Parties owning adjoining properties – Defendants building extension in plaintiff’s absence – Extension trespassing on to plaintiff’s land – County court granting mandatory injunction – Whether mandatory injunction appropriate – Appeal dismissed
The plaintiff was the owner of a terraced property at 62 Eswyn Road, Tooting, London SW17. The defendants owned the neighbouring property at no 64. In March 1995 the plaintiff went abroad. On her return, she discovered that the defendants had built an extension and that they had used a wall on her property to support it. On 22 December 1995 she commenced proceedings claiming that the extension trespassed on to her property and seeking a mandatory injunction. In the county court the recorder ordered the defendants to take down and remove so much of their extension as encroached on to the plaintiff’s land, and restrained them from carrying out any building works other than in accordance with the provision of the London Building (Amendments) Act 1939. The defendants appealed contending that the recorder’s approach had been wrong in law, and, relying on Jaggard v Sawyer [1995] 1 EGLR 146, they submitted that she had misdirected herself by concluding that she had an unfettered discretion to grant a mandatory injunction.
Held: The appeal was dismissed.
1. It had not been shown that the recorder had erred in her approach to the question of whether to grant an injunction or that the decision she had reached had been plainly wrong. The court’s discretion to grant a mandatory injunction was not fettered; it only had to be exercised judicially. Although the recorder had not referred to each of the four requirements in Shelfer v City of London Electric Lighting [1895] 1 ChD 287, they had been drawn to her attention, and it was clear that she had them in mind when she came to her conclusion to make a mandatory injunction rather than award damages: Jaggard v Sawyer distinguished.
2. Although the area of land on which the defendants had trespassed was small, it would be a permanent annexation, and as a result of the wall being inadequate, it would need to be strengthened. There was an inadequate firebreak between the properties. The plaintiff could not be adequately compensated by a payment of money since there was the risk of fire damage and of structural damage. It was impossible to say that it was oppressive to grant to the injunction. It was accordingly an appropriate order.
Alan Barton (instructed by SK Noel & Co) appeared for the appellants; Martin Kurrein (instructed by Bazley White & Co) appeared for the respondent.
Thomas Elliott, barrister
