Trespass to air space — Claims to injunctions by three plaintiffs to restrain defendants from operating tower cranes which were oversailing plaintiffs’ properties — The injunctions were claimed on the basis that the operations constituted a trespass — The defendants were the owners of the development site south of Tower Bridge and they or their contractors were using a number of tower cranes — The cranes themselves were static, but when not in use it was essential that the boom or jib of the crane was left free to swing, like a weather vane, in the wind — When free-swinging or when in operational use the booms swung over the plaintiffs’ properties — Apart from one point mentioned in the judgment, the plaintiffs’ claims for injunctions were based not on any actual or apprehended damage but on the principle that they were the owners of their properties and that the use of the cranes constituted a trespass — The defendants denied liability — They argued that the operations complained of did not constitute a trespass but at the most a nuisance which did not cause any actual damage — Alternatively, they submitted that if the operations did constitute a technical trespass there should, at any rate, be no injunctive relief but only a claim for damages — After a full consideration of authorities Scott J decided that the operations constituted a trespass and that injunctive relief was appropriate — The acts were an infringement of air space by structures positioned on neighbouring land — It was no answer to the complaint to say that any damage was trivial and it was not true that only trifling damages were recoverable — It was not relevant that the booms were high and their activity did not interfere with the plaintiffs’ ordinary business — There were no special circumstances which made injunctions inappropriate — The case was not one on which there was any issue of liability which must await trial — The plaintiffs were entitled now to the injunctive relief to which, in the judge’s view, they would be entitled at trial — Injunctions granted as asked — Observations by Scott J as to a desirable change in the law
The following
cases are referred to in this report.
Behrens v Richards [1905] 2 Ch 614
Bernstein
of Leigh (Baron) v Skyviews & General Ltd
[1978] QB 479; [1977] 3 WLR 136; [1977] 2 All ER 902; [1977] EGD 789; (1977)
241 EG 917, [1977] 1 EGLR 96
Bracewell v Appleby [1975] Ch 408; [1975] 2 WLR 282; [1975] 1 All ER
993; [1976] EGD 190; (1974) 237 EG 731, [1976] 1 EGLR 119
Charrington v Simons & Co Ltd [1971] 1 WLR 598; [1971] 2 All ER 588;
(1971) 22 P&CR 558; [1971] EGD 432; 218 EG 1164, CA
Clifton v Viscount Bury (1887) 4 TLR 8
Eardley v Granville (1876) 3 Ch D 826
Goodson v Richardson (1874) 9 Ch App 221
Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1
Ives (E
R) Investment Ltd v High [1967] 2 QB 379;
[1967] 2 WLR 789; [1967] 1 All ER 504, CA
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd
[1957] 2 QB 334; [1957] 2 WLR 1007; [1957] 2 All ER 343
Patel v W J Smith (Erziot) Ltd January 28 1987, CA (unreported)
Pickering v Rudd (1815) 4 Camp 219
Trenberth
(John) Ltd v National Westminster Bank Ltd
(1979) 39 P&CR 104; 253 EG 151, [1980] 1 EGLR 102
Wandsworth
District Board of Works v United Telephone Co
Ltd (1884) 13 QBD 904
Woollerton
and Wilson Ltd v Richard Costain Ltd [1970]
1 WLR 411; [1970] 1 All ER 483
These were
interlocutory applications for injunctions by the three separate plaintiffs,
Anchor Brewhouse Developments Ltd, Dual Developments (Jersey) Ltd, and Ironacre
Ltd. The defendants, Berkley House (Docklands Developments) Ltd were the owners
and developers of the well-known docklands site south of Tower Bridge with its
brewery and river connections. The plaintiffs all owned properties to the north
and west of the site.
J V Martin
(instructed by Gardner Weller & Co) appeared on behalf of all the
plaintiffs; G S Moss (instructed by Masons, agents for T M D Lake & Co)
represented the defendants.
Giving
judgment, SCOTT J said: I have before me an application by three plaintiffs for
injunctions to restrain tower cranes erected and operated by the defendants
from oversailing their respective properties.
The case is
one in which there are two points of some interest and, I think, some
difficulty. I would, had other things been equal, have preferred to take a
little time over my judgment in order to allow my views on these two points to
be expressed in a less inadequate and inelegant manner than may be the case in
an extempore judgment. But I have reached a conclusion that an injunction
should go and if I were to reserve my judgment, then since I shall be out of
London next week, there would be a period of time during which the plaintiffs
would be deprived of the relief to which I think they are entitled. So I must
do the best I can to explain extempore why it is I think the plaintiffs are
entitled to injunctions.
The matter
concerns a highly prestigious development site to the south of Tower Bridge in
London. The defendant, Berkley House
works are being carried out by contractors. The contractors are subsidiary
companies of the defendants. The development site is bounded on the north by a
street called Shad Thames, on the west by Horselydown Lane, on the south by
Gainsford Street and on the east by Lafone Street. The site has both brewery
and river connections; it includes The Cooperage, Eagle Wharf, Crown Court,
Anchor Court and Horselydown House. Residential, commercial and car-parking
development is contemplated for this important site.
