Neutral Citation no.[2001] NICh 4
Ref: 
GIRF3373

 
Judgment: approved by the Court for handing down
Delivered:
15.03.2001
(subject to editorial corrections)

 

 
 
2000 No. 1968
 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
CHANCERY DIVISION
 
 _______ 
 
BETWEEN:
 
THE ULSTER ARTS CLUB LIMITED
 
-and-
 
JOHN McVEIGH 
-and-
GERARD O’HARE
 
Plaintiffs;
 
-and-
 
SALVATORE LIBERANTE
 
Defendant.
 
 ________ 
 
GIRVAN J
 
The context of the dispute
            These proceedings began life as an originating summons issued on 5 July 2000 in which the plaintiff was the Ulster Arts Club Limited (“the Club”).  In the originating summons the Club sought a declaration that the boundary between the Club’s land at 90 Lisburn Road, Belfast (“No. 90”) and the defendant’s adjoining lands at No. 92 (“No. 92”) was as defined by the map contained in a lease of 6 June 1948 (“the 1948 lease”) and an injunction to restraining the defendant from trespassing on the plaintiffs’ lands.  At the time that those proceedings were issued in July 2000 the Club had agreed to sell the premises to the present second and third named plaintiffs at an auction on 8 June 2000.  Although the summons did not make it clear the real issue between the parties related to the precise boundary between Nos. 90 and 92, in particular at the rear of the premises.  The significance of the precise line of the boundary at the rear of Nos. 90 and 92 arose because the defendant, who had acquired the adjoining premises of Nos. 92 to 96 Lisburn Road was carrying out a major redevelopment of the premises which he had acquired, involving the demolition of the existing premises and the construction of a new building containing a restaurant and office premises.  The development involved an extension of the premises to the rear at No. 92 which was to house the kitchen of the restaurant.  The side wall of the extension at the rear of No. 92 was constructed in the area of the boundary of the rear of Nos. 90 and 92.  The dispute between the parties relates to the question whether the foundations for the relevant side wall in the extension in the area of the disputed boundary fall over the boundary line so as to constitute a trespass under the premises of No. 90.  If there is a trespass the plaintiffs seek a mandatory order to compel the defendant to remove so much of the foundations as trespass on their land.  Though the question can be simply stated the litigation has been protracted and involved a considerable body of detailed evidence, both on the issue of the location of the boundary and what relief, if any, should be granted to the plaintiffs in the event of the court finding a trespass.
            Mr Orr QC and Mr McLaughlin appeared on behalf of the plaintiffs.  Miss Monya Anyadike-Danes appeared on behalf of the defendant.
The parties’ titles
            By a lease dated 6 June 1948 (“the 1948 lease”) made between Francis Noel Cooke and John L Bullick, as lessors, with Rola Richard Harding Saunders described as the surviving tenant for life of the premises joining in the lease and Kathleen Morrow as lessee the lessors demised to the lessee the premises of No. 90 for a term of 10,000 years from 1 October 1947.  The premises were described in the lease in the following terms:
“All that piece or parcel of ground situate at the east side of the Lisburn Road in the City of Belfast containing in front to the said road (21) feet (2) inches in the rear (28) feet (9) inches on the North East side (140) feet and on the South West side along an irregular line (44) feet (6) inches (15) feet and (103) feet be all or any of the said measurements more or less.  Bounded in front by the Lisburn Road aforesaid in the rear by a lane (20) feet wide on the North East by Elmwood Avenue and on the South West by other premises of the Lessors Together with the dwelling house and buildings erected thereon and now known as No. 90 Lisburn Road, Belfast which said piece or parcel of ground and premises (hereinafter referred as ‘the demised premises’) are situate in the Parish and Barony of Belfast in the City and County Borough of Belfast and are more particularly delineated and described on the map endorsed hereon and therein surrounded by red lines.”
 
