England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LLEDS DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/6/2005

The Honourable Mr Justice Silber:

Introduction

1. Nadia Liaqat ("the claimant") is the freehold owner of a property, which is known as 194-196, Towngate, Wyke, Bradford ("the claimant's premises"). Abdul Majid (The owner of the property), Arshad Majid and Tariq Majid ("the defendants") are the occupiers of the adjacent property, which is situated at 198-200 Towngate, Wyke, Bradford ("the defendants' premises"), which is apparently owned by the first defendant, who is the father of the other defendants. The defendants' premises comprise a dwelling house and also a hot-food and take away shop known as Khyber House. The claimants and the defendants are all related to each other but unfortunately there is and has been much ill feeling between the claimant's branch of the family and the defendants' branch for reasons, which are not relevant to the present claim.
2. The defendants installed an extractor fan on their property but it protrudes through the side of the wall separating the claimant's premises from the defendants' premises so that it is partially above the rear yard of the claimant's premises. The claimant objects to the extractor fan being above her rear yard and so she commenced the present proceedings in which she contends first that this extractor fan trespassed onto the rear yard of her property and second that it also constituted a nuisance. The claimant sought an injunction requiring the defendants to remove or to reposition the extractor fan as well as damages. The defendants contest these claims on a number of grounds including that the claimant's father helped to install the extractor fans and that he gave consent to their use on two occasions.
3. For the purpose of completeness, I should mention that some other claims, which the claimant made but which are not relevant to the present appeal. The claimant brought another action of nuisance against Arshad Majid and Tariq Majid only in relation to the blocking her access to the rear of the property.

II. The Judge's Decision

4. His Honour Judge Hawksworth QC heard this claim on 17^th December 2004 at the Bradford County Court. He dismissed all the claims for trespass and nuisance.
5. The claimants now seek to appeal solely against the finding that the defendants' extractor fan did not trespass upon the claimant's property. Thus it is not necessary for me to say anything about any of the other claims.
6. The learned judge was apparently not asked by the defendants for permission to appeal. It has now been ordered first that there should be an oral hearing of the claimant's application for permission to appeal and second that if it is granted, the claimant's substantive appeal should then be heard immediately afterwards. It is more

convenient to deal with both these matters together before giving my decision on either and that is what I propose to do.

7. Judge Hawkesworth did not give all the specifications of the extractor fan but I am prepared to accept for the purposes of the present hearing the defendants' assertions first that the base of defendants' extractor fan is about 4.5 metres above the ground level in the claimant's rear yard and second that the fan is about 1.5 metres high so that its top is about 6 metres above the rear yard of the claimant's premises. It is common ground that the extractor fan casing, which is made of galvanised mild steel, projects into the claimant's rear garden by distance of 750 millimetres. (Although, as I shall explain in paragraph 8 below, Judge Hawkesworth stated in paragraph 8 of his judgment that the extractor fan projected "some 750 centimetres from the wall", it is agreed by the parties that this was a slip of the judicial tongue because it only projected 750 millimetres).

8. This application for permission to appeal centres on the learned judge's reasons for holding that the positioning of the extractor fan did not constitute an act of trespass. In paragraph 8 of his judgment, the judge explained this decision relating to the extractor fan in this way: -

"The question of whether it constitutes a trespass or a nuisance is a question of fact or degree as [counsel for the claimant] rightly submits. So far as trespass is concerned, having referred myself to the learned author's latest edition of Clark & Linsell, it seems to me that it does not constitute a trespass, which interferes with the use of the ground beneath. It projects some 750 centimetres from the wall and is about three-and-a- half metres above ground level. Looking at the photographs it is something which is not particularly attractive, but certainly cannot be said to be at a height which would interfere with any normal activity within the garden. So I reject the case that it constitutes a trespass".