The plaintiffs
own properties to the north and west of the development site. The first
plaintiff, Anchor Brewhouse Developments Ltd, owns the property shown coloured
yellow on the plan annexed to the writ and known as Anchor Brewhouse. Anchor
Brewhouse is situated therefore to the north of Shad Thames and has a frontage
to the river. The second plaintiff, Dual Developments (Jersey) Ltd, owns a
property called Butlers Wharf West, which adjoins the first plaintiff’s land,
lies north of Shad Thames and has a frontage to the river. It is coloured pink
on the plan annexed to the writ. The third plaintiff, Ironacre Ltd, owns a
property, the name of which I cannot read, which is situated on the west side
of Horselydown Lane opposite the development site. There is, in addition, one
other site that I should mention. It is a site called Portland Wharf and lies
north of Shad Thames on the west side of Anchor Brewhouse. It is relevant to
the future development of the first plaintiff’s property, Anchor Brewhouse.
For the
purpose of developing its site the defendant or one of its contractors has been
using and is using a number of tower cranes. A tower crane is static. When not
in use the boom or jib of the crane must be left free to swing, like a weather
vane, in the wind. Otherwise there is a danger that the crane may collapse in a
high wind. So the boom must be left free-swinging.
Both when
free-swinging and when in use the booms swing over the respective properties of
the plaintiffs. This, the plaintiffs contend, is trespass. They say that they
have given no permission for the booms to swing over their respective
properties and that they want the trespasses stopped. They have called upon the
defendant to desist, but without avail, and they therefore come to the court
for injunctive relief.
The case for
injunctive relief, save in one respect, is not based upon any actual or
apprehended damage to the plaintiffs’ respective proprietary interests. The
plaintiffs seek injunctions simply on the footing that they are owners of their
properties and that trespass has been committed and is threatened to be
continued.
The defendant
resists the plaintiffs’ claim on two grounds. First, the defendant contends
that there is no trespass at all. It is denied that an infringement of air
space at the height at which the booms of the tower cranes pass over the
plaintiffs’ properties represents trespass. It is contended that, at most, the
infringement of air space might represent nuisance. But damage is a necessary
ingredient of the tort of nuisance and, in the absence of damage, there can be
no nuisance. So it is said there is no tort being committed. Liability is
denied.
If that is
wrong and if oversailing booms do constitute trespass, the defendant contends,
second, that it ought not to be subjected to injunctions restraining the use of
the cranes in the manner I have described. The trespass, if that is what it is,
does no actual damage to the plaintiffs. Use of static tower cranes is
virtually essential for the commercial development of this important site. The
defendant has found itself in danger of being injuncted through no fault of its
own. The plaintiffs stood by and allowed the tower cranes to be erected and
used. For all these reasons, it is submitted, the plaintiffs ought not to be
granted injunctive relief but should be left to damages at common law.
Before
returning to the two grounds of defence, namely, trespass or no trespass and
injunction or no injunction, I should relate a little more of the history of
the development.
There have
been, in all, four cranes on the development site. The earliest of these cranes
was erected by the defendant in January 1986 in the north-east corner of the
development site near Eagle Wharf. The boom of this crane oversailed the second
plaintiff’s land but not the land either of the first plaintiff or of the third
plaintiff. This crane remained in position from January 1986 to October 1986.
There is no evidence that over that period any complaint about it was made by
the second plaintiff.
Another crane
is situated towards the south-east corner of the site near The Cooperage. This
crane does not oversail any of the plaintiffs’ respective properties. Its
relevance is that it does, from time to time, oversail a neighbouring property
owned by the Nationwide Building Society. That oversailing is, however,
authorised under a licence granted by the Nationwide Building Society to the
defendant. I have not seen a copy of this licence, but its existence is some
indication of awareness on the part of the defendant that permission would be
requisite in order to protect itself against complaints of neighbouring
landowners whose properties were oversailed by its cranes.
The two cranes
with which this action is directly concerned are situated at points marked ‘A’
and ‘B’ respectively on the plan annexed to the writ. Point ‘A’ is towards the
north-west corner of the site, somewhat more north than west. The crane at ‘A’
oversails both the first plaintiff’s property and the second plaintiff’s
property. That crane was erected in October 1986. It is still in use. The crane
at ‘B’ is situated fairly close to the western boundary of the development site
and about halfway down the frontage with Horselydown Lane; it oversails the
third plaintiff’s property. The crane at point ‘B’ was erected by the defendant
in January 1987. It, too, is still in use.
An additional
issue between the plaintiffs and the defendant relates to certain car-parking
rights which the plaintiffs claim in the car-parking areas of the development
site. The notice of motion sought relief in respect of this issue. Happily,
however, the parties have, for interlocutory purposes, come to an accommodation
concerning the car-parking issue.
The
correspondence between the parties deals both with the cranes and with the
car-parking issue. I need only refer to the reference to the cranes. By a
letter dated December 23 1986 from Mr Lake, the defendant’s solicitor, to Mr
Weller, of Gardner Weller & Co, the solicitors acting in this action for
all three plaintiffs, Mr Lake wrote as follows:
You mentioned
to me recently that parts of my clients’ cranes were overhanging your client’s
properties. In fact I have now been notified that my clients will be commencing
work on the land adjoining the Tower Bridge offices, and there may be a minor
infringement over your client’s air space.
I think,
although there is no clear evidence of this, that ‘the land adjoining the Tower
Bridge offices’ is the part of the development site opposite the third
plaintiff’s property. The letter goes on:
Please accept
this letter therefore as formal request for a licence from your clients to
allow such infringement upon such reasonable terms as your clients may
stipulate.