            Since the details in the lease map are important to an understanding of the issues in this case a copy of the lease map is annexed to the judgment (Map A).  The original lease map marks points A, B and C as shown on the map.  In order to explain and understand that the boundary issues raised in the proceedings on Map A I have marked in addition to those points the other relevant corners marked D, E, F and G.
            The leasehold interest of the lessee under the lease ultimately vested in the Club under an assignment of 7 December 1956.  Following the purchase of the premises at an auction held in June 2000 by the second and third plaintiffs, title to the premises was transferred to them by deed of assignment made on 20 October 2000.  
            The premises at No. 92 were the subject of a separate long lease dated 1 November 1956 (“the 1956 lease”) granted by George Lennox Cotton and Bertrand Dawson Cotton to Thomas Moffett as lessee for the term of 10,000 years.  The premises in that lease were described as:
“ALL THAT piece or parcel of ground situate on the East side of the Lisburn Road in the County of the City or County Borough of Belfast containing in front to Lisburn Road aforesaid (20) feet (8) inches in the rear (28) feet (8) inches and extending from front to rear on the North East side along an irregular line (103) feet, (15) feet and (44) feet (6) inches respectively and extending from front to rear on the South West side along an irregular line 108 feet, 10 feet and 43 feet 8 inches respectively be all or any of the said several add measurements more or less BOUNDED in front by Lisburn Road aforesaid in the rear by a passage (20) feet wide and on the North East side by the premises known as No. 90 Lisburn Road and on the South West side by the premises known as No. 94 Lisburn Road TOGETHER with the dwelling house and building erected thereon and now known as No. 92 Lisburn Road which said piece or parcel of ground and premises  … are situate in the Parish and Barony of Belfast in the County of the City or County Borough of Belfast and are more particularly delineated and described on the map endorsed hereon and therein surrounded by a red line.”
 
The map attached to that lease is annexed to this judgment as Map B.
 
