Trespass — Boundary — Trees — Judge awarding damages in respect of diminution in value of property — Whether judge assessing damages on correct basis — Appeal allowed
The appellants owned a dwelling-house and land, at the northern and western boundaries of which grew a row of mature poplar trees and some leylandii. The respondents, who owned an adjoining property, kept livestock, which broke through a fence on the boundaries of the appellants’ land and damaged the trees.
The appellants commenced proceedings in the county court for a declaration as to the position of the boundary between the properties, and injunctions requiring the respondents to prevent the livestock from straying onto their land, and the removal of the fencing attached to the trees, together with damages (including aggravated damages) for trespass. The respondents’ defence was subsequently struck out for failure to comply with directions, and the judge directed a hearing to assess damages.
The proceedings came before a recorder on the limited issue of damages. The respondents did not appear and were not represented at the hearing. The recorder, who was therefore denied the benefit of a report prepared by a tree expert instructed by the respondents, awarded: damages for diminution in the value of the property in the sum of £25,000; general damages of £3,000; aggravated damages of £1,000; and special damages (incidental costs) of £4,512.50.
The appellants were granted permission to appeal on the basis that it was arguable that the recorder had given insufficient weight to the damaging effect of the loss of the trees upon their home.
Held: The appeal was allowed.
The judge’s award in respect of diminution of value should be set aside because it had not been the appropriate basis upon which to measure damages for trespass in a case such as the present.
Where a claimant had not yet reinstated the property, he would usually be entitled to recover the cost of reasonable reinstatement, even if that cost were greater than the diminution in value. In assessing what was reasonable, the court would consider whether the amount awarded was objectively fair to both parties. In particular, the court would not award a sum that was disproportionate to the benefit conferred upon the claimant. Further, the cost of reinstatement had to be justified in the circumstances of the particular case: Scutt v Lomax (2000) 79 P&CR D31 applied; Farmer Giles Ltd v Wessex Water Authority [1990] 1 EGLR 177 considered.
The recorder had correctly taken the view that the replacement of the damaged trees with fully mature trees, at a cost of £193,000, would not satisfy the test of reasonableness since it was not what a reasonable man would or could do, even if he had ample funds.
However, the option of reinstatement with young trees seemed appropriate. The appellants’ objection, on the basis that the that young trees would not provide screening for several years, overlooked the fact that, in the short-term, no viable reinstatement option would restore the amenity to what it had been.
In all the circumstances, the court would substitute £44,500 in damages for trespass, and would increase the award of general damages for loss of amenity to £12,000 since the recorder had failed to appreciate that the amenity directly affected the enjoyment of the appellants’ home. That sum was appropriate to compensate the appellants for the loss of screening that they had come to value. Furthermore, bearing in mind that the trespass had been aggravated by the respondents’ deliberate and high-handed conduct, it was appropriate to substitute £4,000 in respect of aggravated damages.
Wasim Taskeen (instructed by Pannone & Partners, of Manchester) appeared for the appellants; Timothy Sampson (instructed by Whitehead Monkton, of Maidstone) appeared for the respondents.
Eileen O’Grady, barrister