Buying, selling, transferring and developing agricultural land can involve a lot more than the usual property sale paperwork and due diligence. Even plots of agricultural land often have a more complex history than we expect from first impressions. Two recent Court of Appeal cases remind us that historic uses, ownership patterns, local bye-laws and restrictions relating to land can result in lengthy disputes requiring significant detective work for both parties.
Hedges and Ditches
The Court has recently been required to apply a long-standing rule of law, the so-called ‘Hedge and Ditch Rule’, in a trespass action . The boundary in dispute ran between two properties which had been in separate ownership for over 200 years and consisted of a ditch and mound on which a hedgerow used to stand. The Court applied the rule to show that the boundary drawn between the properties on a 1997 Ordnance Survey map was incorrect because it was drawn over the bank rather than the ditch.
Historically, landowners would define their fields by digging a ditch as close to the edge of their land as they could without crossing into their neighbour’s property. They would then use the soil dug out to form a bank on their side of the ditch and plant a hedge on top of it.
In this case, the court applied the Rule and it was decided that the boundary ran along the edge of the ditch furthest from the bank rather than the bank itself and so disregarded the Ordnance Survey map because it was ‘for information purposes only’. The common law rule therefore resolved a boundary dispute over two centuries after it was first applied.
Rights of way
In another case, the Court had to plumb the depths of the Inclosure Consolidation Act 1801 and catchily-named ‘Act for Inclosing Lands in the Parish of Crudwell, in the County of Wilts’ of 1816 (the ‘Local Act’) in order to decide whether a landowner should be allowed to apply to his local County Council to have two ancient rights of way marked on the ‘definitive plan’.
The applicant argued that the Commissioner appointed under the Local Act had created two public bridleways over his property and that the Council was obliged to review and update the ‘definitive plan’ accordingly.
The Court adopted a common sense approach in applying the confused and convoluted language of the legislation. They concluded that the purpose of the Act was to provide Commissioners with general powers to set out new rights of way and protect existing ones when land was being enclosed. Public bridleways were clearly intended to be covered by the legislation even if the wording did not cover them precisely. As a result, the applicant was right to seek an amendment to the council’s map to include these rights of way.
Although this case is unusual because it required analysis of long-repealed legislation, it is likely that there are between 500 and 1000 similar cases of public footpaths and bridleways created under the 1801 Act which do not appear on the ‘definitive maps’ and so there may be more head-scratching to come.
These two appeal cases serve as useful reminders that we cannot always ignore a piece of land’s dim and distant past when we are making plans for its future.
This post was edited by David Williams. For more information, email firstname.lastname@example.org.
 Parmar v Upton  EWCA Civ 795
 R(on the application of Andrews) v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 669