Trespass — Whether injunction and/or damages appropriate remedy — Whether damages can be awarded for future acts of trespass — Determination of damages
In 1987 the
defendants, Mr and Mrs Sawyer, bought 5 Ashleigh Avenue, Maiden Newton, Dorset,
a semi-detached house at the end of a cul-de-sac. In December 1988 the
defendants bought an area of land adjoining no 5. Following the grant of
planning permission in 1988, the defendants constructed a dwelling-house on the
additional land, which became known as no 5A. By reason of correspondence with
the county surveyor the defendants believed that Ashleigh Avenue was a public
highway, but were aware of a restrictive covenant affecting no 5 that no part
of the land which was unbuilt upon should be used otherwise than as a private
garden. In June 1989 the plaintiff, the owner of 1 Ashleigh Avenue and of a
part of the land over which the avenue ran, contended that the defendants did
not have any rights of way over the avenue for the benefit of no 5A. The
present proceedings were commenced by the plaintiff on August 10 1989 by which
time the walls and the roof of no 5A were well advanced: the plaintiff did not
apply for interlocutory relief. The defendants sold no 5, less the access drive
to no 5A, and following the completion of no 5A moved into the house and lived
there until December 1991, when they let it. At the trial it was accepted that
Ashleigh Avenue was not a public highway. The plaintiff sought an injunction
restraining the defendants from trespassing on the plaintiff’s part of Ashley
Avenue, alternatively damages in lieu of an injunction under section 50 of the
Supreme Court Act 1981.
of which effectively removed the possibility of awarding damages in lieu of
injunction where the trespass was either continuing or anticipated: see Anchor
Brewhouse Developments Ltd v Berkley House and the second where the
court has a discretion to award damages under section 50 of the Supreme Court
Act 1981: see Bracewell v Appleby. The Bracewell case was
indistinguishable on its facts and should be applied. It was appropriate to
refuse to grant an injunction and to award damages in lieu having regard to the
conduct of the plaintiff, the defendants, the failure of the plaintiff to apply
for interlocutory relief, the nature of the trespass and of the relevant land.
(2) For the same reasons damages in lieu of an injunction in respect of the
breach of the restrictive covenant should be awarded. (3) Applying Wrotham
Park Estate Co v Parkside Homes Ltd the figure for damages is to be
assessed as if the negotiation for the right to use Ashleigh Avenue as access
to no 5A were taking place in the first half of 1989 prior to the commencement
of building. Having regard to a notional profit on no 5A of £22,000 and that
the defendants would have been prepared to pay not less than £5,000 to achieve
access and not more than £7,500, damages were assessed as the mean of £6,250
divided by the number of residents in the road, namely £694.54.
The following
cases are referred to in this report.
Anchor
Brewhouse Developments v Berkley House (1987)
38 BLR 82
Bracewell
v Appleby [1975] Ch 408; [1975] 2 WLR 282;
[1975] 1 All ER 993; (1974) 29 P&CR 204
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
Eardley v Granville (1876) 3 ChD 826
Goodson v Richardson (1874) 9 Ch App 221
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957]
2 QB 334; [1957] 2 WLR 1007; [1957] 2 All ER 343
Leeds
Industrial Co-operative Society v Slack [1924]
AC 851
Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853; [1987] 2 All ER
569, CA
Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287;
[1891-4] All ER Rep 838, CA
Stokes v Cambridge Corporation (1961) 13 P&CR 77; [1961] EGD
207; 180 EG 839, LT
Swordheath
Properties Ltd v Tabet [1979] 1 WLR 285;
[1979] 1 All ER 240; (1978) 37 P&CR 327; [1979] EGD 330; 249 EG 439, [1979]
1 EGLR 58, CA
Trenberth
(John) Ltd v National Westminster Bank Ltd (1979)
39 P&CR 104; 253 EG 151, [1980] 1 EGLR 102
Wrotham
Park Estate Co Ltd v Parkside Homes Ltd [1974]
1 WLR 798; [1974] 2 All ER 321; (1973) 27 P&CR 296
Woollerton
& Wilson Ltd v Richard Costain Ltd [1970]
1 WLR 411; [1970] 1 All ER 483
This was a
claim by the plaintiff, Heather Jaggard, for an injunction and damages in lieu
for trespass and breach of covenant against the defendants, Colin and Lorna
Sawyer, in respect of premises at Ashleigh Avenue, Maiden Newton, Dorset.
Mark Treneer
(instructed by Miln & Lyall, of Bridport) appeared for the plaintiff;
Jeremy Griggs (instructed by Clarke Willmott & Clarke, of Crewkerne)
represented the defendants.
Giving
judgment, JUDGE RAYMOND JACK QC said: The plaintiff in this action, lives
in the village of Maiden Newton, Dorset, at 1 Ashleigh Avenue. The defendants,
Mr and Mrs Sawyer, used to live in no 5A, which they built. They hold the legal
title to it. In Maiden Newton there is a public house with an unusual name, the
Chalk & Cheese. In the context of this unhappy case it seems appropriate.
Ashleigh
Avenue is a small cul-de-sac built as a private development and completed in
1959 or 1960. Bull Lane leads up from the main road to the railway and Ashleigh
Avenue is off to the left towards the top. It is some 50 yds long and the
roadway about 15 ft wide. Before the addition of no 5A there were 10 dwellings,
four small-detached bungalows on each side and a semi-detached pair at the end
facing towards Bull Lane. No 1, where Mrs Jaggard lives, is the first house on
the left. In 1987 Mr and Mrs Sawyer bought no 5. It is the left-hand house of
the semi-detached pair. In December 1988 they bought the back half of the land
comprised by 13 Bull Lane, which gave them an additional area adjoining the
left of no 5. On this land they built no 5A. For access they laid a driveway
running through to Ashleigh Avenue in part over land originally attached to no
5. In February 1990 they sold no 5, less than part of the driveway, and less a
strip of garden next to the left-hand boundary. This action is brought by Mrs
Jaggard to restrain Mr and Mrs Sawyer from using that part of Ashleigh Avenue
which she owns in front of her house as an access road to no 5A and to restrain
their use of land originally attached to no 5 as a driveway for no 5A.