There is some
doubt as to who were Mr Weller’s ‘clients’ referred to in this letter. At the
date of this letter the first plaintiff had not yet purchased Anchor Brewhouse.
It acquired that property in January 1987. It may be that Mr Weller’s clients
included both the second and third plaintiffs. But it may also be that one or
other of them at that time was not, at the date of this letter, his client. The
letter is significant in that it appears to recognise that, in a technical
sense at least, the oversailing to the cranes represented trespass.
The question
of a licence does not appear to have been pursued. The next relevent letter was
dated February 11 1987 and was from Gardner Weller & Co to Mr Lake. The
letter was couched as a letter before action. It was written on behalf of the
first plaintiff, not on behalf of the second or third plaintiffs. On the second
page there is this:
We have
already discussed the erection of cranes by your client, one of such cranes
swings over my client’s property and is clearly a trespass of their air space.
No consent has been sought of either my clients or my clients predecessors.–
I must
therefore place on record the following:–
. . . .
5. Your client
is committing a trespass of my client’s air space.
My clients
therefore require your client:–
. . . .
(d) to forthwith cease operating the crane which
trespasses my client’s air space.
Since the
letter was written on behalf of the first plaintiff, the crane referred to must
have been the crane at ‘A’.
The demand for
cesser of use of the crane was not complied with. Mr Lake’s letter in reply
contained nothing relevant.
In, I think,
late February, a draft licence to permit the oversailing was submitted by Mr
Lake to Mr Weller. The licence has many of the important parts left blank, such
as the amount of the licence fee. I need not read the draft licence. Its terms
were never agreed.
By a letter of
February 24 1987 Mr Weller wrote to Mr Lake informing him that:
I have
instructed counsel to settle the necessary papers with a view to taking
proceedings for an injunction both in respect of the cranes and the loss of car
parking spaces in The Cooperage.
I draw
attention to the use of the plural — cranes. This was the first clear complaint
in relation to the crane at ‘B’.
The writ was
issued on March 2 1987. It was followed by a notice of motion seeking
injunctions restraining the defendant from causing or permitting the cranes
from overhanging or passing over any part of the respective plaintiffs’
properties.
The first
question with which I must deal is whether the oversailing cranes are
committing trespass or whether the invasion of air space by tower cranes sounds
only in nuisance.
The question
whether invasion of air space is as much trespass as invasion on or beneath the
surface of land is a matter which has been the subject of judicial and academic
examination for some time. The first comprehensive modern review of authority
is to be found in the decision of McNair J in Kelsen v Imperial
Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334. That case
concerned an advertising sign erected by the defendant which projected into the
air space above the plaintiff’s property. The plaintiff sought a mandatory
injunction for the removal of the sign on the grounds that its presence above
his property constituted trespass. The defendants alleged that if the presence
of the sign constituted a tort at all it could be only nuisance. McNair J held
that there was a trespass. In his review of the earlier authorities he began
with Pickering v Rudd (1815) 4 Camp 219, a decision of Lord
Ellenborough. He cited a passage in which Lord Ellenborough was considering
whether it was a trespass to fire a bullet across a field. Lord Ellenborough
expressed the opinion that it was not but that if the bullet fired across the
boundary were to fall to the ground in the field then that would be trespass.
McNair J referred also to Clifton v Viscount Bury (1887) 4 TLR 8
in which Hawkins J followed Lord Ellenborough and concluded that the passage of
bullets above but not striking the surface of the plaintiff’s land was not
trespass. McNair J then considered another line of authority starting with Wandsworth
District Board of Works v United Telephone Co Ltd (1884) 13 QBD 904.
In that case a telephone line above a street was regarded by each of the lords
justices who heard the appeal as capable of constituting trespass against the
local authority in which the street was vested. That line of authority McNair J
held to be authoritative justification for the conclusion that trespass and not
mere nuisance was constituted by the advertising sign that invaded the
plaintiff’s air space.
It is of some
interest that McNair J referred to the Civil Aviation Act 1949 which was
enacted in order to prevent the mere fact of an aeroplane passing through the
air above land from constituting trespass or nuisance.
The conclusion
of McNair J corresponds with the concession made by counsel before Stamp J in Woollerton
and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411 that the
oversailing boom of a tower crane represented trespass. I shall have to refer
again to the judgment of Stamp J. The case proceeded before him on the footing
that the boom trespassed upon the plaintiff’s land by oversailing it. At p 413C
Stamp J recorded the position thus:
It is no part
of the plaintiffs’ case that the crane incommodes them or their servants in the
slightest degree or is in any way a nuisance. The plaintiffs do not claim that
they are in any fear or apprehension. But they claim an interlocutory
injunction to restrain what is conceded to be an invasion of their air space
and a trespass.
So the
question whether the oversailing represented trespass was not the subject of
decision by Stamp J. It was, however, the subject of decision in an Australian
case, Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1. This
case, too, involved the oversailing boom of a tower crane. It was argued that
the oversailing and the invasion of the air space was nuisance at most and not
trespass, but Campbell J held that it was trespass. At p 4 he said:
In my opinion
the invasion of the plaintiff’s air space by the crane jib is a trespass by the
defendant and not a mere nuisance. I am not prepared to take a different view
of this issue which differs from that expressed by McNair J in Kelsen v Imperial
Tobacco Co [1957] 2 QB 334.