The alleged trespass
            The dispute between the parties relates to the wall and foundations constructed by the defendant in the area of land lying proximate to the time between B, C and D on Map A.  The defendant began demolition work at Nos. 90 to 96 in April 1999 and in November received planning permission for his development scheme.  The new building required piled foundations and piling began in December 1999.  The piling work was completed by middle of December 1999.  The piles installed included two at points along the disputed line which were to be used to provide underpinning for the foundation of the side wall of the extension at the rear of the premises.  The Club was concerned by the fact that the defendant’s contractor was parking at the rear of the Club premises which were open and gave access to Elmwood Mews at the rear.  By letter of 3 December 1999 the Club’s solicitors wrote to the defendant’s solicitors objecting to the parking on the site and to a vehicle using the site to pump “cement” into the defendant’s site without the Club’s consent.
            A meeting took place on 17 December 1999 between the parties’ representatives and the meeting appears to have been amicable.  The Club’s architects Donnelly and O’Neill had prepared a site map which purported to mark the boundaries of the site.  This map is also significant in the dispute and is attached as Map C.  The map formed the basis for discussions.  The map indicated that the Club’s architects considered that the boundary between Nos. 90 and 92 ran not through the party wall between the premises but along a line somewhat to the right of it, which affected the position of point C on the lease map and hence the line between D and C.  The map indicated an area of blue hatch ground shaped like a boomerang at the rear of Nos. 90 and 92 and a transfer of that land No. 92 was discussed as was an area marked green on the map beside the front step.
            As will be seen from the architects’ map along the line between what is C to D on the lease map there was a line of bollards and also a double line marking the site of a wall constructed at the rear of No. 92 which touched the rear wall of a lozenge shaped gallery which the Club had constructed at the rear of their premises at No. 90.  No. 92 had for a number of years been occupied by quantity surveying business run by a Mr Love who had constructed the wall at the rear of No. 92 as a security measure and bollards had been put in between sites 90 and 92 along the C to D line to mark out the side of Mr Love’s car park to the rear of his premises.  What is clear is that the rear of Nos. 90 and 92 had radically changed from the time of the leases in 1948 and 1952.  The party fences between Nos. 90 and 92 at the front and rear had disappeared, as had the rear return at the back of No. 90.  This change in the physical layout of the premises resulted in the disappearance of the features which had marked the true boundaries between the premises at the time the leases were granted, rendering it all the more difficult now to determine the precise location of the boundaries between the premises.
            Mr Mongan of the firm of P and B Gregory Architects, the architects acting for the defendant, at the meeting in December indicated that he could not accept the boundaries as marked in Mr Donnelly’s map.  There was agreement in principle that the “boomerang site” when properly delineated would be the subject of a transfer and it was agreed that Mr Donnelly would produce a new lease map regularising the back boundary.  Thereafter a number of letters had to be written to the Club’s advisers asking for a revised map.  In May 2000 correspondence involving the architects and the parties’ solicitors highlighted the emerging dispute which existed as to the true line of the boundary in the rear of the premises. 
            Meanwhile the defendant’s contractor on the basis of architects’ and engineers’ drawings had put in the ground beam forming part of the foundations, the ground beam resting on piles in the area of the line C to D.
            After the sale of the Club at premises by auction the purchasers and their solicitors became concerned about whether the defendant was trespassing on to the site on sale and threatened not to complete until they could be satisfied that they were acquiring title to the entirety of the premises which they had contracted to purchase.  The Club’s solicitors in early July 2000 demanded that the defendant should remove the foundations and associated work which it was alleged constituted a trespass.
            Work on the building of the wall on top of the foundation had begun in June 2000.  Because of the dispute the defendant decided to locate the wall at the rear part of the foundation away from No. 90, rather than at the front of the foundation closest to No. 90.  As appears later the wall as built is for all intents and purposes on the defendant’s side of the disputed boundary even on the plaintiffs’ own case but the plaintiffs maintain that a significant part of the foundations are on the plaintiffs’ side of the boundary.
            Following on from that the originating summons was issued and came before the vacation judge.  Initially it appeared that the Club was seeking to have a vacation hearing to determine the line of the boundary.  No such order was made and the court order of 21 July 2000 records that the matter was to be listed before the Chancery Judge in late August, the defendant undertaking in the meantime that he carry out no further building work on the disputed area referred to in the summons and the plaintiffs giving a cross undertaking in damages.  
            When the matter came before me in September I directed that the matter should proceed as an action with a delivery of pleadings on an expedited basis, the court indicating a willingness to have an expedited hearing.  The defendant was no longer willing to give a voluntary undertaking not to carry out further work on the site and the plaintiff were given two days to bring an interlocutory injunction application if they wished.  The plaintiffs did not do so and the defendant resumed work completing the wall and largely completing the building constructed at the rear of No. 92.  It is evident that the removal of the foundations will now involve taking down a significant part of the almost complete building and that is work which would be manifestly more expensive now as compared to the cost of the removal of foundations as they existed in July.
Determining the boundary
            It appears that historically a court of equity had power to order an inquiry, whether by way of a formal commission or by proceedings in chambers to ascertain boundaries which had become confused.  See Halsbury’s Laws of England Volume 4(1) paragraph 913).  Mere confusion of boundaries is not in itself a sufficient ground, except by consent, to support a claim for a commission which would only be granted where some equity was shown arising out of the inequitable conduct of one of the parties.  There has apparently been no recent instance of such a commission being granted.  In the present case the plaintiffs have not formulated their claim on such a basis but rather are basing their claim on trespass by the defendant.  They are seeking injunctive relief and/or monetary compensation as a result of what is alleged to be a continuing tort.  It is clear that in such proceedings the court must determine whether the plaintiffs have established that the defendant has gone beyond his proper boundaries and the court must accordingly, come to a conclusion whether the plaintiffs have established a trespass.  It may be that in a given case the question where the line of the boundary is is so confused and unclear that a plaintiff may fail to satisfy the court on a balance of probabilities that the defendant has trespassed, bearing in mind that the plaintiff must recover on a strength of his own title not on the weakness of the defendant’s title (see Halsbury Volume 4(1) paragraph 914).
            In approaching the question where the true boundary line lies a number of propositions can be stated.
1.         The plaintiffs’ lease predated the defendant’s lease.  Other things being equal if there is a conflict between the two leases as to the boundaries the first in time would take precedence over the later lease.  The lessors having granted under the 1948 lease lands within specified boundaries if in error they purported to confer part of the same lands in the 1952 lease to the lessee thereunder the latter could acquire title to something which the lessor had already demised by the earlier lease (nemo dat quod non habet).
2.         The 1948 lease defined the demised lands firstly by a description within the body of the lease and secondly by the lease map.  The lease stated that the premises were “more particularly described in the map”.  Such terminology points to the conclusion that the draftsman considers that the verbal descriptions may not exhaustively describe the premises.  As Lord Wrenbury said in Eastwood –v- Ashton [1915] AC 900 at 902:
“These words seem to mean that the previous description may be insufficient for exact delimitation and the plan is covering all deficiencies if any.”
 