It was at
first contended that Ashleigh Avenue had become a public highway, and section
31 of the Highways Act 1980 was relied upon. It was later accepted that there
was no evidence before the court that
case on the basis that Ashleigh Avenue is a private road.
When Ashleigh
Avenue was being developed and the plots were being sold off, covenants were
given and taken in the same terms in each case. It is accepted that these
covenants benefit and bind between themselves the present owners of the
original plots. Thus each such owner has a right of way against each of the
others over that part of the road which those others own outside their houses, and
each one is bound by restrictive covenants to which I will refer. It was not
suggested that no 5A is entitled to any right of way. Conversely, the 5A land
which has never been part of no 5 is free from any covenants.
The questions
which I have to determine are:
(a) Should the court grant an injunction to
restrain Mr and Mrs Sawyer from trespassing on Mrs Jaggard’s part of Ashleigh
Avenue? Or, should the court award her
damages in lieu of an injunction under the jurisdiction originally provided by
Lord Cairns’ Act and now by section 50 of the Supreme Court Act 1981, a
jurisdiction made available to the county court by section 38 of the County
Courts Act 1984 as amended by the Courts and Legal Services Act 1990?
(b) Is the use of part of the land originally
attached to no 5 as a driveway for no 5A in breach of covenant? If it is, should there be an injunction, or
should there be an award of damages in lieu?
(c) If damages are to be awarded in lieu of
injunctions, what should the figure be?
Before I answer
these questions, I must set out the history in greater detail, thereby making
my findings of fact relevant to the dispute. But I first record that it is
clear that the wish of Mr and Mrs Sawyer to build has raised strong feelings,
feelings which have become far from neighbourly. It is not necessary for me to
refer to the evidence relating to this. In particular I need not refer to the
evidence of Mrs Nicholas who lives next to 13 Bull Lane and therefore owns the
garden which at its rear abuts no 5A. But I bear this aspect in mind in
assessing the motives of the parties.
Mr and Mrs
Sawyer purchased no 5 in May 1987. They were probably then the only young
couple in Ashleigh Avenue. Both were keen to get on and to do well. Mr Sawyer’s
parents live in Cerne Abbas and hers in Dorchester. It was a convenient place
for them to be. Their first child was born in August of that year. No 5 has two
bedrooms. Mr Sawyer initially thought of building on. Then he had the idea of
building a separate house in the garden of no 5. He applied for planning
permission in April 1988. Mrs Jaggard got up a petition against it and all save
one of the other residents of Ashleigh Avenue signed. The petition referred to
their refusal of access over Ashleigh Avenue as a private road other than to
existing neighbours. Permission was refused on the ground of plot size.
Mrs Collyer is
the owner of 13 Bull Lane. She offered to Mr Sawyer to sell him the land at the
rear of her property for £15,000, and he agreed to buy subject to his getting
planning permission. That application was made in the latter part of 1988. By
this time Mr and Mrs Sawyer were aware from discussion they had had with Mrs
Jaggard, and perhaps others, that the grounds of objection were the covenants
and the fact that the road was private. This was also set out in a letter dated
November 8 1988 to them from solicitors, Williams & Co, instructed by Mrs
Jaggard. Planning permission was granted and the land for no 5A was conveyed by
Mrs Collyer on December 22 1988. Mr Sawyer went about arranging the building of
a new bungalow on the no 5A plot. To avoid the problem of builders’ traffic up
Ashleigh Avenue he arranged a temporary access to the plot from the industrial
site to its rear. He then went round the residents of Ashleigh Avenue. On
hearing that the traffic would not be using their road many withdrew their
objections or took a neutral stance.
When they
bought the no 5A from Mrs Collyer, Mr and Mrs Sawyer were advised by Creech
& Co. Following the purchase they were advised as to their position
regarding access and were told that there might be a problem. Creech & Co
wrote to the county surveyor. He replied on February 7 1989 that Ashleigh
Avenue was a public highway in his view. Mr Sawyer also received a visit on his
behalf from Mr Wilkie, who confirmed that view in plain terms. Mr Sawyer was
aware of the covenants regarding the no 5 land and that he could not build on
that land. He does not seem to have appreciated that there might be a problem
in using part of the no 5 land as a driveway for no 5A. The council’s view,
that Ashleigh Avenue was a public highway, was hotly disputed by a number of
residents, including Mrs Jaggard. The council confirmed that view in letters
dated March 9, April 3 and May 11 1989. A year later, in a letter to Mrs
Jaggard of July 27 1990, they took the opposite view. No reference was made to
the change and no explanation was offered.
By April 1989
Mr and Mrs Sawyer were being advised by Clarke, Wilmott & Clarke, who wrote
to Mrs Jaggard on April 5. In May Mr Sawyer went to see Mrs Jaggard and told
her that he was going ahead and would start building soon. She and Mrs Smith
(of no 7) went to see Humphries Kirk. They wrote to Mr Sawyer on June 13 1989
raising the questions of the covenant and of the private road. Building was
then just starting. They asked him to discontinue and threatened an injunction.
Clarke Wilmott replied by fax on June 15 stating that as there was no building
on the no 5 land, there was no breach of covenant, and making a somewhat naive
point as to the road, that there was no building on the road and so no
trespass. Mr Sawyer’s position as to the road was in fact that he was relying
on the council’s view that it was public. Humphries Kirk replied by fax the
same day in terms which did not clarify the points at issue. Clarke Wilmott
pointed that out in their letter of the next day. On June 21 Humphries Kirk
wrote stating that Mrs Jaggard would take proceedings for a declaration as to
the question of trespass and right of way. They did not comment further on the
question of breach of covenant. They asked that work should cease and
threatened an application for an injunction if it did not. Clarke Willmott
replied on June 22 stating their view that any action would fail and they would
seek instructions. On July 4 1989 Humphries Kirk wrote referring to the case of
Bracewell v Appleby [1975] 1 All ER 993. That is a case with
facts very close to those in the present case and where an injunction was
refused. The letter stated that Mrs Jaggard would probably seek the alternative
remedy to an injunction — damages in lieu. The file shows that the letter was
copied to Mrs Jaggard and Mrs Smith. I would expect that copies of Humphries
Kirk’s earlier letters were also sent to them. The proceedings were commenced
on August 10. The work had then been going on for two months: the walls and the
roof were very well advanced. No interlocutory relief was applied for. In April
1990 Mrs Jaggard changed her solicitors. She told me that she has been pressing
for an injunction to be applied for from April 1989, but Humphries Kirk had
failed to act on her instructions. In view of the terms of the correspondence
and the fact that at least the letter of July 4 was copied to her, I do not
think that the position was as simple as she suggests. But in any event, as
between the parties to the action I have to proceed on the basis that no
application for an interlocutory injunction was made and that on July 4 it was
indicated that damages might be acceptable.