Mr Moss, for
the defendant, relies heavily on the judgment of Griffiths J (as he then was)
in Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978]
QB 479. This was a case in which the defendant used an overflying aeroplane in
order to obtain aerial photographs of Lord Bernstein’s country residence. Lord
Bernstein alleged that in so doing the defendant was trespassing in his air
space and invading his right to privacy. He sued for damages. Griffiths J was
not prepared to hold that the invasion of air space by an overflying aircraft
represented trespass. He referred to the previous authorities, in particular to
Kelsen v Imperial Tobacco Co and, at p 486G, said:
I do not wish
to cast any doubts upon the correctness of the decision upon its own particular
facts. It may be a sound and practical rule to regard any incursion into the
air space at a height which may interfere with the ordinary user of the land as
a trespass rather than a nuisance. Adjoining owners then know where they stand;
they have no right to erect structures overhanging or passing over their
neighbours’ land and there is no room for argument whether they are thereby
causing damage or annoyance to their neighbours about which there may be much
room for argument and uncertainty.
But wholly
different considerations arise when considering the ‘passage of aircraft at a
height which in no way affects the user of the land’. Griffiths J referred to
the old Latin maxim cujus est solum ejus est usque ad coelum et ad inferos,
but commented, at p 487G:
I can find no
support in authority for the view that a landowner’s rights in the air space
above his property extend to an unlimited height. In Wandsworth Board of
Works v United Telephone Co Ltd . . . . Bowen LJ described the
maxim, usque ad coelum, as a fanciful phrase, to which I would add that
if applied literally it is a fanciful notion leading to the absurdity of a
trespass at common law being committed by a satellite every time it passes over
a suburban garden. The academic writers speak with one voice in rejecting the
uncritical and literal application of the maxim.
He then
referred to various academic works and continued:
I accept
their collective approach as correct. The problem is to balance the rights of
an owner to enjoy the use of his land against the rights of the general public
to take advantage of all that science now offers in the use of air space. This
balance is in my judgment best struck in our present society by restricting the
rights of an owner in the air space above his land to such height as is
necessary for the ordinary use and enjoyment of his land and the structures
upon it, and declaring that above that height he has no greater rights in the
air space than any other member of the public.
Mr Moss
fastened on the learned judge’s reference to balancing the rights of an owner
against the rights of the public and contended that it justified a whole new
appraisal of ownership in so far as it extended to air space above the property
owned.
In my view, it
would be an incorrect use of authority to extract Griffiths J’s approach to the
difficult question of overflying aircraft and to seek to apply that approach to
the invasion of air space in general. Griffiths J was dealing with an argument
that the incursion by an aircraft into the air space above the plaintiff’s land
represented trespass. He was not prepared to accept that that was necessarily
so. But he accepted in the first passage I cited that adjoining owners had no
right to erect structures projecting over their neighbours’ land. His dictum
about balancing the owners’ rights against the rights of the general public was
not, in my opinion, intended to limit the complaints to trespass that might in
that event be made by neighbours. Mr Moss argued that, in view of the Bernstein
case, the critical question was whether the invasion of air space interfered
with the ordinary use and enjoyment of the land. The owner of the land is
entitled to complain of trespass if the invasion is at a level above the land
that does so interfere. Otherwise the invasion should, said Mr Moss, be
rejected as trespass. I am not satisfied that represents a permissible
application of Griffiths J’s approach in the Bernstein case nor that it
would be workable in practice.
What is
complained of in the present case is infringement of air space by a structure
positioned upon a neighbour’s land. The defendant has erected tower cranes on
its land. Attached to each tower crane is a boom which swings over the
plaintiffs’ land. The booms invade the air space over the plaintiffs’ land.
Each boom is part of the structure on the defendant’s land. The tort of
trespass represents an interference with possession or with the right to
possession. A landowner is entitled, as an attribute of his ownership of the
land, to place structures on his land and thereby to reduce into actual
possession the air space above his land. If an adjoining owner places a
structure on his (the adjoining owner’s) land that overhangs his neighbour’s
land, he thereby takes into his possession air space to which his neighbour is
entitled. That, in my judgment, is trespass. It does not depend upon any
balancing of rights.
The
difficulties posed by overflying aircraft or balloons, bullets or missiles seem
to me to be wholly separate from the problem which arises where there is
invasion of air space by a structure placed or standing upon the land of a
neighbour. One of the characteristics of the common law of trespass is, or
ought to be, certainty. The extent of proprietary rights enjoyed by landowners
ought to be clear. It may be that, where aircraft or overflying missiles are
concerned, certainty
to that problem in the Bernstein case. But certainty is capable of being
achieved where invasion of air space by tower cranes, advertising signs and
other structures are concerned. In my judgment, if somebody erects on his own
land a structure, part of which invades the air space above the land of
another, the invasion is trespass. That conclusion is consistent with the
judgment of McNair J in Kelsen, with the concession made in Woollerton
and Wilson Costain, with the decision of Campbell J in the Australian case,
and also with the dictum of Griffiths at p 486 in the Bernstein case. If that
is right, then the cranes oversailing the plaintiffs’ land commit trespass.
In my view,
the defendant is committing trespass by its use of its oversailing cranes. This
is not a case, in my judgment, in which there is any issue on liability which
must await trial. It is not a case, therefore, in which balance of convenience
as to what should be done at this interlocutory stage is relevant. The
plaintiffs are, in my judgment, entitled now to the injunctive relief to which,
in accordance with the view of the law that I take, they would be entitled at
trial.