III. The Issues

9. The grounds for appeal are that Judge Hawkesworth misdirected himself into believing that in order to establish a trespass to the property, the claimant had to prove substantial interference with his use of the land. It is also contended by the claimant that the learned judge failed to appreciate that the extractor fan was a permanent intrusion into the claimant's air space as it was permanently suspended only a few metres above the ground level on the claimant's rear yard. The claimant submits that the learned judge erred when he concluded that the test for determining whether a trespass had been committed was whether, in the learned judge's words, "it would interfere with any normal activity in the garden" and that instead he should have granted an injunction to make the defendants remove the extractor fan.

10. The defendants contend that the judge was quite entitled to find that the extractor fan did not constitute a trespass on the claimant's land because of its position high above the surface of the claimant's land. Thus, the first issue is whether the position of the fan above the claimant's land constituted a trespass to her property.

11. The second issue only arises if it is decided that the defendants' fan extractor trespassed on the claimant's land, and that issue is then what the claimant's remedy should be. The claimant contends that an injunction should be granted requiring the defendants to remove or reposition the extractor fan so that it does not trespass on the claimant's land. The defendants submit that damages, and not an injunction, are the appropriate remedy for the claimant if it is held that the extractor fan trespassed on the defendant's property. I will consider each of these issues in turn.
12. The hearing of this application took place on the last day of my sittings in Leeds and I reserved judgment but before I turn to the issues, I must record two preliminary matters of which the first is that I should make it clear that it has not been contended that the claimant has any interest in the party wall between the claimant's property and the defendants' property on which the extractor fan protrudes into the air space above the claimant's property.

13. Second, at the start of the hearing in front of me, the third defendant, who acted in person and who also represented his co-defendants, served on the claimant's counsel a Respondents' Notice, a skeleton argument and some additional witness statements. Mr. Ian Pennock, counsel for the claimant, unsurprisingly stated that he was taken by surprise by these documents and that if the defendants wished to pursue the material in those documents, the claimant would require an adjournment. It was then suggested that I should adjourn for a few moments so that the parties could discuss matters and I complied with is request. When I returned to court a few minutes later, the third defendant told me that he had reconsidered his position and that he and the other defendants first were then content solely to rely on the terms of Judge Hawkesworth's judgment in order to resist the appeal and second significantly that the defendants did not wish to rely on any further grounds to resist the appeal. In other words, the defendants were no longer relying on any of the material in the Respondents' Notice, the skeleton argument or in the additional witness statements, which the third defendant had handed in at the start of the hearing. Thus the only issue before me was the correctness of the judges' conclusions on the claim for trespass and which I have set out in paragraph 8 above. I should add that the third defendant is legally qualified and that he has made submissions on behalf of himself and of his co-defendants with skill and care.

14. It is common ground between the parties that the tort of trespass represents an interference with the possession or right to possession to land. The dispute between the parties is whether the correct test for deciding whether a trespass to land as occurred is, as the judge held to be the position, that for there to be a trespass, there has to be something "which would interfere with any normal activity within the garden" or as the claimant contends to be the position, anybody who interferes with the air space a few metres above the land of another person commits an act of trespass. I will now consider the authorities to determine what light they cast on this issue.

