Worrall and another v Topp

Consent order – Boundary between two properties to be determined by surveyor – Surveyor taking account of plans attached to e-mail from respondent – E-mail not forwarded to appellant – Surveyor issuing determination – Surveyor subsequently revising determination – Whether original determination unfair – Whether surveyor having power to revise determination once given – Appeal dismissed The appellants and the respondent were neighbours who owned adjoining properties. A dispute arose between them concerning the position of the respondent’s garage and his use of an access way for parking. An action that had been brought by the appellants was settled by a consent order, which provided that the position of the boundary between the two properties was to be determined by an independent surveyor, if the parties could not agree. Schedule 2 to the order laid down the procedure to be followed in the event of a determination by a surveyor: the parties were to set out their factual evidence by a date to be agreed or determined by the surveyor, who was to consider the boundary by reference to the evidence placed before him and the position on the ground. His decision was to be binding save in relation to any issues of law.A surveyor was appointed to determine the boundary. The parties submitted documents in evidence, all of which were copied to the other party save for one e-mail from the respondent, which was dated March 2006. That e-mail had attachments containing various plans. The surveyor was also instructed by the parties to inspect the boundary to the rear of the respondent’s property, in case it had a bearing on the position of the front boundary with the appellants’ property. The surveyor issued his determination in May 2006; in it, he referred to the respondent’s plans from the March e-mail in connection with the rear boundary measurement.The appellants’ solicitor then wrote to the surveyor, seeking clarification of certain points. In response, the surveyor produced a revised determination in which he dealt with the altered opinion as to the location of the boundary in the vicinity of the garage.The respondent applied for a declaration that the original determination was binding and that the surveyor had no power to revise it. The appellants contended that the original determination was unfair because the surveyor had taken into account the respondent’s plans that were attached to the March e-mail, on which the appellants had not had an opportunity to comment, in determining the rear boundary measurement. The judge ruled in favour of the respondent, and the appellants appealed.Held: The appeal was dismissed. The starting point was the terms of the contract between the parties as set out in schedule 2. That did not impose any express contractual prohibition against the surveyor considering the documents attached to the March 2006 email. Although schedule 2 provided for the evidence to be set out by a date agreed or fixed by the surveyor, no such date had actually been agreed or fixed, and the surveyor was required to determine the position of the boundary having considered the evidence and documents placed before him. Although there was also an implied obligation upon the surveyor to act fairly, which would generally demand that each party should have an opportunity to respond to contentions made by the other party, and although it was desirable that any communications between one party and an expert in the surveyor’s position were copied to all other parties, there had been no unfairness in the instant case. It was unfortunate that the March 2006 e-mail and its attachments had not been forwarded to the appellants, but it was not a serious lapse and it had had no effect upon the decision-making process. The rear boundary measurement taken from the respondent’s plans was consistent with the Land Registry plans and the site measurement that the surveyor had taken at the appellants’ invitation. The measurement contended for by the appellants was the “odd one out” and was thought by the surveyor to be less reliable. It was overwhelmingly likely that he would have reached the same determination without the respondent’s plans. Accordingly, the original determination reached by the surveyor had been made in accordance with the terms of the contract.Richard Oulton (instructed by Coyle White Devine) appeared for the appellants; Desmond Kilcoyne (instructed by Reynolds Parry-Jones, of High Wycombe) appeared for the respondent.Sally Dobson, barrister