That brings me
to Mr Moss’ second point. He submitted that if the trial were now, the plaintiffs
would not succeed in obtaining a permanent injunction. So, he submitted, they
should not get an interlocutory injunction either.
Mr Martin has
submitted that if I am satisfied, as I am, that the oversailing booms of the
cranes are committing trespass and if it is the case, as it is, that the
trespass is threatened to be continued by the defendant, the plaintiffs are
entitled to an injunction as of course. An injunction is a discretionary
remedy, but it is well settled that the discretion must be exercised in
accordance with judicial precedent and principle and there is authority for Mr
Martin’s submission that a trespass threatened to be continued will be
restrained by injunction as of course.
In Woollerton
and Wilson v Costain Stamp J said at p 413:
It is the
plaintiffs’ case that the absence of any damage caused by the trespass, either
present or apprehended, is no reason for refusing the injunction for which they
ask. It is their further contention that since the tort of trespass is admitted
and is threatened to be continued there is no good reason for refusing
interlocutory relief on the ground of balance of convenience. In my judgment
both these submissions are well founded.
It is in my
judgment well established that it is no answer to a claim for an injunction to
restrain a trespass that the trespass does no harm to the plaintiff. Indeed,
the very fact that no harm is done is a reason for rather than against the
granting of an injunction: for if there is no damage done the damage recovered
in the action will be nominal and if the injunction is refused the result will
be no more nor less than a licence to continue the tort of trespass in return
for a nominal payment. Furthermore, the very fact that the plaintiff is the
owner of the property
‘that no
interference of this kind can lawfully take place without his consent, and
without a bargain with him, gives his interest in this land, even in a
pecuniary point of view, precisely the value which the power of veto upon its
use creates, when such use is to any other person desirable and an object
sought to be obtained.’
See the
judgment of Lord Selborne LC in Goodson v Richardson (1874) 9 Ch
App 221, 224.
Sir George
Jessel MR in Eardley v Granville (1876) 3 Ch D 826,832, remarked
of the defendant in that case:
‘. . . he
is a mere trespasser and he being a trespasser comes within the
well-established doctrine of Goodson v Richardson and Rochdale
Canal Co v King (1851) 14 QB 122, where damages would be no
compensation for a right to property, and the plaintiffs are entitled to
prohibit him by injunction. There may be little or no injury to the estate, but
if they restrain him he will be glad to pay a wayleave.’
Mr Moss
pointed out, and it is common ground, that there is a flaw in that exposition
of the law. The learned judge proceeded on the footing that nominal damages
only could be recovered for the trespass. He was not referred by counsel to the
line of authority enabling damages to be awarded to represent the sum that on a
‘willing grantor/grantee’ basis the plaintiff might have charged the defendant
for a licence to commit the trespass. Mr Moss fastened on that error in order
to submit that Stamp J’s conclusion that an injunction should be granted to
restrain the trespass was unsound. I do not agree. Stamp J based himself upon
firm early authority in the form of the decision of Lord Selborne in Goodson
v Richardson and of Sir George Jessel in Eardley v Granville.
Both these authorities justify the grant of injunctive relief to restrain
trespass notwithstanding that the damage to the plaintiff may be trivial only.
Lord Selborne and Sir George Jessel adopted a robust Victorian approach which
might, perhaps, find less sympathy now. The ownership of property entitled the
owner to license or refuse to licence the use of it by others. If he is asked
to license the use of it by others, he can charge whatever he chooses for the
licence. The law will recognise and protect the monopoly that his ownership
carries with it. That is the philosophy, as I read the two cases, underlying
the judgments of Lord Selborne and of Sir George Jessel. The grant of the
injunction by Stamp J was in accordance with the principle expressed in these
two cases. It did not depend on the nominal damages point. It is to be noted
that, having found that an injunction ought to be granted, Stamp J then
proceeded to suspend the operation of it for the only period for which it could
have been of any use. Some reservation as to the correctness of that suspension
was subsequently expressed by the Court of Appeal in Charrington v Simons
& Co Ltd [1971] 1 WLR 598.
In John
Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P&CR 104
Walton J expressed the clear view that the suspension was wrong. This was a
strong case. The plaintiff and the defendant owned adjoining properties. The
defendant’s building was in need of repair and dangerous to the public. In
order to carry out the repairs the defendant wanted to erect scaffolding. The
scaffolding would partly overhang and partly rest upon the plaintiff’s property.
The defendant sought a licence from the plaintiff to erect this scaffolding.
The licence was refused. The defendant went ahead and erected the scaffolding,
thereby trespassing on the plaintiff’s property. The plaintiff commenced
proceedings for an injunction. Walton J granted the injunction. He referred to Woollerton
and Wilson v Costain, expressed his disagreement with the suspension
of the injunction which Stamp J had granted and then said (p 108):
The matter
can be tested, I think, very simply in this way. Supposing that instead of
putting up that scaffolding, as the second defendants doubtless did, taking
their time about it in the normal way, supposing they had signalled notice of
their intention well in advance so that it was quite clear what was going to
happen if it was not restrained, and the plaintiffs had applied to the court
for an injunction quia timet; what conceivable ground could have been
put forward by the defendants in answer to the claim for such an
injunction? There is not the faintest
shadow of a reason they could have advanced why they should not be restrained
from committing the trespass. Can it then be any better that they have actually
committed it? Does the fact that their
having committed it and it being, I doubt not from a structural point of view
and commercially, highly advantageous to them that they should be able to go on
and complete their building make the matter better from their point of
view? Does that give them any right at
all to have a suspension of the injunction which, if the plaintiffs had been
able to come realising what was going to happen earlier, they would have got
without the faintest difficulty at all?