            In reading the lease one must read it as a whole so that, for example, the description of the measurements in the body of the text must be read with the map and the qualification “more or less” must qualify the measurements shown on the map.
3.         At the time of the 1948 lease there existed actual boundaries on the ground along the side between points G, A, B, C and D comprising the wooden fence between D and C, the party wall between A and B and B and C and the fence along the line G to A.  If those physical boundaries still existed there would be no difficulty in defining the boundary along the side of No. 90.  Since they no longer exist the plaintiff must effectively prove that the defendant has trespassed over the boundaries such as they existed in 1948.  
4.         The measurements contained in the 1948 lease established that the distance between C and D is 44 feet 6 inches and between B and C is 15 feet.  This latter measurement is not spelt out in the map, but emerges from the text of the lease itself.  In that context the verbal description and the map must be read together.  Point B is described in the lease and the map as being 103 feet from the point which I have marked G which is itself 21 feet 2 inches from the point which I have marked as F.  F is 140 feet from E which is 28 feet 9 inches from D, all those measurements being described in the body of the lease as “more or less”.
            The words more or less do not appear to have a precise legal meaning.  The word “thereabouts” was interpreted in Morson and Cullimore (Gravels) Limited –v- Routledge (1977) 121 Solicitors Journal 202 where Lord Denning held that the description of conveyed premises as 10 acres “or thereabouts” might leave a margin of one or two per cent error, but not more.  The evidence in the present case showed that prior to the more accurate digitalised and computerised forms of measurement now available there was always some room for slight error in measuring using traditional measuring tapes.  I do not read the words “more or less” as indicating that the court should consider the measurements described in the lease as only approximate.  While affixed boundaries existed there could be no doubt as to where the true boundaries were.  Once they were gone one must rely on the measurement as being accurate subject to the possibility of some small measuring errors attributable to the shortcomings in measuring procedures in 1948 and 1952.  The court should proceed on the basis that omnia praesumuntur rite esse acta.
            One point which may ultimately be significant relates to where the line A to B should be drawn through the party wall which existed between Nos. 90 and 92.  The evidence established that this wall was a 9 inch wide wall two bricks thick.  The final outcome to this case could be different if the line goes through the mid-point of the wall along the line AB or if it goes through the outer side of the wall on the side of No. 92 or on the inner side of the wall on No. 90.  If one proceeds along the outer side of the wall at No. 92 this would result in the piles trespassing over the line of C to D even on the evidence of Mr Mongan called on behalf of the defendant.  The proper line of the boundary depends on what is within the demise of No. 90.  The written text of the lease itself does not in its terms indicate where on the party wall the line should be drawn.
            Where premises are demised which include external walls it is clear that the demise goes to the outer part of the external wall (see, for example, Hope Brothers Limited –v- Cowan [1913] 2 Ch 312).  In Halsbury’s Law of England Vol 4 paragraph 908 it is stated that:
“A demise of part of a building bounded by an external wall includes both sides of the wall enclosing the part demised and a demise bounded by a partition wall includes half or some part of the partition wall unless such construction is expressly or impliedly excluded in the terms of the lease.”
 
            The text cites two authorities for the proposition namely Hope Brothers –v- Cowan [1913] 2 Ch 312 and Phelps –v- City of London Corporation [1916] 2 Ch 255 at 263.  In the former case the court was concerned about external and not internal partitioning walls.  In the latter case the relevant lease made it clear that the demise included half the relevant wall up to the mid-point.  
            In Hope Brothers Joyce J stated:
“The demise of a room must necessarily include unless it be excepted some part of the wall which bounds it.  I do not know whether if there be an adjoining room let to somebody else it could be said that the wall demised was a sort of party wall or not, but that does not arise here.  No such consideration as that arises with reference to an outside wall.”
 
            In Phelps –v- City of London Corporation Peterson J at 263 said:
“In the case of an external wall the demise of a room includes the whole of the wall while in the case of a partition wall it seems to be clear that some part of wall is included in the demise.”
 
