Kupfer & Anor v Dunne

Factual and Procedural Background

This appeal concerns a boundary dispute between neighbouring residential properties at 8 Greystone Gardens and No.6 Greystone Gardens. The appellants, owners of No.8 since 1990, and the respondent, owner of No.6 since 2001, were in disagreement over the precise location of the boundary line. The trial judge at Willesden County Court determined the boundary and ordered the appellants to remove fencing and concrete posts encroaching on the respondent's land, awarding damages and costs against the appellants. The appellants initially were refused permission to appeal, which was later granted by a higher court.

The dispute originated from the respondent's proposal to erect an extension pursuant to planning permission, which the appellants contended would trespass on their land. The judge found that a particular concrete post (Datum B) was on the respondent’s land, affecting the extension's positioning. The case involved examining historical boundary markers including fences, a brick planter, and concrete posts, with conflicting evidence from parties and expert surveyors. The appeal challenges the trial judge’s determination of the boundary line and the associated injunction and damages.

Legal Issues Presented

1. Whether the trial judge correctly determined the boundary line between the properties.
2. Whether the injunction requiring removal of fencing and posts was properly granted.
3. Whether the damages awarded for trespass and delay in building the extension were justified.
4. The appropriate apportionment of costs given the findings on appeal.

Arguments of the Parties

Appellants' Arguments

• The boundary should follow the line shown as the "green line" on a plan based on a 1947 conveyance indicating a straight boundary, which they submitted should prevail over the trial judge’s findings.
• Alternatively, the boundary should run from a datum point at the brick wall corner (Datum A) to the north side of the first concrete post (Datum B) and then along the fence line erected in 2002.
• They challenged the credibility findings against their witnesses and argued the judge erred by equating witness credibility with the correctness of the boundary line.
• They submitted that the judge failed to consider the implications of the brick planter’s position relative to the boundary fence line.
• They argued that the injunction was not an effective cause of the delay resulting in damages and that the damages award should be reversed.

Respondent's Arguments

• The judge was entitled to place the boundary as he did, relying on the agreed starting point (Datum A) and the straight line boundary.
• The judge’s credibility findings were decisive, particularly the discrediting of the appellants’ witnesses and acceptance of the respondent’s witnesses as honest and impartial.
• The injunction was an effective cause of the delay in building the extension, thus justifying the damages awarded for trespass and delay.
• The respondent conceded certain boundary lines and trespasses in order to avoid further litigation, including permitting some trespass from gutters and subsoil encroachment, and accepting parts of the fence line as the boundary.
• They relied on the evidence of a former occupant and surveyors to support their position on the boundary and the location of the posts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the evidence, including witness credibility, plans, photographs, and historical features such as fences, concrete posts, a brick planter, and a shed. It found that the judge erred by relying heavily on witness credibility without sufficiently considering physical evidence, such as the position of the brick planter and the 1980 fence line, which was accepted as the boundary after the limitation period.

The court concluded that the first concrete post (Datum B) and associated posts were correctly positioned on the continuation of the 1980 fence line, contrary to the trial judge's finding that they were on the respondent's land. The court rejected the appellants' "green line" boundary based on a 1947 conveyance as unreliable due to subsequent alterations and activities along the boundary.

Regarding damages, the court found that the injunction relating to the brick piers was not the effective cause of the delay and damages claimed. Other factors, including the boundary dispute itself and the fence position, were the true causes. The court reversed the damages award but recognized a limited entitlement to recompense for the removal and reinstatement of the fence.

On costs, the court acknowledged the substantial expenditure relative to the trivial area of land involved. It noted the appellants' partial success on the key boundary point (Datum B) and the reversal of damages, while also recognizing their losses on other issues. The court proposed a global costs award with specified percentages in favor of the appellants.

Holding and Implications

The court ALLOWED THE APPEAL in part by:

• Reversing the trial judge’s boundary determination, declaring that the boundary runs along the line including Datum B as claimed by the appellants rather than the respondent’s position.
• Setting aside the mandatory injunction requiring removal of certain concrete posts and fencing, as these were incorrectly ordered.
• Reversing the damages award for trespass and delay, finding the injunction was not the effective cause of loss.
• Ordering a limited recompense for removal and reinstatement of fencing, capped at £500.
• Making a global order on costs, awarding the appellants 30% of their costs below and 60% in this court.

The decision highlights the importance of detailed physical and historical evidence in boundary disputes, especially where changes have occurred over many years. It also underscores the court’s careful approach to causation in awarding damages related to injunctions and the need to proportion costs fairly when parties have succeeded on some but not all issues. No new legal precedent was established; the court applied existing principles to the facts with an emphasis on preventing disproportionate litigation costs in minor land disputes.