IV. The Authorities on Trespass

15. The question whether an invasion of air space amounts to a trespass has been the subject of judicial consideration on various occasions in recent years. Mr. Pennock in his helpful written skeleton argument referred me to the case of Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd (1987) 38 Building Law Reports 82 in which Scott J (as he then was) analysed many of the relevant cases and to which I will now turn.
16. In Kelsen v Imperial Tobacco Company (of Great Britain and Ireland) Ltd [1957] 2 QB 334, an advertising sign erected by the defendants projected a few inches into the air space above the one-story shop of a neighbouring occupier, who commenced proceedings against the defendants.
17. McNair J held that the positioning of the advertising sign constituted a trespass as it invaded the claimant's air space. In reaching that decision, the learned judge pointed out that initially in Pickering v Rudd (1815) 4 Camp. Lord Ellenborough had said that he did not think that it was a trespass to interfere with air superincumbent on the close but McNair J explained that since 1865, there had been consistent line of authority demonstrating a contrary approach. Thus, for example, in Wandsworth District Board Works v United Telephone Company Ltd (1884) 13 Q.B.D. 904, a telephone line above a street was regarded by each member of the Court Appeal as being capable of constituting trespass against the local authority in whom that particular street was vested.
18. Similarly in Gifford v Dent [1926] W.N. 336, Romer J held that a sign, which projected some 4 foot 8 inches from a wall above premises, which had been let to the claimant, constituted a trespass. McNair J also attached importance to the fact that Parliament had found it necessary expressly to negative the action of trespass arising from the mere fact that of an aeroplane passing through the air above land in section 9 of the Air Navigation Act 1920, which was subsequently replaced by section 40(1) of Civil Aviation Act 1949. Thus, the learned judge concluded that a trespass was created by the invasion of Kelsen's airspace by this sign
19. The approach in Kelsen was also later adopted in the Australian case of Graham v KD Morris and Sons Pty Ltd (1974) Queensland Rep 1 in which, as Scott J explained in Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd (supra), the oversailing boom of a tower crane was held to be a trespass over the land over which it overhung. Pausing at this point, it seems that these authorities do not support the approach of Judge Hawkesworth that in order to establish a trespass of land the act complained of had to interfere with a normal activity within the garden because in the four cases to which I have referred in which Kelsen, Wandsworth District Board Works, Gifford and Graham successfully established claims of trespass, there was no suggestion that the acts complained interfered with any normal activity conducted on the land. On the contrary, these authorities show, as the claimant submits in the present case, that if the act of trespass complained of constitutes an interference with the air space immediately above another's land, that act will be regarded as a trespass of the land of that person.

20. In Bernstein v Skyviews General Ltd [1978] QB 479, Griffiths J (as he then was) held that when the defendants used an overflying aeroplane in order to obtain aerial photographs of the claimant 's country residence, this invasion of airspace by the overflying aircraft did not constitute a trespass.
21. In explaining his decision Griffiths J said that he did not want to cast any doubts upon the correctness of the Kelsen decision because he then explained on page 486 G of his judgment with my italicised emphasis added that: -

    "it may be a sound and practical rule to regard any incursion into the air space at a height which may interfere with the ordinary user of the land as a trespass rather than a nuisance. Adjoining owners then know where they stand: they have no right to erect structures overhanging or passing over their neighbour's land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty"

22. I interject to add that that the learned judge's statement that adjoining owners "have no right to erect structures overhanging or passing over their neighbour's land" is supportive of the claimant's case and contrary to the test of Judge Hawkesworth of whether the overhanging structure "would interfere with any normal activity within the garden".

23. Griffiths J then proceeded to explain that different considerations arose in the case with which he was concerned as he was considering the passage of aircraft "at a height in which no way affects the user of the land" (page 486H – 487A) before he concluded that "I can find no support and authority for the view that a land owner's rights in the airspace above his property extend to an unlimited height" (page 487 G).
24. Having referred to various academic works, Griffiths J continued by saying at pages 487 H to 488 B that:-

"I accept their collective approach as correct. The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of airspace. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the airspace than any other member of the public".

25. This last passage also does not support the approach adopted by Judge Hawkesworth. On the contrary, it again supports the view that trespass to land is wide enough to embrace any interference with the rights of an owner, which are necessary for the ordinary use and enjoyment of his land; because, as I have explained, Griffiths J approved the reasoning in Kelsen, in which it was held that such ordinary use and enjoyment of land would by implication include the right of an owner to use the land and the space immediately above his premises.
26. In Anchor Brewhouse Developments Ltd and Others v Berkley House (Docklands Developments) Ltd (supra), Scott J (as he then) was faced with a claim for injunctive relief by three claimants against the defendants, who were owners of a development site on which building work was being carried out. One basis of the claim was trespass to the claimants' land on the grounds that the defendants had erected a number of tower cranes, which over-sailed the land of each of the claimants, who asserted that this constituted trespass but who did not claim that there was any actual or apprehended damage to their proprietary interests.
27. The defendants resisted this claim for trespass on the basis that there had been no trespass because of the height at which the claimants' air space had been infringed. It was also contended that the court should balance the interests of neighbours taking into account the facts that first no damage was caused, that second tower cranes were required to develop site, that third the claimants had stood by while the cranes were erected and that finally that in an event, damages were an appropriate and adequate remedy.
28. Scott J granted the injunction on the basis that the tort of trespass represented an interference with the possession or right to take possession and significantly that a landowner is entitled to place structures on his land and thereby to take into possession the air space above it. He considered that the establishment of trespass did not depend on the balancing of rights but that as on the facts of that case, the booms from the cranes of the defendants invaded the claimant's air space, the claim for trespass succeeded.