Meanwhile, in that
July a second son was born to Mrs Sawyer and building was proceeding. I find
that it proceeded in an ordinary manner and that there was no attempt to rush
the work to frustrate any legal proceedings. Mr Sawyer funded the work in part
by borrowing £45,000 from a friend, Mr Gandi, who was a builder though not the
builder he was using for the work. It was completed in December 1989. The total
cost was £75,770 including the £15,000 for the land.
After no 5A
was built and as the action continued, the atmosphere in Ashleigh Avenue was
very unpleasant for Mr and Mrs Sawyer, particularly because of the attitude of
Mrs Jaggard and Mrs Nicholas. As a result in December 1991 they moved out and
let no 5A. The arrangement they made was an unusual one. I do not have copies
of the documents but they have been seen, if only briefly, by counsel for Mrs
Jaggard. It appears that Mr Gandi or his company owned a house at Horton. It is
there that Mr and Mrs Sawyer are now living. They purchased it at a price of
£159,000, raising a mortgage of £50,000 to do so. They paid £54,000 to Mr Gandi
and executed a deed of trust in respect of a one-third interest in the Horton
house in his favour. They also executed a deed of trust over no 5A in his
favour, to secure the £30,000 which remained outstanding from his original loan
of £45,000, and the remainder of the purchase price for the Horton house,
namely some £50,000 or £54,000.
It was urged
on me that Mr and Mrs Sawyer developed no 5A with the idea of making a quick
profit and moving on. I do not accept that. They badly needed a bigger home,
Maiden Newton was genuinely convenient for them. No doubt in the atmosphere of
the property market of 1988 and 1989 they also hoped that they would do well
financially out of the exercise, and it may be that they talked unwisely to
some of the residents about that. Mr Sawyer told me that it was still his
desire to live in no 5A. In view of what has happened I am more doubtful of
that.
I reject that
allegation that Mr Sawyer simply intended to go ahead regardless of the legal
position. I find that he believed that the road
he appreciated the problem of the covenant and the driveway through the no 5
land. I think that he might have shown more care in the investigation of his
position. I put that down to his inexperience in a complicated situation. At
the important stage in 1989 he was receiving legal advice and it was not
suggested, let alone established, that the advice was that he had no right to
do what he intended.
Mrs Jaggard
was asked her reasons for bringing the action and for now pressing the case for
an injunction. She answered that she felt that Mr Sawyer was proceeding in
defiance of the law and she wanted the law upheld. She was concerned about the
additional traffic which no 5a brought to Ashleigh Avenue. I note here that
there was no evidence suggesting that it was any more than the light traffic
one would except from the addition of an 11th house. Mrs Jaggard was concerned
also that Mr Sawyer would not be contributing to the maintenance of the road.
He has always been willing to do so. I find that the reason which weighs with
Mrs Jaggard is that Mr Sawyer should not be permitted to behave as she thinks
that he has.
The evidence
as to the maintenance of the road was very slight. It hardly appears to have
received any. I find that the traffic during the building works which ignored
the instruction to use the access from the industrial estate caused no damage
to the road. The road looked to me as if it might require resurfacing in the
not too distant future. But it may have looked like that for years.
I should
mention the fact that having obtained a temporary access for the duration of
the building works from the industrial site above no 5A, Mr Sawyer asked the
owner of the site about a permanent access. He received an offer of a 10-year
access with no charge save legal fees. He did not take that further. He was not
pursued as to this possibility. It received no mention in the submissions of
either side. I therefore put it out of my mind and proceed on the basis that
the only access to no 5A is via Ashleigh Avenue.
It is against
the factual background which I have set out that I have to answer the first
question, namely whether Mrs Jaggard should be granted an injunction against Mr
and Mrs Sawyer prohibiting trespass on that part of Ashleigh Avenue owned by
her, or whether they should be an award of damages in lieu. This involves an
examination of a number of authorities. For it is submitted on behalf of Mrs
Jaggard that in an action of this nature it is established by the authorities
that an injunction should go and that damages in lieu are inappropriate. I will
take the cases to which I need to refer in chronological order.
Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 is
a leading authority on the application of Lord Cairns’ Act of 1858. The
headnote begins:
Lord
Cairns’ Act (21 & 22 Vict c 27), in conferring
upon Courts of Equity a jurisdiction to award damages instead of an injunction,
has not altered the settled principles upon which those Courts interfered by
way of injunction; and in cases of continuing actionable nuisance the
jurisdiction so conferred ought only to be exercised under very exceptional
circumstances.
The Court of
Appeal reversed the decision at first instance and granted an injunction to
restrain the operation of heavy machinery which was causing a serious nuisance.
