Neighbours – Improvement works – Trespass – Appellants consenting to conversion works on respondent neighbours’ garage – Respondents changing design of proposed conversion without obtaining planning approval – Works encroached on appellants property – Appellants alleging trespass — Judge finding respondents not trespassing since appellants had consented to works — Whether judge erring in law – Appeal allowed
The appellants had consented to the conversion of the respondent neighbours’ adjoining garage into a habitable room, which entailed raising the garage roof. However, the appellants wanted to ensure that the external wall of the room was separate from their house so that the works did not result in a party wall.
The respondents obtained planning permission for the development but subsequently changed the design without seeking further permission from the local authority. They used the appellants’ wall to hold brackets for the new roof at a point higher than that of the existing roof.
The appellants alleged that the respondents had trespassed onto their property. When the respondents failed to respond to their offer to mediate, the appellants sought an order requiring them to dismantle the work or, alternatively, to pay £20,000 in damages representing the diminution in value of their property. The respondents made an offer of £500 plus court fees in full and final settlement of the appellants’ claim, which was rejected.
The trial judge heard evidence from the parties and from expert witnesses and concluded that, since the appellants had agreed that the roof could be raised the work did not amount to trespass. However, because the appellants had not consented to the fixing of lead flashing or the use of mastic to bond the walls, those actions amounted to a trespass. The judge though did not accept that there had been any diminution in value of the appellants’ property as a result of the trespass and assessed damages in the sum of £200. The respondents were ordered to pay the appellants’ costs up to the date of the expiry of the respondents’ offer to settle and for the appellants to pay the costs thereafter. The appellants appealed.
Held: The appeal was allowed.
The appellants’ consent to the improvement works had been given on the basis that the respondents would follow proper procedures, namely they would apply for planning permission, make proper arrangements under the Party Wall Act etc 1996 and follow planning permission and any agreement or award under the 1996 Act. Adherence to those arrangements was a condition of the consent. Since the respondents had not adhered to the terms on which consent had been given, they had trespassed on the appellants’ property.
However, it would be oppressive and disproportionate to order the roof to be dismantled. It was clear from the appellants’ evidence that their real concern was not to have a habitable room adjoining their house. They did not object to a raised roof and this was not a case for an injunction requiring its removal; Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; Jaggard v Sawyer [1995] 1 EGLR 146; [1995] 13 EG 132 and Daniells v Mendonca (1999) 78 P & CR 401 considered.
The judge had been entitled to find that there was no diminution in the value of the appellants’ property as a result of the trespass found, and the additional trespass could not have made a material difference. However, a modest increase in the award of damages had to be made to reflect the additional findings of trespass. Based on the judge’s findings as to overall values, damages should be increased to £500: Wrotham Park Estates Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 and Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45; [2010] BLR 73 considered.
With regard to the award of costs, on the one hand the respondents had failed to respond to the appellants’ offer to mediate and their settlement offer had not included the expenses incurred by appellants, while on the other, the appellants had failed in substance on their claims. Accordingly, it was appropriate to make no order as to costs.
Daniel Gatty (instructed by DMH Stallard LLP) appeared for the appellants; David Marshall (instructed by Stringer Smith & Levett) appeared for the respondents.
Eileen O’Grady, barrister
