A Labrador-loving parish councillor has lost a four-year court fight after his neighbour started tearing out the “dog-proof fence” around his £1.2m country home during a boundary row.
Dog lovers David Todd, 69, and partner Caroline Hodge, 65, say they bought their “substantial” £1.2m house, Wyland Wood, set in 2.7 acres of East Sussex countryside, in 2018, having been assured by estate agents that it was enclosed by a dog-proof fence to keep their two Labradors safe and secure.
But a row erupted over where the boundary of their property lay when new neighbour Richard Marsh “unilaterally decided to take down” the fence and replace it with another in a different position, grabbing about half an acre of what Mr Todd and Ms Hodge said was their garden.
Mr Marsh, 44, and his wife, Rebecca Marsh, 40, had in May 2021 bought a neighbouring parcel of ancient woodland and meadow, and moved the fence after realising its position didn’t match the boundary shown on land registry documents, London’s High Court heard.
The neighbours went to court last year when Mr and Mrs Marsh won a ruling that the fence does not mark the true boundary and that the disputed half acre and a vital access strip to their land belongs to them in accordance with the paper boundary.
But Mr Todd – who sits on Salehurst Parish Council – and his partner challenged that ruling at the High Court, claiming that they should be handed the land because a “reasonable purchaser” would have thought the fence marked the boundary when buying it.
They also claimed that in any case they made a “boundary agreement” over email with the previous owner of the Marshes’ land, confirming everything inside the fence was theirs.
But Mr Justice Michael Green has now thrown out the councillor’s case, saying that there was no agreement with the previous owner, but merely a simple conversation about fence repairs.
“The core point is that (previous owner) Mr Baldwin did not consciously address his mind to the boundary and so could not be said to have come to any sort of agreement as to its location,” said the judge.
“Nor can such an agreement be inferred from the simple agreement to share the costs of the repairs.”
The court heard that dog-loving Mr Todd and partner Ms Hodge bought their “handsome” 19th century four-bed three-bath detached stone-built country house, Wyland Wood, near Robertsbridge, East Sussex, for around £1.2m in 2018.
The property features a drawing room, dog and boot room, and is set in 2.7 acres of gardens and woodland, with its own “excellent treehouse”.
During the trial last year, the couple told Hastings County Court that they were assured by estate agents that the property was surrounded by a “dog-proof fence” to keep their canine companions, which Ms Hodge described as “sweethearts,” safe and secure.
But they later found themselves in a dispute with Robertsbridge neighbours, business consultant Richard Marsh and his wife Rebecca, after the pair bought an ancient woodland next to the councillor’s home and an adjoining meadow through one of Mr Marsh’s companies.
Mr and Mrs Marsh insisted they had bought about half an acre of land inside the dog-proof fence and in what Mr Todd and Ms Hodge believed was their garden.
A bitter court war erupted when Mr Marsh “unilaterally decided to take down” the fence, planning to replace it with another on the line of the boundary on the paper title, Mr Todd’s barrister, Evan Price, said.
It led to Mr Todd and Ms Hodge obtaining a court injunction, requiring Mr Marsh to stop removing the fence, not to erect a new one and to replace the parts already removed.
At the county court, Mr Todd told the judge they believed that everything “in the fence was what we were buying,” adding that the property was described in the estate agent’s particulars as “dog-proof” by virtue of the fence.
The fence should be regarded as the boundary as it was the most obvious physical feature on the ground, he said, claiming that in any case the previous owner had agreed via email that the boundary lay there during discussions about sharing costs to repair the fence.
But Judge Caroline Parker last year ruled in favour of Mr and Mrs Marsh, saying that part of the dog-proof fence lay 6m to 8m outside the paper boundary of their land, which is marked by a tree line and the remnants of an old wire fence.
“The claimants wanted a dog-proof garden. The sales particulars said that was the case. They were so shown round the garden by an estate agent on two visits in October 2012”, said the judge, adding that the couple “believed that the fence marked the boundary, it is more obvious as such than the line of trees.”
“The fact that the estate agent particulars state that the garden is ‘dog-proof’ is not sufficient to establish that a reasonable purchaser would have understood that to mean that the fence marked the boundary,” she added, dismissing their claim and declaring that Mr and Mrs Marsh are allowed to fence off the half acre of land, slicing it from the councillor’s garden.
She also awarded Mr and Mrs Marsh £3,174 in damages.
Mr Price, appealing the ruling in the High Court on behalf of the councillor and his partner, said they had thought they were buying a “dog-proof property” with an easy to see boundary.
“If you cant rely on what’s there, what can you rely on?” he asked the judge.
He argued that, even if the boundary on paper didn’t follow the fence line, Mr Todd and his partner had secured a binding “boundary agreement” from the previous owner, Stephen Baldwin, during discussions and in emails relating to repairs to the fence after they moved in.
“A chat over a garden fence can amount to a boundary agreement,” he told the judge.
But dismissing the appeal last week, the judge said: “The case concerns the position of the boundary between Wyland Wood and the Marsh land. The appellants contended at the trial, and on appeal, that the boundary was marked by a dog and deer proof fence.
“The judge held that the dog and deer proof fence did not run along the boundary line in the registered title plans; nor did it run along the line in the historic conveyances.
“She held that the boundary line was along the line that both experts agreed was the line on the registered title plans and the historic conveyances.
“At the time of the sale of Wyland Wood, the dog and deer proof fence was in place. It ran parallel to the paper title boundary line between Wyland Wood and the Marsh Land, but between 6.37m and 11.37m on the Marsh land side of the paper title boundary.
“After considering the email exchanges between the Mr Todd and Mr Baldwin, and their oral evidence, the judge held that there was no boundary agreement because the subject of the discussions was the repair of the dog and deer proof fence, not where the boundary lay.
“Furthermore, if it was a boundary agreement it would have resulted in the transfer of a significant portion of land to the appellants, which was not trivial.
“The judge’s conclusion that in the circumstances there was no boundary agreement is rational and there is no real basis for overturning this finding of fact.
“The core point is that Mr Baldwin did not consciously address his mind to the boundary and so could not be said to have come to any sort of agreement as to its location. Nor can such an agreement be inferred from the simple agreement to share the costs of the repairs.
“I dismiss all grounds of appeal before me and uphold the order of the judge that the boundary between Wyland Wood and the Marsh land is not the dog and deer proof fence, but rather it is the paper title boundary as shown on the registered title plan.”