The answer must clearly be ‘No’, there can be no conceivable reason for
any such postponement at all.
Earlier in his
judgment the learned judge said (p 107):
But it is
perfectly clear that the actual damage, apart from any question of aggravation,
caused by the mere trespass, both by oversailing the front of the plaintiffs’
property and by actually resting upon the rear of the plaintiffs’ property, is
comparatively slight; so slight that if an action were brought for it, it would
hardly command the smallest coin in the realm. But so far from that being a
reason why an injunction should not be granted, it has been said in many of the
cases to which Mr Munby drew my attention that the fact that any damage would
be trifling is the very reason why an injunction should be granted. People are
not to infringe the property rights of others and then say, ‘And I am entitled
to go on doing it because I am really doing you no tangible harm and five pence
will amply compensate you for that harm.’
Mr Moss
commented that the point that only trifling damages were recoverable was not
correct. I think that it is common ground before me that that is so. In the Trenberth
case, as in Stamp J’s case, it would have been open to a court in assessment of
damages to charge the defendant with, in effect, a reasonable licence fee. But,
none the less, the view of the learned judge was that, trespass having been
established and being proposed to be continued, an injunction should go.
Both Woollerton
and Wilson v Costain and Trenberth v National Westminster
Bank were mentioned with approval by the Court of Appeal in an unreported
case Patel v W J Smith (Eziot) Ltd decided on January 28 1987. A
transcript of the judgment has been supplied to me. The case involved a dispute
between neighbours about rights of parking. The defendants claimed and were
exercising a wider right to park vehicles in the plaintiff’s yard than that to
which they were entitled. The plaintiff’s claim for an interlocutory injunction
had been dismissed at first instance on the ground (inter alia) that the
damage caused to the plaintiff by the trespass was trifling. The Court of
Appeal allowed the appeal and granted the injunction.
Balcombe LJ
gave the leading judgment in the case. At the bottom
What, then,
are the principles which the Court should apply in a case of this type? It seems to me that, first, prima facie
a landowner, whose title is not in issue, is entitled to an injunction to
restrain trespass on his land whether or not the trespass harms him. In support
of that proposition there are two comparatively recent cases at first instance.
He then
referred to Woollerton and Wilson and to John Trenberth Ltd with
approval. On the next page, having referred to Behrens v Richards,
where an injunction to restrain trespass had not been granted, Balcombe LJ
said:
If it came to
a choice between these two lines of authority, for my part I think I would
prefer the more recent authority,
by which he
meant Woollerton and Wilson and the Trenberth case
but I do not
think it necessary to go to the extent of saying that this court must choose to
follow one line of authority rather than another. In normal circumstances the prima
facie test should be that indicated by Stamp J in the Woollerton and
Wilson case, but there may be exceptional circumstances, such as those
considered by the court in Behrens v Richards, when the court
will not think it appropriate to grant an injunction.
The Court of
Appeal’s approach in the Patel case requires me, in my judgment, to
proceed on the footing that, prima facie, the plaintiffs are entitled to
an injunction to restrain the continuing trespass. Mr Moss, however, has put
forward special circumstances which, he submits, justify withholding an
injunction. He points out, perhaps rightly, that the possibility of special
circumstances justifying the withholding of an injunction to restrain a
continuing trespass was accepted by Balcombe LJ.
Before I come
to the special circumstances on which the defendant relies, I should refer to
two cases in which injunctions to restrain trespass were not granted. The first
is Behrens v Richards [1905] 2 Ch 614, to which Balcombe LJ
referred. It was an unusual case. The plaintiff was a substantial landowner who
had newly arrived in a country district. Members of the community were
accustomed to use paths over the property he had purchased. He blocked up the
paths and tried to prevent them entering his land. There then seems to have
been a campaign mounted against him by the local community. His hyacinths were
trampled and his fences were broken. So he brought an action for declaratory
relief and an injunction. The main point of the case was whether the members of
the local community could establish public rights of way over the plaintiff’s
land. They failed to do so. Buckley J (as he then was) granted declaratory
relief to that effect. But he declined to grant an injunction against the
defendants. He said at p 622 of his judgment:
No doubt it
is the law that upon the foreshore of this country and the rough cliff paths
which exist in many places along the coast the public have not a right of way
recognised by the law, and no doubt it is true that rights of property are as a
general proposition entitled to protection by, if necessary, an injunction of
this Court. But it does not follow that if the owner of the foreshore
say at some
well-known seaside resort
came to this
Court for an injunction to restrain the nurserymaids from wheeling their
perambulators on the sands or the children from playing on the rocks, this
Court is bound to make, or in the absence of good reason would make, such an
order.
Then he went
on a little later on the same page:
The existing
security of the tenure of land in this country is largely maintained by the
fact that the owners of the land behave reasonably in the matter of its
enjoyment. It would, in my judgment, be a disastrous thing, not for the public
only, but for landowners also, if this Court at the caprice of the landowner,
not because circumstances have altered, but merely because he was minded that
it should be so, entertained every trivial application to restrain persons by
injunction from using paths which, though not public highways, have in fact
been used by the permission of the owners for many generations, and whose user
is no injury to the owner of the land.
