Background

A corollary to the maxim “good fences make good neighbours [1]” is that “boundary disputes foster antagonism”, and this was clearly evident in Re St George, Crowhurst, [2014], Chichester Const Ct, Mark Hill Ch [2].  However, the purpose of this post is to identify the issues of law that were raised, rather than comment on the attitudes of the parties or ponder on what the church’s website describes as “a friendly welcoming church situated in the heart of the village of Crowhurst”.  The Ecclesiastical Law Association web site summarizes the major aspects of the case:

“The Petitioners (the Rector and Churchwardens) sought a faculty to authorise the removal of a panel fence erected by neighbours on what was alleged to be churchyard land; to authorise the erection of a post and rail fence within the churchyard boundary; to give a direction as to the ownership of a stone retaining wall on the boundary and as to the responsibility for its maintenance; and to authorise the implementation of recommendations contained in a report from a company of tree consultants concerning trees and shrubs near the boundary.

In the course of the proceedings the Objectors withdrew their claim that the fence they had erected was not on churchyard land, and removed the fence. A declaration was given that the retaining wall belonged to the churchyard, and the petitioners were given leave to erect a post and rail fence and plant a double width yew hedge on the churchyard side of the new fence. At the end of the judgment is an additional judgment as to costs.”

Judgment

The complexity of the case is evident from the procedural history, which is outlined in paragraphs 3 to 8 [3]. The Objectors raised the jurisdictional issue that the disputed fence had been erected on their land, which was not within the churchyard and therefore territorially outside the court’s competence.  However, even after they conceded the panel fence had not in fact been erected on their land, the jurisdictional point remained, (and was refuted later in the judgment, below).  Following the conclusion of the hearing in this matter, the judgment in Re St. John the Baptist Burford [2014] Oxford Const Ct, McGregor Ch., became available[4]; and the Chancellor cited with approval the reasoning and conclusions of McGregor Ch, [paragraph 9 of the instant case].

With regard to the boundary in question, the disputed area of the southern boundary concerned a stone retaining wall which varies in height along its length, and the Objectors contended that this wall is in their ownership, including the entire width of the foot of wall and the subsoil immediately above the tapering base. Considering the Petitioners’ case, [paragraphs 16 to 30], whilst “on paper at least, [this] was surprisingly thin”, the court gave leave for evidence to be heard from the Third Petitioner. However, greater reliance was placed upon the oral evidence of the Senior Archivist at East Sussex Record Office, [paragraphs 18 to 29]: “a beacon of helpful clarity in proceedings otherwise dominated by hostility and unpleasantness.”

Following the concession made by the Objectors, the key dispute between the parties became the ownership of the wall; but due to the scale of the maps, including those annexed to office copy entries in the Land Registry, “[these] could not be determinative when the width of the strip of land in question was probably narrower than the line which sought to denote it.” Consequently, little assistance was derived from the various maps produced by the Petitioners: likewise, the written submissions of the Objectors did not clarify matters.

Even after the Objectors had withdrawn their Notice of Objection and ceased to be parties to the proceedings,  the court was required to take into account the material which they had placed before it and the submissions they had made. The Chancellor addressed – and dismissed – each of the five points that had been raised [paragraphs 31 to 36]: his conclusions are given in paragraphs 38 to 43.  No order was required for the removal of the panel fence since this had been undertaken by the First Objector following the court’s interlocutory order; furthermore, the routine maintenance of trees and shrubs did not require a faculty. However, it was noted that whilst the court proceedings have been extant, the recommendations in the arboriculturist’s report had not been implemented: root growth would have a destabilising effect on the integrity of the wall and the Petitioners and their insurers, would potentially be liable were the wall to fail.

With regard to the erection of a wooden post and rail fence, whilst the Chancellor was content to order the erection of such a fence and the planting of such a hedge he proposed reserving the precise wording of that aspect of the faculty until the final outcome of the mediation between the Petitioners and Objectors was known:

“As the parties must continue to live together, it is far better for the precise nature of the fence and hedge to be agreed or determined at this stage and not require either the Petitioners or the Objectors to lodge a fresh petition or seek a variation to the faculty issued pursuant to the current one.”

With regard to the ownership of stone wall and responsibility for its maintenance, he declared that the wall at the southern boundary of the churchyard was owned by the First Petitioner, being within the churchyard and therefore part of the incumbent’s freehold. In the light of the Petitioners’ concession and voluntary assumption of responsibility, he also declared that the responsibility for its maintenance lay with the Parochial Church Council.  As a consequence, he drew the attention of the Petitioners to the urgent need for rebedding and reconstruction of parts of the wall, as recommended by their consulting engineer in May 2012.

Judgment on costs

The tenor of the judicial proceedings was reflected in the Petitioners’ subsequent submission on costs, which were dismissed.  Since these are highly case-specific, for the purposes of this post it is sufficient to note the Chancellor’s “few words of general advice to others in the diocese likely to be petitioners in complex cases”, [paragraph 12 of the judgment]:

• Petitioners must budget for the costs of a contested hearing;
• They should at least consider engaging a specialist ecclesiastical lawyer: acting in person or engaging the services of a non-expert pro-bono is generally a false economy [5];
• There is a long-standing duty on parties to work together within the litigation process. He reminded the parties of Rule 1.4(1)(2)(a) of the Faculty Jurisdiction Rules 2013. Though it postdated the issue of the petition it nevertheless constituted a restatement of the previous position. It talks of the court “encouraging the parties and any other persons concerned in the proceedings to co-operate with each other (i) in the conduct of the proceedings, and (ii) in resolving, as far as possible, matters that are in dispute between them'”.

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[1] Often attributed to the poet, Robert Frost, who used it in the poem “Mending Wall”, but the Oxford Dictionary of Quotations lists it as a mid- 17th century proverb.

[2] The Chancellor’s judgment commenced: “The background to this dispute is lengthy, complex and unedifying. I do not propose to infect this judgment with allegation and counter-allegation, nor a recitation of matters placed before me which are of little or no relevance to the issues I have to determine. This is amongst the most unpleasant cases that I have had the misfortune to hear and few come out of it with any credit”, [para. 1]; and concluded:  “These proceedings have been unedifying from the outset and have been conducted by both sides in a less than charitable manner. I trust that now the underlying matter has been conclusively determined, all concerned can put this sorry saga behind them and live together in an atmosphere of mutual respect and neighbourly tolerance”,  [para.43].

[3] The Chancellor noted [at paragraph 8] “when matter came on for trial on 30 June 2014, some eighteen months after the petition had been lodged, and no longer formally opposed, one would have expected it to proceed in a smooth and orderly manner. On the contrary. . . . The presentation of the Petitioners’ case was so disjointed that I requested they file a written note of their submissions, including comment on the fresh evidence adduced at the hearing.”

[4] Our analysis of the case is here.

[5] In addition to the disjointed presentation of the Petitioners’ case, [reference 3], the Chancellor was critical of the conduct of their solicitor, [paragraph 13 of the judgment on costs], although he was not named “to save him personal and professional embarrassment”.