Land – Development – Claimants alleging trespass by defendants – Court awarding damages to be assessed – Judge conducting inquiry to assess damages – Whether reasonable sum being claimed for temporary use of land – Claim allowed in part
The defendants bought an old station house, which they renovated, and part of the railway track. They sold off parcels of land on which further houses were built. The remaining length of track and some fields to the east of it were not developed (the yellow land). They yellow land had no direct access to the public highway and its only means of access was via a neighbouring property, no 21, on its northern boundary.
The claimants owned a piece of land (the red triangle) that protruded several feet into the entrance drive that led to no 21. They had acquired the land to prevent the defendants from developing the yellow land. However, the defendants purchased no 21 in order to provide access from the public highway and were granted planning permission to develop the yellow land.
The claimants subsequently sought an injunction and damages in respect of alleged acts of trespass by the defendants over the tip of the red triangle. In 2006, the trial judge found that the claimants had established their claim and granted a permanent injunction to prevent further acts of trespass and awarded common law damages to be assessed.
According to the evidence, the land in question was unused by the claimants. It had formed part of the drive to no 21 throughout the claimants’ ownership of the red triangle and had not suffered any detectable physical harm or loss in value from vehicles accessing the yellow land. It was accepted that, if appropriate, damages could be awarded that properly compensated the claimants for the use that the defendants had made of their land for their own profit, to the extent that the profit had been made from the commission of a tort.
The claimants argued that a proper figure for damages was £125,000, the amount that the defendants would have paid to obtain the value to them of temporary use of the red triangle.
Held: The claim was allowed in part.
Where a trespasser has made use of a claimant’s land, the measure of damages would be the value to the trespasser of the use of that land: Ministry of Defence v Ashman [1993] 2 EGLR 102; [1993] 40 EG 144 and Attorney-General v Blake [2001] 1 AC 268 applied.
The amount of the damages was the sum arrived at in a hypothetical negotiation between the parties, with each making use of their respective bargaining positions without holding out for unreasonable amounts. Alternative possibilities available to the defendants were relevant as factors which would have influenced such a negotiation, which was assumed to have taken place before any transgressions occurred. The court could take account of the actual profits as evidence of what the parties would have contemplated at the time of those hypothetical negotiations: Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd [2001] 1 EGLR 81; [2001] 07 EG 163 and Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1973) 229 EG 617 considered.
In principle, there was no reason why that model should not be adapted and applied to the present case, bearing in mind the limited nature of the exercise and taking into account the considerations that would have been relevant to negotiations for the limited permissions being sought.
The defendants, by their limited use of the claimants’ land, had obtained no more than a convenient way of servicing their development in the pre-contract period. They would not have paid, or been asked by any reasonable landowner in the claimants’ position to pay, more than a relatively modest sum for that privilege. There had been no actual damage to the claimants’ land and the payment involved would have been little more than a recognition of their rights as landowners. Accordingly, the claimants’ figures were unrealistic and an appropriate award was £5,000.
Caroline Hutton (instructed by Schofield Sweeney, of Bradford) appeared for the claimants; Mark Halliwell (instructed by Jordans) appeared for the defendants.
Eileen O’Grady, barrister