Those reasons
for declining to grant an injunction seem to me to have no bearing at all to
the present case. The present case is one in which both parties are commercial
owners of property ripe for development. The use that they are respectively
entitled to make of one another’s land has nothing to do with the circumstances
which Buckley J had in mind in Behrens v Richards as justifying
the withholding of an injunction.
The other
authority on which Mr Moss relied was a decision of Graham J, Bracewell
v Appleby [1975] Ch 408. This was an odd case. The plaintiffs were
owners of houses in a relatively small development consisting of six houses
round a cul de sac. There were two plaintiffs. The defendant had purchased one
of the houses in the cul de sac. All the houses in the cul de sac were serviced
by a private road. Each house owner was the owner of a part of the private road
subject to the rights of way of the others. The defendant purchased a plot of
land at the back of his house. On it he built a new dwelling. He intended
access to the new dwelling to be gained via the private road. An action was
started by the plaintiffs to restrain the use of the private road for the
benefit of the new house. The cause of action was trespass. An interlocutory
injunction was refused by Sir John Pennycuick V-C on the ground that it was at
least arguable that the defendant’s existing right of way over the private road
entitled him to use the road for the purposes of an enlarged dominant tenement.
After the refusal of interlocutory relief the defendant completed the building
of the new house, moved into it himself and sold his original house in the cul
de sac. So the argument of law left open by the Vice-Chancellor was no longer
relevant or available. At trial Graham J had no doubt that the use of the
private road by the defendant for the purposes of his new house was trespass;
but Graham J declined to grant an injunction and instead awarded damages to the
plaintiffs. In the last sentence of his judgment Graham J said this:
. . . I
therefore award them
the plaintiffs
£400 each by
way of damages for the exercise of a right of way over their respective pieces
of land.
He declined to
grant an injunction because if he had done so the defendant, in his land-locked
new house, would have had no means of access to the public highway. His house
would have been rendered uninhabitable.
I find some
difficulty with Bracewell v Appleby mainly because, as it seems
to me, the learned judge regarded the damages he was awarding as a once and for
all payment. But it was, as I see it, not within the power of the judge to
produce that result. Whether or not an injunction were granted, the defendant’s
use of the right of way would, after the judgment as well as before, represent
trespass unless and until he were granted a right of way. The judge could not
by an award of damages put the defendant in the position of a person entitled
to an easement of way. So assuming, which is not clear from the case, that
there had not been some agreement by the plaintiffs to treat the damages as
entitling the defendant to a right of way, the defendant’s subsequent use of
the private road would have constituted a continuing trespass. A succession of
further actions for damages could have been brought. In those circumstances it
seems to me very difficult to justify the withholding of the injunction. By
withholding the injunction the court was allowing a legal wrong to continue
unabated. None the less Mr Moss is entitled to refer to the case as one in
which an injunction was refused.
I now turn to
the special circumstances on which he relies. First, he submitted the
oversailing caused no harm to any of the plaintiffs. That is certainly true so
far as the second plaintiff and the third plaintiff are concerned. There is no
evidence before me that the oversailing booms are interfering or are likely to
interfere with any use to which either wishes to put its property. It is not
clear that that is the position so far as the first plaintiff is concerned.
There is evidence before me that the first plaintiff intends to develop Anchor
Brewhouse in the near future. There is evidence that the oversailing boom of
the crane at ‘A’ makes the erection of a tower crane on the Anchor Brewhouse
impossible. It is ironical that the boom of a tower crane on the Anchor
Brewhouse would inevitably oversail the defendant’s site. Be that as it may,
the crane at ‘A’ has an inhibiting effect on the first plaintiff’s ability to commence
the development of its own land. There is no clear evidence of when the first
plaintiff desires to commence development, but the evidence suggests a present
desire to commence the development in the not too distant future.
I should
mention that the defendant contemplates keeping the crane at ‘A’ in its present
position until June and the crane at ‘B’ in its present position until October
or November.
I do not think
Mr Moss’ point that the trespass is causing no harm is a sound one except in
the sense that the oversailing booms are causing no physical harm or
interference with present plans. One of the rights of an owner of property is
the right to allow others on terms acceptable to the owner to use the property;
another right is the right to prevent others from using the property. The use
by the defendant of the oversailing cranes deprives the plaintiffs of these
rights. It deprives the plaintiffs of the right to bargain as they wish for the
grant of rights over their property. It is not, in my view, accurate to say
that
underlies, I think, the remarks made by Lord Selborne and by Sir George Jessel
in the respective passages cited by Stamp J.
Mr Moss’
second point is that the tower cranes stand high above the ground and their
oversailing booms do not interfere with any ordinary use of the plaintiffs’
properties. That, as a fact, I accept. But if, as I think, the booms are
trespassing, their height above the ground is not, in my view, a special
circumstance of any relevance.
Third, Mr Moss
submitted that the defendant, if it was trespassing by its use of tower cranes
with oversailing booms, was trespassing through inadvertence and not culpably.
I am not impressed by that point. The defendant could not have supposed that it
had any right for its cranes to oversail the plaintiffs’ properties. That has
not been contended by Mr Meehan, a director of the defendant, who swore an
affidavit. The most Mr Meehan was prepared to say was:
In my
experience when carrying out this sort of development, when a site is
surrounded by largely undeveloped buildings, it is unusual to seek permission
from the owners of the surrounding land to put up a tower crane.