         Neither of these two authorities clearly establish that in construing the present leases one should assume that the mid-point of the wall represents the line through which the boundary line should be drawn.
         Mr Orr QC rightly reminded the court that in the case of party walls in Northern Ireland the old common law principle still applies that is to say there is a presumption that the adjoining property owners are tenants in common of the party wall.  It is pointed out in Wylie’s Irish Land Law at paragraph 7.55 that this is a presumption only which usually arises where there is evidence that both adjoining owners exercise rights over it.  In England and Wales with the abolition of tenancies is common such party walls no longer exist and in place of the common law presumption the wall would be deemed to be divided vertically in to two strips each belonging to one of the adjoining owners.
         A consideration of the lease map indicates that the draftsman has drawn a broken line through the part of the party wall along the side of the yard and round the one storey extension at the rear of No. 90 and the letter B is positioned in close proximity to where the broken line is.  As a matter of construction I hold that point B is intended to be at the mid-point of the party wall so that the 15 feet would run from that point to point C.  Moreover, both Mr Hall on behalf of the plaintiffs and Mr Mongan on behalf of the defendants, said that in the measuring exercise which they carried out to establish the line of the 103 feet from G to B they were attempting to go through the mid-point of the party wall.  It is thus part of the plaintiffs’ evidence and case that that represented the line from G to B which had to be established to find point B which should be the point from which 15 feet is measured to meet the line from point D.  I shall accordingly proceed upon the basis that the relevant line A to B ran through the mid point of the party wall in a straight line.
         The determination where the boundary between B, C and D lies is clearly a difficult exercise as is borne out by the differing views taken by the parties’ experts who have arrived at different views at different times as to where the precise boundary lies.  At the trial the parties presented two conflicting versions of where the boundary lies.  
         Mr Hall, a chartered land surveyor and fellow of the Irish Institution of Surveyors carried out a land survey on 24 August 2000 using a Leica TCR Total Station sand plotted using a Auto CAD at 1/200 scale.  He produced a map, (his map 1) which showed the position of the site boundaries using the measurements given in the lease of No. 90.  The measurements are marked in this map and shown in metres and feet.  His map 2 shows the rear of the premises plotted on a scale of 1 to 100.  His map 3 shows the position of the site boundaries using the measurements given in the deeds of No. 90 Lisburn Road and map 4 shows the rear of the premises based on map 3.  It must be said that the written report submitted Mr Hall dated 12 September 2000 is not an easy document to follow.  Mr Hall opines that the deed boundaries as shown on his map 1 provides the likeliest position.  That map and map 3 are annexed as Maps D(i) and (ii) to this judgment.  In his oral evidence Mr Hall indicated that he used as a fixed point, point E (as shown on the Map A).  From this he measured 28 feet 9 inches to arrive at point D.  Point C was determined by establishing a point which was 44 feet 6 inches from D and 15 feet from B.  The determination where point B is located is important.  According to the lease point B is at the end of the 103 straight line which runs through the party wall between Nos. 90 and 92 to where it meets the front boundary on the Lisburn Road side of the site.  In establishing the 103 feet line Mr Hall stated that he attempted to find the centre of the dividing wall between Nos. 90 and 92.  Asked whether that was the wall which existed now after the defendants work, or an older wall he said: 
“that is the older wall between the original dwelling house 90 and 92.  I was trying to find and I think I was able to identify it.  And I ran that dimension of 103 feet.  That dimension was actually run along the line of that wall.”
 
         He further stated that:
 
“It is presumably the original wall.  You can’t really tell.  It is plastered on the inside.  On the outside where the bricks meet is approximately the same position.”
 
            At the conclusion of his evidence the witness frankly stated:
“You can get a different shape of the plot with the same measurements – that is the real problem and all one can do is try to fit the deed maps as best you can to what the details that you think are there – but I could do it and fifty different people could do it and we might all end up with different answers.”
 
