now entitled to exercise the same" 2.8. The land coloured green is that part of Derwent Terrace which was not conveyed to the Respondent’s predecessor. This is clear from the fact that the conveyance of the Respondent’s land is subject to a right of way for the benefit of Mr Lightfoot with whom, the conveyance recites, the sellers had contracted to convey the land conveyed by the 1950 Conveyance. 2.9. It is thus clear, as already appears from the red line which apparently delineates the land conveyed to the Respondent’s predecessor and indeed the plan to the 1950 Conveyance, that the land coloured blue on the plan at Figure 4 was intended to be included within the land conveyed. It cannot therefore have been intended to form part of the land conveyed by the 1950 Conveyance to the Applicants’ predecessor. 2.10. These conclusions are inconsistent with the measurements taken on site in the course of the site visit in the sense that those measurements indicated that the western boundary of the Applicants’ land should be moreorless in the middle of what is now Derwent Terrace, whereas the plans referred to above would appear to show it abutting its eastern edge. 2.11. It is convenient at this point to consider the evidence of Mr Truswell who has lived in Spennymoor all his life and known this particular area since he was a boy because his uncle was Ross Hodgson who was the purchaser under the 1984 Conveyance. 2.12. It was Mr Truswell’s evidence that his uncle had run a building and contracting business from a yard on the land which he bought in 1984 since the 1940’s. He originally held the land under a lease from Mr Robinson and his predecessors. 2.13. Mr Truswell’s evide[35]Figure 5 2.15. In 1991 Mr Hodgson sold the part of his land shown in Figure 5 above to Mr and Mrs Pickering. They have since acquired a number of other parcels, which are separately registered. Save in the respect which I shall consider below, those parcels make up the parcel of land which they now own and include in particular the northern edge of the strip of land along the side of what is now the primary means of access to their property. 2.16. At the time the Applicants completed their purchase from Mr Hodgson, the site had been cleared and a new, wooden, close-boarded fence had been erected along the eastern boundary by the contractor which had cleared the land. It is the Applicants’ case and was Mr Pickering’s evidence that that fence was erected in the same position as the original eastern boundary of Mr Hodgson’s land. There is, however, no clear documentary or other evidence by reference to which it is possible to determine whether Mr Pickering’s evidence is correct. I shall therefore have to consider that question further below. 2.17. The final aspect of the Applicants’ title which must be considered is the current position of the eastern boundary fence. In his witness statement Mr Pickering said this at paragraph 15:
“From early 2000, we started to experience antisocial behaviour from the old railway path to the rear of our property. We have a conservatory which runs the length of our property to the rear and children from the surrounding arears were throwing rubbish and missiles over the fence and generally causing a nuisance along that path. We complained to the council about the noise and the mess the antisocial behaviour was causing and as a resolution, it was agreed, after many years, that parcel of land would be transferred to us. We were required to erect a new fence between the land and the railway path to stop children and groups from congregating there and causing issues. When we purchased that land, in accordance with the transfer we installed a new fence while leaving the original fence in place. The original fence posts are still in their original position now and are used in our garden as a feature. I have annexed hereto at AP4 photographs taken by me showing the original fenceposts and the new fence which has been installed to stop the antisocial behaviour.” (Emphasis added)
2.18. In cross examination, it emerged that in fact there had not been any transfer of the additional strip of land along the boundary, although a price for it had apparently been agreed. Although a good deal of the oral evidence was devoted to questions concerning this purchase and the alterations to and alleged uncertainties about the position of the original boundary which it created. It is my judgment that the only matter with which I need be concerned is Mr Pickering’s evidence that the ‘original’ fenceposts, which he says were preserved when the new fence was erected, were erected on the line of the original eastern boundary. 