I will quote from the judgment of Lindley LJ at p315:
The jurisdiction
to give damages instead of an injunction is in words given in all cases; but
the use of the word ‘damages’ has led to a doubt whether the Act applies to
cases where no injury at all has yet been inflicted, but where injury is
threatened only. Subject, however, to this doubt, there appears to be no limit
to the jurisdiction. But in exercising the jurisdiction thus given attention
ought to be paid to well settled principles; and ever since Lord Cairns’ Act
was passed the Court of Chancery has repudiated the notion that the Legislature
intended to turn that Court into a tribunal for legalizing wrongful acts; or in
other words, the Court has always protested against the notion that it ought to
allow a wrong to continue simply because the wrongdoer is able and willing to
pay for the injury he may inflict.
and at p316:
Without
denying the jurisdiction to award damages instead of an injunction, even in
cases of continuing actionable nuisances, such jurisdiction ought not to be
exercised in such cases except under very exceptional circumstances. I will not
attempt to specify them, or to lay down rules for the exercise of judicial
discretion. It is sufficient to refer, by way of example, to trivial and
occasional nuisances: cases in which a plaintiff has shewn that he only wants
money; vexatious and oppressive cases; and cases where the plaintiff has so
conducted himself as to render it unjust to give him more than pecuniary
relief. In all such cases as these, and in all others where an action for
damages is really an adequate remedy — as where the acts complained of are
already finished — an injunction can be properly refused.
The judgment
of A L Smith LJ contains the following well-known passage at p322:
Many Judges
have stated, and I emphatically agree with them, that a person by committing a
wrongful act (whether it be a public company for public purposes or a private
individual) is not thereby entitled to ask the Court to sanction his doing so
by purchasing his neighbour’s rights, by assessing damages in that behalf,
leaving his neighbour with the nuisance, or his lights dimmed, as the case may
be.
In such
cases, the well-known rule is not to accede to the application, but to grant
the injunction sought, for the plaintiff’s legal right has been invaded, and he
is prima facie entitled to an injunction.
There are,
however, cases in which this rule may be relaxed, and in which damages may be
awarded in substitution for an injunction as authorised by this section.
In any
instance in which a case for an injunction has been made out, if the plaintiff
by his acts or laches has disentitled himself to an injunction the Court may
award damages in its place. So again, whether the case be for a mandatory
injunction or to restrain a continuing nuisance, the appropriate remedy may be
damages in lieu of an injunction, assuming a case for an injunction to be made
out.
In my
opinion, it may be stated as a good working rule that —
(1) If the injury to the plaintiff’s legal rights
is small,
(2) And is one which is capable of being
estimated in money,
(3) And is one which can be adequately
compensated by a small money payment,
(4) And the case is one in which it would be
oppressive to the defendant to grant an injunction: —
then damages
in substitution for an injunction may be given
There may
also be cases in which, though the four above-mentioned requirements exist, the
defendant by his conduct, as, for instance, hurrying up his buildings so as if
possible to avoid an injunction, or otherwise acting with a reckless disregard
to the plaintiff’s rights, has disentitled himself from asking that damages may
be assessed in substitution for an injunction.
It is
impossible to lay down any rule as to what, under the differing circumstances
of each case, constitutes either a small injury, or one that can be estimated
in money payment, or an adequate compensation, or what would be oppressive to
the defendant. This must be left to the good sense of the tribunal which deals
with each case as it comes up for adjudication. For instance, an injury to the
plaintiffs’s legal right to light to a window in a cottage represented by £15
might well be held to be not small but considerable; whereas a similar injury
to a warehouse or other large building represented by ten times that amount
might be held to be inconsiderable. Each case must be decided upon its own
facts; but to escape the rule it must be brought within the exception.
In Leeds
Industrial Co-Operative Society Ltd v Slack [1924] AC 851 the House
of Lords held that Lord Cairns’ Act conferred a jurisdiction to award damages
in lieu of an injunction against a threatened injury. The claim was for an
injunction to restrain the erection of buildings to block the plaintiff’s
windows. The trial judge held that the interference with the plaintiff’s rights
would be small and was capable of being estimated in money, and that damages
would be an adequate compensation. But he held himself bound by authority to
hold that he had no jurisdiction to award damages. The House of Lords held that
there was jurisdiction even though no damage had yet occurred. In his speech
Viscount Finlay stated at p860:
It has been
urged as an objection to the construction of Lord Cairns’s Act above stated,
that it would give the Chancery Courts power to legalise the commission of
torts by any defendant who was able and willing to pay damages. The Courts have
on more than one occasion expressed their determination to prevent any abuse of
the Act in this direction.
The case was remitted
to the Court of Appeal where it was held that on the facts it was appropriate
for damages to be awarded: [1924] 2 Ch 475. Each judgment of the Court of
Appeal referred to the good working rule proposed by A L Smith LJ in the Shelfer
case.
With that I
can come to a number of modern cases beginning with Kelsen v Imperial
Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 All ER 343. This
concerned an advertising sign, which trespassed into the space above the roof
of a shop. On the question of injunction or damages McNair J cited passages
from the judgment of A L Smith LJ in Shelfer and continued at p351:
I have no
doubt at all that in the present case I have a discretion, which I have to
exercise judicially, to award damages in lieu of an injunction, if I see fit.
It is true that the injury to the plaintiff’s legal rights in this case is
small. The sign in his air space does him no harm and does not diminish his
enjoyment. I doubt whether it is a case in which one can estimate the damage in
terms of money, because the damages, if estimated at all, would have to be
stated to be nominal. I do not find, however, that it would be in any way
oppressive to the defendants to grant an injunction. It is true that
considerable expense, stated to be some £220, was incurred some seven years ago
in erecting the sign, but I have no evidence at all whether the defendants have
not had
prepared today to pay £75 a year for a smaller advertisement in a less
prominent position. Furthermore, I think it is relevant in this connexion that
the defendants throughout the case have been insisting on the right to display
this advertisement as a matter of right. I think that that is a circumstance
which the court is entitled to take into account in determining whether a small
money payment with a declaration of right should be sufficient or whether an
injunction should be granted. Cases in which an injunction has not been granted
on the ground of hardship have, I believe, been mostly cases in which there has
been some accidental invasion of the plaintiff’s rights. I was referred by
counsel for the plaintiff to Goodson v Richardson ((1874) 9 Ch
App 221), where a strong Court of Appeal held that the mere fact that the
invasion of the highway in that case did not cause any serious damage to the
owner of the highway did not disentitle him from an injunction. I am further
impressed by the fact that, if I refuse to grant an injunction in this case, there
is nothing to prevent the defendants from continuing to display the sign, and
leaving it to the plaintiff to put forward a subsequent claim for damages in a
further action. If I were to decide that an appropriate remedy would be a small
money payment of nominal damages, I would be, in effect, saying that, although
such implied licence, if any, as the defendants had has been determined,
nevertheless, the defendants are entitled to continue to display their sign.
