Goodmayes Estates Ltd v First National Commercial Bank Ltd and another

Boundary dispute — Housing development — Public highway Fence-to-fence presumption — Highway works proposed at junction of two public roads — Whether proposed works encroaching on claimant’s land — Claim dismissed The first defendant planned to carry out a housing development close to the claimant’s land. It needed to carry out highway works in connection with the development and an issue arose as to the location of a boundary between the claimant’s land and adjacent public highways. The claimant applied to the court seeking: (i) declarations that the proposed implementation of the highway works would constitute a trespass on its land; and (ii) injunctions to restrain the first and second defendants from carrying out the proposed works. The highway works consisted of a roundabout and associated works at the junction of two roads. The dispute principally concerned the location of the boundary line on the apex of the south eastern corner of the junction. The claimant contended that the boundary line lay along the edge of the metalled footway on one road and along the kerb line of the other, and that it was for the defendants to establish that the boundary lay beyond that line and to show that the public had a right to pass and repass over the disputed area. The defendants argued that the boundary line fell outside the proposed highway works. They relied on the “fence to fence” or “hedge to hedge” presumption, contending that the boundary was denoted by a hedge. Held: The claim was dismissed. The defendants’ primary case was that the boundary line ran along what was estimated to be the centre line of the original boundary hedge. As a general rule, the burden of proof fell on the person who asserted the existence of a highway. However, in the present case, the two roads were public highways and the issue was where the boundary lay. In determining that issue, certain presumptions might come into play that could shift the onus of proof. The whole body of evidence had to be considered, and it was then for the judges of fact to determine whether the user that might have been proved was to be accounted for by presuming dedication, or if some other conjecture was more probable. The first question was whether the fence had been erected, or the hedge established, in order to separate land enjoyed by the landowner from land over which the public exercised rights of way. If it had been, then there was a presumption, which would prevail unless rebutted by evidence to the contrary, that the land between the fence or hedge and the made-up or metalled surface of the highway had been dedicated to public use as highway and accepted by the public as such. It was not necessary to prove an intention to dedicate or to prove acceptance by actual user. Both dedication and acceptance would be inferred: Hale v Norfolk County Council [2001] Ch 717 applied. Applying those principles to the present case, the boundary line ran along the centre of the hedge. In the light of the facts, the fence-to-fence presumption applied and its application had not been rebutted by evidence to the contrary. Joseph Harper QC (instructed by Tolhurst Fisher, of Chelmsford) appeared for the claimant; Thomas Jefferies (instructed by Laytons, of Bristol) appeared for the first defendant; Paul Shadarevian (instructed by Philip Thomson, Chelmsford) appeared for the second defendant. Eileen O’Grady, barrister