2.19. I can deal w[41]Figure 6 2.20. The title was first registered on 12th December 1989 and, although it may not be immediately apparent, it is clear from the title plan that: it is based upon the plan to the conveyance of 1950 to which I have referred; and that the boundary of the Respondent’s land extends almost up to the structure which I have surmised was the lockup garages referred to on the plan to the 1984 Conveyance and thus, that it includes the blue land over which the Applicants land has the benefit of a right of way. 2.21. As to the dimensions of the right of way, the Respondent pointed to the following evidence in an internal memo from the Principal Engineer (Highways) to Development control in connection with the Applicants’ application for planning permission in April 1991: “The width of the access road which serves the rear of Derwent Terrace is 3.5 metres, although the space between the fences is shown as 6.0 metres on the drawing no. TA-04/02. If this is to be the case then I am satisfied that vehicular access to the plot can be achieved. The development of this area of land will bring the total number of properties with garages served off the rear access road to five. The sight-lines and width of the road on the northern junction with Derwent Terrace are below standard but, given the fact there is an alternative (southern) junction where the sight-lines are satisfactory, I do not consider this to be a sufficient reason to refuse this application.” 2.22. This evidence is consistent with the position which I observed in the course of the site visit and the position as per the Plan. It was Mr Pickering’s evidence that the gates which give access from his land onto Derwent Terrace as well has his neighbours’ fence were deliberately set back from the edge of the roadway and that the concrete pad was laid so as to bridge that gap.[3]Witness evidence 3.1. I heard evidence from Mr Pickering and Mr Truswell both of whom I found to be careful and honest witnesses. They were both clearly doing their best to assist me in making my decision. 3.2. As I have said, the main point of contention concerns the question whether the fence posts which Mr Pickering contended were the original 1991 fence posts and whether those fence posts were in the same position as the original eastern boundary of the Applicants’ land as it was at the time of the 1994 Conveyance. 3.3. Although the evidence of Mr Pickering as to his purchase of the land within his new eastern boundary fence, as he set it out in his witness statement, was shown to be incorrect, he admitted his mistake candidly in his oral evidence and I am satisfied that the mistake was caused by a misunderstanding of the position either on his part or on the part of his solicitor, or possibly a combination of the two. In any event, when questioned he did his best to answer honestly and subsequently produced documents to show the true position. 3.4. Otherwise, the Respondent’s counsel did not seriously challenge the substance of his evidence and I accept it. In particular, I accept that his evidence as to the preservation of the original fence posts is true in the sense that they were the original 1991 fence posts. I also accept that in digging the foundations for his patio in the vicinity of that fence he unearthed what appeared to be the foundations of the wall which he said had stood on the eastern boundary before the garages were cleared prior to his purchase. 3.5. Whether that evidence proves that the fence erected in 1991 was in precisely the same position as the original eastern boundary of the parcel sold to Mr Hodgson is less clear. In particular, the fact that measuring 147’ from the northern most fence posts takes one to a point in the middle of the roadway which is now Derwent Terrace would suggest that the eastern boundary was originally further to the east, if, as seems to be clear there has been no significant alteration to the position of tarmacked surface of Derwent Terrace. It may well be, however, that it was more difficult at the time of the 1984 Conveyance to measure that distance accurately because of the presence of the bays described by Mr Truswell. 3.6. I likewise accept without qualification the evidence of Mr Truswell who was an independent witness, with good knowledge of the ground over a long period. The only possible point of controversy concerning his evidence related to his description of the garages as having been predominantly of a timber construction. As I have already noted, this evidence conflicts with the evidence of Mr Pickering which was that the eastern boundary was of stone construction. 