In my
judgment, bearing in mind that both parties, in pursuance of what they claimed
to be their business interests, have attempted to bring commercial pressure to
bear one of the other, this is a proper case in which the court should direct
that there should be a mandatory injunction that such portion of the sign as
projects over the plaintiff’s premises be removed within twenty-eight days.
I have cited
the whole of this passage because it raises the difficulty that if damages are
awarded the trespass will continue and there will be the possibility of a
further action. That difficulty will also arise where there is a nuisance which
is continuing. In my view, the answer may be found as follows. If at some
future time a plaintiff who has been awarded damages in lieu of an injunction
were to try a second action, the action would fail unless the circumstances
were sufficiently different from those of the first. For whether or not there
was strictly an estoppel per rem judicatam, the court would exercise its
discretion to refuse an injunction. A claim for damages would be met by the
answer that the plaintiff had already received his compensation. For in
awarding damages in the first action the court is looking to compensate the
plaintiff for the threatened wrong, that is, the wrong which it is anticipated
will occur, or continue, in the future. It will award him such sum as will
compensate him over the anticipated period of the wrong. That may be as far
into the future as can be foreseen. If he has been awarded a sum on that basis,
he cannot come forward at a later date and ask for more: he has been
compensated. Although the basis on which it might be so was not considered in
argument, it seems to me that such a plaintiff’s successors in title should be
in no better position. It also seems to me that by being awarded compensation
such a plaintiff waives or gives up any right to self-help to prevent the
continuing tort, such as the use of reasonable force to prevent trespass.
Woollerton
& Wilson Ltd v Richard Costain Ltd
[1970] 1 All ER 483 concerned a trespass into airspace by an overhead crane on
a building site. Stamp J stated at p465:
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 damages 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 plaintiffs are the owners
of the property are —
‘. . . that
no interference of this kind can lawfully take place without [their] consent,
and without a bargain with [them], gives [their] interest in this land, even in
a pecuniary point of view, precisely the value which that power of veto upon
its use creates, when such use is to any other person desirable and an object
sought to be retained’.
(See the
judgment of Lord Selborne LC in Goodson v Richardson) Sir George
Jessel MR in Eardley v Granville 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 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
way-leave’.
Counsel for
the defendant referred me to a number of cases of which he submitted was to
modify the principle or rule so stated in Eardley v Granville and
to justify the court in refusing an injunction in a case such as the present.
These were cases in which the claim was based on nuisance not on trespass. The
gist of an action for nuisance is damage. And since the tort of nuisance can
only exist if there be damage, in an action for nuisance damages can be
obtained which will be measured by the extent of the nuisance and the plaintiff
in such a case is not in a situation of a plaintiff in an action for trespass
who may recover only nominal damages. In an action for nuisance the licence
which the court by refusing an injunction may be said to give the defendant to
continue the nuisance will be compensated by the damages which the plaintiff
will receive on his claim for damages.
and he cited
the good working rule from Shelfer. He referred to the judgment in Kelsen.
He held that the plaintiffs were entitled to an injunction, but that its
operation should be suspended for a period which would enable the work to be
completed. The plaintiffs thus got neither an injunction nor compensation. The
correctness of the suspension has since been raised by the Court of Appeal in Charrington
v Simons & Co Ltd [1971] 2 All ER 588 at p582. If the court in Kelsen
had felt able to award an appropriate sum by way of damages, on my reading of
the judgment it would have done so.
Damages were
awarded in lieu of an injunction in Wrotham Park Estate Co Ltd v
Parkside Homes Ltd [1974] 2 All ER 321. This concerned a breach of covenant
attaching to all property of an estate, namely not to develop land save in
accordance with an approved layout plan. A development company bought part of
the land and commenced building. A writ was issued claiming an injunction
against building in breach of the covenant and a mandatory injunction to pull
down buildings erected. No interlocutory injunction was sought. It was held
that damages should be awarded in lieu of an injunction, the sum being such sum
as might reasonably have been demanded by the plaintiffs from the defendants as
a quid pro quo for relaxing the covenants, namely 5% of the profits of the
commercial development. In determining not to grant an injunction Brightman J
stated at p337:
Counsel for
the plaintiffs submitted, and I accept, that it is no answer to a claim for a
mandatory injunction that the plaintiffs, having issued proceedings,
deliberately held their hand and did not see the assistance of the court for
the purpose of preserving the status quo. On the other hand, it is, in my view,
equally true that a plaintiff is not entitled ‘as of course’ to have everything
pulled down that was built after the issue of the writ. The erection of the
houses whether one likes it or not, is a fait accompli and the houses are now
the homes of people. I accept that this particular fait accompli is reversible
and could be undone. But I cannot close my eyes to the fact that the houses now
exist.
The basis for
the award of damages adopted by the court is supported by a number of cases,
which were reviewed by Brightman J, in which trespass to land or chattels involving
little or no actual damage was compensated for by awarding damages on the basis
of what would have been a reasonable rent or hire for the subject-matter of the
trespass. The most recent reported example appears to be Swordheath
Properties Ltd v Tabet [1979] 1 All ER 240. In a second action,
which was also before the court, but where building had not yet begun,
Brightman J granted an injunction.
The approach
of the court in Wrotham Park was followed in Bracewell v
Appleby [1975] 1 All ER 993, a case very close on its facts to the present.
