Siblings face huge ‘fence wars’ court bill after chopping down trees in neighbours’ garden

Three siblings could be facing a "ruinous" £250,000-plus "fence wars" court bill after invading their neighbours' "immaculate" garden and hacking down their 33-foot Leylandii trees.

Building boss Robert McCarthy and wife Amanda had lived for years in "relative harmony" with their neighbour, Foulla Bowler, and the two siblings she owns her house with before a row kicked off over the boundary between their gardens in 2018.

The couple sued after Mrs Bowler, her brother John Barberis and sister Mary Englishby pulled out their back fence and had tree surgeons remove a line of 33ft Leylandii trees which they complained had been "overshadowing" their garden.

Following a trial, Judge Alan Saggerson has now ruled in favour of the couple on the location of the boundary, finding that the siblings had "trespassed" into their neighbours' garden to hack down the trees.

The trio had taken "unilateral action to re-order the disputed boundary" between the properties amid what he called "fence wars" between the neighbours.

The full cost of the case to the siblings will be decided later, but the decision means they are likely to be liable for the McCarthys' lawyers' bills, which are estimated at £130,000, on top of their own significant court costs - plus potentially as much as £115,000 in compensation.

"This is a protracted and potentially ruinous boundary dispute between neighbours," said the judge in his judgment, which was only made public last week.

Barrister Christopher Coyle, for the McCarthys, told the judge that the two gardens were divided by a fence, with a row of Leylandii trees on the McCarthys' side.

However, a bitter boundary dispute erupted around 2018, with Mrs Bowler and her siblings claiming the dividing line was actually beyond the fence, putting the Leylandii on their land.

And, despite knowing that there was a dispute, Mrs Bowler had in 2018 applied for permission to fell 29 trees, before the family went ahead with the plan, cutting down most of them in January 2022.

Mr Coyle said the felling work had continued into a second day even though the McCarthys wrote to the siblings via lawyers to request them to stop cutting.

Giving evidence, Mr McCarthy described it as an "invasion" and complained of a "relentless destruction of my garden," telling the judge: "This is how we feel as a family."
"I can stand upstairs in my house and they can see me walking around," he said from the witness box.

"I want my privacy back like I had."
He said that, when the couple bought the house, they were led to believe that the fence beyond the trees was the boundary, making the trees part of their property.

"The trees were well-established when we moved in," he told the judge.

"We thought the chain link fence was the boundary as it ran along.

I had no reason not to believe that to be the boundary."
The McCarthys sued for about £115,000 in compensation, including £73,500 to plant new trees and restore their privacy, as well as a declaration that the true boundary is the line of the old fence.

But Mrs Bowler and her siblings insisted that they had every right to remove the fence and trees as they were in fact on their land, and that they removed them due to "overshadowing" and potential damage to their land.

Her brother, Mr Barberis, said he was there in 1981 when their father, Elias Barberis, discussed buying Kormakitis and remembers hearing that the boundary was several feet beyond the fence.

It was his father who had planted the trees.

"Some of the trees are missing, not all of them," he added, when pressed on their felling.

"These are trees that we planted and a fence that we put up.

"I clearly remember our parents giving [the previous owner] permission to trim our trees from his side to stop them overshadowing his garden."
Giving judgment, Judge Saggerson said the siblings' evidence was "less reliable and less accurate" than the McCarthys', but did not find they were lying, but instead had "persuaded themselves of the righteousness of their own case."
He said the chain link fence had been there in 1981 and was probably there at the latest in 1975, with wooden panels later put in place along it.

However, he said he did not accept that the siblings' father had been told when buying Kormakitis in 1981 that his land extended 6ft beyond the line of the fence.

"I do not accept that he had any reasonable grounds for believing this, although over the passage of many years he may have persuaded himself that this was the position," he said.

"Unfortunately, as I find, the defendants took unilateral action to re-order the disputed boundary."
Their father, with his son John present, had begun by starting to take the fence down in May 2018, with plants then being pulled up in the face of objections from Mr McCarthy.

Despite a replacement fence being put up by Mr McCarthy, the siblings again removed it in May the following year, before removing another in February 2020.

"On 3 March 2020, a tree surgeon instructed by the defendants attended and started removing trees from their garden and also started taking out other planting along the disputed boundary," said the judge.

"In early January 2022, the tree surgeons returned.

They cut down the remaining trees along the disputed boundary, completely removing the privacy screen that had existed for so many years.

"Due to the defendants' unilateral action, the landscape along the disputed boundary has completely changed from that which existed before May 2018."
Having heard expert evidence, he said the original fence line was the "true boundary," placing the Leylandii trees in the McCarthys' garden.

That tallied with the historic attitude and behaviour of the two sets of neighbours in respect of the boundary, he said, finding that all of them, plus Elias Barberis, from 2001 to 2018 had "conducted themselves on the clear basis that the fence represented their mutual north-south boundary."
"It was the defendants' unilateral action from May 2018 that disrupted what had been settled for decades," he said.

"It follows that Mr and Mrs McCarthy's claims for trespass...are established on the balance of probabilities."
The case is set to return to court in the summer for a hearing to decide the consequences of the ruling against the siblings, including any compensation due and the costs of the case.