            Mr Hall also accepted that he had not personally measured the foundations.
            Mr Mongan gave evidence as to how he determined where the boundary was located.  He stated that when carrying out his design work he had difficulty establishing the boundary.  He produced detailed drawings of the proposed new building and shared them with the Club’s architect, Mr Donnelly.  By December 1999 it appeared that the parties were not in agreement as to where the boundary was located.  A meeting took place on 17 December 1999 to discuss the transfer of the boomerang site at the rear of No. 90 and the kink of land at the side of the steps at the front of the premises.  Mr Donnelly’s map indicated that Mr Donnelly considered that the boundary on the lines G, B, C, D ran along the outside of the right hand side of the party wall.  Mr Donnelly’s map was based on a specialist survey of the premises by the firm of Scadden, a survey which picked up the location and layout of the party wall between Nos. 90 and 92.  Mr Donnelly’s positioning of the line along G, A, B established his point B from which 15 feet had to be measured to meet the line 44 feet 6 inches from point D.  If he was wrong on his position on point B then the boundary along C to D would be further in to the left.  Mr Mongan initially considered that there had been a conflict between the lease of 1948 and the 1952 lease.  If one assumed that the rear garden of No. 90 was a perfect rectangle the two maps did not fit together.
            In his testimony at the trial Mr Mongan sought to interpret and apply the lease map against the reality of the known facts.  He criticised Mr Hall’s map on two main grounds.  Firstly, he noted that Mr Hall had positioned point F somewhat out into the pavement away from the known centre of the front wall at the corner of Elmwood Avenue and Lisburn Road.  He could see no logical reason why the draftsman of the 1948 lease would have measured 21 feet 2 inches other than from the corner of the wall itself or from where the fence at the front garden met the Lisburn Road to that corner of the wall.  Secondly, the drawing ascribed no widths to the party wall itself and it could not be determined where the line was drawn in relation to the party wall.  Additionally he criticised Mr Hall’s drawing of the positioning of the ground beam which was set back from and not in line with the front of the pile caps.
            Mr Mongan prepared a map (Map E annexed to this judgment) delineating the layout of the boundaries at No. 90.  Measuring 21 feet 2 inches from the corner of the wall of Lisburn Road and Elmwood Avenue, along the Lisburn Road frontage he arrived at a point where the front fence would have been present if 21 feet 2 inches were the correct distance.  Going back in a straight line towards the party wall it was apparent that the fence could not meet the party wall and go through it in a straight line, so as to run straight back to point B.  Mr Mongan showed the line of the fence with a slight kink or bend to take account of this.  Point B, he established by measuring a straight line of 103 feet through the mid-point of the party wall thus not measuring in any additional length created by the kink in the fence line.  Since his line from B to the Lisburn Road is measured in a straight line through the mid-point of the wall there is no logical reason why his point B should differ from Mr Hall’s point B.
            Mr Orr rightly reminded the court that Mr Mongan was not an independent witness and thus not an expert since it was he who had decided where the boundary was for the purposes of the design and construction of the foundations and wall.  Nevertheless I preferred the evidence of Mr Mongan to that of Mr Hall who failed to satisfy me that he had taken all reasonable steps to locate accurately the line running through the party wall.  Mr Hall thus failed to satisfy me that he had arrived at the correct point B.
            Accordingly the plaintiff has failed to prove on a balance of probabilities that the defendant is trespassing to the extent alleged in the proceedings.  I accept Mr Mongan’s measurements and calculations which do establish a trespass of modest proportions.  The pile cap furtherest from No. 90 trespasses by 279 mm into No. 90, the ground beam trespasses by 75 mm at its upper end tapering to 14 mm at the lower end and the pile cap closest to No. 90 trespasses by 224 mm.
            The defendant is willing to undertake to remove those trespassing portions of the pile caps and ground beam if access is given to No. 90 to do that and the evidence satisfies me that this work can be done safely and effectively.  Mr Coulter the defendant’s engineer accepted that it is possible that dealing with the encroaching foundations in that way could interfere somewhat with a reinforcement rod and link within the foundation.  However, he is satisfied that this can be dealt with without major problems.  Since the defendant is giving that undertaking he must accept the full consequence of doing the work in this way and if it turns out to be more expensive and more complicated than anticipated the defendant must meet the additional expense.  The defendant would likewise have to undertake to make good any damage to No. 90 and meet any loss which the plaintiffs could establish from the carrying out of the work on No. 90 to deal with the encroachment.
            In view of the conclusions which I have reached on the line of the boundary it is strictly unnecessary for the court to arrive at any conclusion as to whether it would have acceded the plaintiffs’ claim for a mandatory order against the defendant in the event of the court accepting the boundary as contended for by the plaintiffs.  However, since the matter may go further and since the parties have asked the court to express a view on this point I shall briefly state my conclusions in that regard.