The scene was a building estate in Farnham and involved a private road. The
defendant owned a house which had a right to use the private road. He built a
second house partly on land which he had acquired and partly in the garden of
his existing house, and went to live there. He intended to use the private road
as access. The plaintiff was another resident. Interlocutory relief was applied
for but refused because of delay, the house then being finished. In deciding at
the trial that an injunction should not be granted Graham J stated at p997:
Having seen
both Mr Wright and the defendant in the witness box there was clearly a clash
of personalities and Mr Wright said they have not been on speaking terms since
the start of this trouble. I have not much sympathy for the way in which either
of them has conducted his affairs. As I say, like Pennycuick V-C, I would not
have granted an interlocutory injunction, but furthermore I would not grant an
injunction now if otherwise satisfied that the plaintiffs were entitled to
relief following the same principles as those enunciated by Brightman J in Wrotham
Park Estate Co Ltd v Parkside Homes Ltd. Although an injunction here
would be against trespassing on the plaintiffs’ land and would not go to
pulling the house down, it would in effect make the house, no 2A, uninhabitable
and would put the plaintiffs into an unassailable bargaining position.
Woollerton was cited in argument, but was not referred to in the judgment.
Damages were awarded on the basis of what would have been a fair price for the
right of way.
In John
Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P&CR 104
the wrong was trespass by a scaffold erected for the repair of an adjacent
building. Walton J held that because the damage was
a p107:
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 fivepence
will amply compensate you for that harm’.
On p108 he
stated that there could have been no answer if an injunction had been applied
for quia timet, and questioned how the plaintiffs could be in a better
position because they had erected the scaffolding and commenced the trespass.
In Patel v
W H Smith (Eziot) Ltd [1987] 2 All ER 569 the Court of Appeal had before it
a case of trespass by parking in a yard. The first instance judge had refused
an interlocutory injunction on the ground that there was a serious issue to be
tried as to whether the parking constituted a trespass. The Court of Appeal
held that there was clearly a trespass and granted an injunction. In the course
of his judgment Balcombe LJ stated at p573:
What, then,
are the principles which a court should apply in a case of this type? It seems to me that, first, prima facie a
landowner whose title is not an 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. The
first is Woollerton & Wilson Ltd v Richard Costain Ltd [1970]
1 All ER 483, [1970] 1 WLR 411, which was a reserved judgment of Stamp J, and
from the report I note that Behrens v Richards [1905] 2 Ch 614 was cited in
argument, though the judge does not refer to it in his judgment. Stamp J said
([1970] 1 All ER 483 at 485, [1970] 1 WLR 411 at 413):
‘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 to trespass in return
for a nominal continue the tort to trespass in return for a nominal payment.’
To the like
effect is the decision, also at first instance, of Walton J in John
Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P&CR
104, and I cite a short passage from the judgement (at 108) where the judge
accepted a submission by counsel for the plaintiffs in that case that —
‘when one
dealing with the direct physical invasion of a right of property by a trespass
one is very close to the line of cases stemming from Doherty v Allman
((1878) 3 App Cas 709) which decide that an injunction to enforce a
negative stipulation in a contract goes almost as of course. The parties,
having agreed that something shall not be done, the court simply says that what
the parties have agreed shall not be done.’
When the
court resumed this morning, argument having been concluded, counsel for the
defendants drew our attention to the case which I have mentioned of Brehens v
Richards [1905] 2 Ch 614. This is a decision of Buckley J and the headnote
states quite accurately that the effect of the decision was: ‘The Court may
refuse to grant an injunction to restrain persons from trespassing on land if
the landowner is not injured thereby.’
That was a case relating to exercise by the public of claimed rights of
way over a path where it was clear there could have been no damage of any kind
done to the landowner.
If it came to
a choice between these two lines of authority, for my part I think I would
prefer the more recent authority, 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 & Wilson Ltd 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 two
recent cases to which I have referred, Woollerton & Sons Ltd v
Richard Costain Ltd and John Trenberth Ltd v National Westminster
Bank Ltd, are also authority that the same principle, namely prima facie a
landowner whose title is not an issue is entitled to an injunction to restrain
trespass, applies where the claim is for an interlocutory injunction.
Once it was
established that the parking in the yard was a trespass, the situation appears
a relatively simple one. The court was not looking at a situation where it was
suggested that the application of Lord Cairns’ Act was appropriate.
Lastly, I come
to Anchor Brewhouse Developments Ltd v Berkeley House (1987) 38
BLR 82. This was another case involving an overhead crane on a building site.
Scott J cited at p95 in the report the passage from the judgment of Stamp J in Woollerton
where Eardley v Granville and Goodson v Richardson
are cited. Scott J continued at p96:
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 grantorgrantee’ 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 not withstanding that the damage to the plaintiff may be
trivial only. Lord Selbourne and Sir George Jessel adopted a robust Victorian
approach which might, perhaps, find less sympathy now. The ownership of
property entitled the owner to licence or refuse to licence the use of it by
others. If he is asked to licence 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.
Scott J cited
from the judgment of Balcombe LJ in Patel and concluded (at p99):
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.
He held that
there was no special circumstances and granted an injunction. In respect of Bracewell
v Appleby he said as follows (p101):
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. Nonetheless Mr Moss is entitled to refer to the case as one in which
an injunction was refused.
Although in
his extemporary judgment Scott J did not refer to Lord Cairns’ Act or to Slack’s
case, they must have been in his mind.
It was thus
argued before me that there were two lines of authority in relation to
trespass, one of which effectively removed the possibility of awarding damages
in lieu of an injunction where the trespass was either continuing or
anticipated. There does not appear to be a conflict. But I do not think that it
is one which I have to resolve. In this area of the law particularly, every
case turns on its own facts. The facts before me are a long way from those in
any of the cases in the line, the last of which is Anchor Brewhouse. I
consider that I should accept Bracewell v Appleby as establishing
a discretion to award damages under section 50 of the Supreme Court Act 1981 in
the circumstances before me: it is for that purpose indistinguishable on its
facts. In doing so I do not consider that I am in any way running contrary to
the judgments of the Court of Appeal in Patel. Bracewell v Appleby
was not cited on the appeal and, as I have stated, the court was not concerned
with the application of Lord Cairns’ Act.