29. Scott J also decided that Griffiths J's approach in Bernstein was concerned with the difficult case of overlying aircraft and that it could not be applied to the invasion of air space in general. He attached importance to Griffiths J's acceptance in the passage referred to in paragraph 21 above that adjoining owners had no right to erect structures projecting over their neighbour's land. Scott J held that the authorities, which concerned overflying aircraft, were of no assistance in deciding whether the invasion of air space by a structure situated on the land of a neighbour was a trespass. He stressed that even if no damage was being caused, it was the right of a property owner to allow the use of his property on terms acceptable to him and in this case the defendant's trespass deprived each of the claimants of this right.

30. The learned judge rejected an argument that the approach in the Bernstein case should lead to the decision that there was no trespass committed by the over- hanging cranes but he considered that it would be an incorrect use of authority to apply the approach of Griffiths J on the difficult question of the effect of overflying aircraft to the invasion of air space in general, especially as Griffiths J had accepted that adjoining owners had no right to erect structures projecting over their neighbour's land.
31. During the course of his judgment, Scott J said that:-

"the tort of trespass represents an interference with possession or with the right to possession. A landowner is entitled, as an attribute to his ownership of the land, to place structures on his land and thereby to reduce its actual possession the air space above his land. If an adjoining owner places a structure on his (the adjoining owner's) land that overhangs his neighbours land, he thereby takes into possession airspace to which his neighbour is entitled. That, in my judgment, is trespass. It does not depend upon any balancing of rights".

32. Scott J continued by explaining with my italicisation added that:-

"the difficulties posed by overflying aircraft or balloons, bullets or missiles seem to me to be wholly separate from the problem which arises where there is invasion of air space by a structure placed on or standing upon the land of a neighbour. One of the characteristics of the common law of trespass is, or ought to be, certainty. The extent of propriety rights enjoyed by landowners ought to be clear… But certainty is capable of being achieved where invasion of air space by tower cranes, advertising signs and other structures are concerned. In my judgment, if somebody erects on his own land a structure, part of which invades the air space above the land of another, the invasion is trespass. That conclusion is consistent with the judgment of McNair J in Kelsen,… with the decision of Campbell J in the Australian case and also with the dictum of Griffiths J at page 486 in the Bernstein case. If that is right, then the cranes over sailing the plaintiff's land commit trespass"

33. The reasoning and the decision in the Anchor case are relevant to the present case and, as I shall explain, determinative of it for a number of reasons. First, there is no suggestion in the judgment of Scott J that the defendants' activities in the Anchor case interfered "with any normal activity" within the claimants' premises or that this test, which had been applied by Judge Hawkesworth, was the appropriate test for

    establishing whether a trespass had occurred. Second, Scott J, as I have already explained, considered that oversailing cranes invaded the claimants' airspace and this was enough to establish that the defendants had trespassed on the claimants' land. Third, although the report of Anchor does not state the precise height at which the tower cranes of the defendants were operating above the claimants' land, it is obvious that they must have been operating at a much greater height above the ground than the position of the defendant's extractor fan in the present case. It is difficult to see why the tower cranes could be regarded as trespassing on the land many metres below them but that the defendants' extractor fan would not be considered to be trespassing on the claimant's land when it was only a few metres above it.

