Neighbour disputes over boundaries and competing rights of those properties are regular occurrences. A question that should be asked by someone who is thinking of making a claim is this: what will I achieve by going to court? In most cases, what the neighbours really want is for the other party to stop doing whatever has caused the dispute. Perhaps to stop blocking a right of way or move a fence that is over the boundary. These require an injunction. While the court has discretion to grant one, it does not do so automatically. Often, the court will award damages either instead, or perhaps as well as the injunction. This article looks at when the Court is likely to award damages, and how it will calculate them.
Working rule: “get off my land”
In most neighbour disputes involving trespass, the parties will primarily want to stop it. However, the court has the discretion to award damages in lieu of an injunction. The 1895 case of Shelfer v City of London Electric Lighting Co says that “money sooths all ills,” although you cannot buy the right to injure land.
In that case a working rule was established, which means that damages can be awarded in place of an injunction if:
- The injury to the claimant’s legal right is small;
- It can be estimated in money;
- It can be adequately compensated by a small payment; and
- It would be oppressive to the defendant to grant an injunction.
The circumstances in which a court can award damages are very wide, even when there has been a blatant trespass, as in Gooden v Ketley . The usual measure of damages is the loss suffered as a consequence of the trespass. These are usually assessed by looking at the loss actually suffered (or the diminution in value) resulting from the trespass, for instance, the cost of repair and reinstatement.
When residential property is involved, damages are usually awarded using expert evidence regarding a decrease in value of the claimant’s land and any corresponding increase in the value of the defendant’s land as in Horsford v Bird . That said, where the trespass is minor, these awards may be very small or nominal, and the court may consider the proportionality of a party having brought claims.
In a recent unrecorded neighbour dispute involving trespass, the claimant successfully brought a claim against the defendant, who was found to be unlawfully parking on an area of land included within the claimant’s title. The claimant was awarded just £1 in damages.
In another recent unrecorded case, Lyons Davidson acted for a claimant who was successful in obtaining a mandatory injunction requiring removal of a fence that encroached on our client’s property. We also gained £3,000 general damages for loss of enjoyment of the fenced-off part of the lawn. In this case, the area of land in dispute was 25m2.
Even if a landowner has suffered no loss, damages may still be awarded by assessing the benefit received by the trespasser from using the land, and the price a reasonable person would pay for using it, as discussed by Lord Blake in Attorney General v Blake. These are referred to as ‘user’ or ‘wayleave damages’ and are awarded on the basis of a hypothetical negotiation between both parties of the sum of money that should be paid as a quid pro quo for allowing use of the land in question.
This kind of damages was established in 1974, in the case of Wrotham Park Estate Co Ltd v Parkside Homes Ltd, which introduced an approach that takes into consideration how much a claimant could reasonably have sought from the defendant to acquire the right to do what they were already doing without the claimant’s consent. The approach has introduced a more flexible basis for assessing damages, as shown by a number of recent cases.
For example, in Field Common Ltd v Elmbridge Borough Council , this approach was applied to the assessment of damages being claimed by a landowner against a local authority, whose tenants were deemed to be liable for trespass. More recently, in 2010, it was applied in Stadium Capital Holdings (No 2) Ltd v St Marylebone Property Co plc . Here, the trial judge ordered payment of 100% of the earnings gained by advertising hoardings that intruded into airspace. On appeal this was determined excessive, because a hypothetical licence fee would not produce as much profit as the unlawful venture did. This is an interesting and developing area of law; the level of damages will often depend on the strength of evidence as to what the parties would have hypothetically agreed and has to be considered carefully on a case-by-case basis.
In terms of the appropriate level of damages for loss of enjoyment of property, the 2009 case of Dobson and Others v Thames Water Utilities , established that nuisance damages were for injury to the property (and its decrease in value) and not to the sensibilities of the occupiers, although the actual impact of the nuisance on the occupiers is, in practice, relevant to the assessment of these damages. The injury to the amenity of the land entails the fact that the people who own it are liable to suffer inconvenience, annoyance or even illness.
Unfortunately, it is very difficult to give concrete examples of the likely measure of damages in particular cases, though in a recent unrecorded case, Lyons Davidson acted for claimants who we were awarded £5,000 general damages for loss of enjoyment. This was because the defendant was discharging water and sewage onto our client’s land without a soakaway, causing damage to trees. Other civil cases involving various types of nuisance have awarded damages ranging between £750 a year to £3,000.
In extreme circumstances, aggravated damages may also be awarded to a party when these conditions apply:
- Exceptional or insulting conduct or motives by the wrongdoer in taking the action about which the complaint was made; and
- Mental distress, injury to feelings, indignity, insults, humiliation and a heightened sense of injury or grievance sustained by the innocent party.
This approach was adopted in the case of Owers v Bailey , where the adjoining owner obstructed a right of way along the side of their property leading to their home, with the deliberate intent of causing problems for the property owners. The adjoining owners’ conduct included erecting gates across the right of way and threatening to padlock them, and also parking a tractor across the right of way, preventing access.
In this case, the claimants also claimed a loss of opportunity to sell their property because of the defendant’s conduct. However, the court felt that this part of the application should be adjourned until the property was sold, at which time any damages could be assessed by referring to house prices over the relevant period.
Now that proportionality is part of the overriding objective, serious consideration should be given to the effect on the properties, and whether the costs of the case are likely to be proportionate to the issues. In neighbour disputes, a small trespass could still be proportionate. Consider the following to examples.
- A new fence trespasses on your land by six inches but the encroachment is over a narrow side passage that is the only access to the rear garden and you can no longer take your wheelie bin in or out of your back garden.
- A similar size trespass but at the end of a 400 ft garden and where the trespass has gone unnoticed for years because the garden had been left overgrown.
The first example has far more serious consequences and it may be easier to convince a Judge that it merits an injunction and that the costs of the case are proportionate.
Boundaries and neighbour disputes: conclusion
In order to determine whether a court might award damages, and how much, one must consider every aspect of the case.
For more information on boundary disputes, any of the matters raised in this article or on neighbour disputes in general, please contact Lyons Davidson’s Civil Litigation team by telephoning 0117 904 6000.