Before moving
on I should refer to the difficulty of a continuing wrong and of further
actions which was raised by Scott J in Anchor Brewhouse. I have
suggested a possible answer to this earlier in my comments following my
citation of Kelsen v Imperial Tobacco Co. It was suggested on
behalf of Mrs Jaggard that there might be further difficulties. For the access
to no 5A could be used to service a number of houses built behind it. I do not
regard that as likely. But, in any event, the answer would be that the present
proceedings would be no bar to proceedings against the owners or occupiers of
any such houses. I have also considered the question whether there is a problem
because it would be open to Mrs Jaggard to sue third parties
problem there. If the court has declined to grant her an injunction against Mr
and Mrs Sawyer, it will decline to grant her an injunction against their
visitors, and she could recover no damages because the compensation which this
court would have awarded her in lieu of an injunction would cover use by such
persons.
I conclude
therefore that the facts of this case provide no bar to my following the
approach of the court in the Wrotham Park case and Bracewell v
Appleby.
How then is my
discretion to be exercised? In all the
circumstances which I have set out I think it appropriate not to grant an
injunction in respect on trespass of the part of Ashleigh Avenue owned by Mrs
Jaggard, but to award damages in lieu. I have particularly in mind the conduct
of the plaintiff and of the defendants and their reasons for acting as they
have, the failure of the plaintiff to apply for interlocutory relief, the
particular nature of the trespass and of the relevant land, and the fact that
if an injunction is granted no 5A will have no access. Although the wide
discretion given by section 50 is not to be limited as if the working rule
proposed by A L Smith LJ in Shelfer was part of the Act, in my view,
each of the four points there referred to are satisfied.
The terms of
the covenant, the breach of which is alleged by the use of part of the original
no 5 land as a driveway to no 5A, are as follows:
No house or
building to be erected on any part of the said land shall be used . . . in any
manner calculated or likely to be a nuisance or cause annoyance to the Vendors
or adjoining owners or residents of the neighbourhood or in any manner
otherwise than as a private residence only and no part of the said land which
is unbuilt upon shall be used otherwise than as a private garden.
I tend to the
view that the use of part of a garden as a drive for the purpose of the house
which that garden serves would not be in breach of this covenant. Such a use is
one to which a part of modern gardens are commonly put. In my judgment,
however, the use of part of the land as an access driveway for another property
is use other than as a private garden. This construction is supported in the
particular circumstances by the fact that such a use would not have been in
contemplation when the covenant was framed because Ashleigh Avenue was intended
to serve only the original houses which had a right of way over it. I,
therefore, hold that the use of the relevant land as a driveway is in breach of
the covenant.
For the same
reasons as have caused me to refuse Mrs Jaggard an injunction but to award her
damages in lieu in respect of trespass, I exercise my discretion to award her
damages in lieu of an injunction in respect of the breach of covenant. In the
circumstances the answer has to be the same in each case. The position in
respect of breach of covenant does not face the same difficulties which I have
had to consider in respect of trespass.
Lastly, what
damages should be awarded? Figures are
provided by means of an agreed valuation report by Humberts dated May 13 1992.
It was pointed
out on behalf of Mrs Jaggard that the courts have not in any reported case had
to deal with a combination of trespass and breach of covenant. It was submitted
that the plaintiff should receive a share in the increase in the value of no 5A
which the defendants will achieve by means of the rejection of the plaintiff’s
case for an injunction. Counsel took the value of no 5A at June 1989 at
£100,000 with access and deducted a land value with no access, to give a profit
of £96,000. Alternatively, he submitted that the profit figure should be the
cost of the house on the basis that the house without access is valueless. For
reasons which will appear when I refer to the authorities I reject these
submissions as being contrary to principle. I think that they are also
unrealistic.
A second basis
of assessment was put forward on the plaintiff’s behalf, namely what the
defendants would have had to pay to buy land to provide access. This was put at
£15,000 based on the cost of the land bought from Mrs Collyer. Again I do not
think that this is an appropriate assessment.
Lastly, there
was submitted an assessment on the basis of what the defendants might
reasonably have paid for a right of way and the release of the covenant. The
valuation for the completed development as at June 1989 is £100,000. That gives
a profit over cost of some £24,000. I point out that this ignores the inclusion
as part of no 5A of a substantial part of the garden of no 5. The value of this
is not included in the costs which have been deducted. It was suggested that
3/5 of that profit should be taken as the figure, namely £14,400, or 2/3 + 5% (for
the covenant, I think) which gives £10,800. Dividing these figures by nine, for
the nine residents who are relevant gives £1,600 and £1,200 respectively. It
was submitted that there should also be an additional amount to reflect
trespasses over the last three years.
It was
submitted on behalf of Mr and Mrs Sawyer that I should take a share of the
paper profit made on the development of no 5A. Taking the midway figure of the
valuations for August 1989 and September 1990 gives £93,500, and a profit of
£17,730 (again excluding the no 5 land). Dividing by nine gives £656.
I was referred
to three authorities. In Stokes v Cambridge Corporation (1961) 13
P&CR 77 the Lands Tribunal held for the purpose of assessing the value of
land for compulsory purchase that a developer would in the particular
circumstances of the case have surrendered one-third of his hypothetical profit
on the development in order to buy land to secure access to the development.
I have already
referred to the basis on which damages were assessed in the Wrotham Park
Case [1974] 2 All ER 321. At p341 Brightman J stated:
As I have
said, the general rule would be to measure damages by reference to that sum
which would place the plaintiffs in the same position as if the covenant had
not been broken. The defendant Parkside and the individual purchasers could
have avoided breaking the covenant in two ways. One course would have been not
to develop the allotment site. The other course would have been for Parkside to
have sought from the plaintiffs a relaxation of the covenant. On the facts of
this particular case the plaintiffs, rightly conscious of their obligations
towards existing residents, would clearly not have granted any relaxation, but
for present purposes I must assume that they would have been induced to do so.
In my judgment a just substitute for a mandatory injunction would be such a sum
of money as might reasonably have been demanded by the plaintiffs from Parkside
as a quid pro quo for relaxing the covenant. The plaintiffs submitted that that
sum should be a substantial proportion of the development value of the land.