3.7. Whatever the explanation for this discrepancy may be, I am confident that both Mr Truswell and Mr Pickering were answering honestly to the best of their recollection. It may well be that there was in truth no dis[4]The Plan 4.1. The final matter which I must consider is whether the fact that the Plan does not accurately plot the position of the boundary for which the Applicants contend means that I must or should direct the Chief Land Registrar to cancel the Applicants’ application. The alternative would be that I should direct the Chief Land Registrar to alter the register so as to show the boundary between the Applicants’ and the Respondent’s land in the position for which the Applicants’ contend as it is shown on the Plan, that is to say, the brown/olive line which delineates the position of the concrete pad. 4.2. I should perhaps say that I am satisfied on the basis of my conclusions above that the line A-B as it is marked on the Plan is also either at or within the western boundary of the Applicants’ land which I find is marked by the eastern edge of the tarmacked roadway which is known as Derwent Terrace, wherever precisely that may be. Given that the eastern edge of Derwent Terrace is not marked on the Plan and the determination of its position may well be the subject of some uncertainty, the possibility that I should open that question up for debate by directing the Chief Land Registrar to cancel the Applicants’ application, the result of which would presumably be that the Applicants would make a further application based upon a new plan to which the Respondent might object, is one which I express with considerable trepidation. 4.3. Section 60 Land Registration Act 2002 enables rules to be made for the purpose of enabling the exact line of the boundary of a registered estate to be determined. 4.4. Those rules, as they currently stand, are set out in rr. 118 to 120 Land Registration Rules 2003 in the following terms, so far as material: 118 Application for the determination of the exact line of a boundary “(1) A proprietor of a registered estate may apply to the registrar for the exact line of the boundary of that registered estate to be determined. “(2) An application under paragraph (1) must be made in Form DB and be accompanied by—(a) a plan, or a plan and a verbal description, identifying the exact line of the boundary claimed and showing sufficient surrounding physical features to allow the general position of the boundary to be drawn on the Ordnance Survey map, and(b) evidence to establish the exact line of the boundary. 119 Procedure on an application for the determination of the exact line of a boundary “(1) Subject to paragraph (2), where the registrar is satisfied that— (a) the plan, or plan and verbal description, supplied in accordance with rule 118(2)(a) identifies the exact line of the boundary claimed, (b) the applicant has shown an arguable case that the exact line of the boundary is in the position shown on the plan, or plan and verbal description, supplied in accordance with rule 118(2)(a), and(c) he can identify all the owners of the land adjoining the boundary to be determined and has an address at which each owner may be given[5]Conclusions 5.1. I summarise my conclusions as follows: 5.1.1. The boundary between the Applicants’ land and the Respondent’s land was fixed by the conveyances of the two parcels made on 11th May 1950. 5.1.2. It is clear to me from the plans to those two conveyances that it was the intention of the parties to them to include the roadway which is now known as Derwent Terrace within the title to the Respondent’s land and that the boundary between those two parcels was intended to be at the eastern edge of that roadway as it was in 11th May 1950. 5.1.3. There has been no alteration to the position of that boundary since. 5.1.4. The fact that the length of the northern boundary of the Applicants’ land is shown on the plan to the 1984 Conveyance as being 147’ long is irrelevant in the sense that it was not that conveyance which defined the position of the western end of that boundary. Nevertheless, it is indicative of the fact that in 1984 at least Mr Robinson and Mr Hodgson did not believe the boundary ended at a position to the east of the edge of Derwent Terrace and to that extent it is supportive of my conclusion. 5.1.5. My task in determining the matter referred is to decide where exactly the line of the boundary is and whether that line is accurately plotted on the Plan. The fact that the Applicants are willing to limit their claim as to the position of the boundary does not constrain me in reaching that conclusion. 5.1.6. It is of course possible that the parties may agree that the boundary is in a position other than that which I have determined. That is a matter for them. 5.1.7. It follows from these facts and that the position of the boundary as I have determined it to be is not shown on the Plan that I must direct the Chief Land Registrar to cancel the Applicants’ application. 5.1.8. As to the question of costs, whilst it may be said that in one sense the Respondent is the successful party, because I will direct that the Applicants’ application should be cancelled, equally, my decision as to the position of the boundary is more favourable to the Applicants than that for which they contended. Therefore, subject to any other material considerations of which I am presently unaware, I would be minded to direct that the Respondent should pay a substantial proportion of the Applicants’ costs, at least. However, because there may be considerations of which I am unaware and because I recognise that the parties will wish to make submissions as to costs, I will give directions to enable them to do so. Dated this 11th day of March 2026