Kuligowski v Kuligowski [2003] EWCA Civ 1896 (11 December 2003)

Kuligowski v Kuligowski [2003] EWCA Civ 1896 (11 December 2003)

The boundary, properly construed, is 600mm from the rear (Plot 7 side) of the retaining wall, so the gabions encroached onto Plot 8; however, proprietary estoppel applies because the previous owner acquiesced in the placement of the gabions, making it unconscionable for successors to require their removal. No actionable nuisance was established as there was no proof of imminent danger or actual damage.

Citation
[2003] EWCA Civ 1896
Parties
Claimant/appellant: Edward Peter Kuligowski; Claimant/appellant: Sharon Lorraine Kuligowski; Defendant/respondent: Peter Kenward; Defendant/respondent: Maureen Olive Emilia Kenward
Jurisdiction
England and Wales
Judgment Date
11 December 2003
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Boundary Disputes, Proprietary Estoppel, Trespass, Nuisance
Property Law Equity Boundary Disputes Proprietary Estoppel Trespass Nuisance

Case Brief

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Parties

Edward Peter Kuligowski

Claimant/appellant

Sharon Lorraine Kuligowski

Claimant/appellant

Peter Kenward

Defendant/respondent

Maureen Olive Emilia Kenward

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Proper construction of boundary in property transfer plan
  2. 2 Whether gabions encroached and constituted trespass
  3. 3 Whether proprietary estoppel applies to allow gabions to remain

Ratio Decidendi

The boundary, properly construed, is 600mm from the rear (Plot 7 side) of the retaining wall, so the gabions encroached onto Plot 8; however, proprietary estoppel applies because the previous owner acquiesced in the placement of the gabions, making it unconscionable for successors to require their removal. No actionable nuisance was established as there was no proof of imminent danger or actual damage.

Court Disposition

Appeal dismissed

Orders

  • Claimants to pay 80% of defendants' costs both in the Court of Appeal and below
  • Order as per agreed minute