            The plaintiff argued that the encroachment they alleged was in the circumstances a significant trespass which interfered with the development potential of their site and that the court ought to order the defendant to remove the encroaching foundations to remove that interference.  A very considerable amount of time was taken up at the trial with a consideration of the plaintiffs’ proposed scheme for the development of the site which the plaintiffs allege was significantly interfered with as a result of their trespass.  Almost every aspect of the proposed scheme was attacked by the defendant in an attempt to show that the scheme was not viable and was impractical.
            The scheme put forward by the plaintiffs was described as being very much at the feasibility stage.  The plaintiffs proposed to make a planning application for a development incorporating some 2,500 square feet of office space in an area for retail use and eight apartments with a mix of one bedroom and two bedroom apartments.  Much of the debate at the trial related to the proposals to construct a basement car park.  With no encroachment the plaintiffs claimed that they could expect to be able to put in seven spaces in the basement area, access by a ramp to one level with three spaces and by a further ramp to a lower car park with four spaces.  There was much debate whether the plaintiffs’ premises would be granted planning permission for such a development and whether they could satisfy the planning authorities that they could provide adequate car parking spaces.  It was common case that the plaintiffs would have to persuade the Department to disapply its guidelines which would normally require some 30 spaces for such a development.  There was debate as to whether even apart from the encroachment the upper level of the car park basement could actually provide space for three car parks.
            It is not necessary to rehearse at length the very considerable body of conflicting evidence adduced about the viability or otherwise of the plaintiffs’ scheme.  Suffice it to say that on the evidence the plaintiffs have failed to persuade me that this scheme is a viable one or that it is one which will ultimately represent the final nature of the redevelopment to premises.  The evidence does not persuade me that a basement car park along the lines shown in the schematic drawing is practical with or without the encroachment.  I have not been persuaded that without the encroachment three spaces could have comfortably fitted within the confines of the upper level of the basement car park taking account of the size and location of the ramp and supporting columns for the building above.  Moreover, the gradient and layout of the ramps is problematic.  In assessing the overall financial viability of the scheme the plaintiffs envisaged profit is £122,500 as calculated by Mr Graham on behalf of the plaintiffs.  This shows a very modest return of 5% in respect of a difficult and problematic development, quite out of line with the much higher level of returns of 15%-20% that a developer would reasonably expect in such a development.  That small return was itself based on an optimistic assessment of the sale value of the apartments which Mr Graham has calculated would be likely to fetch £145,000 in the case of one bedroom apartments and £200,000 in the case of two bedroom apartments.  I found the evidence of Mr Stewart, associate partner in Whelan Partnership called on behalf of the defendant more convincing when he suggested a valuation of £110,500 for the one bedroom apartments and £130,000 for the two bedroom apartments and somewhat less for the apartment without a car parking space.  The building cost assessments prepared on behalf of the plaintiffs for the scheme was, according to the evidence of the defendant’s quantity surveyor a considerable underestimate.  The plaintiffs’ costing amounted to £1,065,000 with a lower sum for contingencies compared to the £1.49 million and a greater sum for contingencies calculated by the defendant’s quantity surveyor.  I am not satisfied that Mr Graham’s estimate would represent the final true cost of the development and I found the evidence of the defendant’s quantity surveyor somewhat more convincing.  Moreover on the financing costs the plaintiffs do not appear to have allowed any realistic financing costs for the period between completion of the building work and the disposal of the developed site.  With the small profit margin envisaged in the plaintiffs’ approach to the scheme modest adjustment to the various other figures would easily result in a considerable loss being suffered in the development as envisaged.  
            Although the plaintiffs have failed to satisfy me that this scheme is cost effective and viable and have failed to establish that the trespass would cause the level of loss claimed in the Mr McVeigh’s claim document the evidence does establish that the trespass if it was of the magnitude alleged by Mr Hall would be more than insignificant for a development site such as this.  The plaintiffs as owners and developers of the site are entitled to use all parts of the site to their maximum potential.  The trespass would affect the design of the upper building which requires underpinning and supporting columns.  The trespass would add to the cost and expense of the development of the site.  It is difficult to decide what the final nature of development at the site will ultimately be or the extent of the interference caused by the encroachment.  However, it must be said on the evidence that the encroachment in this site would introduce an unnecessary complication in the development of the site, which other things being equal the plaintiffs should not have to suffer.
            Mr Orr QC relied strongly on the well known passage in Shelfer –v- City of London Electric Light Company [1895] 1 Ch 287 at 322 where A L Smith LJ set out what he described as “a good working rule”:
“(i)      If the injury to the plaintiff’s legal rights is small 
(ii)       and is one which is capable of being estimated in money, 
(iii)      and is one which can be adequately compensated by a small money payment;
(iv)      and the case is one in which it would be oppressive to the defendant to grant an injunction
then damages in substitution for injunction may be given.”
 
