Trespass — Extractor fan — Appellant owning freehold of property — Respondents erecting fan on adjacent premises protruding above appellant’s rear yard — Whether fan trespassing on appellant’s property — Whether judge misdirecting himself on liability — Measure of damages — Appeal allowed
The appellant was the freehold owner of a property adjacent to that occupied by the respondents. The latter property comprised a dwelling-house and a hot food and takeaway shop. The respondents installed an extractor fan that protruded through the side of the wall separating the two premises so that it was partially above the appellant’s rear yard.
The appellant commenced proceedings in the county court, contending that the fan trespassed onto the rear of her property and constituted a nuisance. She sought an injunction requiring the defendants either to remove or reposition the extractor fan, and damages.
The court dismissed all the claims. The appellant appealed against the finding that the extractor fan did not trespass upon her property. She contended that the judge had: (i) misdirected himself in determining that, in order to establish a trespass to property, a claimant had to prove substantial interference with his or her use of the land; (ii) failed to appreciate that the extractor fan was a permanent intrusion into the appellant’s airspace because it was permanently suspended only a few metres above ground level; and (iii) erred in concluding that the test for determining whether a trespass had been committed was whether it would interfere with any normal activity in the garden. She submitted that the judge should have granted an injunction requiring the respondents to remove the fan.
The respondents contended that, because of its high position above the surface of the land, the judge had been entitled to find that the extractor fan did not constitute a trespass on the appellant’s land, and that, even if that were wrong, the appropriate remedy was damages rather than an injunction.
Held: The appeal was allowed.
In all the circumstances, the positioning of the extractor fan constituted a trespass by the respondents on the appellant’s land, and the appellant was entitled to a declaration to that effect.
If a defendant interfered with a claimant’s airspace, it amounted to a trespass except where the interference was at a such a great height, for instance by high-flying aircraft, that it did not interfere with the claimant’s airspace. Adjoining owners had no right to erect structures that overhung or passed over their neighbour’s land. If the overhanging by a defendant occurred at a position 4m above the ground, as in the present case, it would be regarded as an interference with the claimant’s airspace and so would amount to trespass: Bernstein v Skyviews & General Ltd (1977) 241 EG 917 and Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 284 EG 625 applied.
The case would be remitted to the county court, which had heard the evidence and would be able to determine whether injunctive relief should be granted or whether damages would constitute an adequate remedy.
Ian Pennock (instructed by Stachiw Bashir Green, of Shipley) appeared for the appellant; the third respondent appeared in person and on behalf of the first and second respondents, who were not present at the hearing.
Eileen O’Grady, barrister
