Darren James Windust & Anor v Anthony Arthur Grant

(1) DARREN JAMES WINDUST (2) SUSAN MARIA WINDUST APPLICANTS and ANTHONY ARTHUR GRANT RESPONDENT Property Address: Woodview, Fern Lane, Walliswood, Surrey RH5 5RE And Hilldsown, Lazenby Lane, Walliswood, Surrey RH5 5RE Title Numbers: SY729122 and SY615774 Before: Judge Michael Michell Sitting at: Alfred Place, London On: 27 th August 2025 Applicant Representation: In person Respondent Representation: In person DECISION Key words: Determined Boundary Application – Expert Determination Agreement- Respondent Objecting to Registration of the Boundary as Decided by the Expert

1. The Applicants applied to HM Land Registry to determine the exact line of the boundary between the Applicants’ property, Woodview and the neighbouring property, Hillsdown of which the Respondent is the registered proprietor and to determine the extent of the right of way enjoyed by Woodview over Hillsdown. The Respondent objected and the matter was referred to the Tribunal for determination.

2. The Applicants and the Respondent have been in dispute for a number of years about the position of the boundary between their respective properties and about the width of the strip of the Respondent’s land over which Applicants have a right of way.

3. On 1 st March 2023 the first Applicant, Mr Windust and the Respondent signed a document entitled “Expert Determination Agreement”. The first page of that document gave information about the Expert Determination process. The material on the first page was divided into sections, entitled respectively, “Purpose of Expert Determination”, “Expert Determination of a boundary dispute”, “Stages of the Expert Determination”, “Expected outcome” and “Other applications”. The first paragraph under “Purpose of Expert Determination” reads “Expert Determination is a form of dispute resolution used when both parties are in agreement that there is a need for an evaluation of a specialized but disputed factual issue. The parties appoint an independent expert in the subject matter of the dispute to resolve the matter. The expert’s decision is – by prior agreement of the parties – legal binding on the parties”. The section headed “Stages of Expert Determination” included the following

5. The Expert will analyse evidence against land survey and draw a Determined Boundary Plan, which constitutes the Expert’s Decision.

6. The Decision is implemented when: a. the parties accept and sign the Determined Boundary plan, and b. Land Registry accepts the Expert’s Application to Determine the Exact Line of the Boundary . The section headed “Expected outcome” read “A decision made by an independent expert regarding the matter in dispute that is legally binding on the parties”.

3. The second page of the document is headed “Agreement”. Under the heading “The Dispute” it states “An expert determination of the position of the northern and eastern boundaries of title SY729122 known as Woodview is required. In addition, the position and extent and width of the right of way over SY615774 is also required.” The expert surveyor is named on that page as “Malcolm Hughes Land Surveyors Ltd”.

4. The clauses of the Agreement appear on the third and fourth pages. Those clauses include the following:

1. Malcolm Hughes Land Surveyors Ltd is to appoint the Expert to resolve the Dispute. The Parties agree that the Expert will resolve the Dispute by Expert Determination. The Expert will act as an expert and not as an arbitrator

2. Unless the Parties subsequently agree otherwise, this Expert Determination leads to a decision (“the Decision”) being issued by the Expert. The Decision will be final and binding on the parties.

8. The Decision of the Expert shall not include reasons.

11. The Parties agree to implement the Decision within fourteen days of its being published to them.

12. The parties agree they are not permitted to challenge the Decision in any legal proceedings or otherwise.

14. Malcolm Hughes Land Surveyors Ltd appoints the Expert and is responsible for the Expert Determination procedure…”.

5. It is common ground that the parties then instructed Malcolm Hughes Land Surveyors Ltd. to appoint an expert to resolve their dispute by an expert determination. On 10 th May 2023 Damian Strangwick of Malcolm Hughes Land Surveyors Ltd produced what he entitled a “Joint Advisory Report” on the joint instructions of the parties. The report makes no mention of the Expert Determination Agreement and contrary to what that agreement provides, it sets out reasons for the expert’s opinion as to the boundary and the position and extent of the land subject to the right of way. However, neither party says that Mr Strangwick was instructed otherwise than to produce an expert determination under the Expert Determination Agreement.

6. Mr Strangwick produced a determined boundary plan and marked on that plan, the extent of the right of way. The Applicants have applied to determine the exact line of the boundary and the extent of the right of way in accordance with that plan.

7. The Respondent’s submission is that the determined boundary cannot be registered until he has “accepted and signed” the determined boundary plan. He says that as he has not accepted the plan, the determined boundary application should be rejected.

8. The Expert Determination Agreement is clear. The parties agreed that the expert’s Decision would be “final and binding”. They also agreed that they would not challenge the decision in any legal proceedings or otherwise. Further, they agreed to implement the decision within fourteen days of its being published. The Respondent is bound by the expert’s Decision. That Decision is the determined boundary plan produced by Mr Strangwick. The Respondent has agreed not to challenge that Decision and has agreed to implement that Decision.

9. The Respondent is in clear breach of the agreement in not implementing it and in seeking to challenge the Decision by objecting to the application for registration of the determined boundary. As the Respondent is bound by the Decision and has agreed not to challenge it, the Respondent does not have good grounds for objecting to the application made by the Applicants. The line of the boundary has been fixed between the parties through the mechanism they agreed and the extent of the right of way has been determined through that mechanism. Conclusions

10. The Chief Land Registrar should (a) register the exact line of the boundary in accordance with the determined boundary plan produced by Mr Strangwick and accompanying the Applicants’ application; and (b) register the extent of the right of way in accordance with that plan; in both cases as if the objection of the Respondent had not been made.

11. My preliminary view is that the Respondent should pay the Applicants’ costs. The objection has failed. It is just that the Respondent should pay the Applicants’ costs. Any party who wishes to submit that some different order should be made as to costs should file with the Tribunal and serve on the other party written submissions by 5pm on 12 th September 2025. BY ORDER OF THE TRIBUNAL Judge Michael Michell Dated this 29 th day of August 2025