Kuligowski v Kuligowski

The construction of a conveyancing plan is a question of law. The plan must be construed objectively against facts known to the parties, including relevant physical features. Expert opinion on its interpretation and other extrinsic evidence are inadmissible where the plan is clear in that context. The rear of a retaining wall is ordinarily the side nearer the ground retained by it. Proprietary estoppel may arise where an owner encourages reliance on a right to carry out works, the other party acts detrimentally in reliance, and it would be unconscionable to deny the right. A quia timet nuisance injunction requires imminent danger of substantial damage.

The claimants owned 19 Rosebank and the defendants owned the adjoining 21 Rosebank. The dispute concerned whether a plan incorporated into the defendants’ 1994 transfer placed the boundary 600 millimetres from the Plot 7 or Plot 8 side of an old retaining wall. The defendants had installed gabions near the boundary. The claimants alleged trespass and nuisance and sought declaratory and injunctive relief; the defendants relied alternatively on proprietary estoppel.

After a three-day trial, the Bury County Court dismissed the claim, declared the boundary to correspond with the front edge of the bottom gabion, and dismissed the counterclaim. Permission to appeal was granted on the construction issue. The central questions were the proper construction of the plan, the proprietary estoppel claim, and whether the evidence established an imminent danger of substantial damage.

1. Appeal dismissed. The Recorder’s construction of the plan was erroneous. Construction of an instrument of title, including a conveyancing plan, is a question of law. The plan had to be construed objectively against facts known to both parties, including the old mill wall and its retaining function. The plan was clear, so expert opinion and other extrinsic evidence were inadmissible. The rear of the retaining wall meant the side nearer the retained soil, namely the Plot 7 side. The lower gabions therefore encroached into Plot 8.
2. That conclusion did not entitle the claimants to relief because the defendants established proprietary estoppel. The relevant requirements were encouragement of a belief that the defendants could install and maintain gabions partly on Plot 8, detrimental action in reliance on that belief, and unconscionable conduct by the claimants, as successors in title, in denying the right. The Recorder’s findings established each requirement. The court had jurisdiction to order further relief, including transfer of the affected land, and would hear further argument on the minimum equity.
3. The nuisance claim was rightly rejected. A quia timet injunction required proof of imminent danger of substantial damage. The evidence did not meet that threshold. The decision did not prejudice any future claim based on actual loss or damage, or imminent danger of substantial damage.
4. Jacob LJ observed that the nuisance case had expanded beyond the pleadings and stressed the need for clear instructions to experts, particularly a single joint expert. Peter Gibson LJ added that trial judges should make adequate findings on alternative pleaded cases to avoid remittal, additional costs and wasted court time.
5. The claimants were ordered to pay 80% of the defendants’ costs here and below.

• Court of Appeal (Civil Division): [2003] EWCA Civ 1896. The appeal from the Bury County Court was dismissed. The claimants were ordered to pay 80% of the defendants’ costs both here and below.
• Bury County Court: Following trial before Mrs Recorder Wilby, the claimants’ action was dismissed with costs. A boundary declaration was made, and the defendants’ counterclaim was dismissed with no order for costs.