But ever since
the judgment of Stamp J in Woollerton and Wilson v Costain,
which was reported in 1970, developers have been on notice of the-potential
risks arising from trespass by oversailing cranes. Stamp J said, at p 416:
A contractor
in the future will be warned not to enter into a building contract involving
the erection of one of these cranes in such a position as to swing upon the
land of an adjoining owner without first obtaining permission from that
adjoining owner.
Further,
notwithstanding that Mr Moss has argued that the oversailing cranes do not
thereby trespass, a point on which I have found against him, it seems to have
been believed by those advising the defendant that a technical trespass was
being committed by the cranes. I derive that from the terms of the letter of
December 23 1986 to which I have already referred. Moreover, the crane at ‘B’
was erected in January 1987 after there had already been correspondence
regarding the technical trespass and after a licence had been suggested.
It is of some
significance also that the defendant negotiated with the Nationwide Building
Society a licence to allow the crane at The Cooperage to oversail the building
society’s property. In all these circumstances the inadvertence, if that is
what it was, of the defendant is, in my view, no reason for withholding an
injunction.
Finally, a
special circumstance relied on by Mr Moss was that each of the plaintiffs had
stood by and allowed the tower cranes to be built and used without complaint.
This point is at its strongest when applied to the second plaintiff. The second
plaintiff made no objection to the oversailing of its land by the crane
situated near Eagle Wharf. It made no objection when the crane at ‘A’ was
erected in October 1986. Objection or complaint was not made until after the
erection of the crane at ‘B’ in January 1986. The case against the first and
third plaintiffs is much weaker. All that can be said is that they did not
object when the tower cranes were being erected. Mr Moss did rely also on a
letter which one or all of the plaintiffs caused to be written in support of
the defendant’s planning application for planning permission. I place no weight
at all on that letter. It does not seem to me to be capable of being
represented as an encouragement to the defendant to erect trespassing tower
cranes. The crane at ‘A’ was erected in October 1986 and was in use before the
first plaintiff acquired its property. But, said Mr Moss, its predecessor in
title must have stood by and allowed the crane to be erected and used. In my
opinion, however, an owner of land against whom no more can be said than that
he has not intervened to prevent a neighbour from erecting a tower crane on the
neighbour’s land, does not thereby lose the right to claim an injunction to
prevent the crane from trespassing.
Mr Moss
referred me to E R Ives Investment Ltd v High [1967] 2 QB 379, a
decision of the Court of Appeal. In that well-known case Lord Denning MR,
referring to the equity arising out of acquiescence, said this at p 394:
The right
arises out of the expense incurred by Mr High in building his garage, as it is
now, with access only over the yard: and the Wrights standing by and
acquiescing in it, knowing that he believed he had a right of way over the
yard.
The proposition
that the first plaintiff or the third plaintiff, or for that matter the second
plaintiff, stood by knowing that the defendant believed it had the right to
oversail their respective properties is far-fetched and not really capable of
being pursued. I think it clear that the defendant at no stage thought that it
had that right. The defendant may have thought that the plaintiffs would not
object but that, in my view, is not enough to give rise to the equity unless,
at least, it were a state of mind induced by the plaintiffs.
If the second
plaintiff’s case had stood alone there would, I think, have been a serious
question whether an injunction should be granted. The second plaintiff’s
apparent acquiescence in the oversailing of its property by the crane at Eagle
Wharf might be said to have encouraged the defendant to erect the crane at ‘A’
in the belief that the second plaintiff would not object to oversailing by that
crane. But there is no comparable point that can be raised against the first
plaintiff. If the first plaintiff is entitled to an injunction to restrain
trespass by the crane at ‘A’ I do not think there is sufficient to justify
depriving the second plaintiff of that remedy. The second plaintiff’s failure
to protest about the Eagle Wharf crane did not, in my view, entitle the
defendant to assume that there would be no objection to any other crane.
What has
troubled me about the plaintiffs’ claim to an injunction is not any of the
special circumstances relied on by Mr Moss but simply that it seems sensible
that the defendant’s building construction should be done by means of tower
cranes. The injunctions which I feel obliged to grant in order to reflect the
plaintiffs’ proprietary rights will put the defendant in a position in which it
must come to terms with the plaintiffs if it is going to continue to use its
tower cranes.
It would in
many respects be convenient if the court had power, in order to enable property
developments to be expeditiously and economically completed, to allow, on
proper commercial terms, some use to be made by the developers of the land of
neighbours. But the court has no such power and ought not, in my view, to claim
it indirectly by the withholding of injunctions in cases like the present. Some
statutes have granted the court analogous powers: see eg the Medicines Act
1968, the Patents Act 1949, the Mines (Working Facilities and Support) Act
1966. There is a sense in which the grant of an injunction against trespass
enables a landowner to behave like a dog in a manger. I am not suggesting that
these plaintiffs are so behaving, but the conclusion that, even if they are,
they are none the less entitled to their injunction sticks a little in my
gullet. It would be possible for the law to be that the court should not grant
an injunction to restrain a trifling trespass if it were shown to be reasonable
and sensible that the trespass be allowed to continue for a limited period upon
payment of substantial and proper damages. But I do not think it is open to me
to proceed on that footing. There is too much authority in the way. The
authorities establish, in my view, that the plaintiffs are entitled as of
course to injunctions to restrain continuing trespass.
For these
reasons, reached with some regret, I grant the injunctions as asked.
Injunctions granted, suspended for 21 days.
