What you need to know to keep within the law.
As we all venture out into our gardens once again, we discover the damage caused by the winter storms to boundary fences, trees and hedges. It is time to carry out repairs and restoration works but in doing so, be mindful of where your boundaries are. You may need access to neighbouring property.
Insurance policies may not respond in all cases and damage caused by falling trees, fences or walls will lie with the owners to effect repairs and to restore boundaries. If you are tempted to remove a damaged or overgrown hedge, care must be taken that reinstatement is in the correct position. It may not have been planted originally on the true boundary.
It is a common misconception that the manner of construction such as the position of post or arris rails indicates ownership but that is not the law. In the absence of any other evidence, presumptions regarding the boundary can sometimes be made from the facing of fencing or the situation of hedges and ditches. Plans attached to a conveyance may have measurements, a description of the boundary or ‘T’ marks showing who owns a boundary feature or the liability to maintain and repair it. The filed plan for a property at the Land Registry indicates general boundaries only and cannot be relied on for its accuracy.
What about Ordnance Survey plans?
Ordnance Survey plans or plans in deeds which are based on the Ordnance Survey can also create difficulties. These plans tend to mark features such as hedges and fences rather than legal boundaries. The 1:2500 scale of the Ordnance Survey plans means features drawn on them may be out by as much as 2 meters. The grant of planning permission is not conclusive as to the location of a boundary. The local planning authority is only concerned with public planning issues, not private law rights.
It is possible to obtain planning permission over land which you do not own and the grant of permission does not have any bearing on the ownership of the land in question. What may have started out as a well-intended spring clean-up, could lead to misunderstandings or difficulties with adjoining owners. Early discussions and sensitivity are essential to avoid misunderstandings and disputes.
Hugh Storry Deans
Litigation Solicitor & Head of Dispute Resolution