V. Conclusions on Trespass

34. In my opinion, all the authorities establish that if a defendant interferes with a claimant's airspace, this amounts to trespass except that this conduct would not constitute trespass if the interference were at such great height - such as by high flying aircraft- that it does not interfere with the claimant's airspace. As Scott J explained in the passage, which I have already quoted, "if somebody erects on his own land a structure, part of which invades the air space above the land of another, the invasion is trespass". By the same token, Grriffiths J, had previously stated, as I have already explained, that , "adjoining owners … have no right to erect structures overhanging or passing over their neighbour's land"
35. This reasoning and the cases to which I have referred establish that if the overhanging by a defendant occurs four metres above the ground, it would be regarded as interference with the claimant's airspace and so would amount to trespass. None of

    the cases support the approach of Judge Hawkesworth that a party only trespasses if his offending activity, "would interfere with any normal activity in the garden". These conclusions mean that I am unable to agree with Judge Hawkesworth, who did not have the advantage of having the authorities drawn to his attention in the helpful way that I have. I am sure that if he had had this benefit, he would have reached the same conclusion as I have. In my view, the positioning of the extractor fan constitutes trespass by the defendants of the claimant's land.

VI. Should Injunctive Relief be granted?

36. The claimant submits that as the defendants have trespassed, they are entitled to an injunction requiring the extractor fan to be removed The defendants contend that it is not appropriate to grant injunctive relief in favour of the claimant and that damages would be a suitable alternative remedy for the claimant . As Judge Hawkesworth found that the defendants had not trespassed on the claimant's land, he did not then consider whether an injunction would have been granted if the claim to trespass had been established. Mr. Pennock correctly accepted that the court has discretion whether to grant injunctive relief in a case such as this and that the exercise of this discretion depends on the facts of each case. There had, however, been evidence adduced at the trial on the appropriateness of granting an injunction.
37. For example, the defendants contend that the present claim is de minimis and that the claimant has not objected to the position of the extractor fan for many years until her branch of the family fell out with the claimant's branch of the family. It is also contended by the defendants that an injunction should not be granted as the claimant's property is derelict. All these matters, if substantiated, may well be relevant on the issue of whether injunctive relief should now be granted. Judge Hawkesworth heard much evidence about these matters and I do not have a transcript of this evidence; so he, unlike me, would be able to determine if injunctive relief should be granted or if damages, rather than injunctive relief, would be an adequate remedy for the claimant in this case. I will therefore remit the case to him so that he can then determine what remedy should be granted.

VII. Conclusions

38. For the reasons, which I have sought to explain, permission to appeal is granted and the appeal will be allowed to the extent that I find that the positioning by the defendants of the extractor fan on the wall above claimant's land constitutes an actionable trespass but that the issue of whether the claimant should obtain injunctive or other relief is remitted to Judge Hawkesworth for further consideration by him.
39. After I circulated a draft of this judgment, it was submitted on behalf the second and third defendants that they "should be precluded from any further proceedings in the said claim as the owner of 198-200 Towngate, Wyke is Abdul Majid". This was not a subject of any notice or oral submissions to me and it is therefore inappropriate for me to deal with this, but this point can be raised in front of Judge Hawkesworth at the remitted hearing.
40. I therefore order that:

i. The claimant has permission to appeal against the order of His Honour Judge Hawkesworth QC dated 17 December 2004 and that this appeal be allowed to the extent set out below;

ii. The claimants are entitled to a declaration that the erection by or on behalf of the defendants of the extractor fan now to be found on and protruding from the wall above the claimant's rear yard constitutes a trespass;

iii. The issue of whether the claimant is entitled to an injunction requiring the defendants to remove the extractor fan or to other relief should be remitted to the Bradford County Court for further consideration by His Honour Judge Hawkesworth QC and that

iv. The defendants should pay the claimant's costs of the action and of the appeal on a standard basis but that in default of agreement, such costs should be subject to a detailed assessment.

v. All parties have liberty to apply to His Honour Judge Hawkesworth QC for further directions