Boundary — Dispute as to correct line — Whether judge correct to determine boundary as delineated on transfer plan — Whether boundary following line of recent retaining wall and fence — Appeal dismissed
The appellant purchased plot 1 of a development in Otterton, and the respondents later purchased the adjoining plot 2. The architect’s site plan, and the draft transfer plan used for marketing purposes, showed the intended boundaries of the plots. After the appellant had exchanged contracts, the developer erected a post-and-wire fence between the plots, adjacent to a new retaining wall. In February 1999, the developer gave permission for the appellant to carry out landscaping work as far as the fence and to make the fence stock proof. When the transfer was subsequently completed, the property was defined as the “Plot… shown edged red on the Plan”. The plan attached to the respondents’ registered title showed the boundary as it appeared on the site plan, not the actual line of the fence.
The respondents’ purchase was completed in June 1999. They subsequently complained to the developer that the boundary fence was in the wrong place. The developer agreed, and sought the appellant’s permission to move it, offering to make good any damage or disturbance. She refused, and the respondents sought a mandatory injunction requiring her to realign the fence.
The judge made a declaration that the boundary was as it appeared on the plan. He rejected the appellant’s defence of proprietary estoppel based upon the developer’s conduct on the ground that it had not been adequately pleaded. He therefore granted an injunction restraining her from obstructing the realignment of the fence. The appellant appealed.
Held: The appeal was dismissed.
The judge had been correct to find that the boundary was as marked on the plan. The property transferred was defined only by reference to what was shown edged red on that plan. That description had to be given its full weight. The retaining wall and the fence were intended to be on that boundary, and the placing of them on a different line had been an error. It would flout common sense to hold that the boundary would lie wherever the developer happened to build a retaining wall and fence, regardless of the features of the plan and the fact that, at the time the plan was drawn, the wall and fence had not been erected: AJ Dunning & Sons (Shopfitters) Ltd v Sykes & Son (Poole) Ltd [1987] Ch 287 applied; Lyle v Richards (1866) LR 1 HL 222 distinguished on the facts.
The judge had erred on the estoppel point. Adequate facts had been pleaded in the appellant’s defence to enable her to argue that estoppel applied; it was not necessary to specify in the pleadings the type of estoppel relied upon. However, given the offer made by the developer, the detriment suffered by the appellant, by acting on its promise or representation for so short a period, was too insubstantial to make it unconscionable for the developer to rectify the boundary at its own expense.
Steven Ball (instructed by Symes Robinson & Lee, of Budleigh Salterton) appeared for the appellant; Mark Treneer (instructed by Vine Orchards, of Exmouth) appeared for the respondents.
Sally Dobson, barrister