This is currently put at no less than £10,000 per plot, ie £140,000 on the
assumption that the plots are undeveloped. Mr Parker gave evidence that a half
or a third of the development value was commonly demanded by a landowner whose
property stood in the way of a development. I do not agree with that approach
to damages in this type of case. I bear in mind the following factors: (1) The
layout covenant is not an asset which the estate owner ever contemplated he
would have either the opportunity or the desire to turn to account. It has no
commercial or even nuisance value. For it cannot be turned to account except to
the detriment of the existing residents who are people the estate owner
professes to protect. (2) The breach of covenant which has actually taken place
is over a very small area and the impact of this particular breach on the
Wrotham Park estate is insignificant. The validity of the covenant over the
rest of area 14 is unaffected. I think that in a case such as the present a
landowner faced with a request from a developer which, it must be assumed, he
feels reluctantly obliged to grant, would have first asked the developer what
profit he expected to make from his operations. With the benefit of foresight
the developer would, in the present case, have said about £50,000, for that is
the profit which Parkside concedes it made from the development. I think that
the landowner would then reasonably have required a certain percentage of that
anticipated profit as a price for the relaxation of the covenant, assuming, as
I must, that he feels obliged to relax it. In assessing what would be a fair
percentage I think that the court ought, on the particular facts of this case,
to act with great moderation. For it is to be borne in mind that the plaintiffs
were aware, before the action took place, that the land was being offered for
sale as freehold building land for 13 houses, and the plaintiffs knew that they
were not going to consent to any such development. The plaintiffs could have
informed the urban district council of their attitude in advance of the action
or could have given the like information to Parkside prior to completion of the
contract for sale. In either event it seems highly unlikely that Parkside would
have parted with its £90,000, at any rate unconditionally. I think that damages
must be assessed in such a case on a basis which is fair and, in all the
circumstances, in my judgment a sum equal to 5 per cent of Parkside’s
anticipated profit is the most that is fair. I accordingly aware the sum of
£2,5000 in substitution for mandatory injunctions.
Like the
reasoning of the assessment made in Stokes this passage emphasises that
the particular circumstances must be examined to see what is appropriate. In Bracewell
v Appleby [1975] 1 All ER 993 at p1,000 Graham J dealt with the
question of damages in the following terms:
In the
present case, the plaintiffs, for amenity reasons, did not want an extra house
built in the cul-de-sac and I think it is right to regard them also as
‘reluctant’, just as Brightman J did in the case of the plaintiffs before him.
On the other hand, in all the circumstances, I think that for the purpose of
estimating damages they and the other servient owners in Hill Road, albeit
reluctant, must be treated as being willing to accept a fair price for the
right of way in question and must not be treated as if they were in the
extremely powerful bargaining position which an interlocutory injunction would have
given them if it had been obtained before the defendant started operations and
incurred expense. Such is to my mind the penalty of standing by until the house
is built.
On the
evidence here the probable figure of notional profit which the defendant has made,
being the difference between the overall cost of the new
and I think it is fair to take £5,000 as about an accurate a figure as one can
get. The circumstances here are very different from those in Wrotham Park
Estate Co Ltd v Parkside Homes Ltd and I think that the proper
approach is to endeavour to arrive at a fair figure which, on the assumption
made, the parties would arrive at as one which the figure which, the plaintiffs
would accept as compensating them for loss of amenity and increased user, and
which at the same time, whilst making the blue land a viable building plot,
would not be so high as to deter the defendant from building at all. The
defendant was not a speculative builder and in fact wanted to live in, and does
now live in, 2A Hill Road himself and I think he would have been prepared to
pay what is relatively to his notional profit quite a large sum for the right
of way in question and to achieve the building of his new home. This was a time
of rising property values and I think he would have been prepared to pay £2,000
to get his right of way and if he had made such an offer, I think the other
five owners in Hill Road ought also to have been prepared to accept it.
Much of that
can be applied in the present case.
Had there been
a negotiation here it would have been in reality between Mr and Mrs Sawyer and
all the residents, some of whom did not ultimately object to the development.
They would all of course have wanted Mr and Mrs Sawyer to pay their share of
the upkeep of the road. Mr and Mrs Sawyer remain responsible for the small part
of road which was attached to no 5, because they still own it. The others
would, none the less, want at least compensation for the additional use of the
road for whose maintenance they are responsible. I consider that the figure is
to be assessed as if the negotiation were taking place in the first-half of
1989 prior to the commencement of building. Taking the figures in Humberts report,
Mr and Mrs Sawyer were then looking at a notional profit of some £24,000 if the
value of the land from no 5 is ignored. I do not consider that it is right to
ignore it. For with a larger garden no 5 could obviously have been sold for
more, and Mr and Mrs Sawyer have suffered a real detriment in that respect by
including it in with no 5A. The land in question is in area approximately
one-third to -half of the garden of no 5. I have no valuation of it. The point
was not referred to. I only know that the price for the dimished no 5 was
£60,000. In this situation I should take a very modest figure. I will take
£2,000, which reduces the notional profit on no 5A to £22,000. The sale of no 5
is not otherwise to be taken into account because its value was not increased
by anything relating to no 5A: it was simply diminished by the loss of part of
its garden.
There is in
this case an unreality in supposing that any hypothetical negotiations would
have included a calculation of the hypothetical profit. The reality is that
they would have been in terms of offer and demand in round figures. The profit
calculation can be a guide. I think that Mr and Mrs Sawyer should have been
prepared to pay not less than £5,000 to achieve access, that is to acquire a
right of way and to have the covenant waived. I do not think that the
‘come-back’ figure should have been more than £7,500. I propose to take the
mean, £6,250. That gives £694.44 per resident. It is between a quarter and a
third of the hypothetical profit, whether that is taken at £24,000 or £22,000.
Mr and Mrs Sawyer were not buying land as is postulated where it is said that a
developer will commonly give up a third of his profit to acquire access.
Looking at the figure of £6,250 in the round against the circumstances of the
case I consider it appropriate. On the basis on which I have assessed it, it
would have been paid by the beginning of June 1989, and it will carry interest
from that date. In that way Mrs Jaggard will be compensated for the trespass
which has taken place to date.
May I lastly
record my gratitude to counsel for their researches and for the manner in which
they presented the material.