            In Jaggard –v- Sawyer [1995] 2 All ER 189 Millett LJ said:
“Laid down just 100 years ago, A L Smith LJ’s check list has stood the test of time; but it needs to be remembered that it is only a working rule and does not purport to be an exhaustive statement of the circumstances in which damages may be awarded instead of an injunction.  Reported cases are merely illustration of circumstances in which particular judges have exercised the discretion, in some cases by granting an injunction, and another’s by awarding damages instead.  Since they are all cases on the exercise of discretion none of them is binding authority on how discretion should be exercised.  It would not be wrong to exercise the discretion in the same way, but it does not follow that it would be wrong to exercise it differently.”
 
            The defendant in resisting the argument for an injunction argued that the failure of the plaintiffs to apply for an interlocutory injunction was a strong factor against the granting of an injunction since the plaintiffs deliberately decided not to apply for an interlocutory injunction in September 2000 at a time when they must have known that the defendant was likely to restart work on the completion of the wall having undertaken during the summer not to carry out this further work.  It is clear from Jaggard –v- Sawyer that this is a factor, though not a decisive factor, bearing in mind that the defendants could have applied for an urgent hearing for a declaration of right.
            I am satisfied in this case that the defendant genuinely believed that he was building within his own boundaries, acted openly and in good faith and in reliance on his advisers.  These are factors which weigh against an injunction to some extent.
            However and not without hesitation, I conclude that if the plaintiffs had established the boundaries for which they contended then a mandatory injunction should have issued.  The trespass in Mr Hall’s figures in the context of this site would be a matter of significance to the long term development of the site.  I could not be satisfied that the plaintiffs would be adequately compensated by a small monetary sum.  Granting an injunction would result in the defendant sustaining significant financial expense in taking down part of the building which is now erected and moving the foundations back to the hypothetical correct line.  This work would lead to delay in the opening of the defendant’s restaurant business.  Nevertheless, in the overall scheme of the development the cost of the work would be relatively small, the delay would be a matter of a few weeks and the defendant may well be entitled to recover the cost and expenses involved against those who were advising him in relation to the project.  The removal of the hypothetical encroachment would free up the plaintiffs’ site for its maximum development.
            Miss Anyadike-Danes raised the argument that the interests of the Club which was the original plaintiff and the interests of the second and third plaintiffs, who were subsequently joined as co-plaintiffs, were different and that the Club was not entitled to an injunction, assuming a trespass of the magnitude claimed by Mr Hall.  However, I am satisfied that if there was a trespass as alleged by Mr Hall it was a continuing trespass which continued from day to day.  In determining whether or not a mandatory order is appropriate the court must have regard to the circumstances prevailing as to the date of hearing, taking into account all the factors in relation to the past which are material to the exercise by the court of its discretion whether or not to grant an injunction.  In all the circumstances, had I found a trespass of the magnitude claimed by the plaintiffs, I would not have declined equitable relief on the basis that the Club could not have succeeded in obtaining an injunction.
            In the premises however for the reasons given above I find that the trespass by the defendant is of the more limited nature established on Mr Mongan’s evidence and I decline to grant an injunction having regard to the undertaking which the defendant is prepared to give.
            I shall hear counsel on the question of costs.