A couple have been ordered to remove part of their patio and dismantle their central heating system after losing a long-running legal dispute with their neighbours over a fence that allegedly restricted access to part of their garden.
Helen Faber, an accountant, and her partner Dominic Miles brought a claim against their neighbours, Richard and Katherine Reid, alleging that a wooden fence installed in 2021 had reduced the width of a shared path by 40cm, making it difficult to transport items such as a picnic tray to the far end of their garden.
They argued the fence amounted to a ‘nuisance’ and caused a ‘substantial interference’ with their right of way, claiming the narrowing of the path made it hard to carry ‘a large picnic tray laden with food and drinks…without spilling the drinks’.
The couple, who had returned to their Oxfordshire home after living in France, took the case to Oxford County Court, but Judge Melissa Clarke dismissed their claim.
She found that the new fence did not interfere with their legal rights to access, stating that the right of way only applied to passage on foot.
The court also found that part of the couple’s patio and an oil pipe connected to their central heating system encroached on their neighbours’ land, amounting to trespass. Judge Clarke ordered the removal of both, ruling:
‘The claimants now accept that the right of way is owned by Forge Cottage. The installation by the claimants of an oil line over the right of way is a trespass on the land of Forge Cottage and the defendants are entitled to an injunction requiring the claimants to remove it.’
Helen Faber & Dominic Miles outside London’s High Court
Picture shows the patio at Helen Faber & Dominic Miles £375k cottage in Oxfordshire
Picture shows the patio at Helen Faber & Dominic Miles £375k cottage in Oxfordshire
She added that the pipeline was ‘susceptible to damage’ and posed a contamination risk to the Reids’ property.
Ms Faber and Mr Miles appealed to the High Court, arguing that the previous owners of Forge Cottage had allowed the oil pipe and patio to be installed and that it would be ‘unconscionable’ to require their removal.
However, Mr Justice Richard Smith upheld the original ruling, stating that the couple were attempting to introduce a new legal argument too late in the proceedings.
He said their claim regarding difficulty ‘carrying a metre-wide tray with filled glasses did not advance matters,’ and ruled that the estoppel argument — based on the neighbours’ alleged prior consent — could not be considered as it had not been part of the original trial.
He concluded: ‘There is no injustice to the appellants by refusing to allow them to run this new case; they could have done so from the outset, but they did not.’
The ruling means the couple must now remove the oil pipe, leaving their home without heating or hot water, and dismantle part of their patio that extends onto the neighbouring property.
The two properties, Forge Cottage and Pear Tree Cottage, share a path that runs alongside and behind the houses. Although both parties have a right of way, the land itself is owned by the Reids.
The dispute began in 2021 and has lasted four years, involving multiple hearings and culminating in the recent High Court decision.
Helen Faber
Mr Justice Smith, backing the lower judge’s decision of the right of way issue, said: ‘The appellants made clear that they were not asserting on this appeal that the right of way could no longer be used. Rather, they said that it could not be used as conveniently as before.
‘The appellants’ point about carrying a metre-wide tray with filled glasses did not advance matters on the appeal.
‘Even if there had been any evidence before the judge about the reasonable requirement for, and relative convenience of, this mode of use before and after the installation of the new fence, anyone using the right of way for that purpose would always have to exercise great care in navigating an already narrow path with or without the new dogleg at the end.’
He also threw out their challenge to the order that they scrap their heating system and patio saying they could not rely on an ‘estoppel’ argument – that they had acted to their detriment by installing the heating absent with agreement of their previous neighbours – as that had not been argued at the original trial.
‘The estoppel argument was only raised in submissions after the respondents had closed their case,’ he said.
‘The appellants’ case in its appeal skeleton that the respondents’ predecessors in title ‘agreed to, and/ or acquiesced in, the installation of the oil tank and fuel pipe’ goes beyond the appellants’ pleaded case that ‘no objections were received’ or the evidence that their former neighbours thanked them for letting them know about the oil line.
‘Allowing the appellants to run what is a highly fact sensitive proprietary estoppel defence at the eleventh hour without advance notice and disclosure and witness evidence specifically directed to it, would have worked an obvious injustice on the respondents.
‘There is no injustice to the appellants by refusing to allow them to run this new case; they could have done so from the outset, but they did not,’ the judge concluded, refusing Mr Miles and Ms Faber’s challenge.
